Opinion
No. 00-0844-CB-S
November 20, 2000
JUDGMENT
It is ORDERED, ADJUDGED, and DECREED that this action be and is hereby DISMISSED with prejudice.
ORDER
After due and proper consideration of all portions of this file deemed relevant to the issue raised, and there having been no objections filed, the Report and Recommendation of the Magistrate Judge made under 28 U.S.C. § 636 (b)(1)(A) is ADOPTED as the opinion of this court. It is ORDERED that this action be and is hereby DISMISSED with prejudice for lack of subject matter jurisdiction.
REPORT AND RECOMMENDATION
Plaintiff, who is proceeding pro se, filed a handwritten complaint commencing this action (Doc. 1). This action has been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636 (b)(1)(A) and Local Rule 72.2(c)(1). It is recommended that this action be dismissed with prejudice for lack of subject matter jurisdiction.
I. Nature of Proceedings.
Plaintiff filed a handwritten complaint (Doc. 1) together with a Motion to Proceed Without Prepayment of Fees (Doc. 2). Upon review of Plaintiffs' complaint, the Court found that it was deficient for many reasons. The Court advised Plaintiff of the deficiencies and of the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Most importantly, Plaintiff was advised that his complaint did not satisfy the requirement that Plaintiff identify in the complaint the basis of this Court's jurisdiction over his action and provide facts to support this Court's jurisdiction. Plaintiff was ordered to file an amended complaint that cured the noted deficiencies and established the Court's jurisdiction over his action. Plaintiff filed an amended complaint (Doc. 4), but the amended complaint does not correct the deficiencies, nor does it establish this Court's jurisdiction over his action.
In the original complaint (Doc. 1), Plaintiff alleges that after joining the Union Seafarers International on September 26, 1979, he boarded a ship in New York, and then stayed at sea on Overseas Alaska for 697 days during which he worked with asbestos. Plaintiff states that his career as seaman ended when he contracted asbestosis, that he has a lawsuit pending in the Northern District of Ohio, No. 196CV13874, against 104 defendants concerning his asbestosis, and that he is represented in his Ohio action by an organization named Maritime Law.
In the amended complaint (Doc. 4), Plaintiff states that the basis of the present action is "personal injury" and that he is suing the shipping company, Maritime Overseas (presently O.S.G.), and his union for ordering him to work with asbestos on their ships and, in particular, when he was told to remove it from the kitchen. Plaintiff claims that he has lost $375,000 in wages. Plaintiff asserts that Maritime Law, i.e., Mr. Marsden, is not suing these two defendants.
Plaintiff previously filed an action in the Court, Civil Action No. 98-0089-P-S, which was dismissed pursuant 28 U.S.C. § 1915 (e)(2)(B). The basis for the dismissal was that Plaintiffs' asbestosis claim was pending in a multi-district action in Ohio.
By Plaintiffs' filing this present action, this Court was again placed in a position of having to determine whether Plaintiff has an action pending in another federal court. After being contacted by this Court, the United States District Court for the Northern District of Ohio transmitted a copy of the Memorandum Opinion and Order entered in the maritime asbestos cases on May 2, 1996, which is attached as Exhibit A. This opinion states that all asbestos actions nationwide are in multi-district litigation (Ex. A, at 2), with jurisdiction over the actions having been transferred to the United States District Court for the Eastern District of Pennsylvania ("Pennsylvania federal court") (Ex. A, at 10).
The maritime actions that were filed in the Ohio federal court are specifically addressed by the Pennsylvania federal court in its opinion and attendant order (Ex. A, at 1, 3, 14-16). The Pennsylvania federal court administratively dismissed the maritime asbestos actions and tolled the statute of limitations (Ex. A, at 14). The Pennsylvania federal court retained jurisdiction over the maritime asbestos actions, and will reinstate a specific action upon a plaintiff making a showing of an asbestos-related personal injury supported by the requisite evidence (Ex. A, at 15). Plaintiffs' Ohio action is a maritime asbestos action.
II. Discussion.
A federal court is a court of limited of jurisdiction. Kokkonen v. Guardian Life Ins., 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994). That is, a federal court is authorized to entertain only certain actions which the Constitution or Congress has authorized it to hear. Id. "It is to be presumed that a cause lies outside this limited jurisdiction, . . ., and the burden of establishing the contrary rests upon the party asserting jurisdiction, . . . " Id. (citations omitted). Therefore, a plaintiff is required by Rule 8(a)(1) of the Federal Rules of Civil Procedure to allege in his complaint "a short and plain statement of the grounds upon which the court's jurisdiction depends." A federal court's jurisdiction must be established by a plaintiff in the complaint by stating the basis of the court's jurisdiction and by pleading facts that demonstrate the existence of jurisdiction. Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994); Kirkland Masonry. Inc. v. Comm'r, 614 F.2d 532, 533 (5th Cir. 1980) (same). Even though the Court is required to liberally construe a pro se litigant's pleadings, the Court does not have "license to serve as de facto counsel for a party . . ., or to re-write an otherwise deficient pleading in order to sustain an action. . . ." GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998). "[O]nce a court determines that there has been no [Congressional] grant that covers a particular case, the court's sole remaining act is to dismiss the case for lack of jurisdiction." Morrison v. Allstate Indemnity Co., 2000 WL 1392456, at *3 (11th Cir. Sept. 26, 2000).
The Eleventh Circuit in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en bane), adopted as binding precedent the decisions of the former Fifth Circuit rendered prior to October 1, 1981.
Plaintiff has failed to establish this Court's jurisdiction in his complaint as amended (Docs. 1 4). "Personal injury" is not a basis for a federal court's jurisdiction. Because Plaintiff has not established this-Court's jurisdiction in his complaint as amended, Plaintiffs' action is due to be dismissed for lack of subject matter jurisdiction. Barnett v. Bailey, 956 F.2d 1036, 1039-41 (11th Cir. 1992) (holding that a court is required to examine its jurisdiction over an action at any time and dismiss an action sua sponte for lack of subject matter jurisdiction if jurisdiction is not found).
III. Conclusion.
Based upon the foregoing reason, it is recommended that this action be dismissed with prejudice for lack of subject matter jurisdiction.
If Plaintiff had identified a jurisdictional basis in his complaint as amended, his action would then be filed in this Court. However, as in all of the other asbestos actions, including the asbestos actions presently on this Court's docket, jurisdiction over his action would be transferred to the Pennsylvania federal court. Inasmuch as Plaintiff already has an asbestos action before the Pennsylvania federal court, even though it is administratively closed, Plaintiff would gain no more by having second action as it may be consolidated with his Ohio action or may be dismissed as duplicative. Plaintiff is advised to work with his lawyer who is representing him in the Ohio action.
The attached sheet contains important information regarding objections to the Report and Recommendation.