McKenna v. St. Louis County Police Department et al

Filing 42

MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim Upon Which Relief Can be Granted by Defendant Mark Kappelhoff. (Llewellyn, Nicholas)

McKenna v. St. Louis County Police Department et al

Doc. 42

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION GREGORY McKENNA, ) ) Plaintiff, ) ) vs. ) ) ST. LOUIS COUNTY POLICE DEPT. et al,) ) Defendants. )

Case No. 4:09CV1113 CDP

DEFENDANT MARK A. KAPPELHOFF'S MOTION TO DISMISS COMES NOW Defendant Mark A. Kappelhoff, in both his individual and official capacity, by and through his attorneys, Michael W. Reap, Acting United States Attorney for the Eastern District of Missouri, and Nicholas P. Llewellyn, Assistant United States Attorney for said District, pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief can be granted, and moves this Honorable Court for an Order dismissing Plaintiff's Amended Complaint, with prejudice. Moreover, the United States should be substituted as the proper defendant in place of Defendant Kappelhoff, acting in his official capacity, and Plaintiff's Amended Complaint for alleged common law torts should be dismissed, with prejudice, for failure to exhaust administrative remedies. An accompanying Memorandum of Law in support of this Motion is attached. Respectfully submitted, MICHAEL W. REAP Acting United States Attorney S/ Nicholas P. Llewellyn NICHOLAS P. LLEWELLYN #52836 Assistant United States Attorney Chief, Civil Division Thomas F. Eagleton Courthouse 111 South 10th Street, Rm 20.333 St. Louis, Missouri 63102 [phone] [phone] Fax
Dockets.Justia.com

CERTIFICATE OF SERVICE I hereby certify that on December 9, 2009, the foregoing Motion to Dismiss was filed electronically with the Clerk of the Court to be served by operation of the Court's electronic filing system and sent by certified U.S. Mail to: Gregory McKenna Plaintiff Pro Se 9937 Young Drive, H Beverly Hills, CA 90212 s/ Nicholas P. Llewellyn NICHOLAS P. LLEWELLYN Assistant United States Attorney