1

 Plaintiff has also sued Lexus of North America/Toyota Motor Sales USA. However, it

does not appear that this Defendant has been served. 

IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MICHAEL HENRY SMITH, )

)

Plaintiff, )

)

vs. ) CIVIL ACTION 09-00654-CG-N

)

BOBBY LEBARRY HILL, et al., )

)

Defendants. )

REPORT AND RECOMMENDATION

This action has been referred to the undersigned for a report and recommendation

pursuant to 28 U.S.C. § 636(b)(1)(B) and is before the Court on a Motion to Dismiss (doc. 48)

filed by Thomas P. Ollinger, a Defendant herein. After consideration of the pleadings, and for

the reasons set forth below, it is recommended that Defendant Ollinger’s Motion to Dismiss be

GRANTED. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Michael Henry Smith, commenced the present action against the above-named

Defendants on October 6, 2009 .1

 (Doc. 1). In his Complaint, Plaintiff alleges that, on July 24,

2008, at approximately 9:40 a.m., he was injured when Defendant Bobby Hill, who was driving

Anne and Thomas McArthur’s Lexus automobile, struck the rear tire of his bicycle as he rode

through a cross walk at a traffic signal. (Doc. 1 at 5). According to Plaintiff, Defendant Hill

continued rolling past the stop bar painted on the pavement at the intersection, crushing the rear

wheel of Plaintiff’s bicycle and “stopp[ing] just before knocking [Plaintiff] to the ground.” (Id.

at 5). Following the accident, Defendant Hill got out of the vehicle, inspected the bicycle and

Case 1:09-cv-00654-CG-N Document 53 Filed 01/25/10 Page 1 of 7
2

 On December 29, 2009 plaintiff filed a motion requesting a thirty day extension of time

in which to file objections to an earlier Report and Recommendation entered by the undersigned

on December 18, 2009 recommending that similar motions to dismiss filed by Defendants, W.R.

Umeck, Zurich North American Insurance Company, Bobby Hill, Craig Matthews, Springhill

Toyota/Lexus of Mobile, Thomas McArthur, and Anne McArthur be granted. (See Docs. 47, 50)

Plaintiff’s motion for extension of time to file his objections was granted on December 30, 2009. 

(Doc. 52) 

2

the car, and then left. (Id.). Hill was later charged with leaving the scene of an accident. (Id. at

5, 10). 

In his Complaint, Plaintiff sues Defendants for conspiracy, fraud, bad faith, and

negligence, which he describes as: “the fraudulent denial of an insurance claim, conspiracy to

defraud, and for the arbitrary and capricious refusal to pay an insurance claim that the defendants

knew well that they had an obligation to pay and the request for damages caused by the negligent

operation of a motor vehicle.” (Id. at 1). Plaintiff seeks $1,000,000.00 from each Defendant for

his “losses, damages, pain, suffering, emotional distress and harms to [his] life and credit rating.” 

(Id. at 26). 

On December 21, 2009, Defendant Ollinger filed his Motion to Dismiss Plaintiff’s action

under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. (Doc. 48). 

By Order entered December 22, 2009 (doc. 49), Plaintiff was directed to file his response in

opposition to this Motion to Dismiss by January 5, 2010. Plaintiff has neither filed any response

nor sought an extension of time within which to file such a response.2

 Defendant Ollinger’s

motion is, therefore, now before the Court unopposed.

II. RULE 12(b)(1) MOTION TO DISMISS STANDARD

Federal courts are courts of limited subject matter jurisdiction and have the power to

decide only certain types of cases. Beavers v. A.O. Smith Elec. Prods. Co., 265 Fed. Appx. 772,

777 (11th Cir. 2008) (citing Morrison v. Allstate Indemnity Co., 228 F.3d 1255 (11th Cir. 2000)).

Case 1:09-cv-00654-CG-N Document 53 Filed 01/25/10 Page 2 of 7
3

While Article III of the Constitution sets the outer boundaries of

that power, it also vests Congress with the discretion to determine

whether, and to what extent, that power may be exercised by lower

federal courts. Consequently, lower federal courts are empowered

to hear only cases for which there has been a congressional grant

of jurisdiction, and once a court determines that there has been no

grant that covers a particular case, the court’s sole remaining act is

to dismiss the case for lack of jurisdiction.

Id. (quoting Morrison, 228 F.3d at 1260-61).

“‘A federal court not only has the power but also the obligation at any time to inquire

into jurisdiction whenever the possibility that jurisdiction does not exist arises.’” Id. (quoting

Johansen v. Combustion Eng’g, Inc., 170 F.3d 1320, 1328 n. 4 (11th Cir. 1999)). “‘If the court

determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the

action.’” Id. (quoting Fed. R. Civ. P. 12(h)(3); Morrison, 228 F.3d at 1261).

III. DISCUSSION

Plaintiff asserts in his Complaint that jurisdiction over his claims is conferred upon this

Court by virtue of 28 U.S.C. § 1332, diversity of citizenship, and 28 U.S.C. § 1331, federal

question jurisdiction. (Doc. 1 at 3). Turning, first, to Plaintiff’s assertion of diversity

jurisdiction under § 1332, “[d]iversity jurisdiction exists where the suit is between citizens of

different states and the amount in controversy exceeds the statutorily prescribed amount, in this

case $75,000.” Beavers, 265 Fed. Appx. at 777 (citations omitted). “Diversity jurisdiction

‘requires complete diversity-every plaintiff must be diverse from every defendant.’” Id. (quoting

Palmer v. Hosp. Auth., 22 F.3d 1559, 1564 (11th Cir. 1994)). “‘Citizenship, not residence, is the

key fact that must be alleged in the complaint to establish diversity for a natural person.’” Id.

(citations omitted). 

