TIPTON v. HIRE RIGHT et al, No. 1:2012cv00175 - Document 18 (M.D. Ga. 2013)
Court Description: ORDER granting 8 Motion to Dismiss; denying as moot 13 Motion to Proceed; denying as moot 15 Motion to Transfer Case; denying as moot 17 Motion to Proceed. This action is dismissed without prejudice.Ordered by Judge W. Louis Sands on 10/16/13 (wks)
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TIPTON v. HIRE RIGHT et al Doc. 18 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E MID D LE D ISTRICT OF GEORGIA ALBAN Y D IVISION GEORGE TIPTON, IV, : : Plain tiff, : : v. : : HIRE RIGHT, an d DANTE BORGHESE, : : Defen dan ts. : : CASE NO.: 1:12-CV-175 (WLS) ORD ER Presen tly pen din g before the Court is Defen dan ts’ Motion to Dism iss (Doc. 8), Plain tiff’s Motion to Tran sfer 1 (Doc. 15), an d Plain tiff’s Motion to Proceed (Doc. 17). Because Plain tiff requested that th is action remain in this Court (see Doc. 17 at 1), Plain tiff’s Motion to Tran sfer (Doc. 15) is D EN IED AS MOOT. For th e followin g reason s, Defen dan ts’ Motion to Dism iss is GRAN TED an d this action is D ISMISSED W ITH OU T PREJU D ICE. As such, Plain tiff’s Motion to Proceed (Doc. 17) is also D EN IED AS MOOT. BACKGROU N D On November 16, 20 12, Plain tiff filed th e in stan t action claimin g Defen dan ts violated th e Freedom of In form ation Act when th ey “gave person al in formation to a [sic] un kn own compan y by th e Plain tiff.” (Doc. 1 at 1.) Plain tiff “request[ed] men tal an guish pain an d suffering in the am ount of $ 20 ,0 0 0 ,0 0 0 .” (Id. at 2.) Plain tiff attach ed a letter from Defen dan t Hire Righ t in formin g Plain tiff that some of h is person al in formation 1 Although Plaintiff styled this Motion as a “Motion to Proceed Lack Subject Matter Jurisdiction Over This Action,” the Court construes it as a Motion to Transfer because therein Plaintiff requested the Court to “transfer the case to the U.S. DISTRICT COURT – WESTERN DISTRICT OF OKLAHOMA.” (Doc. 15.) 1 Dockets.Justia.com was unintentionally com municated to an other custom er. (Id. at 3.) Th e letter explain ed th at th e recipien t destroyed the report, which did n ot include Plain tiff’s Social Security Num ber or date of birth. (Id.) Addition ally, Defen dan ts in cluded a check to pay for credit m onitoring for on e year. (Id.) On March 11, 20 13, Defen dan ts filed a Motion to Dism iss for Lack of Subject Matter J urisdiction , Im proper Ven ue, Failure to State a Claim Upon Which Relief Can Be Gran ted, or in the Altern ative, Motion for More Defin ite Statem en t. (Doc. 8.) On March 18, 20 13, Plain tiff filed Statemen t of Fact an d Statemen t of Claim Upon Releif [sic] Can be Gran ted. (Doc. 10 .) Defen dan ts replied on April 3, 20 12, an d claimed that Plain tiff failed to respon d to an y of their Motion s. (Doc. 11.) On April 3, 20 13, th e Court n oticed Plain tiff th at a dispositive motion had been filed in this case, an d ordered h im to respon d. (Doc. 12.) Plain tiff filed Motion to Proceed Where Releif [sic] Can be Gran ted on April 10 , 20 13. (Doc. 13.) Defen dan ts filed a reply on April 17, 20 13. (Doc. 14.) On April 30 , 20 13, Plain tiff filed Motion to Proceed, an d requested th e Court to tran sfer this action to th e United States District Court for th e Western District of Oklah om a. (Doc. 15.) Defen dan ts respon ded on May 17, 20 13. (Doc. 16.) On J un e 4, 20 13, Plain tiff filed an other Motion to Proceed, an d stated th at “[s]ince this case has n ot been tran sfer [sic] to the Western District court of Oklah oma [sic] just leave it in th is court because the judge has viewed my complain t an d addition al evidences [sic] to support m y claim .” (Doc. 17.) D ISCU SSION A party may assert by motion th e defen se of lack of subject matter jurisdiction , an d th e Court must dism iss an action if it fin ds that subject matter jurisdiction is lackin g at an y time. F ED. R. CIV. P. 12(b)(1) & 12(h )(3). Th erefore, a federal court h as not on ly 2 th e power but th e obligation “to in quire in to jurisdiction when ever th e possibility that jurisdiction does n ot exist arises.” Beavers v. A.O. Sm ith Elec. Prods. Co., 265 F. App’x 772, 777 (11th Cir. 20 0 8) (citin g Johansen v. Com bustion Eng’g, In c., 170 F.3d 1320 , 1328 n .4 (11th Cir.1999)). This Court is min dful, h owever, that “it is extremely difficult to dismiss a claim for lack of subject matter jurisdiction .” Garcia v. Copen haver, Bell & Assocs., M.D.’s, P.A., 10 4 F.3d 1256, 1260 (11th Cir. 1997) (citin g Sim an on ok v. Sim an on ok, 787 F.2d 1517, 1519 (11th Cir. 198 6)). “A defen dan t can move to dismiss a complain t un der Rule 12(b)(1) for lack of subject matter jurisdiction by either facial or factual attack.” Stalley ex rel. U.S. v . Orlan do Reg’l Healthcare Sys., In c., 524 F.3d 1229, 1232 (11th Cir. 20 0 8). “A ‘facial attack’ on the complain t ‘require[s] the court merely to look an d see if [the] plain tiff has sufficien tly alleged a basis of subject matter jurisdiction , an d th e allegation s in his complain t are taken as true for the purposes of the motion .’ ” McElm urray v. Con sol. Gov’t of Augusta-Richm on d Cn ty ., 50 1 F.3d 1244, 1251 (11th Cir. 20 0 7) (quotin g Law ren ce v. Dun bar, 919 F.3d 1525, 1529 (11th Cir. 1990 )); see also Carm ichael v. Kellogg, Brow n & Root Servs., In c., 572 F.3d 1271, 1279 (11th Cir. 20 0 9) (citin g Morrison v. Am w ay Corp., 323 F.3d 920 , 925 n.5 (11th Cir. 20 0 3)) (“[T]he court must, as with a Rule 12(b)(6) motion , take th e complain t’s allegation s as true.”). “Factual attacks,” on th e other h and, serve to “challen ge ‘th e existen ce of subject matter jurisdiction in fact, irrespective of the pleadin gs, an d matters outside the pleadin gs, such as testim ony an d affidavits are con sidered.’ ” McElm urray , 50 1 F.3d at 1251. Th erefore, a district court’s treatmen t of a motion to dism iss as a facial, rather than factual, attack “con sider[s] on ly th e complain t an d th e attach ed exhibits.” Id. 3 Because federal courts are courts of limited jurisdiction , a plain tiff must affirmatively allege in h is complain t the existen ce of jurisdiction an d facts dem onstrating its existence. Beav ers, 265 F. App’x at 777 (citin g Morrison v. Allstate In dem n ity Co., 228 F.3d 1255 (11th Cir. 20 0 0 ), an d Tay lor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)); see also F ED. R. CIV. P RO. 8(a)(1) (“A pleadin g that states a claim for relief must in clude . . . a sh ort an d plain statemen t of th e groun ds for th e court’s jurisdiction .”). A plain tiff m ay do so by allegin g on e of two types of jurisdiction: (1) federal question jurisdiction , or (2) diversity of citizen ship jurisdiction . 28 U.S.C. §§ 1331-32. Federal question jurisdiction allows a court to exercise jurisdiction over an action wh ere the claim “arises un der th e Con stitution , laws, or treaties of th e Un ited States.” 28 U.S.C. § 1331. In other words, the complain t must demon strate th at the plain tiff seeks to en force an d recover un der a federal right, protected by federal laws or th e Con stitution , as an essen tial part of its cause of action . Miccosukee Tribe of In dians of Fl. v . Kraus-An derson Const. Co., 60 7 F.3d 1268, 1273 (11th Cir. 20 10 ) (“[A] m ere in can tation th at th e cause of action in volves a federal question is n ot always sufficien t.”). Diversity of citizen ship, th e other poten tial basis for subject matter jurisdiction , requires the plain tiff to be a citizen of a differen t state th an the defen dan ts and the am ount in controversy to exceed $ 75,0 0 0 . 28 U.S.C. § 1332. Hence, each nam ed plain tiff must be completely diverse in citizen sh ip from each n amed defen dan t. Sw eet Pea Marine, Ltd. v. APJ Marin e, In c., 411 F.3d 1242, 1247 (11th Cir. 20 0 7) (citin g Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 580 n .2 (1999)). 4 Wh ether or n ot federal question jurisdiction is presen ted is govern ed by th e "well-pleaded com plaint" rule, wh ich provides that federal jurisdiction exists on ly when a federal question is presen ted on the face of a plain tiff's properly pleaded complain t. See Caterpillar In c. v. Williams, 482 U.S. 386, 392 (1987) (in tern al citation om itted). In h is Complain t, Plain tiff cites federal law; however, th e Court reviews each allegation h erein to determin e whether Plain tiff meets the low th reshold to state a claim . Ancata v. Prison Health Servs., In c., 769 F.2d 70 0 , 70 3 (11th Cir. 198 5). Plain tiff’s sole groun d for relief is the Freedom of In formation Act (“FOIA”), 5 U.S.C. § 552. (See Doc. 1.) Even though Plain tiff cites this Act, the Court n on etheless lacks federal question jurisdiction over th is suit. “[T]h e Freedom of In formation Act applies on ly to federal agen cies.” Nero v. Mary lan d, 487 F. App’x 89, 90 (4th Cir. 20 12). Th e statute defin es “agen cy” as “each authority of the Govern m en t of the United States,” with various exception s. See 5 U.S.C. § 551(1). Defen dan ts, who are n ot en tities of th e federal govern men t, are n ot subject to th e provision s of th e FOIA. Because the Court is n ot aware of an y other federal law th at would redress th e harms alleged by Plain tiff, an d Plain tiff cites n on e, th e Court con cludes that it does n ot h ave federal question jurisdiction over th is suit. Th