                                                       [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                            No. 06-10516                  JULY 14, 2006
                        Non-Argument Calendar           THOMAS K. KAHN
                                                             CLERK
                      ________________________

                    D. C. Docket No. 04-22471-CV-AJ

NICOLAS S. LAURENT, Guardian
for Jeffrey S. Laurent,
Arthur S. Laurent, Nathalie S.
Laurent, Barbara S. Laurent,

                                                      Plaintiff-Appellant,

                                 versus

UNITED STATES TRUSTEE,
Nancy N. Herkert,
BANK ATLANTIC F.S.B.,
JOANNE M. CHIN, Vice President
for Bank Atlantic Federal
Savings Bank #810,
ELSA C. MACHADO, Property Tax Collector,
MIAMI-DADE COUNTY PROPERTY TAX COLLECTOR,
RACHEL BAUM, Finance Director,
MIAMI-DADE COUNTY COMMISSIONERS, Miami
Dade County, FL,
HUGO MARITNEZ,
STEVEN N. ROSENTHAL, et al.,


                                                  Defendants-Appellees.
                            ________________________

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

                                    (July 14, 2006)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Nicholas S. Laurent, proceeding pro se, appeals the district court’s dismissal

of his amended complaint against certain state and private defendants. After

review, we affirm.

                                I. BACKGROUND

      Laurent, a resident of Florida, filed this action pro se in the United States

District Court for the Southern District of Florida seeking relief based on events

that occurred during the pendency of a Chapter 13 bankruptcy action commenced

by Laurent in the Southern District of Florida. Laurent’s amended complaint

named as defendants Nancy N. Herkert, United States Bankruptcy Trustee; Joanne

M. Chin, the vice-president for BankAtlantic Federal Savings Bank #810;

BankAtlantic Federal Savings Bank; Hugo A. Martinez, a mortgagor who

foreclosed on Laurent’s home; Stephen N. Rosenthal, Martinez’s attorney; Elsa C.

Machado, a property tax collector; Rachel Baum, a county finance director; the



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Miami-Dade County Property Tax Collector; and the Miami-Dade County Board

of County Commissioners. Laurent alleged that all defendants were either

residents of Florida or authorized to do business in Florida.

       The district court dismissed without prejudice Laurent’s original complaint

for failing to comply with Federal Rule of Civil Procedure 8(a), for failing to

obtain permission to sue the bankruptcy trustee and for lack of diversity

jurisdiction. The district court sua sponte granted Laurent leave to file an amended

complaint, which Laurent did. Laurent’s amended complaint named the same

defendants and asserted claims of fraud (count 1), misconduct (count 2), breach of

contract (count 3), and misrepresentation (count 4). Within the body of the

amended complaint, Laurent also alleged a number of federal criminal violations,

and a violation of an automatic stay in the bankruptcy proceedings.

       Upon the defendants’ motions, the district court dismissed the amended

complaint without prejudice as to all parties for lack of subject matter jurisdiction.1

The district court concluded that Laurent’s claims were either criminal claims for

which there was no private cause of action or state tort claims for which there was

no diversity of citizenship. The district court noted that Laurent raised one


       1
        The district court alternatively dismissed the amended complaint for failing to: (1)
comply with Rule 8(a); (2) obtain permission to sue the bankruptcy trustee; (3) state claims upon
which relief could be granted; (4) plead fraud with particularity; and (5) provide a more definite
statement.

                                                3
possible federal claim: that Chin had violated the automatic stay requirement of 11

U.S.C. § 362(a). However, as to that potential claim, the district court concluded

that the amended complaint failed to state a claim for which relief could be granted

because Laurent admitted that the bankruptcy court had granted an exception to the

stay, thus making a violation of the stay impossible.2 Finally, the district court

determined that the claim against bankruptcy trustee Hekert failed because Laurent

had not first received leave from the bankruptcy court to sue the trustee.

       Although the district court dismissed the amended complaint without

prejudice, the district court denied leave to amend and directed Laurent to seek

leave, as required by Federal Rule of Civil Procedure 15(a), before filing a second

amended complaint, as follows:

              I am not dismissing with prejudice at this time, though I am
       tempted to do so. At the same time, I am not granting Mr. Laurent
       leave to file another amended complaint. If Mr. Laurent wants to file
       another amended complaint, he must seek and obtain leave of court to
       do so as required by Rule 15(a). Any motion for leave to file must be
       accompanied by the second amended complaint. . . .
              Any request to file a second amended complaint must be filed
       by January 13, 2006.

Laurent did not seek leave to file a second amended complaint. Instead, Laurent

filed this appeal.



       2
          Assuming alternatively that this potential claim created federal question jurisdiction, the
district court declined to exercise supplemental jurisdiction over the state law claims.

