Haywood Jackson Mizell v. James H. Weatherford, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10853
Non-Argument Calendar
____________________
HAYWOOD JACKSON MIZELL,
Plaintiff-Appellant,
versus
THE CITIZENS BANK,
JAMES H. WEATHERFORD,
Chairman,
Defendants-Appellees.
____________________
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2 Opinion of the Court 22-10853
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:21-cv-00337-WKW-SRW
____________________
Before W ILSON, L UCK , and ANDERSON, Circuit Judges.
PER C URIAM :
Haywood Jackson Mizell appeals the district court’s dismis-
sal of his complaint for lack of subject matter jurisdiction. We af-
firm.1
I.
Mizell’s complaint seeks relief against a bank and its chair-
man for an allegedly wrongful 2008 bankruptcy sale of a radio sta-
tion. Mizell insists the sale was unlawful because the bank never
produced an original promissory note during the proceedings.
Mizell doesn’t dispute that all parties are Alabama citizens, depriv-
ing the district court of diversity jurisdiction. Instead, he argues the
district court has subject matter jurisdiction because his complaint
raises a federal question. Mizell argued in the district court that the
Federal Communications Commission’s “regulation of airwaves”
1 The district court also dismissed Mizell’s complaint because it failed to state
a claim and lodged an improper collateral attack on a bankruptcy court’s or-
der. We don’t reach those additional grounds for dismissal because we agree
with the district court that Mizell hasn’t established subject matter jurisdic-
tion.
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22-10853 Opinion of the Court 3
supplied the basis for federal question jurisdiction. The district
court rejected this argument because—even had Mizell identified a
specific regulation—the commission’s regulatory regime was in-
sufficiently tied to his claims. On appeal, Mizell advances a differ-
ent federal question: “whether a corporate person can be made
exempt . . . from a private contract obligation supported by one of
the Federal Rules of [Evidence], Rule 1002 Requirement of the
Original.”
II.
When reviewing a district court’s dismissal for lack of sub-
ject matter jurisdiction, we review legal conclusions de novo and
jurisdictional factual findings for clear error.
Williams v. Poarch
Band of Creek Indians, 839 F.3d 1312, 1314 (11th Cir. 2016). Mizell
bears the burden of establishing subject matter jurisdiction.
Id. If
he fails to do so, his case must be dismissed.
Id.
Pro se complaints are construed liberally and held to less
stringent standards.
Campbell v. Air Jamaica Ltd., 760 F.3d 1165,
1168 (11th Cir. 2014). But this leniency has limits, and we will not
rewrite a “deficient pleading in order to sustain an action.”
Id. at
1168–69 (quoting
GJR Invs., Inc. v. Cnty. of Escambia, 132 F.3d
1359, 1369 (11th Cir. 1998)).
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4 Opinion of the Court 22-10853
III.
The district court properly dismissed this case for lack of
subject matter jurisdiction. Neither of Mizell’s theories of federal
question jurisdiction are viable.
A case raises a federal question if its claims arise under fed-
eral law.
Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 387 (2012)
(citing 28 U.S.C. § 1331). “A suit arises under the law that creates
the cause of action.”
Am. Well Works Co. v. Layne & Bowler Co.,
241 U.S. 257, 260 (1916);
accord Atl. Richfield Co. v. Christian, 140
S. Ct. 1335, 1350 (2020).
Although he doesn’t argue it on appeal, we consider
whether Mizell has federal question jurisdiction pursuant to the
Federal Communications Commission’s regulations.
See Gonzalez
v. Thaler, 565 U.S. 134, 141 (2012) (“When a requirement goes to
subject-matter jurisdiction, courts are obligated to consider
sua
sponte issues that the parties have disclaimed or have not pre-
sented. Subject-matter jurisdiction can never be waived or for-
feited.” (citation omitted)). In short, he doesn’t.
Mizell alleged a “[w]rongful foreclosure” claim against a
bank and its chairman. And he alleged that the wrongfully fore-
closed asset was a commission-licensed broadcast signal. But Miz-
ell’s suit doesn’t arise under federal law just because the foreclosed
asset was licensed and generally regulated by the commission.
See
Pan Am. Petroleum Corp. v. Superior Ct. of Del. In & For New
Castle Cnty., 366 U.S. 656, 663 (1961) (“[Claims] do not lose their
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22-10853 Opinion of the Court 5
character because it is common knowledge that there exists a
scheme of federal regulation . . . .”) Mizell must allege facts show-
ing how the commission’s licensing of the broadcast signal or how
its general regulatory framework provided a cause of action for his
claim. His failure to do so is fatal to this theory of federal question
jurisdiction.
Mizell pivots on appeal to a new theory: that his claim arises
under the Federal Rules of Evidence. That Rule requires “[a]n orig-
inal writing . . . to prove its content.” Fed. R. Evid. 1002. Read
liberally, Mizell’s jurisdictional theory is that the bank violated
Rule 1002 by not producing an original promissory note during the
2008 bankruptcy.
The Federal Rules of Evidence don’t create causes of action.
The statute authorizing the Rules plainly states the “rules shall not
abridge, enlarge or modify any substantive right.” 28 U.S.C.
§ 2072(b). Moreover, the very first Federal Rule of Evidence states
that “[t]hese rules apply to proceedings
in United States courts.”
Fed. R. Evid. 101 (emphasis added). This means the Rules only ap-
ply to “proceedings already commenced”; a plaintiff can’t “use the
rules to
initiate a proceeding.”
In re Madison Guar. Sav. & Loan
Ass’n, 173 F.3d 866, 869 (D.C. Cir. 1999) (“We know of no author-
ity, and indeed perceive no logic, that would support the proposi-
tion that the Rules of Evidence create any cause of action or ever
provide standing.”).
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6 Opinion of the Court 22-10853
Both of Mizell’s jurisdictional theories are meritless. The
district court properly dismissed his complaint for lack of subject
matter jurisdiction.
AFFIRMED.
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