James J. Dozier v. Ford Motor Company

WALD, Circuit Judge,

dissenting:

Appellant James Dozier sued appellee Ford Motor Company (“Ford”) and a Virginia Ford Dealer in the Eastern District of Virginia, alleging breach of warranty and seeking $7,000 actual damages and $1,000,-000 punitive damages. The Virginia district court dismissed the action without prejudice for lack of subject-matter jurisdiction, finding that punitive damages were not recoverable for breach of warranty and that Dozier had not met the $10,000 amount in controversy requirement for diversity jurisdiction. Dozier appealed and the Fourth Circuit affirmed.

Dozier then refiled in the district court for the District of Columbia, alleging $16,-400 actual damages and $1,000,000 punitive damages. The district court dismissed for lack of diversity jurisdiction, finding that the doctrine of res judicata barred relitigation of whether Dozier could satisfy the $10,000 jurisdictional requirement. In my view, the availability of punitive damages cannot be relitigated, but Dozier should be given a second chance to show $10,000 in actual damages. I would therefore affirm in part, reverse in part, and remand to the *1196 district court to determine the amount in controversy.

I. Factual Background

Dozier’s complaint alleges that he purchased a used Mercury Bobcat from Brown Lincoln-Mercury of Arlington, Virginia, in February 1980. Dozier also purchased a one-year service contract from Ford. The car repeatedly broke down, and neither the dealer nor Ford would honor the service contract. Dozier, at that time a resident of Virginia, brought suit pro se in the Eastern District of Virginia against the dealer and Ford, alleging breach of warranty and claiming $7,000 in actual damages and $1,000,000 in punitive damages. He did not itemize or explain his claim for actual damages. 1 Jurisdiction was based on diversity.

The Virginia district court found no complete diversity since both Dozier and the car dealer were Virginia citizens. In addition, the court ruled that under Virginia law, punitive damages could not be recovered for breach of warranty; therefore, Dozier had also failed to meet the $10,000 amount in controversy requirement for diversity jurisdiction. 2 The court did not inquire into whether Dozier could in good faith allege more than $10,000 actual damages. The court dismissed the case for lack of subject-matter jurisdiction, without prejudice.

Dozier appealed to the Fourth Circuit, which affirmed the Virginia district court on all grounds. Dozier then filed a petition for rehearing in which for the first time he itemized his damages and claimed more than $10,000 actual damages. 3 The petition was denied. Dozier, by now a resident of Maryland, filed a new complaint in the District of Columbia district court, naming Ford as the only defendant. He claimed $16,400 in itemized actual damages and $1,000,000 in punitive damages, and again asserted diversity jurisdiction. The district court dismissed the action for lack of jurisdiction, relying on the doctrine of res judi-cata, and Dozier appealed to this court.

II. Analysis

A. The “Curable Defect” Standard

A finding that jurisdiction exists is generally res judicata between the parties to the lawsuit. See, e.g., Durfee v. Duke, 375 U.S. 106, 116 , 84 S.Ct. 242, 247 , 11 L.Ed.2d 186 (1963) (“[W]hen .. . the jurisdictional issues had been fully and fairly litigated ... in the Nebraska courts, the federal court in Missouri was correct in ruling that further inquiry was precluded.”); American Surety Co. v. Baldwin, 287 U.S. 156, 166 , 53 S.Ct. 98, 101 , 77 L.Ed. 231 (1932) (Brandeis, J.) (“The principles of res judicata apply to questions of jurisdiction as well as to other issues.”). 4

The preclusive effect of a finding that jurisdiction does not exist is less settled. In some cases, a plaintiff can successfully reassert a basis for jurisdiction that was previously rejected. For example, if a claim of diversity jurisdiction fails for lack of complete diversity, and a later move by one of the parties establishes complete diversity, diversity jurisdiction will lie. 5 Similarly, lack of personal jurisdiction (because of defective service of process or otherwise) can *1197 be cured and the suit recommenced. 6 More generally, “a plaintiff’s failure to comply with a precondition requisite to the Court’s going forward to determine the merits of his substantive claim” can be cured and the case refiled. Costello v. United States, 365 U.S. 265, 285 , 81 S.Ct. 534, 545 , 5 L.Ed.2d 551 (1961) (by implication). 7

