Kirkland v. Ingalls Shipyard et al

Filing 8

ORDER OF DISMISSAL WITHOUT PREJUDICE. Signed by District Judge Halil S. Ozerden on 6/6/17. (JCH)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JOE S. KIRKLAND
v.
INGALLS SHIPYARD, et al.

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PLAINTIFF
Civil Action No. 1:17cv141-HSO-JCG
DEFENDANTS

ORDER OF DISMISSAL WITHOUT PREJUDICE
This matter is before the Court sua sponte. The Court has a continuing duty
to examine its subject-matter jurisdiction and dismiss any action over which it lacks
such jurisdiction. Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 702 (1982); Warren v. United States, 874 F.2d 280, 281-82
(5th Cir. 1989); Fed. R. Civ. P. 12(h)(3). For the reasons that follow, the Court finds
that it lacks subject-matter jurisdiction, and this case must be dismissed without
prejudice.
I. BACKGROUND
Plaintiff Joe S. Kirkland (“Plaintiff”) filed a pro se Complaint [1] on May 4,
2017, Compl. [1] at 1, along with a Motion [2] for Leave to Proceed In Forma
Pauperis, Mot. [1] at 1-5. The Complaint names Ingalls Shipyard, John Manville,
and Fibre Board as Defendants, Compl. [1] at 1-2, and asserts that the basis of the
Court’s subject-matter jurisdiction is federal question jurisdiction, id. at 3.
According to the Complaint, Plaintiff worked at Ingalls Shipyard “in the 70s to the
90s and was exposed to asbestos which caused his illness.” Id. at 4. The Complaint

purports to advance claims under the Eighth and Fourteenth Amendments to the
United States Constitution, id. at 3, and seeks $2 million in damages, plus punitive
damages in the amount of $2 million, id. at 4.
Because the Court questioned the existence of its subject-matter jurisdiction,
on May 9, 2017, the Magistrate Judge entered an Order [4] requiring Plaintiff to file
a written statement providing the Court with certain information pertaining to
federal question and diversity jurisdiction. Order [4] at 5. Plaintiff has filed a
Response [7] which only addresses the Magistrate Judge’s questions as to federal
question jurisdiction, but not as to diversity jurisdiction. See Order [4] at 2-4; Resp.
[7] at 2-3.
II. DISCUSSION
Federal courts are courts of limited jurisdiction, having subject-matter
jurisdiction only over those matters specifically designated by the Constitution or
Congress. Halmekangas v. State Farm Fire and Cas. Co., 603 F.3d 290, 292 (5th
Cir. 2010) (quoting Epps v. Bexar-Medina-Atascosa Counties Water Improvement
Dist. No. 1, 665 F.2d 594, 595 (5th Cir. 1982)). Courts “must presume that a suit
lies outside this limited jurisdiction, and the burden of establishing federal
jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate Ins.
Co., 243 F.3d 912, 916 (5th Cir. 2001).
Defendants appear to be private companies and not government actors. The
Magistrate Judge asked Plaintiff whether he was alleging that each Defendant
acted under color of state law or engaged in state government action, or acted under
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color of federal law or engaged in federal government action, and if so, to specifically
identify the facts on which his position is based. Order [4] at 2-3. Plaintiff
responded “yes” to many of these questions, but did not provide sufficient facts to
explain how these private entities could be considered government actors. Resp. [7]
at 2-3. Plaintiff’s conclusory responses are not sufficient to establish federal
question jurisdiction.
Plaintiff has not pled sufficient facts which would suggest that any
Defendant acted under color of state or federal law or engaged in any state or
federal government action. The Complaint appears to assert only state-law claims.
Based upon the current record, the Court cannot conclude that federal question
jurisdiction exists.
Even though Plaintiff did not invoke diversity jurisdiction, the Court sua
sponte considers whether diversity jurisdiction existed at the time the Complaint
was filed. 28 U.S.C. § 1332 provides that “[t]he district courts shall have original
jurisdiction of all civil actions where the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs, and is between . . . citizens of
different States . . . .” 28 U.S.C. § 1332(a)(1). Plaintiff lists his address, as well as
those of Defendants Ingalls Shipyard and John Manville, as in Mississippi. Compl.
[1] at 1-2. The Complaint [1] and Response [7] set forth no other jurisdictional facts
in this regard. Based upon the record, complete diversity of citizenship is lacking.
III. CONCLUSION
Plaintiff has not shown that this Court possesses federal subject-matter
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jurisdiction.
IT IS, THEREFORE, ORDERED AND ADJUDGED, that this civil action
is DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil
Procedure 12(h)(3) for lack of subject-matter jurisdiction.
SO ORDERED this the 6th day of June, 2017.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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