Lammers Kurtz v. USA

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) JAMES D. LAMMERS KURTZ, ) ) Plaintiff, ) ) v. ) Civil Action No. 10-1270 (RWR) ) UNITED STATES OF AMERICA ) et al., ) ) Defendants. ) ______________________________)

MEMORANDUM OPINION

Pro se plaintiff James D. Lammers Kurtz has named the United

States as a defendant in a complaint concerning property located

in Wisconsin and harms occurring in Wisconsin. The complaint

alleges misconduct by four federal judges, and that the United

States unlawfully holds property belonging to the plaintiff. The

United States has moved to dismiss, and the plaintiff has moved

for leave to amend his complaint. Because the United States has

not waived its sovereign immunity with respect to the plaintiff’s

claims that are based upon his allegations against the federal

judicial defendants, and there is no private right of action for

the plaintiff’s claim regarding his property, the United States’

motion to dismiss will be granted.1 The motion for leave to

1 The plaintiff has also filed a motion to deem the allegations against the United States as conceded, a motion “for orders to Stop the USA from further closing the doors to the US courthouses[,]” and a motion for orders that requests appointment - 2 -

amend will be denied as futile, and the remaining unnamed

defendants will be dismissed because they have not been timely

served.

BACKGROUND

The plaintiff alleges that three judges of the United States

Court of Appeals for the Seventh Circuit and a judge of the

United States District Court for the Eastern District of

Wisconsin “wont [sic] allow a legit[imate] record [to be] made”

regarding his claims against other defendants who have been

dismissed from the case.2 (Compl. at 23.) Additionally, the

plaintiff alleges that property of his is “held by the USA by

violation of 18USC1001, 1341, 1503 etc[.]” (Id. at 3.) The

United States has moved to dismiss and incorporates in its motion

its opposition to the plaintiff’s motion to deem the allegations

of counsel and other relief with respect to the United States. Because the plaintiff shows no entitlement to appointed counsel, the motion for orders will be denied with respect to appointing counsel. Because the United States will be dismissed as a defendant, the motion for orders will be denied as moot with respect to all requested relief from the United States. The other two motions seeking relief from the United States also will be denied as moot. 2 Between August and December of 2010, all defendants except for the United States and the unnamed defendants moved to dismiss the complaint as to them, and those defendants’ motions to dismiss were granted for lack of personal jurisdiction. See Kurtz v. United States, Civil Action No. 10-1270 (RWR), 2011 WL 1549216 (D.D.C. Apr. 26, 2011). The plaintiff’s motion to reconsider dismissing the defendants was denied. See Kurtz v. United States, Civil Action No. 10-1270 (RWR), 2011 WL 2457923 (D.D.C. June 20, 2011). - 3 -

against the United States as conceded.3 (Mot. to Dismiss the

U.S. at 1.) That opposition argues in part that the United

States has not waived its sovereign immunity with respect to the

plaintiff’s claims, and that the complaint is subject to

dismissal under Federal Rule of Civil Procedure 12(b)(6) for

failure to state a claim. (Mem. in Opp’n to Pl.’s Mot. to Deem

the Allegations Against the U.S.A. Conceded at 3.)

DISCUSSION

I. SUBJECT-MATTER JURISDICTION

“[T]he plaintiff bears the burden of establishing that the

court has subject-matter jurisdiction.” Larsen v. U.S. Navy, 486

F. Supp. 2d 11, 18 (D.D.C. 2007); see also Moms Against Mercury

v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). A court “‘must

accept as true the allegations in the complaint and consider the

factual allegations of the complaint in the light most favorable

to the non-moving party.’” Short v. Chertoff, 526 F. Supp. 2d

37, 41 (D.D.C. 2007) (quoting Erby v. United States, 424 F. Supp.

2d 180, 182 (D.D.C. 2006)). Although a court is to construe

liberally a pro se complaint, Howerton v. Ogletree, 466 F. Supp.

