Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Totty v. Everbank

United States District Court, E.D. Michigan, Southern Division

February 23, 2015

DEWEY F. TOTTY, JR., Plaintiff,
v.
EVERBANK, et al., Defendants.

ORDER (1) DISMISSING PLAINTIFF'S GOVERNING COMPLAINT WITHOUT PREJUDICE FOR LACK OF SUBJECT-MATTER JURISDICTION AND (2) TERMINATING AS MOOT DEFENDANT EVERBANK'S MOTION TO DISMISS (ECF #14)

MATTHEW F. LEITMAN, District Judge.

In the currently-operative complaint in this action, Plaintiff Dewey F. Totty, Jr. ("Totty"), acting pro se, challenges the foreclosure of his property in Southfield, Michigan. ( See the "Operative Complaint, " ECF #8.) Totty alleges that Defendant Everbank "used subterfuge to seize and dispose of" his property." (ECF #1 at 1.)[1] Totty further alleges that Defendants Tomahawk Ventures, LLC ("Tomahawk") and Vlad Safir ("Safir") "used a defective conveyance and artful court procedures to harass [Totty]... in an attempt to seize [his] family home." (Operative Compl. at 1-2.)

Totty purported to bring his action on the basis of this Court's diversity jurisdiction. ( See Initial Compl. at 4.)[2] Totty alleged that he was a citizen of Michigan and Everbank was a citizen of Florida. ( See id. ) Totty did not specifically allege Tomahawk's or Safir's citizenship.

On February 6, 2015, the Court ordered Totty to show cause why this action should not be dismissed for lack of subject-matter jurisdiction. ( See "Order to Show Cause, " ECF #40.) The Court specifically cautioned Totty that if he "fail[ed] to respond to this order in a manner that persuades the Court that it has subject-matter jurisdiction over this action, the action [would] be dismissed." ( Id. at 7.)

Totty responded to the Order to Show Cause on February 17, 2015. ( See the "Response, " ECF #41.) In the Response, Totty admitted that he is unable to identify Tomahawk's or Safir's citizenships. ( See id. at ¶¶2-3.) Nonetheless, Totty urged the Court not to dismiss the action "because to do so would deny [Totty] substantial justice." ( Id. at ¶1.)

This Court is required to hold pleadings by pro se litigants "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the Court may not entertain an action over which it does not have jurisdiction. See, e.g., Himmelreich v. Fed. Bureau of Prisons, 766 F.3d 576, 579 (6th Cir. 2014) ("If the court has no jurisdiction, it has no power to enter a judgment on the merits and must dismiss the action") (internal citation omitted). The Court has jurisdiction over, among other things, actions in which (1) the cause of action arises under federal law, see 28 U.S.C. § 1331, or (2) the amount in controversy exceeds $75, 000 and all plaintiffs are diverse from all defendants, see 28 U.S.C. § 1332. Plaintiff has the burden of establishing the Court's jurisdiction. See United States v. Horizon Healthcare, 160 F.3d 326, 329 (6th Cir. 1998).

Even under the liberal pleading standards that apply here, Totty has failed to establish that this Court has diversity jurisdiction over the Operative Complaint. Indeed, Totty candidly admits that he has not identified Tomahawk's or Safir's citizenship. ( See Response at ¶¶2-3.) Accordingly, this Court lacks subject-matter jurisdiction, and it must dismiss the action. See Himmelreich, 766 F.3d at 579. See also Norris v. Schotten, 146 F.3d 314, 324 n.5 (6th Cir. 1998) ("Subject matter jurisdiction is an issue that must be raised sua sponte by a federal court where appropriate and can be raised at any time.").

Totty counters that dismissal is not warranted because "the problem of diversity may have been solved if [he] had been allowed a short period of discovery." (Response at ¶2.) However, Totty has cited no authority entitling him to discovery for jurisdictional purposes. While the court may authorize discovery in order to resolve subject-matter jurisdiction disputes, there is no such dispute here. See, e.g., CSDVRS, LLC v. Purple Communications, Inc., No. 13-1811, 2013 WL 4763948 (M.D. Fla. Sept. 4, 2013). See also In re MPF Holdings U.S. LLC, 701 F.3d 449, 457 (5th Cir. 2012) ("some jurisdictional discovery may be warranted if the issue of subject matter jurisdiction turns on a disputed fact"). Indeed, this is not a case where plaintiff has alleged that the defendant is a citizen of a particular State and the defendant has contested that allegation. Rather, Totty has not even attempted to allege Tomahawk's and Totty's citizenships. Under these circumstances, Totty is not entitled to jurisdictional discovery.[3]

In dismissing this action, the Court expresses no opinion on the merits of Totty's claims. Indeed, Totty's claims may be viable. However, based on how Totty has chosen to structure his case, there is no basis for federal subject-matter jurisdiction at this time. As currently pleaded, Totty's claims belong in state court.

For all the reasons discussed in this Order, IT IS HEREBY ORDERED that this action is DISMISSED WITHOUT PREJUDICE, in its entirety. IT IS FURTHER ORDERED that Everbank's Motion to Dismiss (ECF #14) is TERMINATED AS MOOT.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.