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Lett v. Classic Buick GMC Cadillac

United States District Court, M.D. Alabama, Northern Division

February 22, 2018

RICKEY LETT, Plaintiff,
v.
CLASSIC BUICK GMC CADILLAC, Defendant.

          REPORT AND RECOMMENDATION

          SUSAN RUSS WALKER, UNITED STATES MAGISTRATE JUDGE.

         On June 13, 2017, this matter was referred to the undersigned for consideration and disposition or recommendation on all pretrial matters as may be appropriate by United States District Judge Myron H. Thompson. (Doc. 3); see also 28 U.S.C. § 636(b); Rule 72, Fed. R. Civ. P.; United States v. Raddatz, 447 U.S. 667 (1980); Jeffrey S. v. State Board of Education of State of Georgia, 896 F.2d 507 (11th Cir. 1990).

         Before the court is defendant Warranty Support Services, LLC's (“Warranty Support Services”)[1] motion to dismiss the amended complaint for lack of subject matter jurisdiction. See Doc. 22. Upon consideration of the motion, and for good cause, it is the recommendation of the Magistrate Judge that the motion be denied; however, the undersigned further recommends that this case be dismissed without prejudice for lack of subject matter jurisdiction despite the recommended denial of the motion to dismiss.

         STANDARD OF REVIEW

         Although defendant does not cite Fed.R.Civ.P. 12(b)(1) in its motion to dismiss, motions to dismiss for lack of subject matter jurisdiction are properly brought under that rule; therefore, the court will apply the standard of review appropriate for 12(b)(1) motions. “A motion to dismiss under Rule 12(b)(1) challenges the court's subject matter jurisdiction and Rule 12(b)(1) permits a facial or factual attack.” Willett v. U.S., 24 F.Supp.3d 1167, 1173 (M.D. Ala. 2014) (citing McElmurray v. Consol. Gov't of Augusta-Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007)). The standard of review that this court applies to a 12(b)(1) motion to dismiss depends on whether defendant is making a “factual attack” or a “facial attack” on this court's jurisdiction. See Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (distinguishing “factual” attacks on subject matter jurisdiction from “facial attacks” and explaining the standard of review applying to each). “On a Rule 12(b)(1) facial attack, the court evaluates whether the plaintiff ‘has sufficiently alleged a basis of subject matter jurisdiction” in the complaint and employs standards similar to those governing Rule 12(b)(6) review.'” Willett, 14 F.Supp.3d at 1173. (citing Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir. 2013)). On a facial attack, the court must consider the allegations of the complaint to be true. When the attack is factual - i.e., the movant challenges the existence of subject matter jurisdiction in fact and irrespective of the pleadings - the court considers matters outside the pleadings, such as testimony and affidavits. See Lawrence, 919 F.2d at 1529.

Procedurally, facial and factual attacks differ. See Lawrence [v. Dunbar], 919 F.2d at 1529 [(11th Cir. 1990)]. “On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a Rule 12(b)(6) motion- the court must consider the allegations of the complaint to be true.” Lawrence, 919 F.2d at 1529 (citing Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981)). However, “when the attack is factual, the trial court may proceed as it never could under Rule 12(b)(6) or Fed.R.Civ.P. 56.” Lawrence, 919 F.2d at 1529. Since the court's ability to exercise jurisdiction over the case is at issue in a factual 12(b)(1) motion, “there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Id. The burden of proof on a Rule 12(b)(1) motion is on the party averring jurisdiction. Gilmore v. Day, 125 F.Supp.2d 468, 471 (M.D. Ala. 2000) (citing Thomson v. Gaskill, 315 U.S. 442, 446 (1942)).

McCallister v. Pulliam, 2008 WL 11380026, at *2 (N. D. Ala. 2008).

         The motion to dismiss in this case is based solely on the allegations of the amended complaint and does not reference other materials; therefore, it will be evaluated as a facial attack.

         ALLEGATIONS AND PROCEDURAL BACKGROUND

         Plaintiff, who proceeds pro se, initiated this action by filing a complaint against a single defendant - Classic Buick-GMC-Cadillac (“Classic Cadillac”).[2] The court affords the complaint the liberal construction that it is due.[3] Although it does not employ traditional counts to set out claims, the complaint alleges state law claims for fraud, and violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. 1961, et seq., and Alabama's so-called “lemon law, ” codified at Ala. Code § 8-20A-1 (1975). Plaintiff's claims stem from his purchase of a 2012 GMC Canyon and warranty from Classic Cadillac on January 8, 2016. See Doc. 1.

         Defendant Classic Cadillac answered the complaint, see Doc. 6, and filed a motion to compel arbitration, in which it acknowledged that plaintiff had “br[ought] claims of deceit, fraud, the Racke[t]eer Influenced and Corrupt Organizations Act (18 U.S.C. § 1961), and the Alabama lemon laws (Ala. Code § 8-20A-1, et seq.) in connection with Lett's purchase of the [v]ehicle.”

         The court held a scheduling and status conference in the matter, during which the plaintiff moved for leave to amend his complaint. See Doc. 14. Plaintiff subsequently filed an amended complaint which named as defendants not only Classic Cadillac, but also defendant Warranty Support Services. See Doc. 16. In this amended complaint, plaintiff alleges that the defendants deceived him “by concealing Easycare['s] true vehi[c]le service contract.” See Doc. 16 at 3. Plaintiff further alleges that he was “deceive[d] by a false instrument in purchasing another service warranty, ” and that the defendants “deceive[d] [him] in paying more for the [truck].” See Id. Plaintiff also alleges that the defendants “change[d] the contract date” and the “mileage.” See id. Finally, plaintiff alleges that the defendants engaged in a “pattern of illegal activity of extortion.” See id. at 4. Absent from the amended complaint are any references to RICO or Alabama's lemon law. See id.

         In response to the amended complaint, Classic Cadillac filed a motion to compel arbitration and stay proceedings, see Doc. 19, and Warranty Support Services filed the instant motion to dismiss. See Doc. 22. In its motion, Warranty Support Services argues that there is not complete diversity, and citing the allegations in the amended complaint, maintains that plaintiff is a resident of Alabama, Classic Cadillac is a “business entity located in Montgomery, Alabama, ” and Warranty Support Services is a “Georgia business entity.” Warranty Support Services argues that because plaintiff and Classic Cadillac are both citizens of Alabama, the court lacks subject matter jurisdiction over the case and it should be dismissed.

         DISCUSSION

         “Subject matter jurisdiction in a federal court may be based upon federal question jurisdiction or diversity jurisdiction.” Wimberley v. Jones, 2012 WL 3066360, at *1 (M.D. Ga. 2012)(citing Walker v. Sun Trust Bank of ...


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