United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE
civil rights action filed by a plaintiff proceeding pro
se but not in forma pauperis has been referred
to the undersigned United States magistrate judge for
pretrial management under 28 U.S.C. § 636(b) and a
standing order of reference from Senior United States
District Judge Sam R. Cummings.
Federal Rule of Civil Procedure 12(b)(6), the Court granted
Defendant Dallas County's motion to dismiss [Dkt. No. 15]
and dismissed this action without prejudice to Plaintiff
Anthony of the Family Baker's (“Baker”) right
to file an amended complaint, see Dkt. Nos. 24 &
filed a timely amended complaint. See Dkt. No. 27.
And Dallas County again moves to dismiss under Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). See Dkt.
No. 34. Baker responded to that motion. See Dkt. No.
37. And Dallas County filed a reply brief. See Dkt.
Dallas County's motion became ripe, several other
individuals and entities associated with Dallas County, in
response to summonses that Baker obtained and had served,
filed two more motions to dismiss under Rules 12(b)(1) and
12(b)(6). See Dkt. Nos. 43 & 44.
undersigned enters these findings of fact, conclusions of
law, and recommendation that, for the reasons explained below
- and without the need to take up the other motions to
dismiss - the Court should grant Dallas County's motion
under Rule 12(b)(1) and dismiss the action without prejudice
for lack of subject matter jurisdiction.
that the defendants violated his constitutional rights and
deprived him of property, Baker brings claims under 42 U.S.C.
§ 1983 against Dallas County and other entities,
identified as “45 C.F.R. § 75.2 Contractor Dallas
County Texas; 45 C.F.R. § 75.2 Contractor Dallas County
Child Support Office; 45 C.F.R. § 75.2 Contractor Dallas
County Family Court; 45 C.F.R. § 75.2 Contractor Dallas
County Family Court Judge in his/her Official and Private
Capacity; 45 C.F.R. § 75.2 Contractor Dallas County
Family Clerk of Court in his/her Official and Private
Capacity; 45 C.F.R. § 75.2 Contractor Dallas County
Sheriff's Department in his/her Official and Private
Capacity.” See generally Dkt. No. 27; see,
e.g., id. at 1, 12 (“A. Baker did not
devote his honestly acquired income to the Defendant's
use or grant them the right to control that use whenever
their needs require. However, his honestly acquired income,
private property was taken for public use and federal profits
without just compensation.” (citation omitted));
id. at 13-14 (requesting as relief that the Court
“terminate the private for profit contractual
non-judicial IV-D Collections Case effective immediately, to
end the deprivation of his rights, privileges and immunities
and to uphold his rights to provide for his offspring in
private, ” that he receive punitive damages in the
amount of $1, 000, 000 against defendants named, that he be
given a “full refund of what's been taken/ordered
he pay from his honestly acquired income against each
defendant, that “a judgement be entered in his favor
for Dallas County's 34 percent share of federal profits
as well as penalties and 18 percent interest, that all
negative reporting to all credit bureau's be removed,
that he receive $5, 000.00 from each defendant for all legal
fees, and that he receives “a letter of apology from
Baker seeks to use this civil rights action to change (or
escape from) the child-support obligations imposed on him by
a state court and to obtain damages based on those previously
Standards and Analysis
courts are courts of limited jurisdiction, and absent
jurisdiction conferred by statute, lack the power to
adjudicate claims.” Stockman v. Fed. Election
Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). As such,
the Court must dismiss a complaint for lack of subject matter
jurisdiction “when the court lacks the statutory or
constitutional power to adjudicate the case.” Home
Builders Ass'n of Miss., Inc. v. City of Madison,
143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v.
Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d
Cir. 1996)). The Court will not assume it has jurisdiction.
Rather, “the basis upon which jurisdiction depends must
be alleged affirmatively and distinctly and cannot be
established argumentatively or by mere inference.”
Getty Oil Corp. v. Ins. Co. of N.A., 841 F.2d 1254,
1259 (5th Cir. 1988) (citing Ill. Cent. Gulf R. Co. v.
Pargas, Inc., 706 F.2d 633, 636 & n.2 (5th Cir.
burden of proof for a Rule 12(b)(1) motion to dismiss is on
the party asserting jurisdiction. Accordingly, the plaintiff
constantly bears the burden of proof that jurisdiction does
in fact exist” in any case originally filed in federal
court. Ramming v. United States, 281 F.3d 158, 161
(5th Cir. 2001) (per curiam) (citations omitted). And where,
like here, a defendant files a Rule 12(b)(1) motion to
dismiss, the attack is presumptively “facial, ”
and the Court need look only to the sufficiency of the
allegations of the plaintiff's complaint, or on the
complaint as supplemented by undisputed facts, all of which
are presumed to be true. See Paterson v. Weinberger,
644 F.2d 521, 523 (5th Cir. May 1981).
“factual” attack on jurisdiction, however, is
based on affidavits, testimony, and other evidentiary
material. See Id. Under such an attack, the Court
“is empowered to consider matters of fact which may be
in dispute, ” Ramming, 281 F.3d at 161, and,
to oppose the Rule 12(b)(1) motion, “a plaintiff is
also required to submit facts through some evidentiary method
and has the burden of proving by a preponderance of the
evidence that the trial court does have subject matter
jurisdiction, ” Paterson, 644 F.2d at 523;
see also Williamson v. Tucker, 645 F.2d 404, 412-13
(5th Cir. May 1981) (“Because at issue in a factual
12(b)(1) motion is the trial court's jurisdiction - its
very power to hear the case - there is substantial authority
that the trial court is free to weigh the evidence and
satisfy itself as to the existence of its power to hear the
case. In short, no presumptive truthfulness attaches to
plaintiff's allegations, and the existence of disputed
material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional
claims.” (quoting Mortensen v. First. Fed. Sav.
& Loan Ass'n, 549 F.2d 884, 891 (3d Cir.
a Rule 12(b)(1) motion is filed in conjunction with other
Rule 12 motions, the court should consider the Rule 12(b)(1)
jurisdictional attack before addressing any attack on the
merits.” Ramming, 281 F.3d at 161. “This
requirement prevents a court without jurisdiction from
prematurely dismissing a case with prejudice. The court's
dismissal of a plaintiff's case because the plaintiff
lacks subject matter jurisdiction is not a determination of
the merits ...