                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                       FOR THE ELEVENTH CIRCUIT
                                                U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                               May 3, 2005
                               No. 04-14885                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                  D. C. Docket No. 04-01883-CV-T-26-TGW

MEL ABELE,


                                                               Plaintiff-Appellant,

                                     versus

GRANT TOLBERT,
RON ALIFF,

                                                           Defendants-Appellees.

                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                                 (May 3, 2005)

Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.

PER CURIAM:

     Mel Abele appeals pro se the dismissal of his lawsuit for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure 12(h)(3). We affirm in

part and vacate in part.

      We review de novo a dismissal for lack of jurisdiction and accept the well-

pleaded allegations of the complaint as true. Samco Global Arms, Inc., v. Arita,

395 F.3d 1212, 1214 n.4 (11th Cir. 2005). Abele asserted two possible bases of

federal jurisdiction: federal question jurisdiction under 28 U.S.C. section 1331,

and diversity jurisdiction under 28 U.S.C. section 1332. Because Abele did not

allege in his complaint that he and the defendants were citizens of different states,

the district court correctly found that diversity jurisdiction was lacking under 28

U.S.C. section 1332. We affirm that aspect of the holding of the district court.

      We disagree with the holding of the district court that Abele failed to show

that federal question jurisdiction existed. There is a difference between the lack of

subject matter jurisdiction and the failure to state a claim upon which relief can be

granted. Blue Cross & Blue Shield of Ala. v. Sanders, 138 F.3d 1347, 1351-52

(11th Cir. 1998). “The test of federal jurisdiction is not whether the cause of

action is one on which the claimant can recover. Rather, the test is whether the

cause of action alleged is so patently without merit as to justify . . . the court’s

dismissal for want of jurisdiction.” McGinnis v. Ingram Equip. Co., Inc., 918 F.2d

1491, 1494 (11th Cir. 1990) (en banc) (citations and quotation marks omitted).

                                            2
Jurisdiction is not lost because a complaint fails to state a cause of action on which

the plaintiff could actually recover. Bell v. Hood, 327 U.S. 678, 682, 66 S. Ct.

773, 776 (1946). If the allegations in the complaint do not state a ground for

relief, the dismissal of the case should be on the merits, not for want of

jurisdiction. Id.

      Whether a claim arises under federal law for purposes of federal question

jurisdiction is governed by the “well-pleaded complaint” rule, which provides that

federal jurisdiction exists only when a federal question is presented on the face of

the complaint. Dunlap v. G&L Holding Group, Inc., 381 F.3d 1285, 1290 (11th

Cir. 2004). Furthermore, because Abele is pro se, we must construe his complaint

more liberally than if it had been drafted by a lawyer. Powell v. Lennon, 914 F.2d

1459, 1463 (11th Cir. 1990). In the light of that relaxed standard, we conclude

that Abele’s complaint raised several federal questions: (1) whether the defendants

violated the Racketeer Influenced and Corrupt Organizations Act (RICO), 18

U.S.C. section 1961 et seq.; (2) whether the defendants violated Abele’s

constitutional right to due process of law; and (3) whether the defendants violated

the Takings Clause of the Fifth and Fourteenth Amendments to the Constitution.

      The district court erred in dismissing Abele’s complaint for lack of a federal

question. The district court did not find that these federal laws were invoked in

                                          3
Abele’s complaint solely to obtain jurisdiction, nor did the district court find that

Abele’s claims were insubstantial and frivolous. Cf. Sanders, 138 F.3d at 1352. If

the “challenge to the court’s jurisdiction [wa]s also a challenge to the existence of

a federal cause of action, the proper course of action for the district court . . . [wa]s

to find that jurisdiction exist[ed] and deal with the objection as a direct attack on

the merits of the plaintiff’s case.” McGinnis, 918 F.2d at 1494.

      The district court correctly held that diversity jurisdiction was lacking. The

district court, however, erred in dismissing this case for lack of federal question

jurisdiction. We vacate that ruling and remand for further proceedings.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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