Jack v. Keirn et al

Filing 11

ORDER: This case is dismissed without prejudice for lack of subject matter jurisdiction. The Clerk is directed to CLOSE THIS CASE. Signed by Judge Virginia M. Hernandez Covington on 3/27/2014. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BRIAN P. JACK,
Plaintiff,
v.

Case No. 8:13-cv-2442-T-33TBM

STEVE KEIRN, individually,
et al.,
Defendants.
______________________________/
ORDER
This matter comes before the Court sua sponte. Pro se
Plaintiff Brian P. Jack initiated this action on September
20, 2013, against Steve Keirn, individually; Steve Keirn,
Inc., doing business as Florida Championship Wrestling; NXT
Wrestling, formerly known as Florida Championship Wrestling;
World Wrestling Entertainment, Inc.; John Does 1-25; Jane
Does

1-25;

Doe

Limited

Partnerships

Corporations 1-25. (Doc. # 1).

1-25;

and

Doe

The Court was not satisfied

that it had jurisdiction over this action, and as a result,
on September 24, 2013, this Court entered the following Order:
ENDORSED
diversity
1332, as
over this
diversity
complete

ORDER: Plaintiff attempts to allege
of citizenship, pursuant to 28 U.S.C. §
the basis for the Court's jurisdiction
matter. In order to sufficiently allege
jurisdiction, Plaintiff must demonstrate
diversity of citizenship and that the

amount in controversy exceeds $75,000. See 28
U.S.C. § 1332. In order to demonstrate complete
diversity, Plaintiff must establish that his
citizenship is diverse from the citizenship of
every Defendant. As explained in Molinos Valle Del
Cibao, C. por A. v. Lama, 633 F.3d 1330, 1342 n.12
(11th Cir. 2011), "citizenship, not residence, is
the key fact that must be alleged . . . to establish
diversity for a natural person." Furthermore,
Plaintiff is advised that to sufficiently allege
citizenship of a corporate defendant, the state of
incorporation as well as the location of the
principal place of business must be stated. See 28
U.S.C. § 1332(c)(1). In addition, Plaintiff must
establish that the amount in controversy exceeds
$75,000. Upon review of the Complaint, Plaintiff
has
insufficiently
alleged
"the
matters
in
controversy herein exceed the sum of $15,000,
exclusive of interest, costs, and attorney's fees."
Because the Complaint fails to properly allege the
citizenship of several Defendants and that the
amount in controversy exceeds $75,000, diversity
jurisdiction has not been definitively established.
As a result, the Court directs Plaintiff to file an
amended complaint on or before October 18, 2013,
demonstrating that the proper grounds for diversity
jurisdiction exist. Failure to satisfy the Court
that the requirements for diversity jurisdiction
exist may result in an Order of dismissal for lack
of jurisdiction.
(Doc. # 3).

Plaintiff filed an Amended Complaint on October 18,
2013.

(Doc.

#

4).

However,

upon

review

of

the

Amended

Complaint, the Court was still not satisfied that it had

2

jurisdiction over this action, and entered the following
Order:
ENDORSED ORDER: This Court is in receipt of
Plaintiff's Amended Complaint. [4]. However, upon
review of the Amended Complaint, the Court finds
that
Plaintiff
has
still
not
sufficiently
demonstrated that the proper grounds for diversity
jurisdiction exist. The Court reminds Plaintiff
that in order to sufficiently allege diversity
jurisdiction, Plaintiff must demonstrate complete
diversity of citizenship and that the amount in
controversy exceeds $75,000. See 28 U.S.C. § 1332.
In order to demonstrate complete diversity,
Plaintiff must establish that his citizenship is
diverse from the citizenship of every Defendant.
Therefore, the citizenship of Plaintiff and the
citizenship of every Defendant must be alleged in
the Complaint. As explained in Molinos Valle Del
Cibao, C. por A. v. Lama, 633 F.3d 1330, 1342 n.12
(11th Cir. 2011), "citizenship, not residence, is
the key fact that must be alleged . . . to establish
diversity for a natural person." Furthermore,
Plaintiff is advised that to sufficiently allege
citizenship of a corporate defendant, the state of
incorporation as well as the location of the
principal place of business must be stated. See 28
U.S.C. § 1332(c)(1). In addition, Plaintiff must
establish that the amount in controversy exceeds
$75,000. Because the Amended Complaint fails to
properly
allege
the
citizenship
of
several
Defendants and that the amount in controversy
exceeds $75,000, diversity jurisdiction has not
been definitively established. As a result, the
Court directs Plaintiff to file a second amended
complaint
on
or
before
November
8,
2013,
demonstrating that the proper grounds for diversity
jurisdiction exist. Failure to satisfy the Court

