GALLIPEAU v. MUND

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
DENNIS GALLIPEAU,
Plaintiff,
vs. Case No. 4:25-cv-229-RH-MAF
SCOTT MUND,
Defendant.
______________________/
REPORT AND RECOMMENDATION
On May 12, 2025, Plaintiff, a South Carolina resident proceeding pro
se and in forma pauperis, filed a civil complaint alleging diversity jurisdiction
for state tort claims against Defendant, a Florida resident also proceeding
pro se. See ECF No. 1. Plaintiff is proceeding on his amended complaint,
ECF No. 6. The complaint was screened by the Court under 28 U.S.C § 1915
and deemed sufficient for service. ECF No. 10. Before the Court is
Defendant’s motion to dismiss for lack of jurisdiction. ECF No. 13. Plaintiff
filed a response in opposition. ECF No. 15.
I. Allegations of the Amended Complaint, ECF No. 6
The Court accepts the non-conclusory, factual allegations in the
amended complaint as true. See Oladeinde v. City of Birmingham, 963 F.2d
1481, 1485 (11th Cir. 1992), cert. denied, 113 S. Ct. 1586 (1993). Plaintiff
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signed a one-year residential lease agreement with Defendant in July 2024
for shared use of Defendant’s home in Irmo, South Carolina. ECF No. 6 at
9. At the time Plaintiff entered the lease, Defendant also lived in the house.
Id. But on April 19, 2025, Defendant moved to Tallahassee, Florida. Id. at 10.
Over the next few weeks Defendant tried to sell the house without providing
Plaintiff notice and took several other steps to try to force Plaintiff out of the
home, including shutting off the internet and electricity. Id. at 10-11.
On May 3, 2025, things escalated. Defendant “drove from his
residence in Florida” to the South Carolina home. Id. at 11. Defendant “shut
off the water” and “staged a break in” by making it look like “the front door
had been kicked in.” Id. Defendant “called 911 [to report] a burglary in
progress.” Defendant was armed with a handgun. Id. He “held [the 72-year-
old] Plaintiff at gunpoint, ordered Plaintiff not to shut the front door,” and
threatened Plaintiff that police were on the way to remove him from the home
and arrest him. Id. at 12. Defendant also told Plaintiff he “had used his
position in the Social Security Administration to access Plaintiff’s file” and
Plaintiff would lose his benefits and “go to federal prison.” Id. Armed police
units arrived and ordered Plaintiff and Defendant outside. Id. After an
investigation, police reported that Defendant’s 911 call “did not reflect the
actual situation,” which was “a landlord-tenant dispute.” Id. No arrests were
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made. Plaintiff alleges he was never in violation of the lease and “paid his
rent [of $800 per month] on time.” Id. at 9.
Plaintiff alleges three claims: Count I - Breach of Contract; Count II -
Assault; and Count III - Intentional Infliction of Emotional Distress. Id. at 13-
14. He seeks compensatory and punitive damages. Id. Plaintiff’s listed
injuries, while vague, revolve around emotional distress. Id. He does not
include a specific monetary amount. On the court complaint form, he
checked the box for diversity jurisdiction, which explains that “the amount in
controversy must be more than $75,000.” Id. at 3-4.
II. Argument of the Parties
Defendant filed his motion to dismiss pursuant to Rules 12(b)(1), lack
of subject matter jurisdiction, and 12(b)(2), lack of personal jurisdiction. ECF
No. 13 at 1. He claims Plaintiff failed to properly allege diversity jurisdiction
because Plaintiff did not plead damages of $75,000 or more. Id. at 2, 4-6.
Defendant also claims both he and Plaintiff “were permanent residents and
domiciled in South Carolina when the dispute arose.” Id. at 2. Additionally,
he argues Plaintiff’s breach of contract claim is precluded under res judicata
because Plaintiff already litigated that issue in South Carolina. Id. at 3.
Defendant’s motion includes eleven lettered exhibits. Id. at 8-42.
Plaintiff does not dispute that he raised a breach of contract
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counterclaim in the South Carolina eviction proceeding. ECF No. 15 at 1. But
he argues that the counterclaim has “not been adjudicated” and is still
“pending in the Richland County Circuit Court” while his appeal is ongoing.
