Davis, Jr. v. Kott Law Firm

Filing 5

NOTICE and ORDER: DENIED 2 MOTION to Proceed In Forma Pauperis. In the event Plaintiff wishes to proceed with prosecuting this suit in this Court, Plaintiff shall pay, within twenty-one (21) days of this Notice and Order, the $400.00 filing f ee and a Notice setting out the citizenship of Plaintiff and defendant, the Kott Law Firm. If Plaintiff does not wish to proceed with prosecuting this suit in this Court, Plaintiff shall file, within twenty-one (21) days of this Notice and Order, a Notice of Dismissal. Plaintiff is NOTIFIED that failure to timely comply with this Notice and Order may result in dismissal of this suit without further notice. Signed by Magistrate Judge Erin Wilder-Doomes on 5/22/2019. (EDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ADAM DAVIS, JR.
CIVIL ACTION
VERSUS
NO. 18-623-SDD-EWD
THE KOTT LAW FIRM
NOTICE AND ORDER
On June 11, 2018, plaintiff, Adam Davis, Jr. (“Plaintiff”), filed “A Complaint under the
Civil Rights Act, 42 U.S.C. § 1983” (the “Complaint”), 1 as well as an Application to Proceed in
District Court without Prepaying Fees or Costs (the “IFP Application”). 2 For the reasons explained
herein, Plaintiff’s IFP Application is denied, and Plaintiff is ordered, if he wishes to proceed in
prosecuting this action in this Court, to pay the $400.00 filing fee within twenty-one (21) days of
this Notice and Order. Additionally, in the event Plaintiff wishes to proceed in this Court, Plaintiff
shall also file, within twenty-one (21) days of this Notice and Order a Notice adequately alleging
the citizenship of Plaintiff and defendant, the Kott Law Firm (“Defendant”). Plaintiff is advised
that failure to comply with the requirements of this Notice and Order may result in dismissal of
this suit without further notice.
With respect to the IFP Application, based on the information provided by Plaintiff,
Plaintiff has an income of $20,000.00 and expenses of $3,000.00 per month. 3 Considering
Plaintiff’s $17,000.00 in disposable income per month, Plaintiff’s request to proceed without
prepayment of fees or costs is denied. In the event Plaintiff wishes to proceed with prosecuting
this action in this Court, Plaintiff is ordered to pay the $400.00 filing fee within twenty-one (21)
days of this Notice and Order.

1

R. Doc. 1.

2

R. Doc. 2.

3

R. Doc. 2, pp. 1 & 5.

1

Certified Mail Return Receipt Requested 7004 1160 0003 2648 5966

If Plaintiff chooses to proceed in this Court, the undersigned notes that Plaintiff must also
establish that this Court has federal subject matter jurisdiction over his claims. Federal subject
matter jurisdiction may be established in two ways. First, pursuant to 28 U.S.C. § 1331, this Court
has subject matter jurisdiction over “civil actions arising under the Constitution, laws, or treatises
of the United States.” Second, pursuant to 28 U.S.C. § 1332, this Court has subject matter
jurisdiction over civil actions where the amount in controversy exceeds $75,000.00 exclusive of
interest and costs and the parties are completely diverse (i.e., the Plaintiff and Defendant are
citizens of different states). Unlike state district courts, which are courts of general jurisdiction
and may therefore hear all types of claims, this Court may only entertain those cases over which
there is federal subject matter jurisdiction.
Here, notwithstanding the title of Plaintiff’s Complaint, Plaintiff does not assert a federal
claim and therefore it does not appear that this Court has subject matter jurisdiction under 28
U.S.C. § 1331. Instead, Plaintiff’s Complaint raises possible state law legal malpractice/tort and/or
breach of contract claims against his former attorney. 4 Accordingly, Plaintiff must establish that
this Court has subject matter jurisdiction under 28 U.S.C. § 1332. Plaintiff’s allegations may
satisfy the amount in controversy requirement for jurisdiction under 28 U.S.C. § 1332. 5 However,
Plaintiff does not adequately allege his own citizenship or the citizenship of the Defendant and,
based on the information submitted, it appears that both Plaintiff and Defendant are citizens of
Louisiana.

4
Plaintiff seeks to recover money paid to his former counsel as well as damages for the loss of vehicles that were
“taken from me by going to jail.” R. Doc. 1, p. 4. Plaintiff alleges that his former counsel “did not represent me the
wright [sic] way to the end.” R. Doc. 1, p. 4.
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Plaintiff would “like to get my money back $10,000 plus $3500.00 hundred dollars that he did not finish his job, and
the loss of my two 18 wheeler’s one for $157,000 and $167,000 and my dump trailer $76,000 dollars that was taken
from me by going to jail….” R. Doc. 1, p. 4.

2

To adequately allege the citizenship of an individual such as Plaintiff, Plaintiff’s domicile
must be alleged. 6 It appears that Plaintiff was domiciled in Louisiana at the time he filed his
Complaint and that he remains domiciled in Louisiana. Plaintiff commenced this suit while
incarcerated, and the return address shown on his Complaint is the East Baton Rouge Parish
Prison. 7 Although Plaintiff’s Complaint includes a return address for the Parish Prison, the
Complaint also provides a Baton Rouge street address as Plaintiff’s “present address.” 8 Plaintiff
thereafter filed a Notice of Change of Address indicating his new address of 3609 Evangeline
Street, Baton Rouge, Louisiana. 9 Plaintiff also filed additional documents with the Court on July
3, 2018 which show that he was charged with various offenses by Bills of Information in the 19th
Judicial District Court for the Parish of East Baton Rouge in May and October of 2014. 10
With respect to Defendant’s citizenship, an entity’s citizenship must be alleged either
according to the rules for corporations or, if the entity is not a corporation, the rules for
unincorporated associations.

