United States District Court, S.D. Alabama, Southern Division
EMOGENE R. BROWN, Plaintiff,
DR. LLYAS SHALKH, Defendant.
REPORT AND RECOMMENDATION
F. BIVINS, UNITED STATES MAGISTRATE JUDGE
Emogene R. Brown, proceeding pro se, initiated this
action on March 26, 2019, by filing a complaint and a motion
to proceed without prepayment of fees. (Docs. 1, 2). Upon
sua sponte review, the Court, in an order dated
April 1, 2019, informed Plaintiff that her one-sentence
complaint was deficient, as it contained no information
regarding the nature of Plaintiff's claim or request for
relief, nor the basis for federal jurisdiction. (Doc. 4).
Therefore, the Court ordered Plaintiff to file an amended
complaint that contained “a short and plain
statement” of her claims as required by Federal Rule of
Civil Procedure 8(a) and to provide the grounds for the
Court's jurisdiction. (Doc. 4). The Court ordered Plaintiff
to file an amended complaint curing the noted deficiencies by
April 22, 2019, and cautioned her that if she failed to do
so, the Court would recommend dismissal of her
complaint. (Id.). The Court also advised
Brown that her motion to proceed without prepayment of fees
(Doc. 2) was deficient because it did not include information
needed to accurately assess her ability to pay the statutory
filing fee. Accordingly, Brown was directed to refile the
motion to proceed without prepayment of fees and to complete
the Court's form completely so as to assist the Court in
determining her ability to pay the filing fee.
April 11, 2019, Brown filed a supplement to her original
complaint, which the Court construed as an amended complaint,
but again Brown failed to assert any basis for the
Court's subject matter jurisdiction over her
claims. (Doc. 6). Brown also filed a second motion
to proceed without prepayment of fees (Doc. 7); however, it
also was deficient because it did not provide sufficient
information regarding Brown's sources of income and
monthly expenses. As a result, in an order dated April 12,
2019, (Doc. 7), the Court again ordered Brown to amend her
complaint to provide a short and plain statement of her
claims and the basis for the Court's jurisdiction by
April 22, 2019. The Court also denied Brown's motion to
proceed without prepayment of fees and ordered her to re-file
the motion and to address her sources of income and monthly
April 19, 2019, Brown paid the filing fee and, on April 29,
2019, she filed a second amended complaint. (Doc. 9).
However, the second amended complaint likewise fails to
comply with the Court's two previous orders to provide
the basis for the Court's subject matter jurisdiction
over Plaintiff's claims.Accordingly, the undersigned finds
that this action is due to be DISMISSED
without prejudice under Federal Rules of Civil Procedure
12(h)(3) and 41(b).
is . . . axiomatic that the inferior federal courts are
courts of limited jurisdiction.” Univ. of S. Ala.
v. Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999).
“They are ‘empowered to hear only those cases
within the judicial power of the United States as defined by
Article III of the Constitution,' and which have been
entrusted to them by a jurisdictional grant authorized by
Congress.” Id. (citations omitted).
“[I]t is well settled that a federal court is obligated
to inquire into subject matter jurisdiction sua
sponte whenever it may be lacking.” Id.
at 410. “[A] court should inquire into whether it has
subject matter jurisdiction at the earliest possible stage in
the proceedings.” Id.
a plaintiff files suit in federal court, she must allege
facts that, if true, show federal subject matter jurisdiction
over her case exists.” Travaglio v. Am. Exp.
Co., 735 F.3d 1266, 1268 (11th Cir. 2013).
Those allegations, when federal jurisdiction is invoked based
upon diversity, must include the citizenship of each party,
so that the court is satisfied that no plaintiff is a citizen
of the same state as any defendant. Triggs v. John Crump
Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir.1998)
(“Diversity jurisdiction requires complete diversity;
every plaintiff must be diverse from every
defendant.”). Without such allegations, district courts
are constitutionally obligated to dismiss the action
altogether if the plaintiff does not cure the deficiency.
Stanley v. C.I.A., 639 F.2d 1146, 1159 (5th Cir.
Unit B Mar. 1981); see also DiMaio v. Democratic
Nat'l Comm., 520 F.3d 1299, 1303 (11th Cir.2008)
(“Where dismissal can be based on lack of subject
matter jurisdiction and failure to state a claim, the court
should dismiss on only the jurisdictional grounds.”
