United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
4, 2019, plaintiff Allan Quigley filed a pro se Complaint
against six defendants: (1) Sporting Kansas City Soccer Club;
(2) Andrea Kimball; (3) Clifford Illig; (4) Pat Curran; (5)
Greg Maday; and (6) Robb Heineman. Doc. 1 at 1-2. Plaintiff
asserts claims for slander and “injur[y] to another in
[his] trade, business, or prof[ ]ession.” Id.
5, 2019, Magistrate Judge James P. O'Hara issued an Order
to Show Cause to plaintiff. Doc. 4. The Order explained that
plaintiff's Complaint does not establish the court's
subject matter jurisdiction. Id. at 2. Judge
O'Hara construed plaintiff's claims as ones
attempting to invoke this court's diversity jurisdiction
under 28 U.S.C. § 1332. Section 1332 confers federal
subject matter jurisdiction on civil actions when the amount
in controversy exceeds $75, 000 and the matter is
“between citizens of different states.” 28 U.S.C.
§ 1332(1). Judge O'Hara explained that
plaintiff's Complaint alleges that plaintiff is from
Missouri, suggests that at least one defendant-Andrea
Kimball-also is a citizen of Missouri, and provides no
information about the citizenship of the remaining
defendants. Id. at 3. Thus, Judge O'Hara found
that plaintiff's Complaint did not establish diversity
jurisdiction. Because of this jurisdictional defect, Judge
O'Hara ordered plaintiff to show cause in writing by June
20, 2019, why the court should not dismiss plaintiff's
case for lack of subject matter jurisdiction. Id. at
O'Hara noted in his Order that plaintiff may serve and
file objections to the Order under 28 U.S.C. § 636(b)(1)
and Fed.R.Civ.P. 72, within 14 days after service.
Id. He also advised plaintiff that failing to make a
timely objection to the Order would waive any right to
appellate review of the proposed findings of fact,
conclusions of law, or recommended disposition. See
Id. at 4 (explaining that “[i]f no objections are
timely filed, no appellate review will be allowed by any
court”). The Clerk sent a copy of the Order to
plaintiff by regular and certified mail. See Docket
Entry for Doc. 4 (stating a copy of the Order was
“[m]ailed to pro se party Allan Quigley, II by regular
mail and certified mail”); see also Doc. 5
(certified mail receipt).
never responded to Judge O'Hara's Order within the
14-day time period for filing objections under 28 U.S.C.
§ 636(b)(1) and Fed.R.Civ.P. 72. On June 21, 2019, the
court re-docketed Judge O'Hara's Show Cause Order as
a Report and Recommendation. Doc. 6.
26, 2019, plaintiff filed a document that the court construes
as an untimely response to Judge O'Hara's Order. Doc.
7. Plaintiff's response is difficult to understand. But,
as best as the court can discern, plaintiff confirms that
defendant Andrea Kimball is a Missouri citizen. See
Id. at 1 (“Plaintiff alleges to be from Missouri
and so is defendant ‘Andrea Kimball.'”).
Plaintiff also explains that Ms. Kimball is “is not on
the defendant list” and “would not qualify as
owner of Sporting KC.” Id. Plaintiff
identifies the “owners of Sporting KC and Hospitality
LLC” as “consisting of [the] Patterson Family,
Cliff Illig, Rob Hiddelman, Greg Maday, and Pat
Curran.” Id. Plaintiff asserts that the
citizenship of an LLC is “determined by the
citizens[hip] of each of the members of Sporting Kansas City
Soccer Club.” Id. Plaintiff alleges that Cliff
Illig resides in Leawood, Kansas. Id. But he
provides no information about the citizenship of the other
members of the LLC or the citizenship of any of the other
defendants he has named in this lawsuit.
Civ. P. 72(b)(2) provides that, after a magistrate judge
enters a recommended disposition on a dispositive matter, a
party may serve and file specific written objections to the
magistrate judge's order within 14 days after being
served with a copy of the recommended disposition. Then,
under Fed.R.Civ.P. 72(b)(3), the district court “must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to.”
Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. §
636(b)(1) (“A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.”). After making this determination, the district
court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge . . . [or] may also receive further evidence or
recommit the matter to the magistrate judge with
instructions.” 28 U.S.C. § 636(b)(1).
Tenth Circuit requires that objections to a magistrate
judge's recommended disposition “be both timely and
specific to preserve an issue for de novo review by the
district court.” United States v. One Parcel of
Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). As
stated above, an objection is timely if made within 14 days
after service of a copy of the recommended disposition.
Fed.R.Civ.P. 72(b)(2). An objection is sufficiently specific
if it “focus[es] the district court's attention on
the factual and legal issues that are truly in
dispute.” One Parcel of Real Prop., 73 F.3d at
1060. If a party fails to make a proper objection, the court
has considerable discretion to review the recommendation
under any standard that it finds appropriate. Summers v.
Utah, 927 F.2d 1165, 1167 (10th Cir. 1991).
filed his response to Judge O'Hara's Order to Show
Cause on June 26, 2019- more than 14 days after he was served
with the Order on June 5, 2019. Thus, to the extent the court
construes plaintiff's filing as an objection to Judge
O'Hara's Order, it is untimely. Nevertheless, the
court conducts a de novo review of Judge O'Hara's
Report and Recommendation. After conducting that review, the
court agrees with Judge O'Hara's well-reasoned
conclusion that plaintiff has not established diversity
jurisdiction, and thus, the court lacks subject matter
jurisdiction over plaintiff's lawsuit.
court recognizes that plaintiff proceeds pro se in this
lawsuit. Thus, the court construes his filings liberally.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991) (“A pro se litigant's pleadings are to be
construed liberally and held to a less stringent standard
than formal pleadings drafted by lawyers.”). But, even
under the most liberal construction afforded to
plaintiff's Complaint and his filing, he has not
established any basis for subject matter jurisdiction.
court has an independent obligation to satisfy itself that
subject matter jurisdiction is proper. Henderson ex rel.
Henderson v. Shinseki, 562 U.S. 428, 434 (2011). And, it
“must dismiss the cause at any stage of the proceedings
in which it becomes apparent that jurisdiction is
lacking.” Penteco Corp. Ltd. P'ship v. Union
Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991);
see also Fed. R. Civ. P. 12(h)(3) (“If the
court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”). The
plaintiff must shoulder the burden to establish the
court's subject matter jurisdiction. Montoya v.
Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citing
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994)).
federal statutes confer subject matter jurisdiction on
federal district courts: federal question jurisdiction under
28 U.S.C. § 1331, and diversity jurisdiction under 28
U.S.C. § 1332. Plaintiff fails to ...