United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUTFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants “DC 37
Municipal Employees Legal Service MELS, Joan Beranbaum,
Director, and Attorneys” (collectively,
“Defendants”) Motion to Dismiss  (the
“Motion”). The Motion is unopposed.
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. ( at 1-2). 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).
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.
Motion to Dismiss Under Rule 12(b)(1)
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).
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).
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)).
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.
Motion to Dismiss Under Rule 12(b)(6)
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.
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