            Case: 15-11915   Date Filed: 08/15/2016   Page: 1 of 7


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-11915
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:14-cv-00912-WKW-SRW



CROOKED CREEK PROPERTIES, INC., a Nevada corporation,

                                                             Plaintiff-Appellant,

                                     versus

RICHARD ENSLEY, individually, d.b.a. Park Place Center, LTD., VENTURE
SERVICES, d.b.a. Danya Apartments Management Group, ANITA LILES,
individually, GEORGE HUTCHINSON, individually, GEORGE ELLIS
HUTCHINSON, JR. PRESENT INTEREST TRUST NO. 1,

                                                         Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      ________________________

                             (August 15, 2016)

Before WILSON, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:
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       Appellant Crooked Creek Properties, Inc. (Crooked Creek) appeals the

dismissal of its claim against appellees Richard Ensley, Anita Liles, and George

Hutchinson (Appellees), for lack of subject matter jurisdiction. The district court

dismissed this case on April 7, 2015, after affording Crooked Creek an opportunity

to cure the jurisdictional deficiencies in its Complaint, which Crooked Creek—a

represented party—failed to do. After review, 1 and following additional

opportunities to cure at the appellate level, we affirm.

       On March 24, 2015, the district court independently raised the issue of

whether it had subject-matter jurisdiction over this action. Although the Complaint

predicated subject-matter jurisdiction on the basis of diversity jurisdiction, see 28

U.S.C. § 1332(a), the Complaint contained insufficient allegations of citizenship as

to Crooked Creek and as to two defendants, Venture Services and the George Ellis

Hutchinson, Jr., Present Interest Trust No. 1. Rather than dismiss the Complaint,

the district court granted Crooked Creek leave to cure the jurisdictional

deficiencies. On March 30, 2015, Crooked Creek filed a Statement of Jurisdiction

that: (1) stated that Crooked Creek was incorporated in Nevada and that its

principal place of business was “Nevada and Alabama;” (2) stated that Appellees

were citizens of Alabama; (3) failed to address the citizenship of Venture Services

and the George Ellis Hutchinson, Jr., Present Interest Trust No. 1; and (4) alleged

       1
         “We review the dismissal of an action for lack of subject matter jurisdiction de novo.”
Pillow v. Bechtel Const., Inc., 201 F.3d 1348, 1351 (11th Cir. 2000).
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that the district court had “jurisdiction and broad powers to remedy violations of

the federal Constitution.”

      The district court dismissed the Complaint for lack of subject-matter

jurisdiction on the basis that Crooked Creek could have only a single principal

place of business and that if that place were Alabama then diversity jurisdiction

would be lacking. See Metro. Life Ins. Col. v. Estate of Cammon, 929 F.2d 1220,

1223 (7th Cir. 1991) (“[A]ll [courts] agree that corporations have one ‘principal’

place of business for purposes of 28 U.S.C. § 1332(c)(1).”). Moreover, the

Complaint and Statement of Jurisdiction remained insufficient to allege the

citizenship of Venture Services and the George Ellis Hutchinson, Jr., Present

Interest Trust No. 1. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365,

373 (1978) (“[D]iversity jurisdiction does not exist unless each defendant is a

citizen of a different State from each plaintiff.”). Finally, an allegation that the

district court had “jurisdiction and broad powers to remedy violations of the

federal Constitution” was insufficient to invoke federal-question jurisdiction

because the Complaint did not plead “a colorable claim ‘arising under’ the

Constitution or laws of the United States.” Arbaugh v. Y&H Corp., 546 U.S. 500,

513 (2006). The complaint alleged only state-law causes of action, see id. at 513

n.10 (explaining that a claim is not colorable “if it is immaterial and made solely

for the purpose of obtaining jurisdiction or is wholly insubstantial and frivolous”


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(quotation marks omitted)), and did not contain any allegations suggesting that any

of the defendants were state actors, see, e.g., Lyes v. City of Riviera Beach, 166

F.3d 1332, 1348-49 (11th Cir. 1999) (“The Equal Protection Clause . . . is a

guarantee of protection against unjust state action; it does not reach the conduct of

private individuals.”); Jeffries v. Ga. Residential Fin. Auth., 678 F.2d 919, 922

(11th Cir. 1982) (explaining that “the fourteenth amendment proscription against

deprivations of property without due process of law reaches only government

action and does not inhibit the conduct of purely private persons in their ordinary

activities”). Crooked Creek appealed.

