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Lett v. Classic Buick GMC Cadillac

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

June 8, 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).

         Plaintiff, who proceeds pro se, initiated this action by filing a complaint against a single defendant - Classic Buick-GMC-Cadillac (“Classic Cadillac”).[1] 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 due[2] and found that plaintiff had alleged claims arising under state[3] and federal law.[4] Defendant Classic Cadillac answered the complaint, see Doc. 6, and filed a motion to compel arbitration, see Doc. 11.

         The 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 law.[5]

         In 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, [6] Warranty Support Services argued that the face of the first amended complaint demonstrated that diversity jurisdiction was lacking.

         On February 22, 2018, the undersigned entered a report and recommendation, see Doc. 31, which recommended denial of Warranty Support Services' motion to dismiss, [7]but 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.

         On 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.

         After 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.[8] 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.

         Plaintiff did not seek leave to file the third amended complaint (Doc. 37); however, affording it a liberal construction, [9] the court construes Doc. 37 as a motion for leave to file an amended complaint - which is due to be granted[10] - as well as an amended complaint. The motion has been briefed, [11] and is ripe for review.

         Before 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, [12] 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.

         For the 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.

         STANDARD OF REVIEW

         Warranty 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, ‚Äúthere 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 ...

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