           Case: 18-13665   Date Filed: 05/14/2019   Page: 1 of 5


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-13665
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:18-cv-03195-TWT



JAMES NATHANIEL DOUSE,

                                                           Plaintiff-Appellant,

                                  versus

METRO STORAGE, LLC,
METRO SELF STORAGE / DUNWOODY STORAGE, LLC,
METRO STONE MOUNTAIN, LLC,
METRO SANDY SPRINGS, LLC,

                                                        Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                             (May 14, 2019)

Before WILSON, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      James Douse, proceeding pro se, appeals the district court’s sua sponte

dismissal of his complaint for lack of subject matter jurisdiction. He argues that

the district court erred in dismissing his complaint because he established federal

question and diversity jurisdiction. As to federal question jurisdiction, he argues

that he alleged a federal claim under the Federal Tort Claims Act, specifically, 28

U.S.C. § 2679, and 42 U.S.C. § 1983. He also alleges, for the first time on appeal,

violations of federal consumer laws and his Fourth and Fourteenth Amendment

rights. As to diversity jurisdiction, he alleges that he established diversity of

citizenship.

      Whether a district court has subject matter jurisdiction to decide a case is a

question of law to be reviewed de novo. See Pintando v. Miami-Dade Hous.

Agency, 501 F.3d 1241, 1242 (11th Cir. 2007). A district court has an independent

obligation to determine whether subject matter jurisdiction exists even in the

absence of a challenge from any party. Arbaugh v. Y&H Corp., 546 U.S. 500, 514

(2006). When it determines that it does not have subject matter jurisdiction, the

court must dismiss the complaint in its entirety. Id.

      A district court has original jurisdiction to hear two types of cases. See 28

U.S.C. §§ 1331, 1332. First, a district court has jurisdiction over all civil actions

that involve a federal question, or, in other words, claims that arise under the

Constitution, laws, or treaties of the United States. See id. § 1331. A district court


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may dismiss a federal question claim for lack of subject matter jurisdiction when:

(1) the alleged federal claim “clearly appears to be immaterial and made solely for

the purpose of obtaining jurisdiction;” or (2) the claim is “wholly insubstantial and

frivolous.” Blue Cross & Blue Shield of Ala. v. Sanders, 138 F.3d 1347, 1352

(11th Cir. 1998).

      Second, a district court has jurisdiction over all civil actions where the

amount in controversy exceeds $75,000.00 and is between citizens of different

states. See 28 U.S.C. § 1332(a). A corporation is considered a citizen of every

state where it is incorporated and where it has a principal place of business. See id.

§ 1332(c)(1). Diversity of citizenship is assessed at the time the lawsuit is

commenced. Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 428

(1991).

      To state a claim under 42 U.S.C. § 1983, the plaintiff must show that he

“was deprived of a federal right by a person acting under color of state law.”

Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). “A person

acts under color of state law when he acts with authority possessed by virtue of his

employment with the state.” Id. To state a claim under the Federal Tort Claims

Act, the plaintiff must, at the very least, allege a claim against the United States

and submit that claim to the appropriate federal agency for a denial of the claim

before he is permitted to file in the district court. See 28 U.S.C. §§ 2674, 2675.


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         Additionally, a party waives his right to challenge on appeal an argument

that he failed to raise before the district court. See Bryant v. Jones, 575 F.3d 1281,

1296 (11th Cir. 2009). Further, we will not entertain arguments that are raised for

the first time in a reply brief. See Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir.

2003).

         Here, as an initial matter, Douse has waived any argument regarding

violations of federal consumer laws and his Fourth and Fourteenth Amendment

rights because he did not raise them before the district court and, instead, raised

them for the first time in his reply brief.

         As to his other claims, the district court did not err in determining that Douse

did not establish federal question jurisdiction. Douse did not state a claim under 42

U.S.C. § 1983 because Metro Storage, LLC (“Metro Storage”) is not a state actor

and the harm to him arose from purely private conduct. Similarly, he did not state

a claim under 28 U.S.C. § 2679, or, more generally under the Federal Tort Claims

Act, because the United States is not a party to the litigation. Further, Douse’s

claims predominantly involve Georgia contract, negligence, and landlord/tenant

law, as demonstrated by his numerous references to those areas of law in his

complaint, and his brief, passing references to his federal claims demonstrate that

they are immaterial and made for the purpose of obtaining jurisdiction in federal

court.


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      Moreover, the district court did not err in determining that Douse did not

establish diversity jurisdiction. He admitted in his complaint that he was a resident

of Georgia and that Metro Storage had its principal place of business in Georgia,

and in doing so, he acknowledged that there was no diversity of citizenship.

Accordingly, we affirm.

      AFFIRMED.




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