Wagoner v. Wagoner

Filing 14

ORDER adopting 12 Report and Recommendation. The 10 Amended Complaint is DISMISSED. The Clerk of Court is DIRECTED to terminate all pending motions and close the file. Signed by Judge Paul G. Byron on 4/2/2018. (JRJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

TINA LYNNE WAGONER,
Plaintiff,
v.

Case No: 6:17-cv-917-Orl-40KRS

DONNA LEE (SMITH) WAGONER,
Defendant.
/
ORDER
This cause is before the Court on Plaintiff’s Renewed Motion to Proceed in forma
pauperis (Doc. 11), filed November 9, 2017. Magistrate Judge Karla R. Spaulding
submitted a Report and Recommendation (“R&R”) on November 14, 2017. (Doc. 12). The
R&R recommended that the Court dismiss the case for lack of subject matter jurisdiction.
(Id at p. 2). On December 1, 2017, Plaintiff filed Objections to the R&R. (Doc. 13).
Upon de novo review, the Court accepts the R&R’s recommendation that the
Amended Complaint be dismissed for lack of subject matter jurisdiction.
I.

BACKGROUND
On May 19, 2017, Plaintiff Tina Lynne Wagoner filed a Complaint against

Defendant Donna Lee Wagoner. (Doc. 1). On October 2, 2017, Magistrate Judge
Spaulding submitted a different Report & Recommendation recommending the Complaint
be dismissed for lack of subject matter jurisdiction. (Doc. 6). The Court so dismissed the
Complaint. (Doc. 7). The October 2, 2017, Report & Recommendation advised Plaintiff of
the pleading requirements to establish subject matter jurisdiction. (Id.).

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On November 9, 2017, Plaintiff filed a one-page Amended Complaint (Doc. 10)
and Renewed Motion to Proceed in forma pauperis (Doc. 11). The Amended Complaint
alleges that Plaintiff Tina Lynne Wagoner is currently incarcerated, and that during her
incarceration, the executors of her father’s estate failed to give her “that which is rightfully
[Plaintiff’s] to claim.” (Doc. 10).
On November 14, 2017, Magistrate Judge Spaulding submitted a R&R,
recommending that the case be dismissed for lack of subject matter jurisdiction. (Doc. 12,
p. 2). Plaintiff objected on November 14, 2017. (Doc. 13).
II.

STANDARD OF REVIEW
When a magistrate judge has been designated to decide a matter that is dispositive

in nature, the magistrate judge must issue a report to the district judge specifying
proposed findings of fact and the recommended disposition. Fed. R. Civ. P. 72(b)(1). Any
party who disagrees with the magistrate judge’s decision has fourteen days from the date
of the decision to seek the district judge’s review by filing objections to those specific
portions of the decision with which the party disagrees. Fed. R. Civ. P. 72(b)(2). The
district judge must then make a de novo determination of each issue to which objection
is made. Fed. R. Civ. P. 72(b)(3). De novo review “require[s] independent consideration
of factual issues based on the record.” Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512
(11th Cir. 1990) (per curiam). The district judge may then accept, reject, or modify the
magistrate judge’s recommendation, receive additional evidence or briefing from the
parties, or return the matter to the magistrate judge for further review. Fed. R. Civ. P.
72(b)(3).

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III.

DISCUSSION
Plaintiff’s Objection is due to be overruled. To exercise jurisdiction over an action,

there must exist a basis for jurisdiction. “The basic statutory grants of federal-court
subject-matter jurisdiction are contained in 28 U.S.C. §§ 1331 and 1332. Section 1331
provides for ‘federal-question’ jurisdiction, § 1332 for ‘diversity of citizenship’ jurisdiction.”
Arbaugh v. Y&H Corp., 546 U.S. 500 (2006). 1 To properly invoke diversity of citizenship
jurisdiction, the plaintiff must plead that the parties are completely diverse and the amount
in controversy exceeds $75,000. Id.
Plaintiff again fails to allege subject matter jurisdiction despite being specifically
advised of the pleading requirements. (Doc. 6). Magistrate Judge Spaulding correctly
noted that “Plaintiff [had] not corrected any of the deficiencies identified in her original
complaint,” and therefore recommended that the Amended Complaint be dismissed for
lack of subject matter jurisdiction. (Id. at p. 2). Moreover, the Amended Complaint lacks
specific allegations of wrongdoing and instead states general grievances relating to her
father’s estate. (Doc. 10).
The Amended Complaint likewise does not allege a basis for diversity of citizenship
jurisdiction. Plaintiff lists her address as the Bedford Hills Correctional Facility in Bedford
Hills, New York. (Id.). Magistrate Judge Spaulding’s October 2, 2017, R&R emphasized
that “[a] prisoner’s place of incarceration does not establish citizenship. A person’s
citizenship is determined by his domicile prior to incarceration.” (Doc. 6, p. 4 (quoting

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The Amended Complaint does not allege a basis for federal-question jurisdiction.
(Doc. 10). The Amended Complaint, and Objection, alleges in conclusory fashion that
this suit is proper under various Constitutional Amendments. (Docs. 10, 13). Plaintiff’s
allegations do not come close to pleading a basis for federal question jurisdiction.
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Permanent Gen. Assurance Corp. v. Byrd, No. 6:17-cv-1363-Orl-31TBS, 2017 WL
4078037, at *3 (M.D. Fla. Aug. 23, 2017))). Nonetheless, Plaintiff fails to allege her
domicile prior to incarceration. (Doc. 10). Furthermore, the Amended Complaint fails to
allege Defendant’s domicile, although Plaintiff states in her Objection that Defendant is
domiciled in Florida. (Doc. 13). An Objection to a Report & Recommendation is no place
to allege jurisdiction, and even if it were, Plaintiff’s allegations would still be deficient.
(Docs. 10, 13).
The Court has a duty to liberally construe a pro se plaintiff's filings and to afford
greater leeway in alleging a claim for relief than what is given to licensed
attorneys. Tennyson v. ASCAP, 477 F. App’x 608, 609–10 (11th Cir. 2012) (per curiam).
Nevertheless, “a pro se party must follow the rules of procedure and evidence, and the
district court has no duty to act as [a pro se party’s] lawyer.” Id. at 610 (internal quotation
marks omitted). After dismissing a complaint, district courts may grant leave to amend
subject to reasonable limitations. Anderson v. Vanguard Car Rental USA, Inc., 304 F.
App’x 830, (11th Cir. 2008). “A district court need not allow an amendment: ‘(1) where
there has been undue delay . . . or repeated failure to cure deficiencies by amendments
previously allowed; (2) where allowing amendment would cause undue prejudice to the
opposing party; or (3) where amendment would be futile.’” Id. (quoting Bryant v. Dupree,
252 F.3d 1161, 1163 (11th Cir. 2001)).
Because Plaintiff has twice failed to allege grounds for subject matter jurisdiction
despite specific instructions for doing so, and thereafter failed to explain why amendment
would not be futile in Plaintiff’s Objection to the Magistrate’s R&R, the Amended
Complaint is due to be dismissed with prejudice.

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IV.

CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Plaintiff, Tina Lynne Wagoner’s Objection to the R&R (Doc. 13) is
OVERRULED.
2. Magistrate Judge Karla R. Spaulding’s Report and Recommendation filed
November 14, 2017, (Doc. 12) is ADOPTED and CONFIRMED and made
a part of this Order.
3. The Amended Complaint (Doc. 10) is DISMISSED.
4. The Clerk of Court is DIRECTED to terminate all pending motions and close
the file.

DONE AND ORDERED in Orlando, Florida, on April 2, 2018.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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