United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION AND ORDER
C. BURKE UNITED STATES DISTRICT JUDGE
the Court are three motions to dismiss: (1) a Motion to
Dismiss (Doc. 4) filed by defendant Scott Vowell
(“Vowell”); (2) a Motion to Dismiss (Doc. 8)
filed by defendant Wolfe, Jones, Wolfe, Hancock, Daniel &
South, LLC (“Wolfe Jones”) and a defendant
improperly named as Daniel Hancock (“Hancock”);
and (3) a Motion to Dismiss (Doc. 13) filed by defendant the
Alabama State Bar (the “ASB”). For the reasons
stated below, the Court will grant the motions to dismiss
filed by Wolfe Jones, Hancock, and the ASB, and dismiss this
action for lack of subject matter jurisdiction.
April 6, 2018, plaintiff Denise Cope filed a complaint (Doc.
1) in this action. Listed as defendants in her complaint are
Vowell, Wolfe Jones, Hancock, and the ASB. The address for
each defendant is in the State of Alabama. (Doc. 1, p. 2).
Plaintiff has indicated that the Court has subject matter
jurisdiction due to a “Constitutional or Federal
Question”; plaintiff also writes, “Involves a
previous federal case fraud.” (Id. at 3). In
another place in her complaint, plaintiff states that her
claim “involves fraud in a federal
case/arbitration.” (Id. at 5). Plaintiff
asserts that the total amount in controversy is $80, 000,
$20, 000 against each of the four defendants. (Id.
attachment (Doc. 1-1) to her complaint, plaintiff alleges
that she was the plaintiff in a federal case that went to
arbitration. Count 1 appears to allege a claim of fraud
against Hancock and his firm, Wolfe Jones, for actions taken
during the arbitration. Although it is not clear who Hancock
represented at the arbitration, plaintiff alleges that
Hancock committed fraud by coaching his client. Counts 2 and
3 appear to allege claims against Hancock for harassment for
inundating plaintiff with copies of items that he filed and
also for fraud. Count 4 alleges a claim against the
arbitrator, Vowell, for actions taken while acting as
arbitrator, but the Court cannot ascertain what the exact
claim might be. Count 5 appears to allege a claim against the
ASB for its failure to investigate plaintiff's complaints
against Hancock and Vowell. Plaintiff further asserts that
“[a]ll Defendants violated the Federal Statue [sic] for
Fraud and Committed Fraud on a Civil Level due to the
misrepresentations by all of the parties hurting the victim
and resulting in an award against her.” (Doc. 1-1, p.
response to plaintiff's complaint, all defendants filed
motions to dismiss. In the Motion to Dismiss (Doc. 4) filed
by Vowell, he argues that plaintiff's claims against him
arise out of his service and role as an arbitrator in the
underlying dispute; as a result, Vowell asserts that his is
entitled to absolute immunity and that all claims against him
should be dismissed pursuant to Rule 12(b)(6) for failure to
state a claim. Plaintiff filed a response (Doc. 5) in which
she appears to acknowledge that Vowell served as the
arbitrator. Plaintiff, however, disagrees that Vowell should
Motion to Dismiss (Doc. 8) filed by Wolfe Jones and Hancock,
they argue that the Court lacks subject matter jurisdiction.
In particular, they argue that there is no diversity
jurisdiction because plaintiff and defendants are citizens of
the same state and the amount in controversy does not exceed
$75, 000. Wolfe Jones and Hancock alternately argue that
plaintiff's claims should be dismissed for failure to
state a claim. In particular, they argue that, because
plaintiff's claims arise out of their representation of
plaintiff at arbitration, those claims are barred by the
absolute litigation privilege; they also argue that plaintiff
cannot proceed on her fraud claim without proof of actual
damages. In her response (Doc. 9), plaintiff appears to
address the issue of subject matter jurisdiction. In
particular, plaintiff appears to assert that the total
aggregate amount of her damages is over the federal
threshold, and her fraud claims have been brought pursuant to
18 U.S.C. § 1038.
Motion to Dismiss (Doc. 13) filed by the ASB, it asserts that
this action is due to be dismissed because (1) plaintiff
fails to raise a federal question, there is no diversity of
citizenship, and the amount of controversy in claims against
each defendant fails to meet the jurisdictional threshold of
$75, 000; (2) to the extent that Count 5 of plaintiff's
complaint is liberally construed, it cannot be sued pursuant
to 42 U.S.C. § 1983; and (3) all claims are barred by
the Eleventh Amendment to the United States Constitution. In
her response (Doc. 15), plaintiff reiterates the allegations
in her complaint, but does not address the ASB's
arguments regarding lack of subject matter jurisdiction.
January 23, 2019, Wolfe Jones and Hancock filed a suggestion
of bankruptcy (Doc. 22), stating that plaintiff has filed a
bankruptcy petition in the United States Bankruptcy Court for
the Northern District of Alabama and requesting a stay. On
January 28, 2019, plaintiff filed a response (Doc. 24) to the
suggestion of bankruptcy. In her response, plaintiff asserts
that she has conferred with the bankruptcy trustee and
requests that the case proceed. (Id.).
federal courts have limited jurisdiction, “a federal
court has an independent obligation to review its authority
to hear a case before it proceeds to the merits.”
Mirage Resorts, Inc. v. Quiet Nacelle Corp., 206
F.3d 1398, 1400-01 (11th Cir. 2000) (citing American Fire
& Cas. Co. v. Finn, 341 U.S. 6, 18 and n.17 (1951)).
“[A] federal court must inquire sua sponte
into the issue whenever it appears that jurisdiction may be
lacking.” Morrison v. Allstate Indem. Co., 228
F.3d 1255, 1261 (11th Cir. 2000). “If the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
Fed.R.Civ.P. 12(h)(3); see also Morrison, 228 F.3d
at 1260-61. In addition to the Court addressing the issue of
subject matter sua sponte, the issue has been raised
by three of the four defendants in this action. Therefore,
before the Court can consider the merits-based arguments in
the motions to dismiss or even the propriety of a stay due to
plaintiff filing bankruptcy, it must determine whether it, in
fact, has subject matter jurisdiction. Cf.
Crosby v. Monroe Cty., 394 F.3d 1328, 1331 n.2 (11th
Cir. 2004) (“The automatic stay provision of the
Bankruptcy Code, 11 U.S.C. § 362, does not extend to
lawsuits initiated by the debtor.”).
complaint, plaintiff asserts that the Court has jurisdiction
because a federal question is presented. (Doc. 1, p. 3).
Under 28 U.S.C. § 1331, “[t]he district courts
shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United
States.” However, federal question jurisdiction exists
only when a federal question is presented on the face of a
plaintiff's properly pleaded complaint. See Gully v.
First Nat. Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81
L.Ed. 70 (1936) (“To bring a case within the statute, a
right or immunity created by the Constitution or laws of the
United States must be an element, and an essential one, of
the plaintiff's cause of action.”); Anderson v.
Household Fin. Corp. of Alabama, 900 F.Supp. 386, 388
(M.D. Ala. 1995) (“Whether the complaint states a
federal question must be determined by examining the face of
the complaint.”). The Court finds that plaintiff has
not alleged a federal question.
one, plaintiff's complaint and attachment allege
purported fraud, misrepresentation, and harassment with
respect to an arbitration proceeding. That plaintiff cites to
a “Federal Statue [sic] for Fraud” or alleges
wrongdoing in the arbitration of claims initially filed in
federal court does not transform this action into one
invoking a federal question. (Doc. 1-1, p. 4); see also
Mason v. McPhillips, Shinbaum & Gill, 454 Fed.Appx.
758, 759-60 (11th Cir. 2011) (unpublished opinion) (finding
no federal question where plaintiff cited the Fourteenth
Amendment, Age Discrimination in Employment Act, Americans
with Disabilities Act, the Civil Rights Act of 1964, and the
Rehabilitation Act of 1973, but alleged claims amounting to
purely state-law claims). Furthermore, plaintiff does not
cite to any relevant constitutional provision or federal
statute in the complaint or attachment. It appears that the
only federal statute cited by plaintiff at all is 18 U.S.C.
§ 1038, and she did so only in a response (Doc. 9) to
the Motion to Dismiss (Doc. 8) filed by Wolfe Jones and
Hancock. Plaintiff cannot amend her pleadings in a response
to a motion to dismiss. See Payne v. Ryder Sys., Inc. Long
Term Disability Plan, 173 F.R.D. 537, 540 (M.D. Fla.
1997) (“Courts have held that a plaintiff cannot amend
a complaint through statements in a brief. In Car
Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101 (7th
Cir.1984), the court held that a party could not: amend a
complaint in a brief in opposition to a motion to dismiss.
Also in Jacobson v. Peat, Marwick, Mitchell &
Co., 445 F.Supp. 518 (S.D.N.Y.1977), the court held that
a party was not entitled to amend pleadings through
statements in a brief.”).
although plaintiff does not allege diversity jurisdiction,
the Court will examine whether it exists. Section 1332(a)
states that district courts shall have original jurisdiction
of all civil actions where the matter in controversy exceeds
$75, 000 and is between “citizens of different
States.” Id. at § 1332(a)(1). “This
statute and its predecessors have consistently been held to
require complete diversity of citizenship. That is, diversity
jurisdiction does not exist unless each defendant is
a citizen of a different State from each
plaintiff.” Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 373-74 (1978) (emphasis in
original). Here, it is clear that plaintiff and every
defendant are ...