On the other hand, numerous eases hold that where a question of jurisdiction has been fully litigated and the claim dismissed for lack of jurisdiction, the issue of jurisdiction cannot be relitigated. See, e.g., Zoriano Sanchez v. Caribbean Carriers, Ltd., 552 F.2d 70, 72 (2d Cir.) (no subject matter jurisdiction under the Jones Act over foreign shipowner), cert. denied, 434 U.S. 853 , 98 S.Ct. 168 , 54 L.Ed.2d 123 (1977); Hoston v. Silbert, 514 F.Supp. 1239, 1242 (D.D.C. 1981) (statute of limitations); Miller v. Saxbe, 396 F.Supp. 1260, 1261 (D.D.C.1975) (failure to meet the time limit for filing race discrimination complaint). 8

Most of the decided cases, whether they find or reject res judicata, are broadly phrased. They suggest that the same jurisdictional ground either can always or can never be relied on in a second action. Compare, e.g., Johnson v. Boyd-Richardson Co., 650 F.2d 147, 148 (8th Cir.1981) (in an earlier action, plaintiff misnamed the corporate defendant; “the res judicata bar does not arise”) and Mann v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 488 F.2d 75, 76 (5th Cir.1973) (per curiam) (original action was dismissed “basically because requisite jurisdictional allegations [of diversity] were missing ...; that dismissal does not operate as an adjudication upon the merits”) with, e.g., McCarney v. Ford Motor Co., 657 F.2d 230, 234 (8th Cir.1981) (if plaintiffs “had refiled their suit under the [same] Act it would have clearly been precluded by their earlier suit”) and Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980) (per curiam) (“a second complaint cannot command a second consideration of the same jurisdictional claims”).

The Tenth Circuit, however, has reconciled Costello and other cases permitting relitigation with cases barring relitigation by distinguishing between “curable” and “noncurable” defects:

“Principles of res judicata apply to jurisdiction as well as to other issues. American Surety Co. v. Baldwin, 287 U.S. 156, 166 [ 53 S.Ct. 98, 101 , 77 L.Ed. 231 ] (1932). In some cases, however, dismissal for want of jurisdiction is no bar to another suit. See Costello v. United States, 365 U.S. 265, 286 [ 81 S.Ct. 534, 545 , 5 L.Ed.2d 551 ] (1961). Thus, suit may be brought again where a jurisdictional defect has been cured or loses its controlling force. See Luker v. Nelson, 341 F.Supp. 111, 115 (N.D.Ill.1972). Here we are not dealing with such a curable defect and the ... bar of res judicata applies.” *1198 Stewart Securities Corp. v. Guaranty Trust Co., 597 F.2d 240, 242-43 (10th Cir.1979) (some citations omitted) (quoting Eaton v. Weaver Manufacturing Co., 582 F.2d 1250 , 1255-56 (10th Cir.1978)); accord Luker v. Nelson, 341 F.Supp. 111, 114-15 (N.D.Ill. 1972).

I would adopt the Tenth Circuit’s approach, which I would restate as follows: Principles of res judicata apply to dismissals for lack of jurisdiction as well as to other issues. However, where a jurisdictional defect is cured or otherwise loses its controlling force, a second action may be brought under the same jurisdictional provision. 9 This rulé strikes a reasonable balance between considerations of finality and doing justice to inept litigants. When the defect can be cured, the plaintiff will have a chance to cure it. On the other hand, where the jurisdictional flaw cannot be cured, the plaintiff cannot return to court in the hope that a second judge will find jurisdiction where the first did not. The costs in duplicative litigation will be minor since the defendant need not “incur the inconvenience of preparing to meet the merits.” Costello , 365 U.S. at, 286, 81 S.Ct. at 545 .

Dozier’s earlier failure to establish complete diversity has clearly lost its controlling force and is not res judicata. Indeed, Ford does not dispute that Dozier has established complete diversity. Equally clearly, there is nothing to be cured in Dozier’s allegation of punitive damages. It is a purely legal question whether they are available for breach of warranty under Virginia law. Moreover, Dozier has had a full and fair opportunity to litigate their availability. The matter was decided both by the Virginia district court and by the Fourth Circuit. Therefore, res judicata precludes either awarding punitive damages or including them as part of the $10,000 jurisdictional amount.

