Sharpe v. McIntyre et al

Filing 31

ORDER granting 24 Motion to Stay Discovery. Signed by Magistrate Judge G. R. Smith on 5/22/18. (jrb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
STEPHEN SHARPE,
Plaintiff,
v.
MASSIE MCINTYRE, et al.
Defendants.

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FILED
Scott L. Poff, Clerk
United States District Court

By jburrell at 2:59 pm, May 22, 2018

CV618-015

REPORT AND RECOMMENDATION
Pro se plaintiff Stephen Sharpe has filed this case alleging
improprieties related to various contracts.

Doc. 1 at 8.

Although

Sharpe’s allegations are not entirely clear, it appears that the contracts
at issue are related to a loan secured by real property.

Id.

The

defendants have responded to the Complaint, and they seek dismissal on
various grounds. See doc. 5 (MacIntyre’s Motion to Dismiss); doc 12
(Residential Credit Solutions, Inc.’s Motion to Dismiss); doc. 17 (Key
Bank, N.A.’s Motion to Dismiss); doc. 19 (Select Portfolio Services, Inc.’s
Motion to Dismiss); doc. 22 (Quantum Servicing Corporation’s Motion to
Dismiss); doc. 23 (Bryant’s Motion to Dismiss); doc 28 (First Family
Financial Services, Inc.’s Motion to Dismiss). Sharpe opposes. Doc. 27.

Pretermitting the various issues that defendants’ motions raise, it
appears that the Court lacks subject matter jurisdiction.
Sharpe checked the form Complaint’s box indicating that the Court
has jurisdiction based on the parties’ diversity of citizenship. Doc. 1 at 6.
Despite alleging diversity of citizenship, however, Sharpe lists his own
address in Georgia and lists business addresses for two of the individual
defendants (Massie McIntyre and Malcolm Bryant) in Georgia. Doc. 1 at
1, 3. Those defendants, as well as several of the entity defendants, point
out that those allegations belie any assertion of diversity jurisdiction.
See, e.g., doc. 5 at 3-4 (arguing that the Court lacks subject matter
jurisdiction because the Complaint alleges that both Sharpe and
McIntyre are Georgia citizens); doc. 19 at 3 (arguing that the Complaint,
on its face, “admits that at least four of the Defendants in this action
reside in Georgia, making them Georgia citizens”); doc. 22-1 at 6
(arguing the Court lacks jurisdiction “because the Complaint assigns
Georgia citizenship to the plaintiff as well as to some of the defendants”);
doc. 23 at 2-3 (“[T]he plaintiff has alleged that he and one or more
defendants are Georgia citizens”). Sharpe has responded in opposition to

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those motions, but he has not addressed the jurisdictional arguments.
Doc. 27.
“Federal courts are courts of limited jurisdiction[, and t]hey possess
only that power authorized by Constitution and statute.” Kokkonen v.
Guardian Life Ins. Co of Am., 511 U.S. 375, 377 (1994). It is presumed
that a case lies outside that jurisdiction, and the party asserting it (here,
the plaintiff) bears the burden of overcoming that presumption. Id. To
establish diversity jurisdiction, Sharpe must plead facts showing that the
parties are citizens of different states and that the amount in controversy
exceeds $75,000. 28 U.S.C. § 1332(a). “Complete” diversity is required -no opposing parties may be citizens of the same state.

See, e.g.,

Wisconsin Dep’t of Corrs. v. Schacht, 524 U.S. 381, 388 (1988). As the
defendants have pointed out, Sharpe’s allegations support the conclusion
that he and several defendants are Georgia citizens. He has asserted
nothing contradicting defendants’ construction of his allegations. The
Court cannot fill in jurisdictional gaps for him. Boles v. Riva, 565 F.
App’x 845, 846 (11th Cir. 2014) (“[E]ven in the case of pro se litigants
[where pleadings are liberally construed], this leniency does not give a
court license to serve as de facto counsel for a party, or to rewrite an

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otherwise deficient pleading in order to sustain an action.” (quotes and
cite omitted)).
Accordingly, Sharpe’s Complaint should be DISMISSED without
prejudice. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any
time that it lacks subject-matter jurisdiction, the court must dismiss the
action.”).

The remaining pending motions, therefore, should be

DENIED as moot. Doc. 5; doc. 8; doc. 12; doc. 17; doc. 19; doc. 22; doc.
23; doc. 28. The Joint Motion to Stay Discovery, pending ruling on the
motions to dismiss, is GRANTED, pending the District Judge’s
consideration of this Report and Recommendation. Doc. 24.
This R&R is submitted to the district judge assigned to this action,
pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 72.3.
Within 14 days of service, any party may file written objections to this
R&R with the Court and serve a copy on all parties. The document
should be captioned “Objections to Magistrate Judge’s Report and
Recommendations.” Any request for additional time to file objections
should be filed with the Clerk for consideration by the assigned district
judge.

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After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
district

judge

will

review

the

magistrate

judge’s

findings

and

recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp.,
648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. United States, 612 F.
App’x 542, 545 (11th Cir. 2015).
SO REPORTED AND RECOMMENDED, this 22nd day of May,
2018.

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