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Hendrix Toutges v. McKaig

United States District Court, E.D. Tennessee, Knoxville Division

November 8, 2019

ANTHEA K. HENDRIX TOUTGES, Plaintiff,
v.
JENNIFER MCKAIG and DENNIS G MCKAIG, Defendants.

          POPLIN, JUDGE

          MEMORANDUM OPINION AND ORDER

          REEVES, UNITED STATES DISTRICT JUDGE

         This case concerns the limited conservatorship of Joel McKaig. Plaintiff Anthea K. Hendrix Toutges, [1] pro se, seeks to remove to this Court the case In re The Limited Conservatorship of Joel McKaig, in which she is the most-recent petitioner, and bring additional claims against Jennifer McKaig and Dennis McKaig (collectively “Defendants” or “original Defendants”). Plaintiff has filed her fifth amended complaint without leave of the Court or consent from opposing counsel and has made a flurry of voluminous filings in this case through substantial motion practice. Before the Court are four motions: (1) Plaintiff's motion for leave to proceed in forma pauperis [D. 1, 15]; (2) Defendants' motion to remand to state court [D. 8]; (3) Defendants' motion to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted; and (4) Defendants' motion to stay the case [D. 21]. The parties have responded to each and all are ripe for adjudication. Further, as leave to amend has not been granted, the Court will construe Plaintiff's third, fourth, and fifth “Amended Complaints” as motions to amend her complaint.

         As Plaintiff has blended the removed state court action with further allegations, the Court will attempt to partition the claims accordingly and address each in the proper context. To that end, the Court will first address Plaintiff's motion to proceed in forma pauperis, then address Defendant's motion to dismiss, Plaintiff's three additional amended complaints as motions to amend, Defendants' motion for remand, Defendants' motion to stay the case, and, lastly, Defendants' request for attorney's fees under 28 U.S.C. § 1447.

         I. Background

         Dating back to 2001, there has been litigation regarding the care of Joel McKaig, a ward of the State of Tennessee. See Petition for Appointment of Conservator, In re The Limited Conservatorship of Joel McKaig, No. 01CH1436 (Anderson Cty. Ch. Ct. May 11, 2001). On May 11, 2001, the State of Tennessee Department of Children's Services petitioned the Anderson County Chancery Court for the appointment of a conservator for Joel McKaig. At some point, Plaintiff, Joel McKaig's mother, was appointed as conservator for Joel McKaig. In August 16, 2018, Plaintiff was relieved of this role and Jennifer McKaig, Joel McKaig's sister, was appointed as conservator pursuant to an Agreed Final Judgment. See Agreed Final Judgment, In re The Limited Conservatorship of Joel McKaig, No. 01CH1436 (Anderson Cty. Ch. Ct. Aug. 16, 2018).

         On November 5, 2018, Plaintiff filed a petition to remove Jennifer McKaig as conservator for Joel McKaig. See Amended Petition for Removal of Conservator, In re The Limited Conservatorship of Joel McKaig, No. 01CH1436 (Anderson Cty. Ch. Ct. Nov. 5, 2018). Litigation ensued, resulting in a Temporary Restraining Order against Plaintiff. In July 2019, the Anderson County Chancery Court issued another Restraining Order against Plaintiff.

         On September 9, 2019, Plaintiff sought to remove her Petition [D. 9, 16], and ultimately the case, to this Court and moved to proceed in forma pauperis [D. 1, 15]. After Plaintiff twice amended her complaint [D. 4, 5], Defendant moved to remand the case back to the Anderson County Chancery Court on September 18, 2019 [D. 8]. Plaintiff responded twice [D. 10, 11]. As Plaintiff's complaint in this case added various federal and state law claims, Defendant also moved to dismiss the case for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted on September 27, 2019 [D. 13]. Plaintiff responded three times [D. 18, 19, 23] and again amended her complaint without leave of the Court or agreement of Defendants on September 30, 2019 [D. 17]. Defendants then moved to stay the case on October 8, 2019 [D. 21], which Plaintiff opposed [D. 22]. Plaintiff and Defendants also replied to the responses to the aforementioned motions. Finally, Plaintiff again amended her complaint without leave of the Court or agreement of the Defendants on October 30, 2019 and November 5, 2019 [D. 27, 28].