The citizenship of a corporation is the corporation’s state of

incorporation and principal place of business. 11 To allege the citizenship of a limited liability
company or other type of unincorporated association, Plaintiff must identify each of the members

6

With respect to natural persons, “[f]or diversity purposes, citizenship means domicile, mere residence in the State is
not sufficient.” Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974). “A United States citizen who is domicile[d] in a
state is a citizen of that state. Thus, with few exceptions, state citizenship for diversity purposes is regarded as
synonymous with domicile.” Old Towne Development Group, LLC v. Matthews, Civil Action 09-224, 2009 WL
3254875, at * 3 (M.D. La. Oct. 8, 2009). “In determining a litigant’s domicile, the court may consider a variety of
factors, and no single factor is determinative. The factors may include the places where the litigant exercises civil and
political rights, pays taxes, owns real and personal property, has driver’s and other licenses, maintains bank accounts,
belongs to clubs and churches, has places of business or employment, and maintains a home for his family.” Truxillo
v. American Zurich Ins. Co., Civil Action No. 16-369, 2016 WL 6987127, at * 3 (M.D. La. Oct. 24, 2016) (citing
Coury v. Prot, 85 F.3d 244. 249 (5th Cir. 1996)).
7

R. Doc. 1-1.

8

R. Doc. 1, p. 3.

9

R. Doc. 3.

10

R. Doc. 4, pp. 9-10.

11

Getty Oil Corp., a Div. of Texaco, Inc. v. Ins. Co. of North America, 841 F.2d 1254, 1259 (5th Cir. 1988).

3

of the association and the citizenship of each member in accordance with the requirements of §
1332(a) and (c). 12 The same requirement applies to any member of a limited liability company or
other type of unincorporated association which is also a limited liability company or
unincorporated association. 13 Here, it appears that Defendant is a business entity located in
Louisiana. Plaintiff lists a Covington, Louisiana address for the Defendant in his Complaint,14 and
additional documents submitted following the filing of the Complaint indicate that Plaintiff filed
an ethical conduct complaint against Joseph Kott, an attorney located in Mandeville, Louisiana. 15
Plaintiff is advised that, if Plaintiff and The Kott Law Firm are both citizens of the State of
Louisiana, this suit will have to be dismissed in this Court because this Court would not have
subject matter jurisdiction. If Plaintiff does not wish to proceed with prosecuting this suit in this
Court, Plaintiff shall file, within twenty-one (21) days of this Notice and Order, a Notice of
Dismissal. The dismissal would be without prejudice to Plaintiff refiling in another court.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Application to Proceed in District Court
without Prepaying Fees or Costs 16 is DENIED.

12

See, Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008); 13F Fed. Prac. & Proc. Juris § 3630.1
(3d ed.) (“whenever a partnership, a limited partnership, a joint venture, a joint stock company, a labor union, a
religious or charitable organization, a governing board of an unincorporated institution, or a similar association brings
suit or is sued in a federal court, the actual citizenship of each of the unincorporated association’s members must be
considered in determining whether diversity jurisdiction exists.”) (internal citations omitted).

13

See, Turner Bros. Crane and Rigging, LLC v. Kingboard Chemical Holding Ltd., Civil Action No. 06-88, 2007 WL
2848154, at *4-5 (M.D. La. Sept. 24, 2007) (“when partners or members are themselves entities or associations, the
citizenship must be traced through however many layers of members or partners there may be, and failure to do [sic]
can result in dismissal for want of jurisdiction.”) (quotation and citation omitted).

14

R. Doc. 1, p. 1.

15

R. Doc. 4, p. 2.

16

R. Doc. 2.

4

IT IS FURTHER ORDERED that in the event Plaintiff wishes to proceed with
prosecuting this suit in this Court, Plaintiff shall pay, within twenty-one (21) days of this Notice
and Order, the $400.00 filing fee.
IT IS FURTHER ORDERED that in the event Plaintiff wishes to proceed with
prosecuting this suit in this Court, Plaintiff shall file, within twenty-one (21) days of this Notice
and Order, a Notice setting out the citizenship of Plaintiff and defendant, The Kott Law Firm,
according to the rules set forth herein.
IT IS FURTHER ORDERED that, if Plaintiff does not wish to proceed with prosecuting
this suit in this Court, Plaintiff shall file, within twenty-one (21) days of this Notice and Order, a
Notice of Dismissal. The dismissal would be without prejudice to Plaintiff refiling in another
Court.
IT IS FURTHER ORDERED that the Clerk of Court shall provide this Notice and Order
to Plaintiff, Adam Davis, Jr., by certified mail return receipt requested at the address listed on
PACER.
Plaintiff is NOTIFIED that failure to timely comply with this Notice and Order (i.e.,
failure to timely pay the $400.00 filing fee or failure to adequately allege the citizenship of Plaintiff
and Defendant) may result in dismissal of this suit without further notice.
Signed in Baton Rouge, Louisiana, on May 22, 2019.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

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