Opinion
Case No. 01-2492-JWL.
April 16, 2002
MEMORANDUM AND ORDER
This matter is presently before the court on defendants' motion to dismiss plaintiff's complaint (Doc. # 18). For the reasons set forth below, defendant's motion is granted and plaintiff's case is dismissed in its entirety.
On February 27, 2002, defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12 arguing that service of process was ineffective, that the court lacks subject matter jurisdiction and that plaintiff's complaint fails to state a claim (Doc. 18). Pursuant to D. Kan. Rule 6.1(e)(2), a party has 20 days to respond to a motion to dismiss or for summary judgment. Plaintiff failed to file a response to the motion to dismiss within 20 days.
On March 28, 2002, this court issued an order directing plaintiff to show good cause why she failed to respond to defendant's motion within the period of time dictated by Rule 6.1 and directing plaintiff to respond to defendants' motion to dismiss on or before April 11, 2002. In the order, the court cautioned plaintiff that if she failed to respond to the motion to dismiss on or before April 11, 2002, pursuant to D. Kan. Rule 7.4, the motion "will be considered and decided as an uncontested motion and ordinarily will be granted without further notice."
On April 10, 2002, plaintiff filed a response to the court's show cause order. Plaintiff pointed to a motion she filed on February 22, 2002, "requesting a three week sick leave of absence" because of a dental procedure performed on March 5, 2002 (Doc. 16). The magistrate judge denied plaintiff's motion on March 11, 2002 (Doc. 23) because "there is no `leave of absence' provided for under the Federal Rules of Civil Procedure or the Rules of Practice in the United States District Court for the District of Kansas."
The court concludes that plaintiff has not shown good cause for her failure to file a timely response. Defendants filed the motion to dismiss on February 27, 2002, six days before plaintiff's dental procedure. Plaintiff has not argued or submitted evidence showing that she could not have drafted a response in the six days prior to the procedure (the extraction of seven teeth) or submitted evidence indicating that the procedure could not have been rescheduled if necessary for her to file a response. Furthermore, the court's show cause order directed plaintiff to file a response to the motion to dismiss "simultaneously with the plaintiff's response to this show cause order, that is, on or before April 11, 2002" and plaintiff did not comply. Even if plaintiff had good cause for not timely drafting and filing a response to the motion to dismiss during plaintiff's requested three week "sick leave," plaintiff still has not filed a response to the motion to dismiss as ordered by the court and has not attempted to show good cause for failing to file a response by the court's April 11 deadline. Thus, the court considers defendants' motion as uncontested and, accordingly, grants the motion.
In so holding, the court concludes that certain aggravating factors present in this case outweigh the judicial system's strong predisposition to resolve cases on their merits. See Murray v. Archambo, 132 F.3d 609, 611 (10th Cir. 1998) (prior to outright dismissal for failure to comply with local court rules, court must consider the degree of actual prejudice to the defendant; the amount of interference with the judicial process; and the culpability of the litigant). Specifically, the court notes that plaintiff, as of the date of this order, has still not responded to defendants' motion to dismiss. Plaintiff's failure to respond to defendants' motion indicates that her culpability is quite high. Compare id. (reversing district court's dismissal on uncontested motion where plaintiff mailed his response more than three days prior to the deadline, demonstrating "little or no culpability on his part in causing the delay") and Hancock v. City of Oklahoma City, 857 F.2d 1394, 1396 (10th Cir. 1988) (plaintiff herself was not guilty of any dereliction where plaintiff's counsel overlooked motion and therefore failed to respond, resulting in delay of almost two weeks but, once discovered, responded promptly). Moreover, in such circumstances, denying defendants' motion would prejudice defendant in terms of continued time spent and expenses incurred on a case in which the plaintiff has shown little interest in prosecuting even after ample notice from the court. Similarly, denying defendants' motion would interfere with the judicial process in terms of docket management and the need for a finality to litigation.
The court also grants defendants' motion to dismiss on the merits, holding that the court lacks subject matter jurisdiction. A party seeking to invoke federal jurisdiction generally has the duty to establish that subject matter jurisdiction is proper. Basso v. Utah Power and Light Co., 495 F.2d 906, 909 (10th Cir. 1974). Because federal courts are courts of limited jurisdiction, there is a presumption against federal jurisdiction. Scheideman v. Shawnee County Bd. of County Com'rs, 895 F. Supp. 279, 280 (D.Kan. 1995). "A court lacking jurisdiction must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Id.; see Fed.R.Civ.P. 12(h)(3). When the jurisdiction of the federal court is challenged, the plaintiff bears the burden of showing why the case should not be dismissed. Jensen v. Johnson County Youth Baseball, 838 F. Supp. 1437, 1439-40 (D.Kan. 1993).