Id. at 3. Next, Plaintiff argues that by “invok[ing] this Court’s diversity
jurisdiction” on the complaint form, “he clearly acknowledged, affirmed, and
certified diversity and amount in controversy,” even though he “did not
demand any specific amount of damages.” Id. at 3-4. Plaintiff agrees that
both he and Defendant resided in South Carolina when the lease was signed,
but disputes that Defendant was still a resident of South Carolina after April
19, 2025 when Defendant “moved out.” Id. at 3.
III. Discussion
A. The South Carolina Case
Defendant, through counsel, filed an application for ejectment
(eviction) against Plaintiff in Richland County Magistrate Court on May 22,
2025. Docket for Case 2025CV4010502032, ECF No. 13 at 18; Application
for Ejectment, ECF No. 13 at 27.1 Plaintiff filed an answer with six affirmative
1 Both parties include a copy of the eviction application as an exhibit. ECF No. 13 at 27;
ECF No. 15 at 8. Under the box checked for “The tenant fails or refuses to pay the rent
when due or when demanded in the amount of, $___,” Defendant’s exhibit has
“$4,800.00” written above the blank space. ECF No. 13 at 27. This is consistent with the
past due amount in Defendant’s notice letter to Plaintiff. ECF No. 13 at 33. Plaintiff’s
exhibit has nothing in the blank space. ECF No. 15 at 8. Plaintiff claims Defendant has
fraudulently altered the original—a serious accusation. ECF No. 15 at 2. But the Court
cannot determine which exhibit is the original because neither has a filing stamp or other
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defenses and four counterclaims under South Carolina landlord-tenant law.
ECF No. 13 at 9-14. Plaintiff’s first three counterclaims alleged Defendant
was in breach of the lease for turning off the internet, electricity, and water
without notice to Plaintiff. Id. at 12-14 (alleging three violations of S.C. Code
Ann. § 27-40-660 and also noting the “reported break-in” and false 911 call).
Plaintiff’s fourth counterclaim alleged Defendant’s actions of shutting off
services were in retaliation for Plaintiff’s complaints. Id. at 14 (alleging
violation of S.C. Code Ann. § 27-40-910).
Under South Carolina law, “[i]n any action where the landlord sues for
possession and the tenant raises defenses or counterclaims pursuant to [the
landlord-tenant code] or the rental agreement, the tenant is required the pay
the landlord” rent that becomes due and all past due rent, as determined by
the magistrate court. S.C. Code Ann. § 27-40-790(a)-(b). The payments are
held by the magistrate court as a bond. See Bond to Stay Execution on
Judgment for Eviction, ECF No. 13 at 23. After a hearing on June 17, 2025,
the magistrate ordered Plaintiff to pay $800 in rent per month beginning July
1, 2025 “in order for the court to maintain [Plaintiff’s] counterclaim.” Id.
Plaintiff was also required to post a bond of $2,940 based on “arrearages
certification and the filed version is not available to view on the Richland County online
docket. Further, the amount of alleged past due rent is not at issue in this case.
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from February 2025” by June 23, 2025. Id. Plaintiff signed the magistrate’s
order, acknowledging that he was requesting the court “stay execution on
the Judgement for Ejectment until” further hearing. Id. “Should [Plaintiff] not
appear and show cause within ten days,” the magistrate court would issue
the ejectment. Id., citing S.C. Code Ann. § 27-37-40.
Plaintiff did not post the bond as required. Instead, he filed an appeal
of the magistrate court’s order to the circuit court the day the bond was due.
ECF No. 13 at 20-23. On July 3, 2025, Plaintiff left a note at the residence
stating, “Deputy, I voluntarily surrender possession. No one here now for you
to serve. Left key in mailbox. Notified landlord’s attorney.” ECF No. 13 at 25.
