USCA11 Case: 21-11363 Date Filed: 04/26/2022 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11363
Non-Argument Calendar
____________________
WASEEM DAKER,
Plaintiff-Appellant,
versus
ALSTON & BIRD LLP,
PHILIP AARON SANDICK,
WILLIAM CLAY MASSEY,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-05143-WMR
____________________
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2 Opinion of the Court 21-11363
Before JILL PRYOR, BRASHER, and BLACK, Circuit Judges.
PER CURIAM:
Waseem Daker, a Georgia prisoner proceeding pro se, ap-
peals the district court’s sua sponte dismissal without prejudice, fol-
lowing its adoption of the magistrate judge’s report and recom-
mendation (R&R), of his civil complaint alleging various violations
of Georgia law, including breach of fiduciary duties under the Fed-
eral Rules of Civil Procedure and the local rules for the Northern
District of Georgia. The district court also denied Daker leave to
amend his complaint on futility grounds, as well as his post-judg-
ment motion “to vacate” its dismissal of his complaint under Rule
59(e) of the Federal Rules of Civil Procedure. Daker has not filed
his initial brief, but he has moved for appointment of counsel and
for summary reversal, arguing his appeal involves the complex is-
sues of whether the district court erred in dismissing his complaint
for lack of jurisdiction, in part, on the basis of judicially-noticed
facts from a previously dismissed complaint in a different case,
which is still pending following a remand from this Court. 1
The appellees, a law firm and two attorneys who success-
fully withdrew from representing Daker in a prior lawsuit, have
responded by moving for summary affirmance of the district
court’s order of dismissal, denial of Daker’s motion to appoint
1 See Daker v. Redfin Corp. Inc., No. 20-13598,
2021 WL 5235102 (11th Cir.
Nov. 10, 2021) (unpublished).
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21-11363 Opinion of the Court 3
counsel, and a stay of the briefing schedule. As to appointment of
counsel, they argue Daker is an experienced litigant, the only issue
before us is the easily resolved question of whether subject matter
jurisdiction existed, and we have rejected Daker’s arguments in this
respect in other appeals. As to summary affirmance, they argue his
appeal is frivolous because he only raised state-law claims before
the district court, the claims he based on alleged breaches of fiduci-
ary duties under procedural rules could not independently confer
federal-question jurisdiction on that court, and, as a result, the
court correctly found that diversity jurisdiction was lacking.
Daker responds the appellees’ position is not clearly right as
a matter of law because the district court relied on judicially-no-
ticed facts from another decision in dismissing his complaint, and
his appeal in that case is still pending. Last, he asserts that a motion
the appellees brought before the district court to deposit electronic
media is an implicit admission that the court had jurisdiction over
his case.
For ease of reference, we will address the questions of ap-
pointment of counsel and summary disposition of Daker’s appeal
in turn.
I. APPOINTMENT OF COUNSEL
Appointment of counsel in a civil case is “a privilege justified
only by exceptional circumstances, such as the presence of facts and
legal issues which are so novel or complex as to require the assis-
tance of a trained practitioner.” Kilgo v. Ricks,
983 F.2d 189, 193
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4 Opinion of the Court 21-11363
(11th Cir. 1993) (quotation marks and alteration omitted). “The
key is whether the pro se litigant needs help in presenting the es-
sential merits of his or her position to the court.”
Id. We have
found the following factors relevant in determining whether “ex-
ceptional circumstances” exist: (1) the type and complexity of the
case, (2) whether the indigent litigant is capable of adequately pre-
senting his case, (3) whether the indigent litigant is in a position to
adequately investigate the case, and (4) whether the evidence will
consist largely of conflicting testimony so as to require skill in the
presentation of evidence and in cross-examination. See Fowler v.
Jones,
899 F.2d 1088, 1096 (11th Cir. 1990) (adopting Ulmer v.
Chancellor,
691 F.2d 209, 213 (5th Cir. 1982)).
Appointment of counsel is not warranted because Daker
does not need help presenting the essential merits of his case. See
Kilgo,
983 F.2d at 193. He has submitted various well-organized
filings before the district court and on appeal, demonstrating he
could continue to do so without the aid of counsel. See
id. The
case is relatively straightforward, as it terminated in a dismissal for
lack of jurisdiction, and the district court did not proceed to the
merits. See Fowler,
899 F.2d at 1096. Additionally, as a serial liti-
gant, Daker has demonstrated he can perform legal research and
advocate on his own behalf in federal court. Thus, the relevant
factors weigh against appointment of counsel. See
id. The issues
he argues are implicated in his appeal all lack merit—or have been
rendered moot—in light of the district court’s lack of subject mat-
ter jurisdiction. Consequently, even if appointment were
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21-11363 Opinion of the Court 5
warranted, counsel could not remedy the deficiencies in his appeal,
and we thus DENY his motion for appointment of counsel.
