Opinion
Case No. 02-1137-WEB.
January 29, 2003.
MEMORANDUM AND ORDER
This matter is before the court on the following motions:
1. Plaintiffs' Motion to Amend (Doc. 14);
2. Plaintiffs' Motion to Reconsider (Doc. 15);
3. Plaintiffs' Motion to "Refile Summons" (Doc. 18);
4. The Kansas Corporation Commission's Motion to Dismiss (Doc 20);
5. Plaintiffs' Motion to Strike the KCC's Motion (Doc. 22); and
6. Plaintiffs' Motion for Leave to File a Second Amended Complaint (Doc. 24).
The court's rulings are set forth below.
The background and nature of this lawsuit were described in the report and recommendation (Doc. 13, filed September 6, 2002) and will not be repeated.
1. Plaintiffs' Motion to Amend (Doc. 14)
After this court issued a report and recommendation that plaintiffs' case should be dismissed, plaintiffs file the present motion to amend to bring this case as a class action and to add the Kansas Corporation Commission (KCC) as a defendant. The proposed amended complaint also includes references to the "Intrastate Commerce Clause," the "Sherman Act," and the "Clayton Act." For the reasons stated below, the motion to amend shall be DENIED.
Because plaintiffs proceed pro se, they are not proper representatives to bring a class action. Fymbo v. State Farm Fire and Casualty Co., 213 F.3d 1320 (10th Cir. 2000) (a non-attorney plaintiff suing pro se is not an adequate class representative). Further, although plaintiffs seek to add the KCC as a defendant, the proposed amended complaint states no cause of action against the Commission and plaintiffs' reference to the "Sherman Act" and "Clayton Act" appears to be a misguided, mechanical effort to establish subject matter jurisdiction by citing federal acts. However, nothing in the facts pleaded by plaintiffs remotely suggests an anti-trust controversy. The gravamen of plaintiffs' complaint is a dispute with their gas company over a bill which plaintiffs do not believe they should have to pay. Plaintiffs' proposed amended complaint is a futile attempt to create a sham basis for litigating in federal court; therefore, the motion to amend shall be denied.
IT IS THEREFORE ORDERED that plaintiffs' motion to amend (Doc. 14) is DENIED.
2. Plaintiffs' Motion to Reconsider (Doc. 15)
Plaintiffs argue in summary fashion that the court should reconsider the report and recommendation filed on September 6, 2002 because plaintiffs have moved to amend their complaint. Because plaintiffs' motion to amend has been denied and no grounds exist for reconsideration, the motion shall be DENIED.
IT IS THEREFORE ORDERED that plaintiffs' motion to reconsider (Doc. 15) is DENIED.
3. Plaintiffs' Motion to "Refile Summons" (Dos. 18)
Plaintiffs move for permission to re-serve the defendants if their motion to amend is granted. Because the court has denied the motion to amend, the motion to re-serve the defendants is MOOT.
IT IS THEREFORE ORDERED that plaintiffs' motion to "refile summons" (Doc. 18) is DENIED as MOOT.
4. The Kansas Corporation Commission's Motion to Dismiss (Doc 20) and
5. Plaintiffs' Motion to Strike the KCC's Motion (Doc. 22)
The Kansas Corporation Commission moves to dismiss the claims against it in the event the court grants plaintiffs' motion to amend. In support of their motion to dismiss, the KCC raises the following defenses: 1) lack of personal jurisdiction, 2) lack of proper service, 3) lack of subject matter jurisdiction, 4) failure to exhaust administrative remedies, and 5) failure to state a claim for which relief may be granted. Because the court has denied plaintiffs' motion to add the KCC as a defendant, the KCC's motion to dismiss as well as plaintiffs' motion to strike are MOOT.
IT IS THEREFORE ORDERED that the KCC's motion to dismiss (Doc. 20) and plaintiffs' motion to strike (Doc. 22) are MOOT.
6. Plaintiffs' Motion for Leave to File a Second Amended Complaint (Doc. 24)
Plaintiffs' second motion to amend reiterates that plaintiffs are seeking to proceed as a class action and that they consider themselves adequate representatives of the case. Plaintiffs further contend that their proposed amended complaint contains new allegations regarding their gas bill controversy.
While plaintiffs' persistence is evident, it remains clear that plaintiffs are not adequate representatives for bringing a class action because they proceed pro se. Moreover, although their proposed amended complaint contains a small number of additional allegations concerning plaintiffs utilities and the termination of service, the amended complaint does not cure the defects upon which this court recommends dismissal of the case.
IT IS THEREFORE ORDERED that plaintiffs' motion for leave to file a second amended complaint (Doc. 24) is DENIED.