B. Res Judicata for an Alternative Holding

The Virginia district court’s finding that punitive damages are unavailable is an alternative holding, and there is some disagreement over when an alternative holding should be given res judicata or collateral estoppel effect. See Stebbins v. Keystone Insurance Co., 481 F.2d 501, 507-08 (D.C.Cir.1973) (expressly not reaching the issue and holding narrowly that where an employment discrimination suit had been dismissed for failure to apply for the job and lack of qualifications, the ruling on qualifications did not create collateral estoppel). 10 Here, the district court’s ruling on punitive damages was affirmed on appeal, and I concur in the majority holding that this is sufficient indication of careful decisionmaking so that res judicata should apply.

C. Actual Damages

Thus far, the majority and I are in basic agreement. See maj. op. at 1195. We differ, however, on how to interpret the Virginia district court’s finding that there was not $10,000 actual damages in contro *1199 versy. On the facts of this case, I believe that the court’s finding reflects merely a curable defect in pleading and not a factual determination that Dozier could not show $10,000 in actual damages. The court made no inquiry into Dozier’s actual damages. (It was not required to, and had little reason to exercise its discretion to do so since it would have dismissed the case in any event for lack of complete diversity.) Instead, it simply took the allegation in Dozier’s complaint of $7,000 actual damages at face value. 11 Moreover, the Virginia court explicitly dismissed the case “without prejudice,” which indicates to me that the court contemplated that Dozier could refile an amended complaint in federal court.

I find the majority’s analysis flawed in four aspects. First, the majority refuses to go behind the face of the Virginia district court’s negative ruling on amount in controversy to determine whether the court looked only at the complaint or made a factual inquiry into Dozier’s actual damages. Fair application of the doctrine of res judicata, however, requires a court to inquire closely into the record. See 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction, § 4420, at 185 (1981) (“[T]he first step in resolving uncertainty as to the ... issues actually decided lies in painstaking examination of the record of the prior action.”) (footnote omitted). In my view, the majority’s failure to inquire more closely in this case is inconsistent with the general philosophy, embodied in our liberal pleading rules, of giving even incompetent litigants an opportunity to have their claim heard on the merits.

More troubling is the majority’s view that a new suit should be permitted only when the original jurisdictional defect “could be remedied by occurrences subsequent to the original dismissal.” Maj. op. at 1192 (emphasis in original). The majority views the total failure to file an affidavit of good cause in Costello as such a defect, but does not view the amount in controversy defect at issue here as such. I do not see the policy reasons for distinguishing between Costello and Dozier on this basis. In both Dozier and Costello , the complainant could have done it right the first time around and did not. In Costello , the government did not file an affidavit of good cause at all, while in Dozier the plaintiff filed a manifestly defective complaint. The policy rationale for not permitting a second suit (avoiding nuisance to the defendant) applies in both cases with equal force. Either can be defended by simply asserting the defect, with no need to prepare a defense on the merits. The policy rationale for permitting a second suit (giving an incompetent complainant a full chance to have his day in court) also applies to both cases equally. There seems no reason why a total bumbler should be permitted to refile while a partial bumbler should not.

The logical upshot of the majority’s approach would be that the government could not refile in Costello either. We are constrained, however, to follow Costello , and I see no reason not to apply here its balancing of the competing policies.

Third, the Virginia district court explicitly dismissed the case “without prejudice.” The majority contends that this merely indicates the court’s desire “to make it clear that appellant ... [could still have] his claim heard on the merits in state court.” Maj. op. at 1194. However, this explanation makes little sense. No federal court has any power to bar a claimant, like Dozier, from pursuing his claim in state court. Even if the court had dismissed “with prejudice,” the dismissal for lack of jurisdiction under Fed.R.Civ.P. 41(b), “[would] not operate as an adjudication on the merits.” 18 C. Wright, A. Miller & E. Cooper, supra, § 4435, at 333; see Costello v. United States, 365 U.S. 265, 286 , 81 S.Ct. 534, 545 , 5 L.Ed.2d 551 (1961) (“We do not discern in Rule 41(b) a purpose to change this common-law principle .... ”). Thus, the court’s dismissal “without prejudice” could only mean that it contemplated that Dozier could refile an amended complaint in feder *1200 al court. Accord Cloverleaf Standardbred Owners Association v. National Bank of Washington, 699 F.2d 1274 , 1275 n. 2, (D.C.Cir.1983) (“The dismissal [for lack of an indispensable party] was ordered ‘with prejudice.’ The ‘prejudice’ ... relates to the filing of another action between the same parties on the same claim in federal court.”) (emphasis in original); International Philanthropic Hospital Foundation v. United States, 621 F.2d 402, 405 , 223 Ct.Cl. 587 (CtCl.1980) (similar). 12