         II. Motions to Proceed in Forma Pauperis

         Plaintiff seeks to proceed in forma pauperis under 28 U.S.C. § 1915. The purpose of 28 U.S.C. § 1915 is to ensure that indigent litigants have meaningful access to the courts. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342 (1948); Neitzke v. Williams, 490 U.S. 319, 324 (1989). The statute therefore allows a litigant to commence a civil or criminal action in federal court without paying the administrative costs of the lawsuit. Denton v. Hernandez, 504 U.S. 25, 27 (1992).

         The Court's review of an in forma pauperis application is normally based solely on the affidavit of indigence. See Gibson v. R.G. Smith Co., 915 F.2d 260, 262-63 (6th Cir. 1990). The threshold requirement which must be met in order to proceed in forma pauperis is that the petitioner show, by affidavit, the inability to pay court fees and costs. 28 U.S.C. § 1915(a).

         However, one need not be absolutely destitute to enjoy the benefit of proceeding in forma pauperis. Adkins, 335 U.S. at 342. An affidavit to proceed in forma pauperis is sufficient if it states that the petitioner cannot, because of poverty, afford to pay for the costs of litigation and still pay for the necessities of life. Id. at 339. The decision to grant or deny such an application lies within the sound discretion of the Court. Phipps v. King, 866 F.2d 824, 825 (6th Cir. 1988). In the present case, the petitioner's Application to Proceed Without Prepayment of Fees and petitioner's economic status have been considered in making the decision of whether to grant leave to proceed in forma pauperis. The application sets forth grounds for so proceeding. The Applications to Proceed Without Prepayment of Fees will be granted. However, as the case will be dismissed herein, summons should not be issued.

         III. Motion to Dismiss

         Defendants have moved to dismiss the second amended complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. As previously noted, this case involves removal and added claims. The propriety of removal will be discussed infra, and the Court's analysis of jurisdiction and sufficiency focus on Plaintiff's additional claims. In the interest of thoroughness, the Court will first address questions of jurisdiction, then turn to the sufficiency of the claims.

         A. Standard of Review

         “[T]he allegations of a complaint drafted by a pro se litigant are held to less stringent standards than formal pleadings drafted by lawyers in the sense that a pro se complaint will be liberally construed in determining whether it fails to state a claim upon which relief could be granted.” Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir.1991) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the “lenient treatment generally accorded to pro se litigants has limits.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). Courts have not been “willing to abrogate basic pleading essentials in pro se suits.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989) (citing cases). Liberal federal pleading standards do not permit litigants-even those acting pro se-to proceed on pleadings that are not readily comprehensible. Cf. Becker v. Ohio State Legal Servs. Ass'n, 19 Fed.Appx. 321, 322 (6th Cir. 2001) (upholding district court's dismissal of pro se complaint containing “vague and conclusory allegations unsupported by material facts”); Janita Theresa Corp. v. United States Attorney, No. 96-1706, 1997 WL 211247, at *1 (6th Cir. Apr.28, 1997) (upholding district court's dismissal of pro se complaint whose allegations were “far too muddled to serve as a basis for a proper suit”).

         Motions to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) generally come in two varieties. First, a facial attack on the basis for subject matter jurisdiction alleged in a complaint merely questions or tests the sufficiency of the pleading. In considering such facial attacks, the correct standard of review for a trial court is to take the allegations of fact in the complaint as being true. Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). On the other hand, when a court reviews a complaint which is under factual attack by a defendant, the allegations of fact in the complaint are not presumed to be true. If there is a factual dispute, the district court must weigh the conflicting evidence to determine whether jurisdiction exists. The district court has broad discretion to consider affidavits, documents outside the complaint, and to even conduct a limited evidentiary hearing, if necessary, to resolve disputed jurisdictional facts. Id. Consideration of such evidence does not convert the motion into one for summary judgment.

