Norman v. Sthil Incorporation et al

Filing 11

ORDERED: Plaintiff is directed to SHOW CAUSE as to why this action should not be dismissed for lack of subject matter jurisdiction. Plaintiff shall file a written response with the Court within TWENTY-ONE (21) DAYS from the date of this Order. Additionally, Plaintiff shall file an amended complaint within TWENTY-ONE (21) DAYS from the date of this Order which cures the jurisdictional deficiencies noted herein. Failure to respond within the time provided will result in the dismissal, with out prejudice, of this action without further notice. If Plaintiff chooses to file an Amended Complaint, he must pay the filing fee for this action or move to proceed in forma pauperis within TWENTY-ONE (21) DAYS from the date of this order. The Cl erk is DIRECTED to send the "Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form)" to Plaintiff, along with a copy of this Order. The Clerk is directed to STRIKE the unilateral Consent Form 9 signed by Plaintiff only. Plaintiff's Motion for Summary Judgment 5 is DENIED as premature. Signed by Judge Charlene Edwards Honeywell on 11/15/2023. (JDE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
EVANTHONY R. NORMAN,
Plaintiff,
v.

Case No: 8:23-cv-1844-CEH-TGW

STHIL INCORPORATION, STHIL
SOUTHEAST, INC. and ERIC J.
PARTLOW,
Defendants.
ORDER
This matter is before the Court upon review of the file. Proceeding pro se, 1
Evanthony R. Norman filed a complaint against Sthil (sic) Incorporation,2 Sthil (sic)
Southeast, Inc. and Eric J. Partlow on August 16, 2023. Doc. 1. Because Plaintiff’s
Complaint does not set forth the basis of the Court’s subject matter jurisdiction, the
Court issues this Order to Show Cause. Additionally, the Court notes that Plaintiff has
neither paid the requisite filing fee for this civil action,3 nor moved to proceed in forma

Pro se parties should review the Federal Rules of Civil Procedure and the Local Rules for the Middle
District
of
Florida,
which
can
be
viewed
on
the
Court’s
website
at
https://www.flmd.uscourts.gov/local-rules. A pro se party should also consult the “Litigants Without
Lawyers” guide on the Court’s website, located at http://www.flmd.uscourts.gov/litigants-withoutlawyers. Additionally, a pro se litigant handbook prepared by the Federal Bar Association is available
to download at the following hyperlink: www.fedbar.org/prosehandbook. A pro se party may seek
assistance from the Federal Bar Association by completing a request form at
http://federalbartampa.org/pro-bono.
1

Stihl Incorporated is a distributor of handheld outdoor power equipment and related
products.
3
The fee for filing a civil action is Four Hundred Two Dollars and No Cents ($402.00).
2

pauperis. Also pending is Plaintiff’s Motion for Summary Judgment (Doc. 5) which is
due to be denied as premature, and a Notice and Consent to Magistrate Judge
jurisdiction (Doc. 9) which will be stricken because it was filed unilaterally and signed
by Plaintiff only.
DISCUSSION
On August 16, 2023, Plaintiff, Evanthony Norman initiated this action by filing
a Civil Complaint against Defendants, Sthil (sic) Incorporation, Sthil (sic) Southeast,
Inc. and attorney Eric J. Partlow Doc. 1. Although his form Complaint states that
jurisdiction is invoked on both federal question and diversity of citizenship grounds
(Doc. 1 at 3), the Complaint appears to assert only state-law claims of negligence and
products liability. Specifically, Plaintiff seeks compensatory and punitive damages for
emotional and physical injuries he suffered because of the malfunctioning of a Sthil
(sic) cutting saw that resulted in a fuel cap disengaging. Doc. 1. He alleges that while
working on a contracting job for Charlie Brown Hauling and Demolition, Inc., he was
using the saw to cut rebar and the fuel cap became slightly ajar causing fuel to leak and
catch fire when encountering sparks from the cutting of the rebar. Doc. 1-1. Plaintiff’s
leg sustained second degree burns as a result.

Id. Construing pro se Plaintiff’s

Complaint liberally, he asserts claims of negligent manufacture of the saw and failure
to warn against the Stihl Defendants. In an amended statement of his claim (Doc. 6),
Plaintiff provides additional information regarding product recalls of the saw. Plaintiff
does not allege any specific allegations against attorney Partlow.

2

Plaintiff, who is a resident of Dade City Florida, alleges Defendant Sthil (sic)
Incorporation is a manufacturing and assembly corporation located in Virginia Beach,
Virginia; Defendant Sthil (sic) Southeast is a distributor located in Orlando, Orange
County, Florida; and attorney Eric Parlow is located in Tampa, Hillsborough County,
Florida.
A.