Finally, I note that there is case support for my approach, and none for the majority’s. This case seems closely akin to Mann v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 488 F.2d 75, 76 (5th Cir.1973) (per curiam), where a complaint was dismissed “for want of allegations establishing diversity jurisdiction, with leave to amend within 10 days.” Plaintiff failed to amend, and the case was dismissed. Eighteen months later, plaintiff refiled a proper diversity complaint; the Fifth Circuit held that the earlier dismissal was not res judicata on the issue of diversity jurisdiction. I believe a similar result is called for here, especially since the Virginia court did not explicitly give Dozier leave to amend. See also Smith v. McNeal, 109 U.S. 426, 431 , 3 S.Ct. 319, 321 , 27 L.Ed. 986 (1883) (first action was dismissed for failure to allege that title was disputed and that defendants resided in Tennessee; this failure to “state the jurisdictional facts” was no bar to a second action); cf. Johnson v. Boyd-Richardson Co., 650 F.2d 147, 148 (8th Cir.1981) (plaintiff misnamed the defendant corporation and failed to amend when given 15 days to do so; a second action correctly naming the defendant was not barred); Lemmon v. Cedar Point, Inc., 406 F.2d 94 , 95 n. 2 (6th Cir.1969) (dictum) (affirming dismissal for failure to properly allege $10,000 in controversy, but noting that “this deficiency can be cured by amendment ... since it is apparent that jurisdiction does in fact exist”).

The majority argues that McNeal should be regarded as “superseded” because it was written in a day when liberal amendment of pleadings was not allowed. Maj. op. at 1192. The Costello Court, however, cited with approval several similar cases of equal vintage. 13 Moreover, I am reluctant to ignore a Supreme Court precedent merely because it is old, when it has never been overruled either expressly or by implication; especially so when cases such as Mann and Johnson show that modern courts still use similar reasoning. There is a time and place for such action, but this is not it. See Kniffin, Overruling Supreme Court Precedents: Anticipatory Action by United States Courts of Appeals, 51 Fordham L.Rev. 53, 88 (1982) (lower court should satisfy itself that the Supreme Court is “highly likely” to depart from the precedent and that “greater justice to both parties will be accomplished thereby”).

The majority decision also creates a conflict with the Fifth Circuit’s opinion in *1201 Mann . The majority concedes that Mann is partly inconsistent with its proposed rule, maj. op. at 1192 n. 4, and strains mightily to distinguish this case on its facts, id. at 1193 n. 7. The attempted distinction, however, does not withstand analysis. 14 On the narrow point of res judicata at issue here, we should be reluctant to go our separate way unless we are firmly convinced that the Fifth Circuit is wrong. 15 This is doubly so since Supreme Court precedent suggests, if it does not command, that the Fifth Circuit has the better of the argument.

In closing, I stress the policy concerns underlying my dissent. Presumably a litigant assisted by competent counsel would have originally alleged more than $10,000 actual damages and would not have sued a nondiverse defendant. The Virginia court would then in all probability have accepted jurisdiction over the claim and proceeded to decide it on the merits. Even if it turned out after trial that damages were less than $10,000, jurisdiction would not have been lost. 16 Dozier, unfortunately, chose to proceed pro se, and failed to do these obvious things. 17 The question before us is whether he should have a second chance.

It is a commonplace that courts should construe the pleadings “to do substantial justice.” Fed.R.Civ.P. 8(f). Here, the cost to the defendant to defend based on an obvious pleading defect is relatively small. Thus, “substantial justice” to Dozier requires that we not use the doctrine of res judicata to turn a dismissal for inartful pleading into a lock on the courthouse door. Dozier should have a second chance to cure his defective allegation of jurisdictional amount. 18

. Complaint ¶ 8, Dozier v. Ford Motor Co., No. 80-0958-A (E.D.Va. Dec. 12, 1980) (Dozier I), aff’d mem., 661 F.2d 920 (4th Cir.1981) (Dozier I Appeal).

. Transcript of Proceedings, Dec. 12, 1980, at 9, Dozier I.

