Earl A. Bryant v. Ally Financial ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-13174 ELEVENTH CIRCUIT
JAN 17, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D.C. Docket No. 5:11-cv-00046-MTT
EARL A. BRYANT,
Plaintiff-Appellant,
versus
ALLY FINANCIAL,
f.k.a. GMAC, Inc.,
MCCULLOUGH PAYNE & HAAN, LLC.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(January 17, 2012)
Before DUBINA, Chief Judge, MARCUS and MARTIN, Circuit Judges.
PER CURIAM:
Appellant Earl A. Bryant, pro se, appeals the district court’s order
dismissing his complaint without prejudice for lack of subject matter jurisdiction.
For the reasons that follow, we affirm.
I.
Bryant filed the present pro se complaint with the district court in 2011,
alleging that Ally Financial (“Ally”), formally known as GMAC, refused to
communicate with him regarding a vehicle he had leased, and that Ally had
wrongfully filed a foreclosure action against him in a Georgia state court in 2010,
claiming repossession and default charges. In the state court action, Bryant
counterclaimed and sought $25,000 in damages but the state court eventually
dismissed his counterclaim, and granted relief to Ally.
In documents filed with the district court, Bryant sought $75,000 in
damages from Ally for breach of “interstate commerce contract,” fraud, and libel.
Bryant subsequently filed additional letters that he had sent to the parties, and a
summons adding the McCullough, Payne & Haan, LLC (“MPH”) law firm, a
limited liability company in Atlanta, Georgia, as a defendant because of its actions
during its representation of Ally in the state court proceedings. Nevertheless, he
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did not allege, in any of his pleadings, the citizenship of the law firm or its
members.
II.
“We review dismissals for lack of subject matter jurisdiction de novo.”
Barbour v. Haley, 471 F.3d 1222, 1225 (11th Cir. 2006). A district court’s factual
findings with respect to jurisdiction are reviewed for clear error. Bryant v. Rich,
530 F.3d 1368, 1377 (11th Cir. 2008). While factual findings regarding the
citizenship of a party for the purposes of determining diversity are normally
subject to the clearly erroneous standard of review, issues not briefed on appeal by
a pro se litigant are deemed abandoned. MacGinnitie v. Hobbs Group, LLC, 420
F.3d 1234, 1239 (11th Cir. 2005) (standard of review); Timson v. Sampson, 518
F.3d 870, 874 (11th Cir. 2008) (abandonment). “Pro se pleadings are held to a
less stringent standard than pleadings drafted by attorneys, and are liberally
construed.” Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011) (internal
quotation marks omitted). We may “affirm the [d]istrict [c]ourt on any basis
supported by the record.” Miller v. Harget, 458 F.3d 1251, 1256 (11th Cir. 2006).
Jurisdiction “cannot be waived or otherwise conferred upon the court by the
parties.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir. 2005)
(internal quotation marks omitted). Plaintiffs must “affirmatively allege facts
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demonstrating the existence of jurisdiction.” Taylor v. Appleton, 30 F.3d 1365, 1367
(11th Cir. 1994); 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 . . .”) (internal quotation marks omitted).
For claims arising under federal law, 28 U.S.C. § 1331 provides federal subject
matter jurisdiction. “The test ordinarily applied . . . is whether a federal question
appears on the face of the plaintiff’s well-pleaded complaint.” Connecticut State
Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1343 (11th Cir. 2009).
For a claim which does not arise under federal law, 28 U.S.C. § 1332 provides
original federal diversity jurisdiction, which governs disputes among parties from
different states. 28 U.S.C. § 1332(a). Section 1332(a) requires complete diversity,
meaning that no plaintiff may have the same domicile as any defendant.
Underwriters at Lloyd’s, London v. Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir.
2010) (citations omitted). To sufficiently allege the citizenship of an unincorporated
entity, like a limited liability company, “ [A] party must list the citizenships of all the
members . . . .” Mallory & Evans Contractors v. Tuskegee Univ., ___ F..3d ___ No.
11-10940 (11th Cir. Dec. 5, 2011). For a federal court to have original jurisdiction
over a diversity action, the amount in controversy also must exceed $75,000,
exclusive of interest and costs. 28 U.S.C. § 1332(a). “[T]he party invoking the
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court’s jurisdiction bears the burden of proving, by a preponderance of the evidence,
facts supporting the existence of federal jurisdiction.” McCormick v. Aderholt, 293
F.3d 1254, 1257 (11th Cir. 2002).
Bryant’s claims fail for two reasons. First, Bryant has abandoned any
challenge to the district court’s dismissal because he does not mention subject
matter jurisdiction in his appellate brief, except to include the final page of the
district court’s order, and does not provide any argument on this point. Second,
even if we conclude that Bryant has not abandoned the issues, his claims still fail
because: (1) there was no basis for § 1331 federal question jurisdiction because
the pleadings show that all of his claims arose under state law; (2) there was no
basis for § 1332 diversity jurisdiction as Bryant failed to sufficiently plead the
citizenship of the parties; and (3) his claimed damages did not exceed $75,000.
Accordingly, we affirm the district court’s judgment of dismissal for lack of
subject matter jurisdiction.
AFFIRMED.
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MARTIN, Circuit Judge, concurring specially:
I concur in the court’s judgment affirming the District Court’s dismissal
without prejudice. I concur specially to note that, because this is a dismissal
without prejudice, Bryant is free to refile this lawsuit, if he determines that his
claims satisfy the requirements for Federal subject matter jurisdiction.
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