                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          NOV 28 2000
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 ALEX EVITT, JR.,

          Plaintiff - Appellee,
                                                        No. 00-6130
 v.
                                                 (D.C. No. 98-CV-1712-A)
                                               (Western District of Oklahoma)
 JACK R. DURLAND, JR.,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before BALDOCK, HENRY and LUCERO, Circuit Judges.


      Jack R. Durland, Jr., appearing pro se, appeals the district court’s denial of

his motion to set aside a default judgment and the district court’s award of

punitive damages against him. However, because we find the district court

lacked subject matter jurisdiction, we dismiss the appeal pursuant to 28 U.S.C.

§ 1291.




      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      This case involves two lawsuits filed by plaintiff-appellee Alex Evitt, Jr.

In the first, Evitt sued his former attorney, Lewis Barber, Jr., in Oklahoma state

court in April 1988. Evitt retained Durland to represent him in this action in

December 1993. On January 11, 1996, Durland sent Evitt two letters stating that

Durland had obtained a court order allowing him to withdraw as Evitt’s attorney      1



and that Evitt needed to attend a pretrial conference scheduled less than a week

later, respond to a pending motion for summary judgment in less than two weeks,

and attend a hearing on the summary judgment motion in three weeks. Evitt then

filed a “Dismissal Without Prejudice” on January 16, 1996, the day before the

pretrial conference. ( R. Doc. 5 at 9.) At the pretrial conference, the state court

found Evitt had been “derelict throughout the history of this litigation,” held

Evitt’s dismissal “of no legal force and effect,” dismissed Evitt’s case with

prejudice, entered judgment against Evitt on defendant Barber’s cross-claim, and

awarded Barber $5,000 plus costs of $399. (R. Doc. 12, Ex. A at 4-5.)

      Evitt filed the present action against Durland in January 1999 in the United

States District Court for the Western District of Oklahoma. The first two counts

of the complaint seek damages for breach of contract and fraudulent

misrepresentation. For each of these causes of action, the complaint prays for




      Durland’s motion to withdraw was based on Evitt’s alleged failure to
      1

communicate with him.

                                          -2-
damages of $33,596—$8,399 in actual damages and treble punitive damages of

$25,197—and costs. Alleging Durland, as a licensed attorney, acted under color

of state law in his dealings with Evitt, the third count of the complaint seeks

$33,596 in damages under 28 U.S.C. § 1983 and costs. The complaint also seeks

attorney’s fees.

      The parties dispute whether Evitt properly served Durland with the

summons in the instant lawsuit; Durland claims he was unaware of the suit until

September 1999. In June 1999, the district court entered a default judgment

against Durland. In that judgment, the court dismissed Evitt’s § 1983 claim as

“insufficient on its face” and awarded actual damages totaling $7,749 and

punitive damages of $100,000, along with court costs and post-judgment interest.

(R. Doc. 12 at 1.) After claiming to have finally learned of Evitt’s action against

him, Durland filed a motion to set aside the default judgment in October 1999.

The district court held an evidentiary hearing to determine whether there had been

proper service and issued an order in March 2000 denying Durland’s motion to set

aside the default judgment. Durland appeals the district court’s denial of his

motion to set aside the default judgment, as well as the district court’s award of

punitive damages.

      Although neither party raised or briefed the issue, Fed. R. Civ. P. 12(h)(3)

requires federal courts to dismiss an action “[w]henever it appears by suggestion


                                         -3-
of the parties or otherwise that the court lacks jurisdiction of the subject matter.”

See also Celli v. Shoell , 40 F.3d 324, 327 (10th Cir. 1994) (“Federal courts are

courts of limited jurisdiction, and the presumption is that they lack jurisdiction

unless and until a plaintiff pleads sufficient facts to establish it.” (citations

omitted)); Basso v. Utah Power & Light Co. , 495 F.2d 906, 909 (10th Cir. 1974).

Thus, even “[i]f the parties do not raise the question” themselves, it is our duty to

address the apparent lack of jurisdiction sua sponte, and we do so here.      Tuck v.

