Theresa B. Bradley v. Kelly Services, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 19, 2007
No. 06-13815 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-80747-CV-DTKH
THERESA B. BRADLEY,
Plaintiff-Appellant,
versus
KELLY SERVICES, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 19, 2007)
Before ANDERSON, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Theresa B. Bradley, proceeding pro se, filed suit against Kelly Services, Inc.
(“Kelly”) for breach of contract, fraud, and negligent supervision of employees,
seeking “compensatory and exemplary damages,” including embarrassment,
humiliation, loss of professional stature, loss of credit worthiness and interference
with her banking relationship. She now appeals the district court’s order
dismissing her complaint for lack of subject matter jurisdiction because she failed
to support her assertion that her claims exceeded the $75,000 jurisdictional
threshold. In her complaint, which asserted diversity jurisdiction under 28 U.S.C.
§ 1332, Bradley alleged that as a result of the failure on the part of Kelly to deposit
her paycheck for the week of July 4, 2004 in a timely manner, she suffered
damages in excess of $75,000. She argues that the allegations in her complaint
were sufficient to establish diversity jurisdiction, and that the district court violated
her equal protection and due process rights by failing to ensure timely receipt of its
order to show cause why the case should not be dismissed for lack of subject
matter jurisdiction, thereby denying her an opportunity to respond. She also
appeals the district court’s denial of her motion to disqualify the presiding judge
and her motions to compel production of documents.
Discussion
A. Subject Matter Jurisdiction
We review a district court’s dismissal of a complaint for lack of subject
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matter jurisdiction de novo. Federated Mut. Ins. Co. v. McKinnon Motors, LLC,
329 F.3d 805, 807 (11th Cir. 2003). “A federal court not only has the power but
also the obligation at any time to inquire into jurisdiction whenever the possibility
that jurisdiction does not exist arises.” Fitzgerald v. Seaboard Sys. R.R., Inc., 760
F.2d 1249, 1251 (11th Cir. 1985). “Federal courts are courts of limited
jurisdiction. In order to invoke a federal court’s diversity jurisdiction, a plaintiff
must claim, among other things, that the amount in controversy exceeds $75,000.”
Federated Mut. Ins., 329 F.3d at 807 (quotation and citation omitted); see 28
U.S.C. § 1332(a). “Dismissal of a case brought under 28 U.S.C. § 1332 is proper
where the pleadings make it clear to a legal certainty that the claim is really for less
than the jurisdictional amount.” Leonard v. Enterprise Rent a Car, 279 F.3d 967,
972 (11th Cir. 2002) (quotation omitted). “However, where jurisdiction is based
on a claim for indeterminate damages, the . . . ‘legal certainty’ test gives way, and
the party seeking to invoke federal jurisdiction bears the burden of proving by a
preponderance of the evidence that the claim on which it is basing jurisdiction
meets the jurisdictional minimum. Federated Mut. Ins., 329 F.3d at 807. “A
conclusory allegation . . . that the jurisdictional amount is satisfied, without setting
forth the underlying facts supporting such an assertion, is insufficient to meet the
[plaintiff’s] burden.” See Leonard, 279 F.3d at 972 (quotation omitted)
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(addressing removal from state court); see also Federated Mut. Ins., 329 F.3d at
809 (noting that a party’s mere speculation that the amount in controversy met the
jurisdictional threshold did not satisfy its burden of proving beyond a
preponderance of the evidence the claim at issue exceeded $75,000).
A de novo review of the record reveals that Bradley failed to meet her
burden of proving beyond a preponderance of the evidence that her claim exceeds
the jurisdictional threshold amount of $75,000. Aside from her conclusory
assertions that her damages exceed $75,000, Bradley has only presented evidence
consisting of copies of her resume, documentation relating to her professional
training and current legal studies, as well as legal briefs filed in another pending
lawsuit. Bradley has not presented any calculations as to the amount of loss
resulting from Kelly’s alleged misconduct. While she made general allegations
that she suffered damages, Bradley never quantified these losses with any specific
dollar figures. Accordingly, Bradley, at best, is speculating that her damages
would exceed $75,000 and, thus, she has not met her burden. We affirm as to this
issue.
