Koehler v. Kirkorsky

Filing 18

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that as plaintiff has failed to respond to the motion to dismiss of defendant Mark Kirkorsky (ECF No. 5), and the time for doing so has expired, plaintiff must show cause why the motion to dismiss should not be granted by November 28, 2016. Failure to respond will result in dismissal of this case with prejudice. Response to Court due by 11/28/2016. Signed by District Judge Catherine D. Perry on November 22, 2016. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
COLLEEN KOEHLER,
Plaintiff,
vs.
MARK KIRKORSKY,
Defendant.

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Case No. 4:16 CV 1432 CDP

MEMORANDUM AND ORDER
Plaintiff Colleen Koehler filed this suit under the Fair Debt Collection
Practices Act, 15 U.S.C. § 1592 et seq., on September 8, 2016, seeking statutory
damages against defendant attorney Mark Kirkorsky. On October 4, 2016,
Kirkorsky filed a motion to dismiss for lack of jurisdiction and failure to state a
claim. Koehler requested, and was granted, additional time to respond to the
motion to dismiss, but no response has been filed. However, Koehler did file a
‘Notice of Voluntary Dismissal’ on October 24, 2016, seeking voluntary dismissal
without prejudice of this suit.
In an order issued October 31, 2016, I noted that Kirkorsky’s motion to
dismiss alternatively seeks summary judgment relief so under Federal Rule of Civil
Procedure 41(a), dismissal without prejudice requires a stipulation of the parties or
Court Order. Because Koehler’s dismissal was not signed by Kirkorsky, I

construed it as a motion seeking voluntary dismissal without prejudice, and I
granted Kirkorsky time to respond. Kirkorsky requests the court strike Koehler’s
request for dismissal without prejudice, grant his motion to dismiss, and dismiss
this case with prejudice.
Federal Rule of Civil Procedure 12(b)(1) provides that a party may move to
dismiss an action based on lack of subject matter jurisdiction. Dismissal under
Rule 12(b)(1) is appropriate when subject matter jurisdiction is successfully
challenged on the face of the complaint or on the facts. Titus v. Sullivan, 4 F.3d
590, 593 (8th Cir. 1993). The burden of proving that subject matter jurisdiction
exists rests with the party asserting it. Great Rivers Habitat All. v. Fed. Emergency
Mgmt. Agency, 615 F.3d 985, 988 (8th Cir. 2010); Altimore v. Mount Mercy Coll.,
420 F.3d 763, 768 (8th Cir. 2005). A case must be dismissed if, at any time, it
appears that the district court lacks subject matter jurisdiction. Fed. R. Civ. P.
12(h)(3).
Kirkorsky argues that this Court lacks subject-matter jurisdiction because the
debt referenced in this case is commercial debt and not within the coverage of the
Fair Debt Collection Practices Act, which only involves consumer debt. See
Heintz v. Jenkins, 514 U.S. 291, 293 (1995) (The Fair Debt Collections Practice
Act “limits ‘debt’ to consumer debt, i.e., debts ‘arising out of … transaction[s]’
that ‘are primarily for personal, family, or household purposes.’ ” (citing 15 U.S.C.
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§ 1592a(5))). Koehler’s complaint states jurisdiction is based on the Fair Debt
Collection Practices Act and that the alleged debt at issue owed by Koehler “arises,
at least in part, out of consumer, family, and household transactions.” (ECF No. 1)
I must decide whether this court has jurisdiction over this case before ruling
any other pending motions. Koehler has not responded to Kirkorsky’s motion for
dismissal based on lack of subject matter jurisdiction, and the burden for proving
jurisdiction rests with her.
Accordingly,
IT IS HEREBY ORDERED that as plaintiff has failed to respond to the
motion to dismiss of defendant Mark Kirkorsky (ECF No. 5), and the time for
doing so has expired, plaintiff must show cause why the motion to dismiss should
not be granted by November 28, 2016. Failure to respond will result in dismissal
of this case with prejudice.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 22nd day of November, 2016.

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