(internal quotation marks omitted)). That is, if a
complaint's factual allegations do not assure the court
it has subject matter jurisdiction, then the court is without
power to do anything in the case. See Goodman ex rel.
Goodman v. Sipos, 259 F.3d 1327, 1331, n. 6 (11th
Cir.2001) (“‘[A district] court must dismiss a
case without ever reaching the merits if it concludes that it
has no jurisdiction.'” (quoting Capitol Leasing
Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993))); see
also Belleri v. United States, 712 F.3d 543, 547 (11th
Cir.2013) (“We may not consider the merits of [a]
complaint unless and until we are assured of our subject
Travaglio, 735 F.3d at 1268-69.
a given case, a federal district court must have at least one
of three types of subject matter jurisdiction: (1)
jurisdiction under a specific statutory grant; (2) federal
question jurisdiction pursuant to 28 U.S.C. § 1331; or
(3) diversity jurisdiction pursuant to 28 U.S.C. §
1332(a).” Baltin v. Alaron Trading Corp., 128
F.3d 1466, 1469 (11th Cir. 1997). In this case, Plaintiff has
failed to allege any of the three types of subject matter
pleadings filed by pro se litigants are given
liberal construction, “we nevertheless have required
them to conform to procedural rules.” Moree v.
Wells Fargo Bank, N.A., 2017 U.S. Dist. LEXIS 33112, *2,
2017 WL 1319840, *2 n.1 (S.D. Ala. Mar. 6, 2017), report
and recommendation adopted, 2017 WL 1294003 (S.D. Ala.
Apr. 4, 2017) (quoting Moton v. Cowart, 631 F.3d
1337, 1341 n.2 (11th Cir. 2011). A plaintiff must
“affirmatively allege facts demonstrating the existence
of jurisdiction.” Moree, 2017 U.S. Dist. LEXIS
33112 at *2 n.1, 2017 WL 1319840 at *2 n.1 (quoting
Taylor, 30 F.3d at 1367; see also Morrison v.
Allstate Indem. Co., 228 F.3d 1255, 1273 (11th Cir.
2000) (“It is the plaintiff's burden . . . to
allege with sufficient particularity the facts creating
jurisdiction . . . .”).
stated in the Court's two previous orders, neither
Brown's initial complaint (Doc. 1), nor any of her
amended complaints (Docs. 6, 9) contain, as they must,
“a short and plain statement of the grounds for the
Court's jurisdiction, ” Fed.R.Civ.P. 8(a)(1), nor
is any basis reasonably apparent from the face of these
pleadings. In Brown's latest amended complaint, the cause
of action appears to be in the nature of a medical
malpractice claim, which would not provide subject matter
jurisdiction under either a specific statutory grant or
federal question jurisdiction pursuant to 28 U.S.C. §
1331. Further, in neither the original complaint nor the two
subsequent amendments does Brown properly assert diversity
jurisdiction pursuant to 28 U.S.C. § 1332(a). Under
§ 1332(a)(1), a district court has subject matter
jurisdiction “where the matter in controversy exceeds
the sum or value of $75, 000, exclusive of interest and
costs, and is between . . . citizens of different
States.” However, when federal jurisdiction is invoked
based upon diversity, the complaint “must include the
citizenship of each party, so that the court is satisfied
that no plaintiff is a citizen of the same state as any
defendant.” Travaglio, 735 F.3d at 1268.
neither the original complaint nor the two amended complaints
does Brown identify the citizenship of the parties or the
requisite amount in controversy such that diversity
jurisdiction is apparent. With respect to the citizenship of
the parties, Brown makes no direct comment on this issue but
merely identifies her address as being located in Mobile,
Alabama, and likewise lists the address of Defendant Dr.
Shalkh as being located in Mobile, Alabama. (Doc. 1 at 1-2).
Additionally, she has offered no facts on which to determine
that the amount in controversy has been met. Because Brown
has not alleged facts that show that federal subject matter
jurisdiction over this case exists, dismissal of this action
is mandated by Federal Rule of Civil Procedure 12(h)(3).
See Moree, 2017 U.S. Dist. LEXIS 33112 at *6-7, 2017
WL 1319840 at *3; see also Crotwell v. Hockman-Lewis
Ltd., 734 F.2d 767, 769 (11th Cir. 1984) (holding that
dismissals for lack of subject matter jurisdiction are
without prejudice because the court has no power to render a
judgment on the merits); accord Georgia Advocacy Office,
Inc. v. Camp, 172 F.3d 1294, 1299 (11th Cir. 1999).