MacKenzie v. Castro et al

Filing 69

ORDER denying without prejudice as moot 11 Motion to Dismiss for Lack of Jurisdiction; denying 38 Motion for Leave to File; granting 40 Motion for Protective Order; denying 42 Motion to Strike; denying 44 Motion to Compel; declining to adopt 48 Findings and Recommendations of the United States Magistrate Judge; denying 50 Motion to Compel; denying 54 Motion to Compel and Motion for Default Judgment; denying without prejudice as moot 59 Motion for Protective Order; denying 61 Motion for Default Judgment; denying 62 Motion to Strike; and denying 63 Motion to Strike. (Ordered by Judge Sidney A Fitzwater on 12/16/2015) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CRAIG STEVEN MacKENZIE,
Plaintiff,
VS.
JULIAN CASTRO, SECRETARY,
U.S. HOUSING & URBAN
DEVELOPMENT, et al.,
Defendants.

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§ Civil Action No. 3:15-CV-0752-D
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ORDER
I

In her November 2, 2015 findings, conclusions, and recommendation, the United States
Magistrate Judge recommends that defendants’ May 15, 2015 motion to dismiss for lack of subject
matter jurisdiction be granted and that this action be dismissed with prejudice for lack of subject
matter jurisdiction. In his November 4, 2015 objections to the magistrate judge’s findings,
conclusions, and recommendation, plaintiff Craig Steven MacKenzie (“MacKenzie”) agrees, in part,
to dismissal for lack of subject matter jurisdiction without prejudice,1 he otherwise opposes

1

In his objections, MacKenzie maintains that the magistrate judge made a “specious error”
in recommending that dismissal be with prejudice. The court disagrees. Although it is generally
true that a dismissal for lack of subject matter jurisdiction is without prejudice, the magistrate judge
recommended that the case be dismissed for lack of subject matter jurisdiction based on sovereign
immunity. As this court has explained:
Ordinarily, a case dismissed for lack of subject matter jurisdiction
should be dismissed without prejudice so that a plaintiff may reassert
his claims in a competent court. Here, however, the bar of sovereign
immunity is absolute: no other court has the power to hear the case,
nor can the [plaintiffs] redraft their claims to avoid the exceptions to
the [Federal Tort Claims Act].

dismissal, and he requests other relief, including leave to amend.
Because MacKenzie is proceeding pro se, he should be given one last, fair opportunity to
plead his best case.2 Accordingly, the court grants MacKenzie’s request for leave to amend. He
must file his amended complaint within 28 days of the date this order is filed. Because the court is
granting MacKenzie leave to amend, it declines at this time to adopt the November 2, 2015 findings,
conclusions, and recommendation of the United States Magistrate Judge. And because defendants’
May 15, 2015 motion to dismiss for lack of subject matter jurisdiction is addressed to a complaint
that will be superseded by MacKenzie’s amended complaint, the motion is denied without prejudice
as moot.
II
Because MacKenzie will be repleading, and discovery should not be conducted until he
establishes, if he can, that this court has subject matter jurisdiction, the court enters the following
rulings.
The court withdraws its October 15, 2015 order referring to the magistrate judge
MacKenzie’s October 13, 2015 motion requesting leave to conduct depositions by written questions

Henry v. United States, 2006 WL 3780878, at *5 n.2 (N.D. Tex. Dec. 26, 2006) (Fitzwater, J.)
(quoting Frigard v. United States, 862 F.2d 201, 204 (9th Cir. 1988) (per curiam) (citation omitted),
and citing Bloomquist v. Brady, 894 F. Supp. 108, 116 (W.D.N.Y. 1995) (“A dismissal based on
sovereign immunity is a decision on the merits, as it determines that a party has no cause of action
or substantive right to recover against the United States.”)). The magistrate did not err in
recommending that a dismissal for lack of subject matter jurisdiction based on sovereign immunity
be with prejudice.
2

See, e.g., Robinette v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 2004 WL 789870, at *1
(N.D. Tex. Apr. 12, 2004) (Fitzwater, J.) (“Although the court granted [the defendant’s] motion to
dismiss, it gave [the plaintiff] one more opportunity to plead his best case, because he was
proceeding pro se.”).
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and defendants’ October 15, 2015 motion for protective order. Defendants’ October 15, 2015
motion for protective order is granted. Unless MacKenzie first moves for and obtains leave of court,
he may not conduct any discovery until the court decides that it has subject matter jurisdiction.
MacKenzie’s October 13, 2015 motion requesting leave to conduct depositions by written questions
is denied.
The court withdraws its October 20, 2015 order referring to the magistrate judge
MacKenzie’s October 16, 2015 motion requesting the court to strike defendants’ motion for
protective order. MacKenzie’s October 16, 2015 motion requesting the court to strike defendants’
motion for protective order is denied.
The court withdraws its October 27, 2015 order referring to the magistrate judge
MacKenzie’s October 27, 2015 motion to compel defendants to produce documents and to answer
requests for admission. MacKenzie’s October 27, 2015 motion to compel defendants to produce
documents and to answer requests for admission is denied.
The court withdraws its November 10, 2015 order referring to the magistrate judge
MacKenzie’s November 9, 2015 motion to compel defendants to complete depositions by written
questions. MacKenzie’s November 9, 2015 motion to compel defendants to complete depositions
by written questions is denied.
The court withdraws its November 20, 2015 order referring to the magistrate judge
MacKenzie’s November 19, 2015 motion to compel defendants to comply with discovery
obligations or to enter default judgment. MacKenzie’s November 19, 2015 motion to compel
defendants to comply with discovery obligations or to enter default judgment is denied.
The court withdraws its December 4, 2015 order referring to the magistrate judge

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defendants’ December 3, 2015 second motion for protective order. Given the ban on discovery
imposed by today’s order, defendants’ December 3, 2015 second motion for protective order is
denied without prejudice as moot.
The court also denies the following motions: MacKenzie’s December 3, 2015 motion
requesting the court to enter default judgment against defendants; MacKenzie’s December 3, 2015
motion requesting the court to strike defendants’ response to plaintiff’s motion to compel
depositions by written questions; and MacKenzie’s December 4, 2015 motion requesting the court
to strike defendants’ second motion for protective order.
SO ORDERED.
December 16, 2015.

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SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

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