REPORT AND RECOMMENDATION

KAREN L. HAYES, Magistrate Judge.

Upon review of the record, and for reasons detailed below, it is recommended that the complaint-in-intervention, as amended, filed by Newton B. Schwartz, Sr. be dismissed, without prejudice, for lack of subject matter jurisdiction.1

Background

On November 22, 2013, the court denied Newton B. Schwartz, Sr.'s initial petition to intervene in this matter because his proposed pleading: 1) included a claim(s) that was unrelated to the instant suit; and 2) did not assert any grounds for the exercise of federal subject matter jurisdiction. (Nov. 22, 2013, Mem. Order [doc. # 60]). On January 8, 2014, Schwartz renewed his motion with a proposed pleading that omitted the unrelated claim. The next day, the court granted Schwartz's petition to intervene, as a matter of course. (Jan. 9, 2014, Order [doc. # 64]).

Recently, however, it has come to the court's attention that, effective February 14, 2014, and for a period of three years thereafter, the Louisiana Supreme Court has enjoined Newton B. Schwartz, Sr. from seeking admission to the Louisiana bar or from seeking admission to practice in Louisiana on a temporary basis because of his prior act(s) of engaging in the unauthorized practice of law in this state. In Re Seth Cortigene and Newton B. Schwartz, Sr., ___ So. 3d. ___, 2014 WL 683717 (La. Feb. 14, 2014).2 Upon learning of the ruling, the court reviewed the instant record to ensure that Mr. Schwartz's appearance in this matter did not transgress the supreme court's decision. See LR 83.2.9. The court is satisfied that Mr. Schwartz is proceeding pro se herein, and not in a representative capacity. Nonetheless, upon review, the undersigned discerned that Schwartz's latest complaint-in-intervention still neglects to assert or establish a basis for subject matter jurisdiction. Moreover, as explained below, the court is not persuaded that the deficient jurisdictional allegations may be cured by amendment.

Law and Analysis

Before reaching the merits of a case, federal courts are obliged to ensure that they enjoy subject matter jurisdiction to hear the matter. See Sinochem Intern. Co. Ltd. v. Malaysia Intern. Shipping Corp., 549 U.S. 422, 430-431, 127 S.Ct. 1184, 1191 (2007); Smith v. Texas Children's Hospital, 172 F.3d 923, 925 (5th Cir. 1999) (courts must examine the basis for the exercise of federal subject matter jurisdiction). Lack of subject matter jurisdiction may be raised at any time. Giles v. Nylcare Health Plans, Inc., 172 F.3d 332, 336 (5th Cir. 1999). A court must raise the issue sua sponte if it discovers that it lacks subject matter jurisdiction. Id.

"A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers local 6 Pension Fund, 81 F.3d 1182, 1187 (2nd Cir. 1996)). The party seeking to invoke jurisdiction bears the burden of demonstrating its existence. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001); Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). "[T]here is a presumption against subject matter jurisdiction that must be rebutted by the party bringing an action to federal court." Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996) (citation omitted).

The Federal Rules of Civil Procedure require that a complaint contain a short and plain statement of the grounds upon which the court's jurisdiction depends. Fed.R.Civ.P. 8(a). The two most common ways to invoke federal subject matter jurisdiction are via federal question and diversity. 28 U.S.C. §§ 1331 & 1332. In the case sub judice, however, the court does not discern a federal question on the face of intervenor's complaint.3 In fact, this court previously has recognized Schwartz's cause of action as a state law claim pursuant to Louisiana Revised Statute § 37:218. (Nov. 22, 2013, Mem. Order [doc. # 60]). However, because Schwartz, as intervenor, is properly aligned as a plaintiff, he cannot piggyback his claim onto the diversity jurisdiction of the original demand via supplemental jurisdiction, 28 U.S.C. § 1367. See Griffin v. Lee, 621 F.3d 380 (5th Cir. 2010). Rather, he must invoke and establish diversity jurisdiction on his own. Id. Of course, for purposes of diversity, "[a]ll plaintiffs must be diverse in citizenship from all defendants . . ."4 and the parties' citizenship must be "distinctly and affirmatively alleged."; Getty Oil, Div. Of Texaco v. Ins. Co. of North America, 841 F.2d 1254, 1259 (5th Cir. 1988) (citation omitted) (emphasis in citing source). Moreover, the matter in controversy must exceed the sum or value of $75,000. 28 U.S.C. § 1332(a).

