Ousley v. Ramirez

Filing 30

Memorandum Opinion and Order granting 19 Motion to Dismiss for Lack of Subject Matter Jurisdiction. (Ordered by Senior Judge A. Joe Fish on 1/15/2019) (rekc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

SAMUEL L. OUSLEY,
Plaintiff,
VS.
LAURA LYNN RAMIREZ,
Defendant.

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CIVIL ACTION NO.
3:18-CV-0588-G

MEMORANDUM OPINION AND ORDER
Before the court is the defendant Laura Ramirez’s motion to dismiss for lack of
subject matter jurisdiction and for improper venue (docket entry 19). For the reasons
stated below, the defendant’s motion is GRANTED and the plaintiff’s complaint is
dismissed for lack of subject matter jurisdiction.
I. BACKGROUND
The plaintiff Samuel L. Ousley is a 28-year-old citizen and resident of
Rochester, Indiana. Complaint for Damages (“Complaint”) (docket entry 1) at 1.
The defendant Laura Ramirez is a 32-year-old citizen and resident of Pasadena,
Texas. Id.
Ousley alleges that on or about March 13, 2016 Ousley was a passenger in a
vehicle driven by Cheryl Thomas on Interstate Highway-45 in Galveston County,
Texas. Id. at 2. Ousley avers that Cheryl Thomas’ vehicle had engine problems and

came to a stop in the middle lane when Ramirez’s Kia Soul rear-ended Thomas’ car.
Id. Because of the accident Ousley maintains that he was immediately taken by
ambulance to a nearby hospital and that he now suffers permanent and catastrophic
injuries. Id.
II. PROCEDURAL HISTORY
On March 3, 2018, Ousley filed his complaint in this court. Id. The cause of
action underlying Ousley’s complaint is negligence, as he alleges that Ramirez: (1)
carelessly and negligently failed to maintain a proper lookout ahead of her vehicle;
(2) carelessly and negligently failed to keep her vehicle under proper control; (3)
failed to exercise reasonable care to alter or divert the course of her automobile so as
to avoid a collision; (4) carelessly and negligently failed to apply the brakes of her
vehicle in time to avoid an accident; and (5) carelessly and negligently operated her
vehicle at an unreasonable rate of speed under the circumstances. Complaint at 3.
Ousley maintains that diversity jurisdiction is the basis for this court’s subject matter
jurisdiction because Ousley is a citizen of Indiana, Ramirez is a citizen of Texas, and
“the amount in controversy exceeds $75,000.00.” Id. at 1. Moreover, Ousley claims
that venue is proper in the Northern District of Texas, because a substantial portion
of the acts or events giving rise to the plaintiff’s claim took place “within the
geographical boundaries of Texas.” Id. at 2.

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On April 4, 2018, this court issued two separate orders. The first order
required that within 15 days of April 4, 2018, the plaintiff’s counsel shall either (1)
provide to the court, and to the clerk of this court, satisfactory documentation of
membership in this court’s bar or (2) apply for membership in the bar of this court or
for admission pro hac vice. Order (docket entry 5) at 1. The second order required
that within twenty days of April 4, 2018, the plaintiff should file the entry of
appearance of local counsel pursuant to Local Rule 83.10(a) and that failure to do so
would result in dismissal without prejudice. Order (docket entry 6) at 1. On April
17, 2018, the plaintiff’s counsel filed his first motion for an extension of time to
comply with this court’s April 4th orders. First Motion for an Extension of Time
(docket entry 9) at 1. This court then granted the plaintiff’s first motion for an
extension of time, thereby giving the plaintiff’s counsel until May 21, 2018 to apply
for membership in the bar of this court or to apply for admission pro hac vice, and to
file the entry of appearance of local counsel. Order Granting Plaintiff’s Motion to
Extend Time (docket entry 10) at 1.
Unfortunately for the plaintiff, the plaintiff’s counsel failed to comply with the
May 21 deadlines, and this court dismissed the plaintiff’s complaint without
prejudice on May 22, 2018. First Dismissal Order (docket entry 11). Shortly
thereafter, on May 31, 2018, the plaintiff’s counsel filed his first motion to vacate
this court’s dismissal order. First Motion to Vacate Dismissal (docket entry 12) at