On July 10, 2025, the magistrate court noted Plaintiff’s failure to pay the bond
and directed the clerk to issue the eviction warrant. ECF No. 13 at 16. On
July 24, 2025, the magistrate judge denied Plaintiff’s “motion for an order
directing the clerk to schedule the trial on [his] counterclaims,” because
“[Plaintiff] failed to comply” with “bond.” Amended Notice of Appeal filed
August 21, 2025, Gallipeau v. Mund, Case No. 2025CP4004393 (Richland
County Court of Common Pleas).2 Plaintiff’s amended notice of appeal
2 This information was not provided by the parties, which could have easily been done
through a supplemental filing. The Court located the appellate filings on the Richland
County Court of Common Pleas online docket. The Court takes judicial notice of the case
filings in 2025-CP-4004393. Plaintiff’s motion with the magistrate judge’s handwritten
denial is the second page of Plaintiff’s Amended Notice of Appeal.
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sought review of the magistrate court judgments “for possession of
the…property,” the amount of bond required to stay the eviction judgment
and the execution on appeal, and the order denying Plaintiff’s request for a
trial on the counterclaims. Id. In a decision filed September 19, 2025, the
circuit court dismissed Plaintiff’s appeal “for failure to comply” and noted the
magistrate’s July 24, 2025 order—i.e., Plaintiff’s failure to post the required
bond. See Judgment in 2025CP4004393. The decision notes that “this order
ends…the case.” Id.
B. Res Judicata
“Under the Full Faith and Credit Act, 28 U.S.C § 1738, a federal court
must give preclusive effect to a state court judgment to the same extent as
would courts of the state in which the judgment was entered.” Kahn v. Smith
Barney Shearson Inc., 115 F.3d 930, 933 (11th Cir. 1997) (internal marks
omitted); see also Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75,
81 (1984). “The preclusive effect of a judgment is defined by claim preclusion
and issue preclusion, which are collectively referred to as res judicata.”
Taylor v. Sturgell, 553 U.S. 880 (2008). South Carolina precludes
“subsequent actions by the same parties when the claims arise out of the
same transaction or occurrence that was the subject of a prior action
between those parties.” Plum Creek Dev. Co. v. City of Conway, 334 S.C. 30,
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34, 512 S.E.2d 106, 109 (S.C. 1999). “Under the doctrine of res judicata, a
litigant is barred from raising any issues which were adjudicated in the former
suit and any issues which might have been raised in the former suit.” Id.
(internal quotes omitted). “[T]he fundamental purpose of res judicata…is to
ensure that no one should be twice sued for the same cause of action.” Judy
v. Judy, 393 S.C. 160, 173, 712 S.E.2d 408, 414 (S.C. 2011) (internal quotes
omitted).
The South Carolina Supreme Court’s analysis in Judy is instructive.
There, two brothers litigated property issues in probate court. One brother
alleged the elements of the tort of waste in his pleadings, but did not bring it
as a counterclaim or other cause of action—in fact, he requested the probate
court withhold ruling on that issue. Id. at 415. The probate court obliged but
noted “it would consider all other issues regarding money owed to either
party on these parcels of land to be moot.” Id. The brother then brought an
action for waste in circuit court against the other brother and requested
punitive damages. Id. The South Carolina Supreme Court held that the
brother “was precluded from initiating a second lawsuit in the circuit court”
because the claim “could have been raised in the former suit” and “the
probate court definitively resolved [the brother’s] claims regarding the
property” with its ruling that all other matters were moot. Id. The brother’s
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“election to proceed in probate court effectively waived his right to recover
punitive damages.” Id. (noting the brother could have “filed both claims [for
partition and waste] in circuit court or removed his lawsuit in its entirety [from
probate court] to the circuit court for an adjudication of all claims”).
Plaintiff argues that he “voluntarily abandoned the rental property
before the writ of ejectment was requested by [Defendant’s] attorney.” ECF
No. 15 at 1. He believes he only “waived any claim as to possession of the
rental property pending appeal,” which is why Plaintiff claims he “did not
make a demand for statutory damages” in this case. Id. at 1-2. His argument
is hard to follow and he cites no caselaw in support of his position. Seeking
a different remedy in a subsequent action “does not alter the fact that the
claims are identical in both” cases. Plum Creek Dev. Co., 334 S.C. 30 at 35.