Because Plaintiff is proceeding pro se, the Court liberally construes his allegations. See

Harris v. United Auto. Ins. Group, Inc., 579 F.3d 1227, 1231 n.2 (11th Cir. 2009). The foregoing

Case 1:09-cv-00654-CG-N Document 53 Filed 01/25/10 Page 3 of 7
3

 With respect to Defendant Bobby Hill, Plaintiff adds that Hill is employed in Mobile,

Alabama, and has an Alabama driver’s license. (Doc. 1 at 22, 27).

4

 28 U.S.C. § 1332(c) provides:

(1) a corporation shall be deemed to be a citizen of any State by

which it is incorporated and of the State where it has its principal

place of business, except that in any direct action against the

insurer of a policy or contract of liability insurance, whether

incorporated or unincorporated, to which action the insured is not

joined as a party-defendant, such insurer shall be deemed a citizen

of the State of which the insured is a citizen, as well as of any State

by which the insurer has been incorporated and of the State where

it has its principal place of business. (Emphasis added).

While Plaintiff alleges that the corporate defendants are doing business in Alabama, it is

indiscernible from Plaintiff’s Complaint whether they are incorporated in the State of Alabama

or have their principal places of business in Alabama.

4

notwithstanding, Plaintiff still has the burden of “‘affirmatively alleg[ing] facts demonstrating

the existence of jurisdiction.’” Beavers, 265 Fed. Appx. at 777 (citations omitted). 

In his Complaint, Plaintiff completely fails to address the citizenship of the parties. 

Rather, Plaintiff simply alleges that he, as well as Defendants Bobby Hill3

 and Thomas and Anne

McArthur, reside in Mobile, Alabama. (Doc. 1 at 6-7, 26-28). Plaintiff also alleges simply that

Defendant Ollinger is “an attorney practicing law in Mobile, Alabama” (Id. at 21) who

“represented the Lexus Dealer” (Id. at 12) and has his office located in Mobile, Alabama (Id. at

28). Similarly, Plaintiff fails to allege any facts related to the citizenship of Defendants Craig

Mathews, W.R. Umeck, Springhill Toyota/Lexus of Mobile, or Zurich North American

Insurance Company.4

 (Id. at 11, 16, 24, 29). Far from establishing diversity, Plaintiff’s

allegations, if anything, suggest that he and several of the Defendants may all be citizens of the

State of Alabama, which would destroy diversity. In any event, Plaintiff has failed to meet his

burden of establishing diversity of citizenship jurisdiction under § 1332. 

Similarly, with respect to federal question jurisdiction under § 1331, Plaintiff has failed

Case 1:09-cv-00654-CG-N Document 53 Filed 01/25/10 Page 4 of 7
5

to establish that this action “aris[es] under the Constitution, laws, or treaties of the United

States.” 28 U.S.C. § 1331. To the contrary, Plaintiff’s Complaint alleges, at most, state law

causes of action for fraud, conspiracy, bad faith, and negligence. (Doc. 1 at 1). 

As stated above, Plaintiff has not filed an opposition to Defendant’s motion to dismiss or

sought an extension of time within which to do so. To the extent Plaintiff intended to respond in

the manner he responded (doc. 24) to the two similar motions to dismiss filed previously by the

other defendants in this action (docs. 17, 35), the undersigned would apply the same rationale

regarding Plaintiff’s argument as set forth in the Report and Recommendation entered on

December 18, 2009 (doc. 47 at 5-7) and would nonetheless recommend that Defendant

Ollinger’s Motion to Dismiss be granted.

IV. CONCLUSION

Based upon the foregoing, it is recommended that Defendant Ollinger’s Motion to

Dismiss (Doc. 48) be granted and that this action be dismissed without prejudice pursuant to

Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. 

The instructions which follow the undersigned’s signature contain important information

regarding objections to the report and recommendation of the Magistrate Judge.

DONE this 25th day of January, 2010. 

/s/ Katherine P. Nelson 

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00654-CG-N Document 53 Filed 01/25/10 Page 5 of 7
6

Case 1:09-cv-00654-CG-N Document 53 Filed 01/25/10 Page 6 of 7
7

MAGISTRATE JUDGE’ S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or anything in it must, within

fourteen days of the date of service of this document, file specific written objections with the

clerk of court. Failure to do so will bar a de novo determination by the district judge of anything

in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles

v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for challenging

the findings and recommendations of the magistrate judge is set out in more detail in SD ALA

LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate judge in a dispositive

matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a "Statement of

Objection to Magistrate Judge’s Recommendation" within [fourteen] days after being

served with a copy of the recommendation, unless a different time is established by order. 

The statement of objection shall specify those portions of the recommendation to which

objection is made and the basis for the objection. The objecting party shall submit to the

district judge, at the time of filing the objection, a brief setting forth the party’s

arguments that the magistrate judge’s recommendation should be reviewed de novo and a

different disposition made. It is insufficient to submit only a copy of the original brief

submitted to the magistrate judge, although a copy of the original brief may be submitted

or referred to and incorporated into the brief in support of the objection. Failure to

submit a brief in support of the objection may be deemed an abandonment of the

objection.

A magistrate judge’s recommendation cannot be appealed to a Court of Appeals; only the

district judge’s order or judgment can be appealed.

2. Transcript (applicable where proceedings tape recorded). Pursuant to 28 U.S.C. § 1915

and Fed. R. Civ. P. 72(b), the magistrate judge finds that the tapes and original records in this

action are adequate for purposes of review. Any party planning to object to this

recommendation, but unable to pay the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required before the United States will pay the cost

of the transcript.

DONE this 25th day of January, 2010. 

/s/ Katherine P. Nelson 

UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00654-CG-N Document 53 Filed 01/25/10 Page 7 of 7