GANDOLFF v. BY THE PLANET INC et al

Filing 13

ORDER ADOPTING 11 REPORT AND RECOMMENDATION that this case be DISMISSED for lack of subject matter jurisdiction; signed by SENIOR JUDGE MAURICE M PAUL on 10/1/09. (tss)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION JOSEPH ALBERT GANDOLFF, Plaintiff, v. CASE NO. 1:08-cv-00248-MP-AK

BY THE PLANET INC, ANTHONY MICHAEL MCKNIGHT, Defendants. _____________________________/ ORDER This matter is before the Court on Doc. 11, Report and Recommendation regarding the Second Amended Complaint, Doc. 9, filed by Joseph Albert Gandolff. The Magistrate has recommended the Complaint be dismissed for lack of subject matter jurisdiction, or in the alternative, consolidated with Case No. 1:06-cv-00108. Plaintiff timely objected, Doc. 12, so this Court reviews all analysis to which there has been an objection de novo. A court may raise a jurisdictional defect sua sponte at any time. New England Co. v. Bank of Gwinnett County, 891 F. Supp. 1569, 1577 (N.D. Ga. 1995), citing Barnett v. Bailey, 956 F.2d 1036, 1039 (11th Cir. 1992); Fitzgerald v. Seaboard System R.R., Inc., 760 F.2d 1249, 1251 (11th Cir. 1985). According to the Uniform Fraudulent Transfer Act, jurisdiction of proceedings under that statute must be in the circuit court for the county where the principal place of business resides and other requirements of bond and notice apply. See Florida Statutes §727.102 and 104. Plaintiff has not alleged any constitutional violation such that original jurisdiction could be obtained under the court's federal question jurisdiction nor does he have diversity with the

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defendants. Without original jurisdiction, supplemental jurisdiction over the state law claims does not attach. 28 U.S.C. §§ 1331, 1332, 1367. Plaintiff argues in his Objection that ancillary jurisdiction (a form of supplemental jurisdiction) should apply to keep this claim active. Ancillary jurisdiction applies when the parties are in federal court because of diversity, and one party wants to bring a claim against another (third) party which would otherwise defeat that diversity. This claim concerns the exact same parties as Case No. 1:06-cv-0018, so ancillary jurisdiction cannot apply. 28 U.S.C.A. § 1367. Accordingly, it is hereby ORDERED AND ADJUDGED: 1. 2. The Report and Recommendation of the Magistrate Judge, Doc. 11, is ADOPTED and incorporated herein. This case is DISMISSED for lack of subject matter jurisdiction. 1st day of October, 2009

DONE AND ORDERED this

s/Maurice M. Paul
Maurice M. Paul, Senior District Judge

Case No: 1:08-cv-00248-MP-AK