United States District Court, M.D. Alabama, Northern Division
REPORT AND RECOMMENDATION
RUSS WALKER UNITED STATES MAGISTRATE JUDGE
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).
who proceeds pro se, initiated this action by filing
a complaint against a single defendant - Classic
Cadillac”). Plaintiff's claims arise from his
January 8, 2016 purchase of a 2012 GMC Canyon and warranty
from Classic Cadillac. See Doc. 1. The court
afforded the complaint the liberal construction it was
and found that plaintiff had alleged claims arising under
state and federal law. Defendant Classic Cadillac
answered the complaint, see Doc. 6, and filed a
motion to compel arbitration, see Doc. 11.
court held a scheduling and status conference, during which
the plaintiff moved for leave to amend his complaint.
See Doc. 14. Plaintiff subsequently filed an amended
complaint which named as a second defendant Warranty Support
Services, LLC. See Doc. 16. In this first amended
complaint, plaintiff omitted any reference to federal
response to the first amended complaint, Classic Cadillac
filed a motion to compel arbitration and stay proceedings,
see Doc. 19, and Warranty Support Services filed a
motion to dismiss. See Doc. 22. In its motion,
Warranty Support Services argued that there was no longer a
basis for federal question jurisdiction. Further, citing
plaintiff's allegations in the first amended complaint,
Warranty Support Services argued that the face of the first
amended complaint demonstrated that diversity jurisdiction
February 22, 2018, the undersigned entered a report and
recommendation, see Doc. 31, which recommended
denial of Warranty Support Services' motion to dismiss,
also recommended dismissal of plaintiff's case without
prejudice for lack of subject matter jurisdiction because
plaintiff's first amended complaint contained
insufficient allegations to establish federal question
jurisdiction and because the parties are not completely
diverse. See id. In response to the recommendation,
plaintiff filed an objection to the recommendation and second
amended complaint. See Doc. 33. The second amended
complaint alleged that defendants violated the Truth in
Lending Act, 15 U.S.C. 41 § 1601. See id.
March 26, 2018, United States District Judge Myron H.
Thompson entered an order adopting the recommendation to the
extent that the undersigned recommended denial of the motion
to dismiss and dismissal of the first amended complaint due
to lack of subject matter jurisdiction. However, “in
light of the plaintiff's post-recommendation filing of a
second amended complaint containing a possible federal claim,
” this case was referred back to the undersigned for
further consideration. See Doc. 34 at 2-3.
the district judge entered this order, defendant Classic
Cadillac filed a motion to compel arbitration, see
Doc. 35, and the court ordered briefing from plaintiff and
defendant Warranty Support Services. See Doc. 36. In
response to this order, plaintiff filed several documents:
(1) a third amended complaint, which eliminates any reference
to the Truth in Lending Act, see Doc. 37; (2) an
opposition to the motion to compel arbitration, see
Doc. 38; and (3) a “motion for judgment on the merits,
” see Doc. 39. Defendant Warranty Support
Services did not seek relief from the court's order to
file a response to the motion to compel arbitration, but
instead filed a motion to dismiss the third amended complaint
for lack of subject matter jurisdiction, arguing that the
parties are not diverse and that the third amended complaint
contains insufficient allegations to invoke federal question
jurisdiction. See Doc. 40. Defendant Classic
Cadillac filed a motion to compel arbitration of the third
amended complaint. See Doc. 41. Plaintiff then filed
a motion for judgment on the merits, see Doc. 42; an
opposition to the motion to dismiss, see Doc. 43; a
motion for judgment on the merits, see Doc. 44; and
an opposition to the motion to compel arbitration,
see Doc. 45.
did not seek leave to file the third amended complaint (Doc.
37); however, affording it a liberal construction,
court construes Doc. 37 as a motion for leave to file an
amended complaint - which is due to be granted - as well as
an amended complaint. The motion has been briefed,
and is ripe for review.
proceeding, the court must address an issue relating to
plaintiff's response in opposition to the motion to
dismiss the third amended complaint. See Doc. 43.
While there is no mention of an amendment and the document is
not styled as an amended complaint,  the document is similar
to the combined objection and second amended complaint (Doc.
33) that defendant filed after the undersigned entered the
recommendation. It, like the filing containing the second
amended complaint, offers argument and then proceeds to set
out paragraphs in the form of a complaint. It is not clear to
the undersigned whether plaintiff intended to restate his
allegations or amend his complaint. However, even if the
court were inclined to construe the response as containing a
fourth amended complaint, the interests of justice and
fairness would dictate otherwise. The paragraphs set out in
the response are identical to the allegations of the third
amended complaint. It would be futile to allow such an
amendment, as the analysis contained in this recommendation,
which dictates dismissal of the third amended complaint,
would apply equally to the putative fourth amended complaint.
reasons stated below, it is the recommendation of the
Magistrate Judge that defendant Warranty Support
Services' motion to dismiss the third amended complaint
for lack of subject matter jurisdiction, see Doc.
40, is due to be GRANTED, and that all other pending motions
are due to be DENIED as MOOT.
Support Services' motion to dismiss the third amended
complaint is brought pursuant to Fed.R.Civ.P. 12(b)(1).
“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 ...