Brenda E. Crook-Petite-El v. Bumble Bee Foods LLC

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 24, 2018
• Docket: 17-12914
• Status: Unpublished

Opinion

Case: 17-12914 Date Filed: 05/24/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-12914 Non-Argument Calendar ________________________

D.C. Docket No. 1:17-cv-00677-LMM

BRENDA E. CROOK-PETITE-EL,

Plaintiff - Appellant,

versus

BUMBLE BEE FOODS L.L.C.,

Defendant - Appellee.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(May 24, 2018) Case: 17-12914 Date Filed: 05/24/2018 Page: 2 of 4

Before JULIE CARNES, DUBINA, and HULL, Circuit Judges.

PER CURIAM:

Appellant Brenda Crook-Petite-el (“Crook-Petite-el”), proceeding pro se,

appeals the dismissal of her tort action. She makes two arguments on appeal.

First, Crook-Petite-el argues that the district court erred in concluding that it lacked

subject matter jurisdiction. Second, Crook-Petite-el argues that the district court

erred in concluding that her action was barred by the Georgia statute of limitations.

After reviewing the record and reading the parties’ briefs, we affirm the district

court’s order dismissing Crook-Petite-el’s complaint.

We review a district court’s legal conclusions in dismissing a complaint for

lack of subject matter jurisdiction de novo, and its findings of jurisdictional facts

for clear error. Williams v. Poarch Band of Creek Indians, 839 F.3d 1312, 1314

(11th Cir. 2016). In this case, the burden for establishing federal subject matter

jurisdiction is on the plaintiff. Id. We do, however, liberally construe pro se

pleadings and hold these pleadings to a less stringent standard than pleadings

drafted by attorneys. Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990). We

review de novo the district court’s dismissal of a complaint for failure to state a

claim pursuant to Federal Rule of Procedure 12(b)(6). Am. United Life Ins. Co. v.

Maritnez, 480 F.3d 1043, 1056-57 (11th Cir. 2007). The court views the complaint

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in the light most favorable to the plaintiff, and we accept as true all of the

plaintiff’s well-pleaded facts. Id. at 1057.

Federal subject matter jurisdiction can be established through one of three

alternatives: (1) jurisdiction pursuant to a specific statutory grant; (2) federal

question jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction

pursuant to 28 U.S.C. § 1332. Baltin v. Alaron Trading Corp., 128 F.3d 1466,

1469 (11th Cir. 1997). A complaint alleging a violation of a federal statute as an

element of a state cause of action does not confer jurisdiction under § 1331 unless

Congress has provided for a private, federal cause of action for the violation.

Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 817, 106 S. Ct. 3229, 3236

(1986). We have noted that the Federal Food, Drug, and Cosmetic Act (“FDCA”),

21 U.S.C. § 301 et seq., does not provide for a private cause of action. Ellis v. C.R.

Bard, Inc., 311 F.3d 1272, 1284 n. 10 (11th Cir. 2002) (referencing 21 U.S.C.

§ 337(a)).

To establish diversity jurisdiction in cases between U.S. citizens, a plaintiff

must show that the amount in controversy exceeds $75,000 and that the case is

between citizens of different states. 28 U.S.C. § 1332(a). Diversity jurisdiction

requires that no plaintiff is a citizen of the same state as any defendant.

MacGinnitie v. Hobbs Grp., LLC, 420 F.3d 1234, 1239 (11th Cir. 2005). The party

seeking federal jurisdiction bears the burden to demonstrate that diversity exists by

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a preponderance of the evidence. Molinos Valle Del Cibao, C. por A. v. Lama, 633

F.3d 1330, 1340 (11th Cir. 2011). The complaint “must allege the citizenship, not

residence, of the natural defendants.” Id. at 1342 n.12. Alleging residency is not

sufficient to establish citizenship, but an assertion of permanent residency is

sufficient. Id. at 1342.

Here, we conclude from the record that the district court did not err in

dismissing the complaint. The district court lacked subject matter jurisdiction

because Crook-Petite-el and Bumble Bee Foods L.L.C. are Georgia citizens, and

because the FDCA does not provide for a private cause of action. Because we hold

that the district court lacked subject matter jurisdiction, we need not discuss

whether the Crook-Petite-el’s claim was barred by the Georgia statute of

limitations. Accordingly, we affirm the district court’s order dismissing Crook-

Petite-el’s complaint.

AFFIRMED.