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Robertson v. Scheuermann

United States District Court, M.D. Louisiana

January 3, 2019

ROBERT ROBERTSON
v.
DAN M. SCHEUERMANN

          RULING AND ORDER

          JOHN W. deGRAVELLES JUDGE

         This 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.

         I. PROCEDURAL BACKGROUND

         Robertson 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.)

         On 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.)

         In the 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.

         II. STANDARDS OF REVIEW

         A. Rule 12(b)(1) Standard

         Concerning the standard for Rule 12(b)(1) motions, the Fifth Circuit has explained:

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. 1980).
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 ...

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