Opinion
Civil Action 23-2122-KHV
06-13-2023
D. THORSON, Plaintiff, v. BROWN-ATCHISON ELECTRIC COOPERATIVE ASSOCIATION, INC., Defendant.
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE
This matter is before the Court on Defendant's Motion To Dismiss (Doc. #6) filed May 10, 2023. After defendant filed its motion to dismiss, plaintiff sought leave to voluntary dismiss this action under Rule 41(a)(2), Fed.R.Civ.P. Plaintiff's Motion For Voluntary Dismissal Without Prejudice With Suggestions In Support (Doc. #8) filed May 25, 2023. Plaintiff does not dispute that the Court lacks subject matter jurisdiction and has not opposed defendant's motion to dismiss. If plaintiff fails to timely respond to a motion to dismiss, the Court will consider and decide the motion as uncontested and ordinarily grant it without further notice. See D. Kan. R. 7.1(c). For this reason and for substantially the reasons stated in the Memorandum In Support Of Defendant's Motion To Dismiss (Doc. #6) filed May 10, 2023, the Court sustains defendant's motion to dismiss. The Court dismisses plaintiff's complaint for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Because the Court lacks subject matter jurisdiction and a dismissal under Rule 12(b)(1) is without prejudice, the Court overrules plaintiff's motion for voluntary dismissal as moot.
Defendant also asks the Court to award attorney fees. Defendant cites no statutory basis for an award of fees and has not otherwise shown that an award of fees is authorized.
IT IS THEREFORE ORDERED that Defendant's Motion To Dismiss (Doc. #6) filed May 10, 2023 is SUSTAINED. The Court dismisses plaintiff's complaint for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure .
IT IS FURTHER ORDERED that Plaintiff's Motion For Voluntary Dismissal Without Prejudice With Suggestions In Support (Doc. #8) filed May 25, 2023 is OVERRULED as moot.