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1-2. The plaintiff’s counsel claimed that he did not comply with this court’s May 21
deadlines because he calendared the dates incorrectly and believed he had until
June 21 to comply with this court’s order. Id. at 1. This court then granted the
plaintiff’s motion to vacate on June 4, 2018, and issued an order reinstating the
plaintiff’s case. Order Reinstating Case (docket entry 13) at 1. In the same order
reinstating the case, this court informed the plaintiff’s counsel that he would need to
file an entry of the appearance of local counsel and either apply for admission to this
court’s bar or apply for admission pro hac vice by June 25, 2018. Id.
Plaintiff’s counsel then filed a second motion for an extension of time to
comply with the court’s June 25 deadline. Second Motion to Extend Time (docket
entry 14) at 1. This court granted the plaintiff’s motion, giving the plaintiff until
August 25, 2018 to file an entry of the appearance of local counsel and to either
apply for admission to this court’s bar or to apply for admission pro hac vice. Order
Granting Plaintiff’s Second Motion to Extend Time (docket entry 15) at 1. On
August 23, 2018, the plaintiff’s counsel filed his third motion to extend time. Third
Motion to Extend Time (docket entry 17) at 1. Again, this court granted the
plaintiff’s motion, thereby giving the plaintiff’s counsel until October 22, 2018 to file
an entry of the appearance of local counsel and either apply for admission to this
court’s bar or to apply for admission pro hac vice. Order Granting Plaintiff’s Third
Motion to Extend Time (docket entry 18) at 1.

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While the plaintiff’s counsel sought extensions to comply with this court’s
orders, Ramirez filed a motion to dismiss for lack of subject matter jurisdiction and
improper venue on August 29, 2018. In her motion, Ramirez alleges that the
plaintiff did not satisfy his burden of pleading that this court has diversity
jurisdiction, because the plaintiff’s complaint made only a bare allegation that the
amount in controversy exceed $75,000.00. Motion to Dismiss (docket entry 19) at
3. Specifically, Ramirez argues that the plaintiff’s claims that he had to treat
unspecified injuries to lessen pain and suffering, that he incurred medical bills in an
unspecified amount, and that he sustained and unstated amount of lost wages are
insufficient evidence to support the claim that the amount in controversy in this case
exceeds $75,000.00. Id. Moreover, Ramirez also avers that the Northern District of
Texas is not the proper venue for this suit, since neither the plaintiff nor defendant
lives in the Northern District and because the accident giving rise to the cause of
action occurred in Galveston County, which is located within the Southern District
of Texas. Id. at 4-5.
On October 2, 2018, the plaintiff’s counsel filed a response to Ramirez’s
motion to dismiss. Response (docket entry 22) at 1. In the response, the plaintiff’s
counsel admits that venue within this district is improper and that venue lies within
the Southern District of Texas. Id. at 4. Nevertheless, the plaintiff’s counsel argues
that this court should transfer this case to the Southern District of Texas in the

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interest of justice under 28 U.S.C. § 1406. Id. at 4-5. The plaintiff’s counsel argues
that it is in the interest of justice to transfer this case because the statute of
limitations for the plaintiff’s claim ran on or about March 13, 2018, and if dismissed
the plaintiff will be unable to re-file his action. Id. The plaintiff’s counsel did not
address the defendant’s argument concerning subject matter jurisdiction, however.
Id. at 3-6.
Ramirez filed her two-page reply on March 18, 2018. Reply (docket entry 23)
at 1-2. In the reply, Ramirez reiterates that the plaintiff failed to proffer evidence
that his claims exceed $75,000.00 and thereby failed to meet his burden of
establishing subject matter jurisdiction. Id. at 1. Moreover, Ramirez emphasizes that
the plaintiff conceded that venue is improper. Id.
After Ramirez filed her reply, but before this court could rule on her motion,
the plaintiff’s counsel filed his fourth motion for an extension of time to comply with
this court’s October 22 deadlines. Fourth Motion to Extend Time (docket entry 24)
at 1. On October 29, 2018, this court denied the plaintiff’s fourth motion for an
extension of time as moot since the plaintiff’s counsel, Bobby Saadian, became a
member of the Bar of the Northern District of Texas on October 2, 2018. Order
Denying Plaintiff’s Fourth Motion to Extend Time as Moot (docket entry 25) at 1.
In the same order, this court informed the plaintiff’s counsel that within twenty days

