Opinion
Civil Action No. 3:03-CV-1214-M
November 12, 2003
FINDINGS, CONCLUSIONS, RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's Standing Order of Reference, filed August 27, 2003, this case was referred to the undersigned United States Magistrate Judge for pretrial management and report and recommendation on dispositive motions. The Court has before it the following pleadings:
1. Defendant SBC Communications Inc.'s Motion to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted, Motion to Dismiss for Lack of Jurisdiction, Brief in Support Thereof, and, Subject Thereto, Original Answer to Plaintiff's Amended Complaint, filed August 22, 2003;
2. Microsoft Corporation's Motion to Dismiss and Brief in Support, and Original Answer Subject Thereto, filed August 18, 2003;
3. Defendant Xuecheng Wang, M.D., Ph.D.'s Motion to Dismiss and Brief in Support Thereof, filed August 15, 2003;
4. Defendant Grace P. Chew's Motion to Dismiss, Brief in Support, and Original Answer Subject to Motion to Dismiss, filed August 15, 2003;
5. Defendant Martha Thorson's Motion to Dismiss for Failure to State a Claim Upon Which Relief can be Granted, Motion to Dismiss for Lack of Subject Matter Jurisdiction, Brief in Support Thereof, and Answer Subject Thereto, filed September 2, 2003;
6. Defendant Dr. Ronald W. Scates's Motion to Dismiss for Failure to State a Claim Upon Which Relief can be Granted, Motion to Dismiss for Lack of Subject Matter Jurisdiction, Brief in Support Thereof, and Answer Subject Thereto, filed September 2, 2003;
7. Defendant's University Park Police Department Rule 12(b)(1) and (6) Motion to Dismiss and Brief in Support Thereof, filed September 16, 2003;
8. Defendant Jefferson B. Hurley, M.D.'s Rule 12(b)(1) Motion to Dismiss and Brief in Support Thereof and, Subject Thereto, Original Answer, filed September 3, 2003;
9. Plaintiff's In Response to Defendant Microsoft Corporation's Motion to Dismiss, filed September 11, 2003;
10. Plaintiff's In Response to Defendant SBC Communications Inc.'s Motion to Dismiss, filed September 11, 2003;
11. Plaintiff's In Response to Defendant Grace P. Chew's Motion to Dismiss, filed September 11, 2003;
12. Plaintiff's In Response to Defendant University Park Police Department's Motion to Dismiss, filed September 11, 2003;
13. Plaintiff's In Response to Defendant XueCheng Wang, M.D., Ph.D.'s Motion to Dismiss, filed September 11, 2003;
14. Defendants Ronald W. Scales and Martha Thorson's Reply to Plaintiff's Response to Motion to Dismiss, filed September 29, 2003;
15. Defendant Grace P. Chew's Reply to Plaintiff's Response to Defendant's Motion to Dismiss, filed September 29, 2003;
16. Defendant XueCheng Wang, M.D., Ph.D.'s Reply to Plaintiff's Response to Dr. Wang's Motion to Dismiss and Brief in Support Thereof, filed September 25, 2003;
17. Defendant Jefferson B. Hurley, M.D.'s Reply to Plaintiff's Response to Defendant's Rule 12(b)(1) Motion to Dismiss and Brief in Support, filed October 9, 2003; and
18. Defendant University Park Police Department's Reply to Plaintiff's Response to Motion to Dismiss, filed October 14, 2003.
I. BACKGROUND
On May 30, 2002, Chi Lu ("Plaintiff) proceeding pro se filed this miscellaneous civil action against fourteen defendants, including church staff, doctors, SBC Communications, Inc., and Microsoft Corporation. Against each defendant, Plaintiff alleged different, single sentence claims, ranging from "Conspiracy Fraud," "Privacy Invasion," and physical or mental injury. On July 24, 2003, before any of the defendants answered or moved to dismiss, Plaintiff filed an Amended Complaint, dropping her claims against Brad Boaz, and changing the style of her complaint to thirteen individual pre-printed "Complaint" forms. Each page lists one defendant and states only those claims against that defendant. Plaintiff alleges "spiritual torture," "torture," "lynching," and what seem to be state law claims for conspiracy, invasion of privacy, sexual assault, battery, false arrest, and libel and slander. Eight of the thirteen defendants have filed motions to dismiss Plaintiff's Amended Complaint. All of these defendants move for dismissal for lack of subject matter jurisdiction over Plaintiffs Amended Complaint. Most of these defendants also move for dismissal under 28 U.S.C. § 1915(e)(2), and for failure to state a claim pursuant to FED. R. Civ. P. 12(b)(1).On September 11 and October 3, 2003, Plaintiff filed responses to the defendants' motions. Each response was written as a narrative, with additional allegations against each defendant. However, Plaintiff failed to directly address any of the legal grounds for dismissal raised in the defendants' motions. The Court unfiled three of Plaintiff's responses (those filed on October 3, 2003, responding to motions filed by defendants Scates, Thorson, and Hurley) for failure to follow this District's Local Rules. Plaintiff has failed to refile responses to these motions or request leave to refile such responses. The motions and remaining responses are now before the Court and ripe for determination.
