Ngonde v. Lupus Superior LLC et al

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
AJAH THOMAS NGONDE, 	§
§
Plaintiff, 	§
§
V. 	§ 	No. 3:26-cv-364-E-BN
§
LUPUS SUPERIOR LLC and LUKA
SILVAROVICH,
§
§
§
Defendants. 	§
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
This case has been referred to the undersigned United States magistrate judge
for pretrial management pursuant to 28 U.S.C. § 636(b) and a standing order of
reference from United States District Judge Ada Brown. See Dkt. No. 1.
Plaintiff Ajah Thomas Ngonde filed a pro se complaint against Defendants
Lupus Superior LLC and Luka Silvarovich. See Dkt. No. 3. Ngonde’s claims arise
under the Federal Trade Commission Act (“FTCA”). See id. at 2.
For the following reasons, the Court should dismiss Ngonde’s complaint [Dkt.
No. 3] without prejudice for lack of subject-matter jurisdiction.
Legal Standards
The federal courts’ jurisdiction is limited, and they generally may only hear a
case of this nature if it involves a question of federal law or where diversity of
citizenship exists between the parties. See 28 U.S.C. §§ 1331, 1332.
Due to the limited nature of the federal courts’ jurisdiction, “[t]he burden of
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establishing subject matter jurisdiction in federal court rests on the party seeking to
invoke it.” St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir.
1998) (footnote omitted).
But the Court has an independent duty to ensure that there is subject matter
jurisdiction. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-84 (1999). “A
defect in the district court’s subject matter jurisdiction ... may be raised at any time
by the parties or the court itself and cannot be waived.” Hayes v. Gulf Oil Corp., 821
F.2d 285, 290-91 (5th Cir. 1987). “If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.” F ED. R. CIV. P.
12(h)(3).
Analysis
I. 	Ngonde cannot rely on federal question jurisdiction.
Federal question jurisdiction exists in all civil actions arising under the
Constitution, laws, or treaties of the United States. See 28 U.S.C. § 1331.
To determine whether federal question jurisdiction exists, courts apply the
“well-pleaded complaint” rule. The well-pleaded complaint rule “provides that federal
jurisdiction exists only when a federal question is presented on the face of the
plaintiff's properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987); Elam v. Kan. City S. Ry. Co., 635 F.3d 796, 803 (5th Cir. 2011).
“Most directly, and most often, federal jurisdiction attaches when federal law
creates the cause of action asserted.” Merrill Lynch, Pierce, Fenner & Smith Inc. v.
Manning, 578 U.S. 374, 383 (2016). And, so, if the Court finds a federally created
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cause of action on the face of the plaintiff’s well-pleaded complaint, the Court may
exercise federal question jurisdiction over the claim.
Ngonde asserts that the Court has federal question jurisdiction under Section
1331. See Dkt. No. 3 at 3.
But the sole basis for a federal question in his complaint is the FTCA. See id.
And the FTCA “nowhere purports to confer upon private individuals, either
consumers or business competitors, a right of action to enjoin the practices prohibited
by the Act or to obtain damages following the commission of such acts.” Holloway v.
Bristol-Myers Corp., 485 F.2d 986, 988-89 (D.C. Cir. 1973) (concluding that, “[o]n
careful examination of the Act and its legislative history, both when passed in 1914
and amended in 1938, we find strong indication that Congress did not contemplate
or intend such a private right of action.”); accord Arruda v. Curves Int’l, Inc., 861 F.
App’x 831, 835 (5th Cir. 2021) (per curiam) (“Plaintiffs concede the [FTCA] provides
no private right of action. Other circuits agree…. [And] Congress’s omission of a
private right of action in the FTCA controls.” (citations omitted)); Dillard v. Mortg.
Elec. Registration Sys., Inc., No. 3:10-cv-91-N, 2010 WL 11618069, at *2 (N.D. Tex.
Dec. 16, 2010) (“Courts … have long held that the FTC Act does not contain a private
right of action.” (citing Fulton v. Hecht, 580 F.2d 1243, 1248 n.2 (5th Cir. 1978) (citing
Holloway; Carlson v. Coca-Cola Co., 483 F.2d 279 (9th Cir. 1973)); citation omitted)).
