             Case: 12-12091     Date Filed: 11/19/2012   Page: 1 of 5

                                                             [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT

                          ________________________

                                No. 12-12091
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 9:11-cv-81135-KLR


JUSSI K. KIVISTO,

                                                                Plaintiff-Appellant,

                                      versus

ARMI KULMALA,
WELLS FARGO ADVISORS, LLC,
f.k.a. A.G. Edwards,

                                                          Defendants-Appellees.

                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________
                             (November 19, 2012)

Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

     Jussi Kivisto, proceeding pro se, appeals the district court’s dismissal of his
               Case: 12-12091     Date Filed: 11/19/2012    Page: 2 of 5

action to compel arbitration and stay state court proceedings and for declaratory

relief, for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a).

Kivisto filed a complaint in federal district court against Armi Kulmala and Wells

Fargo Advisors, LLC, seeking to compel arbitration related to a state court action

initiated by Kulmala against Kivisto and Wells Fargo to determine the proper

beneficiary of a Wells Fargo brokerage account that was owned by Leo Jaakola

prior to his death. Kulmala alleged in the state court action that she was the

intended beneficiary of the $61,957.84 held in the account, that Kivisto, as

Jaakola’s attorney, unduly influenced Jaakola to sign a transfer agreement directing

that the funds in the account be distributed to Kivisto, and that Wells Fargo

negligently turned over the funds to Kivisto and not Kulmala.

      The district court dismissed Kivisto’s complaint for lack of subject matter

jurisdiction, finding that the only possible basis for federal jurisdiction was

diversity jurisdiction and that the amount in controversy in the underlying state

claim which Kivisto sought to arbitrate did not exceed the $75,000 threshold

necessary to establish federal diversity jurisdiction.

      On appeal, Kivisto argues that the district court improperly dismissed his

federal complaint because the amount in controversy in the underlying state claim

included not only the $61,957.84 value of the Wells Fargo account, but also

attorney’s fees by operation of contract and state law, and a reasonable calculation


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of those fees showed, when added to the account value, that the $75,000

jurisdictional amount had been satisfied.

      We review a district court’s rulings on subject matter jurisdiction de novo.

MacGinnitie v. Hobbs Group, LLC, 420 F.3d 1234, 1239 (11th Cir. 2005). A

federal court must dismiss an action if it determines, at any time, that it lacks

subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3); Bochese v. Towne of Ponce

Inlet, 405 F.3d 964, 975 (11th Cir. 2005).

      Federal courts exercise limited jurisdiction and generally can hear only

actions that either meet the requirements for diversity jurisdiction or that involve a

federal question. 28 U.S.C. §§ 1331, 1332; Taylor v. Appleton, 30 F.3d 1365, 1367

(11th Cir. 1994). Here, it is not disputed that diversity jurisdiction is the only

possible basis for federal jurisdiction over Kivisto’s complaint and that the

dispositive issue is whether Kivisto has met the $75,000 amount in controversy

requirement. “It is to be presumed that a cause lies outside this limited

jurisdiction, and the burden of establishing the contrary rests upon the party

asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S.

375, 377 (1994) (citations omitted).

      The district court rejected Kivisto’s argument regarding the attorney’s fees,

concluding that the contract governing the brokerage account would not entitle

Kulmala to attorney’s fees. See Smith v. GTE Corp., 236 F.3d 1292, 1305 (11th


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Cir. 2001) (holding that attorney’s fees are not included in determining the

jurisdictional amount in controversy unless the award of fees is authorized by a

statute or contract). Specifically, the district court noted that the contract between

Wells Fargo and Jaakala did not create a right to attorney’s fees to Kulmala from

Wells Fargo and that the attorney’s fees provision was inapplicable to the type of

claims asserted in the state court action. Alternatively, the district court concluded

that even if it assumed the contract would entitle Kulmala to attorney’s fees,

Kivisto’s allegation regarding the amount of fees was too conclusory. See

Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805, 807 (11th Cir.

2003) (quotations omitted) (stating that where jurisdiction is based on an

undetermined amount of damages, the party seeking to invoke federal jurisdiction

must prove that the claim meets the threshold jurisdictional amount by a

preponderance of the evidence).

      Having considered the parties’ briefs and the record, we find no reversible

error in the district court’s conclusion that Kivisto failed to meet his burden of

establishing that the amount in controversy exceeded the $75,000 threshold and

thus the district court lacked subject matter jurisdiction over Kivisto’s complaint

against Kulmala and Wells Fargo. Additionally, regardless of the district court’s

findings as to the jurisdictional amount, it also properly found that it lacked

jurisdiction over Kivisto’s claims against Wells Fargo because there was no


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controversy between Kivisto and Wells Fargo to confer Article III standing before

the federal court. Accordingly, we affirm the district court’s dismissal for lack of

subject matter jurisdiction.

      AFFIRMED.




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