Linda M. Mulkey v. Land America Title Assoc., Inc. ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Sept. 23, 2009
No. 08-11479 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-61369-CV-JAL
LINDA M. MULKEY,
BOBBY ATKINS,
Plaintiffs-Appellants,
versus
LAND AMERICA TITLE ASSOCIATION, INC.,
LAWYERS TITLE INSURANCE CORPORATION,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 23, 2009)
Before EDMONDSON, BLACK and FAY, Circuit Judges.
PER CURIAM:
Plaintiffs-Appellants Linda M. Mulkey and Bobby Atkins, proceeding pro
se, appeal the sua sponte dismissal of their complaint. Plaintiffs alleged breach of
contract in violation of Florida law against Defendants Land America Title
Association and Lawyers Title Insurance Corporation. The district court dismissed
the complaint for lack of subject-matter jurisdiction, Fed.R.Civ.P. 12(h)(3). No
reversible error has been shown; we affirm.
On appeal, Plaintiffs argue that the district court should not have dismissed
their complaint for lack of subject-matter jurisdiction because the complaint
sufficiently alleged jurisdiction. Pursuant to Rule 12(h)(3), if a court determines
“at any time that it lacks subject-matter jurisdiction, the court must dismiss the
action.” We review the district court’s determination about its subject-matter
jurisdiction de novo. Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242,
1247 (11th Cir. 2005).* The party bringing the claim bears the burden of
establishing federal subject-matter jurisdiction. Id.In their second amended complaint, Plaintiffs asserted jurisdiction under
diversity of citizenship. A district court may exercise jurisdiction over a civil case
between citizens of different states, provided that the amount in controversy
*
In addition, we liberally construe pro se pleadings. See Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
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exceeds $75,000. 28 U.S.C. § 1332(a)(1). Diversity must be complete: no plaintiff
can be a citizen of the same state as any defendant. MacGinnitie v. Hobbs Group,
LLC, 420 F.3d 1234, 1239 (11th Cir. 2005).
In their complaint, Plaintiffs indicated that they were citizens of Florida.
Plaintiffs also listed a Florida address for Lawyer’s Title. Plaintiffs’ complaint did
not state where Defendants were incorporated or where they had their principal
place of business; so it is unclear where Defendants resided for diversity
jurisdiction purposes. See 28 U.S.C. § 1332(c) (explaining where a corporation
resides). But Plaintiffs bore the burden of establishing jurisdiction; and a district
court should not assume jurisdiction. See Steel Co. v. Citizens for a Better
Environment, 118 S.Ct. 1003, 1012 (1998) (explaining that a court cannot assume
jurisdiction to reach the merits of a case); Sweet Pea Marine, 411 F.3d at 1247.
Therefore, because Plaintiffs failed to allege complete diversity between
themselves and Defendants, the district court correctly determined that it could not
exercise diversity jurisdiction over the case.
Plaintiffs also attempted to assert federal question jurisdiction, noting that
they had suffered “personal injury” caused by “an agency under the color of state
law.” Under 28 U.S.C. § 1331, a federal court may exercise subject-matter
jurisdiction over civil cases “arising under the Constitution, laws, or treaties of the
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United States.” To the extent Plaintiffs sought relief under the federal civil rights
statute, 42 U.S.C. § 1983, they clearly alleged no facts that would allow the district
court to exercise federal question jurisdiction: both Defendants are private
corporations and nothing in the complaint indicates that they are state actors. So,
Plaintiffs could not rely on section 1983 as a basis for federal jurisdiction.
AFFIRMED.
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