B. Court’s Duty to Provide Notice
Pursuant to Fed. R. Civ. P. 77(d), the clerk of court immediately upon the
entry of an order or judgment “shall serve a notice of the entry in the manner
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provided for in Rule 5(b) upon each party who is not in default for failure to
appear, and shall make a note in the docket of the service.” Under Fed. R. Civ. P.
5(b)(2)(B), service is made by “[m]ailing a copy to the last known address of the
person served. Service by mail is complete on mailing.” “Notification by the clerk
is merely for the convenience of the litigants.” Fed. R. Civ. P. 77 advisory
committee’s note; see also In re Morrow, 502 F.2d 520, 522 (5th Cir. 1974).
In Dunlap v. Transamerica Occidental Life Ins. Co., we held “that Fed. R.
Civ. P. 77(d) deems mailing of such notices by the clerk to be notice to a party,
whether or not the notice is actually received or actually noticed by the party.” 858
F.2d 629, 632 (11th Cir. 1988). Moreover, we concluded that “[a]ll 77(d) requires
is that ‘upon the entry of an order or judgment the clerk shall serve a notice of the
entry by mail in the manner provided for in Rule 5’ [which] provides that service
by mail is complete upon mailing.” Id. (quoting Fed. R. Civ. P. 77(d)).
Furthermore, we noted in Dunlap that there was no contention that a copy of the
order in question was not actually mailed by the clerk, only a contention that it was
not received. Id. at 633.
In this case, Bradley’s argument that her due process and equal protection
rights were violated by the court’s alleged failure to ensure timely receipt of the
order to show cause is foreclosed by our holding in Dunlap that the clerk’s mailing
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of notice is deemed to be notice to a party, and service by mail is complete upon
mailing. See 858 F.2d at 632. The order to show cause stated that copies had been
furnished to counsel of record and all pro se parties. Bradley does not dispute that
the clerk actually mailed the notice. Accordingly, because service was complete
upon mailing, the district court did not violate Bradley’s constitutional rights by
failing to ensure that she received the order in a timely fashion, and we affirm as to
this issue.
C. Motion to Disqualify
“We review a district court’s denial of a recusal motion for abuse of
discretion.” Loranger v. Stierheim, 10 F.3d 776, 779 (11th Cir. 1994). Under 28
U.S.C. § 455(b)(1), any judge shall disqualify himself “[w]here he has a personal
bias or prejudice concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding.” “A judge should be disqualified only
if a reasonable person, apprised of all the facts and circumstances, would question
the judge’s impartiality.” United States v. Killough, 848 F.2d 1523, 1529 (11th
Cir. 1998).
The district court did not abuse its discretion in denying Bradley’s motion to
disqualify. Bradley based her claims of personal basis solely on the fact that the
court refused to grant her motions to compel and would not set a special trial date
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for her. As we have noted, a judge’s adverse rulings in the same case generally are
not valid grounds for recusal. See Loranger, 10 F.3d at 780-81 (noting that neither
the district judge’s delay, nor his adverse rulings, constitute the sort of “pervasive
bias” that necessitates recusal). Accordingly, we affirm the district court’s denial
of Bradley’s motion.
D. Motion to Compel
“When reviewing a district court’s denial of a motion to compel discovery,
we apply an abuse of discretion standard. This means that a district court is
allowed a range of choice in such matters, and we will not second-guess the district
court’s actions unless they reflect a clear error of judgment.” Holloman v.
Mail-Well Corp., 443 F.3d 832, 837 (11th Cir. 2006) (quotations and citations
omitted).
Based on our review of the record, the district court did not abuse its
discretion when it denied without prejudice Bradley’s motions to compel.
Accordingly, we affirm the district court’s denial without prejudice of Bradley’s
motions to compel.
Conclusion
Based on our review of the record and the parties’ briefs, we discern no
reversible error. Accordingly, we affirm.
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AFFIRMED.
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