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of October 29, he must file the entry of appearance of local counsel pursuant to Local
Rule 83.10(a) and that failure to do so would again result in dismissal. Id.
Once again, the plaintiff’s counsel failed to comply with this court’s deadlines,
and on November 20, 2018 this court dismissed the plaintiff’s complaint without
prejudice for failure to comply with Local Rule 83.10(a). Second Order of Dismissal
(docket entry 26) at 1. On December 15, the plaintiff’s counsel filed a second
motion to vacate dismissal, in which the plaintiff’s counsel admitted that dismissal
was the result of his “inadvertence and mistake.” Second Motion to Vacate (docket
entry 27) at 1. Specifically, the plaintiff’s counsel alleged that he drafted the notice
of appearance and intended to file it timely, but that his staff failed to file the notice
on time. Id. Additionally, the plaintiff’s counsel implored this court to vacate the
dismissal because if the dismissal were not vacated, the plaintiff would be unable to
re-file his complaint due to the statute of limitations. Id.
On January 15, 2019, this court granted the plaintiff’s second motion to
vacate dismissal and issued an order reinstating this case. Second Order Reinstating
Case (docket entry 29). Now that this case has been reinstated, Ramirez’s motion to
dismiss is ripe for review.

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III. ANALYSIS
A. Legal Standard
Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes the dismissal
of a case for lack of jurisdiction over the subject matter. See Federal Rule of Civil
Procedure 12(b)(1). A motion to dismiss pursuant to Rule 12(b)(1) for lack of
subject matter jurisdiction must be considered by the court before any other
challenge because “the court must find jurisdiction before determining the validity of
a claim.” Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 192 (5th Cir. 1994)
(internal citations omitted); see also Ruhrgas AG v. Marathon Oil Company, 526 U.S.
574, 577 (1999) (“The requirement that jurisdiction be established as a threshold
matter . . . is inflexible and without exception”) (citation and internal quotation
marks omitted). On a Rule 12(b)(1) motion, which “concerns the court’s ‘very power
to hear the case . . . [,] the trial court is free to weigh the evidence and satisfy itself as
to the existence of its power to hear the case.’” MDPhysicians & Associates Inc. v. State
Board of Insurance, 957 F.2d 178, 181 (5th Cir.) (quoting Williamson v. Tucker, 645
F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897 (1981)), cert. denied 506 U.S. 861
(1992). In ruling on a motion to dismiss under Rule 12(b)(1), the court may rely on:
“1) the complaint alone; 2) the complaint supplemented by undisputed facts; or 3)
the complaint supplemented by undisputed facts and the court’s resolution of

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disputed facts.” MCG, Inc. v. Great Western Energy Corporation, 896 F.2d 170, 176
(5th Cir. 1990) (citing Williamson, 645 F.2d at 413).
Because Ousley claims diversity jurisdiction forms the basis of this court’s
subject matter jurisdiction, this court must determine whether Ousley has satisfied
his burden of establishing diversity jurisdiction. For a district court to have diversity
jurisdiction, the parties must be diverse in citizenship and the amount in controversy
must exceed $75,000.00. 28 U.S.C. § 1332 (2012). “The burden of establishing
subject matter jurisdiction in federal court rests on the party seeking to invoke it.”
Saint Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998).
Furthermore, “[i]t has long been recognized that unless the law gives a different rule,
the sum claimed by the plaintiff controls if the claim is apparently made in good
faith. To justify dismissal, it must appear to a legal certainty that the claim is really
for less than the jurisdictional amount.” Id. (citing Saint Paul Mercury Indemnity Co. v.
Red Cab Co., 303 U.S. 283, 288-89 (1938)(internal citations omitted)). “[H]owever,
. . . this ‘legal certainty’ test has limited utility – in fact is inapplicable – when, [as in
this case], the plaintiff has alleged an indeterminate amount of damages.” Id. (citing
De Aguilar v. Boeing Co., 47 F.3d 1404, 1409 (5th Cir.), cert. denied, 516 U.S. 865
(1995)).
Where a plaintiff alleges an indeterminate amount of damages or pleads bare
allegations of jurisdictional facts, the Fifth Circuit has found it helpful to apply the

