[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
NOVEMBER 29, 2011
No. 11-12859 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:10-cv-03968-WBH
DOROTHEA CORNELIUS,
ALI S. MUHAMMAD,
Plaintiffs - Appellants,
versus
U.S. BANK NATIONAL ASSOCIATION,
as Trustee for the structured Asset Securities
Corporation Mortgage Pass-Through Certificates,
Series 2006-BC6,
AMERICAN HOME MORTGAGE SERVICING, INC.,
MCCURDY & CANDLER, LLC,
MCCURDY & CANDLER BANKRUPTCY LLC,
ANTHONY DEMARLO, et al.,
lllllllllllllllllllll Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(November 29, 2011)
Before CARNES, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Dorothea Cornelius and Ali S. Muhammad, proceeding pro se, appeal the
district court’s sua sponte dismissal of their action under Federal Rule of Civil
Procedure 12(h)(3) for lack of subject matter jurisdiction. Cornelius and
Muhammad contend that the district court either misapplied the diversity
jurisdiction statute, 28 U.S.C. § 1332, or should have cured any lack of diversity
by dismissing any nondiverse defendants they named. In the alternative, they
argue that their complaint presents a federal question. After review, we affirm.
I.
“We review de novo the district court’s dismissal for lack of subject matter
jurisdiction, construing the complaint in the light most favorable to the plaintiff
and accepting all well-pled facts alleged in the complaint as true.” Quail Cruises
Ship Mgmt. Ltd. v. Agencia de Viagens CVC Tur Limitada, 645 F.3d 1307, 1309
n.1 (11th Cir. 2011). Pleadings filed by pro se litigants are given liberal
construction, but “we nevertheless have required them to conform to procedural
rules.” Moton v. Cowart, 631 F.3d 1337, 1341 n.2 (11th Cir. 2011) (quotation
omitted). Plaintiffs must “affirmatively allege facts demonstrating the existence of
jurisdiction.” Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994); see also
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Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1273 (11th Cir. 2000) (“It is the
plaintiff’s burden . . . to allege with sufficient particularity the facts creating
jurisdiction . . . .” (quotation omitted)).
Federal courts have limited jurisdiction and are “obligated to inquire into
subject-matter jurisdiction sua sponte whenever it may be lacking.” Bochese v.
Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir. 2005). If at any time during the
proceedings the court determines that it lacks subject matter jurisdiction, “the
court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). A court may, however,
upon a motion or on its own initiative, drop dispensable parties whose presence in
a case may divest the court of jurisdiction. Fed. R. Civ. P. 21; Grupo Dataflux v.
Atlas Global Group, L.P., 541 U.S. 567, 572-73 (2004).
Jurisdiction under 28 U.S.C. § 1332 based upon the parties’ diversity of
citizenship “requires complete diversity—every plaintiff must be diverse from
every defendant.” Palmer v. Hosp. Auth. of Randolph Cnty., 22 F.3d 1559, 1564
(11th Cir. 1994). Cornelius and Muhammad’s complaint plainly shows that both
they and several of the defendants they sued are citizens of the state of Georgia, as
the district court observed.1 And we have indicated that a district court’s authority
1
Cornelius and Muhammad’s contention that the district court ignored 28 U.S.C.
§ 1332(c)(1) misunderstands the relationship of that subsection and § 1332(a). Subsection (c)(1)
explains how citizenship, as used in subsection (a), is determined for corporate entities.
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to dismiss a party who spoils complete diversity is permissive and discretionary.
Fritz v. American Home Shield Corp., 751 F.2d 1152, 1154 (11th Cir. 1985); see
also Caterpillar Inc. v. Lewis, 519 U.S. 61, 76 (1996) (stating that a district court
is better positioned to determine whether dismissal of a nondiverse party is
appropriate). Cornelius and Muhammad never moved to dismiss the defendants
with whom they share citizenship, nor do they offer any explanation as to how the
district court’s failure to do so of its own accord constituted an abuse of discretion
under Rule 21.
II.
The district court also found that the complaint lacked any substantial
federal question sufficient to invoke its jurisdiction under 12 U.S.C. § 1331.
Under that provision, a federal court will have jurisdiction only when the
plaintiff’s cause of action is conferred by federal law or when there is some
“contested[, substantial] federal issue” and the exercise of jurisdiction is
“consistent with congressional judgment about the sound division of labor
between state and federal courts . . . .” Grable & Sons Metal Prods., Inc. v. Darue
Eng’g & Mfg., 545 U.S. 308, 313 (2005). The mere presence of a federally
Likewise, the district court was not required to examine the applicability of § 1332(a)(2)-(3), as
Cornelius and Muhammad now assert, because their allegations do not involve citizens of a
foreign nation.
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regulated defendant does not of itself raise a substantial federal question. E.g.,
First Fed. Sav. & Loan Ass’n of Lake Worth v. Brown, 707 F.2d 1217, 1220 (11th
Cir. 1983). Except for the bare mention of “RESPA,” which presumably refers to
the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601-2617, there is no
reference to federal law in Cornelius and Muhammad’s complaint. And the
complaint does not indicate what portion of that Act Cornelius and Muhammad
claim was violated or what factual allegations they contend would constitute a
violation. Even construing their complaint liberally, Cornelius and Muhammad
failed to allege facts showing a substantial federal question.2
III.
Accordingly, we affirm the district court’s dismissal of this action for lack
of subject matter jurisdiction.
AFFIRMED.
2
We also decline to address the regulatory violations that Cornelius and Muhammad have
alleged for the first time on appeal. Even a plaintiff proceeding pro se may not amend its
complaint by argument in an appellate brief. See Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998). Cf. Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314-15 (11th
Cir. 2004 (stating that a plaintiff may not “amend [her] complaint through argument in a brief
opposing summary judgment”).
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