Crooked Creek Properties, Inc. v. Richard Ensley ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11915
Non-Argument Calendar
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D.C. Docket No. 2:14-cv-00912-WKW-SRW
CROOKED CREEK PROPERTIES, INC., a Nevada corporation,
Plaintiff-Appellant,
versus
RICHARD ENSLEY, individually, d.b.a. Park Place Center, LTD., VENTURE
SERVICES, d.b.a. Danya Apartments Management Group, ANITA LILES,
individually, GEORGE HUTCHINSON, individually, GEORGE ELLIS
HUTCHINSON, JR. PRESENT INTEREST TRUST NO. 1,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(August 15, 2016)
Before WILSON, ROSENBAUM and BLACK, Circuit Judges.
PER CURIAM:
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Appellant Crooked Creek Properties, Inc. (Crooked Creek) appeals the
dismissal of its claim against appellees Richard Ensley, Anita Liles, and George
Hutchinson (Appellees), for lack of subject matter jurisdiction. The district court
dismissed this case on April 7, 2015, after affording Crooked Creek an opportunity
to cure the jurisdictional deficiencies in its Complaint, which Crooked Creek—a
represented party—failed to do. After review, 1 and following additional
opportunities to cure at the appellate level, we affirm.
On March 24, 2015, the district court independently raised the issue of
whether it had subject-matter jurisdiction over this action. Although the Complaint
predicated subject-matter jurisdiction on the basis of diversity jurisdiction, see 28
U.S.C. § 1332(a), the Complaint contained insufficient allegations of citizenship as
to Crooked Creek and as to two defendants, Venture Services and the George Ellis
Hutchinson, Jr., Present Interest Trust No. 1. Rather than dismiss the Complaint,
the district court granted Crooked Creek leave to cure the jurisdictional
deficiencies. On March 30, 2015, Crooked Creek filed a Statement of Jurisdiction
that: (1) stated that Crooked Creek was incorporated in Nevada and that its
principal place of business was “Nevada and Alabama;” (2) stated that Appellees
were citizens of Alabama; (3) failed to address the citizenship of Venture Services
and the George Ellis Hutchinson, Jr., Present Interest Trust No. 1; and (4) alleged
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“We review the dismissal of an action for lack of subject matter jurisdiction de novo.”
Pillow v. Bechtel Const., Inc., 201 F.3d 1348, 1351 (11th Cir. 2000).
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that the district court had “jurisdiction and broad powers to remedy violations of
the federal Constitution.”
The district court dismissed the Complaint for lack of subject-matter
jurisdiction on the basis that Crooked Creek could have only a single principal
place of business and that if that place were Alabama then diversity jurisdiction
would be lacking. See Metro. Life Ins. Col. v. Estate of Cammon, 929 F.2d 1220,
1223 (7th Cir. 1991) (“[A]ll [courts] agree that corporations have one ‘principal’
place of business for purposes of 28 U.S.C. § 1332(c)(1).”). Moreover, the
Complaint and Statement of Jurisdiction remained insufficient to allege the
citizenship of Venture Services and the George Ellis Hutchinson, Jr., Present
Interest Trust No. 1. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365,
373 (1978) (“[D]iversity jurisdiction does not exist unless each defendant is a
citizen of a different State from each plaintiff.”). Finally, an allegation that the
district court had “jurisdiction and broad powers to remedy violations of the
federal Constitution” was insufficient to invoke federal-question jurisdiction
because the Complaint did not plead “a colorable claim ‘arising under’ the
Constitution or laws of the United States.” Arbaugh v. Y&H Corp., 546 U.S. 500,
513 (2006). The complaint alleged only state-law causes of action, see id. at 513
n.10 (explaining that a claim is not colorable “if it is immaterial and made solely
for the purpose of obtaining jurisdiction or is wholly insubstantial and frivolous”
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(quotation marks omitted)), and did not contain any allegations suggesting that any
of the defendants were state actors, see, e.g., Lyes v. City of Riviera Beach, 166
F.3d 1332, 1348-49 (11th Cir. 1999) (“The Equal Protection Clause . . . is a
guarantee of protection against unjust state action; it does not reach the conduct of
private individuals.”); Jeffries v. Ga. Residential Fin. Auth., 678 F.2d 919, 922
(11th Cir. 1982) (explaining that “the fourteenth amendment proscription against
deprivations of property without due process of law reaches only government
action and does not inhibit the conduct of purely private persons in their ordinary
activities”). Crooked Creek appealed.