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procedures developed in cases concerning removal from state court to federal court,
where the amount in controversy is in dispute. Id. These procedures require that
district courts to first examine the complaint to determine whether it is facially
apparent that the claims exceed the jurisdictional amount. Id. If not apparent, then
the district court may rely on summary judgment type evidence to ascertain the
amount in controversy. Id.
B. Application
Here, Ramirez does not dispute that both parties are diverse in citizenship.
See generally Motion to Dismiss. Ramirez’s motion to dismiss for lack of subject
matter jurisdiction is thus limited to whether the plaintiff has satisfied his burden of
establishing that the amount in controversy exceeds $75,000.00. After reviewing the
plaintiff’s complaint, this court concludes that Ousley has failed to raise his claim
above the jurisdictional threshold.
Because Ousley’s complaint makes only the bare allegation that “[t]he amount
in controversy exceeds Seventy-Five Thousand Dollars ($75,000.00), exclusive of
interest in costs[,]” Complaint at 1, this court must follow the same procedures as a
removal case and begin by reviewing the plaintiff’s complaint to determine whether it
is facially apparent that the plaintiff’s claim exceeds the jurisdictional amount. See
Saint Paul Reinsurance Co. 134 F.3d at 1253. In the complaint, Ousley makes the
claims that he is entitled to damages in an unspecified amount for: (1) his medical

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bills related to his treatment for injuries sustained as the result of the accident,
including costs for engaging physicians and radiologists, as well as costs for x-rays and
medicines; (2) lost wages resulting from missed time from work; and (3) a reduction
in his quality of life. Complaint at 4. The plaintiff’s complaint does not include any
exhibits or affidavits to back up his assertion that his damages exceed $75,000.00.
Id. Because Ousley’s complaint alleges damages in an unspecified amount and
provides no external evidence to support his allegation that the amount in
controversy exceeds the jurisdictional threshold, this court concludes that it is not
facially apparent that the plaintiff’s claims exceed the jurisdictional amount. See
Smither v. Northeast Mississippi Community College, No. 1:16-C-00119-GHD-DAS, 2017
WL 3085860, at *3 (N.D. Miss. 2017) (concluding that it was not facially apparent
that the plaintiff’s claims exceeded the jurisdictional threshold where the plaintiff’s
complaint alleged damages of an indeterminate amount and claimed “the amount in
controversy exceeds $75,000”).
Since it is not facially apparent from Ousley’s complaint that the amount in
controversy exceeds $75,000.00, this court must look to “summary judgment-type”
evidence to determine whether the plaintiff has established by a preponderance of the
evidence that his claims exceed the jurisdictional amount. Saint Paul Reinsurance Co.,
134 F.3d at 1253. Here, Ousley has provided no additional evidence to support his
claim that the amount in controversy exceeds $75,000.00. In fact, in the response to

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Ramirez’s motion to dismiss, Ousley’s counsel failed to address Ramirez argument
concerning subject matter jurisdiction entirely. See generally Response. Accordingly,
this court finds that there is no additional evidence to support Ousley’s claim that
the amount in controversy exceeds $75,000.00. This court thus concludes that
Ousley has not satisfied his burden of establishing diversity subject matter
jurisdiction.
This court understands the concerns of the plaintiff’s counsel that if this case
is dismissed, the plaintiff will be unable to refile his claim in another court because
the statute of limitations ran on or about March 13, 2018. This court would like to
remind the plaintiff’s counsel of Section 16.064 of the Texas Civil Practice and
Remedies Code, which tolls the statute of limitations for an action “between the date
of filing an action in a trial court and the date of a second filing of the same action in
a different court” if the court where the first action was filed is dismissed because of
lack of jurisdiction. TEXAS CIVIL PRACTICE & REMEDIES CODE § 16.064. Once
dismissed, the plaintiff’s counsel will have “not later than the 60th day after the
dismissal” to commence the action in a court of proper jurisdiction, here a Texas state
court. Id.

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IV. CONCLUSION
For the reasons stated above, Ramirez’s motion to dismiss for lack of subject
matter jurisdiction is GRANTED. Judgment will be entered dismissing this case for
lack of subject matter jurisdiction.
SO ORDERED.
January 15, 2019.

___________________________________
A. JOE FISH
Senior United States District Judge

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