Walker v. Three Angels Broadcasting Network Inc. et al
Filing
67
ORDER denying 30 Motion to Dismiss; finding as moot 44 Motion to Exclude.Signed by Chief Judge David R. Herndon on 9/17/2012. (mtm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ALEX WALKER,
Plaintiff,
v.
THREE ANGELS BROADCASTING
NETWORK, INC., and TOMMY
SHELTON, 1
Defendants.
No. 12-cv-114-DRH-SCW
MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Now before the Court is defendant Three Angels Broadcasting Network,
Inc.’s (3ABN) motion to dismiss for lack of subject matter jurisdiction (Doc. 30).
Specifically, in reliance on FEDERAL RULES
OF
CIVIL PROCEDURE 12(b)(1) and
12(b)(6), 3ABN argues plaintiff’s Count IV requires dismissal, as plaintiff does not
accuse defendant Tommy Shelton (Shelton) of performing any act within the
scope of 18 U.S.C. § 2423. Alternatively, 3ABN alleges Count IV is time barred,
pursuant to 18 U.S.C. § 2255(b). Thus, as Count IV is plaintiff’s sole claim with
an independent basis for federal subject matter jurisdiction, 3ABN argues this
entire cause of action requires dismissal. For the reasons stated below, the Court
Shelton is currently in prison in Virginia. Although Shelton has not provided the Court with
his current address, the Court’s independent search of the Virginia Department of Corrections’
website reveals that Shelton currently resides at the Fairfax County Adult Detention Center.
Thus, the Clerk is instructed to change the docket sheet to reflect Shelton’s current address as
the following:
Tommy Shelton
1431823
Fairfax County Adult Detention Center
10520 Judicial Drive
Fairfax, Virginia 22030
1
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cannot reach the merits of 3ABN’s motion; thus, it is DENIED. Thus, plaintiff’s
motion to exclude 3ABN’s declarations and incorporated memorandum of law is
rendered MOOT (Doc. 44).
I.
INTRODUCTION
Plaintiff filed the instant complaint in the United States District Court for the
Northern District of Illinois on June 20, 2011 (Doc. 1). Plaintiff bases jurisdiction
on 28 U.S.C. §§ 1331 and 1367, as well as 18 U.S.C. § 2255, which states that
certain victims of sexual abuse may file personal injury suits “in any appropriate
United States District Court.” See U.S.C. § 2255(a). The allegations of the
complaint state that Shelton began sexually abusing plaintiff in 1997, while
working for 3ABN in Virginia. In 2001, Shelton moved to Kentucky and
commuted to Illinois to work at 3ABN, where he allegedly resumed his abuse of
plaintiff, who was a minor at that time. Thus, plaintiff’s instant complaint alleges
four separate claims for relief. Pertaining to 3ABN, plaintiff alleges Count I, a
negligence claim. The three remaining Counts are brought solely against Shelton;
Count II, a claim for sexual assault and battery; Count III, alleging intentional
infliction of emotional distress; and Count IV, a claim for civil remedies under 18
U.S.C. § 2255, based on Shelton’s alleged violation of 18 U.S.C. § 2423.
II.
LAW AND APPLICATION
The allegations of Count IV form the crux of the instant dispute. 18 U.S.C. §
2255 provides:
(a) In general.--Any person who, while a minor, was a victim of a
violation of section 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A,
2260, 2421, 2422, or 2423 of this title and who suffers personal
injury as a result of such violation, regardless of whether the injury
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occurred while such person was a minor, may sue in any appropriate
United States District Court and shall recover the actual damages
such person sustains and the cost of the suit, including a reasonable
attorney's fee. Any person as described in the preceding sentence
shall be deemed to have sustained damages of no less than $150,000
in value.
(b) Statute of limitations.--Any action commenced under this
section shall be barred unless the complaint is filed within six years
after the right of action first accrues or in the case of a person under
a legal disability, not later than three years after the disability.
As the predicate offense upon which plaintiff bases his claim for civil remedies,
he cites Shelton’s alleged violation of 18 U.S.C. § 2423. Section 2423(b) states,
“[a] person who travels in interstate commerce or travels into the United States . .
. for the purpose of engaging in any illicit sexual conduct with another person
shall be fined under this title or imprisoned not more than 30 years, or both.”
As explained above, the subject matter jurisdiction of this cause of action is
based on 28 U.S.C. § 1331, federal question jurisdiction, and 28 U.S.C. § 1367(a),
supplemental jurisdiction, as plaintiff brings a cause of action pursuant to 18
U.S.C. § 2255. Thus, plaintiff’s Count IV arises under the “Constitution, laws, or
treaties of the United States.” See 28 U.S.C. § 1331.
Instantly, 3ABN argues its motion is properly characterized as one brought
pursuant to Rules 12(b)(1) and 12(b)(6). 3ABN argues that plaintiff’s Count IV
does not properly allege Shelton engaged in “illicit sexual conduct” or “sexual
acts” as defined under Sections 2423(f) and 2246(2). Further, 3ABN alleges
plaintiff does not properly allege Shelton crossed state lines, “for the purpose of
engaging in any illicit sexual conduct.” Alternatively, 3ABN argues Section 2255(b)
renders plaintiff’s Count IV time-barred, as the statute of limitations for filing
Count IV has expired. Thus, as plaintiff’s Count IV does not properly allege the
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necessary elements of a violation of Section 2423, and is time-barred pursuant to
Section 2255(b), 3ABN argues this entire cause of action requires dismissal for
lack of subject matter jurisdiction.