Crooked Creek has filed various motions with this Court in an effort to
establish jurisdiction. The first of these motions was a motion to amend the
jurisdictional allegations of its Complaint. This Court denied that motion on the
basis that the proposed amendments did not establish federal-question jurisdiction
and did not correct the jurisdictional deficiency as to Venture Services and the
George Ellis Hutchinson, Jr., Present Interest Trust No. 1. Crooked Creek then
moved to dismiss Venture Services and the George Ellis Hutchinson, Jr., Present
Interest Trust No. 1 as unnecessary parties. See Fed. R. Civ. P. 19; Fed. R. Civ. P.
21. We remanded to the district court for the purpose of determining whether
Venture Services and the George Ellis Hutchinson, Jr., Present Interest Trust No. 1
were unnecessary parties. The district court determined that Venture Services and
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the George Ellis Hutchinson, Jr., Present Interest Trust No. 1 were unnecessary
parties and dismissed them pursuant to Rules 19 and 21. But the district court also
determined that it could not proceed on the merits due to still-insufficient
allegations of the corporate citizenship of Crooked Creek. Reasoning that a full
remand would be futile, the district court returned the record in this case to the
court of appeals.
The record reflects that Crooked Creek has been given multiple
opportunities to cure the jurisdictional defects in this case, and that each time
Crooked Creek has failed to do so. First, the Complaint was insufficient to
establish diversity jurisdiction. Second, the Statement of Jurisdiction submitted to
the district court on March 30, 2015, was insufficient—both as to Venture Services
and the George Ellis Hutchinson, Jr., Present Interest Trust No. 1, and as to
Crooked Creek itself—notwithstanding the fact that the district court gave Crooked
Creek explicit instructions regarding the allegations required to establish
jurisdiction. Third, Crooked Creek failed to establish jurisdiction when it moved
this Court to amend the jurisdictional allegations in its Complaint. This Court
denied the motion on the basis that the proposed amendments did not correct the
jurisdictional deficiency. Fourth, Crooked Creek failed to address our
jurisdictional concerns by moving to dismiss Venture Services and the George
Ellis Hutchinson, Jr., Present Interest Trust No. 1. In particular, the motion to
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dismiss did not address the second jurisdictional defect—an ongoing failure to
allege the corporate citizenship of Crooked Creek. Fifth, Crooked Creek did not
attempt to cure the jurisdictional issue on remand. Our order on remand permitted
the district court to determine whether it could proceed on the merits after
dismissing Venture Services and the George Ellis Hutchinson, Jr., Present Interest
Trust No. 1. But Crooked Creek did not argue to the district court that full remand
would be appropriate. Instead, Crooked Creek characterized the question of
whether a jurisdictional defect still existed as “gratuitous” and “irrelevant.”
Crooked Creek now concedes that its allegations as to diversity in its
Complaint “were insufficient,” that listing its principal place of business as both
Nevada and Alabama was “superfluous,” and that it “incorrectly assumed that a
corporation’s domicile is also the place where it is a citizen.” And Crooked Creek
again requests an opportunity to cure these jurisdictional defects by alleging that its
sole principal place of business is Nevada. But Crooked Creek is represented by
legal counsel, see Haines v. Kerner, 404 U.S. 519, 520 (1972) (explaining that the
allegations of pro se plaintiffs are held to “less stringent standards than formal
pleadings drafted by lawyers”), and has been afforded ample opportunity to
establish diversity jurisdiction, see King v. Cessna Aircraft Co., 505 F.3d 1160,
1171 (11th Cir. 2007) (“The burden to show the jurisdictional fact of diversity of
citizenship is on the plaintiff.” (quoting Slaughter v. Toye Bros. Yellow Cab Co.,
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359 F.2d 954, 956 (5th Cir. 1966))). Although “[d]efective allegations of
jurisdiction may be amended,” 28 U.S.C. § 1653, courts may deny a motion to
amend on the basis of “undue delay, bad faith or dilatory motive . . . , repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment, [and] futility of
amendment,” Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc.,
556 F.3d 1232, 1241 (11th Cir. 2009). This Court will not provide Crooked Creek
with a sixth opportunity to refine its jurisdictional allegations. We therefore affirm
the dismissal of this matter for lack of subject matter jurisdiction. 2
AFFIRMED.
2
Crooked Creek’s Motion for Reconsideration of our April 14, 2016, order denying
Crooked Creek’s motion for summary judgment, and denying as moot several other pending
motions, is DENIED. All other outstanding motions are DENIED as moot.
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