. Dozier had earlier stated that “the claim of $7,000.00 actual damages can be amended to show in excess of $10,000.00.” Answer to Defendant Ford’s Motion to Dismiss ¶ 3(a). He declined to amend his complaint, however, believing that the complaint already gave “other grounds for Federal jurisdiction.” Id.

. See also Restatement (Second) of Judgments § 12 (1982) (noting the exceptions to this general rule); 1B J. Moore & T. Currier, Moore’s Federal Practice ¶ 0.405[5], at 658 (2d ed. 1982).

. See, e.g., Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 637 (5th Cir.1974); 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction § 3608, at 662 (1975); cf. id. § 3605, at 618 (court can create complete diversity by dismissing nondiverse parties who are not indispensable).

. See, e.g., Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 373 n. 3 (2d Cir. 1978) (per curiam); Etten v. Lovell Mfg. Co., 225 F.2d 844, 846 (3d Cir.1955), ce rt. denied, 350 U.S. 966, 76 S.Ct. 435 , 100 L.Ed. 839 (1956); 18 C. Wright, A. Miller & E. Cooper, supra note 5, § 4436, at 344-45 (1981); 1B J. Moore & T. Currier, supra note 4, ¶ 0.405[5], at 661-62.

. In Costello , an earlier government effort to denaturalize petitioner Costello had failed because the government did not file an affidavit of good cause. In upholding a subsequent de-naturalization, the Court held that filing the affidavit was a “precondition requisite” to reaching the merits and that failure to meet such a precondition was a jurisdictional defect within the meaning of Rule 41(b). 365 U.S. at 285-88 , 81 S.Ct. at 544-46 . Therefore, under Rule 41(b), the faulty first effort did not determine the merits. The Court assumed without discussion that the dismissal for failure to file the affidavit of good cause was not res judicata on whether good cause could be established.

See also Sierra Club v. Morton, 405 U.S. 727 , 736 n. 8, 92 S.Ct. 1361 , 1366 n. 8, 31 L.Ed.2d 636 (1972) (Sierra Club lacks standing to challenge resort development; decision “does not, of course, bar the Sierra Club from seeking ... to amend its complaint” to properly allege standing).

. See also 18 C. Wright, A. Miller & E. Cooper, supra note 5, § 4436, at 340 (“dismissal for lack of jurisdiction ... preclude^] relitigation of the issues determined in ruling on the jurisdiction question”); 1B J. Moore & T. Currier, supra note 4, ¶ 0.405[5], at 660; cf. Angel v. Bullington, 330 U.S. 183, 190 , 67 S.Ct. 657, 661 , 91 L.Ed. 832 (1947) (state court finding of no jurisdiction is decision on merits for purposes of subsequent federal diversity action).

. Of course, even for a noncurable jurisdictional defect, the usual requirements for res judica-ta must be satisfied. See 18 C. Wright, A. Miller & E. Cooper, supra note 5, § 4416 (general requirements for issue preclusion).

. Compare Hicks v. Quaker Oats Co., 662 F.2d 1158, 1168-70 (5th Cir.1981) (unappealed alternative ground is not conclusive, at least for purposes of offensive collateral estoppel); American Tel. & Tel. Co. v. FCC, 602 F.2d 401 , 410 n. 48 (9th Cir.1979) (dictum) (alternative ground for FCC rate order will not create collateral estoppel); Halpern v. Schwartz, 426 F.2d 102 (2d Cir.1970) (earlier decision is not conclusive on either issue, at least for bankruptcy cases); Restatement (Second) of Judgments § 27 comments i; o (1982) (judgment not conclusive on either issue unless affirmed on that issue on appeal); and 18 C. Wright, A. Miller & E. Cooper, supra note 5, § 4421, at 208 (preclusion should arise only if “a particular finding reflects a careful process of decision. Appellate review would automatically satisfy this standard.”) with In re Westgate-Calif. Corp., 642 F.2d 1174, 1176-77 (9th Cir.1981) (earlier decision is conclusive on both issues; court does not rely on fact that earlier decision was affirmed on appeal); Ezagui v. Dow Chem. Corp., 598 F.2d 727 , 733 (2d Cir.1979) (same); and 1B J. Moore & T. Currier, supra note 4, ¶ 0.443[5], at 3921 & n. 10 (judgment has preclusive effect on both issues unless appellate court considers only one issue on appeal).