Plaintiff correctly notes that Defendant has only argued res judicata in
relation to Count I, breach of contract. See ECF No. 15 at 2. However, this
Court has an obligation to ensure proper jurisdiction and, because Plaintiff is
proceeding in forma pauperis, that Plaintiff’s complaint states a valid claim
for relief. See 28 U.S.C § 1915(e)(2). The prior state ejectment action
involved the same parties, Plaintiff’s prior counterclaims raise identical
factual issues, and the counterclaims were dismissed by the state court after
Plaintiff failed to pay the required bond under South Carolina law. The circuit
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court, sitting in appellate capacity, affirmed the dismissal. Therefore, res
judicata clearly precludes Plaintiff from filing a subsequent breach of contract
claim. The additional question is whether the same principal also bars
Plaintiff from bringing his claims of assault and intentional infliction of
emotional distress. If Plaintiff could have brought those claims as part of his
prior counterclaims, the answer is yes.
Magistrate court jurisdiction in South Carolina is limited by state
statute. Typically, the magistrate has jurisdiction over most civil matters not
exceeding $7,500. See S.C. Code Ann. § 22-3-10. But this limit does not
apply to ejectment actions, where the magistrate has concurrent civil
jurisdiction “in all matters between landlord and tenant and the possession
of land as provided in [the landlord-tenant code].” S.C. Code Ann. § 22-3-
10(10). The magistrate also retains jurisdiction of filed counterclaims, so long
as the counterclaim does not exceed $7,500. S.C. Code Ann. § 22-3-10(11).
Again, this limit does not apply when a counterclaim is filed “in matters
between landlord and tenant and the possession of land.” Id. In the event a
counterclaim is filed in excess of the threshold amount and the original action
does not involve possession of real property, “the initial claim and
counterclaim must be transferred to the docket of the common pleas court
for that judicial circuit.” S.C. Code Ann. § 22-3-30; see also Mosseri, Mosseri,
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Castro v. Austin's at the Beach, Inc., 372 S.C. 593, 595–96, 642 S.E.2d 760,
761–62 (S.C. Ct. App. 2007) (discussing landlord-tenant exception and
holding claim and counterclaims should have been transferred to circuit
court); see also Rule 13, SCRCP (compulsory versus permissive
counterclaims).
Defendant’s original action against Plaintiff in magistrate court was an
ejectment action which sought monetary damages for past due rent and
possession of the property. Plaintiff chose to file counterclaims along with his
answer and defenses. Plaintiff never disputed the magistrate court’s
jurisdiction over the counterclaims and South Carolina law is clear that
jurisdiction was proper. Plaintiff could have brought counterclaims of assault
and intentional infliction of emotional distress. Even assuming for argument’s
sake that the addition of those claims would have somehow been outside of
the magistrate court’s jurisdiction, South Carolina law provides for mandatory
transfer of the entire case to the circuit court.
Regardless of the stated cause of action, Plaintiff’s counterclaims
involved the same facts and evidence as the instant case. The parties are
also identical. Just as the judgment in the ejectment case bars Plaintiff from
proceeding on his breach of contract claim here, res judicata also bars
Plaintiff from bringing his claims of assault and intentional infliction of
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emotional distress because he could have brought both in the prior action.
South Carolina law does not permit him a second bite at the apple in federal
court.
C. Diversity Jurisdiction3
Federal district courts have original jurisdiction over civil actions where
the parties are citizens of different states and the amount in controversy
exceeds $75,000. 28 U.S.C § 1332(a)(1). There are two components of
diversity jurisdiction that must be met in this case: citizenship and damages.
“Citizenship is equivalent to domicile.” McCormick v. Aderholt, 293 F.3d 1254,
1257 (11th Cir. 2002). “[D]omicile requires both residence in a state and an
intention to remain there indefinitely.” Travaglio v. Am. Exp. Co., 735 F.3d
1266, 1269 (11th Cir. 2013) (internal quotes omitted).
Defendant’s only argument against diversity of citizenship is that “the
parties were permanent residents and domiciled in South Carolina when the
dispute arose.” ECF No. 13 at 2. Defendant doesn’t clarify the date he
believes the dispute “arose” (i.e., the signing of the lease or the later armed
confrontation). But the Court need not guess, because it doesn’t matter—
diversity is determined at the time the action is filed, not when the cause of
3 To the extent the district court determines that res judicata does not preclude all or any
of Plaintiff’s claims, the Court conducts an analysis on the remaining ground of
Defendant’s motion to dismiss.
