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Parker v. WI Waterstone, LLC

United States District Court, D. Kansas

July 22, 2019

MICHAEL EUGENE PARKER, SR., Plaintiff,
v.
WI WATERSTONE, LLC, Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         This 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[1] 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.

         I. Background

         Plaintiff 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).[2] More than one month after defendant filed its Motion, plaintiff filed a “Motion to Amend the Amend[ed] Complaint” (Doc. 18).

         The 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.

         Plaintiff 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 pro[]filing.” 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.

         In its 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.

         II. First Amended Motion to Dismiss (Doc. 13)

         A. Legal Standard

         Federal 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)).

         Federal 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)).

         A 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. 1994).

         When 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))).

         B. ...


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