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Davis v. DC 37 Municipal Employees Legal Service Mels

United States District Court, N.D. Georgia, Atlanta Division

January 9, 2018




         This matter is before the Court on Defendants “DC 37 Municipal Employees Legal Service MELS, Joan Beranbaum, Director, and Attorneys”[1] (collectively, “Defendants”) Motion to Dismiss [7] (the “Motion”). The Motion is unopposed.

         I. BACKGROUND

         On October 26, 2017, Plaintiff Carolyn Davis (“Plaintiff”), proceeding pro se, filed her Complaint containing three paragraphs alleging a claim for legal malpractice arising out of a mortgage loan modification agreement that Defendants apparently assisted in preparing for Plaintiff. ([1] at 1-2).[2] Plaintiff states that, because of Defendants' negligence, she was “forced to sign a fraudulent Modification Loan on October 28, 2011” and is being “forced to pay $431, 634.70 on this new Fraud Modification.” (Id. at 1-2). Plaintiff requests that “attorney Joan Beranbaum and DC 37 Legal Service pay the illegal mortgage debt that [she] [is] being force to pay on each month of $431, 634.70.” (Id. at 2).

         On November 17, 2017, Defendants filed their Motion to Dismiss, arguing that Plaintiff's Complaint should be dismissed with prejudice for the following reasons: (1) Plaintiff's claim is barred by the statute of limitations in O.C.G.A §9-3-25; (2) the Court lacks personal jurisdiction over Defendants because Plaintiff failed to properly serve Defendants; (3) the Court lacks subject matter jurisdiction over Defendants; (4) Georgia is an inappropriate venue for the processing of the Complaint; (5) the Complaint should be dismissed according to the doctrine of forum non conveniens; and (6) the Complaint fails to present a claim for which relief may be granted. Plaintiff did not file a response and Defendant's motion is thus deemed unopposed. See LR 7.1(B), NDGa.


         A. Motion to Dismiss Under Rule 12(b)(1)

         “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). They possess only that power authorized by the Constitution and conferred by Congress. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).

         A motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1) may be either a “facial” or “factual” attack. Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003). A facial attack challenges subject-matter jurisdiction based on the allegations in a complaint, and the district court takes the allegations as true in deciding whether to grant the motion. Id. Factual attacks challenge subject-matter jurisdiction in fact. Id. When resolving a factual attack, the court may consider extrinsic evidence, such as testimony and affidavits. Id. In a factual attack, the presumption of truthfulness afforded a plaintiff under Federal Rule of Civil Procedure 12(b)(6) does not apply. Scarfo v. Ginsberg, 175 F.3d 957, 960-61 (11th Cir. 1999). “[T]he trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case . . . . [T]he existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). The plaintiff has the burden to prove that jurisdiction exists. Elend v. Basham, 471 F.3d 1199, 1206 (11th Cir. 2006).

         Here, Plaintiff's barebones Complaint alleges only a claim of legal malpractice. This claim is a state law claim, which means Plaintiff may only proceed in this Court under diversity jurisdiction. Diversity jurisdiction exists where the amount in controversy exceeds $75, 000 and the suit is between citizens of different states. 28 U.S.C § 1332(a). “Diversity jurisdiction, as a general rule, requires complete diversity-every plaintiff must be diverse from every defendant.” Palmer Hosp. Auth. of Randolph Cnty., 22 F.3d 1559, 1564 (11th Cir. 1994). “Citizenship for diversity purposes is determined at the time the suit is filed.” MacGinnitie v. Hobbs Grp., LLC, 420 F.3d 1234, 1239 (11th Cir. 2005). “The burden to show the jurisdictional fact of diversity of citizenship [is] on the . . . plaintiff.” King v. Cessna Aircraft Co., 505 F.3d 1160, 1171 (11th Cir. 2007) (alteration and omission in original) (quoting Slaughter v. Toye Bros. Yellow Cab Co., 359 F.2d 954, 956 (5th Cir. 1966)).

         Although the Complaint appears to include an allegation for damages greater than $75, 000, the Complaint is devoid of any allegations regarding citizenship. For this reason alone, the Court must dismiss Plaintiff's Complaint for lack of subject matter jurisdiction.

         B. Motion to Dismiss Under Rule 12(b)(6)

         Even if the Court had subject matter jurisdiction over this matter, the Court nonetheless must dismiss Plaintiff's Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim.

         On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must “assume that the factual allegations in the complaint are true and give the plaintiff[ ] the benefit of reasonable factual inferences.” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir. 2010). Although reasonable inferences are made in the plaintiff's favor, “‘unwarranted deductions of fact' are not admitted as true.” Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005) (quoting S. Fla. Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n.10 (1996)). Similarly, the Court is not required to accept conclusory allegations and legal conclusions as true. See Am. Dental Ass'n v. Cigna ...

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