United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
Scott Gregory Hattrup filed suit against the United States,
Julie Deng, and John Doe to obtain money damages, quiet title
relief, and an injunction to extend the redemption period
arising from the judicial sale of his former property. Doc. 1
at 1. Liberally construing his Complaint against the United
States, Mr. Hattrup seeks: (1) money damages under (a) the
Fifth and Fourteenth Amendments to the United States
Constitution, and (b) 26 U.S.C. § 7433; (2) injunctive
relief to exercise a right to redeem the property under 26
U.S.C. § 6337; and (3) quiet title relief under 28
U.S.C. § 2410. Id. at 1, 3-4 (Compl.
¶¶ 5, 20-22).
United States moves to dismiss. Doc. 13 at 1. Its Motion to
Dismiss asks the court to dismiss plaintiff's claims
(1)(a), (2), and (3) for lack of subject matter jurisdiction
under Fed.R.Civ.P. 12(b)(1), and to dismiss claim (1)(b)
because it fails to state a claim for relief under
Fed.R.Civ.P. 12(b)(6). Id. Each of plaintiff's
claims suffers from one of these defects. So, the court
dismisses the United States as a party to this lawsuit.
following facts are taken in part from plaintiff's
Complaint (Doc. 1). Because the current dismissal motion
relies on Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6),
the courts accepts the pleaded facts as true and views them
in the light most favorable to plaintiff. See Ramirez v.
Dep't of Corr., 222 F.3d 1238, 1240 (10th Cir. 2000)
(explaining that, on a motion to dismiss, the court must
“accept the well-pleaded allegations of the complaint
as true and construe them in the light most favorable to the
plaintiff” (citation omitted)); see also Garling v.
EPA, 849 F.3d 1289, 1293 (10th Cir. 2017) (first citing
Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir.
2002); then citing Ashcroft v. Iqbal, 556 U.S. 662,
22, 2015, the United States filed a petition with this court
seeking approval of judicial levy upon plaintiff's
personal residence located at 11925 W. 92nd Terrace, Lenexa,
Kansas 66125. See Doc. 1 at 2 (Compl. ¶ 6). The
court held a hearing on the petition on February 8, 2016. On
February 10, 2016, the court granted the United States's
petition. In re Hattrup, No. 2:15-mc-00219-CM, 2016
LEXIS 184593 (D. Kan. Feb. 10, 2016); see also Doc. 1 at
2 (Compl. ¶ 7). On June 13, 2017, plaintiff filed a
“Motion to Reopen Redemption Period” in the
judicial levy matter. See In re Hattrup, No.
2:15-mc-00219-CM, 2017 WL 3638212, at *1 (D. Kan. Aug. 3,
2017). The United States opposed plaintiff's
motion and on August 3, 2017, the court dismissed it.
Id. at *1-2.
United States filed its Motion to Dismiss on February 2,
2018. Doc. 13 at 1. Plaintiff failed to file a timely
response to that motion, and on April 5, 2018, the court
issued a Notice and Order to Show Cause; it directed
plaintiff to show cause in writing by April 20, 2018, why the
court should not consider and rule on the Motion to Dismiss
as uncontested. Doc. 16 at 1-2. On April 20, 2018, plaintiff
filed a timely Response to the Order to Show Cause. Doc. 17.
Plaintiff's Response explains that his ability to conduct
legal research and draft legal documents for this lawsuit was
limited by his professional responsibilities consuming
“approximately 60 hours per week.” Id.
at 1. Plaintiff further recites that his mother suffered a
“cardiac incident” which instigated her extended
stay in a hospital and has required plaintiff to “help
his elderly parents during this difficult time.”
Id. On April 20, 2018, plaintiff also filed a
Response to the Motion to Dismiss. Doc. 18. The United States
then filed a Reply. Doc. 19.
to motions to dismiss . . . must be filed and served within
21 days.” D. Kan. Rule 6.1(d)(2). Under D. Kan. Rule
7.4(b), a party “who fails to file a responsive brief
or memorandum within the time specified in D. Kan. Rule
6.1(d) waives the right to later file such brief or
memorandum” unless there is a showing of excusable
neglect. This rule also provides, “[i]f a responsive
brief or memorandum is not filed within the D. Kan. Rule
6.1(d) time requirements, the court will consider and decide
the motion as an uncontested motion. Ordinarily, the court
will grant the motion without further notice.” D. Kan.
Rule 7.4(b). Here, plaintiff failed to respond to the United
States's Motion to Dismiss in a timely manner.
See Doc. 16. Plaintiff's pro se status does not
excuse him from complying with the court's rules or
facing the consequences of noncompliance. Nielsen v.
Price, 17 F.3d 1276, 1277 (10th Cir. 1994). Nonetheless,
the court will consider plaintiff's Response to the
Motion to Dismiss in light of the circumstances plaintiff
recites in his Response (Doc. 17) to the Order to Show Cause
(Doc. 16). The court now considers the Motion to Dismiss
(Doc. 13) and the parties' related filings.
Subject Matter Jurisdiction Under Rule 12(b)(1)
court must dismiss any case that it lacks subject matter
jurisdiction to hear. Fed.R.Civ.P. 12(h)(3). The court 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.
a motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1) takes one of two forms: a facial attack
or a factual attack. Holt v. United States, 46 F.3d
1000, 1002 (10th Cir. 1995). A facial attack questions the
sufficiency of the jurisdictional allegations in the
complaint. Id. “In reviewing a facial attack
on the complaint, a district court must accept the
allegations in the complaint as true.” Id.
(citing Ohio Nat'l Life Ins. Co. v. United
States, 922 F.2d 320, 325 (6th Cir. 1990)). In contrast,
a factual attack goes beyond the complaint's allegations
and challenges “the facts upon which subject matter
jurisdiction depends.” Id. at 1003.
presented with a factual attack, “a district court may
not presume the truthfulness of the complaint's factual
allegations.” Id. (citing Ohio Nat'l
Life Ins. Co., 922 F.2d at 325). In this context, a
district “court has wide discretion to allow
affidavits, other documents, and [even conduct] a limited
evidentiary hearing to resolve disputed jurisdictional facts
under Rule 12(b)(1).” Id. (citations omitted).
So, “[i]n a factual attack under Rule 12(b)(1), the
court's reference to evidence outside the pleadings does
not convert the motion into a motion for summary judgment,
unless the jurisdictional question is intertwined with the
merits of the case.” Shipley v. IRS, No.
04-cv-2573-JWL, 2005 WL 1334617, at *1 (D. Kan. June 6, 2005)
(first citing Stuart v. Colo. Interstate Gas Co.,
271 F.3d 1221, 1225 (10th Cir. 2001); then citing
Holt, 46 F.3d at 1003; then citing Wheeler v.
Hurdman, 825 F.2d 257, 260 (10th Cir. 1987)); see
also Sizova v. Nat'l Inst. of Standards & Tech.,
282 F.3d 1320, 1324-25 (10th Cir. 2002).
Failure to State a Claim Under Rule 12(b)(6)
Civ. P. 8(a)(2) provides that a complaint must contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Although this Rule
“does not require ‘detailed factual allegations,
'” it demands more than “[a] pleading that
offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of
action'” which, as the Supreme Court explained,