Opinion
Civil No. 02-1272 (RHK/AJB).
August 15, 2002
Olé Savior, Pro se.
John P. Borger and Eric E. Jorstad, Faegre Benson, LLP, Minneapolis, Minnesota for Defendants.
MEMORANDUM OPINION AND ORDER
Introduction
Plaintiff Olé Savior, a perennial political candidate, commenced this suit against Defendants, alleging that they had violated "state and Federal laws" by sabotaging his political campaigns and fixing election results. Before the Court is the Defendants' motion to dismiss for lack of subject matter jurisdiction, insufficient service of process, and failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(1), (5), and (6). For the reasons set forth below, the motion will be granted.
Background
Savior, a resident of Minnesota, is a candidate in the 2002 Minnesota gubernatorial race. He ran unsuccessfully for the U.S. Senate in 1984, 1996 and 2000, for the U.S. House of Representatives in 1988, and for Minnesota governor in 1998. Defendants in this action are the Minneapolis Star-Tribune newspaper (the "Star-Tribune"), its parent company, the McClatchy Company, and Tim J. McGuire, J. Keith Moyer, Gary B. Pruitt, Susan Albright, Dane Smith, and Pam Fine, all of whom appear to be employed either by the Star-Tribune or the McClatchy Company.
On June 12, 2002, Savior commenced this action by filing a Complaint, pro se, in this Court. He alleges that the Defendants violated "state and Federal laws," including his "Constitutional rights amendments, I, IX, [and] XIV." (Compl. p. 1.) Specifically, he claims that Defendants have sabotaged his political campaigns and intentionally tried to fix elections by giving out false information about him, cropping him out of photos printed in the paper, and giving him less coverage than other candidates receive. (Id.) He asserts that he is "not questioning [Defendants'] rights to speech;" rather, he is "stating that they are silencing mine and doing it in an illegal manner." (Id.) Savior seeks the following relief: (1) Defendants' "acknowledgment of their wrongdoing, correction and retraction of their inaccurate and distorted articles," (2) a pledge in writing to be fair and treat all political candidates equally, (3) a personal apology from Tim McGuire and his staff, and (4) $100 million in damages, in addition to punitive damages. (Id. p. 2.)
On June 28, 2002, Defendants jointly moved to dismiss this action for lack of subject matter jurisdiction, insufficient service of process, and failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(1), (5) and (6). In their Notice of Motion and Motion, Defendants informed Savior that Local Rule 7.1(b)(1)(B) requires that, if he intended to respond to the Motion, he needed to file documents at least nine days prior to the hearing date, which was to be held on August 13, 2002. Defendants described in detail which documents needed to be filed, including the number of copies required. Savior did not respond to the Motion and did not appear at the hearing on August 13, 2002. At the hearing, the Court took the matter under advisement, without oral argument.
Savior did send a letter dated July 8, 2002 to Defendants' counsel, apparently in response to Defendants' argument that service of process had been insufficient. The letter, along with its attachments, were made a part of the record at the hearing on August 13, 2002.
Analysis
Savior failed to comply with the Local Rules in responding to Defendants' Motion. See Schooley v. Kennedy, 712 F.2d 372, 373 (8th Cir. 1983) (explaining that pro se parties are not excused compliance with procedural and substantive rules). His noncompliance, however, is not a sufficient ground to grant Defendants' motion. Johnson v. Boyd-Richardson Co., 650 F.2d 147, 149-50 (8th Cir. 1981) (stating that it is "the court's duty to inquire into the merits of the motion . . . in accordance with law and the relevant facts," regardless of whether a party has complied with the local rules). Accordingly, the Court will examine the merits of Defendants' Motion.
Defendants moved to dismiss the Complaint for insufficient service of process under Federal Rule of Civil Procedure 12(b)(5). A dismissal under this rule does not reach the merits of the case and if successful, would result in a dismissal without prejudice. Because the Court determines below that it does not have subject matter jurisdiction over the majority of this case, it will not consider Defendants' claim that service of process was insufficient and therefore, does not need to address Savior's July 8, 2002 letter, which is, in any event, not a proper response to Defendants' Motion.