Preliminarily, the Court must note that while 3ABN attempts to characterize its
instant motion as one brought pursuant to Rule 12(b)(1), it is in fact a Rule
12(b)(6) motion. It is well-settled that a claim alleging a cause of action arising
under the Constitution, laws, or treaties of the United States is, “enough to
support subject matter jurisdiction unless the claim is so plainly insubstantial
that it does not engage the court’s power.” Jogi v. Voges, 480 F.3d 822, 825 (7th
Cir. 2007); Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89
(1998) (cautioning against “drive-by jurisdictional rulings,” as “[j]urisdiction . . . is
not defeated . . . by the possibility that the averments might fail to state a cause of
action on which petitioners could actually recover,”
as the district court has
jurisdiction if “the right of the petitioners to recover under their complaint will be
sustained if the Constitution and laws of the United States are given one
construction and will be defeated if they are given another”) (ellipses in original)
(quoting Bell v. Hood, 327 U.S. 678 (1946)).
Thus, as the Seventh Circuit has explained,
[W]here a challenge to the court's jurisdiction is also a challenge to
the existence of a federal cause of action . . . jurisdiction cannot be
defeated by the possibility that plaintiff may not have stated a cause
of action. Instead, the case should be dismissed for lack of
jurisdiction only if the claim “clearly appears to be immaterial and
made solely for the purpose of obtaining jurisdiction or where such a
claim is wholly insubstantial and frivolous.”
Malak v. Associated Physicians, Inc., 784 F.2d 277, 289 (7th Cir. 1986) (citation
omitted) (quoting Bell, 327 U.S. at 682–683). Additionally, “if plaintiff meets this
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Bell test, the district court should take jurisdiction and handle defendants' motion
as a direct attack on the merits of plaintiff's case.” Id. at 280; see Miller v.
Herman, 600 F.3d 726, 732 (7th Cir. 2010).
Instantly, Section 1331 supplies subject matter jurisdiction, as a claim for
remedies under 18 U.S.C. § 2255, presents a federal question. 3ABN’s motion
attacks the merits of plaintiff’s Count IV, as it argues plaintiff has not sufficiently
alleged that Shelton violated 18 U.S.C. § 2423 and did not timely file his claim.
However, as plaintiff’s claim is not “wholly insubstantial and frivolous,” the Court
does in fact have jurisdiction to hear plaintiff’s claim. See Bell, 327 U.S. at 682–
683; see also Leavell v. Kieffer, 189 F.3d 492, 494 (7th Cir. 1999) (“The statute
of limitations is an affirmative defense . . . Neither does it affect the district court’s
jurisdiction.”). Whether the Court should exercise supplemental jurisdiction over
plaintiff’s state law claims is not an issue properly before the Court. Thus, the
Court construes 3ABN’s motion as one brought pursuant to Rule 12(b)(6).
Although the Court construes the instant motion as one brought pursuant to
Rule 12(b)(6), the Court cannot reach the merits of 3ABN’s arguments. Although
plaintiff does not raise the issue, it is clear from the complaint that 3ABN is solely
a named defendant as to Count I, plaintiff’s state law negligence claim. 3ABN is
not a named defendant as to Counts II through IV. As 3ABN states, Count IV is
directed, “only at defendant Tommy Shelton” (Doc. 30-1, p. 1). Accordingly, 3ABN
does not have standing to challenge the legal sufficiency of Count IV’s allegations
or its timeliness. See Ashcroft v. Dep’t of Corrections, 2007 WL 1989265, *8
(W.D.N.Y. 2007) (“Thus, DOCS (and other moving defendants) lack standing to
move to dismiss claims against the non-appearing defendants Madison, Zon, and
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Ashby and their motions as to these claims is denied.”); Dover Ltd. v. A.B.
Watley, Inc., 2006 WL 2987054, *8 (S.D.N.Y. 2006) (defendant named solely in
Count I does not have standing to dismiss six additional counts for failure to state
a claim); Norfolk Fed’n of Bus. Dist. v. Dep’t of Hous. & Urban Dev., 932 F.
Supp. 730, 741-42 (E.D. Va. 1996); Standard Chlorine of Delaware, Inc. v.
Sinibaldi, 1994 WL 796603, *7 n. 5 (D. Del. 1994) (“Mantas Inc. is not named as
a defendant in Count VI and accordingly has no standing to move for its dismissal
or for summary judgment on the count.”). 2
III.
CONCLUSION
For the above-stated reasons, the Court cannot reach the merits of 3ABN’s
arguments. Accordingly, 3ABN’s motion to dismiss for lack of subject matter
jurisdiction is DENIED (Doc. 30). Thus, plaintiff’s motion to exclude 3ABN’s
declarations and incorporated memorandum of law is rendered MOOT (Doc. 44).
IT IS SO ORDERED.
Signed this 17th day of September, 2012.
Digitally signed by
David R. Herndon
Date: 2012.09.17
14:31:30 -05'00'
Chief Judge
United States District Court
Although clearly not binding on this Court, the Court adopts the reasoning of these cases as
persuasive.
2
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