And, so, because the only statute invoked by Ngonde in his complaint fails to
create a private right of action, the undersigned cannot find that the Court has
subject-matter jurisdiction under 28 U.S.C. § 1331.
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II. 	Ngonde cannot rely on diversity jurisdiction.
Diversity jurisdiction under 28 U.S.C. § 1332 may provide an alternative basis
for subject matter jurisdiction here, but Ngonde has not invoked it in his complaint.
And, even if he had, Section 1332 does not confer jurisdiction in this case.
Subject matter jurisdiction exists under Section 1332 only when there is
complete diversity of citizenship between the parties and the matter in controversy
exceeds $75,000. See Vantage Drilling Co. v. Hsin-Chi Su, 741 F.3d 535, 537 (5th Cir.
2014). “Complete diversity requires that all persons on one side of the controversy be
citizens of different states than all persons on the other side.” Harvey v. Grey Wolf
Drilling Co., 542 F.3d 1077, 1079 (5th Cir. 2008) (citing 28 U.S.C. § 1332); see also
Soaring Wind Energy, L.L.C. v. Catic USA Inc., 946 F.3d 742 (5th Cir. 2020).
The party invoking jurisdiction under Section 1332 is responsible for showing
that the parties are completely diverse. See Menchaca v. Chrysler Credit Corp., 612
F.2d 507, 511 (5th Cir. 1980); see also Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d
1254, 1259 (5th Cir. 1988) (“The burden of proving that complete diversity exists rests
upon the party who seeks to invoke the court’s diversity jurisdiction.”).
“For natural persons, § 1332 citizenship is determined by domicile, which
requires residency plus an intent to make the place of residency one's permanent
home.” SXSW v. Fed. Ins. Co., 83 F.4th 405, 407 (5th Cir. 2023).
And, while the party invoking subject-matter jurisdiction is not required to
prove an intent to make the place of residency a party's permanent home,
[i]n determining a litigant’s domicile, the court must address a variety
of factors. No single factor is determinative. The court should look to all
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evidence shedding light on the litigant's intention to establish domicile.
The factors may include the places where the litigant exercises civil and
political rights, pays taxes, owns real and personal property, has driver's
and other licenses, maintains bank accounts, belongs to clubs and
churches, has places of business or employment, and maintains a home
for his family.
Coury v. Prot, 85 F.3d 244, 251 (5th Cir. 1996) (citations omitted).
So, where the party invoking subject-matter jurisdiction under Section 1332
(1) merely concludes that a party is domiciled where he or she is alleged to currently
reside and (2) fails to meaningfully address any Coury factor as to any party, a court
cannot find that a party's domicile has been plausibly alleged and that complete
diversity supports subject-matter jurisdiction under Section 1332.
And “[f]or limited liability companies, § 1332 citizenship is determined by the
citizenship of ‘all of its members.’” SXSW, 83 F.4th at 407-08 (quoting Harvey v. Grey
Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008)).
Ngonde provides an address for each defendant. But an address is not enough
information to establish the citizenship of Defendant Silvarovich, a natural person.
And Ngonde does not allege the identity or citizenship of the members of Defendant
Lupus, a limited liability company.
And, so, the undersigned is not persuaded that diversity jurisdiction exists
under 28 U.S.C. § 1332.
Recommendation
For the reasons explained above, the Court should dismiss Plaintiff Ngonde’s
complaint [Dkt. No. 3] without prejudice for lack of subject matter jurisdiction.
The 14-day objection period, as outlined below, provides Ngonde with an
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opportunity to respond and, if he can, show the Court that it has federal subject-
matter jurisdiction over this action.
A copy of these findings, conclusions, and recommendation shall be served on
all parties in the manner provided by law. Any party who objects to any part of these
findings, conclusions, and recommendation must file specific written objections
within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); F ED. R. CIV.
P. 72(b). In order to be specific, an objection must identify the specific finding or
recommendation to which objection is made, state the basis for the objection, and
specify the place in the magistrate judge’s findings, conclusions, and recommendation
where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the magistrate judge is not specific. Failure
to file specific written objections will bar the aggrieved party from appealing the
factual findings and legal conclusions of the magistrate judge that are accepted or
adopted by the district court, except upon grounds of plain error. See Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996)
DATED: February 13, 2026
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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