I. Failure to State a Claim
Defendants contend that the Complaint should be dismissed because Savior has failed to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must take as true the allegations contained in the complaint. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733 (1964) (per curiam). A complaint
must be viewed in the light most favorable to the plaintiff and should not be dismissed merely because the court doubts that a plaintiff will be able to prove all of the necessary factual allegations. "Thus, as a practical matter, a dismissal under Rule 12(b)(6) is likely to be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief."
Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir. 1982) (quoting Jackson Sawmill Co. v. United States, 580 F.2d 302, 306 (8th Cir. 1978)). Viewing the complaint in this manner, a court may dismiss a case under Rule 12(b)(6) only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02 (1957)).
In essence, Savior alleges that the Defendants unfairly excluded him from its political coverage, thereby injuring his campaigns and aiding other candidates' campaigns. Thus, to the extent Savior has defined his claims, he has alleged a claim under the First Amendment by claiming that Defendants are "silencing" his speech. Accordingly, he has adequately asserted a basis for the exercise of subject matter jurisdiction, at least with respect to a claim under the First Amendment.
The First Amendment, however, applies only to acts of Congress and, through the Fourteenth Amendment, state action. The test employed in determining whether a private citizen's conduct constitutes "state action" involves ascertaining whether a private citizen's conduct can be "fairly attributable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982) (internal citations omitted). In this case, there is no allegation that the Defendants were State actors or that their decisions regarding what to publish were attributable to the State. Therefore, Savior has failed to assert a viable claim under the First Amendment.
Furthermore, the First Amendment protects a newspaper's right to exercise editorial control over the content of its political coverage, including which candidates to cover and how much coverage to give a particular candidate. The Supreme Court has explained that "[t]he choice of material . . . and the decisions made as to limitations on the size and content . . . and treatment of public issues . . . — whether fair or unfair — constitute the exercise of editorial control and judgment" upon which a State cannot intrude. Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 258 (1974). Thus, this Court is without authority to order the Defendants to publish more information or photos about Savior in the Star-Tribune or to cover all political candidates equally. Accordingly, Savior has failed to state a claim upon which relief can be granted. To the extent that there is a First Amendment claim, it is dismissed with prejudice.
II. Subject Matter Jurisdiction
Defendants contend that the Complaint should be dismissed for lack of subject matter jurisdiction because Savior has failed to allege a sufficient basis for the exercise of federal subject matter jurisdiction. See Fed. Civ. P. 12(b)(1). Federal District Courts have subject matter jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. In the remainder of the Complaint, Savior claims that the Defendants violated unspecified state and federal laws, as well as the Ninth Amendment.
"If the sufficiency of the jurisdictional allegations is challenged by the court or an opposing party, the burden of proof as to the existence of federal jurisdiction is on the party that claims that jurisdiction exists." Bilal v. Kaplan, 904 F.2d 14, 15 (8th Cir. 1990) (citations omitted). The mere suggestion of a federal question is not sufficient to establish the jurisdiction of federal courts; rather, federal court jurisdiction must affirmatively appear clearly and distinctly on the face of the complaint. Id.
Although Savior makes general allegations of federal causes of action, he has failed to explain how Defendants' conduct violated any of the unspecified federal laws or the Ninth Amendment, a nebulous amendment that does not appear to be applicable to any of Savior's allegations. As this Court has explained, "a bald assertion is insufficient to raise a federal question and to vest the Court with subject matter jurisdiction." Savior v. Gaertner, et. al., 2001 WL 1589613 at *4 (D.Minn. Dec. 11, 2001) (Frank, J.). Without more, Savior has not established the existence of subject matter jurisdiction over the remaining allegations. Accordingly, the Court lacks subject matter jurisdiction over the remainder of this matter, and it will be dismissed without prejudice.
The Ninth Amendment provides "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. Const. Amend. IX.
Moreover, to the extent Savior alleges state law violations, the Court, at most, has supplemental jurisdiction over the unspecified state law claims; it declines to exercise supplemental jurisdiction. See 28 U.S.C. § 1367(c)(3).
Conclusion
Upon all the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED that1. Defendants' Motion to Dismiss (Doc. No. 5) is GRANTED; and
2. To the extent Plaintiff's Complaint (Doc. No. 1) alleges a violation of Plaintiff's First Amendment rights, it is hereby DISMISSED WITH PREJUDICE. To the extent it alleges other violations of unspecified state and federal laws and a violation of the Ninth Amendment, it is hereby DISMISSED WITHOUT PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.