United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
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.
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
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).
Corinthian Bricker brings this action, pro se,  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.
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.
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
Rule 12(b)(1) Motion to Dismiss Standard
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.
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.
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