Daniel E. Kowallek v. Donna M. Prestia

Eleventh Circuit

Daniel E. Kowallek v. Donna M. Prestia

329 F. App'x 897

CourtCourt of Appeals for the Eleventh Circuit

DecidedJune 2, 2009

Docket08-16872

StatusUnpublished

Cited by1 cases

This text of 329 F. App'x 897 (Daniel E. Kowallek v. Donna M. Prestia) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Daniel E. Kowallek v. Donna M. Prestia, 329 F. App'x 897 (11th Cir. 2009).

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Opinion

PER CURIAM:

Daniel E. Kowallek appeals pro se the dismissal of his complaint after the district court entered a judgment on the pleadings for Donna Prestía. Fed.R.Civ.P. 12(c). Kowallek argues that the district court erred when it denied his motion to remand and dismissed his complaint with prejudice. We affirm.

*898 We review de novo the denial of a motion to remand. Henderson v. Washington Nat’l Ins. Co., 454 F.3d 1278, 1281 (11th Cir.2006). We also review de novo a judgment on the pleadings. Hardy v. Regions Mortgage, Inc., 449 F.3d 1357, 1359 (11th Cir.2006).

Prestia’s untimely removal was defective, but that defect does not require us “[t]o wipe out the adjudication post-judgment.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 77, 117 S.Ct. 467, 477, 136 L.Ed.2d 437 (1996). Because Kowallek sued Pres-tía for refusing to divulge information she acquired as an employee of the Internal Revenue Service, the district court had removal jurisdiction. 28 U.S.C. § 1442(a)(1); Allen v. Christenberry, 327 F.3d 1290, 1296 (11th Cir.2003). We will not address any defect in removal because the district court had subject-matter jurisdiction to dismiss Kowallek’s complaint. See Caterpillar Inc., 519 U.S. at 76-77, 117 S.Ct. at 477 (requiring that a judgment denying a motion to remand must be vacated when a “jurisdictional defect remains uncured”); Ayres v. General Motors Corp., 234 F.3d 514, 519 (11th Cir.2000) (“The untimeliness of a removal is a procedural, instead of a jurisdictional, defect.”).

The district court did not err when it dismissed Kowallek’s complaint for failure to state a claim for relief. Prestía had no legal duty to help Kowallek research his suspicions of identity theft, and no law grants Kowallek redress for Prestia’s failure to respond to his inquiries. It also would have been futile to allow Kowallek to amend his complaint. See Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262 (11th Cir.2004).

The dismissal of Kowallek’s complaint is AFFIRMED.

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PER CURIAM:

Daniel E. Kowallek appeals pro se the dismissal of his complaint after the district court entered a judgment on the pleadings for Donna Prestía. Fed.R.Civ.P. 12(c). Kowallek argues that the district court erred when it denied his motion to remand and dismissed his complaint with prejudice. We affirm.

*898 We review de novo the denial of a motion to remand. Henderson v. Washington Nat’l Ins. Co., 454 F.3d 1278, 1281 (11th Cir.2006). We also review de novo a judgment on the pleadings. Hardy v. Regions Mortgage, Inc., 449 F.3d 1357, 1359 (11th Cir.2006).

Prestia’s untimely removal was defective, but that defect does not require us “[t]o wipe out the adjudication post-judgment.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 77, 117 S.Ct. 467, 477, 136 L.Ed.2d 437 (1996). Because Kowallek sued Pres-tía for refusing to divulge information she acquired as an employee of the Internal Revenue Service, the district court had removal jurisdiction. 28 U.S.C. § 1442(a)(1); Allen v. Christenberry, 327 F.3d 1290, 1296 (11th Cir.2003). We will not address any defect in removal because the district court had subject-matter jurisdiction to dismiss Kowallek’s complaint. See Caterpillar Inc., 519 U.S. at 76-77, 117 S.Ct. at 477 (requiring that a judgment denying a motion to remand must be vacated when a “jurisdictional defect remains uncured”); Ayres v. General Motors Corp., 234 F.3d 514, 519 (11th Cir.2000) (“The untimeliness of a removal is a procedural, instead of a jurisdictional, defect.”).

The district court did not err when it dismissed Kowallek’s complaint for failure to state a claim for relief. Prestía had no legal duty to help Kowallek research his suspicions of identity theft, and no law grants Kowallek redress for Prestia’s failure to respond to his inquiries. It also would have been futile to allow Kowallek to amend his complaint. See Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262 (11th Cir.2004).

The dismissal of Kowallek’s complaint is AFFIRMED.

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