2d 182, 183 (D.D.C. 2006), “[p]ro se plaintiffs are not freed

from the requirement to plead an adequate jurisdictional basis

3 The United States also argues in both its motion to dismiss and opposition to the plaintiff’s motion to deem allegations as conceded that the plaintiff’s service of process upon the United States was insufficient. This argument need not be addressed. - 4 -

for their claims.” Gomez v. Aragon, 705 F. Supp. 2d 21, 23

(D.D.C. 2010).

A. Sovereign Immunity

Because the United States’ consent to be sued in a

particular court defines the scope of that court’s jurisdiction,

“[a]bsent a waiver, sovereign immunity shields the Federal

Government . . . from suit.” FDIC v. Meyer, 510 U.S. 471, 475

(1994); see also United States v. Mitchell, 463 U.S. 206, 212

(1983) (“It is axiomatic that the United States may not be sued

without its consent and that the existence of consent is a

prerequisite for jurisdiction.”). A waiver of sovereign immunity

“must be unequivocally expressed in statutory text, and will not

be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996) (internal

citation omitted). “[C]onditions upon which the Government

consents to be sued must be strictly observed[,]” Lehman v.

Nakshian, 453 U.S. 156, 161 (1981) (quotation marks and citation

omitted), and any waiver is construed strictly in the sovereign’s

favor. Lane, 518 U.S. at 192.4

The plaintiff’s complaint names the United States as a

defendant “in light of” the plaintiff’s allegations against the

federal judicial defendants, and the plaintiff seeks damages and

4 But see Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 589 (2008) (noting that the “sovereign immunity canon is just that –– a canon of construction” and that it does not “displace[] the other traditional tools of statutory construction”). - 5 -

injunctive and declaratory relief. (Compl. at 22, 25.) The

Administrative Procedure Act (“APA”) provides that “[t]he United

States may be named as a defendant” in an action “seeking relief

other than money damages and stating a claim that an agency or an

officer or employee thereof acted or failed to act in an official

capacity or under color of legal authority[.]”5 5 U.S.C. § 702.

This provision waives the government’s immunity from suit.

Trudeau v. FTC, 456 F.3d 178, 186 (D.C. Cir. 2006). Although the

plaintiff does not bring his claims under the APA, there “is

nothing in the language of . . . § 702 that restricts its waiver

to suits brought under the APA.” Id. However, the APA’s waiver

of sovereign immunity applies only to suits for specific relief

against an agency or officer acting or failing to act in an

official capacity.

Because the APA explicitly excludes the courts of the United

States from its definition of an agency, 5 U.S.C. § 701(b)(1)(B),

it does not waive the United States’ sovereign immunity with

respect to the plaintiff’s claims against the United States based

upon the allegations regarding the dismissed federal judicial

5 The plaintiff’s claims for damages are barred because the government has not waived its sovereign immunity for constitutional tort claims for damages. See Hamrick v. Brusseau, 80 Fed. Appx. 116, 116 (D.C. Cir. 2003) (noting that “the United States has not waived sovereign immunity with respect to actions for damages based on violations of constitutional rights by federal officials when brought against the United States directly, or against officers sued in their official capacities” (internal citations omitted)). - 6 -

defendants. In Wall v. U.S. Dep’t of Justice, No. 3:09CV1066

(DJS), 2010 WL 4923736, at *1, 6 (D. Conn. Nov. 29, 2010), a

plaintiff brought suit seeking equitable relief from, among other

defendants, a federal district and a federal circuit judge. The

court concluded that Ҥ 702 does not constitute a waiver of

sovereign immunity as to claims against federal judges[,]” and

that the court lacked “subject matter jurisdiction over [a] . . .

Complaint seeking equitable relief against . . . federal

judges[.]” Id. at *8. Just an in Wall, § 702 does not waive

sovereign immunity here as to the plaintiff’s claims for specific

relief from the federal judicial defendants.

An alternative analysis yields the same result.

“[S]overeign immunity does not bar suits for specific relief

against government officials where the challenged actions of the

officials are alleged to be unconstitutional[.]” Clark v.