The amended complaint (Doc. 4) asserts jurisdiction based on diversity of citizenship and pursuant to 28 U.S.C. § 1343. In support of plaintiff's claim of diversity jurisdiction, the complaint asserts that plaintiff and all defendants are citizens of the state of Kansas. A federal district court has diversity jurisdiction over a case between citizens of different states and between citizens of a state and citizens of a foreign state if the amount in controversy exceeds the sum or value of $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a). Section 1332 diversity jurisdiction requires complete diversity, that is, "all the parties on one side must have citizenship diverse to those on the other side." Knoll v. Knoll, 350 F.2d 407, 407 (10th Cir. 1965). Because the complaint alleges that plaintiff and all defendants are citizens of the same state, the court lacks diversity jurisdiction.
Plaintiff filed a second amended complaint (Doc. 5) without seeking leave of court or written consent of the opposing parties. Fed.R. Civil P. 15 provides that "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served . . . [o]therwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party. . . ." Accordingly, the court will consider only the plaintiff's first amended complaint (Doc. 4) in evaluating the motion to dismiss. See, e.g., Kirk v. IRS, 2001 WL 1902254 (D.Ariz. Oct. 31, 2001) (striking second amended complaint filed without leave of court).
The complaint also alleges that jurisdiction is founded upon 28 U.S.C. § 1343. Section 1343 provides that district courts shall have original jurisdiction over civil actions authorized by law to be commenced by any person:
(1) To recover damages for injury to his person or property, or because of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42;
(2) To recover damages from any person who fails to prevent or to aid in preventing any wrongs mentioned in section 1985 of Title 42 which he had knowledge were about to occur and power to prevent;
(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;
(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.28 U.S.C. § 1343. The section of the amended complaint entitled "Statement of Claim" alleges:
To restore the city main and my sewer connections with the main sewer exactly as it was built by the City of K.C., Kansas. The present and rebuilt sewer causing [sic] serious problems, back flow and damages. To restore my yard and terrace [sic] causing wash-outs, cave-ins and mud and water in my basement. A permit was issued on are [sic] around Jan. 19, 2001 to Mary Coleman by water control. Mr. La Vert Murray retreaved [sic] the permit and it is now in his possession. Permit read [sic] to dig at 601 Oakland. No permission was given by either family. Police were called as directed.
Even read liberally, the complaint does not allege a violation of civil rights over which this court has jurisdiction pursuant to 28 U.S.C. § 1343. The court acknowledges that a section 1983 claim may lie for an alleged violation of the Takings Clause. See, e.g., City of Monterey v. Del Monte Dunes at Monterey, 526 U.S. 687 (1999). In this case, however, the court does not believe that , even read liberally, the complaint can be construed as alleging an action taken under color of a statute or ordinance that amounted to a taking of property in violation of the Takings Clause. Plaintiff is suing the developer of "Turtle Hill" and two employees of the Kansas City/Wyandotte County Unified Government seeking recovery for damage to her property allegedly caused by changes made to the sewer system as a result of the development of "Turtle Hill." The complaint does not allege that an action taken by the Unified Government under the color of law caused the damage to plaintiff's home. Instead, the complaint alleges that the damage resulted from changes in the sewer as a result of construction. In its own research, the court was unable to find any support in law for the proposition that damage to private property caused by nearby construction, even if "caused" by the issuance of a construction permit by the state, could constitute a Takings Clause violation. Thus, the court concludes that the complaint does not state a claim under section 1983 and, consequently, the court lacks subject matter jurisdiction and the action must be dismissed. The court notes that a dismissal in federal court does not preclude plaintiff from bringing this suit in state court where jurisdiction is not similarly limited.
For the foregoing reasons, the court grants defendants' motion to dismiss. If plaintiff feels aggrieved by this ruling, she may file a motion to reconsider pursuant to Federal Rule of Civil Procedure 59(e) or 60. D. Kan. Rule 7.3(a).
IT IS THEREFORE ORDERED BY THE COURT THAT defendants' motion to dismiss plaintiff's complaint (Doc. # 18) is granted.