United Servs. Auto. Ass’n , 859 F.2d 842, 843 (10th Cir. 1988) (quoting       Basso ,

495 F.2d at 909); see also Penteco Corp., Ltd. Partnership–1985A v. Union Gas

Sys., Inc. , 929 F.2d 1519 (10th Cir. 1991) (lack of jurisdiction may not be

“waived or jurisdiction be conferred by ‘consent, inaction, or stipulation’”

(quoting Basso , 495 F.2d at 909)).

      Evitt’s complaint seeks to establish federal jurisdiction under 28 U.S.C.

§ 1331 by alleging a violation of 42 U.S.C. § 1983 and invoking supplemental

jurisdiction over his state law claims pursuant to 28 U.S.C. § 1367(a). Evitt’s

§ 1983 claim is premised on his theory that Durland, as a licensed attorney, was

acting “under color of statute, ordinance, regulation, custom, or usage of the State

of Oklahoma” when he represented Evitt in the prior lawsuit. (R. Doc. 5 at 3.)

However, the proposition that a licensed attorney representing a client is acting

under color of law for purposes of § 1983 has been squarely rejected.       See Polk


                                           -4-
County v. Dodson , 454 U.S. 312, 318-19 & nn.7 & 9 (1981);         Lemmons v. Law

Firm of Morris & Morris , 39 F.3d 264, 266 (10th Cir. 1994) (“The conduct of

retained counsel does not rise to the level of state action within the meaning of

§ 1983.” (citing Bilal v. Kaplan , 904 F.2d 14, 15 (8th Cir. 1990) ). The district

judge recognized the hollowness of Evitt’s § 1983 claim by dismissing it as

“insufficient on its face,” but nevertheless implicitly retained supplemental

jurisdiction over the remaining state law claims in awarding Evitt damages in the

default judgment. (R. Doc. 12 at 1-2.)

       Although a district court has “the constitutional power to exercise

supplemental jurisdiction over state claims even after a federal claim has been

dismissed,” that is only true “provided the federal claim was not insubstantial

from the outset.”   United Int’l Holdings Inc. v. Wharf (Holdings) Ltd.         , 210 F.3d

1207, 1220 (10th Cir. 2000) (citation omitted);     see also Hagans v. Lavine , 415

U.S. 528, 536-43 (1974) (discussing the history of the insubstantiality doctrine).

“A federal claim is insubstantial only if it is obviously without merit or is wholly

frivolous, or is clearly foreclosed by prior decisions of the Supreme Court.”         Plott

v. Griffiths , 938 F.2d 164, 167 (10th Cir. 1991) (internal quotations and citations

omitted). Here, Evitt’s § 1983 claim was both obviously without merit and

foreclosed by the Supreme Court’s decision in      Polk County . As a result, the




                                            -5-
district court lacked the power to exercise supplemental jurisdiction over the state

law claims.

       We next consider whether this action could have been brought pursuant to

the district court’s exercise of diversity jurisdiction under 28 U.S.C. § 1332.        See

Lemmons , 39 F.3d at 266 (noting that no grounds existed for diversity jurisdiction

after determining federal question jurisdiction was lacking under § 1983). Section

1332 requires the parties be “citizens of different states” and “the matter in

controversy . . . exceed[] the sum or value of $75,000 exclusive of interest and

costs.” These requirements must be met at the time the action is filed; subsequent

events do not affect jurisdiction.     See Freeport-McMoRan, Inc. v. K N Energy,

Inc. , 498 U.S. 426, 428 (1990) (noting the “well-established rule that diversity of

citizenship is assessed at the time the action is filed”).   2
                                                                 “[I]f, from the face of the

pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the

amount claimed or if, from the proofs, the court is satisfied to a like certainty that

the plaintiff never was entitled to recover that amount, . . . the suit will be

dismissed.” Miera v. Dairyland Ins. Co.        , 143 F.3d 1337, 1340 (10th Cir. 1998)

(quoting St. Paul Mercury Indem. Co. v. Reb Cab Co.          , 303 U.S. 283, 289 (1938)).




       Thus, the fact that the district court awarded Evitt $100,000 in punitive
       2

damages is irrelevant to our analysis.

