Huot v. Montana State Department of Child and Family Services et al
MEMORANDUM OPINION AND ORDER OF DISMISSAL by District Judge Judith C. Herrera. (baw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. 17cv730 JCH/KBM
MONTANA STATE DEPARTMENT OF
CHILD AND FAMILY SERVICES, et al.,
MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER comes before the Court on pro se Plaintiff’s Complaint, Doc. 1, filed
July 12, 2017. For the reasons stated below, will DISMISS this case without prejudice and
DENY Plaintiff’s pending motions as moot.
Plaintiff asserts claims against the Montana Department of Child and Family Protective
Services, the Montana Supreme Court, a Montana District Court and others regarding the
termination of Plaintiff’s parental rights. See Complaint at 5-6. Plaintiff seeks reinstatement of
her parental rights, monetary damages, letters of apology and other relief. See Complaint at 8-11.
As the party seeking to invoke the jurisdiction of this Court, Plaintiff bears the burden of
alleging facts that support jurisdiction. See Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir.
2013) (“Since federal courts are courts of limited jurisdiction, we presume no jurisdiction exists
absent an adequate showing by the party invoking federal jurisdiction”). Plaintiff’s Complaint
does not contain “a short and plain statement of the grounds for the court’s jurisdiction” as
required by Rule 8(a)(1) of the Federal Rules of Civil Procedure. The only statements regarding
the court’s jurisdiction are “Federal Question,” “Basis of Jurisdiction - Federal Question,” and
“Nature of Suit – Civil Rights, #440 Other Civil Rights.” Complaint at 4; Cover Sheet to
Complaint at 1, Doc. 1-1.
The Court does not have jurisdiction over this matter. See Evitt v. Durland, 243 F.3d 388
*2 (10th Cir. 2000) (“even if the parties do not raise the question themselves, it is our duty to
address the apparent lack of jurisdiction sua sponte”) (quoting Tuck v. United Servs. Auto. Ass'n,
859 F.2d 842, 843 (10th Cir.1988). There are no allegations that this action arises under the
Constitution, laws, or treaties of the United States. Consequently, there is no properly alleged
federal question jurisdiction. See 28 U.S.C. § 1331 (“The district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United
Nor is there any properly alleged diversity jurisdiction because Plaintiff and all
Defendants reside in Montana. See 28 U.S.C. § 1332 (“The district courts shall have original
jurisdiction of all civil actions where the matter in controversy . . . is between . . . citizens of
different States”); Symes v. Harris, 472 F.3d 754, 758 (10th Cir.2006) (to invoke diversity
jurisdiction, “a party must show that complete diversity of citizenship exists between the adverse
parties”); Dutcher v. Matheson, 733 F.3d 980, 987 (10th Cir. 2013) (“Complete diversity is lacking
when any of the plaintiffs has the same residency as even a single defendant”).
The Court will dismiss the Complaint without prejudice for lack of jurisdiction. See Fed.
R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action”); Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th
Cir.2006) (“[D]ismissals for lack of jurisdiction should be without prejudice because the court,
having determined that it lacks jurisdiction over the action, is incapable of reaching a disposition
on the merits of the underlying claims.”). Because the Court lacks jurisdiction over this case and
is dismissing this case, the Court will deny as moot Plaintiff’s Motion to Proceed In Forma
Pauperis, her Motion for Appointed Counsel, and her Motion to Set Aside Adoption & Reinstate
Full Parental Rights.
IT IS ORDERED that:
(i) this case is DISMISSED without prejudice;
(ii) Plaintiff’s Motion to Proceed In Forma Pauperis, Doc. 2, filed July 12, 2017, is
DENIED as moot;
(iii) Plaintiff’s Motion for Appointed Counsel, Doc. 4, filed July 12, 2017, is DENIED as
(iv) Plaintiff’s Motion to Set Aside Adoption & Reinstate Full Parental Rights, Doc. 6,
filed July 12, 2017, is DENIED as moot;
UNITED STATES DISTRICT JUDGE
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