Opinion
Case No. 01-4194-JAR
June 4, 2003.
MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
This comes before the Court on Defendants' Motion to Dismiss (Doc. 82), and Plaintiffs' Response (Doc. 86) which includes a request to amend the Complaint. Plaintiffs filed this action pro se against Defendants, and in their respective amended complaints, filed on January 25, 2003, Plaintiffs claimed that they were each entitled to relief under Title VII of the Civil Rights Act of 1964, as well as for constitutional violations pursuant to 42 U.S.C. § 1981, 1982, 1983, 1985, 1896. Plaintiffs also seek relief for "Malice, Fraud, Ineffective Counseling, Malpractice, Obstruct and other name claims filed in plaintiff's petition to deceive and defraud Plaintiff's property, content and other loss suffered and other damages and injuries caused by defendants negligent." In the body of their complaint, Plaintiffs also mention claims of "Breach of Contract," "Breach of Ethics," "Civil Fraud," "Conspiracy," "State Tort Claims," "Violation of Court Order" and "Property Loss."
Benard Witherspoon, James Witherspoon, Frankie L. Witherspoon, Essie Witherspoon, Ulysses Washington, Mary Washington, Paula Porter, Lue Cynthia Hall, Bobby Witherspoon, Garnstime Shelton, New Jerusalem Local Congregation, LaTonya Witherspoon, George Witherspoon and Kendra Witherspoon.
Douglas J. Miller, Daniel H. Diepenbrock, Grant Sellenberger, Linda Powell Gilmore and Miller and Diepenbrock, P.A.
Because there is no 42 U.S.C. § 1896, the Court assumes that the Plaintiffs seek relief under 42 U.S.C. § 1986.
Defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Because the Plaintiffs appear pro se, the Court must also review the pleadings with additional considerations. A pro se litigant's pleadings are construed liberally. The court is to determine whether the plaintiff's complaint can be reasonably read to state a valid claim "despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." However, the court is not to assume the role of advocate for the pro se litigant. For that reason, the court should not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues," nor should it "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf."
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Id.
Id.
Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (citation omitted).
Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
Jurisdiction
Federal courts are courts of limited jurisdiction, able to adjudicate only those cases which the Constitution and Congress authorize. Federal judicial power derives from and is absolutely limited by Article III, § 2 of the Constitution. There are essentially three bases for federal jurisdiction: federal question; diversity; or as expressed in Article III, § 2, and 28 U.S.C. § 1345-1346, cases in which the United States is a party. In addition, if the court has federal question or diversity jurisdiction of some claims, it may exercise supplemental jurisdiction over state law claims.
Ankenbrandt v. Richards, 504 U.S. 689, 695-697 (1992).
Plaintiffs raise claims under a number of federal statutes, invoking federal question jurisdiction; and also raise a number of state law claims, invoking diversity jurisdiction, or alternatively supplementary jurisdiction. As further addressed below, the Court dismisses Plaintiffs' federal question claims ( 42 U.S.C. § 1981, 1982, 1983, 1985, 1986, and Title VII) for failure to state a claim. And, Plaintiffs fail to establish diversity jurisdiction of the state claims. Absent federal question or diversity jurisdiction, the Court may not exercise supplemental jurisdiction over the state law claims. Thus, the Motion to Dismiss must be granted.
Federal Question Claims — Failure to State a Claim
The court may not dismiss a cause of action for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure unless it appears beyond doubt that the claimant can prove no set of facts supporting its claim which would entitle it to relief. In considering a Rule 12(b)(6) motion, the court must assume as true all well-pleaded facts, as distinguished from conclusory allegations, and must draw all reasonable inferences in favor of the nonmovant. The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support its claim.
H. J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50 (1989).
Housing Auth. of Kaw Tribe of Indians of Oklahoma v. City of Ponca City, 952 F.2d 1183, 1187 (10th Cir. 1991), cert. denied 504 U.S. 912 (1992); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984).
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).
Reading Plaintiffs' complaints in the light most favorable to Plaintiffs, and interpreting the complaints liberally, in order to find some reasonable basis for Plaintiffs' claims, the Court gleans that the gravamen of the complaints is that defendants committed legal malpractice in their representation of Plaintiffs, and deceived, defrauded and breached their contract with Plaintiffs in the course of that representation. But, Plaintiffs fail to state a claim under any of the federal statutes they rely on.
Plaintiffs fail to state a claim for relief under 42 U.S.C. § 1981, which proscribes public or private racial discrimination in the formation and enforcement of contracts. To advance a claim under § 1981, a plaintiff must allege intentional discrimination and that he or she is a member of a protected class. Plaintiffs do not state their race or national origin. Nor do Plaintiffs allege intentional discrimination resulting from racial animus, as § 1981 requires.
Fitzgerald v. Mountain States Tel. Tel. Co., 68 F.3d 1257, 1262 (10th Cir. 1995) (citations omitted). Although § 1981 also contains judicial process and equal benefit clauses, these likewise require a showing of racial animus. See Wesley v. Don Stein Buick, Inc., 996 F. Supp. 1299, 1304-05 (D.Kan. 1998).
See id.
