United States District Court, N.D. Indiana, Fort Wayne Division
JAMES L. PHILLIPS, Plaintiff,
REDKEY TOWN BOARD, Defendant.
OPINION AND ORDER
William C. Lee, Judge
matter is before the Court on the motion to dismiss filed by
Defendant Redkey Town Board on June 12, 2017 (ECF 5). In
response to the motion, Plaintiff James L. Phillips sent a
letter to the Court requesting a hearing (ECF 8, docketed on
June 15, 2017), filed a document requesting a Clerk's
entry of default against Redkey (ECF 9, docketed on June 15,
2017), and filed a “supplement” to his Complaint
(ECF 10, docketed on June 28, 2017). Redkey did not file a
reply brief (which was due July 10) and so this matter is
ripe for resolution. For the reasons explained below, the
Court rules as follows:
motion to dismiss (ECF 5) is GRANTED and
this case is DISMISSED WITHOUT PREJUDICE;
Plaintiff James Phillips will be afforded an opportunity to
file an Amended Complaint so he can provide more factual
detail to explain and support his claim. Phillips is
directed to file any Amended Complaint on or before September
15, 2017. If Phillips fails to file an Amended
Complaint or chooses not to do so, this case will be
dismissed without further notice or hearing;
Defendant Town of Redkey is INSTRUCTED NOT
TO FILE AN ANSWER OR OTHER RESPONSIVE PLEADING TO ANY
PROPOSED AMENDED COMPLAINT UNTIL DIRECTED BY THE COURT TO DO
Clerk of the Court is instructed to bring any Amended
Complaint Phillips files to the Court's attention when it
is received and docketed; and
Court interprets Phillips' request for a hearing (ECF 8)
and request for default judgment (ECF 9) as motions and both
are DENIED AS MOOT.
is proceeding pro se. A trial court must liberally
construe a pro se plaintiff's pleadings.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); see
also Hart v. Amazon.com, Inc., 191 F.Supp.3d 809, 816
(N.D. Ill. 2016), aff'd, 845 F.3d 802 (7th Cir. 2017)
(“Because Plaintiff is proceeding pro se, the
Court construes his complaint ‘liberally' and holds
it to a ‘less stringent standard than formal pleadings
drafted by lawyers.'”) (quoting Perez v.
Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)).
motion to dismiss is brought pursuant to Fed.R.Civ.P.
12(b)(1). A Rule 12(b)(1) motion challenges jurisdiction in
federal court, and the plaintiff bears the burden of
establishing the elements necessary for jurisdiction.
Scanlan v. Eisenberg, 669 F.3d 838, 841-42 (7th Cir.
2012). When ruling on a 12(b)(1) motion, a court may look
beyond the complaint's allegations and consider any
evidence that has been submitted on the issue of
jurisdiction. Ezekiel v. Michel, 66 F.3d 894, 897
(7th Cir. 1995). In this case, Redkey argues that
Phillips' Complaint should be dismissed pursuant to Rule
12(b)(1) because it fails to establish either diversity
jurisdiction or federal question jurisdiction.
Complaint states, in its entirety, as follows: “The
Redkey Town Board took my land across Railroad St. They are
tearing up my apple trees and stealing my land on other side
of street.” Id., p. 2. It doesn't take
much in the way of interpretation or inference to grasp that
Phillips is accusing the Town of Redkey of illegally seizing
his private property, or part of it at least, and he is
seeking some sort of remedy for that alleged conduct. Such a
claim can be brought pursuant to the “takings”
clause of the Fifth Amendment, or perhaps as a procedural due
process claim, which in turn would invoke this Court's
federal question jurisdiction. But Phillips' two-sentence
Complaint doesn't mention the Fifth Amendment or due
process (or any other federal law or right) and subject
matter jurisdiction cannot simply be assumed, which means the
Defendant's motion to dismiss under Rule 12(b)(1) is well
the Court's inference is reasonable and Phillips is
bringing this lawsuit on a theory that Redkey violated his
rights under federal law by seizing part of his land-whether
in violation his Fifth Amendment rights, his procedural due
process rights, or some other right-thereby bestowing federal
question jurisdiction on this Court, then the sufficiency of
that claim would be challenged under Fed.R.Civ.P. 12(b)(6)
rather than Rule 12(b)(1). Redkey does not invoke Rule
12(b)(6) in its motion to dismiss, even as an alternative
argument, instead relying solely on Rule 12(b)(1) as the
basis for the motion. Redkey is correct about one thing: the
threshold issue at this point (or at any point in the life of
a case) is whether this Court has jurisdiction to hear the
Plaintiff's claim. Redkey says no, and so the case should
be dismissed (with prejudice). But even though Redkey chose
not to present an argument under Rule 12(b)(6), the Court can
review Phillips' Complaint under that subsection sua
sponte, which affords an opportunity to examine more
closely any claim he is attempting to assert and then to
determine whether it is one over which this Court has
jurisdiction. If not, dismissal under Rule 12(b)(6) for
failure to state a claim would also be warranted. A sua
sponte “dismissal pursuant to Rule 12(b)(6) is
permitted, ‘provided that a sufficient basis for the
court's action is evident from the plaintiff's
pleading.'” Ruiz v. Kinsella, 770
F.Supp.2d 936, 945 (N.D.Ill. 2011) (quoting Ledford v.
Sullivan, 105 F.3d 354, 356 (7th Cir.1997)); see
also, Hoskins v. Poelstra, 320 F.3d 761, 763
(7th Cir. 2003)(“District judges have ample
authority to dismiss frivolous or transparently defective
suits spontaneously, and thus save everyone time and legal
expense. This is so even when the plaintiff has paid all fees
for filing and service[.]”) (citing Rowe v.
Shake, 196 F.3d 778, 783 (7th Cir.1999)).
Rule 12(b)(1) motion raises a direct challenge to a district
court's subject matter jurisdiction, a Rule 12(b)(6)
motion, in contrast, “tests whether the complaint
states a claim on which relief may be granted.”
Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir.
2012). The complaint must contain factual allegations that
plausibly suggest a right to relief. Ashcroft v.
Iqbal, 556 U.S. 662, 677-78 (2009). When analyzing a
motion under either Rule 12(b)(1) or Rule 12(b)(6), the court
accepts all well-pleaded factual allegations as true and
construes all reasonable inferences in favor of the
plaintiff. Scanlan, 669 F.3d at 841. And while
pro se plaintiffs are afforded a wider canvas on
which to present their claims, the ...