Opinion
3:23-cv-2390-D-BN
11-06-2023
CALEB JONES TIMMS, Plaintiff, v. VERIZON, Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DAVID L. HORAN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Caleb Jones Timms filed a pro se complaint against Defendant Verizon alleging that he “applied for services with Verizon”; that, “for some reason,” his “account was flagged for fraud”; and that, while he has “made multiple attempts to correct the mistake with the company,” “nothing has been done.” Dkt. No. 3 at 1. So Timms filed this lawsuit, not for monetary damages, but to request that the Court compel Verizon to “complete[ the] transaction.” Id.
Senior United States District Judge Sidney A. Fitzwater referred this lawsuit to the undersigned United States magistrate judge for screening under 28 U.S.C. § 636(b) and a standing order of reference.
After reviewing the complaint, the undersigned questions whether there is subject matter jurisdiction and, given the circumstances of this case, enters these findings of fact, conclusions of law, and recommendation that the Court should dismiss this action for lack of subject matter jurisdiction.
These findings and conclusions provide Timms notice as to the jurisdictional deficiencies. And the ability to file objections to the undersigned's recommendation that this case be dismissed for lack of jurisdiction (as further explained below) offers Timms an opportunity to establish (if possible) that the Court does have subject matter jurisdiction.
Legal Standards
“Jurisdiction is the power to say what the law is.” United States v. Willis, 76 F.4th 467, 479 (5th Cir. 2023).
And “‘[f]ederal courts are courts of limited jurisdiction,' possessing ‘only that power authorized by Constitution and statute.'” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)); see also Bowles v. Russell, 551 U.S. 205, 212 (2007) (“Within constitutional bounds, Congress decides what cases the federal courts have jurisdiction to consider.”); Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998) (“Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute, lack the power to adjudicate claims.”).
Federal courts must therefore “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). Correspondingly, all federal courts have an independent duty to examine their own subject matter jurisdiction. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-84 (1999) (“Subject-matter limitations ... keep the federal courts within the bounds the Constitution and Congress have prescribed. Accordingly, subject-matter delineations must be policed by the courts on their own initiative even at the highest level.” (citations omitted)).
Timms chose to file this lawsuit in federal court and, by doing so, undertook the burden to establish federal jurisdiction. See Butler v. Dall. Area Rapid Transit, 762 Fed.Appx. 193, 194 (5th Cir. 2019) (per curiam) (“[A]ssertions [that] are conclusory [ ] are insufficient to support [an] attempt to establish subject-matter jurisdiction.” (citing Evans v. Dillard Univ., 672 Fed.Appx. 505, 505-06 (5th Cir. 2017) (per cuiam); Jeanmarie v. United States, 242 F.3d 600, 602 (5th Cir. 2001))).
And, if Timms does not establish federal jurisdiction, this lawsuit must be dismissed. See FED. R. CIV. P. 12(H)(3) (“IF THE COURT DETERMINES AT ANY TIME THAT IT LACKS SUBJECT-MATTER JURISDICTION, THE COURT MUST DISMISS THE ACTION.”).
Because federal jurisdiction is not assumed, “the basis upon which jurisdiction depends must be alleged affirmatively and distinctly and cannot be established argumentatively or by mere inference.” Getty Oil Corp. v. Ins. Co. of N.A., 841 F.2d 1254, 1259 (5th Cir. 1988) (citing Ill. Cent. Gulf R. Co. v. Pargas, Inc., 706 F.2d 633, 636 & n.2 (5th Cir. 1983)); see also MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d 310, 313 (5th Cir. 2019) (“Because federal courts have limited jurisdiction, parties must make ‘clear, distinct, and precise affirmative jurisdictional allegations' in their pleadings.” (quoting Getty Oil, 841 F.2d at 1259)).
Under their limited jurisdiction, federal courts generally may only hear a case if it involves a question of federal law or where diversity of citizenship exists between the parties. See 28 U.S.C. §§ 1331, 1332.
In cases invoking jurisdiction under Section 1332, each plaintiff's citizenship must be diverse from each defendant's citizenship, and the amount in controversy must exceed $75,000. See 28 U.S.C. § 1332(a), (b).
This amount “is determined by the amount of damages or the value of the property that is the subject of the action.” Celestine v. TransWood, Inc., 467 Fed.Appx. 317, 319 (5th Cir. 2012) (per curiam) (citing Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 347 (1977)).
And, “[f]or diversity purposes, state citizenship is synonymous with domicile. A change in domicile requires: ‘(1) physical presence at the new location and (2) an intention to remain there indefinitely.'” Dos Santos v. Belmere Ltd. P'ship, 516 Fed.Appx. 401, 403 (5th Cir. 2013) (per curiam) (citations omitted); see also Preston v. Tenet Healthsystem Mem'l Med. Ctr., 485 F.3d 793, 797-98 (5th Cir. 2007) (“In determining diversity jurisdiction, the state where someone establishes his domicile serves a dual function as his state of citizenship.... Domicile requires the demonstration of two factors: residence and the intention to remain.” (citing Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954))); SXSW v. Fed. Ins. Co., 83 F.4th 405, 407 (5th Cir. 2023) (“‘The difference between citizenship and residency is a frequent source of confusion.' For natural persons, § 1332 citizenship is determined by domicile, which requires residency plus an intent to make the place of residency one's permanent home. An allegation of residency alone ‘does not satisfy the requirement of an allegation of citizenship.'” (emphasis in original; citations omitted)).
“The basis for diversity jurisdiction must be ‘distinctly and affirmatively alleged.'” Dos Santos, 516 Fed.Appx. at 403 (quoting Mullins v. TestAmerica, Inc., 564 F.3d 386, 397 (5th Cir. 2009)). And “a ‘failure to adequately allege the basis for diversity jurisdiction mandates dismissal.'” Id. (quoting Stafford v. Mobil Oil Corp., 945 F.2d 803, 805 (5th Cir. 1991)).
Under Section 1331, federal question jurisdiction “exists when ‘a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.'” Borden v. Allstate Ins. Co., 589 F.3d 168, 172 (5th Cir. 2009) (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 27-28 (1983)); see also In re Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 2007) (“A federal question exists ‘if there appears on the face of the complaint some substantial, disputed question of federal law.'” (quoting Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 366 (5th Cir. 1995))).
The “‘creation' test ... accounts for the vast bulk of suits under federal law.” Gunn, 568 U.S. at 257 (citation omitted). But
“a federal court [is also] able to hear claims recognized under state law that nonetheless turn on substantial questions of federal law, and thus justify resort to the experience, solicitude, and hope of uniformity that a federal forum offers on federal issues.” That is to say, “federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.”Perez v. Se. SNF, L.L.C., No. 21-50399, 2022 WL 987187, at *3 (5th Cir. Mar. 31, 2022) (per curiam) (quoting Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 312 (2005), then Gunn, 568 U.S. at 258).
Analysis
Timms does not allege a basis for federal subject matter jurisdiction. See, e.g., Dkt. No. 3 at 14.
But, in communication between Timms and Verizon attached to the complaint, Timms appears to allege that the defendant violated his constitutional rights and a supposed federal statute or regulation. See id. at 2-13.
To the extent that these allegations are offered to support jurisdiction under Section 1331, “[t]he applicable test for determining jurisdiction on the face of the pleadings is not whether the plaintiffs could actually recover, but whether the federal claim alleged is so patently without merit as to justify the district court's dismissal for want of jurisdiction.” Suthoff v. Yazoo Cnty. Indus. Dev. Corp., 637 F.2d 337, 340 (5th Cir. Unit A Feb. 1981) (citing Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59 (1978)).
Put another way, “[s]ome claims are ‘so insubstantial, implausible, ... or otherwise completely devoid of merit as not to involve a federal controversy.'” Atakapa Indian de Creole Nation v. Louisiana, 943 F.3d 1004, 1007 (5th Cir. 2019) (quoting Oneida Indian Nation of N.Y. v. Oneida Cnty., 414 U.S. 661, 666 (1974)).
And “a complaint that alleges the existence of a frivolous or insubstantial federal question is not sufficient to establish jurisdiction in a federal court.” Raymon v. Alvord Indep. Sch. Dist., 639 F.2d 257, 257 (5th Cir. Unit A Mar. 1981); see also Southpark Square Ltd. v. City of Jackson, Miss., 565 F.2d 338, 342 (5th Cir. 1977) (a claim “must be more than frivolous to support federal question jurisdiction”).
Timms's allegations do not support a violation of federal law that is more than frivolous or insubstantial.
For example, if it's alleged that Verizon, a private actor, violated Timms's constitutional rights, no factual content in the complaint reflects that Verizon acted under color of law. See Mitchell v. Clinkscales, 253 Fed.Appx. 339, 340 (5th Cir. 2007) (per curiam) (“[A]lthough Mitchell argues that Clinkscales is liable under 42 U.S.C. § 1983, Mitchell does not allege facts demonstrating that Clinkscales acted under color of state law; thus, Mitchell failed to plead and establish subject-matter jurisdiction based on the existence of a federal question. [And t]he district court was required to dismiss the complaint.” (citation omitted)).
Timms also does not show that Section 1332 could provide the Court jurisdiction, as the complaint fails to “distinctly and affirmatively allege[]” a basis for it where Timms does not allege the parties' citizenships and an amount in controversy. Mullins, 564 F.3d at 397.
Recommendation
The Court should dismiss this case for lack of subject matter jurisdiction.
A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(B). IN ORDER TO BE SPECIFIC, AN OBJECTION MUST IDENTIFY THE SPECIFIC FINDING OR RECOMMENDATION TO WHICH OBJECTION IS MADE, STATE THE BASIS FOR THE OBJECTION, AND specify the place in the magistrate judge's findings, conclusions, and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).