Opinion
No. 3:01-CV-2056-G
April 2, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
I. Background Nature of the Case : Plaintiff, Lynn Earl Quigley, has filed an unspecified civil action against his former attorney Thomas R. Cox III. No process has been issued in this case.
Statement of the Case : Plaintiff filed this civil action on October 12, 2001. He alleges that mistakes and advice of his attorney caused him to spend eighty days in jail. He wants monetary damages.
II. Jurisdiction
"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am ., 511 U.S. 375, 377 (1994) (citations omitted). They "must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum." Howery v. Allstate Ins. Co ., 243 F.3d 912, 916 (5th Cir. 2001).
In this instance, plaintiff specifically asserts no federal statutory or constitutional basis for this suit. His attorney is not a state actor, so 42 U.S.C. § 1983 provides no basis for jurisdiction. If he has any valid claims against his former attorney, they appear to arise solely under state law. Federal courts, nevertheless, have no jurisdiction over such claims in the absence of diversity jurisdiction under 28 U.S.C. § 1332. Plaintiff, however, has not established the complete diversity of citizenship necessary to proceed under § 1332. See Stafford v. Mobil Oil Corp ., 945 F.2d 803, 804 (5th Cir. 1991) (holding that "[t]he burden of proving that complete diversity exists rests upon the party who seeks to invoke the court's diversity jurisdiction").
Fed.R.Civ.P. 12(h)(3) requires that federal courts dismiss an action "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject matter." In this instance, it appears that the Court lacks subject matter jurisdiction over this case. Consequently, the action should be dismissed. The proper forum appears to be state court.
RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court summarily DISMISS plaintiffs complaint for lack of subject matter jurisdiction.