United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY UNITED STATES MAGISTRATE JUDGE.
Christian, proceeding pro se, brought this action under 42
U.S.C. § 1983, alleging that various individuals
violated her civil rights, specifically, “[t]he right
to direct the upbringing of my son or to care for him,
” and “my freedom of speech.” Docket No. 1,
p. 3. She further alleges that “[e]ach of the
defendants used their state appointed titles to violate
several of my civil rights: 1st, 4th,
6th, 7th, 8th,
9th, [and] 14th.” Id. at
8. The events leading to this action allegedly relate to the
removal of Ms. Christian's son from her home and custody
following an altercation at his school involving the school
principal. Id. at 14-17. Ms. Christian asserts that
in March 2016, a DCS worker came to her home and searched it
based on “allegations, ” and in April 2016, DCS
workers came to her home and removed her son. Id. at
8. Ms. Christian named a total of fifteen individual
Defendants, including a juvenile court judge and various
employees of the Tennessee Department of Children's
Services (“DCS”), including Chelsea Wade and
Caitlyn Febles. Id. at 3. This matter is now before
the Court upon a Motion to Dismiss filed by Ms. Wade and Ms.
Febles (“DCS Defendants”). Docket No. 15. They
have also filed a Supporting Memorandum of Law. Docket No.
16. The DCS Defendants argue that the claims against them
should be dismissed because: 1) the Court lacks subject
matter jurisdiction under the doctrine of sovereign immunity
and the domestic-relations exception; 2) the DCS Defendants
were not properly served; and 3) Ms. Christian has failed
“to state any claim against the DCS Defendants.”
Id. at 1-2. Ms. Christian has not responded to the
Motion. For the reasons set forth below, the Court recommends
that the DCS Defendants' Motion be GRANTED.
LAW AND ANALYSIS
Failure to Respond
noted above, Ms. Christian has not responded to the DCS
Defendants' Motion to Dismiss. The Court construes the
failure to respond to the Defendants' arguments as a
waiver of whatever responsive arguments Ms. Christian might
have had. Humphrey v. United States AG Office, 279
Fed.Appx. 328, 331 (6th Cir. 2008) (“where, as here,
plaintiff has not raised arguments in the district court by
virtue of his failure to oppose defendants' motions to
dismiss, the arguments have been waived, ”) citing
Resnick v. Patton, 258 Fed.Appx. 789 (6th Cir. 2007).
See also M.D. Tenn. Local Rule 7.01(a)(3) (“If
a timely response is not filed, the motion shall be deemed to
be unopposed . . . .”). Nevertheless, since granting
Defendants' Motion would be a final disposition of the
case, the Court will review the matter for legal sufficiency.
See Maynard v. Hale, No. 3:11-cv-1233, 2012 U.S.
Dist. LEXIS 114136 at *3, 2012 WL 3401095 (M.D. Tenn. Aug.
Subject Matter Jurisdiction
there is a question as to whether the court has subject
matter jurisdiction, it must be resolved, even if it is not
raised by a party. See Answers in Genesis, Inc., v.
Creation Ministries Int'l, Ltd., 556 F.3d 459, 465
(6th Cir. 2009) (“federal courts have a duty to
consider their subject matter jurisdiction in regard to every
case and may raise the issue sua sponte”).
“Federal courts are courts of limited jurisdiction.
They possess only that power authorized by the Constitution
and statute . . . and the burden of establishing the contrary
rests upon the party asserting jurisdiction.”
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,
377, 114 S.Ct. 1673 (1994); see also Ins. Corp. of
Ireland, Ltd. V. Compagnie des Bauxites de Guinee, 456
U.S. 694, 701, 102 S.Ct. 2099 (1982) (“Federal courts
are courts of limited jurisdiction. The character of the
controversies over which federal judicial authority may
extend are delineated in Art. III, § 2, cl. 1.
Jurisdiction of the lower federal courts is further limited
to those subjects encompassed within a statutory grant of
jurisdiction”). Under Rule 12(h)(3) of the Federal
Rules of Civil Procedure, “[i]f the court determines at
any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”
Attacks on Subject Matter Jurisdiction
to dismiss for lack of subject matter jurisdiction fall into
two general categories: facial attacks and factual attacks.
United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.
1994). A facial attack is a challenge to the sufficiency of
the complaint; in considering the motion, the court must
accept the material allegations of the complaint as true and
construe them in the light most favorable to the nonmoving
party. Id.; see also Ohio Nat'l Life Ins.
Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990).
A factual attack is a challenge to the factual existence of
subject matter jurisdiction. No. presumptive truthfulness
applies to the factual allegations, and the court can weigh
the evidence in order to satisfy itself as to the existence
of its jurisdiction to hear the case. Ritchie, 15
F.3d at 598; Moir v. Greater Cleveland Reg'l Transit
Auth., 895 F.2d 266, 269 (6th Cir. 1990). “When a
Rule 12(b)(1) motion attacks the factual basis for
jurisdiction, the district court must weigh the evidence and
the plaintiff has the burden of proving that the court has
jurisdiction over the subject matter.” Golden v.
Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005).
The DCS Defendants contend that this case falls within the
domestic relations exception to federal jurisdiction. Docket
No. 16, p. 3-4. Thus, they make a factual attack on
The Domestic Relations Exception to Federal
the domestic relations exception, federal courts are
precluded from exercising jurisdiction over cases whose
substance is primarily domestic relations. Chambers v.
Michigan, 473 Fed.Appx. 477, 478 (6th Cir. 2012);
citing Barber v. Barber, 62 U.S. 582, 584, 16 L.Ed.
226 (1858). This exception to federal jurisdiction “is
supported by sound ...