Subject Matter Jurisdiction

Federal courts must sua sponte inquire into an action’s subject matter jurisdiction
whenever such jurisdiction may be lacking. Cadet v. Bulger, 377 F.3d 1173, 1179 (11th
Cir. 2004); accord Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999)
(“[O]nce a federal court determines that it is without subject matter jurisdiction, the
court is powerless to continue.”). “The jurisdiction of a court over the subject matter
of a claim involves the court’s competency to consider a given type of case, and cannot
be waived or otherwise conferred upon the court by the parties.” Jackson v. Seaboard
Coast Line R.R. Co., 678 F.2d 992, 1000 (11th Cir. 1982). The bases for federal courts’
subject matter jurisdiction are confined, as federal courts are “empowered to hear only
those cases within the judicial power of the United States as defined by Article III of
the Constitution or otherwise authorized by Congress.” Taylor v. Appleton, 30 F.3d
1365, 1367 (11th Cir. 1994).
Plaintiff seeks to invoke the Court’s federal question jurisdiction pursuant to 28
U.S.C. § 1331. That section provides that this Court has original jurisdiction over all
civil actions arising under the Constitution, laws, or treaties of the United States. Id.
A case “arises under” federal law only when the complaint establishes either that
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federal law creates the cause of action or that the plaintiff’s right to relief depends on
resolution of a substantial question of federal law. Franchise Tax Bd. v. Construction
Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983) (superseded by statute on other
grounds). “The determination of whether federal question jurisdiction exists must be
made on the face of the plaintiff’s well-pleaded complaint.” Pacheco de Perez v. AT&T
Co., 139 F.3d 1368, 1373 (11th Cir. 1998) (citations omitted). Although Plaintiff’s
Complaint vaguely references Federal Codes, even a liberal reading does not state any
facts indicating that Plaintiff’s claims “arise under” federal law.
Plaintiff also alleges diversity of jurisdiction as a basis for the Court’s subjectmatter jurisdiction. Congress granted district courts original subject matter jurisdiction
over civil actions sitting in diversity. 28 U.S.C. § 1332. Diversity jurisdiction exists
where the lawsuit is between citizens of different states and the amount in controversy
exceeds $75,000. Id. § 1332(a)(1). Each defendant must be diverse from each plaintiff
for diversity jurisdiction to exist under 28 U.S.C. § 1332. Univ. of S. Ala., 168 F.3d at
412. For purposes of diversity jurisdiction, a corporation is “a citizen of every State
and foreign state by which it has been incorporated and of the State or foreign state
where it has its principal place of business,” 28 U.S.C. § 1332(c)(1). Review of
Plaintiff’s allegations reveals the parties are not diverse because he and two of the
named Defendants appear to be Florida citizens, and thus diversity jurisdiction is also
lacking.
Because Plaintiff’s Complaint fails to allege facts giving rise to this Court’s
subject-matter jurisdiction, Plaintiff is directed to respond to this Order identifying the
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basis of the Court’s jurisdiction. The Plaintiff will also be given the opportunity to
amend his Complaint to remedy the pleading deficiencies.
B.

Unilateral Notice of Consent

Plaintiff has filed a Notice of Consent to Magistrate Jurisdiction that is signed
only by him. Doc. 9. A Consent to Magistrate Jurisdiction requires the signatures of
all parties in an action. Plaintiff’s unilaterally signed Consent form is therefore due to
be stricken.
C.

Summary Judgment Motion

On September 8, 2023, Plaintiff filed a motion for summary judgment (Doc. 5)
and a supplement to his motion (Doc. 10). Summary judgment is appropriate when
the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, show there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of
stating the basis for its motion and identifying those portions of the record
demonstrating the absence of genuine issues of material fact. Celotex, 477 U.S. at 323;
Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir. 2004). That burden
can be discharged if the moving party can show the court that there is “an absence of
evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325.
Here, Plaintiff has not even served the Defendants with the Complaint. His
motion for summary judgment (Doc. 5) is premature, and therefore due to be denied.

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D.

No Filing Fee

To proceed in federal court, Plaintiff must either pay the filing fee or file a
motion to proceed in federal court without prepaying fees or costs. Plaintiff has done
neither.
Accordingly, it is
ORDERED:
1.

Plaintiff is directed to SHOW CAUSE as to why this action should not

be dismissed for lack of subject matter jurisdiction. Plaintiff shall file a written
response with the Court within TWENTY-ONE (21) DAYS from the date of this
Order. Additionally, Plaintiff shall file an amended complaint within TWENTYONE (21) DAYS from the date of this Order which cures the jurisdictional deficiencies
noted herein. Failure to respond within the time provided will result in the dismissal,
without prejudice, of this action without further notice.
2.

If Plaintiff chooses to file an Amended Complaint, he must pay the filing

fee for this action or move to proceed in forma pauperis within TWENTY-ONE (21)
DAYS from the date of this order.
3.
Court

The Clerk is DIRECTED to send the “Application to Proceed in District
Without

Prepaying

Fees

or

Costs

(Long

Form)”

(located

at

https://www.flmd.uscourts.gov/forms/all/filing-a-case-forms) to Plaintiff, along
with a copy of this Order.

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4.

Failure to pay the filing fee or to move to proceed in forma pauperis, by

filing the Long Form Application, within the time provided when an Amended
Complaint is filed will result in the dismissal of this action, without prejudice and
without further notice.
5.

The Clerk is directed to STRIKE the unilateral Consent Form (Doc. 9)

signed by Plaintiff only.
6.

Plaintiff’s Motion for Summary Judgment (Doc. 5) is DENIED as

premature.
DONE and ORDERED in Tampa, Florida on November 15, 2023.

Copies furnished to: Plaintiff, pro se

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