Opinion
No. 04-4093-SAC.
December 21, 2004
MEMORANDUM AND ORDER
The case comes before the court on the defendant's motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). (Dk. 8). When the time under local rule for filing a response expired, the court ordered the pro se plaintiff to show cause why the court should not consider and decide the defendant's motion as uncontested. (Dk. 9). The plaintiff filed two responses in which she describes the circumstances of her alleged personal injury at the defendant's business premises but fails to address how this court has subject matter jurisdiction of this action. (Dks. 13 and 14).
Being courts of limited jurisdiction, federal courts may exercise jurisdiction only when specifically authorized to do so. Castaneda v. I.N.S., 23 F.3d 1576, 1580 (10th Cir. 1994). Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes a court to dismiss a claim for lack of subject matter jurisdiction. A court lacking subject matter jurisdiction must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking. Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.), cert. denied, 516 U.S. 863 (1995). Upon a defendant's Rule 12(b)(1) motion to dismiss, the plaintiff bears the burden of proving jurisdiction. Richmond, Fredericksburg Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991), cert. denied, 503 U.S. 984 (1992). Put another way, the party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper. United States v. Bustillos, 31 F.3d 931, 933 (10th Cir. 1994).
Rule 12(b)(1) attacks on subject matter jurisdiction typically are either facial attacks on the sufficiency of jurisdictional allegations or factual attacks on the accuracy of those allegations. Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). A facial attack questions the sufficiency of the allegations in the complaint as they relate to subject matter jurisdiction. Holt v. United States, 46 F.3d at 1002. The defendant's motion mounts a facial attack, as it relies only on the plaintiff's complaint. In reviewing a facial attack on the complaint, the court must accept all allegations in the complaint as true. Id.
"A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A pro se litigant, however, is not relieved from following the same rules of procedure as any other litigant. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992), cert. denied, 507 U.S. 940 (1993). "At the same time, we do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant." Hall v. Bellmon, 935 F.2d at 1110. Nor is the court to "supply additional factual allegations to round out a plaintiff's complaint." Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
Using the civil complaint form furnished by the court, the plaintiff completed the jurisdictional section for diversity jurisdiction. Federal district courts have original jurisdiction of civil actions where complete diversity of citizenship and an amount in excess of $75,000 (exclusive of interest and costs) in controversy exist. 28 U.S.C. § 1332; see Carden v. Arkoma Associates, 494 U.S. 185, 187 (1990) ("Since its enactment, [the Supreme Court] has interpreted the diversity statute to require `complete diversity' of citizenship."). As interpreted, this statute provides federal district courts with original diversity jurisdiction of case "`only if there is no plaintiff and no defendant who are citizens of the same State.'" Gadlin v. Sybron Intern. Corp., 222 F.3d 797, 799 (10th Cir. 2000) (quoting Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 388 (1998)). The plaintiff's complaint does not support diversity jurisdiction, as it alleges that she and the defendant are both citizens of Kansas.
On the civil complaint form, the plaintiff also completed the jurisdictional section for federal question jurisdiction. Federal district courts "have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. "[F]ederal question jurisdiction must appear on the face of a plaintiff's well-pleaded complaint." Martinez v. United States Olympic Comm., 802 F.2d 1275, 1280 (10th Cir. 1986) (citations omitted). "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." Id. The plaintiff's complaint does not identify any federal constitutional or statutory provision. There is no federal question apparent on the face of the complaint, and the facts alleged do not sustain a federal law claim. The plaintiff's complaint alleges a slip and fall claim in the defendant's parking lot. "Merely alleging that `federal questions are involved' is insufficient to convert what appears to be a common-law negligence claim into a federal question." Martinez v. U.S. Olympic Committee, 802 F.2d at 1280.
Section 1331 fails to confer subject matter jurisdiction over the plaintiff's complaint.
IT IS THEREFORE ORDERED that the defendant's motion to dismiss for lack of subject matter jurisdiction (Dk. 8) is granted.