                                                  4
                                     II. DISCUSSION

       On appeal, Laurent argues that the district court erred by dismissing his

complaint for lack of subject matter jurisdiction. We review de novo the district

court’s dismissal of a complaint for lack of subject matter jurisdiction. Samco

Global Arms, Inc. v. Arita, 395 F.3d 1212, 1214 n.4 (11 th Cir. 2005). In order to

have subject matter jurisdiction, a district court must be able to exercise either

diversity jurisdiction or federal question jurisdiction. 28 U.S.C. §§ 1331, 1332.

Diversity jurisdiction exists if “the matter in controversy exceeds the sum or value

of $75,000, exclusive of interest and costs, and is between . . . citizens of different

States.” 28 U.S.C. § 1332(a)(1). As for federal question jurisdiction, 28 U.S.C.

§ 1331 provides that “[t]he district courts shall have original jurisdiction of all civil

actions arising under the Constitution, laws, or treaties of the United States.” 28

U.S.C. § 1331.

       Here, no diversity jurisdiction existed as all the parties were Florida citizens.

Furthermore, the district court correctly determined that no federal question

jurisdiction existed because Laurent’s claims were based on state common law

torts, specifically the torts of fraud, breach of contract, misconduct, and

misrepresentation. See 28 U.S.C. § 1331.3 The district court also lacked subject


       3
        As the district court correctly noted, Laurent’s only potential federal claim, asserted
under 11 U.S.C. § 362(h), is not viable because Laurent alleged in his amended complaint that

                                                5
matter jurisdiction over Herkert, as Chapter 13 Trustee, because Laurent failed to

get permission from the bankruptcy court to sue her. See Carter v. Rodgers, 220

F.3d 1249, 1252 (11 th Cir. 2000) (concluding that a federal district court has no

subject matter jurisdiction over a suit against a Chapter 13 Bankruptcy Trustee

unless the plaintiff first obtains permission to proceed from the bankruptcy court).

Though Laurent argues that he did receive permission to file suit, he made no such

allegation in his amended complaint and did not seek leave from the district court

to amend that complaint to add such an allegation.

       Laurent additionally argues that the district court abused its discretion in not

sua sponte granting him leave to file a second amended complaint. A party to a

civil action may amend its pleading once as a matter of course before a responsive

pleading is served. Fed. R. Civ. P. 15(a). Otherwise, a party must obtain leave

from the court to amend a pleading, though “leave shall be freely given when




the bankruptcy court gave the parties in the current suit an exemption from the stay.
Consequently, to the extent the amended complaint alleged a claim under 11 U.S.C. § 362(h), the
district court properly dismissed it for failure to state a claim for which relief can be granted.
Furthermore, given Laurent’s admission in his amended complaint, the claim was wholly
insubstantial and frivolous and properly dismissed for lack of subject matter jurisdiction. See
Blue Cross & Blue Shield of Ala. v. Sanders, 138 F.3d 1347, 1351-52 (11th Cir. 1998)
(explaining that a federal question claim may be dismissed for lack of subject matter jurisdiction
if the “‘claim is wholly insubstantial and frivolous’”) (citation omitted). Moreover, the district
court did not abuse its discretion in declining to exercise supplemental jurisdiction over
Laurent’s state law claims once it determined that it lacked jurisdiction to entertain the potential
§ 362(h) claim. See Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088-89 (11th Cir. 2004).


                                                 6
justice so requires.” Id. We review a district court’s denial of leave to amend for

clear abuse of discretion. Andrx Pharm. v. Elan Corp., PLC, 421 F.3d 1227, 1236

(11 th Cir. 2005). “Leave may be denied because of undue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party by virtue

of allowance of the amendment, [or] futility of amendment.” Id. (citation and

quotations omitted).

      The district court did not abuse its discretion by failing to give sua sponte

Laurent leave to file a second amended complaint. Responsive pleadings had been

filed in Laurent’s action. Therefore, Laurent was required by Rule 15(a) to obtain

leave from the district court before filing a second amended complaint.

Furthermore, the district court had already given Laurent one opportunity to amend

his complaint and was not required to give him a second chance. Thus, the district

court did not abuse its discretion in dismissing Laurent’s amended complaint

without prejudice.

      Finally, the district court’s dismissal order even advised Laurent that he

could seek leave to file a second amended complaint. However, Laurent chose to

appeal the dismissal order and failed to seek leave to file a second amended

complaint. If Laurent is now barred from amending his complaint, it is not because



                                          7
of a clear abuse of discretion on the part of the district court, but due to his own

failure to make the motion required by Rule 15(a). See Andrx Pharm., 421 F.3d at

1236.

        Accordingly, we affirm the district court’s dismissal of Laurent’s amended

complaint.

        AFFIRMED.




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