II. SUMMARY DISPOSITION
The plaintiff has the burden of establishing federal subject
matter jurisdiction. Sweet Pea Marine, Ltd. v. APJ Marine, Inc.,
411 F.3d 1242, 1247 (11th Cir. 2005). A district court must have
jurisdiction under at least one of the three types of subject matter
jurisdiction: (1) jurisdiction pursuant to 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). PTA-FL,
Inc. v. ZTE USA, Inc.,
844 F.3d 1299, 1305 (11th Cir. 2016). A court
must dismiss the plaintiff’s complaint if it determines that jurisdic-
tion is lacking. Fed. R. Civ. P. 12(h)(3).
Section 1331 provides district courts with subject matter ju-
risdiction over “all civil actions arising under the Constitution,
laws, or treaties of the United States.”
28 U.S.C. § 1331. A claim
arises under federal law when the face of the complaint presents a
federal question. Hill v. BellSouth Telecomm., Inc.,
364 F.3d 1308,
1314 (11th Cir. 2004). However, a district court “may dismiss a
federal question claim for lack of subject matter jurisdiction only if
(1) the alleged claim under the Constitution or federal statutes
clearly appears to be immaterial and made solely for the purpose
of obtaining jurisdiction; or (2) such a claim is wholly insubstantial
and frivolous.” Blue Cross & Blue Shield of Ala. v. Sanders,
138
F.3d 1347, 1352 (11th Cir. 1998) (internal quotation marks and em-
phasis omitted).
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6 Opinion of the Court 21-11363
District courts have subject matter jurisdiction over civil ac-
tions between citizens of different states where the amount in con-
troversy exceeds $75,000.
28 U.S.C. § 1332(a)(1). Diversity juris-
diction requires complete diversity of citizenship between all plain-
tiffs and defendants. Sweet Pea Marine,
411 F.3d at 1247. The party
invoking diversity jurisdiction must allege the citizenships of the
parties as of the time suit is filed in federal court. Travaglio v. Am.
Express Co.,
735 F.3d 1266, 1268 (11th Cir. 2013). To establish di-
versity for a natural person, the complaint must allege citizenship
or domicile, not merely residence.
Id. at 1268–69. Domicile re-
quires residence in a state and an intention to remain in that state
indefinitely.
Id. A prisoner retains the domicile he had prior to
incarceration. See Mitchell v. Brown & Williamson Tobacco
Corp.,
294 F.3d 1309, 1314 (11th Cir. 2002). Moreover, “courts gen-
erally give little weight to a party’s profession of domicile” because
“these declarations are often self-serving.” Travaglio, 735 F.3d at
1270 (quotation marks omitted).
After review, 2 we conclude summary affirmance is appro-
priate. See Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162
2 “We review de novo the legal conclusions upon which a district court dis-
misses a complaint for lack of subject matter jurisdiction.” Tufts v. Hay,
977
F.3d 1204, 1208, 1210 (11th Cir. 2020). Where a district court makes jurisdic-
tional findings of fact regarding the citizenship of the parties, we review those
findings for clear error. Travaglio, 735 F.3d at 1269. We review the denial of
a Rule 59(e) motion for consideration for abuse of discretion. Sanderlin v.
Seminole Tribe of Fla.,
243 F.3d 1282, 1285 (11th Cir. 2001).
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21-11363 Opinion of the Court 7
(5th Cir. 1969) 3 (explaining summary disposition is appropriate
where “the position of one of the parties is clearly right as a matter
of law so that there can be no substantial question as to the out-
come of the case, or where, as is more frequently the case, the ap-
peal is frivolous”). First, as to diversity jurisdiction, Daker’s argu-
ment the district court did not follow the proper procedure under
Federal Rule of Evidence 201 lacks merit, to the extent he asserts
that he did not have an opportunity to be heard. See Fed. R. Evid.
201(e) (providing, upon timely request, a party is entitled an oppor-
tunity to be heard as to the propriety of taking judicial notice). Spe-
cifically, we have held Rule 201 does not require a prior oppor-
tunity to be heard, and the district court heard and rejected Daker’s
challenge to its judicially-noticed facts when it denied his post-judg-
ment motion to vacate. See Paez v. Sec’y, Fla. Dep’t of Corr.,
947
F.3d 649, 652 (11th Cir.), cert. denied,
141 S. Ct. 309 (2020) (explain-
ing Rule 201 does not require courts to warn parties before taking
judicial notice of some fact; it only requires an opportunity to be
heard after the court takes notice).
