Jiminez Buitrago v. Harwood et al

Filing 13

ORDER OF DISMISSAL FOR LACK OF SUBJECT MATTER JURISDITION. Closing Case. Motions terminated: 10 Plaintiff's MOTION for Order to Show Cause filed by Jorge Jiminez Buitrago. Signed by Judge Marcia G. Cooke on 9/13/2016. (tm) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-CIV-23429-COOKE
JORGE JIMENEZ BUITRAGO,
Plaintiff,
vs.
LEE HARWOOD and LEE C HARWOOD PC,
Defendants.
_________________________________________/
ORDER OF DISMISSAL FOR LACK OF SUBJECT MATTER JURSIDICTION
THE FIRST AMENDED COMPLAINT (FAC) in this action alleges subject matter
jurisdiction under 28 U.S.C. §§ 1331 (federal question), 1338 (patents, plant variety
protection, copyrights, mask works, designs, trademarks, and unfair competition) and 15
U.S.C. § 1121 (trademarks).1 The FAC’s factual allegations, which concern the default of a
loan, even if construed in a light most favorable to Plaintiff, fail to establish claims covered
by any of those statutes. I must therefore dismiss this case for lack of subject matter
jurisdiction.
BACKGROUND
This case arises out of the alleged actions and/or omissions of a lawyer Plaintiff
retained to represent him regarding a ten million dollar ($10,000,000) bridge loan he made
to a Florida corporation for the purchase of a North Carolina resort. He alleges the
borrower never repaid the loan despite numerous promises to do so and a Settlement
Agreement between them.
Plaintiff claims he understood that his loan would be secured by a mortgage on a
property located in Mills Springs, North Carolina. He alleges, however, that the mortgage
never existed, and that the property in question is now the subject of a foreclosure action.

1 Plaintiff’s original Complaint alleged jurisdiction under 28 U.S.C. § 1332 but did not
adequately allege complete diversity of citizenship. After I ordered him to show cause why
I should not dismiss the Complaint for lack of subject matter jurisdiction, he amended his
Complaint to allege jurisdiction under §§ 1331, 1338 and 1121.

Plaintiff believes his lawyer had a conflict of interest and inadequately represented
him. He brings suit for negligence, breach of fiduciary duty, and legal malpractice.
DISCUSSION
A federal district court is obliged to carefully examine its jurisdiction over a case, and
where proper, dismiss the case sua sponte for lack of subject-matter jurisdiction. Wachovia
Bank, N.A. v. Schmidt, 126 S.Ct. 941, 950 (2006) (“[S]ubject-matter jurisdiction must be
considered by the court on its own motion, even if no party raises an objection”); see also
Mansfield, C. & L.M. Ry. v. Swan, 111 U.S. 379, 384 (1884) (“[T]he judicial power of the
United States must not be exerted in a case to which it does not extend, even if both parties
desire to have it exerted”).
This Court does not appear to have subject matter jurisdiction over this action.
Plaintiff’s claims do not involve a federal question that would establish jurisdiction under 28
U.S.C. § 1332. Rather, his claims appear to raise only state causes of action. Likewise,
Plaintiff’s claims do not involve intellectual property issues that might support jurisdiction
under 28 U.S.C. § 1338 or 15 U.S.C. § 1121.
Plaintiff therefore cannot maintain his suit in federal court. I note, however, that he
does state certain grievances that may be proper for state court.
CONCLUSION
For the reasons set forth herein, it is ORDERED and ADJUDGED that Plaintiff’s
First Amended Complaint (ECF No. 8) be DISMISSED without prejudice for lack of subject
matter jurisdiction. The Clerk is directed to CLOSE this case. All pending motions, if any,
are DENIED as moot.
DONE and ORDERED in Chambers, in Miami, Florida, this 13th day of September
2016.

Copies furnished to:
Counsel of Record

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