Library of Cong., 750 F.2d 89, 102 (D.C. Cir. 1984); see also

Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 690

(1949) (reasoning that where a “statute or order conferring power

upon the officer to take action in the sovereign’s name is

claimed to be unconstitutional[,]” “the conduct against which

specific relief is sought is beyond the officer’s powers and is,

therefore, not the conduct of the sovereign”). The D.C. Circuit

has suggested –– albeit in the context of monetary damages and

not injunctive relief –– that this exception “does not apply when - 7 -

the suit is brought directly against the United States rather

than against a government official.” Clark, 750 F.2d at 103

n.31; see also Larson, 337 U.S. at 693 (noting that if an officer

is “exercising the powers delegated to him by the sovereign[,]

. . . the action is the sovereign’s and a suit to enjoin it may

not be brought unless the sovereign has consented”). Not

applying this officer exception to the sovereign immunity bar

where a suit for specific relief is brought directly against the

United States is consistent with the legal fiction underlying the

exception –– that the unconstitutional conduct of an officer is

not the conduct of the sovereign and is not endorsed by the

sovereign. This fiction dissolves where a plaintiff sues the

sovereign directly. Because the plaintiff’s claims against the

federal judicial defendants have been dismissed, there are no

remaining government officials in the suit whose actions could be

declared unconstitutional or who could be enjoined. This posture

–– in which the United States is the only remaining named

defendant –– precludes the officer exception to the sovereign

immunity bar from applying.6

6 In any event, there is no authority upon which to grant the plaintiff the injunctive relief that he appears to seek from the United States. The plaintiff seems to request an order requiring the federal judicial defendants to allow him to make a record with respect to his previous suits in the Eastern District of Wisconsin and the Seventh Circuit. However, a district court “lacks subject matter jurisdiction to review the actions of another . . . federal [district] court [or court of appeals].” Gallo-Rodriguez v. Supreme Court of the U.S., Civil Action No. - 8 -

B. Private right of action

The plaintiff’s complaint also alleges that the United

States holds property of his in violation of various sections of

Title 18 of the United States Code, including the provisions

criminalizing making false statements, 18 U.S.C. § 1001, mail

fraud, 18 U.S.C. § 1341, and influencing or injuring an officer

or juror, 18 U.S.C. § 1503. (Compl. at 3, 22.) However, none of

these criminal statutes creates private rights of action upon

which a litigant may bring a civil suit. See Banks v. Kramer,

No. 09-5140, 2009 WL 5526780, at *1 (D.C. Cir. Dec. 30, 2009) (18

U.S.C. §§ 1001, 1503); RJP Prod. Co. v. Nestle USA, Inc., Civil

Action No. 10-584 (ESH), 2010 WL 1506914, at *2 n.1 (D.D.C.

Apr. 15, 2010) (18 U.S.C. § 1341). Because the lack of a private

right of action precludes the existence of subject-matter

jurisdiction, see Sanders v. U.S. Dep’t of Justice, Civil Action

No. 09-721 (JDB), 2009 WL 1076704, at *1 (D.D.C. Apr. 21, 2009)

(dismissing claim for lack of subject matter jurisdiction where

statute under which plaintiff brought the claim did not confer a

private right of action), claims suffering from this

jurisdictional defect may be dismissed sua sponte. See Hurt v.

U.S. Court of Appeals for D.C. Circuit Banc, 264 Fed. Appx. 1, 1

(D.C. Cir. 2008) (noting that Federal Rule of Civil Procedure

08-1890 (RWR), 2009 WL 3878073, at *1 (D.D.C. Nov. 19, 2009). - 9 -

12(h)(3) authorizes a court to analyze on its own the issue of

subject-matter jurisdiction). Thus, the plaintiff’s claim that

the United States is unlawfully holding his property will be

dismissed. See Ivey v. Nat’l Treasury Employees Union, Civil

Action No. 05-1147 (EGS), 2007 WL 915229, at *5 (D.D.C. Mar. 27,

2007).

