Wallace v. Askar et al
Filing
4
OPINION AND ORDER taking under advisement 2 Application to proceed without prepaying fees and costs; dismissing 1 Claim construed as a Complaint for lack of subject-matter jurisdiction without prejudice to filing an Amended Complaint within 7 days. If no Amended Complaint is filed, the case will be closed. Signed by Judge John E. Steele on 3/20/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BRIAN WILLIAM WALLACE,
Plaintiff,
v.
Case No: 2:14-cv-150-FtM-29DNF
KOUSAY SAM ASKAR, personally
and severally, THE SEMINOLE
TRIBE
OF
FLORIDA,
EVANS
ENERGY PARTNERS, LLC, and
JANE AND JOHN DOES, 1-100,
Defendants.
OPINION AND ORDER
This matter comes before the Court on a jurisdictional review
of the “Claim”, construed as a Complaint1 (Doc. #1) and filed on
March 17, 2014.
See Univ. of S. Alabama v. Am. Tobacco Co., 168
F.3d 405, 410 (11th Cir. 1999) (“a federal court is obligated to
inquire into subject matter jurisdiction sua sponte whenever it
may be lacking.”).
If the Court determines “at any time” that it
lacks subject-matter jurisdiction, the Court must dismiss the
case.
Fed. R. Civ. P. 12(h)(3).
short
and
plain
jurisdiction”.
1
statement
of
Plaintiff does not provide “a
the
grounds
Fed. R. Civ. P. 8(a)(1).
for
the
court’s
Therefore, the Court
“A civil action is commenced by filing a complaint with
the court.” Fed. R. Civ. P. 3.
will consider the possible bases for subject-matter jurisdiction.
See Ashcroft v. Iqbal, 556 U.S. 662, 671, 129 S. Ct. 1937, 1945,
173 L. Ed. 2d 868 (2009)(“Subject-matter jurisdiction cannot be
forfeited or waived and should be considered when fairly in
doubt.”)(citations omitted); Arbaugh v. Y&H Corp., 546 U.S. 500,
514, 126 S. Ct. 1235, 1244, 163 L. Ed. 2d 1097 (2006)(“Moreover,
courts, including this Court, have an independent obligation to
determine whether subject-matter jurisdiction exists, even in the
absence of a challenge from any party,” and “when a federal court
concludes that it lacks subject-matter jurisdiction, the court
must dismiss the complaint in its entirety.”).
Federal Question
Plaintiff
seeks
damages
for
fraud,
constructive
fraud,
conspiracy, breach of contract, and intentional infliction of
emotional distress.
These causes of action do not present a
federal
none
question
as
of
the
claims
“aris[e]
Constitution, laws, or treaties of the United States.”
§ 1331.
under
the
28 U.S.C.
Additionally, naming The Seminole Tribe of Florida2 does
2
In any event, it is not clear that plaintiff could bring
suit against the Seminole Tribe because the Seminole Tribe of
Florida is “a federally-recognized Native American tribe”, see
Sanderlin v. Seminole Tribe of Florida, 243 F.3d 1282, 1284 (11th
Cir. 2001).
“As a matter of federal law, an Indian tribe is
subject to suit only where Congress has authorized the suit or the
tribe has waived its immunity.”
Kiowa Tribe of Okla. v. Mfg.
Techs., Inc., 523 U.S. 751, 754 (1998).
“Suits against Indian
tribes are thus barred by sovereign immunity absent a clear waiver
by the tribe or congressional abrogation.” Okla. Tax Comm’n v.
2
not create a federal question.
“[F]ederal question jurisdiction
does not exist merely because an Indian tribe is a party or the
case involves a contract with an Indian tribe, [ ] a plaintiff's
complaint
still
must
“claim
a
right
to
Constitution and laws of the United States.”
recover
under
the
Miccosukee Tribe of
Indians of Florida v. Kraus-Anderson Constr. Co., 607 F.3d 1268,
1273
(11th
omitted).