Even if the district court erred in taking judicial notice of
facts from Redfin, any such error was harmless in light of Daker’s
failure to challenge the magistrate judge’s recommended findings
of fact supporting a conclusion that he was a Georgia citizen, which
3 In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth Cir-
cuit handed down prior to close of business on September 30, 1981.
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8 Opinion of the Court 21-11363
the district court implicitly incorporated into its order by adopting
the R&R. See Equal Emp’t Opportunity Comm’n v. STME, LLC,
938 F.3d 1305, 1322–23 (11th Cir. 2019) (stating we will not reverse
if the error was harmless). Those findings included the facts that,
as of 2010, Daker had lived in Georgia since before 1990, he had
worked at his family’s business in Georgia for five years since his
release following a prior conviction, and he would return to his
home in Georgia if released on bond. Daker did not challenge any
of the foregoing when he objected to the R&R and has thus waived
any claim in that respect. See 11th Cir. R. 3-1 (providing a party
failing to object to a magistrate judge's findings or recommenda-
tions contained in a report and recommendation in accordance
with the provisions of 28 U.S.C. 636(b)(1) waives the right to chal-
lenge on appeal the district court's order based on unobjected-to
factual and legal conclusions, if the party was informed of the time
period for objecting and the consequences on appeal for failing to
object).
To the extent Daker intends to challenge on appeal the dis-
trict court’s finding that federal-question jurisdiction was lacking
because he alleged a breach of fiduciary duties under the Federal
Rules of Civil Procedure, any such challenge would lack merit as a
matter of law. See Diaz v. Sheppard,
85 F.3d 1502, 1505 n.3 (11th
Cir. 1996) (“[T]he Federal Rules of Civil Procedure do not create
an independent basis for federal subject matter jurisdiction.”). Fur-
ther, Daker’s contention the appellees’ motion to deposit elec-
tronic media with the district court was a “concession” of
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21-11363 Opinion of the Court 9
jurisdiction lacks merit, because parties cannot confer subject mat-
ter jurisdiction on a court. See Reynolds v. Behrman Cap. IV L.P.,
988 F.3d 1314, 1324 (11th Cir.), cert. denied,
142 S. Ct. 239 (2021)
(stating subject matter jurisdiction cannot be waived or conferred
by the parties).
Additionally, to the extent Daker intends to challenge, on
appeal, the district court’s denial of leave to amend his complaint
on grounds of futility, even assuming the right to amend extends
to dismissals for lack of subject matter jurisdiction, any such argu-
ment would lack merit. Specifically, amendment could not cure
the lack of subject matter jurisdiction, in light of his failure to add
any counts raising federal causes of action, or to challenge the mag-
istrate judge’s findings of fact indicating that he was a Georgia citi-
zen. See Evans v. Ga. Reg’l Hosp.,
850 F.3d 1248, 1254 (11th Cir.
2017), abrogated on other grounds by Bostock v. Clayton Cnty.,
Ga.,
140 S. Ct. 1731 (2020) (explaining a district court need not al-
low amendment where amendment would be futile, and an
amendment would be futile if “the complaint as amended would
still be properly dismissed or be immediately subject to summary
judgment for the defendant” (quotation marks omitted)).
Finally, to the extent Daker wishes to challenge the district
court’s denial of his Rule 59(e) “motion to vacate,” any such chal-
lenge would lack merit because that motion reiterated his prior ar-
guments, but it did not raise new evidence or allege a manifest er-
ror of law or fact. See PBT Real Estate, LLC v. Town of Palm
Beach,
988 F.3d 1274, 1287 (11th Cir. 2021) (stating a court may
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10 Opinion of the Court 21-11363
only grant a Rule 59(e) motion on the basis of newly discovered
evidence or manifest errors of law or fact, and parties may not use
such motions to “relitigate old matters, raise arguments or present
evidence that could have been raised prior to the entry of judg-
ment”).
In light of all the foregoing, no substantial question remains
as to the outcome of the case, and summary affirmance is appro-
priate. See Groendyke Transp., Inc., 406 F.2d at 1162. Therefore,
we GRANT the appellees’ motion for summary affirmance, DENY
Daker’s motion for summary reversal, and DENY as moot the ap-
pellees’ motion to stay the briefing schedule.
