* The case is unanimously ordered submitted withoutoral argument

pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court g enerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 28 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALEX EVITT, JR., Plaintiff - Appellee, v. JACK R. DURLAND, JR., Defendant - Appellant. No. 00-6130 (D.C. No. 98-CV-1712-A) (Western District of Oklahoma)

ORDER AND JUDGMENT *

Before BALDOCK , HENRYand LUCERO , Circuit Judges.
Jack R. Durland, Jr., appearing pro se, appeals the district court’s denial of his motion to set aside a default judgment and the district court’s award of punitive damages against him. However, because we find the district court lacked subject matter jurisdiction, we dismiss the appeal pursuant to 28 U.S.C. § 1291.1 Durland’s motion to withdraw was based on Evitt’s alleged failure to

communicate with him. - 2 - This case involves two lawsuits filed by plaintiff- appellee Alex Evitt, Jr. In the first, Evitt sued his former attorney, Lewis Barber, Jr., in Oklahoma state court in April 1988. Evitt retained Durland to rep resent him in this action in December 1993. On January 11, 1996, Durland sent E vitt two letters stating that Durland had obtained a court order allowing him to withdraw as Evitt’s attorney 1 and that Evitt needed to attend a pretrial conferen ce scheduled less than a week later, respond to a pending motion for summary judg ment in less than two weeks, and attend a hearing on the summary judgment motionin three weeks. Evitt then filed a “Dismissal Without Prejudice” on January 16 , 1996, the day before the pretrial conference. ( R. Doc. 5 at 9.) At the pretrial conference, the state court found Evitt had been “derelict throughout the histo ry of this litigation,” held Evitt’s dismissal “of no legal force and effect,” d ismissed Evitt’s case with prejudice, entered judgment against Evitt on defend ant Barber’s cross-claim, and awarded Barber $5,000 plus costs of $399. (R. Doc. 12, Ex. A at 4-5.) Evitt filed the present action against Durland in J anuary 1999 in the United States District Court for the Western District of O klahoma. The first two counts of the complaint seek damages for breach of contrac t and fraudulent misrepresentation. For each of these causes of act ion, the complaint prays for- 3 -

damages of $33,596—$8,399 in actual damages and tre ble punitive damages of $25,197—and costs. Alleging Durland, as a licensedattorney, acted under color of state law in his dealings with Evitt, the third count of the complaint seeks $33,596 in damages under 28 U.S.C. § 1983 and costs . The complaint also seeks attorney’s fees. The parties dispute whether Evitt properly served D urland with the summons in the instant lawsuit; Durland claims he w as unaware of the suit until September 1999. In June 1999, the district court e ntered a default judgment against Durland. In that judgment, the court dismi ssed Evitt’s § 1983 claim as “insufficient on its face” and awarded actual damag es totaling $7,749 and punitive damages of $100,000, along with court cost s and post-judgment interest. (R. Doc. 12 at 1.) After claiming to have finally learned of Evitt’s action against him, Durland filed a motion to set aside the defaul t judgment in October 1999. The district court held an evidentiary hearing to d etermine whether there had been proper service and issued an order in March 2000 de nying Durland’s motion to set aside the default judgment. Durland appeals the di strict court’s denial of his motion to set aside the default judgment, as well a s the district court’s award of punitive damages. Although neither party raised or briefed the issue, Fed. R. Civ. P. 12(h)(3) requires federal courts to dismiss an action “[w]he never it appears by suggestion- 4 -

