Norman v. Sthil Incorporation

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

EVANTHONY R. NORMAN,

Plaintiff,

v. Case No: 8:23-cv-1844-CEH-TGW

STHIL INCORPORATION, STHIL

SOUTHEAST, INC. and ERIC J.

PARTLOW,

Defendants.

ORDER

This matter is before the Court upon review of the file. Proceeding pro se,1

Evanthony R. Norman filed a complaint against Sthil (sic) Incorporation,2 Sthil (sic)

Southeast, Inc. and Eric J. Partlow on August 16, 2023. Doc. 1. Because Plaintiff’s

Complaint does not set forth the basis of the Court’s subject matter jurisdiction, the

Court issues this Order to Show Cause. Additionally, the Court notes that Plaintiff has

neither paid the requisite filing fee for this civil action,3 nor moved to proceed in forma

1 Pro se parties should review the Federal Rules of Civil Procedure and the Local Rules for the Middle

District of Florida, which can be viewed on the Court’s website at

https://www.flmd.uscourts.gov/local-rules. A pro se party should also consult the “Litigants Without

Lawyers” guide on the Court’s website, located at http://www.flmd.uscourts.gov/litigants-without-

lawyers. Additionally, a pro se litigant handbook prepared by the Federal Bar Association is available

to download at the following hyperlink: www.fedbar.org/prosehandbook. A pro se party may seek

assistance from the Federal Bar Association by completing a request form at

http://federalbartampa.org/pro-bono.

2 Stihl Incorporated is a distributor of handheld outdoor power equipment and related

products.

3 The fee for filing a civil action is Four Hundred Two Dollars and No Cents ($402.00).

pauperis. Also pending is Plaintiff’s Motion for Summary Judgment (Doc. 5) which is

due to be denied as premature, and a Notice and Consent to Magistrate Judge

jurisdiction (Doc. 9) which will be stricken because it was filed unilaterally and signed

by Plaintiff only.

DISCUSSION

On August 16, 2023, Plaintiff, Evanthony Norman initiated this action by filing

a Civil Complaint against Defendants, Sthil (sic) Incorporation, Sthil (sic) Southeast,

Inc. and attorney Eric J. Partlow Doc. 1. Although his form Complaint states that

jurisdiction is invoked on both federal question and diversity of citizenship grounds

(Doc. 1 at 3), the Complaint appears to assert only state-law claims of negligence and

products liability. Specifically, Plaintiff seeks compensatory and punitive damages for

emotional and physical injuries he suffered because of the malfunctioning of a Sthil

(sic) cutting saw that resulted in a fuel cap disengaging. Doc. 1. He alleges that while

working on a contracting job for Charlie Brown Hauling and Demolition, Inc., he was

using the saw to cut rebar and the fuel cap became slightly ajar causing fuel to leak and

catch fire when encountering sparks from the cutting of the rebar. Doc. 1-1. Plaintiff’s

leg sustained second degree burns as a result. Id. Construing pro se Plaintiff’s

Complaint liberally, he asserts claims of negligent manufacture of the saw and failure

to warn against the Stihl Defendants. In an amended statement of his claim (Doc. 6),

Plaintiff provides additional information regarding product recalls of the saw. Plaintiff

does not allege any specific allegations against attorney Partlow.

Plaintiff, who is a resident of Dade City Florida, alleges Defendant Sthil (sic)

Incorporation is a manufacturing and assembly corporation located in Virginia Beach,

Virginia; Defendant Sthil (sic) Southeast is a distributor located in Orlando, Orange

County, Florida; and attorney Eric Parlow is located in Tampa, Hillsborough County,

Florida.

A. Subject Matter Jurisdiction

Federal courts must sua sponte inquire into an action’s subject matter jurisdiction

whenever such jurisdiction may be lacking. Cadet v. Bulger, 377 F.3d 1173, 1179 (11th

Cir. 2004); accord Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999)

(“[O]nce a federal court determines that it is without subject matter jurisdiction, the

court is powerless to continue.”). “The jurisdiction of a court over the subject matter

of a claim involves the court’s competency to consider a given type of case, and cannot

be waived or otherwise conferred upon the court by the parties.” Jackson v. Seaboard

Coast Line R.R. Co., 678 F.2d 992, 1000 (11th Cir. 1982). The bases for federal courts’

subject matter jurisdiction are confined, as federal courts are “empowered to hear only

those cases within the judicial power of the United States as defined by Article III of

the Constitution or otherwise authorized by Congress.” Taylor v. Appleton, 30 F.3d

1365, 1367 (11th Cir. 1994).

Plaintiff seeks to invoke the Court’s federal question jurisdiction pursuant to 28

U.S.C. § 1331. That section provides that this Court has original jurisdiction over all

civil actions arising under the Constitution, laws, or treaties of the United States. Id.

