Potter v. Lincoln Hertiage Life Insurance Company et al

Filing 32

ORDER denying without prejudice 10 Motion for leave to proceed in forma pauperis/affidavit of indigency; Adopting Report and Recommendations - re 18 Report and Recommendations. Plaintiff's Amended Memorandum of Law Challenging the U.S. Court (Doc. 20) is OVERRULED. The Amended Complaint (Doc. 8) is DISMISSED without prejudice. The Clerk is directed to terminate all other pending motions and close this case. Signed by Judge Carlos E. Mendoza on 10/16/2015. (DJD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

ISAAC A. POTTER, JR.,
Plaintiff,
v.

Case No: 6:15-cv-1250-Orl-41KRS

LINCOLN HERITAGE LIFE
INSURANCE COMPANY, GERBER
LIFE INSURANCE COMPANY, LIFE
OF BOSTON INSURANCE COMPANY,
GERBER PRODUCTS COMPANY,
SHIRLEY GROSSMAN, LARRY
SCHUNEMAN, KORRI BEHLER,
ALAN STACHURA, NESTLE
HOLDING INC. and THE
CORPORATION TRUST COMPANY,
Defendants.
/
ORDER
THIS CAUSE is before the Court on Plaintiff’s Affidavit of Indigency (Doc. 10). United
States Magistrate Judge Karla R. Spaulding submitted an Amended Report and Recommendation
(Doc. 18), in which she recommends that the Affidavit of Indigency, construed as a motion to
proceed in forma pauperis, be denied and Plaintiff’s Amended Complaint be dismissed without
leave to amend. (Id. at 7). Plaintiff filed an Amended Memorandum of Law Challenging the U.S.
Court (“Amended Memorandum,” Doc. 20), which this Court construes as an objection to the
Report and Recommendation.

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After a de novo review, 1 the Court agrees entirely with the findings of fact and conclusions
of law in the Report and Recommendation. To the extent Plaintiff contends that the Court bears
the burden of proving jurisdiction, this is a misstatement of the law. The party seeking subjectmatter jurisdiction in federal court bears the burden of pleading the facts necessary to establish
such jurisdiction. McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002) (“[T]he party
invoking the court’s jurisdiction bears the burden of proving, by a preponderance of the evidence,
facts supporting the existence of federal jurisdiction.”). Plaintiff has not alleged diversity of
citizenship by a preponderance of the evidence, and thus, has not met his burden.
Therefore, it is ORDERED and ADJUDGED as follows:
1. The Amended Report and Recommendation (Doc. 18) is ADOPTED and
CONFIRMED and made a part of this Order.
2. Plaintiff’s Amended Memorandum of Law Challenging the U.S. Court (Doc. 20)
is OVERRULED.
3. Plaintiff’s Affidavit of Indigency (Doc. 10) is DENIED without prejudice.
4. The Amended Complaint (Doc. 8) is DISMISSED without prejudice.
5. The Clerk is directed to terminate all other pending motions and close this case.
DONE and ORDERED in Orlando, Florida on October 16, 2015.

1

The objected-to portions of the Report and Recommendation are reviewed de novo. 28
U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3).

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Copies furnished to:
Counsel of Record
Unrepresented Party

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