II. ANALYSIS
"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Bolden v. Farmers Ins., 2003 WL 21500402, at * 1 (N.D. Tex. Apr. 10, 2003) (quoting Kokkonen v. Guardian Life Insurance Company of America, 511 U.S. 375, 377 (1994) (citations omitted)). "They 'must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum.'" Id. (quoting Howery v. Allstate Insurance Company, 243 F.3d 912, 916 (5th Cir. 2001), cert. denied, 534 U.S. 993 (2001)). Thus, a court must address any doubts about its subject matter jurisdiction over a plaintiffs claims before ruling on other grounds for dismissal. See USA ex rel. Barrett v. Johnson Controls, Inc., 2003 WL 21500400, at *3 and n. 8 (N.D. Tex. April 9, 2003) (citing Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994) ("A FED. R. Civ. P. 12(b)(1) motion for lack of subject matter . . . jurisdiction must be considered by the district court before other challenges 'since the court must find jurisdiction before determining the validity of a claim.'") (quoting Gould, Inc. v. Pechiney Ugine Kuhlmann, 853 F.2d 445, 450 (6th Cir. 1988))).
All of the defendants who have moved to dismiss have raised the issue of lack of subject matter jurisdiction. Under FED. R. Civ. P. 12(h)(3), the Court may raise the issue sua sponte even as to the defendants that have not so moved. See id. ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." FED. R. Civ. P. 12(h)(3); see also MCG, Inc. v. Great Western Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990) (holding that subject matter jurisdiction "may be raised by the parties, or by the court sua sponte, at any time")). In light of the defendants' motions and the authority of Rule 12(h)(3), the Court will consider whether it has subject matter jurisdiction over any of Plaintiff's claims against all of the defendants.
In this case, the defendants have submitted no evidence along with their motions to dismiss. "If a defendant files a Rule 12(b)(1) motion without submitting evidence, that defendant has presented a facial attack on subject matter jurisdiction. Under this approach, a court need determine only whether the plaintiff has alleged sufficient facts to support subject matter jurisdiction, In this situation, a court presumes the allegations in a complaint to be true." Johnson Controls, Inc., 2003 WL 21500400, at *3. Thus, the Court will analyze its jurisdiction under a facial analysis. See Johnson Controls, Inc., 2003 WL 21500400, at *3. Even under a facial analysis, though, the plaintiff still bears the burden of establishing federal jurisdiction. See Bolden, 2003 WL 21500402, at *1 (citing Burge v. Parish of St. Tammany, 187 F.3d 452, 465-66 (5th Cir. 1999)).
Plaintiff asserts claims for "spiritual torture," "torture," "lynching," and what seem to be state-law claims for conspiracy, invasion of privacy, sexual assault, battery, false arrest, and libel and slander. (Compl. at 1-13.) These claims do not refer to any federal statute or Constitutional right. They arise, if at all, under state law. "Federal courts have no jurisdiction over such claims in the absence of diversity jurisdiction under 28 U.S.C. § 1332." Bolden, 2003 WL 21500402, at *1. Plaintiff does not allege that there is complete diversity of citizenship or that there is more than $75,000.00 in controversy. These elements are independently necessary to invoke federal diversity jurisdiction. See id. (citing Stafford v. Mobil Oil Corporation, 945 F.3d 803, 804 (5th Cir. 1991) (holding that "[t]he burden of proving that complete diversity exists rests upon the party who seeks to invoke the court's diversity jurisdiction.")). Plaintiffs Amended Complaint mentions neither diversity nor alleges any amount in controversy or any other expected relief. A thorough review of Plaintiffs Amended Complaint demonstrates no basis upon which this Court may have subject matter jurisdiction over Plaintiffs claims against any defendant. Consequently, pursuant to the defendants' arguments and Rule 12(h)(3), Plaintiffs Amended Complaint should be dismissed for lack of subject matter jurisdiction. See id.; see also Pierce, 2002 WL 32158720, at *1.
Because the Court lacks subject matter jurisdiction over Plaintiffs claims, the Court need not consider the defendants' alternative arguments for dismissal under 28 U.S.C. § 1915(e)(2) and Rule 12(b)(6). See Sharpe v. Roman Catholic Diocese of Dallas, 2002 WL 31165987, *6 n. 4 (N.D. Tex. Sep. 27, 2002) (Fish, C.J.) (dismissing a case under Rule 12(b)(1) and holding that the remaining grounds for dismissal — Rules 4(m), 12(b)(4), and (5) — were moot).
III. CONCLUSION
Plaintiffs Amended Complaint should be dismissed for lack of subject matter jurisdiction. See Bolden, 2003 WL 21500402, at *1; see also Pierce, 2002 WL 32158720, at *1. However, because Plaintiff is proceeding pro se, she should be allowed to file an amended complaint that specifically sets forth a basis for federal subject matter jurisdiction. See McClellon v. Lone Star Gas Co., 66 F.3d 98, 103 (5th Cir. 1995)("The court should freely give a complainant, especially a pro se complainant, leave to amend defective allegations in a pleading."). If she fails to do so, the defendants' motions to dismiss pursuant to Rule 12(b)(1) should be granted and this case should be dismissed without prejudice. See Pierce, 2002 WL 32158720, at *1 (allowing twenty days for amendment to cure jurisdictional defect or complaint would be dismissed without prejudice).IV. RECOMMENDATION
For the foregoing reasons it is hereby RECOMMENDED that the District Court enter its order directing Plaintiff to file an amended complaint in this action which complies with the requirements of Rule 8(a) within twenty (20) days of the District Court's order, and that such order further provide that if Plaintiff fails to file a complying amended complaint within such twenty (20) day period, that the above motions to dismiss be granted and that Plaintiffs Amended Complaint in this action be dismissed without prejudice.
Rule 8(a) provides that a complaint must contain the following elements:
(1) a short and plain statement of the grounds upon which th court's jurisdiction depends . . .
(2) a short and plain statement of the claim showing that the pleader is entitled to relief, and
(3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.
FED. R. Civ. P. 8(a).
SO RECOMMENDED
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Am, 474 U.S. 140, 150 (1985); Perales v. Casillas, 950 F.2d 1066, 1070 (5th Cir. 1992). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).