II. MOTION FOR LEAVE TO AMEND

The plaintiff seeks to amend his complaint to add as

defendants the United States Attorney General and Peggy

Lautenschlager, the former Attorney General of Wisconsin. (Mot.

to Am. the Compl. at 1.) Additionally, although he has not filed

a motion seeking relief to this effect, the plaintiff also

appears to be asking in another filing to add as defendants the

court clerks in the Seventh Circuit and the Eastern District of

Wisconsin who received his filings. (Pl.’s Suppl. Resp.

Regarding Discovery, Dkt. # 73.)

Local Civil Rules 7(i) and 15.1 require motions to amend

pleadings to “be accompanied by an original of the proposed

pleading as amended.” The plaintiff failed to comply with this

requirement. His motion is not only defective procedurally, but

it also falls short on its merits. A plaintiff may amend his

complaint more than twenty-one days after any defendant files a

Rule 12(b) motion “only with the opposing party’s written consent

or the court’s leave. The court should freely give leave when - 10 -

justice so requires.” Fed. R. Civ. P. 15(a). The plaintiff has

moved for leave to amend his complaint nearly ten months after

one of the defendants filed a motion to dismiss,6 and the United

States opposes the motion for leave to amend. In this situation,

the decision to grant or deny leave to amend is committed to the

sound discretion of the district court. Foman v. Davis, 371 U.S.

178, 182 (1962); James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099

(D.C. Cir. 1996). While a litigant ordinarily ought to be

afforded the opportunity to proceed on the merits of his claim,

Mead v. City First Bank of DC, N.A., 256 F.R.D. 6, 7 (D.D.C.

2009), “a district court has discretion to deny a motion to amend

on grounds of futility where the proposed pleading would not

survive a motion to dismiss[.]” Nat’l Wrestling Coaches Ass’n v.

Dep’t of Educ., 366 F.3d 930, 945 (D.C. Cir. 2004).

An amended complaint which includes the allegations and

additional defendants to which the plaintiff’s motion refers

would not survive a motion to dismiss. The plaintiff has not

alleged that Lautenschlager or any of the clerks in the Seventh

Circuit or Eastern District of Wisconsin have sufficient contacts

with the District of Columbia –– nor are such contacts apparent

in the complaint or in his motion –– to provide a basis for

asserting personal jurisdiction over them in this district. See

Kurtz v. United States, Civil Action No. 10-1270 (RWR), 2011 WL

6 See supra n.2. - 11 -

1549216, at *2 (D.D.C. Apr. 26, 2011) (dismissing Wisconsin state

defendants and Seventh Circuit and Eastern District of Wisconsin

defendants for lack of personal jurisdiction). Amending the

complaint to add Lautenschlager or the clerks therefore would be

futile. See Poole v. Roll, Civil Action No. 07-2039 (RJL), 2008

WL 768728, at *1 n.2 (D.D.C. Mar. 20, 2008) (denying as futile

motion to amend in part because the plaintiffs’ allegations

failed to show that there would be personal jurisdiction over the

defendants the plaintiffs proposed to add to the complaint).

Additionally, the plaintiff’s allegations regarding the United

States Attorney General –– that the Attorney General is engaged

in a conspiracy to steal the plaintiff’s property –– are not

sufficiently plausible to survive a motion to dismiss for failure

to state a claim. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

(2009) (“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007))). Amending the

complaint to add the Attorney General as a defendant therefore

also would be futile. Thus, the plaintiff’s motion for leave to

amend will be denied.

III. UNNAMED DEFENDANTS

Rule 4(m) provides that if a plaintiff does not serve a

defendant within 120 days of filing the complaint, the court - 12 -

“must dismiss the action without prejudice against that defendant

or order service to be made within a specified time. But if the

plaintiff shows good cause for the failure, the court must extend

the time for service for an appropriate period.” Fed. R. Civ. P.

4(m). The plaintiff names as defendants in his complaint “John

Doe wrong doers” and “John Doe Insurance [Companies]” (Compl. at

2), but he has not filed proof of service upon any of these

unnamed defendants. On April 11, 2011, the plaintiff was ordered

to show cause why the complaint should not be dismissed as to

these defendants for want of prosecution. In the plaintiff’s

response, he requested discovery to identify the unnamed

defendants. (Pl.’s Answer to Order to Show Cause, Dkt. # 45.)

