United States District Court, M.D. Louisiana
RULING AND ORDER
W. deGRAVELLES JUDGE
matter comes before the Court on the Second Motion to Dismiss
(Doc. 16) filed by defendant Dan Scheuermann
(“Defendant” or “Scheuermann”). What
the Court construes as an opposition was filed by pro
se plaintiff Robert Robertson (“Robertson”
or “Plaintiff”). (Doc. 18.) For the following
reasons, the motion is granted in part and the case is
dismissed without prejudice.
filed suit against Baton Rouge BREC (“BREC”) and
Scheuermann on January 29, 2018. (Doc. 1.) While it is not
entirely clear, it appears from the Complaint that Plaintiff
claims that BREC discriminated against him by hiring a white
man and also failed to pay him overtime. (Doc. 1 at 1-2.) His
claim against Scheuermann appears to be one of legal
malpractice, Plaintiff alleging that he paid Scheuermann $5,
000 to represent him in the employment discrimination suit
and that Scheuermann filed a claim on his behalf with the
Equal Employment Opportunity Commission (“EEOC”)
that was untrue. (Id.)
August 16, 2018, the Magistrate Judge recommended dismissing
Plaintiff's case for failing to follow multiple orders to
file proof of service into the record. (Doc. 8.) The
following day, Scheuermann filed a Motion to Dismiss (Doc.
9), which Plaintiff opposed on August 27, 2018. (Doc. 11.)
Scheuermann filed a reply brief on August 28, 2018. (Doc.
12-3.) When Plaintiff failed to timely object to the Report
and Recommendation, the Court, on November 2, 2018, adopted
in part and rejected in part the recommendation and dismissed
Plaintiff's claims against BREC. (Doc. 15.)
meantime, on October 30, 2018, the Court denied without
prejudice Scheuermann's Motion to Dismiss for failing to
provide the Court with legal authority supporting his motion.
(Doc. 14.) On November 11, 2018, Scheuermann filed the Second
Motion to Dismiss.
STANDARDS OF REVIEW
Rule 12(b)(1) Standard
the standard for Rule 12(b)(1) motions, the Fifth Circuit has
Motions filed under Rule 12(b)(1) of the Federal Rules of
Civil Procedure allow a party to challenge the subject matter
jurisdiction of the district court to hear a case.
Fed.R.Civ.P. 12(b)(1). Lack of subject matter jurisdiction
may be found in any one of three instances: (1) the complaint
alone; (2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supplemented by
undisputed facts plus the court's resolution of disputed
facts. Barrera-Montenegro v. United States, 74 F.3d
657, 659 (5th Cir. 1996).
The burden of proof for a Rule 12(b)(1) motion to dismiss is
on the party asserting jurisdiction. McDaniel v. United
States, 899 F.Supp. 305, 307 (E.D. Tex. 1995).
Accordingly, the plaintiff constantly bears the burden of
proof that jurisdiction does in fact exist. Menchaca v.
Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.
When 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. Hitt v. City of Pasadena, 561 F.2d
606, 608 (5th Cir. 1977) (per curiam). . . .
In examining a Rule 12(b)(1) motion, the district court is
empowered to consider matters of fact which may be in
dispute. Williamson v. Tucker, 645 F.2d 404, 413
(5th Cir.1981). Ultimately, a motion to dismiss for lack of
subject matter jurisdiction should be granted only if it
appears certain that the plaintiff cannot prove any set of
facts in support of his claim that would entitle plaintiff to