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action occurred:
It has long been the case that “the jurisdiction of the court depends
upon the state of things at the time of the action brought.” Mollan v.
Torrance, 9 Wheat. 537, 539, 6 L.Ed. 154 (1824). This time-of-filing
rule is hornbook law (quite literally) taught to first-year law students in
any basic course on federal civil procedure. It measures all challenges
to subject-matter jurisdiction premised upon diversity of citizenship
against the state of facts that existed at the time of filing—whether the
challenge be brought shortly after filing, after the trial, or even for the
first time on appeal.
Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570–72 (2004). While
Defendant was living in South Carolina when the lease was signed and for
some time after, Plaintiff alleges Defendant vacated the South Carolina
house with the intent to sell it in April 2025 and moved to Florida, where
Defendant’s wife lives and where Defendant has a home. ECF No. 6 at 11.
One of Defendant’s own exhibits—the police report from the May 3, 2025
“landlord-tenant dispute” at issue in Counts II and III—lists Defendant’s
address as a house in Tallahassee, Florida.4 ECF No. 13 at 38. Plaintiff filed
the instant case nine days later, on May 12, 2025, and listed Defendant’s
Tallahassee home and work addresses.5 See ECF No. 1 at 1.
4 Several of the eviction filings list Defendant’s address for court notifications as an office
suite in Evans, Georgia. E.g., June 17, 2025 Bond to Stay Execution on Judgment for
Ejectment, ECF No. 13 at 23. A closer look shows this address belongs to the attorney
who represented Defendant in that proceeding. See Signature Block of Application for
Ejectment, ECF No. 13 at 27.
5 Though Plaintiff’s allegation of “residency” in his original complaint was insufficient to
establish citizenship, he cured this defect in the amended complaint by alleging
Defendant was a “citizen” of Florida. Compare ECF No. 1 at 1 with ECF No. 6 at 2, 5.
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Further supporting Defendant’s domicile in Florida is the fact he has
remained at his Tallahassee address throughout this case. E.g., Waiver of
Service (ECF No. 11), Signature Block (ECF No. 13 at 7); Cf. McCormick,
293 F.3d at 1257–58 (“A change of domicile requires a concurrent showing
of (1) physical presence at the new location with (2) an intention to remain
there indefinitely”). Therefore, Plaintiff has sufficiently alleged that Defendant
was a citizen of Florida at the time of filing for purposes of diversity
jurisdiction. Defendant does not provide any sworn affidavits or other
evidence to refute that he was a citizen of Florida by May 12, 2025.6 See
Travaglio, 735 F.3d at 1269–70 (holding “a sentence in an unsworn brief is
not evidence” and cannot “demonstrate a party’s citizenship,” especially
where it is “an offhanded argument”). Plaintiff’s South Carolina citizenship is
not disputed. There is complete diversity of citizenship between the parties.
The second question is whether, on the face of the complaint, Plaintiff
has sufficiently alleged the amount in controversy requirement of more than
$75,000. See McElmurray v. Consol. Gov't of Augusta-Richmond Cnty., 501
F.3d 1244, 1251 (11th Cir. 2007) (explaining a 12(b)(1) facial challenge
requires a court to take the allegations of the complaint as true). Plaintiff
6 As noted above, the only argument he makes on citizenship is that he was “domiciled in
South Carolina when the dispute arose that was settled by a South Carolina Count.” ECF
No. 13 at 2.
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seeks compensatory and punitive damages for each count but does not list
a specific amount or describe any out-of-pocket expenses. See ECF No. 6
at 7, 9-14. The most he did was check the box indicating the basis for the
action is diversity citizenship. Id. at 4. Above the box, the court form explains
the requirements of diversity jurisdiction, including that “the amount in
controversy must be more than $75,000.” Id. at 3.
Even if the Court attempted to appraise the conclusory damages in
Plaintiff’s complaint, there is very little to go on. Assuming Plaintiff could
recover damages of $800 per month for the three-month period he alleges
Defendant was in breach, it would only total $2,400.7 Plaintiff alleges
“emotional distress…to include embarrassment, humiliation, fear, anxiety,
paranoia, loss of sleep and nightmares, restlessness, and a feeling of being
unsafe in his residence.” ECF No. 6 at 13, 14. Those damages, both
compensable and punitive, are not quantifiable without more accounting or
specifics from Plaintiff.8
Where, as here, “jurisdiction is based on a claim for indeterminate
7 Three-months’ rent was the amount of damages Plaintiff requested for his counterclaims
in the eviction case. ECF No. 13 at 13-14.
