United States District Court, M.D. Florida, Orlando Division
G. Byron, Judge
cause is before the Court on Plaintiff's Renewed Motion
to Proceed in forma pauperis (Doc. 11), filed
November 9, 2017. Magistrate Judge Karla R. Spaulding
submitted a Report and Recommendation (“R&R”)
on November 14, 2017. (Doc. 12). The R&R recommended that
the Court dismiss the case for lack of subject matter
jurisdiction. (Id. at p. 2). On December 1, 2017,
Plaintiff filed Objections to the R&R. (Doc. 13).
de novo review, the Court accepts the R&R's
recommendation that the Amended Complaint be dismissed for
lack of subject matter jurisdiction.
19, 2017, Plaintiff Tina Lynne Wagoner filed a Complaint
against Defendant Donna Lee Wagoner. (Doc. 1). On October 2,
2017, Magistrate Judge Spaulding submitted a different Report
& Recommendation recommending the Complaint be dismissed
for lack of subject matter jurisdiction. (Doc. 6). The Court
so dismissed the Complaint. (Doc. 7). The October 2, 2017,
Report & Recommendation advised Plaintiff of the pleading
requirements to establish subject matter jurisdiction.
November 9, 2017, Plaintiff filed a one-page Amended
Complaint (Doc. 10) and Renewed Motion to Proceed in
forma pauperis (Doc. 11). The Amended Complaint alleges
that Plaintiff Tina Lynne Wagoner is currently incarcerated,
and that during her incarceration, the executors of her
father's estate failed to give her “that which is
rightfully [Plaintiff's] to claim.” (Doc. 10).
November 14, 2017, Magistrate Judge Spaulding submitted a
R&R, recommending that the case be dismissed for lack of
subject matter jurisdiction. (Doc. 12, p. 2). Plaintiff
objected on November 14, 2017. (Doc. 13).
STANDARD OF REVIEW
magistrate judge has been designated to decide a matter that
is dispositive in nature, the magistrate judge must issue a
report to the district judge specifying proposed findings of
fact and the recommended disposition. Fed.R.Civ.P. 72(b)(1).
Any party who disagrees with the magistrate judge's
decision has fourteen days from the date of the decision to
seek the district judge's review by filing objections to
those specific portions of the decision with which the party
disagrees. Fed.R.Civ.P. 72(b)(2). The district judge must
then make a de novo determination of each issue to
which objection is made. Fed.R.Civ.P. 72(b)(3). De
novo review “require[s] independent consideration
of factual issues based on the record.” Jeffrey S.
v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir.
1990) (per curiam). The district judge may then accept,
reject, or modify the magistrate judge's recommendation,
receive additional evidence or briefing from the parties, or
return the matter to the magistrate judge for further review.
Objection is due to be overruled. To exercise jurisdiction
over an action, there must exist a basis for jurisdiction.
“The basic statutory grants of federal-court
subject-matter jurisdiction are contained in 28 U.S.C.
§§ 1331 and 1332. Section 1331 provides for
‘federal-question' jurisdiction, § 1332 for
‘diversity of citizenship' jurisdiction.”
Arbaugh v. Y&H Corp., 546 U.S. 500
(2006). To properly invoke diversity of
citizenship jurisdiction, the plaintiff must plead that the
parties are completely diverse and the amount in controversy
exceeds $75, 000. Id.
again fails to allege subject matter jurisdiction despite
being specifically advised of the pleading requirements.
(Doc. 6). Magistrate Judge Spaulding correctly noted that
“Plaintiff [had] not corrected any of the deficiencies
identified in her original complaint, ” and therefore
recommended that the Amended Complaint be dismissed for lack
of subject matter jurisdiction. (Id. at p. 2).
Moreover, the Amended Complaint lacks specific allegations of
wrongdoing and instead states general grievances relating to
her father's estate. (Doc. 10).
Amended Complaint likewise does not allege a basis for
diversity of citizenship jurisdiction. Plaintiff lists her
address as the Bedford Hills Correctional Facility in Bedford
Hills, New York. (Id.). Magistrate Judge
Spaulding's October 2, 2017, R&R emphasized that
“[a] prisoner's place of incarceration does not
establish citizenship. A person's citizenship is
determined by his domicile prior to incarceration.”
(Doc. 6, p. 4 (quoting Permanent Gen. Assurance Corp. v.
Byrd, No. 6:17-cv-1363-Orl-31TBS, 2017 WL 4078037, at *3
(M.D. Fla. Aug. 23, 2017))). Nonetheless, Plaintiff fails to
allege her domicile prior to incarceration. (Doc. 10).
Furthermore, the Amended Complaint fails to allege
Defendant's domicile, although Plaintiff states in her
Objection that Defendant is domiciled in Florida. (Doc. 13).
An Objection to a Report & Recommendation is no place to
allege jurisdiction, and even if it were, Plaintiff's
allegations would still be deficient. (Docs. 10, 13).
Court has a duty to liberally construe a pro se
plaintiff's filings and to afford greater leeway in
alleging a claim for relief than what is given to licensed
attorneys. Tennyson v. ASCAP, 477 F. App'x 608,
609-10 (11th Cir. 2012) (per curiam). Nevertheless, “a
pro se party must follow the rules of procedure and
evidence, and the district court has no duty to act as [a
pro se party's] lawyer.” Id. at
610 (internal quotation marks omitted). After dismissing a
complaint, district courts may grant leave to amend subject
to reasonable limitations. Anderson v. Vanguard Car
Rental USA, Inc., 304 F. App'x 830, (11th Cir.
2008). “A district court need not allow an amendment:
‘(1) where there has been undue delay . . . or repeated
failure to cure deficiencies by amendments ...