FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Aug. 21, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-10213

Non-Argument Calendar

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D. C. Docket No. 07-80402-CV-DMM

KELVIN RANCE, 

Plaintiff-Appellant, 

versus 

D.R. HORTON, INC., 

CNA INSURANCE, 

Defendants-Appellees. 

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Appeal from the United States District Court

for the Southern District of Florida

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(August 21, 2008)

Before DUBINA, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
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Appellant Kelvin Rance (“Rance”) appeals the district court’s grant of the

defendants’, D.R. Horton Inc.’s (“Horton”) and CNA ClaimsPlus’s (“CNA”),

motions to dismiss his complaint, which alleged discrimination under the

Americans with Disabilities Act (“ADA”) and breach of contract, and the district

court’s denial of his motion to reconsider pursuant to Fed.R.Civ.P. 59(e). On

appeal, Rance argues that the district court had diversity jurisdiction over his

contract claim because: (1) he alleged damages over $75,000 in his complaint; (2)

awards in other similar cases for back and knee injuries range from $25,000 to

$155,000; (3) the loss of income that he suffered because of the defendants’

breach of contract, calculated from the date of his injury, is $126,185.28; and (4)

he also could include loss of medical and life insurance, emotional suffering, and

punitive damages to his claim. Rance also argues that his ADA claim against

CNA was cognizable, because CNA, as an agent of Horton, is an “employer”

under the statute. 

I.

A. The ADA Claim

When a party fails to provide arguments on the merits of an issue and makes

only passing reference to it in the initial brief, the argument is deemed waived, and
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we need not address it. United States v. Gupta, 463 F.3d 1182, 1195 (11th Cir.

2006), cert. denied, 127 S. Ct. 2446 (2007). 

Because Rance only argues that CNA is an “employer” as defined by the

ADA and makes no arguments regarding the dismissal of his ADA claim for

failure to exhaust administrative remedies, we conclude that he has abandoned this

issue on appeal.

B. The Breach of Contract Claim

We review a district court's dismissal of a complaint for lack of subject

matter jurisdiction de novo. Federated Mut. Ins. Co. v. McKinnon Motors, LLC,

329 F.3d 805, 807 (11th Cir. 2003). A federal court has both the power and the

obligation to inquire, at any time, into jurisdiction whenever it is possible that

jurisdiction might not exist. Fitzgerald v. Seaboard Sys. R.R., Inc., 760 F.2d 1249,

1251 (11th Cir. 1985). “Federal courts are courts of limited jurisdiction. In order to

invoke a federal court's diversity jurisdiction, a plaintiff must claim, among other

things, that the amount in controversy exceeds $75,000.” Federated Mut. Ins., 329

F.3d at 807 (quotation and citation omitted); see 28 U.S.C. § 1332(a). 

“Facial attacks” on the complaint under Fed.R.Civ.P. 12(b)(1), for lack of

subject matter jurisdiction, require the district court, as it does in the case of a

Rule12(b)(6) motion, “to look and see if [the] plaintiff has sufficiently alleged a
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basis of subject matter jurisdiction, and the allegations in his complaint are taken

as true for the purposes of the motion.” Lawrence v. Dunbar, 919 F.2d 1525,

1528-29 (11th Cir. 1990). We have held, however, that:

[w]hile Rule 12(b)(6) does not permit dismissal of a well-pleaded

complaint simply because it strikes a savvy judge that actual proof of

those facts is improbable, the factual allegations must be enough to

raise a right to relief above the speculative level.

Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quotations and

citations omittted). A complaint must contain “enough factual matter (taken as

true) to suggest the required element . . . It is sufficient if the complaint succeeds

in identifying facts that are suggestive enough to render the element plausible.”

Id. at 1295-96 (brackets, quotations and citations omitted).

Factual attacks, on the other hand, challenge the existence of subject

matter jurisdiction in fact, irrespective of the pleadings, and matters

outside the pleadings, such as testimony and affidavits are considered.

. . . [T]he district court has the power to dismiss for lack of subject

matter jurisdiction on any of three separate bases: (1) the complaint

alone; (2) the complaint supplemented by undisputed facts evidenced

in the record; or (3) the complaint supplemented by undisputed facts

plus the court's resolution of disputed facts. 

McElmurray v. Consol. Gov't of Augusta-Richmond County, 501 F.3d 1244, 1251

(11th Cir. 2007) (internal quotations and citations omitted). In a factual challenge,

the district court must provide the plaintiff with an opportunity for discovery and
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for a hearing that “is appropriate to the nature of the motion to dismiss.” 

Williamson v. Tucker, 645 F.2d 404, 414 (5th Cir. 1981).

“Dismissal of a case brought under 28 U.S.C. § 1332 is proper where the

pleadings make it clear to a legal certainty that the claim is really for less than the

jurisdictional amount.” Leonard v. Enterprise Rent a Car, 279 F.3d 967, 972 (11th

Cir. 2002) (citation omitted). “However, where jurisdiction is based on a claim for

indeterminate damages, the . . . ‘legal certainty’ test gives way, and the party

seeking to invoke federal jurisdiction bears the burden of proving by a

preponderance of the evidence that the claim on which it is basing jurisdiction

meets the jurisdictional minimum.” Federated Mut. Ins., 329 F.3d at 807

(citations omitted). 

Because the record demonstrates that the allegations in Rance’s complaint

regarding the denial of medical authorization and disability benefits were facially

sufficient to allege the requisite amount in controversy, the district court should

have allowed discovery and a hearing. Accordingly, we vacate the district court’s

order and remand the case for further consideration. 

II.

Rance next argues that the district court abused its discretion in construing

his motion to reconsider, which was filed pursuant to Fed.R.Civ.P. 59(e) as a
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Fed.R.Civ.P. 60(b)(6) motion. He states that he made his motion to reconsider

because: (1) the trial court dismissed his complaint and closed his case without

giving him an opportunity to amend his complaint; and (2) he needed to alert the

trial court as to new causes of action. He argues that the district court caused him

injury by construing his Rule 59(e) motion, which he timely filed within ten days

of the challenged decision, as a Rule 60(b)(6) motion because the standards of

review for the two motions differ. 

We review the denial of a Rule 59(e) motion for an abuse of discretion.

Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir. 1997). Any post-judgment

motion to alter or amend the judgment served within ten days after the entry of the

judgment, other than a motion to correct purely clerical errors, is within the scope

of Rule 59(e) regardless of its label. Harcon Barge Co., Inc. v. D&G Boat

Rentals, Inc., 784 F.2d 665, 667 (5th Cir. 1986); see also, United States v. Eastern

Air Lines, Inc., 792 F.2d 1560, 1562 (11th Cir. 1986). A motion requesting the

setting aside of summary judgment and a trial on the merits of the case is best

characterized as a Rule 59(e) motion. Mays v. United States Postal Serv., 122

F.3d at 46. “[Rule 59(e)] [m]otions to amend should not be used to raise

arguments which could, and should, have been made before the judgment was

issued. . . . Denial of a motion to amend is especially soundly exercised when the
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party has failed to articulate any reason for the failure to raise the issue at an

earlier stage in the litigation.” O'Neal v. Kennamer, 958 F.2d 1044, 1047 (11th

Cir. 1992) (quotations and citations omitted).

Because the arguments in Rance’s motion to reconsider raised new claims,

were not relevant to the dismissal of his case, and were unsupported by any

logical, legal, or factual explanation, we conclude that the district court did not

abuse its discretion in denying his motion to reconsider. Accordingly, we affirm

that order.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.