of the parties or otherwise that the court lacks ju risdiction of the subject matter.” See also Celli v. Shoell , 40 F.3d 324, 327 (10th Cir. 1994) (“Federal court s are courts of limited jurisdiction, and the presumptionis that they lack jurisdiction unless and until a plaintiff pleads sufficient fact s to establish it.” (citations omitted)); Basso v. Utah Power & Light Co. , 495 F.2d 906, 909 (10th Cir. 1974). Thus, even “[i]f the parties do not raise the quest ion” themselves, it is our duty to address the apparent lack of jurisdiction sua sponte, and we do so here. Tuck v. United Servs. Auto. Ass’n , 859 F.2d 842, 843 (10th Cir. 1988) (quoting Basso , 495 F.2d at 909); see also Penteco Corp., Ltd. Partnership–1985A v. Union Gas Sys., Inc. , 929 F.2d 1519 (10th Cir. 1991) (lack of jurisdict ion may not be “waived or jurisdiction be conferred by ‘consent, i naction, or stipulation’” (quoting Basso , 495 F.2d at 909)). Evitt’s complaint seeks to establish federal jurisd iction under 28 U.S.C. § 1331 by alleging a violation of 42 U.S.C. § 1983 and invoking supplemental jurisdiction over his state law claims pursuant to 28 U.S.C. § 1367(a). Evitt’s § 1983 claim is premised on his theory that Durland , as a licensed attorney, was acting “under color of statute, ordinance, regulati on, custom, or usage of the State of Oklahoma” when he represented Evitt in the priorlawsuit. (R. Doc. 5 at 3.) However, the proposition that a licensed attorney r epresenting a client is acting under color of law for purposes of § 1983 has been squarely rejected. See Polk- 5 -

County v. Dodson , 454 U.S. 312, 318-19 & nn.7 & 9 (1981); Lemmons v. Law Firm of Morris & Morris , 39 F.3d 264, 266 (10th Cir. 1994) (“The conduct o f retained counsel does not rise to the level of stat e action within the meaning of § 1983.” (citing Bilal v. Kaplan , 904 F.2d 14, 15 (8th Cir. 1990) ). The district judge recognized the hollowness of Evitt’s § 1983 c laim by dismissing it as “insufficient on its face,” but nevertheless implic itly retained supplemental jurisdiction over the remaining state law claims inawarding Evitt damages in the default judgment. (R. Doc. 12 at 1-2.) Although a district court has “the constitutional p ower to exercise supplemental jurisdiction over state claims even af ter a federal claim has been dismissed,” that is only true “provided the federal claim was not insubstantial from the outset.” United Int’l Holdings Inc. v. Wharf (Holdings) Ltd. , 210 F.3d 1207, 1220 (10th Cir. 2000) (citation omitted); see also Hagans v. Lavine , 415 U.S. 528, 536-43 (1974) (discussing the history of the insubstantiality doctrine). “A federal claim is insubstantial only if it is obv iously without merit or is wholly frivolous, or is clearly foreclosed by prior decisions of the Supreme Court.” Plott v. Griffiths , 938 F.2d 164, 167 (10th Cir. 1991) (internal quot ations and citations omitted). Here, Evitt’s § 1983 claim was both obvi ously without merit and foreclosed by the Supreme Court’s decision in Polk County . As a result, the2Thus, the fact that the district court awarded Ev itt $100,000 in punitive

damages is irrelevant to our analysis. - 6 - district court lacked the power to exercise supplem ental jurisdiction over the state law claims. We next consider whether this action could have bee n brought pursuant to the district court’s exercise of diversity jurisdiction under 28 U.S.C. § 1332. See
Lemmons , 39 F.3d at 266 (noting that no grounds existed fo r diversity jurisdiction after determining federal question jurisdiction was lacking under § 1983). Section 1332 requires the parties be “citizens of differentstates” and “the matter in controversy . . . exceed[] the sum or value of $75, 000 exclusive of interest and costs.” These requirements must be met at the time the action is filed; subsequent events do not affect jurisdiction. See Freeport-McMoRan, Inc. v. K N Energy, Inc. , 498 U.S. 426, 428 (1990) (noting the “well-establ ished rule that diversity of citizenship is assessed at the time the action is filed”). 2“[I]f, from the face of the pleadings, it is apparent, to a legal certainty, th at the plaintiff cannot recover the amount claimed or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that am ount, . . . the suit will be dismissed.” Miera v. Dairyland Ins. Co. , 143 F.3d 1337, 1340 (10th Cir. 1998) (quoting St. Paul Mercury Indem. Co. v. Reb Cab Co. , 303 U.S. 283, 289 (1938)).- 7 -