      Crooked Creek has filed various motions with this Court in an effort to

establish jurisdiction. The first of these motions was a motion to amend the

jurisdictional allegations of its Complaint. This Court denied that motion on the

basis that the proposed amendments did not establish federal-question jurisdiction

and did not correct the jurisdictional deficiency as to Venture Services and the

George Ellis Hutchinson, Jr., Present Interest Trust No. 1. Crooked Creek then

moved to dismiss Venture Services and the George Ellis Hutchinson, Jr., Present

Interest Trust No. 1 as unnecessary parties. See Fed. R. Civ. P. 19; Fed. R. Civ. P.

21. We remanded to the district court for the purpose of determining whether

Venture Services and the George Ellis Hutchinson, Jr., Present Interest Trust No. 1

were unnecessary parties. The district court determined that Venture Services and


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the George Ellis Hutchinson, Jr., Present Interest Trust No. 1 were unnecessary

parties and dismissed them pursuant to Rules 19 and 21. But the district court also

determined that it could not proceed on the merits due to still-insufficient

allegations of the corporate citizenship of Crooked Creek. Reasoning that a full

remand would be futile, the district court returned the record in this case to the

court of appeals.

      The record reflects that Crooked Creek has been given multiple

opportunities to cure the jurisdictional defects in this case, and that each time

Crooked Creek has failed to do so. First, the Complaint was insufficient to

establish diversity jurisdiction. Second, the Statement of Jurisdiction submitted to

the district court on March 30, 2015, was insufficient—both as to Venture Services

and the George Ellis Hutchinson, Jr., Present Interest Trust No. 1, and as to

Crooked Creek itself—notwithstanding the fact that the district court gave Crooked

Creek explicit instructions regarding the allegations required to establish

jurisdiction. Third, Crooked Creek failed to establish jurisdiction when it moved

this Court to amend the jurisdictional allegations in its Complaint. This Court

denied the motion on the basis that the proposed amendments did not correct the

jurisdictional deficiency. Fourth, Crooked Creek failed to address our

jurisdictional concerns by moving to dismiss Venture Services and the George

Ellis Hutchinson, Jr., Present Interest Trust No. 1. In particular, the motion to


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dismiss did not address the second jurisdictional defect—an ongoing failure to

allege the corporate citizenship of Crooked Creek. Fifth, Crooked Creek did not

attempt to cure the jurisdictional issue on remand. Our order on remand permitted

the district court to determine whether it could proceed on the merits after

dismissing Venture Services and the George Ellis Hutchinson, Jr., Present Interest

Trust No. 1. But Crooked Creek did not argue to the district court that full remand

would be appropriate. Instead, Crooked Creek characterized the question of

whether a jurisdictional defect still existed as “gratuitous” and “irrelevant.”

      Crooked Creek now concedes that its allegations as to diversity in its

Complaint “were insufficient,” that listing its principal place of business as both

Nevada and Alabama was “superfluous,” and that it “incorrectly assumed that a

corporation’s domicile is also the place where it is a citizen.” And Crooked Creek

again requests an opportunity to cure these jurisdictional defects by alleging that its

sole principal place of business is Nevada. But Crooked Creek is represented by

legal counsel, see Haines v. Kerner, 404 U.S. 519, 520 (1972) (explaining that the

allegations of pro se plaintiffs are held to “less stringent standards than formal

pleadings drafted by lawyers”), and has been afforded ample opportunity to

establish diversity jurisdiction, see King v. Cessna Aircraft Co., 505 F.3d 1160,

1171 (11th Cir. 2007) (“The burden to show the jurisdictional fact of diversity of

citizenship is on the plaintiff.” (quoting Slaughter v. Toye Bros. Yellow Cab Co.,


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359 F.2d 954, 956 (5th Cir. 1966))). Although “[d]efective allegations of

jurisdiction may be amended,” 28 U.S.C. § 1653, courts may deny a motion to

amend on the basis of “undue delay, bad faith or dilatory motive . . . , repeated

failure to cure deficiencies by amendments previously allowed, undue prejudice to

the opposing party by virtue of allowance of the amendment, [and] futility of

amendment,” Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc.,

556 F.3d 1232, 1241 (11th Cir. 2009). This Court will not provide Crooked Creek

with a sixth opportunity to refine its jurisdictional allegations. We therefore affirm

the dismissal of this matter for lack of subject matter jurisdiction. 2

       AFFIRMED.




       2
        Crooked Creek’s Motion for Reconsideration of our April 14, 2016, order denying
Crooked Creek’s motion for summary judgment, and denying as moot several other pending
motions, is DENIED. All other outstanding motions are DENIED as moot.
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