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Bricker v. State

United States District Court, D. Kansas

February 13, 2017

CORINTHIAN BRICKER, Plaintiff,
v.
STATE OF KANSAS, et al., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge

         This matter comes before the court on four motions:

1. Defendants State of Kansas and Patrick Carney's joint Motion to Dismiss Complaint (Doc. 6);
2. Defendants State of Kansas and Patrick Carney's joint Motion to Dismiss Amended Complaint (Doc. 11);
3. Defendants American Family Insurance Company of Wisconsin and Butler & Associates, P.A.'s joint Motion to Dismiss (Doc. 9); and
4. Defendant Jessica Travis's Motion to Dismiss (Doc. 41).

         Defendants State of Kansas and Mr. Carney filed their first Motion to Dismiss Complaint (Doc. 6) in response to plaintiff's original complaint. When plaintiff filed his First Amended Complaint, that rendered this motion moot. The court thus denies defendants State of Kansas and Mr. Carney's joint Motion to Dismiss Complaint (Doc. 6) as moot. And, for reasons explained below, the court grants all other motions to dismiss.

         I. Background

         Because defendants bring their motions to dismiss under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), the court takes the following facts from plaintiff's First Amended Complaint. See S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014); Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).

         Plaintiff Corinthian Bricker brings this action, pro se, [1] against six defendants: the State of Kansas, Mark Furney, Patrick Carney, Jessica Travis, American Family Insurance Company of Wisconsin (“American Family”), and Butler & Associates, P.A. (collectively “defendants”). Plaintiff's First Amended Complaint (“Complaint”) recites the following statutes and constitutional provisions: 42 U.S.C. §§ 1983, 1985-86; 28 U.S.C. § 1343; 28 U.S.C. § 1331; “K.S.A. CHAPTER 60”; Kan. Stat. Ann. §§ 22-4503, -4518, -4522; Kan. Stat. Ann. §§ 60-234, -226; the Indigent Defense Services' Act; the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution; the First, Ninth, Tenth, and Eighteenth Articles of the Kansas Bill of Rights; and various Kansas Rules of Professional Conduct. Doc. 4 at 2. But citing these provisions does not hide that plaintiff's Complaint alleges only the following state-law claims: negligence and fraud against Mr. Furney; breach of contract against Mr. Carney; negligence against Ms. Travis; harassment against American Family and Butler & Associates; and negligence and respondeat superior against the State of Kansas. These claims all arise from defendants' connections to plaintiff's March 2006 DUI conviction in Johnson County, Kansas, and a related subrogation action brought by American Family in Kansas state court. Doc. 4 at 62; Doc. 4-1 at 43.

         All defendants but Mr. Furney have filed motions to dismiss plaintiff's Complaint- either individually or in groups. And it appears that Mr. Furney's absence may result from plaintiff's failure to serve him. Nothing in the record establishes that Mr. Furney has been served. See Doc. 26 (summons and complaint for Mr. Furney returned as “Refused”). So, Mr. Furney is not a party currently. See Omni Capital Int'l v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987) (“Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.”); see also Doc. 46 (Show Cause Order giving plaintiff additional time to serve Mr. Furney).

         II. Analysis

         Although defendants file separate motions to dismiss, they all contend that the court lacks subject matter jurisdiction to hear plaintiff's Complaint and thus ask the court to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(1). Because all of the motions share this argument, the court addresses defendants' various motions to dismiss as if they were one, using the legal standard outlined in the following section.

         A. Rule 12(b)(1) Motion to Dismiss Standard

         The court must dismiss any case that it lacks subject matter jurisdiction to hear. Fed.R.Civ.P. 12(h)(3). It must do so because “[a] court lacking jurisdiction cannot render judgment.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (citing Bradbury v. Dennis, 310 F.2d 73, 74 (10th Cir. 1962)). The party who invokes the court's jurisdiction bears the burden to establish that it exists. Id. Here, that party is plaintiff.

         Because defendants attack the Complaint's allegations of subject matter jurisdiction, the court “must accept the allegations in the complaint as true.” Holt, 46 F.3d at 1002 (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). But, conclusory allegations about jurisdiction are not sufficient. Penteco Corp. Ltd. P'ship-1985A v. Union Gas Sys., Inc., 929 ...


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