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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-11815
Non-Argument Calendar
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D.C. Docket No. 2:19-cv-14412-RLR
GREGORY MAKOZY,
Plaintiff-Appellant,
versus
CHARLES JOHN ZIMMERER,
UNITED STATES OF AMERICA,
WANDA QUILES,
Idv,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 6, 2021)
Before JORDAN, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
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Gregory Makozy, proceeding pro se, appeals the district court’s dismissal of
his civil complaint against Charles Zimmerer, Wanda Quiles, and the Internal
Revenue Service—the third federal action that he has filed against those parties
raising nearly identical claims. We conclude that the district court correctly found
that it lacked subject-matter jurisdiction over Makozy’s complaint, but because the
dismissal was on jurisdictional grounds, the court should have dismissed the
complaint without prejudice. We therefore affirm the dismissal but modify the
judgment below to reflect that the dismissal of Makozy’s complaint is without
prejudice.
I.
Makozy filed a pro se civil complaint in the Southern District of Florida
against Charles Zimmerer, his former bankruptcy attorney; the IRS; and IRS
employee Wanda Quiles. He alleged that Zimmerer was liable for legal
malpractice under Florida law, and he claimed that Quiles and the IRS were liable
for negligence and harassment in connection with Quiles’s efforts to collect a tax
debt that Makozy claimed had been discharged in bankruptcy. As relevant to his
appeal, Makozy alleged that the district court had jurisdiction to hear his claims
under 28 U.S.C. §§ 1331 (federal question) and 1332 (diversity).
The district court granted the government’s motion to substitute the United
States as the defendant in Quiles’s place and granted all three defendants’ motions
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to dismiss Makozy’s complaint for lack of jurisdiction. The court denied
Makozy’s motion to amend his complaint, finding that his proposed amended
complaint did not cure the defective jurisdictional allegations. Makozy now
appeals.
II.
Federal courts are courts of limited jurisdiction. A district court must have
either (1) federal-question jurisdiction pursuant to 28 U.S.C. § 1331, (2) diversity
jurisdiction pursuant to 28 U.S.C. § 1332(a), or (3) jurisdiction conveyed by
Congress pursuant to some other specific statutory grant. PTA-FLA, Inc. v. ZTE
USA, Inc., 844 F.3d 1299, 1305 (11th Cir. 2016). In a suit for damages against the
United States, the government’s express statutory waiver of sovereign immunity is
a prerequisite to jurisdiction. United States v. Mitchell, 463 U.S. 206, 212 (1983)
(“It is axiomatic that the United States may not be sued without its consent and that
the existence of consent is a prerequisite for jurisdiction.”); see Zelaya v. United
States, 781 F.3d 1315, 1321–22 (11th Cir. 2015). We review the district court’s
dismissal for lack of subject-matter jurisdiction de novo. Zelaya, 781 F.3d at 1321.
The plaintiff has the burden of establishing federal subject-matter
jurisdiction. Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242,
1247 (11th Cir. 2005). Pursuant to Rule 8(a) of the Federal Rules of Civil
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Procedure, a plaintiff’s complaint must contain “a short and plain statement of the
grounds for the court’s jurisdiction.” Fed. R. Civ. P. 8(a)(1).
On appeal, Makozy argues that the district court should have exercised
diversity jurisdiction over his legal malpractice claims against Zimmerer. He also
argues that he stated claims against Quiles and the IRS under the Equal Credit
Opportunity Act and unspecified provisions of the Constitution, and that his claims
against Quiles were not barred by sovereign immunity. We disagree, and therefore
affirm.
A.
District courts have subject-matter jurisdiction over civil actions between
citizens of different states where the amount in controversy exceeds $75,000. 28
U.S.C. § 1332(a)(1). Diversity jurisdiction requires complete diversity of
citizenship between all plaintiffs and defendants—that is, all plaintiffs must be
citizens of different states than all defendants. Sweet Pea Marine, 411 F.3d at
1247. The party invoking diversity jurisdiction must allege the citizenships of the
parties as of the time suit is filed in federal court. Grupo Dataflux v. Atlas Glob.
Grp., L.P., 541 U.S. 567, 570–71 (2004); Travaglio v. Am. Exp. Co., 735 F.3d
1266, 1268 (11th Cir. 2013). The citizenship of a natural person is the person’s
place of domicile, which requires residence in a state and an intention to remain in
that state indefinitely. Travaglio, 735 F.3d at 1269.
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In his initial complaint, Makozy alleged that he resided in Florida, that the
defendants were all located in Florida, and that the court had jurisdiction “because
all parties are from Florida.” In his proposed amended complaint, Makozy alleged
that he, Zimmerer, and Quiles all resided in Florida and that the IRS was located in
Florida. These alleged facts did not establish diversity of the parties.
In his response to Zimmerer’s motion to dismiss, Makozy stated that he
“maintains a residence” in Pennsylvania as well as in Florida. But even if Makozy
had included that allegation in his complaint, it would not have established his
citizenship for purposes of diversity. Individuals “are only citizens of the state in
which they are domiciled, and they have only one domicile.” Molinos Valle Del
Cibao, C. por A. v. Lama, 633 F.3d 1330, 1346 (11th Cir. 2011) (internal citations
omitted). Accordingly, to allege the citizenship of an individual for purposes of
diversity jurisdiction, a complaint must allege the state of the individual’s
domicile, not merely his place of residence. Travaglio, 735 F.3d at 1269. Because
the facts alleged in Makozy’s complaint did not establish diversity of citizenship
between the parties, the district court did not err in dismissing his state-law claims
against Zimmerer for lack of jurisdiction.