See Lowe v. Letsinger, 772 F.2d 308, 311 (7th Cir. 1985) (mere allegation that plaintiff is black is insufficient to state a claim under section 1981).
Saint Francis College v. Al-Khazraji, 481 U.S. 604, 609 (1987).
Plaintiffs similarly fail to state a claim for relief under 42 U.S.C. § 1982, which prohibits racial discrimination in the sale and rental of property. To advance a claim under § 1982, a plaintiff must allege that he or she was discriminated against with respect to property rights. Although Plaintiffs allege that Defendants converted real property, Plaintiffs do not allege intentional discrimination resulting from racial animus, as § 1982 requires.
42 U.S.C. § 1982 provides: "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property."
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 420-21 (1968).
Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 616 (1987).
Plaintiffs fail to state a claim under 42 U.S.C. § 1983. Plaintiffs do not state that they were deprived of any rights, privileges or immunities by officials acting under color of state law. Rather, these defendants were apparently lawyers or those involved in the legal representation of these Plaintiffs and not officials. Thus, Plaintiffs fail to state a claim under § 1983.
Although Plaintiffs allege that Defendants were engaged in a conspiracy, Plaintiffs fail to state a claim under 42 U.S.C. § 1985. In order to state a claim under § 1985, Plaintiffs must allege a conspiracy based upon discrimination by the defendants and that defendants were motivated by a discriminatory purpose. And, as the Tenth Circuit has noted, § 1985 applies only to conspiracies motivated by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus." Plaintiffs similarly fail to state a claim under § 1986, which applies to those who have knowledge of a conspiracy to interfere with civil rights in violation of § 1985, have ability to aid in its prevention, and fail to exercise that ability.
Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993) (quoting Griffin v. Breckenridge, 403 U.S. 88, 101-02 (1971)).
Wesley v. Don Stein Buick, Inc., 996 F. Supp. 1299, 1308 (D.Kan. 1998) (citation omitted).
Plaintiffs' claim is in essence a state law claim of legal malpractice, with allegations that the malpractice and tortious conduct of defendants caused damages, including the deprivation of property. Plaintiffs allege in their amended complaints, that this action arises out of Defendants' legal representation of the Board of Trustees of New Jerusalem Church of God in Christ in an action filed in the District Court of Seward County, Kansas. Plaintiffs' allegations still fail to state a claim under the civil rights statutes. Granting Plaintiffs' request to amend their complaints would not be curative.
See Strain v. Citizens Bank Trust Co., 68 F.R.D. 697, 699 (E.D.La. 1975) (finding legal malpractice claim not cognizable under §§ 1981 and 1982).
Moreover, Plaintiffs fail to state a claim for relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiffs state no substantive allegations that would give rise to a cause of action under Title VII. Plaintiffs do not allege that they are members of a protected class, that Defendants discriminated against them, or that they were employees of Defendants. Moreover, Plaintiffs fail to allege that they exhausted their administrative remedies by filing a claim with the EEOC; and they do not allege that they received a Notice of Right to Sue Letter from the EEOC. Thus, Plaintiffs fail to show that this Court even has subject matter jurisdiction of their Title VII claim.
Aramburu v. Boeing Co., 112 F.3d 1398, 1411 (10th Cir. 1997) (Title VII) (citing Jones v. Runyon, 91 F.3d 1398, 1399-1401 (10th Cir. 1996), cert. denied 520 U.S. 1115 (1997)); Seymore v. Shawver Sons, Inc., 111 F.3d 794, 799 (10th Cir. 1997), cert. denied 522 U.S. 935 (1997).
State Law Claims — No Subject Matter Jurisdiction
Plaintiffs allege numerous state law claims, all relating to alleged legal malpractice. They claim inter alia, state law claims of negligence, fraud and conversion. Although Plaintiffs allege diversity jurisdiction, in their amended complaints they acknowledge that they are residents of Kansas; that Defendants Diepenbrock, Shallenburger and Gilmore are residents of Kansas; and that Defendant Miller and Diepenbrock, P.A. is located in Kansas. The Court has no diversity jurisdiction over this case, because there is not diversity of citizenship between the plaintiffs and defendants, as 28 U.S.C. § 1332(a) requires. Plaintiffs' request to amend their complaints would not cure this jurisdictional defect.
Owen Equip. Erection Co. v. Kroger, 437 U.S. 365, 373 (1978) (stating that diversity jurisdiction requires that each defendant be a citizen of a different State from each plaintiff).
There being no subject matter jurisdiction by virtue of diversity jurisdiction, the state law claims must be dismissed. Plaintiffs fail to state a claim on any of their federal question causes of action. Plaintiffs fail to establish diversity jurisdiction. And, because this Court lacks original jurisdiction over any of Plaintiffs' claims, the Court has no supplemental jurisdiction over these state law claims. Pursuant to 28 U.S.C. § 1367(a), before a court can exercise supplemental jurisdiction over a cause of action, the court must first have original jurisdiction over a claim that is closely related to the state law claim at issue.
IT IS THEREFORE ORDERED that Defendants' motion to dismiss (Doc. 82) is GRANTED and this action is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiffs' request to amend the complaints (Doc. 86) is DENIED.
IT IS SO ORDERED.