e Court also finds th at it does n ot h ave diversity jurisdiction over this suit. The amoun t of damages that is requested by a plain tiff “con trols if the claim is apparen tly m ade in good faith.” St. Paul Mercury In dem n ity Co. v. Red Cab Co., 30 3 U.S. 283, 288 (1938). However, the Court n eed n ot be boun d by Plain tiff’s request for damages if it “appear[s] to a legal certain ty th at th e claim is really for less th an th e jurisdiction al am oun t.” Id. at 288-89. “[I]f, from the face of the pleadin gs, it is apparen t to a legal certain ty, th at th e plain tiff cann ot recover the amoun t claimed or if, from th e proofs, the 5 court is satisfied to a like certain ty that th e plain tiff n ever was en titled to recover th at am oun t, an d that h is claim was therefore colorable for the purpose of con ferrin g jurisdiction , the suit will be dism issed.” Id. at 289. Plain tiff has alleged th ree differen t damage am oun ts. Plain tiff’s first request for dam ages, which was alleged in his Com plain t, was $ 20 m illion . (Doc. 1 at 2.) Th is request does n ot con fer jurisdiction on this Court because (1) Plain tiff himself asserted that this am oun t was requested in error (see Doc. 10 at 2), and (2) the Court is con vin ced to a legal certain ty that the facts alleged by Plain tiff, even if demon strated, would n ot en title Plain tiff to $ 20 million under state or federal law. Plain tiff’s second request for dam ages was $ 20 ,0 0 0 . (Doc. 10 at 2.) Th is am ount does not m eet the jurisdiction al requiremen t an d therefore can n ot con fer diversity jurisdiction . See 28 U.S.C. 1332(a). Plaintiff’s third request for dam ages was $ 75,0 0 0 . (Doc. 13 at 2.) Plaintiff noted th at h e was requestin g this amoun t for “Men tal An guish an d Stress” because “m y relief was n ot acceptable from th e Defen dan t.” (Id.) The Court fin ds that th is request also fails to con fer diversity jurisdiction . First, to con fer diversity jurisdiction , the amoun t in con troversy must exceed $ 75,0 0 0 . 28 U.S.C. § 1332(a). A request for dam ages of $ 75,0 0 0 on its face fails to m eet the am ount in controversy requirem en t. Second, th e Court fin ds th at th e requested damages were n ot made in good faith . Wh eth er the “relief was n ot acceptable from Defen dan t” is of n o im port. While draftin g h is Complain t, Plain tiff’s sole con cern should have been to seek redress in good faith. Th ird, the Court is con vin ced to a legal certain ty that Plain tiff is n ot en titled to recovery in an amoun t that would satisfy the requiremen ts for diversity jurisdiction . Plain tiff claim s th at th e un in ten tion al revelation of inform ation “could cost m e my lively hood” 6 alth ough “[t]his in form ation may n ot appear on a credit report as of n ow.” (Doc. 10 at 1.) Plain tiff does n ot poin t to an y provision of law th at would en title him to an y dam ages wh atsoever. Plaintiff’s general assertion that h e m ay be caused harm of an un certain amoun t is in sufficien t to invoke this Court’s diversity jurisdiction . See Pretka v. Kolter City Plaza II, In c., 60 8 F.3d 744, 752 (11th Cir. 20 10 ); Low ery v. Ala. Pow er Co., 483 F.3d 1184, 1220 (11th Cir. 20 0 7). Further, Plain tiff fails to state a claim upon which relief can be gran ted. A sufficien t complain t must con tain a “short and plain statemen t of th e claim sh owin g that the pleader is en titled to relief.” F ED. R. CIV. P RO. 8(a)(2). To survive a m otion to dism iss, a complain t must allege “en ough facts to state a claim to relief th at is plausible on its face.” Bell Atlan tic Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7). “A claim h as facial plausibility when the plain tiff pleads factual con ten t that allows the court to draw th e reason able in feren ce that th e defen dan t is liable for th e miscon duct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9). Because Defen dan ts m ay not be h eld liable un der FOIA, Plain tiff’s Complain t fails to state a claim upon which relief may be gran ted. See Nero, 487 F. App’x at 90 . Based on the foregoin g, Defen dan ts’ Motion to Dism iss is GRAN TED an d this action is D ISMISSED W ITH OU T PREJU D ICE. Because Plain tiff requested that th is action remain in this Court (see Doc. 17 at 1), Plain tiff’s Motion to Tran sfer (Doc. 15) is D EN IED AS MOOT. Because Defen dan t’s Motion to Dism iss h as been gran ted, Plain tiff’s Motion to Proceed (Doc. 17) is D ENIED AS MOOT. 7 SO ORD ERED , this 16 th day of October, 20 13. / s/ W. Louis Sands TH E H ON ORABLE W . LOU IS SAN D S, U N ITED STATES D ISTRICT COU RT 8
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