Westley v. Hultman et al

Filing 49

ORDER: This case is dismissed for lack of subject matter jurisdiction. The Clerk is directed to close the case. Signed by Judge Virginia M. Hernandez Covington on 4/25/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOHN WESTLEY,
Plaintiff,
v.

Case No. 8:17-cv-729-T-33TBM

GREGORY N. HULTMAN, ET AL.,
Defendants.
/
ORDER
This matter comes before the Court sua sponte. The Court
determines that it lacks subject matter jurisdiction over this
case and thus dismisses this action pursuant to Rule 12(h)(3)
of the Federal Rules of Civil Procedure.
I.

Background
On February 14, 2017, pro se Plaintiff John Westley filed

a Complaint naming the following Defendants: Greg N. Hultman;
Coldwell Banker Real Estate LLC; Elizabeth V. Cutter; On Top
of the World Condominium Association, Inc.; Merrill Lynch; and
the Florida Attorney General’s Office. (Doc. # 1).

Westley

states that the Court has federal question jurisdiction under
28 U.S.C. § 1331 “because the resolution of stated claims will
require adjudication of disputed questions of Federal laws and
Constitutionally protected civil rights.” (Doc. # 1 at 1).
Westley indicates that the claims against the Defendants “are
governed under the Identity Theft and Assumption Deterrence

Act, Identity Theft Enforcement and Restitution Act, Federal
Securities Exchange Act, Investment Advisors Act, Consumer
Protection Act, RESPA, Identity Theft Penalty Enhancement Act,
U.S. Constitution 1st and 5th Amendments, HIPPA statutes, AntiKickback Act and the Whistleblowers Protection Act.” (Id.).
Westley does not allege that the requirements of complete
diversity of citizenship are met.
The Court is required to liberally construe Westley’s
Complaint because he is proceeding pro se. See Haines v.
Kerner, 404 U.S. 519, 520 (1972).

However, even the most

liberal construction reveals that the Court lacks subject
matter jurisdiction.
II.

Jurisdictional Discussion
“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); Hallandale Prof’l Fire Fighters Local 2238
v. City of Hallandale, 922 F.2d 756, 759 (11th Cir. 1991)
(stating “every federal court operates under an independent
obligation to ensure it is presented with the kind of concrete
controversy upon which its constitutional grant of authority
is based”).
2

Moreover,
jurisdiction.
Cir. 1994).

federal

courts

are

courts

of

limited

Taylor v. Appleton, 30 F.3d 1365, 1367 (11th

And “because a federal court is powerless to act

beyond its statutory grant of subject matter jurisdiction, a
court must zealously [e]nsure that jurisdiction exists over a
case, and should itself raise the question of subject matter
jurisdiction at any point in the litigation where a doubt
about jurisdiction arises.”

Smith v. GTE Corp., 236 F.3d

1292, 1299 (11th Cir. 2001).
Although the Complaint makes reference to various federal
statutes, the Complaint does not seek relief under any federal
law nor does the Complaint seek an Order interpreting any
federal law. In addition, a number of the federal statutes
Westley enumerates in the Complaint do not provide for a
private right of action. See, e.g., Razzi v. Nimler, No. 5:14cv-447-Oc-22PRL, 2014 U.S. Dist. LEXIS 143370, at *6 (M.D.
Fla. Sept. 12, 2014)(“The federal identity theft statute, the
Identity Theft and Assumption Deterrence Act of 1998, 18
U.S.C. § 1028, is criminal in nature and provides no civil
cause

of

Millennium

action
Labs.,

or

civil

Inc.,

remedy.”);

803

F.3d

Ameritox,

518,

522

Ltd.

(11th

v.

Cir.

2015)(“There is no private right of action under the AntiKickback Act.”).
3

The mere mention of a federal statute in a complaint does
not create federal question jurisdiction. Hill v. Marston, 13
F.3d 1548, 1550 (11th Cir. 1994). Rather, federal question
jurisdiction

requires

that

a

party

assert

a

substantial

federal claim. Hagans v. Lavine, 415 U.S. 528, 536 (1976); see
also Baker v. Carr, 369 U.S. 186, 199 (1962)(holding that if
jurisdiction is based on a federal question, the plaintiff
must show that he has alleged a claim under federal law that
is not frivolous).
The Complaint is comprised of eleven state law claims: INegligence; II-Fraud; III-Unjust Enrichment; IV-Defamation; VLibel;

VI-Collusion;

VII-Inducement;

VIII-Tortious

Interference; I X-Misrepresentation; X-Conversion; and XIRetribution.

Westley does not claim that complete diversity

of citizenship exists.

The Court is not required to bolster

deficient jurisdictional allegations.

“If a complaint’s

factual allegations do not assure the court it has subject
matter jurisdiction, then the court is without power to do
anything in the case.” Travaglio v. Am. Express Co., 735 F.3d
1266, 1269 (11th Cir. 2013). And, “[a] district court must
dismiss

a

case

without

ever

reaching

the

merits

if

it

concludes that it has no jurisdiction.” Goodman v. Sipos, 259
F.3d 1327, 1331 n. 6 (11th Cir. 2001).
4

Although the Court has construed the Complaint broadly
due to Westley’s pro se status, the Court comes to the
ultimate conclusion that it lacks subject matter jurisdiction
over this case.

The leniency afforded to pro se pleadings

“does not give a court license to serve as de facto counsel
for a party or to rewrite an otherwise deficient pleading.”
GJR Invs., Inc. v. Cnty of Escambia, 132 F.3d 1359, 1369 (11th
Cir. 1998).

The case is dismissed for lack of subject matter

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

This

case

is

dismissed

for

lack

of

subject

matter

jurisdiction.
(2)

The Clerk is directed to close the case.
DONE and ORDERED in Tampa, Florida, this 25th day of

April, 2017.

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