Esposito v. Hollander et al, No. 2:2009cv00728 - Document 27 (M.D. Fla. 2009)

Court Description: OPINION AND ORDER denying 2 Motion to appoint counsel; denying as moot 6 Motion to Dismiss for Lack of Jurisdiction; adopting in part 13 Report and Recommendations and otherwise finding moot; denying as moot 21 Motion for summary judgment. The 26 Amended Complaint is dismissed without prejudice. Plaintiff may file a second amended complaint within 21 days. Signed by Judge John E. Steele on 12/22/2009. (RKM)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION RALPH H. ESPOSITO, JR., Plaintiff, vs. Case No. RICHARD HOLLANDER; RUTH SAMELSON, EDWARD 2:09-cv-728-FtM-29SPC MILLER; ___________________________________ OPINION AND ORDER This matter defendants comes Motion before to Dismiss the Court (Doc. #6) on consideration and the Report of and Recommendation (Doc. #13) recommending that plaintiff s Motion for Appointment of Counsel (Doc. #2) be denied and the Complaint be dismissed without prejudice, with leave for plaintiff to file an amended complaint. to the Report Plaintiff filed Written Objections (Doc. #24) and Recommendation, Complaint (Doc. #26). In light of but also filed review Amended Plaintiff also filed a Notice (Doc. #22). the Amended Complaint, the Recommendation and the Motion to Dismiss are moot. however, an the Amended Complaint for Report and The Court will, subject matter jurisdiction and pleading sufficiency. Read liberally because of plaintiff s pro se status, the Amended Complaint (Doc. #26) alleges legal malpractice by members of the law firm which represented plaintiff in a Chapter 13 bankruptcy proceeding. Federal courts are courts of limited jurisdiction, and cannot act outside their statutory subject-matter jurisdiction. University of S. Ala. v. Am. Tobacco, 168 F.3d 405, 409-410 (11th Cir. 1999). While the Amended Complaint makes reference to the First Amendment, no cause of action is stated under the First Amendment or any other U.S. Constitutional provision or federal law, and therefore no jurisdiction exists under 28 U.S.C. § 1331. Additionally, all parties are citizens of Florida, and therefore not jurisdiction exists under 28 U.S.C. § 1332(a)(1). University of S. Ala. v. Am. Tobacco, 168 F.3d at 412. It appears, however, that the district court has subject matter jurisdiction because the legal malpractice claim is based on plaintiff s attorney s handling of his bankruptcy case, and thus arises under Title 11 for purposes of federal jurisdiction. Capitol Hill Group v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 485, 489 (D.C. Cir. 2009); Heck-Dance v. Cardona-Jimenez, 102 Fed. Appx. 171, 171-72 (1st Cir. 2004); Grausz v. Englander, 321 F.3d 467 (4th Cir. 2003); Southmark Corp. v. Coopers & Lybrand (In re Southmark Corp.), 163 F.3d 925 (5th Cir. 1999); Billing v. Ravin, Greenberg & Zackin, P.A., 22 F.3d 1242, 1244 (3d Cir. 1994). The Amended Complaint clearly fails to properly state any cause of action against any defendant. with the filing instructions Plaintiff has not complied provided in the Report and Recommendation (Doc. #13, pp. 5-6), and even liberally construed, the Amended Complaint is insufficient. Plaintiff will be given one last opportunity to adequately set forth his cause(s) of action -2- with the supporting facts and allegations set forth in the document to be entitled Second Amended Complaint. Any exhibits should be attached at the end of the Second Amended Complaint. Accordingly, it is now ORDERED: 1. The Report and Recommendation (Doc. #13) is ADOPTED IN PART as to appointment of counsel and is otherwise MOOT. 2. Plaintiff s Motion for Appointment of Counsel (Doc. #2) is DENIED. 3. Defendants Motion to Dismiss (Doc. #6) is DENIED AS MOOT. 4. Plaintiff s Motion for Summary Judgment (Doc. #21) is DENIED AS MOOT. 5. The Amended Complaint (Doc. #26) is DISMISSED WITHOUT PREJUDICE. Plaintiff may file a second amended complaint setting forth all his cause(s) of action within TWENTY-ONE (21) DAYS of the date of this Order. DONE AND ORDERED at Fort Myers, Florida, this December, 2009. Copies: U.S. Magistrate Judge Plaintiff Counsel of record -3- 22nd day of

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