Anthony v Bonnewitz

Filing 25

OPINION AND ORDER by Judge John E Dowdell granting Defendant John Bonnewitz's Motion to Dismiss (Doc. 12). ; dismissing/terminating case (terminates case) ; granting 12 Motion to Dismiss (Re: 1 Complaint, ) (SAS, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
PHILLIP D. ANTHONY,
Plaintiff,
v.
JOHN BONNEWITZ and BONNEWITZ
FAMILY LP,
Defendants.

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Case No. 13-CV-622-JED-PJC

OPINION AND ORDER
Before the Court is defendant John Bonnewitz’s Motion to Dismiss (the “Motion”) (Doc.
12). Defendant’s Motion argues that plaintiff’s claims should be dismissed under Fed. R. Civ. P.
12(h)(3) because the Court lacks subject matter jurisdiction.
I.

Background
Plaintiff filed this case on September 19, 2013 alleging that defendants engaged in

“deceitfully [sic] and fraud behavior” by overcharging him for home insurance. (Doc. 1 at 1-2).
Although unclear, it appears that plaintiff alleges that he was overcharged in the amount of
$831.91. (Id. at 2). On August 24, 2016, the Court issued an Order to Show Cause based on
plaintiff’s failure to serve any defendant. (Doc. 6). Plaintiff timely complied. (Docs. 8, 9, 10).
Defendant Bonnewitz filed this Motion on November 7, 2016. On November 16, 2016,
the Court granted plaintiff’s request for an extension of time to respond to the Motion and allowed
plaintiff until December 28, 2016 to submit his Response.1 (Doc. 21). Despite the ample time
provided to plaintiff, he did not file a Response. It also appears that defendants have encountered

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The Minute Order also provided: “No further extensions of time will be contemplated.” (Doc.
21).

significant difficulty in communicating with plaintiff, who did not contribute to the parties’ Joint
Status Report (Docs. 22, 23).
II.

Plaintiff’s Pro Se Status
Plaintiff is proceeding pro se. Pro se pleadings must be liberally construed and held to less

stringent standards than formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519,
520 (1972). Nevertheless, a district court should not assume the role of advocate. Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991); see also United States v. Pinson, 584 F.3d 972, 975 (10th
Cir. 2009) (“rule of liberal construction [of pro se filings] stops, however, at the point at which we
begin to serve as his advocate.”).
III.

Subject Matter Jurisdiction
A district court must dismiss an action if, at any time, it determines that it lacks subject

matter jurisdiction. Fed. R. Civ. P. 12(h)(3). “Federal courts are courts of limited jurisdiction.
They possess only that power authorized by Constitution and statute . . . .” Kokkonen v. Guardian
Life Ins. Co., 511 U.S. 375, 377 (1994). The party invoking federal jurisdiction bears the burden
of establishing such jurisdiction.” Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1224 (10th
Cir. 2004). Federal district courts have original jurisdiction over claims that arise under federal
law, known as federal question jurisdiction, and claims between citizens of different states where
the amount in controversy exceeds $75,000, known as diversity jurisdiction. 28 U.S.C. §§ 1331,
1332(a)(1).

The liberal construction principles applicable to pro se plaintiffs “apply with full

force” to jurisdictional inquiries. Firstenberg v. City of Santa Fe, N.M., 696 F.3d 1018, 1024 (10th
Cir. 2012).

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Defendant Bonnewitz’s Motion argues that plaintiff has failed to establish either federal
question or diversity jurisdiction. Even construing plaintiff’s Complaint liberally, the Court agrees
with defendant.
A. Federal Question Jurisdiction
“Generally, the ‘well-pleaded complaint’ rule requires that the federal question appear on
the face of the plaintiff’s complaint.” Garley v. Sandia Corp., 236 F.3d 1200, 1207 (10th Cir.
2001) “The complaint must identify the statutory or constitutional provision under which the claim
arises, and allege sufficient facts to show that the case is one arising under federal law.” Martinez
v. U.S. Olympic Comm’n, 802 F.2d 1275, 1280 (10th Cir. 1986)). Plaintiff’s Complaint asserts
federal jurisdiction “in the District Court in and for Tulsa County State of Oklahoma.” (Doc. 1 at
1). Plaintiff does not identify any federal law under which he claims entitlement to relief, nor does
he allege any facts that show the case has any relationship to federal law. The Court agrees with
defendant that there is no basis to exercise federal question jurisdiction over plaintiff’s case.
B. Diversity Jurisdiction
Similarly, plaintiff has not alleged jurisdictional facts to support the existence of diversity
jurisdiction. Diversity jurisdiction attaches “when all parties on one side of the litigation are of a
different citizenship from all parties on the other side of the litigation.” Depex Reina 9 P’ship v.
Texas Int'l Petrol. Corp., 897 F.2d 461, 463 (10th Cir. 1990). The Complaint provides that all
parties are citizens of Oklahoma. (Doc. 1 at 1). This fact alone defeats diversity jurisdiction.
Plaintiff is also unable to establish the requisite amount in controversy, as he has only alleged that
he was wrongfully charged $831.91—an amount that falls far short of the $75,000 requirement.
See id. Likewise, plaintiff is unable to establish diversity jurisdiction.

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IV.

Conclusion
The Court has construed the allegations of the plaintiff's pro se Complaint liberally.

However, the Court finds no federal question or diversity jurisdiction. Accordingly, the Court
finds no basis to exercise subject matter jurisdiction.
The plaintiff’s Complaint (Doc. 1) is hereby dismissed without prejudice. A separate
judgment of dismissal will be filed forthwith.
SO ORDERED this 6th day of January, 2017.

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