Scheppf v. U.S. Attorney General et al

Filing 37

RULING AND ORDER granting 34 MOTION to Dismiss Amended Complaint by U.S. Attorney General. Any claims against theDepartment of Justice, the Department of State, or any other federal entity named as a defendantor mentioned in the Amended Complaint are also dismissed without prejudice for lack of jurisdiction. Signed by Judge John W. deGravelles on 2/9/2018. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
PAUL DAN SCHEPPF, ET AL.

CIVIL ACTION

VERSUS

NO: 16-575-JWD-EWD

U.S. ATTORNEY GENERAL, ET AL.
RULING AND ORDER ON U.S. ATTORNEY GENERAL’S
MOTION TO DISMISS AMENDED COMPLAINT
Before the Court is a Motion to Dismiss Amended Complaint filed by the U.S. Attorney
General (“USAG”). (Doc. 34.) The motion is not opposed. For the reasons which follow, the
Court grants the motion and Plaintiffs’ claims against the USAG, as well as any other federal
entities named as defendants or mentioned in the Amended Complaint, are dismissed without
prejudice.
BACKGROUND
On August 31, 2016, Paul Dan Scheppf (“Scheppf” or “Plaintiff”) filed his initial pleading
in this matter pro se, on his own behalf and on behalf of the minor Kimberly Juliana Scheppf
(“KJS”) (collectively, “Plaintiffs”). (Doc. 1.) The pleading was captioned “Motion to Intervene.”
(Id.) The same day, he filed a Motion to Proceed In Forma Pauperis, (Doc. 2), which was granted
on September 6, 2016. (Doc. 3.) On October 19, 2016, Plaintiffs filed an “Amended Complaint
Motion to Intervene.” (Doc. 13.)
On October 25, 2016, the Court held a status conference at which time the Court heard
argument regarding a request by Plaintiffs for expedited relief, which the Court interpreted to be a
motion for a temporary restraining order. (Doc. 16.) The motion was denied without prejudice.
(Id.) On November 15, 2016, defendant the Tennessee Coalition to End Domestic Violence

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(“Tennessee Coalition”) filed a Motion to Dismiss Pursuant to Federal Rules of Civil Procedure
12(b)(1), 12(b)(2) and 12(b)(6), (Doc. 18), which was opposed, (Doc. 20). However, on June 6,
2017, Plaintiffs moved to strike the Tennessee Coalition “as a party to this litigation” without
prejudice. (Doc. 32.) On June 19, 2017, the Court granted Plaintiffs’ motion and denied as moot
the Tennessee Coalition’s motion. (Doc. 35.)
On June 13, 2017, the USAG filed the instant Motion to Dismiss. (Doc. 34.) As mentioned
previously, Plaintiffs have not filed an opposition.
PLAINTIFFS’ AMENDED COMPLAINT
Named as defendants in the caption of the Amended Complaint are the USAG, the United
States Department of Justice (“Department of Justice”), the Tennessee Coalition, and Diana Rosa
Baku (“Baku”). (Doc. 13 at 1; see also Doc. 1 at 1; Doc. 1-1 at 3.) KJS is alleged to be the natural
and legal child of Scheppf and Baku. (Doc. 13 at 2.)
Plaintiffs allege that Baku and the Tennessee Coalition engaged in “a criminal fraud in
order to fraudulently obtain a ‘T’ or ‘U’ type U.S. immigration visa” so as to “allow the [Tennessee
Coalition] to obtain state and federal grants . . . ” (Id.) Scheppf seeks, among other things, “an
injunction to prevent [Baku] from fleeing and leaving the jurisdiction of [the] United States with
KJS to escape justice and to protect KJS’s U.S. citizenship right as a matter of United States law
and to end the immigration fraud.” (Id.) In addition, Plaintiffs request an order that KJS not be
“removed from the United States by [Baku] or any other person . . . prior to or during any future
immigration proceedings;” the suspension of unidentified immigration proceedings involving
KJS; a recommendation from this Court that the Department of Justice and the United States
Department of State (“Department of State”) investigate the Tennessee Coalition and Baku; the
intervention of or participation as amicus curiae by the Department of Justice and the Department

