Passmore v. Turner et al

Filing 19

ORDER Granting Defendants' Attorney General's and United States Attorney's 14 MOTION to Dismiss and Dismissing Claims Against Defendant Angela Marie Turner for Lack of Subject-Matter Jurisdiction. Signed by District Judge Matthew F. Leitman. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANTHONY DONELL PASSMORE,
Plaintiff,

Case No. 13-cv-11865
Hon. Matthew F. Leitman

v.
ANGELA MARIE TURNER, et al.,
Defendants.
_________________________________/
ORDER GRANTING DEFENDANTS’ ATTORNEY GENERAL’S AND
UNITED STATES ATTORNEY’S MOTION TO DISMISS (ECF #14) AND
DISMISSING CLAIMS AGAINST DEFENDANT ANGELA MARIE
TURNER FOR LACK OF SUBJECT-MATTER JURISDICTION
On April 25, 2013, Plaintiff Anthony Donell Passmore (“Passmore”), acting
pro se, filed this action against (1) Angela Marie Turner (“Turner”), his ex-wife;
(2) the State of Michigan; (3) two Michigan judicial officers, Muriel Hughes
(“Hughes”) and Diana Biggars (“Biggars”); and (4) the Office of the Attorney
General of the United States and the United States Attorney (collectively, the
“Federal Defendants”). The allegations in Passmore’s Complaint appear to stem
from a series of state-court child support and custody proceedings resulting in
decisions that Passmore feels were adverse to him.

(See Compl., ECF #1.)

Passmore purports to bring claims against all Defendants for, inter alia,
defamation, tortious interference with familial relations, interference with

visitation, alienation of affections, tortious interference with advantageous
relationships, intentional and negligent infliction of emotional distress, fraud, the
“tort of outrage,” and malicious prosecution. (Compl. at ¶¶48-81.)
This Court previously dismissed Passmore’s claims with respect to the State
of Michigan, Hughes, and Biggars. (See ECF #13.) Accordingly, Passmore’s
Complaint remains pending against only Turner and the Federal Defendants.
Currently before the Court is the Federal Defendants’ Motion to Dismiss. (See the
“Motion, “ECF #14.) For the reasons stated below, the Court GRANTS the
Motion.

In addition, for the reasons stated below, the Court DISMISSES

Passmore’s claims against Turner for lack of subject-matter jurisdiction.
1. The Federal Defendants’ Motion to Dismiss
The Federal Defendants filed and served their Motion on August 28, 2014.
In the Motion, the Federal Defendants argue that they should be dismissed from
this action pursuant to Fed. R. Civ. Proc. 12(b)(1) because the Complaint “does not
… state a basis upon which this Court has subject matter jurisdiction.” (Id. at 1,
Pg. ID 145.)
Pursuant to an Order of the Court, Passmore’s response to the Motion was
due by not later than October 24, 2014. (See ECF #16.) However, Passmore did
not respond by the deadline. Accordingly, on October 29, 2014, the Court ordered
Passmore to show cause in writing by November 17, 2014, why the Motion should

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not be granted.

(See the “Order to Show Cause,” ECF #18.)

The Court

specifically cautioned Passmore that his failure to respond to the Order to Show
Cause “may result in the dismissal of [his] Complaint against the Federal
Defendants.” (Id. at 2, Pg. ID 153.)
The due date for any response to the Order to Show Cause has now passed.
To date, Passmore has not (1) filed a response to the Federal Defendants’ Motion,
(2) filed a response to the Court’s Order to Show Cause, (3) filed a motion seeking
to extend the period for responding to either the Motion or the Order to Show
Cause, or (4) contacted the Court even informally to seek an extension of time.
The Court deems this matter appropriate for decision without oral argument. See
Fed. R. Civ. P. 78(b); E.D. Mich. L.R. 7.1(f)(2).
The Court has reviewed the Federal Defendants’ Motion and finds it
persuasive.

As fully explained in the Federal Defendants’ supporting brief,

Passmore has failed to establish that the United States waived sovereign immunity
in order to allow the Federal Defendants to be sued in this action. (See ECF #14 at
1-2, Pg. ID 145-45.) This Court therefore lacks subject-matter jurisdiction over
Passmore’s claims against the Federal Defendants.

See Muniz-Muniz v. U.S.

Border Patrol, 741 F.3d 668, 671 (6th Cir. 2013) (“Without a waiver of sovereign
immunity, a court is without subject matter jurisdiction over claims against federal

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agencies or officials in their official capacities”). Accordingly, the Court will grant
the Federal Defendants’ Motion.
2. Defendant Turner
In the Order to Show Cause, the Court noted that Passmore’s Complaint
“does not appear to state a basis for this Court’s jurisdiction over [Passmore’s]
claims against Turner.” (Order to Show Cause at 2, Pg. ID 153.) Accordingly the
Court ordered Passmore to show cause in writing by November 17, 2014, why his
claims against Turner should not be dismissed for lack of subject-matter
jurisdiction. (See id.) The Court specifically cautioned Passmore that his failure to
respond could result in the dismissal of his claims against Turner. (See id.) As
noted above, to date, Passmore has neither responded to the Order to Show Cause
nor sought an extension of time.
If a court determines at any time that it lacks subject-matter jurisdiction over
an action, “the court must dismiss the action.” Fed. R. Civ. Proc. 12(h)(3). In this
case, Passmore’s Complaint does not establish this Court’s jurisdiction over his
claims against Turner. Indeed, the Court does not appear to have jurisdiction based
on diversity of the parties, as Passmore alleges that both he and Turner are
residents of Michigan. (See Compl. at 2, Pg. ID 2.) Furthermore, the Complaint
does not appear to state a claim against Turner that arises under federal law, nor
does it indicate any other basis for this Court’s jurisdiction.

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Under these

circumstances, the Court is unable to conclude that it has subject-matter
jurisdiction over Passmore’s claims against Turner, and it therefore dismisses these
claims.
Even if the Court did have subject-matter jurisdiction in this action,
Passmore’s claims against Turner would be subject to dismissal for failure to
prosecute and/or failure to comply with the Order to Show Cause. A federal court
may sua sponte dismiss a claim for failure to prosecute or comply with a court
order. See Link v. Wabash R.R. Co., 370 U.S. 626, 630-32 (1962). In this case,
Turner filed an answer to Passmore’s Complaint on June 11, 2013. (See ECF #10.)
In the nearly year-and-a-half since Turner filed her answer, Passmore has not in
any way pursued his claims against Turner. Moreover, when specifically notified
by the Court to show cause why his claims against Turner should not be dismissed,
Passmore failed to respond. Passmore’s failure to pursue his claims against Turner
and his noncompliance with the Order to Show Cause further justify the dismissal
of his claims against Turner. See, e.g., White v. Bouchard, No. 05-cv-73718, 2008
WL 2216281, at *5 (E.D. Mich. May 27, 2008) (citing Washington v. Walker, 734
F.2d 1237, 1240 (7th Cir. 1984)) (a sua sponte dismissal may be justified by a
plaintiff’s “apparent abandonment of [a] case”).

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CONCLUSION
For all of the reasons stated in this Order, IT IS HEREBY ORDERED that
the Federal Defendants’ Motion (ECF #14) is GRANTED. IT IS FURTHER
ORDERED that all of Passmore’s claims against Turner are DISMISSED
WITHOUT PREJUDICE.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: December 1, 2014
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on December 1, 2014, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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