AJS Weightloss, LLC v. Rosenthal et al

Filing 13

ORDER dismissing case re 12 Amended Complaint. Plaintiff's Amended Complaint 12 is DISMISSED without prejudice. Plaintiff may file a second amended complaint no later than November 28, 2013, in accordance with the above. Failure to comply with the above will result in the case being dismissed without further notice for failure to allege the Court's subject matter jurisdiction. Signed by Judge Sheri Polster Chappell on 11/14/2013. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
AJS WEIGHTLOSS, LLC,
Plaintiff,
v.

Case No: 2:13-cv-711-FtM-38DNF

MICHAEL S. ROSENTHAL and
WAGNER, JOHNSTON &
ROSENTHAL, P.C.,
Defendants.
/
ORDER1
This matter comes before the Court on review of the file.2 Federal courts have
limited subject matter jurisdiction. A district court is permitted to hear only cases for
which there has been a congressional grant of jurisdiction. Morrison v. Allstate Indem.
Co., 228 F.3d 1255, 1261 (11th Cir. 2000). Under 28 U.S.C. § 1332, a district court has
jurisdiction over any civil case where the parties are citizens of different States and the
matter in controversy exceeds the sum or value of $75,000, exclusive of interests and
costs. Morrison, 228 F.3d at 1261 (citing 28 U.S.C. § 1332). In an action filed directly in
federal court, plaintiff bears the burden of adequately pleading, and ultimately proving,
jurisdiction. King v. Cessna Aircraft Co., 505 F.3d 1160, 1171 (11th Cir. 2007). In such

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of the court
2 “A federal court not only has the power but also the obligation at any time to inquire into jurisdiction
whenever the possibility that jurisdiction does not exist arises.” Fitzgerald v. Seaboard Sys. R.R., Inc., 760
F.2d 1249, 1251 (11th Cir. 1985).

cases, a plaintiff’s burden is present even in the absence of opposition by a defendant.
Morrison, 228 F.3d at 1261.
Plaintiff AJS Weightloss, LLC brings this instant suit against Defendant Michael
S. Rosenthal and Defendant Wagner, Johnston & Rosenthal, P.C. under the diversity
jurisdiction statute. (Doc. #12). Here, the Amended Complaint states jurisdiction is
proper because the amount in controversy exceeds $75,000, exclusive of interest and
costs, and the matter is between citizens of different states. (Doc. #12, ¶2). However,
the Amended Complaint insufficiently supports subject matter jurisdiction. (See Doc.
#12).
With regard to citizenship, the Amended Complaint only mentions the residences
rather than the domiciles of the individuals involved in this matter. See Newman-Green,
Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828 (1989) (“In order to be a citizen of a State
within the meaning of the diversity statute, a natural person must both be a citizen of the
United States and be domiciled within the State.”). Residency alone does not equal
citizenship. Further, pleading residency is not the equivalent of pleading domicile.
Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1341 (11th Cir. 2011);
Corporate Mgmt. Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d 1294, 1297 (11th
Cir. 2009); Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). To the contrary,
domicile is the equivalent of citizenship. McCormick v. Aderholt, 293 F.3d 1254, 1257
(11th Cir. 2002) (citation omitted). “A person’s domicile is the place of his true, fixed,
and permanent home and principal establishment, and to which he has the intention of
returning whenever he is absent therefrom.” Id. at 1257-58 (internal quotation marks
and citations omitted).

2

With regard to the amount in controversy, it is not facially apparent from the
Amended Complaint that the damages in this matter are likely to exceed $75,000.
Instead Plaintiff has only generically alleged the amount in controversy. See Catalano v.
Cohen & Grisby, P.C., No. 2:08-cv-667-FtM-29SPC, 2009 WL 3157645, at *4 (M.D. Fla.
Sept. 28, 2009). The only quantifiable damage indicated in the Amended Complaint is
$4000, the amount paid by Plaintiff to Defendants for professional services. (Doc. #12,
¶12). Even though the sum claimed by Plaintiff in the Amended Complaint controls if the
claim is apparently made in good faith, a dismissal is justified if it appears that the claim
is really for less than the jurisdictional amount. Catalano, 2009 WL 3157645 at *4 (citing
St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938); Burns v.
Windsor Ins. Co., 31 F.3d 1092, 1094 (11th Cir. 1994); Broughton v. Florida Int’l
Underwriters, 139 F.3d 861, 868 (11th Cir. 1998)). The Court is not satisfied by the
present record that the jurisdictional amount is present. Plaintiff has not satisfied its
burden of affirmatively alleging the existence of subject matter jurisdiction. Catalano,
2009 WL 3157645 at *4 (citing Beavers v. A.O. Smith Elec. Prods. Co., 265 Fed. Appx.
772, 777 (11th Cir. 2008)).
Accordingly, it is now
ORDERED:
(1) Plaintiff’s Amended Complaint (Doc. #12) is DISMISSED without prejudice.
(2) Plaintiff may file a second amended complaint no later than November 28,
2013, in accordance with the above. Failure to comply with the above will
result in the case being dismissed without further notice for failure to allege
the Court’s subject matter jurisdiction.

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DONE and ORDERED in Fort Myers, Florida this 14th day of November, 2013.

Copies: All Parties of Record

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