3

that the requirements for diversity jurisdiction
exist will result in an Order of dismissal for lack
of jurisdiction.
(Doc. # 5). Plaintiff filed a Second Amended Complaint on
November 8, 2013, which adequately demonstrated that this
Court has diversity jurisdiction over this action. (Doc. #
6).
Thereafter,

on

January

22,

2014,

Plaintiff

filed

a

Motion for Enlargement of Time requesting that this Court
grant him an additional thirty days in which to obtain
counsel. (Doc. # 7).

This Court construed the Motion as also

requesting an extension for Plaintiff to effect service of
process on all Defendants. Upon consideration, this Court
found good cause to grant Plaintiff a sixty day extension to
effect service of process on all Defendants and further
reminded Plaintiff that he could represent himself in this
matter pro se, if he so chooses. (Doc. # 8). As a result of
the Court’s Order, Plaintiff had until and including March
24, 2014, to effect service on all Defendants. (Id.).
On March 21, 2014, Plaintiff filed a Third Amended
Complaint. (Doc. # 9). The Third Amended Complaint adds a
plethora of other Defendants to this action. Although this
Court

has

instructed

Plaintiff

4

several

times

on

how

to

properly allege the citizenship of a party, the Third Amended
Complaint fails to properly allege the citizenship of the
newly added Defendants.
Furthermore, Plaintiff failed to seek leave from this
Court prior to filing the Third Amended Complaint. Pursuant
to Federal Rule of Civil Procedure 15:
(a)

Amendments Before Trial.

(1)

Amending as a Matter of Course. A party may
amend its pleading once as a matter of course
within:
(A)
(B)

(2)

21 days after serving it, or
if the pleading is one to which a
responsive pleading is required, 21 days
after service of a responsive pleading or
21 days after service of a motion under
Rule 12(b), (e), or (f), whichever is
earlier.

Other Amendments. In all other cases, a party
may amend its pleading only with the opposing
party's written consent or the court's leave.
The court should freely give leave when
justice so requires.

Fed. R. Civ. P. 15(a)(1)-(2).
There is no indication on the record that Plaintiff
effected service on the originally named Defendants by the
extended deadline imposed by this Court - March 24, 2014 and the time to do so has now passed. The Court notes that

5

attached to the Third Amended Complaint, Plaintiff filed a
letter to the Clerk of the Court indicating that “A process
server should be coming to your office to file the Summons
and return of service by Friday [March 21, 2014] and I pray
no later than Monday [March 24, 2014].” (Doc. # 9-1). At this
juncture, however, the record is devoid of any executed
summons or return of service demonstrating that service has
been properly effected upon the original Defendants.
Accordingly, Plaintiff is not entitled to amend his
pleading as a matter of course pursuant to Federal Rule of
Civil Procedure 15(a)(1), and he must request this Court’s
permission
Procedure

to

do

so

15(a)(2),

pursuant
which

he

to

Federal

has

failed

Rule
to

of

do.

Civil

Despite

Plaintiff’s apparent failure to comply with Federal Rule of
Civil

Procedure

15,

in

an

abundance

of

caution

given

Plaintiff’s pro se status, the Court has reviewed the Third
Amended Complaint and finds that the Third Amended Complaint
is

subject

to

dismissal

for

lack

of

subject

matter

jurisdiction as diversity is not properly alleged.
Although Plaintiff is representing himself pro se, this
Court expects him to adhere to the Rules governing this Court
and the Federal Rules of Civil Procedure. See Moon v. Newsome,
863 F.2d 835, 837 (11th Cir. 1989) (“Once a pro se . . .

6

litigant is in court, he is subject to the relevant law and
rules

of

court,

Procedure.”).

including

Plaintiff

the

may

not

Federal

Rules

circumvent

of

the

Civil

service

requirement by filing a futile amended complaint against new
Defendants on the eve of the service deadline. Accordingly,
the

Court

prejudice

finds
for

that

lack

of

dismissal
subject

of

this

matter

action

without

jurisdiction

is

warranted.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

This case is dismissed without prejudice for lack of
subject matter jurisdiction.

(2)

The Clerk is directed to CLOSE THIS CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this

27th day of March, 2014.

Copies: All Counsel and Parties of Record

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