Nicolas S. Laurent v. U.S. Trustee , 196 F. App'x 740 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10516 JULY 14, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-22471-CV-AJ
NICOLAS S. LAURENT, Guardian
for Jeffrey S. Laurent,
Arthur S. Laurent, Nathalie S.
Laurent, Barbara S. Laurent,
Plaintiff-Appellant,
versus
UNITED STATES TRUSTEE,
Nancy N. Herkert,
BANK ATLANTIC F.S.B.,
JOANNE M. CHIN, Vice President
for Bank Atlantic Federal
Savings Bank #810,
ELSA C. MACHADO, Property Tax Collector,
MIAMI-DADE COUNTY PROPERTY TAX COLLECTOR,
RACHEL BAUM, Finance Director,
MIAMI-DADE COUNTY COMMISSIONERS, Miami
Dade County, FL,
HUGO MARITNEZ,
STEVEN N. ROSENTHAL, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 14, 2006)
Before HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Nicholas S. Laurent, proceeding pro se, appeals the district court’s dismissal
of his amended complaint against certain state and private defendants. After
review, we affirm.
I. BACKGROUND
Laurent, a resident of Florida, filed this action pro se in the United States
District Court for the Southern District of Florida seeking relief based on events
that occurred during the pendency of a Chapter 13 bankruptcy action commenced
by Laurent in the Southern District of Florida. Laurent’s amended complaint
named as defendants Nancy N. Herkert, United States Bankruptcy Trustee; Joanne
M. Chin, the vice-president for BankAtlantic Federal Savings Bank #810;
BankAtlantic Federal Savings Bank; Hugo A. Martinez, a mortgagor who
foreclosed on Laurent’s home; Stephen N. Rosenthal, Martinez’s attorney; Elsa C.
Machado, a property tax collector; Rachel Baum, a county finance director; the
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Miami-Dade County Property Tax Collector; and the Miami-Dade County Board
of County Commissioners. Laurent alleged that all defendants were either
residents of Florida or authorized to do business in Florida.
The district court dismissed without prejudice Laurent’s original complaint
for failing to comply with Federal Rule of Civil Procedure 8(a), for failing to
obtain permission to sue the bankruptcy trustee and for lack of diversity
jurisdiction. The district court sua sponte granted Laurent leave to file an amended
complaint, which Laurent did. Laurent’s amended complaint named the same
defendants and asserted claims of fraud (count 1), misconduct (count 2), breach of
contract (count 3), and misrepresentation (count 4). Within the body of the
amended complaint, Laurent also alleged a number of federal criminal violations,
and a violation of an automatic stay in the bankruptcy proceedings.
Upon the defendants’ motions, the district court dismissed the amended
complaint without prejudice as to all parties for lack of subject matter jurisdiction.1
The district court concluded that Laurent’s claims were either criminal claims for
which there was no private cause of action or state tort claims for which there was
no diversity of citizenship. The district court noted that Laurent raised one
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The district court alternatively dismissed the amended complaint for failing to: (1)
comply with Rule 8(a); (2) obtain permission to sue the bankruptcy trustee; (3) state claims upon
which relief could be granted; (4) plead fraud with particularity; and (5) provide a more definite
statement.
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possible federal claim: that Chin had violated the automatic stay requirement of 11
U.S.C. § 362(a). However, as to that potential claim, the district court concluded
that the amended complaint failed to state a claim for which relief could be granted
because Laurent admitted that the bankruptcy court had granted an exception to the
stay, thus making a violation of the stay impossible.2 Finally, the district court
determined that the claim against bankruptcy trustee Hekert failed because Laurent
had not first received leave from the bankruptcy court to sue the trustee.
Although the district court dismissed the amended complaint without
prejudice, the district court denied leave to amend and directed Laurent to seek
leave, as required by Federal Rule of Civil Procedure 15(a), before filing a second
amended complaint, as follows:
I am not dismissing with prejudice at this time, though I am
tempted to do so. At the same time, I am not granting Mr. Laurent
leave to file another amended complaint. If Mr. Laurent wants to file
another amended complaint, he must seek and obtain leave of court to
do so as required by Rule 15(a). Any motion for leave to file must be
accompanied by the second amended complaint. . . .
Any request to file a second amended complaint must be filed
by January 13, 2006.
Laurent did not seek leave to file a second amended complaint. Instead, Laurent
filed this appeal.
2
Assuming alternatively that this potential claim created federal question jurisdiction, the
district court declined to exercise supplemental jurisdiction over the state law claims.