The plaintiff was ordered to supplement his response, identifying

what discovery he wanted to take and from whom, and why he

thought such discovery would disclose the identities of the

unnamed defendants. Although the plaintiff identifies in his

supplemental memorandum significant discovery that he would like

to take, much of the discovery he seeks is from defendants who

have already been dismissed from the case. The plaintiff is not

entitled to this discovery. See Guy v. Briones, C.A. No. C-07-

473, 2008 WL 3538684, at *4 (S.D. Tex. Aug. 8, 2008) (granting a

defendant’s motion for a protective order where the plaintiff

attempted to compel the defendant to answer questions on behalf

of dismissed defendants); Fred Lurie Assocs., Inc. v. Global - 13 -

Alliance Logistics, Inc., No. 05-22881CIV, 2006 WL 3626296, at *2

n.4 (S.D. Fla. Aug. 15, 2006) (noting that plaintiff’s motion to

conduct additional discovery relating to dismissed defendants was

moot because the court had not granted the plaintiff’s motion to

reconsider the order granting those defendants’ motions to

dismiss). The plaintiff also does not explain how any discovery

that he may be entitled to take would help him to identify the

unnamed defendants in his complaint. Because the plaintiff has

not demonstrated that discovery would allow him to identify the

unnamed defendants, he has not shown good cause for failing to

serve these defendants in the appropriate time allowed under Rule

4(m).

Nor are the allegations in the complaint themselves specific

enough to make it likely that discovery could disclose the

identities of the unnamed defendants and enable the plaintiff to

proceed against them. See Landwehr v. FDIC, Civil Action No. 09-

716 (RMU), 2010 WL 2572077, at *3 (D.D.C. June 28, 2010) (citing

Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th

Cir. 1995)). If a plaintiff’s failure to serve unnamed

defendants results instead “from the absence of any specific

allegations of wrongdoing by any such individuals[,]” “the proper

course is not for the [plaintiff] to maintain [his] placeholder

claims against these unknown individuals, but rather, to obtain

discovery from the identified defendants, and, if necessary, seek - 14 -

leave to amend [his] complaint to join additional defendants.”

Id. at *3-4. On this basis, the court in Landwehr dismissed the

plaintiff’s claims against various unnamed defendants, noting

“the complete absence of any specific allegations against [the]

unnamed defendants.” Id. at *3.

Here, the complaint’s allegations as to the “John Doe wrong

doers” are only that “other John Does” aided in “fabricating the

grounds to claim authority on paper” to demand that he turn over

his house to his mother (Compl. ¶ 42), and that “John Doe Sheriff

Deputies carr[ied] out wrongs[.]”7 (Compl. at 17.) The

complaint’s sole allegation as to the John Doe Insurance

Companies is that they “counsel[ed] felony unconstitutional

wrongs and thefts of real and personal property with state and

[county attorneys.]” (Compl at 21.) Just as in Landwehr, the

plaintiff’s complaint here lacks sufficiently specific

allegations of wrongdoing as to the unnamed defendants to allow

him to proceed against them. The unnamed defendants therefore

will be dismissed.

CONCLUSION

Because the United States has not waived its sovereign

immunity with respect to the plaintiff’s claims regarding the

7 As was true with most of the named defendants, the plaintiff has failed to carry his burden to demonstrate a factual basis for asserting personal jurisdiction over these unnamed defendants. - 15 -

federal judicial defendants, and the plaintiff lacks a private

right of action to assert claims against the United States for

violating criminal statutes, the United States’ motion to dismiss

will be granted. Since allowing the plaintiff to amend his

complaint would be futile, his motion for leave to amend will be

denied. Finally, because the plaintiff has not shown good cause

for failing to serve the unnamed defendants, the complaint will

be dismissed as to all unnamed defendants. A final Order

accompanies this Memorandum Opinion.

SIGNED this 26th day of July, 2011.

__________/s/_______________ RICHARD W. ROBERTS United States District Judge