Jones v. Law Firm of Hill and Ponton, No. 6:00-CV-746-ORL31JGG.

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtPresnell
Citation141 F.Supp.2d 1349
PartiesMark Jacob JONES, Plaintiff, v. LAW FIRM OF HILL AND PONTON, Defendant.
Decision Date26 March 2001
Docket NumberNo. 6:00-CV-746-ORL31JGG.
141 F.Supp.2d 1349
Mark Jacob JONES, Plaintiff,
v.
LAW FIRM OF HILL AND PONTON, Defendant.
No. 6:00-CV-746-ORL31JGG.
United States District Court, M.D. Florida, Orlando Division.
March 26, 2001.

Page 1350

COPYRIGHT MATERIAL OMITTED

Page 1351

Mark Jacob Jones, Brooklyn, NY, pro se.

Jaffrey Dean Starker, Hill & Ponton, P.A., Orlando, FL, for defendant.

Page 1352

ORDER

PRESNELL, District Judge.


This cause came on for consideration without oral argument on the Report and Recommendation of the Magistrate Judge (Doc. 35, entered March 2, 2001) and Plaintiff's Objection (Doc. 36, filed March 12, 2001). After an independent de novo review of the record in this matter, including Plaintiff's Objection, this Court agrees that it is bound by Judge Conway's determination of the Plaintiff's domicile as of June 13, 2000 (see Doc. 8 in Case No. 6:00-cv-747-ORL-22A, entered July 6, 2000), and therefore Defendant's Motion to Dismiss for lack of subject matter jurisdiction must be granted.

In consideration of the foregoing, it is hereby ORDERED AND ADJUDGED that:

1. Judge Glazebrook's Report and Recommendation (Doc. 35, entered March 2, 2001) is ADOPTED and CONFIRMED and made a part of this order.

2. The Motion to Dismiss (Doc. 18, filed September 18, 2000) is GRANTED, and this case is DISMISSED WITHOUT PREJUDICE.

3. All pending motions are DENIED AS MOOT.

4. The Clerk is directed to close this case.

REPORT AND RECOMMENDATION

GLAZEBROOK, United States Magistrate Judge.

TO THE UNITED STATES DISTRICT COURT

This cause came on for consideration without oral argument on the following motion filed herein:

MOTION: DEFENDANTS' MOTION TO DISMISS AMENDED COMPLAINT (Doc. No. 18)

FILED: September 8, 2000

THEREON it is RECOMMENDED that the motion be GRANTED.

Plaintiff brought this action against his former attorneys and law firm for legal malpractice, negligence, breach of fiduciary duty, and breach of contract. Defendants move to dismiss plaintiff's amended complaint for failure to state a cause of action under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Because this Court lacks subject matter jurisdiction over this matter, this action should be DISMISSED.

I. BACKGROUND

A. Present Suit Against Former Law Firm

On June 13, 2000, Mark Jacob Jones, an inmate in custody of the Marianna Correctional Institution, PMB 7007, Marianna, Florida, filed this diversity action against his former attorneys and law firm Hill & Ponton, P.A. [hereinafter defendants collectively will be referred to as "Hill & Ponton"]. In his original complaint, Jones claimed that the defendants lived in Orlando, Florida, and that, prior to his incarceration, he lived in Jacksonville, Florida. Docket No. 1 at 1, 7. On August 22, 2000, Jones filed an amended complaint. Docket No. 15. In his amended complaint, Jones alleges that he is not a citizen of Florida, but rather a citizen of New York, where he had "lived and been for the past 30 years." Docket No. 15 at 8.

According to the amended complaint, on April 12, 1998, Jones broke his right foot in a slip and fall incident. The incident occurred on the Ramada Inn Vacation Resort property located in Orlando, Florida. Jones alleges that he hired the law firm

Page 1353

Hill & Ponton to represent him in his personal injury claim against Ramada Inn. On April 17, 1998, Jones and Hill & Ponton entered into a contingent-fee contract. On April 20, 1998, attorneys Brian Hill and Karen Marcell sent a letter to Jones stating that if they were not able to settle before suit, the suit will be prepared for a court decision.

Jones alleges that Hill and Ponton provided him with a "Statement of Client Rights," which provides that:

[i]f your lawyer begins to represent you, your lawyer may not withdraw from the case, without giving you notice, delivering necessary papers to you, and allowing you time to employ another lawyer. Often your lawyer must obtain court approval before withdrawing from a case.