B.
Section 1331 provides district courts with subject-matter jurisdiction over
“all civil actions arising under the Constitution, laws, or treaties of the United
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States.” 28 U.S.C. § 1331. A claim arises under federal law when the face of the
complaint presents a federal question. Hill v. BellSouth Telecomm., Inc., 364 F.3d
1308, 1314 (11th Cir. 2004). The “vast majority” of cases falling within district
courts’ federal-question jurisdiction “are those in which federal law creates the
cause of action.” Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808
(1986) (citation omitted).
Even where federal law provides a private right of action, however, federal
courts lack subject-matter jurisdiction to hear claims against the United States and
its agencies unless the government has explicitly waived its sovereign immunity
from suit. King v. United States, 878 F.3d 1265, 1267 (11th Cir. 2018); Zelaya,
781 F.3d at 1322. The Federal Tort Claims Act waives sovereign immunity for
certain tort claims against the United States and its agencies, subject to several
conditions. 28 U.S.C. § 1346(b)(1). But, with exceptions not relevant here, the
FTCA waiver does not apply to claims arising from the assessment or collection of
any tax. Id. § 2680(c).
Under the Westfall Act, federal employees are immune from suit for
common-law tort claims arising out of acts undertaken in the course of their
official duties. 28 U.S.C. § 2679(b)(1); Osborn v. Haley, 549 U.S. 225, 229–30
(2007). The Westfall Act provides that when a federal employee is sued for
negligent or wrongful conduct, the Attorney General or his designee may certify
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that the employee’s acts were within the scope of employment, in which case the
claim “shall be deemed an action against the United States,” the United States
“shall be substituted” as defendant in place of the employee, and the action “shall
proceed in the same manner as any action filed against the United States” under the
FTCA. 28 U.S.C. § 2679(d)(1), (4).
Here, a United States Attorney certified that Quiles was acting within the
scope of her employment with the IRS when she contacted Makozy about his tax
debt and attempted to collect on the debt. The government moved to substitute the
United States as defendant in Quiles’s place, and the district court granted that
motion. Makozy did not oppose the substitution in the district court, and he does
not raise the issue on appeal. Once the United States was substituted as defendant,
the district court had jurisdiction only if Markozy’s complaint stated claims for
which the United States has expressly waived its sovereign immunity. See, e.g.,
Mitchell, 463 U.S. at 212.
In his complaint and his proposed amended complaint, Makozy alleged that
Quiles and the IRS negligently damaged his credit and reputation by filing a lien
for a tax debt that had been discharged in bankruptcy, and that Quiles harassed him
and his wife by trying to collect that debt. The United States has not waived its
sovereign immunity for such claims through the FTCA. 28 U.S.C. § 2680(c). And
to the extent that Makozy attempted to state a claim for a refund of taxes, he failed
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to allege that he had met the statutory prerequisites for the government’s
conditional waiver of immunity for tax-refund claims. See 26 U.S.C. § 7422(a);
United States v. Clintwood Elkhorn Min. Co., 553 U.S. 1, 4–5 (2008).
Broadly construing his argument on appeal, Makozy contends that he stated
claims against Quiles and the IRS under the Equal Credit Opportunity Act (ECOA)
and the Constitution.1 We do not agree. Neither Makozy’s complaint nor his
proposed amended complaint mentioned the ECOA, which prohibits lenders from
discriminating against credit applicants, or alleged that Quiles or the IRS violated
any specific constitutional right. Although we construe the allegations in pro se
complaints liberally, “this leniency does not give a court license to serve as de
facto counsel for a party, or to rewrite an otherwise deficient pleading in order to
sustain an action.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168–69 (11th
Cir. 2014). We therefore find no reversible error in the district court’s dismissal of
Markozy’s claims against the federal defendants for lack of jurisdiction.
III.
We affirm the district court’s dismissal of Markozy’s complaint for lack of
jurisdiction. Because the district court lacked jurisdiction to consider the merits of
1
In his reply brief, Makozy also alleges that Quiles violated the Fair Credit Reporting Act. To
the extent that Makozy intends to argue that his complaint stated claims against Quiles or the IRS
under the Fair Credit Reporting Act that were not barred by sovereign immunity, he abandoned
that argument by failing to raise it in his opening brief on appeal. See Timson v. Sampson, 518
F.3d 870, 874 (11th Cir. 2008).
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Markozy’s claims, however, its judgment should have been entered without
prejudice. See Stalley ex rel. United States v. Orlando Reg’l Healthcare Sys., Inc.,
524 F.3d 1229, 1232 (11th Cir. 2008). We therefore modify the judgment below to
reflect that the dismissal is without prejudice. See 28 U.S.C. § 2106 (providing
that a federal appellate court “may affirm, modify, vacate, set aside or reverse any
judgment, decree, or order of a court lawfully brought before it for review”); see
also Crayton v. Callahan, 120 F.3d 1217, 1222 (11th Cir. 1997) (modifying district
court judgment to dismissal without prejudice).
AFFIRMED AS MODIFIED.
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