A case “arises under” federal law only when the complaint establishes either that

federal law creates the cause of action or that the plaintiff’s right to relief depends on

resolution of a substantial question of federal law. Franchise Tax Bd. v. Construction

Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983) (superseded by statute on other

grounds). “The determination of whether federal question jurisdiction exists must be

made on the face of the plaintiff’s well-pleaded complaint.” Pacheco de Perez v. AT&T

Co., 139 F.3d 1368, 1373 (11th Cir. 1998) (citations omitted). Although Plaintiff’s

Complaint vaguely references Federal Codes, even a liberal reading does not state any

facts indicating that Plaintiff’s claims “arise under” federal law.

Plaintiff also alleges diversity of jurisdiction as a basis for the Court’s subject-

matter jurisdiction. Congress granted district courts original subject matter jurisdiction

over civil actions sitting in diversity. 28 U.S.C. § 1332. Diversity jurisdiction exists

where the lawsuit is between citizens of different states and the amount in controversy

exceeds $75,000. Id. § 1332(a)(1). Each defendant must be diverse from each plaintiff

for diversity jurisdiction to exist under 28 U.S.C. § 1332. Univ. of S. Ala., 168 F.3d at

412. For purposes of diversity jurisdiction, a corporation is “a citizen of every State

and foreign state by which it has been incorporated and of the State or foreign state

where it has its principal place of business,” 28 U.S.C. § 1332(c)(1). Review of

Plaintiff’s allegations reveals the parties are not diverse because he and two of the

named Defendants appear to be Florida citizens, and thus diversity jurisdiction is also

lacking.

Because Plaintiff’s Complaint fails to allege facts giving rise to this Court’s

subject-matter jurisdiction, Plaintiff is directed to respond to this Order identifying the

basis of the Court’s jurisdiction. The Plaintiff will also be given the opportunity to

amend his Complaint to remedy the pleading deficiencies.

B. Unilateral Notice of Consent

Plaintiff has filed a Notice of Consent to Magistrate Jurisdiction that is signed

only by him. Doc. 9. A Consent to Magistrate Jurisdiction requires the signatures of

all parties in an action. Plaintiff’s unilaterally signed Consent form is therefore due to

be stricken.

C. Summary Judgment Motion

On September 8, 2023, Plaintiff filed a motion for summary judgment (Doc. 5)

and a supplement to his motion (Doc. 10). Summary judgment is appropriate when

the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, show there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of

stating the basis for its motion and identifying those portions of the record

demonstrating the absence of genuine issues of material fact. Celotex, 477 U.S. at 323;

Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir. 2004). That burden

can be discharged if the moving party can show the court that there is “an absence of

evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325.

Here, Plaintiff has not even served the Defendants with the Complaint. His

motion for summary judgment (Doc. 5) is premature, and therefore due to be denied.

D. No Filing Fee

To proceed in federal court, Plaintiff must either pay the filing fee or file a

motion to proceed in federal court without prepaying fees or costs. Plaintiff has done

neither.

Accordingly, it is

ORDERED:

1. Plaintiff is directed to SHOW CAUSE as to why this action should not

be dismissed for lack of subject matter jurisdiction. Plaintiff shall file a written

response with the Court within TWENTY-ONE (21) DAYS from the date of this

Order. Additionally, Plaintiff shall file an amended complaint within TWENTY-

ONE (21) DAYS from the date of this Order which cures the jurisdictional deficiencies

noted herein. Failure to respond within the time provided will result in the dismissal,

without prejudice, of this action without further notice.

2. If Plaintiff chooses to file an Amended Complaint, he must pay the filing

fee for this action or move to proceed in forma pauperis within TWENTY-ONE (21)

DAYS from the date of this order.

3. The Clerk is DIRECTED to send the “Application to Proceed in District

Court Without Prepaying Fees or Costs (Long Form)” (located at

https://www.flmd.uscourts.gov/forms/all/filing-a-case-forms) to Plaintiff, along

with a copy of this Order.

4. Failure to pay the filing fee or to move to proceed in forma pauperis, by

filing the Long Form Application, within the time provided when an Amended

Complaint is filed will result in the dismissal of this action, without prejudice and

without further notice.

5. The Clerk is directed to STRIKE the unilateral Consent Form (Doc. 9)

signed by Plaintiff only.

6. Plaintiff's Motion for Summary Judgment (Doc. 5) is DENIED as

premature.

DONE and ORDERED in Tampa, Florida on November 15, 2023.

Chak ere ChiJarnda Mo TDA pl yell 0.

Charlene Edwards Honeywell

United States District Judge

Copies furnished to: Plaintiff, pro se