. See Transcript of Proceedings, supra note 2.

. The majority suggests that the Virginia district court, if it intended to permit Dozier to refile an amended complaint in federal court, would have granted leave to amend rather than dismissing. Maj. op. at 1194. However, dismissal without prejudice would be a reasonable action for the court to take where it did not expect the plaintiff to amend, but did not want to foreclose the possibility of doing so. In this case, the Virginia court had no reason to think that Dozier could successfully amend, since he lacked complete diversity.

. See Swift v. McPherson, 232 U.S. 51, 56-57 , 34 S.Ct. 239, 241 , 58 L.Ed. 499 (1914) (plaintiff brought suit to enforce a land-sale contract but later asked to have the suit dismissed (over the defendant’s objection) when the market price dropped below the contract price; the earlier dismissal was no bar to a second suit brought after the market price had risen again); St. Romes v. Levee Steam Cotton-Press Co., 127 U.S. 614, 619 , 8 S.Ct. 1335, 1338 , 32 L.Ed. 289 (1888) (earlier suit was dismissed because plaintiff failed to join necessary defendants; res judicata does not bar a second suit on the same cause of action); House v. Mullen, 89 U.S. (22 Wall.) 42, 46 , 22 L.Ed. 838 (1875) (earlier suit was dismissed because plaintiff failed to allege that co-plaintiffs had an interest in the suit; the plaintiff “should be at liberty to bring another bill, with proper parties, in regard to the subject-matter of the first one”). These cases are all cited in Costello, 365 U.S. at 286 , 81 S.Ct. at 545 , for the proposition, id. at 285 , 81 S.Ct. at 545 , that “[a]t common law, dismissal on a ground not going to the merits was not ordinarily a bar to a subsequent action on the same claim.”

. The majority asserts that Mann involved a defect (lack of diversity) that could in theory be cured by a new occurrence, whereas this case does not. Maj. op. at 1193 n. 7. However, just as lack of diversity can be cured if a party moves to another state, the absence of $10,000 actual damages can be cured by a change in the underlying facts, as when the complainant suffers additional damages after filing his original complaint.

More basically, the majority seeks to confine Mann to a convenient cubbyhole that bears no relation to the facts or rationale of the case. The majority asserts that Mann stands for the legal proposition that a jurisdictional defect must be theoretically curable by a new event (change of residence in Mann). If so, the court will not ask the plaintiff to show that such a new event took place. The Mann opinion, however, never suggests that a change of residence either took place or was in any way relevant to its holding.

. See, e.g., Rockford League of Women Voters v. United States Nuclear Regulatory Comm’n, 679 F.2d 1218, 1221 (7th Cir.1982); Aldens, Inc. v. Miller, 610 F.2d 538, 541 (8th Cir.1979) (“we strive to maintain uniformity in the law among the circuits, wherever reasoned analysis will allow”); cf. Brown Transp. Corp. v. Atcon, Inc., 439 U.S. 1014 , 1017-21, 99 S.Ct. 626, 628-30 , 58 L.Ed.2d 687 (1978) (White, J., dissenting from denial of certiorari) (listing recent cases in which the Supreme Court was unable to grant certiorari to resolve conflicts among the circuits or conflicts with its own decisions).

. The majority notes that had the district court reached the substance of Dozier’s claim that he had suffered $16,000 in actual damages, it might have found no jurisdiction on the ground that Dozier to a legal certainty could not legitimately claim more than $10,000 in actual damages. Maj. op. at 1193 & n. 8. That is possible, but this case arises from a judgment on the pleadings, and we must assume that there is more than $10,000 in controversy, as Dozier claims.

. Contrary to the majority’s suggestion, maj. op. at 1195, Dozier is not an attorney. His professional card, attached to his complaint, states that he is an “attorney at law” but also states: “Legal Practice Restricted to Article 10-Section 32 of the Maryland Code.” That section prohibits any person from accepting money for “advice or service as an attorney at law without having been admitted to the bar.” The obvious inference is that Mr. Dozier is not a member of the Maryland bar, notwithstanding his contrary representation to the Virginia district court.

. I do not suggest that a plaintiff can file a defective allegation of jurisdiction, have it rejected, refile a second defective complaint, have that rejected, and so on ad infinitum. If that happens, the district court in its discretion can refuse to consider a new pleading. That case, however, is not before us.