United States District Court, D. South Dakota, Central Division
BRIAN L. FOX, Plaintiff,
CHANCE COLOMBE, and JOANNE COLOMBE, Defendants.
OPINION AND ORDER GRANTING MOTION TO DISMISS
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE
January 25, 2018, Defendants filed a Motion to Dismiss, Doc.
7, and supporting memorandum, Doc. 8, arguing for dismissal
based on an absence of federal jurisdiction. Plaintiff Brian
L. Fox, who filed pro se, did not respond to the motion
within the 21 days afforded him under Local Rule. D.S.D. Civ.
L.R. 7.l.B. This Court nevertheless has scrutinized Fox's
Complaint to see whether a basis for federal jurisdiction
exists in this case. Finding none, this Court grants the
Defendants' Motion to Dismiss.
December 28, 2017, Fox filed a pro se Complaint on the form
supplied by the Clerk of Court naming as Defendants Chance
"Bud" Colombe and Joanne Colombe. Doc. 1. The
Complaint form specified that a plaintiff is to list
"the full name of ALL Defendants]." Doc. 1. Under
"COMPLAINT, " the form instructs "State the
grounds for filing this case in Federal Court (include
federal statutes and/or U.S. Constitution provisions, if you
know them. Fed.R.Civ.P. 8(a)(1) requires a short and plain
statement of the grounds for the court's
jurisdiction.)" Doc. 1. Fox in his Complaint did not
cite a federal statute or constitutional provision or
otherwise provide any basis for federal court jurisdiction
over his claim. Fox separately completed a Civil Cover Sheet,
Doc. 2, where he marked an X in the boxes for "U.S.
Government Plaintiff' and "U.S. Government
Defendant." Obviously Fox is the lone Plaintiff and is
not the U.S. Government, and the Colombes are the lone two
Defendants and are not the U.S. Government or a U.S.
governmental agency. For "Citizenship of Principal
Parties, " Fox marked that both he and the Colombes are
"Citizens of This State" being South Dakota, Doc.
2, which is consistent with the Complaint Doc. 1 at 3.
Complaint alleges that the Colombes, after a meeting at the
Rosebud Agency of the Bureau of Indian Affairs, entered into
an agreement to lease pasture land to Fox from June to
October of 2017. Doc. 1 at 1. Fox paid the Colombes $950.00
and then $12, 800.00, but Colombe allegedly directed Fox to
remove his cattle and had someone else place cattle on the
property. Doc. 1 at 2. Fox claims that the superintendent of
the Rosebud Agency hosted a mediation during which the
Colombes agreed to repay half of the amount owed to Fox by
cashier's check by October 30, 2017, and the remaining
amount by November 15, 2017. Doc. 1 at 2. The Colombes have
not made either payment, and Fox wants the Colombes to pay
what is owed. Doc. 1 at 2-4. A letter from the Rosebud Agency
Superintendent appears to confirm Fox's allegation of the
mediated resolution, Doc. 1-1 at 8, and a short extension of
time for the Colombes to pay thereafter, Doc. 1-1 at 9. The
BIA, however, appears not to have been a party to the
agreement, but simply facilitated the mediation and
contracting between Fox and the Colombes. Doc. 1-1 at 10.
Colombes' Motion to Dismiss is a Fed.R.Civ.P. 12(b)(1)
facial challenge (as opposed to factual challenge) to the
existence of subject matter jurisdiction. When a facial
challenge is made to federal jurisdiction, "the court
restricts itself to the face of the pleadings, and the
non-moving party receives the same protections as it would
defending against a motion brought under Rule 12(b)(6)."
Jones v. United States, 727 F.3d 844, 846 (8th Cir.
2013). In short, this Court must accept the Plaintiffs
factual allegations as true and construe all inferences in
the Plaintiffs favor, but need not accept the Plaintiffs
legal conclusions. Retro Television Network, Inc. v.
Luken Commc'ns, LLC, 696 F.3d 766, 768-69 (8th Cir.
courts of course are "courts of limited
jurisdiction." Myers v. Richland Cnty., 429
F.3d 740, 745 (8th Cir. 2005). A plaintiff has the burden of
proving subject matter jurisdiction. V S Ltd. P'ship
v. Dep't of Hous. & Urban Dev., 235 F.3d 1109,
1112 (8th Cir. 2000). Rule 8 of the Federal Rules of Civil
Procedure requires a plaintiff to plead "the grounds for
the court's jurisdiction." Fed.R.Civ.P. 8(a)(1).
Complaint and Civil Cover Sheet reveal that the Colombes and
Fox are residents of South Dakota, and the Complaint seeks
less than $75, 000. Therefore, diversity jurisdiction under
28 U.S.C. § 1332--requiring both diversity of
citizenship and stakes exceeding $75, 000 exclusive of
interest and costs-does not exist.
subject matter jurisdiction under 28 U.S.C. § 1331
requires the presence of a federal question. Arbaugh v.
Y&H Corp, 546 U.S. 500, 513 (2006). Section 1331
provides that "district courts shall have original
jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States."
28 U.S.C. § 1331. A plaintiff successfully pleads
federal question jurisdiction "if a federal cause of
action appears on the face [of] a well-pleaded
complaint." Qglala Sioux Tribe v. C&W Enters.,
Inc., 487 F.3d 1129, 1131 (8th Cir. 2007). Fox's
Complaint does not reference any provision of "the
Constitution, laws, or treaties of the United States, "
and indeed his Civil Cover Sheet did not mark the box for
"Federal Question" as a basis for jurisdiction.
Doc. 2. There appears to be no constitutional provision,
federal statute or treaty that gives a federal district court
jurisdiction over South Dakota residents' dispute over a
lease for pasture land or refund for monies wrongfully
retained by South Dakota defendants who allegedly breached
such an agreement. This remains true even if the defendants
are members of a federally recognized Indian tribe and the
Superintendent was involved in trying to resolve the dispute.
Defendants submitted information suggesting that Fox filed a
similar complaint in tribal court, which appears to be an
available route for Fox to obtain judgment against the
this Court has jurisdiction in certain cases when the United
States or an agency thereof is a plaintiff or defendant.
Although Fox marked that both the plaintiff and defendant
were the United States on the Civil Cover sheet, Doc. 2,
neither Fox nor the Colombes are alleged to be someone acting
in an official capacity for the United States. Therefore, it
is hereby ORDERED that Defendants' ...