Guenther v. Kimmell

• Court: District Court, W.D. Missouri
• Decided: April 14, 2020
• Docket: 3:19-cv-05087
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHWESTERN DIVISION

FREDERICK J. GUENTHER, ) ) Plaintiff, ) ) v. ) Case No. 3:19-CV-05087-SRB ) STEPHANIE M. KIMMELL, ) ) Defendant. )

ORDER On October 31, 2019, Frederick Joseph Guenther made a pro se filing with this Court. (Doc. #1). In that pro se filing, entitled “Affidavit of Lawful/Legal Notice of Removal from Circuit Court to Federal Court,” Guenther purported to remove a case from state to federal court. (Doc. #1, p. 1). The Court construed Guenther’s pro se filing as a complaint and on March 5, 2020, issued an Order to Show Cause directing Guenther to file a statement explaining why this case should not be dismissed for lack of subject-matter jurisdiction. (Doc. #5). On March 20, 2020, Guenther filed a pro se motion for an extension of time. (Doc. #6). This Court granted Guenther’s pro se motion for an extension of time, giving him until and including April 9, 2020, to file a statement explaining why this case should not be dismissed for lack of subject-matter jurisdiction. (Doc. #7). As of today’s date, Guenther has not filed a statement with this Court. Federal courts are courts of limited jurisdiction. Gunn v. Minton, 568 U.S. 251, 256 (2013). The issue of whether a court lacks subject-matter jurisdiction may be raised sua sponte at any time. Bueford v. Resolution Tr. Corp., 991 F.2d 481, 485 (8th Cir. 1993); see also Thomas v. Basham, 931 F.2d 521, 523 (8th Cir. 1991) (“[J]urisdiction issues will be raised sua sponte by a federal court when there is an indication that jurisdiction is lacking, even if the parties concede the issue.”). The plaintiff bears the burden of establishing subject-matter jurisdiction. Jones v. Gale, 470 F.3d 1261, 1265 (8th Cir. 2006). A “court may dismiss an action sua sponte at any time when subject matter jurisdiction is lacking.” K.F. v. Francis Howell R-III Sch. Dist., No. 4:07CV01691 ERW, 2008 WL 723751, at *2 (E.D. Mo. Mar. 17, 2008); 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.”). As discussed in this Court’s prior Order to Show Cause, Guenther has not established the existence of subject-matter jurisdiction. There is no diversity jurisdiction because the parties are not diverse. See 28 U.S.C. §§ 1332(a), 1441(a). There is also no federal-question jurisdiction because Guenther fails to present a federal question on the face of his complaint, no matter how liberally this Court construes it. See Fed. R. Civ. P. 8(a)(1)–(2) (a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief”); see also Hassett v. Lemay Bank & Tr. Co., 851 F.2d 1127, 1129 (8th Cir. 1988) (“private misuse of a statute by a private actor is not sufficient to state a claim under [§] 1983”). Since this Court

lacks jurisdiction over Guenther’s claims, it must dismiss this case. Accordingly, this case is hereby DISMISSED without prejudice due to a lack of subject- matter jurisdiction. IT IS SO ORDERED. /s/ Stephen R. Bough STEPHEN R. BOUGH UNITED STATES DISTRICT JUDGE

Dated: April 14, 2020