United States District Court, W.D. Louisiana, Shreveport Division
ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE
Plaintiff, Excell West, III ("Plaintiff), filed this
action against Krystal West ("Krystal"), Hawkeye
Lien Services ("Hawkeye"), and BMO Harris Bank, NA
("BMO"), alleging that they infringed on his
property and took it without his permission. Now pending
before the Court are three separate motions. Plaintiff has
filed a Motion for Summary Judgment pursuant to Federal Rule
of Civil Procedure 56 against BMO. [Record Document 11].
Defendant Hawkeye has filed a Motion to Dismiss for lack of
subject matter jurisdiction. [Record Document 18]. Defendant
BMO has filed a Motion to Dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6) or
alternatively, a Motion for a More Definite Statement
pursuant to Rule 12(e). [Record Document 28]. These motions
have been fully briefed.
reasons discussed below, the motions to dismiss filed by
Hawkeye [Record Document 18] and BMO [Record Document 28] are
hereby GRANTED and Plaintiffs claims are
hereby DISMISSED WITHOUT PREJUDICE.
Plaintiffs motion for summary judgment against BMO [Record
Document 11] is hereby DENIED AS MOOT.
the Court lacks subject matter jurisdiction over Plaintiffs
claims against Krystal, those claims are hereby
DISMISSED WITHOUT PREJUDICE.
Excell West, III, appearing pro se, filed suit in
this Court against Krystal and Hawkeye. Record Document 1.
Plaintiff claims that Krystal made a false contract with
Hawkeye to exercise control over his property without his
consent. Id. He asserts that they are
"infringing and trespassing upon [his] property using a
false document." Id. He claims that his Fourth
and Fifth Amendment rights are being violated because he
cannot enjoy his property and because his property has been
taken without a contract and without payment. Id.
Plaintiff seeks relief in the form of $500, 000 or the return
of his property. Id.
response to this complaint, Magistrate Judge Hornsby issued a
Memorandum Order, instructing Plaintiff to file an amended
complaint that set forth facts establishing that this Court
has jurisdiction over Plaintiffs claims. Record Document 3.
The Memorandum Order stated that Plaintiffs amended complaint
should (1) specify the law or legal theory that he relies
upon to assert a claim, (2) set forth a short and plain
statement of the facts that support such a claim, and (3)
allege with specificity the state in which each defendant is
a citizen. Id. at 1-2. The Memorandum Order also
noted that Plaintiff listed BMO as a defendant on his civil
cover sheet but did not mention BMO in the body of his
complaint. Id. at 2. Plaintiff was instructed to
clarify whether BMO is a defendant in this case, and if so,
to state a claim against BMO and specify its citizenship.
filed an amended complaint, stating that he brought this
lawsuit under 28 U.S.C. § 1331, 28 U.S.C. § 1332,
and 42 U.S.C. § 1983. Record Document 4, p. 1. Plaintiff
claims that Krystal and Hawkeye/BMO knowingly and intentionally
took land that was donated to him by his father. Id.
at 2. Although Plaintiffs claim is difficult to follow, he
asserts that Krystal executed a contract in which she falsely
claimed that Plaintiffs father, Excell West Jr., was her
sibling. Id. According to Plaintiff, Krystal is the
daughter of Excell West Jr.'s brother, Lorenzo West.
Id. He states that Krystal deceptively executed a
contract with "said corporation"-presumably
Hawkeye/BMO-on November 12, 2015, "by stating that [his]
father was a surviving heir and the brother of her
sibling," when in fact his father died on October 13,
2013. Id. The property that this dispute centers
around appears to be part of an inheritance from Plaintiffs
grandmother, Alta Salone Green Polk. Id; Record
Document 4-1, pp. 2 & 5. Plaintiff attached several
documents to his amended complaint, one of which reflects
that an entity referred to as "Hawkeye Lien Services/BMO
Harris" purchased a 1% interest in this disputed
property on June 7, 2016, through a tax sale. Record Document
4-1, pp. 3-4.
filed an answer in which it denied all of Plaintiff s
allegations of fact and asserted as affirmative defenses a
lack of subject matter jurisdiction, insufficient process and
service of process, and failure to state a claim upon which
relief can be granted. Record Document 8, pp. 1-2. Plaintiff
then filed a motion for summary judgment against BMO. Record
Document 11. Plaintiff claims that because BMO did not
"file an answer, defend or file a pretrial motion"
and did not show any genuine disputes of material fact,
Plaintiff is entitled to summary judgment. Id. at 1
& 4. Hawkeye filed a motion to dismiss, arguing that
Plaintiff fails to establish that this Court has
jurisdiction. Record Document 18. BMO filed a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1),
12(b)(5), and 12(b)(6), arguing that Plaintiff has failed to
effect proper service, failed to establish the Court's
subject matter jurisdiction, and failed to state a claim upon
which relief can be granted. Record Document 28.
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." Ramming v. U.S., 281 F.3d 158, 161
(5th Cir. 2001). Thus, the Court will begin by addressing
Hawkeye's and BMO's argument that Plaintiff has
failed to establish federal subject matter jurisdiction.
filed under Federal Rule of Civil Procedure 12(b)(1) allow a
defendant to challenge the subject matter jurisdiction of the
court to hear a case. Because federal courts are courts of
limited jurisdiction, subject matter jurisdiction must be
based on the United States Constitution or additional rules
promulgated by Congress. Meadaa v. K.A.P. Enters.
LLC, 09-cv-1211, 2011 WL 13073685, at *2 (W.D. La. Sept.
14, 2011). If such jurisdiction is lacking, the case is
properly dismissed. Home Builders Ass'n of Miss.,
Inc. v. City of Madison, Miss.,43 F.3d 1006');">143 F.3d 1006, 1010 (5th
Cir. 1998). Furthermore, federal courts are bound to examine
the basis of subject matter jurisdiction sua sponte
and dismiss the action if they lack subject matter
jurisdiction. Lane v. Halliburton,48');">529 F.3d 548, 565
(5th Cir. 2008) (quoting Union Planters Bank Nat'l
Ass'n v. Salih,457');">369 F.3d 457, 460 (5th Cir. 2004)
(reversed on jurisdictional challenge not raised until
appellate reply brief)). There are two main types of ...