Docket No. 15, Exhibit H to Complaint. On May 22, 2001, attorney Brian D. Hill sent a letter to Jones, advising Jones that Hill & Ponton would no longer be handling Jones's case. Jones claims that Hill & Ponton failed to provide Jones with notice, deliver necessary papers, or allow Jones time to employ another lawyer. Jones also claims that Hill & Ponton failed to provide Ramada Inn's insurance company, Reliance Insurance Co., with information that "could have help[ed] to settle [his claim]". Jones "believes" that Hill & Ponton withdrew as his counsel because they realized that Jones was in jail. Jones claims that documents related to his case were not provided to Jones until a year later on June 22, 2000. Jones alleges that in withdrawing as Jones's counsel, Hill & Ponton breached its contractual agreement, committed legal malpractice, negligence, professional misrepresentation, and fraud in the inducement.

On September 8, 2000, Hill & Ponton filed the present motion to dismiss the amended complaint. Docket No. 18. Hill & Ponton claim that the amended complaint fails to state a cause of action for legal malpractice or breach of contract, because Jones cannot sue his attorneys for legal malpractice until the underlying action against Ramada Inn has been finalized on the merits.1

On September 22, 2000, Jones filed a memorandum in opposition. Docket No. 20. In his memorandum, Jones states that after Hill & Ponton withdrew from representing him, he filed a pro se personal injury action against Ramada Inn on June 13, 2000. See Case No. 6:00-cv-747-Orl-22A.

B. Jones's Suit Against Ramada Inn, Case No. 6:00-cv-747-Orl-22A

On June 13, 2000, the same day Jones filed this present suit, Jones filed a diversity, personal injury action against Ramada Inn in this Court. See Docket No. 1, Case No. 6:00-cv-747-Orl-22A. Jones's suit against Ramada Inn sounded in negligence, and it concerned the same factual scenario outlined in the instant amended complaint: that Jones suffered a broken bone in his right foot while walking at the Ramada Inn Vacation Resort.

On June 20, 2000, in response to Jones's motion to proceed in forma pauperis, United States Magistrate Judge Karla R. Spaulding issued a Report and Recommendation, recommending that the complaint be dismissed for lack of subject matter jurisdiction — the complaint stated no federal question and there was no diversity of citizenship. Specifically, Judge Spaulding found that diversity jurisdiction did not

Page 1354

exist because Jones "was a citizen of Jacksonville, Florida" and Ramada Inn (as alleged by the complaint) was a citizen of Orlando, Florida. Docket No. 4, Case No. 6:00-cv-747-Orl-22A.

Jones objected to Judge Spaulding's Report and Recommendation, arguing that he was a citizen of New York, not Florida, and that he had only "temporarily" lived in Jacksonville, Florida. Jones argued that he had lived in New York for the past 30 years and intended to make New York his permanent home after he was released from incarceration. Docket No. 5. On July 6, 2000, the Honorable Anne C. Conway adopted the Report and Recommendation over Jones's objections, dismissing the case for lack of subject matter jurisdiction. Docket No. 8. On July 17, 2000, Jones filed a motion for relief from judgment under Rule 60(b), again arguing that at the time he filed the complaint, i.e., June 13, 2000, he was a citizen of New York, not Florida. Jones's motion was denied on July 24, 2000. Docket No. 11.

On July 17, 2000, Jones also filed a notice of appeal. Docket No. 10. On August 3, 2000, Judge Conway denied Jones's motion to proceed on appeal in forma pauperis because Jones had failed to make a substantial showing of the deprivation of any federal constitutional right. Docket No. 15. Jones's appeal is currently pending before the Eleventh Circuit, Case No. 00-14028-D. See Docket No. 16.

II. APPLICABLE LAW

A. Standard of Review

A court should not dismiss a complaint for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45—46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990); Wright v. Newsome, 795 F.2d 964, 967 (11th Cir.1986); Ancata v. Prison Health Services, Inc., 769 F.2d 700, 703 (11th Cir.1985) (threshold is "exceedingly low"). In determining whether to dismiss a case, the Court accepts the allegations in the complaint as true, and otherwise views the allegations in the light most favorable to the plaintiff. Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir.1992) citing Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.1983). The Court does not generally accept conclusory allegations as true. See South Florida Water Management District v. Montalvo, 84 F.3d 402, 408 n. 10; accord, Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir.1974).

B. Diversity Jurisdiction

Title 28 U.S.C. § 1332(a)(1) vests this Court with the authority to exercise jurisdiction over cases involving "citizens of different States." Diversity of citizenship jurisdiction exists only 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). The amount in controversy is satisfied unless it appears "to a legal certainty that the claim is really for less than the jurisdictional amount." St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938).

