Leban v. Mater Dolorosa Apartments
Filing
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ORDER & REASONS re dft's 12 Motion to Dismiss plaintiff's complaint for lack of subject matter jurisdiction, failure to state a claim, insufficiency of process, and insufficient service of process. Because the Court finds that there is no basis for subject matter jurisdiction, defendant's motion is GRANTED. Signed by Chief Judge Sarah S. Vance on 12/8/2011. (rll, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DANIEL LEBAN, JR.
CIVIL ACTION
VERSUS
NO: 11-2005
MATER DOLOROSA APARTMENTS
SECTION: R(5)
ORDER AND REASONS
Before the Court is defendant The Apartments at Mater
Dolorosa’s motion to dismiss plaintiff’s complaint for lack of
subject matter jurisdiction, failure to state a claim,
insufficiency of process, and insufficient service of process.1
Because the Court finds that there is no basis for subject matter
jurisdiction, defendant’s motion is GRANTED.
I.
BACKGROUND
Daniel Leban Jr. filed a complaint pro se and in forma
pauperis on August 16, 2011.2
The complaint states:
Beans as though the Housing Authority of New Orleans,
shows not to mediate the problems that I have with the
Apartments at 1226 South Carrollton Ave, instead the
housing authority decided to turn it over too Louisiana
Department of Justice, I Daniel ask for a mediator to
attempt to resolve this housing eschew that I have, but
the management at 1226 South Carrollton Ave shows not
to accept the mediator therefore I Daniel will pursue
other option such as the Courts.
1
R. Doc. 12.
2
R. Doc. 1.
The Apartments at Mater Dolorosa now move to dismiss plaintiff’s
complaint for lack of jurisdiction, failure to state a claim,
insufficient process and insufficient service of process.
Plaintiff opposes defendant’s motion.
II.
STANDARD
Federal Rule of Civil Procedure 12(b)(1) permits dismissal
for lack of jurisdiction over the subject matter of the claim.
When a Rule 12(b)(1) motion is filed in conjunction with other
Rule 12 motions, subject matter jurisdiction must be decided
first because “the court must find jurisdiction before
determining the validity of a claim.”
Moron v. Kingdom of Saudi
Arabia, 27 F.3d 169, 172 (5th Cir. 1994).
In ruling on a Rule 12(b)(1) motion to dismiss, the court
may rely on (1) the complaint alone, presuming the allegations to
be true, (2) the complaint supplemented by undisputed facts, or
(3) the complaint supplemented by undisputed facts and by the
court’s resolution of disputed facts.
Den Norske Stats
Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir.
2001); see also Barrera-Montenegro v. United States, 74 F.3d 657,
659 (5th Cir. 1996).
The party asserting jurisdiction bears the
burden of establishing that the district court possesses
jurisdiction.
Cir. 2001).
Ramming v. United States, 281 F.3d 158, 161 (5th
A court’s dismissal of a case for lack of subject
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matter jurisdiction is not a decision on the merits, and the
dismissal does not ordinarily prevent the plaintiff from pursuing
the claim in another forum.
See Hitt v. City of Pasadena, 561
F.2d 606, 608 (5th Cir. 1977).
A federal court may not entertain a case unless authorized
to do so by the Constitution and legislation.
F.3d 244, 248 (5th Cir. 1996).
Coury v. Prot, 85
The jurisdiction of federal
courts extends to actions that involve a federal question,
diversity suits, admiralty actions, suits against foreign states,
and bankruptcy proceedings.
See 28 U.S.C. §§ 1330-34.
Moreover,
there is a presumption against subject matter jurisdiction “that
must be rebutted by the party bringing an action to federal
court.”
Id.
III. DISCUSSION
Leban does not allege a basis for jurisdiction in his
complaint.
Nevertheless, because Leban is a pro se litigant, the
Court construes his complaint liberally.
30 F.3d 616, 620 (5th Cir. 1994).
See Moore v. McDonald,
Two possibilities for
jurisdiction exist: federal question jurisdiction under 28 U.S.C.
§ 1331 and diversity jurisdiction under 28 U.S.C. § 1332.
The Court finds that plaintiff has not alleged a basis for
federal question jurisdiction under 28 U.S.C. § 1331.
Federal
question jurisdiction is governed by the well-pleaded complaint
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rule which provides that “federal jurisdiction exists only when a
federal question is presented on the face of the plaintiff's
properly pleaded complaint.”
Beneficial Nat. Bank v. Anderson,
539 U.S. 1, 12, 123 S.Ct. 2058, 2065 (2003) (citing Caterpillar
Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425 (1987)); see
also Vaden v. Discover Bank, 556 U.S. 49, 129 S.Ct. 1262, 1272
(2009) (explaining that “a suit ‘arises under’ federal law only
when the plaintiff’s statement of his own cause of action shows
that it is based upon [federal law].”) (internal citations
omitted).
Plaintiff’s complaint does not refer to any federal
law or cause of action.
Indeed, even when construed liberally,
it is hard to make out any cause of action within Leban’s
complaint, much less one that arises under federal law.
In addition, there is no diversity jurisdiction under 28
U.S.C. § 1332.
Diversity jurisdiction exists only when there is
complete diversity of citizenship and the amount in controversy
exceeds $75,000, exclusive of interests and costs.
See 28 U.S.C.
§ 1332(a); Felton v. Greyhound Lines, Inc., 324 F.3d 771, 773
(5th Cir. 2003).
Complete diversity “requires that all persons
on one side of the controversy be citizens of different states
than all persons on the other side.”
Harvey v. Grey Wolf
Drilling Co., 542 F.3d 1077, 1079 (5th Cir. 2008) (citing
McLaughlin v. Mississippi Power Co., 376 F.3d 344, 353 (5th Cir.
2004)).
Plaintiff’s allegations do not establish the parties’
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citizenship and diversity, nor does plaintiff allege that the
amount in controversy is greater than $75,000.
Accordingly, the
Court finds that there is no basis for diversity jurisdiction.
IV.
CONCLUSION
Because the Court finds that it does not have subject matter
jurisdiction, the defendant’s motion is GRANTED and Leban’s
action is DISMISSED WITHOUT PREJUDICE.
New Orleans, Louisiana, this 8th day of December, 2011.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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