United States District Court, D. Kansas
JOSEPH H. SCHROEDER, II, Plaintiff,
v.
RISECO, Defendant.
ORDER DIRECTING PLAINTIFF TO FILE AN AMENDED
COMPLAINT
GWYNNE
E. BIRZER United States Magistrate Judge.
In
conjunction with the filing of this order, the undersigned
granted Plaintiff's request to proceed in this case
without prepayment of the filing fee. (Order, ECF No. 4.)
However, the authority to proceed without prepayment of fees
has limitations. Under 28 U.S.C. § 1915(e)(2), sua
sponte dismissal of the case is required if the court
determines the action: (1) is frivolous or malicious; (2)
fails to state a claim upon which relief may be granted; or
(3) seeks relief from a defendant who is immune from
suit.[1] Likewise, “[i]f the court determines
at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.”[2] After careful consideration
and application of these standards, the undersigned
Magistrate Judge orders Plaintiff to file an amended
complaint to avoid a recommendation of dismissal for the
reasons set forth below.
Background
[3]
On May
21, 2019, Plaintiff filed his two-paragraph Complaint (ECF
No. 1) with this Court, along with his Motion for Leave to
Proceed in forma pauperis (ECF No. 3).
Plaintiff's motion was granted by separate order;
however, the Court now reviews the merits of his Complaint.
Plaintiff's presumed cause of action, as noted in his
Civil Cover Sheet, is under the Fair Debt Collection Act;
however, as described below, this is unclear.[4]
As
alleged in the Complaint, Plaintiff resides in Kansas and
Defendant Riseco, which appears to be a business, is located
in Texas. Plaintiff first claims he “repeatedly advised
Defendant to cease . . . calling him on his work number,
” but the company did not comply with his request. (ECF
No. 1.) Further, Plaintiff alleges when he blocked the phone
number Defendant initially called from, Defendant then began
calling him from a different number. This continued until
Plaintiff changed his telephone number.
Plaintiff
requests Defendant be ordered to pay the filing fee for this
case for violating “his rights under KSA.” (ECF
No. 1.) Also, Plaintiff asks the Court to find Defendant in
breach of contract, and to declare said contract null and
void. Finally, Plaintiff requests the Court to order
Defendant to “immediately and permanently remove any
and all information regarding this matter from any and all
credit reporting agencies.” (ECF No. 1.)
Discussion
This
Court reviews the sufficiency of Plaintiff's Complaint
under the same standard as those used when considering a
motion to dismiss under Fed.R.Civ.P. 12(b)(6).[5]Plaintiff
“must allege sufficient facts to state a claim which is
plausible-rather than merely conceivable-on its
face.”[6] “Factual allegations in a complaint
must be enough to raise a right to relief above the
speculative level.”[7]
Because
Plaintiff proceeds pro se, his pleadings must be
liberally construed.[8]However, he still bears the burden to
allege “sufficient facts on which a recognized legal
claim could be based”[9] and the Court cannot “take
on the responsibility of serving as [his] attorney in
constructing arguments and searching the
record.”[10] Fed.R.Civ.P. 8 “demands more than
naked assertions.”[11]
Under
Rule 8, a Complaint must contain: “(1) a short and
plain statement of the grounds for the court's
jurisdiction . . .; (2) a short and plain statement of the
claim showing that the pleader is entitled to relief; and (3)
a demand of the relief sought.”[12] The Complaint
must also “give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it
rests.”[13] Moreover, the Court must be able to
determine whether the allegations, if proven, demonstrate the
plaintiff is entitled to relief.[14] If the Court finds any of
these requirements absent, even after affording liberal
construction to Plaintiff's Complaint, the court
“is compelled to recommend that the action be
dismissed.”[15]
On
review of the Complaint, the undersigned finds it fails to
comply with the requirements of Rule 8. First, Plaintiff does
not include any statement establishing grounds for
jurisdiction in this Court. Because “federal courts are
of limited jurisdiction; they must have a statutory basis for
their jurisdiction”-either federal question or
diversity jurisdiction.[16] Federal question gives
“district courts . . . original jurisdiction of all
civil actions arising under the Constitution, laws, or
treaties of the United States.”[17] Diversity of
citizenship, is fulfilled when “the matter in
controversy exceeds the sum or value of $75, 000, exclusive
of interest and costs, and is between citizens of different
States.”[18]
Here,
Plaintiff seems to indicate this is a contract case-which
would typically be a state court action, unless diversity
jurisdiction applies. However, there is no indication the
relief Plaintiff seeks exceeds the $75, 000 threshold.
Plaintiff simply does not offer enough information for the
Court to determine whether it has jurisdiction over his
claim.
Second,
although Plaintiff's claim is short, the Court is unable
to ascertain whether Plaintiff brings a claim for breach of
contract, or a violation of some statute which prevents
unwanted telemarketing calls. In the first paragraph of his
Complaint, Plaintiff appears to bring a claim for unwanted
phone calls, which may be prohibited by
statute.[19] However, given the lack of information
presented, the Court cannot ascertain whether the phone calls
alleged would be prohibited under any specific statute. And,
in his claim for relief, he cites to the Kansas Statutes
Annotated (“KSA”), seeks relief for a breach of
contract, and asks for contractual remedies. But he provides
no facts which support any contractual relationship between
the parties. Based upon the limited information provided in
the Complaint, it is entirely unclear what type of claim
Plaintiff is alleging. There are simply not enough factual
allegations for the Court to assess whether he is entitled to
relief.
Third,
although Plaintiff states a clear demand for relief, he seeks
relief for a breach of contract. But, as discussed, the facts
in his Complaint do not support a contractual relationship.
Therefore, Plaintiff has not presented the Court with ...