The party seeking diversity jurisdiction has the burden of establishing jurisdiction by a preponderance of the evidence. Blakemore v. Missouri Pac. R.R. Co., 789 F.2d 616, 618 (8th Cir.1986). Diversity is determined when the suit is instituted, not when the cause of...

To continue reading

Request your trial
20 practice notes
  • Dalenko v. Stephens, No. 5:12–CV–122–F.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • 8 Enero 2013
    ...estoppel or issue preclusion applies to jurisdictional issues, as well as to other issues.” Jones v. Law Firm of Hill and Ponton, 141 F.Supp.2d 1349, 1356 (M.D.Fla.2001) (citing North Georgia Electric Membership Corp. v. City of Calhoun, 989 F.2d 429, 432–33 (11th Cir.1993); Baris v. Sulpic......
  • Arnold v. Melwani, CV. NO. 09-00030 DAE
    • United States
    • United States District Courts. U.S. District Court — Panama Canal Zone
    • 9 Enero 2013
    ...York; however, he was not estopped from arguing subsequent change of domicile on changed facts); Jones v. Law Firm of Hill and Ponton, 141 F. Supp. 2d 1349 (M.D. Fla. 2001) (plaintiff estopped from asserting different domicile in subsequent action against his attorneys than was established ......
  • Wilson v. Navient/ Ecmc Student Loan Providers, Case No.: 1:17-CV-02012-VEH
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • 13 Febrero 2018
    ...is in prison."); Lima v. Diaz, No. 95-734-CIV-T-17B, 1995 WL 75922, at *1 (M.D.Fla. Dec.18, 1995).Jones v. Law Firm of Hill & Ponton, 141 F. Supp. 2d 1349, 1355-56 (M.D. Fla. 2001) (Presnell, J.). Absent an allegation by the Plaintiff that he is a citizen of any state, jurisdiction has not ......
  • Chavez-Organista v. Vanos, CIVIL NOS. 99-1551(JAG), 99-2002(JAG).
    • United States
    • U.S. District Court — District of Puerto Rico
    • 19 Junio 2002
    ...a natural person must be both a citizen of the United States and a domiciliary of a state." See Jones v. Law Firm of Hill & Ponton, 141 F.Supp.2d 1349, 1355 (M.D.Fla.2001). See also In Foy v. Schantz, Schatzman & Aaronson, P.A., 108 F.3d 1347,(11th Cir.1997). (Only an alien who has establis......
  • Request a trial to view additional results
20 cases
  • Dalenko v. Stephens, No. 5:12–CV–122–F.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • 8 Enero 2013
    ...estoppel or issue preclusion applies to jurisdictional issues, as well as to other issues.” Jones v. Law Firm of Hill and Ponton, 141 F.Supp.2d 1349, 1356 (M.D.Fla.2001) (citing North Georgia Electric Membership Corp. v. City of Calhoun, 989 F.2d 429, 432–33 (11th Cir.1993); Baris v. Sulpic......
  • Arnold v. Melwani, CV. NO. 09-00030 DAE
    • United States
    • United States District Courts. U.S. District Court — Panama Canal Zone
    • 9 Enero 2013
    ...York; however, he was not estopped from arguing subsequent change of domicile on changed facts); Jones v. Law Firm of Hill and Ponton, 141 F. Supp. 2d 1349 (M.D. Fla. 2001) (plaintiff estopped from asserting different domicile in subsequent action against his attorneys than was established ......
  • Wilson v. Navient/ Ecmc Student Loan Providers, Case No.: 1:17-CV-02012-VEH
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • 13 Febrero 2018
    ...is in prison."); Lima v. Diaz, No. 95-734-CIV-T-17B, 1995 WL 75922, at *1 (M.D.Fla. Dec.18, 1995).Jones v. Law Firm of Hill & Ponton, 141 F. Supp. 2d 1349, 1355-56 (M.D. Fla. 2001) (Presnell, J.). Absent an allegation by the Plaintiff that he is a citizen of any state, jurisdiction has not ......
  • Chavez-Organista v. Vanos, CIVIL NOS. 99-1551(JAG), 99-2002(JAG).
    • United States
    • U.S. District Court — District of Puerto Rico
    • 19 Junio 2002
    ...a natural person must be both a citizen of the United States and a domiciliary of a state." See Jones v. Law Firm of Hill & Ponton, 141 F.Supp.2d 1349, 1355 (M.D.Fla.2001). See also In Foy v. Schantz, Schatzman & Aaronson, P.A., 108 F.3d 1347,(11th Cir.1997). (Only an alien who has establis......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT