United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
matter is before the court on several motions. Defendant WI
Waterstone, LLC, has filed a Motion to Dismiss (Doc. 12) and
a First Amended Motion to Dismiss (Doc. 13). And, pro se
plaintiff Michael Eugene Parker has filed a
“Motion to Amend the Amend[ed] Complaint” (Doc.
18). For reasons explained below, the court grants
defendant's First Amended Motion to Dismiss and denies
plaintiff's Motion to Amend his Complaint. Because the
court grants defendant's motion under Federal Rule of
Civil Procedure 12(b)(1), the court dismisses the Amended
Complaint (Doc. 9) without prejudice.
filed his original Complaint in this case on November 7, 2018
(Doc. 1). Defendant filed a Motion to Dismiss on December 6,
2018 (Doc. 7). Then, as a matter of course under Federal Rule
of Civil Procedure 15(a)(1)(B), plaintiff filed an Amended
Complaint on December 17, 2018 (Doc. 9). Now, defendant has
filed a First Amended Motion to Dismiss plaintiff's
Amended Complaint (Doc. 13). More than one month after
defendant filed its Motion, plaintiff filed a “Motion
to Amend the Amend[ed] Complaint” (Doc. 18).
court first summarizes the Amended Complaint. Plaintiff
asserts that he brings his claims against “property
ow[n]er Lynae Toon, ” though this name doesn't
appear in the case caption, and no defendant other than WI
Waterstone, LLC, has been served. See Doc. 9 at 1.
Plaintiff also identifies a person named Wayne Nelson, who,
plaintiff contends, “singled [him] out” as a
“black male walking around the complex the past week or
so [and] . . . carr[ying] a handgun on his waist.”
Id. at 2-3. And, plaintiff asserts, Mr. Nelson
“is or was an employee at the time of the accused
violent incident when he singled out” plaintiff.
Id. at 3. Wayne Nelson also is not a defendant. And,
plaintiff never explains who Lynae Toon or Wayne Nelson are
or what the “violent incident” is.
asserts that his rights under the Fourth and Fourteenth
Amendments have been violated. Defendant, he contends, gave a
statement-presumably to law enforcement officers. Plaintiff
alleges emotional and mental duress and stress,
“personal damage” resulting from an arrest, and
“[d]iscriminating racial profiling.”
Id. at 8. He recites the Fourth and Fourteenth
Amendments, describes diversity jurisdiction under 28 U.S.C.
§ 1332, and provides information about the Kansas Acts
Against Discrimination. He also attaches the following
documents: (1) an affidavit supporting a warrant application,
representing that plaintiff had committed a crime; (2) an
eviction form for plaintiff signed by a person named Lynae
Toom; (3) a letter of incarceration for plaintiff; and (4) an
order from the District Court of Wyandotte County, Kansas,
dismissing a criminal action against plaintiff. See
Id. at 10-17.
First Amended Motion, defendant asserts that the court lacks
subject matter jurisdiction. Defendant contends that, because
plaintiff alleges he and defendant are citizens of Kansas,
plaintiff cannot invoke diversity of citizenship as a basis
for subject matter jurisdiction under 28 U.S.C. § 1332.
And, defendant argues, plaintiff hasn't invoked federal
law as the basis for subject matter jurisdiction under 28
U.S.C. § 1331. Defendant also argues that plaintiff has
failed to allege sufficient facts to state a claim.
Plaintiff's claimed damages resulted from his arrest and
the actions “of an unknown third[-]party thief, ”
defendant asserts. Doc. 13 at 2.
First Amended Motion to Dismiss (Doc. 13)
Rule of Civil Procedure 8(a)(2) requires a complaint to
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.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Rule of Civil Procedure 12(b)(1) “allows a court to
dismiss a complaint for lack of subject matter
jurisdiction.” Pueblo of Jemez v. United
States, 790 F.3d 1143, 1151 (10th Cir. 2015) (citing
Becker v. Ute Indian Tribe of the Unitah & Ouray
Reservation, 770 F.3d 944, 946 (10th Cir. 2014)).
“‘Federal courts are courts of limited
jurisdiction,' possessing ‘only that power
authorized by Constitution and statute.'”
Id. (quoting Gunn v. Minton, 568 U.S. 251,
256 (2013)) (further citation omitted). As such,
“[f]ederal subject matter jurisdiction is elemental . .
.and its presence must be established in every cause under
review in the federal courts.” Id. (quoting
Firstenberg v. City of Santa Fe, 696 F.3d 1018, 1022
(10th Cir. 2012)).
facial attack to subject matter jurisdiction “questions
the sufficiency of the complaint.” Holt v. United
States, 46 F.3d 1000, 1002 (10th Cir. 1995) (citation
omitted). A factual attack “challenge[s] the facts upon
which subject matter jurisdiction depends.”
Id. at 1003. Here, defendants present a facial
attack because, they assert, they question the sufficiency of
the Complaint's jurisdictional allegations. When called
to resolve a facial attack, a federal court “must
accept the allegations in the complaint as true.”
Id. But, when challenged, “the burden is on
the party claiming jurisdiction” to establish that it
exists. Celli v. Shoell, 40 F.3d 324, 327 (10th Cir.
this burden goes unsatisfied, the court must refrain from
exercising subject matter jurisdiction. Pueblo of
Jemez, 790 F.3d at 1151 (“A court lacking
jurisdiction cannot render judgment but must dismiss the
cause at any stage of the proceedings in which it becomes
apparent that jurisdiction is lacking.” (quoting
Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012,
1016 (10th Cir. 2013))).