Cir.
2010)(internal
citation
and
quotation
marks
Therefore, the Court will consider whether plaintiff
has presented an alternative basis for jurisdiction.
Diversity of Citizenship
The Court also has original jurisdiction over civil actions
“where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between--(1)
citizens of different States. . . .”
28 U.S.C. § 1332(a)(1).
This
requires complete diversity of citizenship, and that the matter in
controversy exceed the sum or value of $75,000, exclusive of
interest and costs.
28 U.S.C. § 1332(a); Morrison v. Allstate
Indem. Co., 228 F.3d 1255, 1261 (11th Cir. 2000).
Plaintiff alleges that he was to be reimbursed for expenses
and meals in the amount of $500 a month and paid 10% of gross
profit from fuel contracts.
(Doc. #1, ¶¶ 10-14, 28.)
Plaintiff
Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509
(1991) (citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58
(1978)).
3
alleges that he obtained over 20 contracts by Affidavit.
#1-1, ¶ 15.)
damages.
(Doc.
In plaintiff’s “Summary”, he seeks $20,000 in
(Doc. #1, ¶ 37.)
This amount is clearly below the
$75,000 amount in controversy threshold.
Plaintiff
alleges
that
he
is
a
“non
resident
national,
political status under the laws of the United States and State of
Florida.”
(Doc.
#1,
¶
1.)
Plaintiff
further
alleges
that
defendant Kousay Sam Askar, “an individual and a citizen of the
United States,” may be served with process in Naples, Florida.
(Id., ¶ 2.)
“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.”
Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828 (1989).
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).
“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.” McCormick v. Aderholt,
293 F.3d 1254, 1257-58 (11th Cir. 2002)(internal quotation marks
and citations omitted).
Plaintiff has failed to properly identify
his citizenship, or adequately allege the citizenship of the
4
individually
named
defendant.
Therefore,
no
diversity
of
jurisdiction is alleged.
Plaintiff also names Jane and John Does, 1-100, but does not
indicate where they may be domiciled.
decline
jurisdiction
where
a
person
“[A] federal court may
originally
named
as
a
fictitious defendant was an actual person known to both plaintiffs
and defendants and was known to be a resident of the same state as
plaintiffs.”
Brown v. TranSouth Fin. Corp., 897 F. Supp. 1398,
1401 (M.D. Ala. 1995)(citations omitted).
The Court is not aware
of plaintiff’s state of citizenship or residency, and therefore
the
Court
cannot
determine
if
the
Doe
defendants
should
be
considered.
Plaintiff names Evans Energy Partners LLC, a Delaware foreign
limited liability corporation incorporated under the laws of the
State of Florida.
(Doc. #1, ¶ 4.)
Plaintiff does not identify
any members, or the citizenship of the individual members of the
limited liability company, and a limited liability company is a
citizen of any state of which a member is a citizen.
Rolling
Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020
(11th Cir. 2004).
Therefore, the Court cannot determine whether
diversity of jurisdiction is present.
Finding no other basis for subject-matter jurisdiction, the
Complaint will be dismissed.
Plaintiff will be provided an
opportunity to state the presence of federal jurisdiction pursuant
5
to 28 U.S.C. § 1653 by filing an Amended Complaint, if he is able
to do so.
Accordingly, it is now
ORDERED:
1. The Complaint (Doc. #1) is dismissed for lack of subjectmatter jurisdiction without prejudice to filing an Amended
Complaint
within
plaintiff
fails
SEVEN
to
(7)
file
an
DAYS
of
Amended
this
Order.
Complaint
If
stating
subject-matter jurisdiction, the case will be closed.
2. The
Application
to
Proceed
in
District
Court
Without
Prepaying Fees or Costs (Doc. #2) is taken under advisement
pending review of an Amended Complaint.
DONE AND ORDERED at Fort Myers, Florida, this
March, 2014.
Copies:
Plaintiff
6
20th
day of
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