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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-13665
Non-Argument Calendar
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D.C. Docket No. 1:18-cv-03195-TWT
JAMES NATHANIEL DOUSE,
Plaintiff-Appellant,
versus
METRO STORAGE, LLC,
METRO SELF STORAGE / DUNWOODY STORAGE, LLC,
METRO STONE MOUNTAIN, LLC,
METRO SANDY SPRINGS, LLC,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
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(May 14, 2019)
Before WILSON, WILLIAM PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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James Douse, proceeding pro se, appeals the district court’s sua sponte
dismissal of his complaint for lack of subject matter jurisdiction. He argues that
the district court erred in dismissing his complaint because he established federal
question and diversity jurisdiction. As to federal question jurisdiction, he argues
that he alleged a federal claim under the Federal Tort Claims Act, specifically, 28
U.S.C. § 2679, and 42 U.S.C. § 1983. He also alleges, for the first time on appeal,
violations of federal consumer laws and his Fourth and Fourteenth Amendment
rights. As to diversity jurisdiction, he alleges that he established diversity of
citizenship.
Whether a district court has subject matter jurisdiction to decide a case is a
question of law to be reviewed de novo. See Pintando v. Miami-Dade Hous.
Agency, 501 F.3d 1241, 1242 (11th Cir. 2007). A district court has an independent
obligation to determine whether subject matter jurisdiction exists even in the
absence of a challenge from any party. Arbaugh v. Y&H Corp., 546 U.S. 500, 514
(2006). When it determines that it does not have subject matter jurisdiction, the
court must dismiss the complaint in its entirety. Id.
A district court has original jurisdiction to hear two types of cases. See 28
U.S.C. §§ 1331, 1332. First, a district court has jurisdiction over all civil actions
that involve a federal question, or, in other words, claims that arise under the
Constitution, laws, or treaties of the United States. See id. § 1331. A district court
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may dismiss a federal question claim for lack of subject matter jurisdiction when:
(1) the alleged federal claim “clearly appears to be immaterial and made solely for
the purpose of obtaining jurisdiction;” or (2) the claim is “wholly insubstantial and
frivolous.” Blue Cross & Blue Shield of Ala. v. Sanders, 138 F.3d 1347, 1352
(11th Cir. 1998).
Second, a district court has jurisdiction over all civil actions where the
amount in controversy exceeds $75,000.00 and is between citizens of different
states. See 28 U.S.C. § 1332(a). A corporation is considered a citizen of every
state where it is incorporated and where it has a principal place of business. See id.
§ 1332(c)(1). Diversity of citizenship is assessed at the time the lawsuit is
commenced. Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 428
(1991).
To state a claim under 42 U.S.C. § 1983, the plaintiff must show that he
“was deprived of a federal right by a person acting under color of state law.”
Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). “A person
acts under color of state law when he acts with authority possessed by virtue of his
employment with the state.” Id. To state a claim under the Federal Tort Claims
Act, the plaintiff must, at the very least, allege a claim against the United States
and submit that claim to the appropriate federal agency for a denial of the claim
before he is permitted to file in the district court. See 28 U.S.C. §§ 2674, 2675.
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Additionally, a party waives his right to challenge on appeal an argument
that he failed to raise before the district court. See Bryant v. Jones, 575 F.3d 1281,
1296 (11th Cir. 2009). Further, we will not entertain arguments that are raised for
the first time in a reply brief. See Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir.
2003).
Here, as an initial matter, Douse has waived any argument regarding
violations of federal consumer laws and his Fourth and Fourteenth Amendment
rights because he did not raise them before the district court and, instead, raised
them for the first time in his reply brief.
As to his other claims, the district court did not err in determining that Douse
did not establish federal question jurisdiction. Douse did not state a claim under 42
U.S.C. § 1983 because Metro Storage, LLC (“Metro Storage”) is not a state actor
and the harm to him arose from purely private conduct. Similarly, he did not state
a claim under 28 U.S.C. § 2679, or, more generally under the Federal Tort Claims
Act, because the United States is not a party to the litigation. Further, Douse’s
claims predominantly involve Georgia contract, negligence, and landlord/tenant
law, as demonstrated by his numerous references to those areas of law in his
complaint, and his brief, passing references to his federal claims demonstrate that
they are immaterial and made for the purpose of obtaining jurisdiction in federal
court.
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Moreover, the district court did not err in determining that Douse did not
establish diversity jurisdiction. He admitted in his complaint that he was a resident
of Georgia and that Metro Storage had its principal place of business in Georgia,
and in doing so, he acknowledged that there was no diversity of citizenship.
Accordingly, we affirm.
AFFIRMED.
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