         When considering a motion to dismiss under Rule 12(b)(6), a court must accept the complaint's factual allegations as true and construe the complaint in the light most favorable to the plaintiff. Trzebuckowski v. City of Cleveland, 319 F.3d 853, 855 (6th Cir. 2003). A court may not grant a Rule 12(b)(6) motion based on disbelief of a complaint's factual allegations, Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990), but the court need not accept naked assertions, such as “legal conclusions or unwarranted factual inferences.” Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). Indeed, “[the] complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.” Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434 (6th Cir. 1988).

         B. Subject Matter Jurisdiction

         Defendants have attacked the sufficiency of jurisdiction based on the complaint itself, which is a facial attack. As such, the Court construes the allegations of fact in the complaint as being true.

         In considering whether to dismiss a complaint for lack of subject matter jurisdiction, the plaintiff bears the burden of providing the existence of subject matter jurisdiction. Walburn v. Lockheed Martin Corp., 431 F.3d 966, 970 (6th Cir. 2006). A plaintiff, even one who is proceeding pro se, must comply with basic pleading requirements and is prohibited from “simply referencing a federal statute or constitutional provision” Bryant v. U.S. Atty. Gen., 2006 WL 2612730 at *1, 3 (E.D. Tenn. Sept 8, 2006).

         Sections 1331 and 1332 set forth the statutory bases for this court's subject matter jurisdiction. See 28 U.S.C. §§ 1331, 1332. Section 1331 governs “federal question jurisdiction, which requires a plaintiff to plead a colorable claim that arises under the United States Constitution or federal statutes enacted by Congress.” See 28 U.S.C. § 1331. Section 1332 applies to case arising under diversity jurisdiction. See 28 U.S.C. § 1332.

         Here, Plaintiff asserts that this Court “has original jurisdiction under 28 U.S.C. § 1331”[2]and references several federal statutes. However, these unexplained references to federal statutes fall short of even the lenient pleading standards afforded to pro se plaintiffs. As is discussed infra, the federal statutes cited to do not provide a cause of action and, likewise, do not provide a basis for federal question jurisdiction.

         As for diversity jurisdiction, Plaintiff has not alleged a basis for diversity jurisdiction beyond a checked box on the civil cover sheet. Nevertheless, Plaintiff does allege that she is a resident of Tennessee, Jennifer McKaig is a resident of New York, and Dennis McKaig is a resident of California, satisfying the diversity requirement. However, Plaintiff has not alleged damages, instead seeking injunctive relief. In actions seeking equitable relief, “the amount in controversy is measured by the value of the object of the litigation.” Hunt v. Wash. State Apple Adver. Comm'n., 432 U.S. 333, 347 (1977). The value of the object of the litigation “is not necessarily the money judgment sought or recovered, but rather the value of the consequences which may result from the litigation.” Freeland v. Liberty Mut. Fire Ins. Co., 632 F.3d 250, 253 (6th Cir. 2011) (quoting Lodal, Inc. v. Home Ins. Co. of Ill., No. 95-2187, 156 F.3d 1230, 1998 WL 393766, at *2 (6th Cir. June 12, 1998)). Here, Plaintiff has sought the dissolution of a state court's injunction, transfer of conservatorship, mandatory family therapy, injunctive relief against Defendants from “disparaging” Plaintiff, compelled transfer of the state court case, removal of the state court judge, and replacement of Joel McKaig's guardian ad litem and attorney ad litem. Much of this relief sought is well beyond the limited power and authority of this Court. The forms of relief that may be valid have not been alleged to, nor appear to, exceed the $75, 000 threshold.

         Because Plaintiff has not alleged a valid federal question or a sufficient basis for diversity jurisdiction, Plaintiff has not met her burden of providing the existence of subject matter jurisdiction.

         C. Failure to State a Claim Upon Which ...


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