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of State on behalf of KJS’s right to U.S. citizenship; and a monetary award from the Tennessee
Coalition and Baku. (Id. at 3-4.)
Significantly, Plaintiffs do not allege that the USAG or any other federal entity did or failed
to do anything that caused or contributed to Plaintiffs’ alleged complaints. Rather, it is alleged
merely that federal entities are unaware of the complained-of conduct of the Tennessee Coalition
and Baku; Plaintiffs ask that the Court make various federal entities aware of this conduct and that
the entities intervene on behalf of KJS’s right to United States citizenship. (Id. at 2-3.)
THE USAG’S MOTION TO DISMISS
The USAG limits its motion to Plaintiff’s Amended Complaint, noting that “[w]here, as
here, an amended complaint does not specifically refer to or adopt earlier pleadings, the amended
complaint ordinarily supersedes the original complaint and renders it ‘of no legal effect.’” (Doc.
34-1 at 1-2 (citing, inter alia, Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir. 1985);
Clark v. Tarrant County, Texas, 798 F.2d 736, 740-41 (5th Cir. 1986)). The Court agrees and limits
its consideration to Plaintiffs’ Amended Complaint.
However, the USAG goes on to argue that “since the [USAG] is not named as a defendant
to this action in the superseding Amended Complaint, the [USAG] is entitled to an order
dismissing this civil action as to him to the extent he ever was a party to this action.” (Id. at 2).
Here, the Court disagrees. It is clear from the caption (listing “U.S. Attorney General” as the lead
defendant) that the USAG is an intended defendant in both the original as well as the Amended
Complaint. Scheppf is a pro se litigant and, as such, the Court will afford him “some measure of
latitude in [his] complaint and in the errors [he] might make.” See Newsome v. E.E.O.C., 301 F.3d
227, 233 (5th Cir. 2002); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se pleadings
are held to “less stringent standards” than formal pleadings drafted by lawyers).

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The USAG then lists three additional reasons its Motion should be granted: “(1) Plaintiffs
failed to perfect service so that dismissal is warranted under Fed. R. Civ. P. 12(b)(4)-(5) and 4(m);
(2) Plaintiffs lack a valid waiver of sovereign immunity or an Article III case or controversy to sue
the [USAG] warranting dismissal under Fed. R. Civ. P. 12(b)(1); and (3) Plaintiffs have failed to
state a claim warranting dismissal under Fed. R. Civ. P. 12(b)(6).” (Doc. 34-1 at 2.) As set forth
below, the Amended Complaint alleges no Article III case or controversy as to the USAG. This
Court therefore lacks subject matter jurisdiction as to the USAG and the case must be dismissed
as to this defendant. The Court need not consider the other alleged grounds for dismissal. The
same reasoning applies as to any federal entity named as a defendant or discussed in the Amended
Complaint. The Court therefore dismisses any claims against these entities.
NO SUBJECT MATTER JURISDICTION –
LACK OF ARTICLE III CASE OR CONTROVERSY
“It goes without saying that those who seek to invoke the jurisdiction of the federal courts
must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an
actual case or controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 901 (1983). See also Raines
v. Byrd, 521 U.S. 811, 818 (1997); Whitmore v. Arkansas, 495 U.S. 149, 155 (1990); Sample v.
Morrison, 406 F.3d 310, 312 (5th Cir. 2005). A true case or controversy exists when “‘conflicting
contentions of the parties . . . present a real, substantial controversy between parties having adverse
legal interests, a dispute definite and concrete, not hypothetical or abstract.’” Babbitt v. United
Farm Workers Nat’l Union, 442 U.S. 289, 297-98 (1979) (citing Ry. Mail Ass’n v. Corsi, 326 U.S.
88, 93 (1945)).
In this case, Plaintiffs do not contend that the USAG or any other federal entity breached a
duty to Plaintiffs or otherwise did or failed to do anything which caused or contributed to the
situation about which Plaintiffs complain. The only allegation regarding the USAG or other federal

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entities is that they are unaware of the complained-of conduct by the Tennessee Coalition and
Baku. The only relief sought with respect the USAG or other federal entities is that they be made
aware of the complained-of conduct and urged to investigate and intervene on behalf of KJS’s
“right to U.S. citizenship”. (Doc. 13 at 3.) Between Plaintiffs and the USAG (as well as any other
federal entity) there is no “real, substantial controversy” or “dispute, definite and concrete,” and
there are no “adverse legal interests.” There is therefore no “case or controversy” within the
meaning of Article III, and accordingly there is no subject matter jurisdiction.
For the foregoing reasons, the USAG’s Motion to Dismiss (Doc. 34) is granted, and
Plaintiffs’ claims against the USAG are dismissed without prejudice for lack of jurisdiction.
Although the Motion is made by the USAG and not any other federal entities, the reasoning
underlying the Court’s conclusion is identical with respect to any other potential federal defendant
named or discussed in the Amended Complaint. The Court is empowered to dismiss for lack of
subject matter jurisdiction on its own motion. See, e.g., Chamberlain v. Barnhart, 382 F. Supp.
2d 867, 872 (E.D. Tex. 2005) (“[A] federal trial court not only may, but must raise lack of subjectmatter jurisdiction on its own motion when the issue appears.” (citing Insurance Corp. of Ireland
Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982))). Any claims against the
Department of Justice, the Department of State, or any other federal entity named as a defendant
or mentioned in the Amended Complaint are also dismissed without prejudice.
Signed in Baton Rouge, Louisiana, on February 9, 2018.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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