                                              -6-
The party asserting jurisdiction bears the burden of proving it.     See State Farm

Mut. Auto. Ins. Co. v. Narvaez , 149 F.3d 1269, 1271 (10th Cir. 1998).

       While the record indicates the parties are citizens of different states—Evitt

is a citizen of Oklahoma and Durland became a citizen of Mississippi twelve days

before Evitt’s federal complaint was filed (     see R. Doc. 5 at 1; R. Doc. 20, Ex. A

¶ 1)—Evitt’s complaint does not establish that the amount in controversy exceeds

$75,000.

       Evitt’s complaint seeks damages “in excess of $100,788.” (R. Doc. 5 at 3.)

However, Evitt’s § 1983 claim cannot be counted towards the jurisdictional

amount because, as discussed above, “it is apparent to a legal certainty” that Evitt

could not recover on this claim.    Miera , 143 F.3d at 1340 (quoting   St. Paul

Mercury Indem. Co. , 303 U.S. at 289); see also Polk County , 454 U.S. at 318-19

& nn.7 & 9; Lemmons , 39 F.3d at 266. As a result of the defects in Evitt’s

complaint, the true amount in controversy at the time of the complaint is not the

$100,788 Evitt pleaded, but rather that number reduced by the $33,596 Evitt

sought under his § 1983 claim. Thus, the true amount in controversy is only

$67,192.




                                               -7-
       Finally, we note three additional points bearing on the amount in

controversy. First, Evitt’s complaint seeks punitive damages.      3
                                                                       Although under

some circumstances Oklahoma law places no cap on a punitive damages award,

see Okla. Stat. Ann. tit. 23, § 9.1(D) (West Supp. 2000), Evitt has limited the

amount of punitive damages he seeks under his breach of contract claim to “treble

damages,” (R. Doc. 5 at 2), and has stated the total award requested, including

punitives, in his complaint. Because “the sum claimed by the plaintiff controls if

the claim is apparently made in good faith,” the amount in controversy attributable

to punitive damages from Evitt’s breach of contract claim is limited to the amount

explicitly stated in Evitt’s complaint.    State Farm Mut. Auto. Ins. Co.   , 149 F.3d at

1271 (quoting St. Paul Mercury Indem. Co.         , 303 U.S. at 288). Second, Evitt’s

claim for fraudulent misrepresentation seeks damages “in excess of” $33,596,

which includes treble punitive damages. (R. Doc. 5 at 3.) However, this Circuit

has held a claim for damages “in excess of” an amount that is itself less than the

jurisdictional minimum is not sufficient to confer jurisdiction.       See Laughlin v.

Kmart Corp. , 50 F.3d, 871, 873 (10th Cir. 1995). Third, Evitt seeks attorney’s

fees. “[W]hen a statute permits recovery of attorney’s fees[,] a reasonable


       3
        Throughout his complaint, Evitt cites Okla. Stat. Ann. tit. 23, § 9 to
support his claims for punitive damages. However, this statute was repealed in
1995 and replaced with a somewhat similar statute, Okla. Stat. Ann. tit. 23, § 9.1
(West Supp. 2000). Thus, we construe Evitt’s complaint as seeking punitive
damages under the current Oklahoma statute authorizing them.

                                            -8-
estimate may be used in calculating the necessary jurisdictional amount . . . .”

Miera , 143 F.3d at 1340 (citing   Missouri State Life Ins. Co. v. Jones   , 290 U.S.

199, 202 (1933)). Here, however, Evitt’s complaint cites no statute authorizing

attorney’s fees. For these reasons, Evitt’s complaint does not establish that the

amount in controversy exceeds $75,000 and is thus insufficient to permit diversity

jurisdiction.

      Because we find that the federal courts lack subject matter jurisdiction over

this action, we DISMISS the appeal and REMAND to the district court to vacate

the default judgment and dismiss this action.

      The mandate shall issue forthwith.


                                                 ENTERED FOR THE COURT



                                                 Carlos F. Lucero
                                                 Circuit Judge




                                           -9-
