Cobb v. FedEx Express, Inc. et al

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 21 Report and Recommendations. Signed by Judge S. Thomas Anderson on 6/17/2013. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

GUY F. COBB,

)
)
Plaintiff,
)
)
v.
)
)
FEDEX EXPRESS, INC., MEMPHIS-SHELBY )
COUNTY AIRPORT AUTHORITY,
)
CLIFFORD RUSSELL SMITH, and KIMLEY- )
HORN & ASSOCIATES,
)
)
Defendants.
)

No. 11-2274-STA-cgc

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE
MAGISTRATE JUDGE DISMISSING CASE PURSUANT TO 28 U.S.C. § 1915

This matter comes before the Court on the Report and Recommendation of the United
States Magistrate Judge on In Forma Pauperis Screening Pursuant to 28 U.S.C. § 1915 (D.E. #
21) filed May 23, 2013. Plaintiff Guy F. Cobb (“Cobb”) filed an Objection to Recommendation
and Motion to Withdraw Complaint for the Purpose of Re-Filing (D.E. # 23) on May 31, 2013.
For the reasons given herein, the Court hereby ADOPTS the Magistrate Judge’s Report and
Recommendation.
A district court reviews any portions of a Magistrate Judge’s report and recommendations
to which a party timely objects de novo.1 A reviewing court must review all issues raised in such
objections.2 The court must “liberally construe[]” documents filed by a pro se litigant, and must

1

28 U.S.C. §636(b)(1)(C); United States v. Worley, 193 F.3d 380, 383 (6th Cir. 1999).

2

Scheid v. Fanny Farmer Candy Shops, Inc. 859 F.2d 434, 436 (6th Cir. 1988).
1

hold a complaint drafted by a pro se litigant to a “less stringent standard than formal pleadings
drafted by lawyers.”3 This, however, does not mean pro se litigants may ignore the minimal
pleading standards required under the Federal Rules of Civil Procedure.4
The Magistrate Judge found this case to be frivolous under the meaning of 28 U.S.C. §
1915(d)(2)(B)(i) because Cobb did not plead a basis for federal jurisdiction.5 Federal district
courts are courts of limited jurisdiction, and may only exercise jurisdiction as conferred by
Congress pursuant to Article III of the United States Constitution.6 A district court properly
dismisses an action as frivolous under 28 U.S.C. § 1915(d)(2)(B)(i) when the plaintiff fails to
plead a proper basis for federal jurisdiction on the face of his complaint.7 Cobb lists specific
objections to the findings of the Magistrate Judge that neither diversity jurisdiction pursuant to
28 U.S.C. § 1332 nor federal question jurisdiction pursuant to 28 U.S.C. § 1331 exists in this
case.8 The Court will address these objections in turn.
3

Erickson

4

Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

5

Report and Recomm. at 8-9, D.E. # 21.

6

Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 673 (1950).

7

Carlock v. Williams, 182 F.3d 916, at *2 (6th Cir. 1999) (unpublished table opinion).

8

The Court notes Cobb also asks leave of the Court to withdraw his Complaint without
prejudice so that he might re-file with evidence not pertinent to the question of the Court’s
jurisdiction. The Court construes this as a motion pursuant to Fed. R. Civ. P. 41(a)(2). The
Court must consider the jurisdictional question before proceeding to any other matter. “Without
jurisdiction the court cannot proceed at all in any cause.” Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 7 Wall. 506, 514 (1868)). “The
requirement that jurisdiction be established as a threshold matter ‘spring[s] from the nature and
limits of the judicial power of the United States’ and is ‘inflexible and without exception.’” Id.
at 94-95 (quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)). As a practical
matter, a dismissal for lack of subject matter jurisdiction will have the same effect as granting a
motion under Rule 41(a)(2) without prejudice. See Fed. R. Civ. P. 41(b) (dismissal for lack of
jurisdiction does not serve as an adjudication on the merits).
2