8 And while this may be getting ahead of things, Plaintiff’s current allegations would not
pass muster at the summary judgment stage. South Carolina law imputes a “heightened
standard of proof for emotional distress claims,” where the plaintiff must establish “a prima
facie claim for damages” without relying on “mere bald assertions.” Hansson v. Scalise
Builders of S.C., 374 S.C. 352, 358, 650 S.E.2d 68, 72 (S.C. 2007).
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damages…the party seeking to invoke federal jurisdiction bears the burden
of proving by a preponderance of the evidence that the claim[s]…meet the
jurisdictional minimum.” Federated Mut. Ins. Co. v. McKinnon Motors, LLC,
329 F.3d 805, 807 (11th Cir. 2003). Plaintiff’s sole argument in this regard is
that he checked the diversity jurisdiction box, “and by doing so, he clearly
acknowledged, affirmed, and certified…[the] amount in controversy.” ECF
No. 15 at 4. This is a poor argument. If accepted, federal courts would have
jurisdiction over every state tort case by way of a simple checkmark.
Plaintiff’s threadbare damages request is conclusory and “at best”
speculative. Bradley v. Kelly Servs., Inc., 224 Fed.Appx. 893, 895 (11th Cir.
2007) (affirming dismissal where plaintiff only alleged damages were greater
than $75,000 and did not provide any evidence, when given the chance, to
support those allegations).
While there is diversity in citizenship, Plaintiff has not sufficiently
alleged damages exceeding the threshold amount. Therefore, he has not
shown by a preponderance of evidence that this Court has jurisdiction and
Defendant’s motion to dismiss should be granted. But that does not
necessarily end the case. A pro se litigant should be given the opportunity to
amend if “a more carefully drafted complaint might state a claim” and the
amendment would not be futile. Alberto v. Sec’y, Fla. Dep’t of Corr., 770 F.
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App’x 467, 469 (11th Cir. 2019); see also Fed. R. Civ. P. 15(a)(2) (“The court
should freely give leave [to amend] when justice so requires”). Plaintiff should
be allowed one more opportunity to amend his complaint to sufficiently plead
the amount in controversy, if he has a good faith basis to do so.9
IV. Recommendation
For the reasons stated above, it is respectfully RECOMMENDED that
Defendant’s motion to dismiss, ECF No. 13, be GRANTED and this case be
DISMISSED with prejudice because it is precluded under res judicata. In
the event the district court determines any of the claims are not precluded, it
is RECOMMENDED: (1) the amended complaint be DISMISSED without
prejudice for lack of subject matter jurisdiction based on Plaintiff’s failure to
adequately plead the threshold amount in controversy; (2) Plaintiff be given
an opportunity to file a second amended complaint to sufficiently plead
diversity jurisdiction, if he has a good faith basis to do so; and (3) this case
be REMANDED to the undersigned for further proceedings.
IN CHAMBERS at Tallahassee, Florida on January 14, 2026.
s/ Martin A. Fitzpatrick
MARTIN A. FITZPATRICK
UNITED STATES MAGISTRATE JUDGE
9 Again, this recommendation is made in the event the district court determines that any
of Plaintiff’s claims survive preclusion.
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NOTICE TO THE PARTIES
Within fourteen (14) days after being served with a copy of this
Report and Recommendation, a party may serve and file specific
written objections to these proposed findings and recommendations.
Fed. R. Civ. P. 72(b)(2). A copy of the objections shall be served upon
all other parties. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy thereof. Fed.
R. Civ. P. 72(b)(2). Any different deadline that may appear on the
electronic docket is for the Court’s internal use only and does not
control. If a party fails to object to the Magistrate Judge’s findings or
recommendations as to any particular claim or issue contained in this
Report and Recommendation, that party waives the right to challenge
on appeal the District Court’s order based on the unobjected-to factual
and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636(b)(1)(C).
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