Mendy v. AAA Insurance et al

Filing 24

MEMORANDUM AND ORDER DISMISSING REMAINDER OF THE CASE WITHOUT PREJUDICE- IT IS THEREFORE ORDERED BY THE COURT THAT the court declines to exercise supplemental jurisdiction over plaintiff's remaining state law claims and thus dismisses the remain der of this case without prejudice. The court also dismisses the remainder of this case without prejudice under Rule 41(b) for plaintiff's failure to follow court orders. Signed by District Judge Daniel D. Crabtree on 11/17/2017.Mailed to pro se party ALPHONSE J. MENDY, by certified mail ; Certified Tracking Number: 70150920000170458645(ydm).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ALPHONSE J. MENDY,
Plaintiff,
v.

Case No. 17-2322-DDC-GLR

AAA INSURANCE, et al.,
Defendants.

MEMORANDUM AND ORDER DISMISSING REMAINDER OF THE CASE
WITHOUT PREJUDICE
The court twice has ordered plaintiff to make allegations capable of supporting his
assertion that the court has diversity jurisdiction over this case. See Docs. 14-1 & 20. The court
also has warned plaintiff that his failure to assert facts capable of supporting diversity
jurisdiction will result in the court’s dismissal of the remainder of his case without prejudice.
Doc. 14-1 at 2; Doc. 20 at 4. In his two responses to the court’s show cause orders, plaintiff
never identifies the citizenship of one of the defendants he has named in this lawsuit—ABC
Insurance Company.1 The court repeatedly has explained to plaintiff that he shoulders the
burden to establish diversity jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994) (explaining that “the burden of establishing” federal jurisdiction “rests
upon the party asserting jurisdiction”). And, the court repeatedly has asked him to provide
information about defendant ABC Insurance Company’s citizenship so that the court can

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Plaintiff names ABC Insurance Company in the caption of his Complaint. He also identifies
ABC Insurance Company as “a Kansas or foreign insurance company licensed to do business and doing
business in Kansas . . . .” Doc. 1 (Compl. ¶8(B)). And, his Complaint seeks judgment against ABC
Insurance Company. Id. at 21. Also, the Complaint repeatedly refers to defendants—in the plural form.

determine whether diversity jurisdiction exists here. Plaintiff has failed to discharge his burden
to establish diversity jurisdiction.
In its October 5, 2017 Memorandum and Order, the court dismissed plaintiff’s asserted
federal claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure because they failed to
state a claim for relief as a matter of law. Doc. 13. And, the court declined to exercise
supplemental jurisdiction under 28 U.S.C. § 1367 over plaintiff’s remaining state law claims. Id.
at 20. Because plaintiff repeatedly has failed to establish that the court has diversity jurisdiction
over his remaining state law claims, the court dismisses them without prejudice.
The court also dismisses the remainder of this case without prejudice under Federal Rule
of Civil Procedure 41(b) for plaintiff’s failure to comply with court orders. See Young v. United
States, 316 F. App’x 764, 771 (10th Cir. 2009) (explaining that Rule 41(b) “authorizes . . .
district courts to dismiss actions sua sponte” for a party’s failure to follow court orders and a
district court need not “follow any particular procedures when dismissing an action without
prejudice under Rule 41(b).”).
IT IS THEREFORE ORDERED BY THE COURT THAT the court declines to
exercise supplemental jurisdiction over plaintiff’s remaining state law claims and thus dismisses
the remainder of this case without prejudice. The court also dismisses the remainder of this case
without prejudice under Rule 41(b) for plaintiff’s failure to follow court orders.
IT IS SO ORDERED.
Dated this 17th day of November, 2017, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge 

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