Here, Schwartz not only fails to allege his citizenship (i.e., the state where he is domiciled), he also does not allege that the amount in controversy exceeds $75,000. The court observes that because Schwartz likely is a Texas domiciliary, he could amend his intervention to remedy his deficient allegation of citizenship. The same cannot be said, however, for the omitted amount in controversy allegation.

St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-90, 58 S.Ct. 586, 590-91 (1938).

Schwartz alleges in his intervention that,

(Amend. Petition [doc. # 65]).

In other words, Schwartz seeks $9,498.70 in costs and expenses that he has advanced in this case, plus, apparently, his share of a contingency fee agreement for the amount of time that he spent to research and draft the original complaint, which, by his own account, constituted such a short period of time that he was unable to comply fully with his obligations under Rule 11 of the Federal Rules of Civil Procedure. In addition, Schwartz admits that he has not had any client contact. See Reply Memo., pgs. 2-3 [doc. # 59].

The Fifth Circuit has recognized that a suspended attorney is prohibited from working on cases during his suspension, and thus may not receive legal fees, including contingency fees. Cooper v. Texaco, Inc., 961 F.2d 71, 73-74 (5th Cir. 1992). In lieu of a contingency fee, the attorney is entitled to recover quantum meruit fees for his pre-suspension work. Id.5 Similarly, in another case involving a disbarred attorney whose only activity in the case was the filing of the initial pleading and early case management, the court declined to give effect to the contingency fee agreement, and instead awarded the disbarred attorney 15 percent of the total attorney's fee on a quantum meruit basis. Brown v. Seimers, 742 So.2d 556 (La. App. 5th Cir. 1999).

The undersigned agrees with the foregoing authority that, because of Schwartz's present inability to practice law in the state — even on a temporary or visiting basis, he is not entitled to recover under the contingency fee agreement that he entered into with his client, Tyson Smith, and instead, must recover no more than quantum meruit, i.e., only for the services he actually performed and the responsibilities he assumed. Dukes v. Matheny, 878 So.2d 517, 521 (La. App. 1st Cir. 2004) (citations omitted).6 The relevant considerations include "the time and labor required, the novelty and difficulty of the issue, the skill required, the likelihood that acceptance of the work might prevent the attorney from accepting other opportunities, and the experience, reputation, and abilities of the attorney." Id. (citations omitted).

The court stresses that even prior to his suspension, Schwartz never sought admission pro hac vice in this case. Thus, unless he was engaged in the unauthorized practice of law, he could not have participated in out of court proceedings such as depositions. In Re Seth Cortigene and Newton B. Schwartz, Sr, supra.7 Schwartz also acknowledged that he has had no contact with the client. Furthermore, by his own account, Schwartz's participation in this case was limited to advancing costs and helping to draft a complaint that Schwartz confesses skirted his Rule 11 obligations.

In short, under either a lodestar method or a percentage of fees approach, it is manifest that Schwartz's fees for the work that he has done in this case will not approach anywhere near the $65,000 — plus required to support diversity jurisdiction and his intervention. In other words, on the basis of the facts alleged in the amended complaint-in-intervention, it is legally certain that the amount of Schwartz's claim does not exceed the minimum threshold required to support diversity jurisdiction.8

Conclusion

For the foregoing reasons, the undersigned finds that intervenor-plaintiff, Newton Schwartz, has not met his burden of alleging or establishing the existence of federal subject matter jurisdiction. Howery, supra; 28 U.S.C. § 1332. When subject matter jurisdiction is lacking, dismissal is required. Fed.R.Civ.P. 12(h)(3); Stafford v. Mobil Oil Corp., 945 F.2d 803, 805 (5th Cir. 1991) ("Failure adequately to allege the basis for diversity jurisdiction mandates dismissal."). Accordingly,

IT IS RECOMMENDED that the complaint-in-intervention, as amended, filed by Newton B. Schwartz, Sr. be dismissed, without prejudice, for lack of subject matter jurisdiction.

Under the provisions of 28 U.S.C. §636(b)(1)(C) and FRCP Rule 72(b), the parties have fourteen (14) days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. A courtesy copy of any objection or response or request for extension of time shall be furnished to the District Judge at the time of filing. Timely objections will be considered by the District Judge before he makes a final ruling.

A PARTY'S FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATIONS CONTAINED IN THIS REPORT WITHIN FOURTEEN (14) DAYS FROM THE DATE OF ITS SERVICE SHALL BAR AN AGGRIEVED PARTY, EXCEPT ON GROUNDS OF PLAIN ERROR, FROM ATTACKING ON APPEAL THE UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT JUDGE.