United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
McBRYDE United States District Judge
for consideration the motion of defendant Conrad Consulting,
LLC ("Conrad") to dismiss for lack of subject
matter jurisdiction and failure to state a claim upon which
relief can be granted. Plaintiff, Chin Kim, has filed a
response, and Conrad has filed a reply. Having reviewed the
motion, the response, the reply, plaintiff's first
amended complaint, and applicable legal authorities, the
court concludes that the motion should be granted on the
ground that plaintiff's first amended complaint fails to
state a claim upon which relief can be granted.
initiated this action on February 13, 2017 by filing an
original complaint. Doc. 1. After informing plaintiff converted
plaintiff's that such complaint lacked sufficient facts
to establish the court's subject matter jurisdiction, the
court ordered plaintiff to file an amended complaint. Doc. 7.
On March 8, 2017, plaintiff filed his first amended
complaint. Doc. 8. Plaintiff's first amended complaint
alleged a mixture of federal and state law claims against
defendants, CTX Mortgage Company, LLC, John L. Matthews, as
Trustee, Timothy M. Bartosh, as Trustee, Mortgage Electronic
Registration Systems, Inc. (MERS), Wells Fargo Bank, N.A.
("Wells Fargo"), Craig Muirhead, as Substitute
Trustee ("Muirhead"), Roger Eldard, as Agent of
Buckley Madole, P.C., as Attorneys for Wells Fargo, Conrad,
and Clint Burgess, in his Capacity as Constable of Precinct 7
("Burgess"). To date, all claims and causes of
action have been dismissed except for plaintiff's claims
against Conrad. See Doc. 23; Doc. 48; Doc. 50; Doc. 55.
remaining claims against Conrad are: (1) wrongful eviction;
and (2) conversion. Plaintiff alleges that he was wrongfully
evicted "because Conrad did not have standing nor a
superior right to possession of the property to remove
[plaintiff] from the premises." Doc. 8 at 27, ¶
167. And, plaintiff contends that on or about February 11,
2015, Conradproperty when it "unlawfully and without
authority assumed dominion and control over [plaintiff's]
property . . . inconsistent with [plaintiff's] rights in
this property in that [Conrad] removed said property from
[plaintiff's] home, and took possession of two rifles,
ammunition, miscellaneous papers, check books and credit
cards." Id. at ¶ 171.
Grounds of the Motion
asserts that plaintiff's claims against it should be
dismissed for lack of subject matter jurisdiction and failure
to state a claim upon which relief can be granted.
Specifically, Conrad argues that there is no supplemental
jurisdiction over plaintiff's claims because such claims
do not derive from the same nucleus of operative facts common
to plaintiff's claims based on federal question
jurisdiction. As to plaintiff's wrongful eviction claim,
Conrad asserts that it had standing to seek eviction pursuant
to the deed of trust. Moreover, Conrad argues that
plaintiff's election to seek damages rather than
challenge the validity of the trustee deed to Conrad is
inconsistent with a claim for wrongful eviction. As to
plaintiff's conversion claim, Conrad argues that it did
not possess a duty to preserve plaintiff's personal
property after it was removed and thus cannot be liable, as a
matter of law, for conversion.
Applicable Pleading Principles
Rule 12 (b) (1)
Rule 12(b)(1) of the Federal Rules of Civil Procedure, a case
is properly dismissed when the court "lacks the
statutory or constitutional power to adjudicate the
case." Home Builders Ass'n of Miss., Inc. v.
City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.
1998) (citations omitted). The court should grant a motion to
dismiss pursuant to Rule 12(b) (1} "only if it appears
certain that the plaintiff cannot prove any set of facts in
support of his claim that would entitle him to relief."
Id., The court may dismiss a complaint for lack of
subject matter jurisdiction upon consideration of "(1}
the complaint alone; (2} the complaint supplemented by the
undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the
court's resolution of disputed facts." Lane v.
Halliburton, 529 F.3d 548, 557 (5th Cir. 2008) (citing
Barrera-Montenegro v. United States, 74 F.3d 657,
659 (5th Cir. 1996)). Upon a defendant's challenge to the
court's subject matter jurisdiction, "the plaintiff
constantly bears the burden of proof that jurisdiction does
in fact exist." Ramming v. United States, 281
F.3d 158, 161 (5th Cir. 2001); Menchaca v. Chrysler
Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980).