Cobb argues the necessary diversity of citizenship under 28 U.S.C. § 1332 exists in this
case because Defendant Federal Express Corporation (improperly named in the Complaint as
FedEx Express, Inc.) (“FedEx”) is incorporated in Delaware and because Defendant KimleyHorn and Associates (“Kimley”) maintains a corporate headquarters in North Carolina. 28
U.S.C. § 1332 vests original jurisdiction in the district courts over “all civil actions . . . between .
. . citizens of different states[.]”9 The Supreme Court interprets the requirement that a suit be
between citizens of different states as requiring “complete” diversity – that is, each plaintiff must
be a citizen of a different state than every defendant.10 If even one defendant in this action is a
citizen of the same state as Cobb, there is no basis for this Court’s jurisdiction under 28 U.S.C. §
1332.
The Court need go no further than to examine FedEx’ citizenship to determine it lacks
jurisdiction under 28 U.S.C. § 1332. “For the purposes of [§ 1332] . . . a corporation shall be
deemed to be a citizen of every State . . . by which it has been incorporated and of the State . . .
where it has its principal place of business[.]”11 A corporation’s principal place of business is
the place from which the “corporation’s officers direct, control, and coordinate the corporation’s
activities.”12 “[I]n practice it should normally be the place where the corporation maintains its
headquarters[.]”13 Cobb appears to concede FedEx maintains its headquarters in Tennessee:

9

28 U.S.C. 1332(a)(1).

10

Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) (citing Carden v. Arkoma Assocs.,
494 U.S. 185, 187 (199); Strawbridge v. Curtiss, 3 Cranch 267, 267 (1806)).
11

28 U.S.C. § 1332 (c)(1) (emphasis added).

12

Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010).

13

Id. at 93.
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“FedEx maintains principal offices in Memphis, Tennessee[.]”14 Therefore, FedEx is a citizen of
Tennessee, regardless of FedEx’ state of incorporation. Cobb is also a citizen of Tennessee.
“The Plaintiff is an adult citizen of Tennessee[.]”15 Since both Cobb and Fed Ex are citizens of
Tennessee, there is no complete diversity of citizenship and the Court may not exercise
jurisdiction under 28 U.S.C. § 1332.
Cobb further asserts “federal jurisdiction extends to entities which receive federal
funding[,]”16 as a basis for the Court’s jurisdiction over the Memphis-Shelby County Airport
Authority specifically. Cobb cites no legal authority for this contention. This appears to be an
attempt to invoke the Court’s original jurisdiction over matters presenting a federal question
under 28 U.S.C. § 1331. However, the receipt and use of federal funds by a defendant is not
sufficient, in and of itself, to confer federal jurisdiction over state law claims against that
defendant under 28 U.S.C. § 1331.17 For the Court to exercise jurisdiction under 28 U.S.C. §
1331, the plaintiff must assert a cause of action “arising under” the Constitution, laws, or treaties
of the United States.18 Such cause of action must appear on the “face of the plaintiff’s properly
pleaded complaint.”19 Cobb predicates each cause of action enumerated in his Complaint on
state law. Therefore, no federal question presents itself, and the Court may not exercise
jurisdiction pursuant to 28 U.S.C. § 1331.
14

Pl.’s Obj. to R & R at 2, D.E. # 23.

15

Compl. ¶ 12, D.E. # 1. Cobb also identifies FedEx’ “global headquarters” as being in
Tennessee at paragraph 13 of his complaint.
16

Pl.’s Obj. to R & R at 2.

17

Gingerich v. White Pigeon Cmty. Sch., 746 F. Supp. 147, 150 (W.D. Mich. 1990).

18

28 U.S.C. § 1331.

19

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).
4

After de novo consideration of Cobb’s objections, the Court finds no error in the
Magistrate Judge’s Report and Recommendations. Therefore, the Court ADOPTS the Report
and Recommendations of the Magistrate Judge. Because the effect of this Order is to dismiss
Cobb’s claim without prejudice, the Court DENIES Cobb’s Motion to Withdraw Complaint as
MOOT.
IT IS SO ORDERED.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: June 17, 2013.

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