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II. DISCUSSION
On appeal, Laurent argues that the district court erred by dismissing his
complaint for lack of subject matter jurisdiction. We review de novo the district
court’s dismissal of a complaint for lack of subject matter jurisdiction. Samco
Global Arms, Inc. v. Arita, 395 F.3d 1212, 1214 n.4 (11 th Cir. 2005). In order to
have subject matter jurisdiction, a district court must be able to exercise either
diversity jurisdiction or federal question jurisdiction. 28 U.S.C. §§ 1331, 1332.
Diversity jurisdiction exists if “the matter in controversy exceeds the sum or value
of $75,000, exclusive of interest and costs, and is between . . . citizens of different
States.” 28 U.S.C. § 1332(a)(1). As for federal question jurisdiction, 28 U.S.C.
§ 1331 provides that “[t]he district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.” 28
U.S.C. § 1331.
Here, no diversity jurisdiction existed as all the parties were Florida citizens.
Furthermore, the district court correctly determined that no federal question
jurisdiction existed because Laurent’s claims were based on state common law
torts, specifically the torts of fraud, breach of contract, misconduct, and
misrepresentation. See 28 U.S.C. § 1331.3 The district court also lacked subject
3
As the district court correctly noted, Laurent’s only potential federal claim, asserted
under 11 U.S.C. § 362(h), is not viable because Laurent alleged in his amended complaint that
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matter jurisdiction over Herkert, as Chapter 13 Trustee, because Laurent failed to
get permission from the bankruptcy court to sue her. See Carter v. Rodgers, 220
F.3d 1249, 1252 (11 th Cir. 2000) (concluding that a federal district court has no
subject matter jurisdiction over a suit against a Chapter 13 Bankruptcy Trustee
unless the plaintiff first obtains permission to proceed from the bankruptcy court).
Though Laurent argues that he did receive permission to file suit, he made no such
allegation in his amended complaint and did not seek leave from the district court
to amend that complaint to add such an allegation.
Laurent additionally argues that the district court abused its discretion in not
sua sponte granting him leave to file a second amended complaint. A party to a
civil action may amend its pleading once as a matter of course before a responsive
pleading is served. Fed. R. Civ. P. 15(a). Otherwise, a party must obtain leave
from the court to amend a pleading, though “leave shall be freely given when
the bankruptcy court gave the parties in the current suit an exemption from the stay.
Consequently, to the extent the amended complaint alleged a claim under 11 U.S.C. § 362(h), the
district court properly dismissed it for failure to state a claim for which relief can be granted.
Furthermore, given Laurent’s admission in his amended complaint, the claim was wholly
insubstantial and frivolous and properly dismissed for lack of subject matter jurisdiction. See
Blue Cross & Blue Shield of Ala. v. Sanders, 138 F.3d 1347, 1351-52 (11th Cir. 1998)
(explaining that a federal question claim may be dismissed for lack of subject matter jurisdiction
if the “‘claim is wholly insubstantial and frivolous’”) (citation omitted). Moreover, the district
court did not abuse its discretion in declining to exercise supplemental jurisdiction over
Laurent’s state law claims once it determined that it lacked jurisdiction to entertain the potential
§ 362(h) claim. See Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088-89 (11th Cir. 2004).
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justice so requires.” Id. We review a district court’s denial of leave to amend for
clear abuse of discretion. Andrx Pharm. v. Elan Corp., PLC, 421 F.3d 1227, 1236
(11 th Cir. 2005). “Leave may be denied because of undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, [or] futility of amendment.” Id. (citation and
quotations omitted).
The district court did not abuse its discretion by failing to give sua sponte
Laurent leave to file a second amended complaint. Responsive pleadings had been
filed in Laurent’s action. Therefore, Laurent was required by Rule 15(a) to obtain
leave from the district court before filing a second amended complaint.
Furthermore, the district court had already given Laurent one opportunity to amend
his complaint and was not required to give him a second chance. Thus, the district
court did not abuse its discretion in dismissing Laurent’s amended complaint
without prejudice.
Finally, the district court’s dismissal order even advised Laurent that he
could seek leave to file a second amended complaint. However, Laurent chose to
appeal the dismissal order and failed to seek leave to file a second amended
complaint. If Laurent is now barred from amending his complaint, it is not because
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of a clear abuse of discretion on the part of the district court, but due to his own
failure to make the motion required by Rule 15(a). See Andrx Pharm., 421 F.3d at
1236.
Accordingly, we affirm the district court’s dismissal of Laurent’s amended
complaint.
AFFIRMED.
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