United States District Court, D. Kansas
MEMORANDUM AND ORDER
ERIC F. MELGREN, District Judge.
Plaintiff Hussein Hamdeh has sued his divorce attorney alleging denial of due process under 42 U.S.C. § 1983. Hamdeh's petition appears to allege legal malpractice, conspiracy, collusion, and fraud against Defendant John W. Lehecka. However, the Court on its own initiative dismisses this case for lack of subject-matter jurisdiction because (1) Lehecka is not a state actor, (2) Hamdeh does not allege discrimination, and (3) Hamdeh's claims must be brought in state court.
I. Factual and Procedural Background
This matter arises from John Lehecka's representation of Hussein Hamdeh in a divorce case from 2010 to 2012. The divorce was between Hamdeh and his wife, Hala Hamdeh. Hamdeh brings this suit individually and on behalf of his daughter, Tala Hamdeh. All parties are residents of Kansas.
In 2013, Lehecka filed a petition against Hamdeh for unpaid attorney fees in Sedgwick County District Court. In February 2014, Hamdeh filed a counterclaim alleging legal malpractice. In April 2014, Hamdeh filed a separate petition alleging legal malpractice in the same court. Hamdeh withdrew his counterclaim on May 9, 2014, and the court granted Lehecka's motion to dismiss Hamdeh's separate petition on May 23, 2014.
In June 2014, Hamdeh filed this claim in federal court alleging denial of due process under 42 U.S.C. § 1983. In July 2014, Lehecka filed a motion to dismiss (Doc. 5) asserting that Hamdeh's claim is barred because it was a compulsory counterclaim in state court and because of claim preclusion. In October 2014, Lehecka filed a motion to consider the motion to dismiss uncontested because Hamdeh failed to respond (Doc. 7).
II. Legal Standard
Federal courts are courts of limited jurisdiction and, as such, must have a statutory or constitutional basis to exercise jurisdiction. There are two statutory bases for federal subject matter jurisdiction. First, diversity jurisdiction is governed by 28 U.S.C. § 1332(a)(1), which provides that "district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds... $75, 000... and is between citizens of different states." Second, under 28 U.S.C. § 1331, federal district courts "have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States, " or federal question jurisdiction.
Because Hamdeh and Lehecka are residents of the same state, there is no diversity jurisdiction. Hamdeh claims federal question jurisdiction but even in the absence of a challenge from any party, a federal court has an independent obligation to examine its jurisdiction and may sua sponte raise the question of whether there is subject-matter jurisdiction. If the court finds there is no jurisdiction it must dismiss the action.
Hamdeh cites to 42 U.S.C. § 1983 for his cause of action,  which allows plaintiffs to bring claims for alleged constitutional violations. In his complaint, Hamdeh alleges:
Plaintiffs have been denied due process of law under the Fifth Amendment to the United States constitution due to the conspiracy, collusion, or/and fraud engaged in by the Defendant. This caused the Plaintiff and Tala to be deprived of a fair legal process to protect their interest in life, liberty and property which are guaranteed by due process of law under the Fifth Amendment of the United States constitution, as incorporated to the states through the Fourteenth Amendment.
Although Hamdeh does not expressly claim Lehecka engaged in legal malpractice, it appears by the nature of his claims he attempts to allege legal malpractice. Hamdeh's complaint alleges:
The plaintiff relied in good faith that the Defendant would act legally and ethically in representing his interest in his divorce case. Instead of serving the interest his client, the Defendant zealously served the interest of Hala ...