The party asserting jurisdiction bears the burden of proving it. See State Farm Mut. Auto. Ins. Co. v. Narvaez , 149 F.3d 1269, 1271 (10th Cir. 1998). While the record indicates the parties are citizens of different states—Evitt is a citizen of Oklahoma and Durland became a citiz en of Mississippi twelve days before Evitt’s federal complaint was filed ( see R. Doc. 5 at 1; R. Doc. 20, Ex. A ¶ 1)—Evitt’s complaint does not establish that the amount in controversy exceeds $75,000. Evitt’s complaint seeks damages “in excess of $100, 788.” (R. Doc. 5 at 3.) However, Evitt’s § 1983 claim cannot be counted tow ards the jurisdictional amount because, as discussed above, “it is apparentto a legal certainty” that Evitt could not recover on this claim. Miera , 143 F.3d at 1340 (quoting St. Paul Mercury Indem. Co. , 303 U.S. at 289); see also Polk County , 454 U.S. at 318-19 & nn.7 & 9; Lemmons , 39 F.3d at 266. As a result of the defects in Ev itt’s complaint, the true amount in controversy at the ti me of the complaint is not the $100,788 Evitt pleaded, but rather that number redu ced by the $33,596 Evitt sought under his § 1983 claim. Thus, the true amou nt in controversy is only $67,192.3 Throughout his complaint, Evitt cites Okla. Stat. Ann. tit. 23, § 9 to

support his claims for punitive damages. However, this statute was repealed in 1995 and replaced with a somewhat similar statute, Okla. Stat. Ann. tit. 23, § 9.1 (West Supp. 2000). Thus, we construe Evitt’s compl aint as seeking punitive damages under the current Oklahoma statute authoriz ing them. - 8 - Finally, we note three additional points bearing onthe amount in controversy. First, Evitt’s complaint seeks punitive damages. 3 Although under some circumstances Oklahoma law places no cap on a punitive damages award,

see Okla. Stat. Ann. tit. 23, § 9.1(D) (West Supp. 200 0), Evitt has limited the amount of punitive damages he seeks under his breac h of contract claim to “treble damages,” (R. Doc. 5 at 2), and has stated the tota l award requested, including punitives, in his complaint. Because “the sum clai med by the plaintiff controls if the claim is apparently made in good faith,” the am ount in controversy attributable to punitive damages from Evitt’s breach of contractclaim is limited to the amount explicitly stated in Evitt’s complaint. State Farm Mut. Auto. Ins. Co. , 149 F.3d at 1271 (quoting St. Paul Mercury Indem. Co. , 303 U.S. at 288). Second, Evitt’s claim for fraudulent misrepresentation seeks damage s “in excess of” $33,596, which includes treble punitive damages. (R. Doc. 5 at 3.) However, this Circuit has held a claim for damages “in excess of” an amou nt that is itself less than the jurisdictional minimum is not sufficient to confer jurisdiction. See Laughlin v. Kmart Corp. , 50 F.3d, 871, 873 (10th Cir. 1995). Third, Evittseeks attorney’s fees. “[W]hen a statute permits recovery of attorn ey’s fees[,] a reasonable- 9 -

estimate may be used in calculating the necessary j urisdictional amount . . . .” Miera , 143 F.3d at 1340 (citing Missouri State Life Ins. Co. v. Jones , 290 U.S. 199, 202 (1933)). Here, however, Evitt’s complaintcites no statute authorizing attorney’s fees. For these reasons, Evitt’s compla int does not establish that the amount in controversy exceeds $75,000 and is thus i nsufficient to permit diversity jurisdiction. Because we find that the federal courts lack subjec t matter jurisdiction over this action, we DISMISS the appeal and REMAND to the district court to vacate the default judgment and dismiss this action. The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge