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Davis v. The Kott Law Firm

United States District Court, M.D. Louisiana

July 25, 2019

ADAM DAVIS, JR.
v.
THE KOTT LAW FIRM

          NOTICE

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         RECOMMENDATION TO DISMISS

         For the reasons set forth herein, the undersigned recommends that Plaintiff's suit be dismissed for lack of subject matter jurisdiction.

         I. Background

         On June 11, 2018, plaintiff, Adam Davis, Jr. (“Plaintiff”), filed “A Complaint under the Civil Rights Act, 42 U.S.C. § 1983” (the “Complaint”), [1] as well as an Application to Proceed in District Court without Prepaying Fees or Costs (the “IFP Application”).[2] Per the Complaint, Plaintiff named the Kott Law Firm (“Defendant”) as defendant.

         On May 22, 2019, Plaintiff's IFP Application was denied based on the information provided by Plaintiff indicating that Plaintiff has an income of $20, 000.00 and expenses of $3000.00 per month.[3] “In the event Plaintiff wishes to proceed with prosecuting this action in this Court, ” the May 22, 2019 Order required Plaintiff to pay the $400.00 filing fee within twenty-one (21) days.[4] Additionally, because Plaintiff did not assert a federal claim and because the citizenship of the parties was not adequately alleged in the Complaint, Plaintiff was ordered to file a Notice setting out the citizenship of all parties within twenty-one (21) days.[5] The May 22, 2019 Notice and Order notified Plaintiff that failure to timely pay the $400.00 filing fee or failure to adequately allege the citizenship of Plaintiff and Defendant could result in dismissal of this suit without further notice.[6] A copy of the May 22, 2019 Notice and Order was sent to Plaintiff via certified mail, return receipt requested, to the address listed on PACER.[7] On June 18, 2019, the certified mailing was returned to this Court with the notation “Return to sender. Not deliverable as addressed. Unable to forward.”[8]

         On June 26, 2019, an Order was issued requiring Plaintiff to personally appear before the undersigned on July 24, 2019 and show cause why Plaintiff's claims should not be dismissed for failure to pay the $400.00 filing fee, lack of federal subject matter jurisdiction, and failure to prosecute.[9] The June 26, 2019 Order was sent to Plaintiff via certified mail, return receipt requested, and a return receipt was filed into the record on July 2, 2019.[10] Plaintiff did not appear at the July 24, 2019 hearing, and has not filed any response to May 22, 2019 Order or the June 26, 2019 Order.

         II. Analysis

         Plaintiff has failed to timely pay the $400.00 filing fee and has not established that this Court has federal subject matter jurisdiction over Plaintiff's claims. As explained in this Court's May 22, 2019 Notice and Order, federal courts have limited jurisdiction, and Plaintiff must establish this Court has federal subject matter jurisdiction if Plaintiff wishes to proceed with his suit in this Court.[11]

         Here, notwithstanding the title of Plaintiff's Complaint, Plaintiff does not assert a federal claim and therefore it does not appear that this Court has subject matter jurisdiction under 28 U.S.C. § 1331. Instead, Plaintiff's Complaint raises possible state law legal malpractice/tort and/or breach of contract claims against his former attorney.[12] Accordingly, Plaintiff must establish that this Court has subject matter jurisdiction under 28 U.S.C. § 1332. Plaintiff's allegations may satisfy the amount in controversy requirement for jurisdiction under 28 U.S.C. § 1332.[13] However, Plaintiff does not adequately allege his own citizenship or the citizenship of the Defendant and, based on the information submitted, it appears that both Plaintiff and Defendant are citizens of Louisiana.[14] Plaintiff was previously instructed of the requirements for adequately alleging the citizenship of the parties and advised that if “Plaintiff and The Kott Law Firm are both citizens of the State of Louisiana, this suit will have to be dismissed in this Court because this Court would not have subject matter jurisdiction.”[15]

         “A federal court must presume that an action lies outside its limited jurisdiction, and the burden of establishing that the court has subject matter jurisdiction to entertain an action rests with the party asserting jurisdiction.”[16] “A district court can dismiss an action sua sponte for lack of federal subject matter jurisdiction…even where the defendant makes no responsive pleadings and does not move to dismiss for want of subject-matter jurisdiction.”[17] Here, Plaintiff has not met his burden of establishing that this ...


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