United States District Court, N.D. Alabama, Middle Division
VIRGINIA EMERSON HOPKINS, UNITED STATES DISTRICT JUDGE.
matter is before the court on the Motion To Dismiss filed by
Defendant Sarah Brazzolotto (the “Motion”). (Doc.
16). The Motion is brought pursuant to Rules 12(b)(1), (5),
and (6) of the Federal Rules of Civil
Procedure. The Plaintiff, who is appearing pro
se, was advised by this Court of the nature of the
motion and his need to respond to it no later than April 4,
2018. (Doc. 17). In response, on March 20, 2018, the
Plaintiff filed three separate documents opposing the motion.
(Docs. 19, 20, 21). That same day, he also filed a
“Motion for Judgment.” (Doc. 18). The Court has
considered all of these responses in its
reasons stated herein, the Plaintiff's Motion for
Judgment will be DENIED, and the
Defendant's Motion To Dismiss will be
12(b)(1) of the Federal Rules of Civil Procedure provides for
the dismissal of an action where the court finds that it does
not have subject matter jurisdiction. Rule 12(b)(6) provides
for dismissal for failure of a party to state a claim for
which relief can be granted. Rule 12(b)(5) provides for
dismissal where service of process is insufficient.
“a Rule 12(b)(1) motion is filed in conjunction with
other Rule 12 motions, the court should consider the Rule
12(b)(1) jurisdiction attack before addressing any attack on
the merits.” Ramming v. United States, 281
F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of
Pasadena, 561 F.2d 606, 608 (5th Cir. 1977). 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 relief.” Ramming,
281 F.3d at 161. Lack of subject matter jurisdiction may be
found through an examination of: (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.
See id. Because the burden of proof on a motion to
dismiss for lack of subject matter jurisdiction is on the
party asserting jurisdiction, plaintiff “constantly
bears the burden of proof that jurisdiction does in fact
exist.” See Ramming, 281 F.3d at 161 (citing
McDaniel v. United States, 899 F. Supp.
305, 307 (E.D. Tex. 1995), and Menchaca v. Chrysler
Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)).
court determines that subject matter jurisdiction exists, it
must then address the Rule 12 (b)(6) motion.
Ramming, 281 F.3d at 161 (citing Hitt, 561
F.2d at 608). Generally, the Federal Rules of Civil Procedure
require only that the complaint provide “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a). However, to
survive a motion to dismiss brought under Rule 12(b)(6), a
complaint must “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)
has facial plausibility “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556)
(“Iqbal”). That is, the complaint must
include enough facts “to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555 (citation and footnote omitted). Pleadings that contain
nothing more than “a formulaic recitation of the
elements of a cause of action” do not meet Rule 8
standards, nor do pleadings suffice that are based merely
upon “labels or conclusions” or “naked
assertion[s]” without supporting factual allegations.
Id. at 555, 557 (citation omitted).
claim has been stated adequately, however, “it may be
supported by showing any set of facts consistent with the
allegations in the complaint.” Id. at 563
(citation omitted). Further, when ruling on a motion to
dismiss, a court must “take the factual allegations in
the complaint as true and construe them in the light most
favorable to the plaintiff.” Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008) (citing
Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308
(11th Cir. 2006)).
case, the Rule 12(b)(5) motion is reviewed in light of the
requirements of Rule 12(m). “A plaintiff is responsible
for serving the defendant with both a summons and the
complaint within the time permitted under Rule 4(m).”
Anderson v. Osh Kosh B'Gosh, 255
Fed.Appx. 345, 347 (11th Cir. 2006) (citing Fed.R.Civ.P.
If a defendant is not served within 90 days after the
complaint is filed, the court--on motion or on its own after
notice to the plaintiff--must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m). “‘Good cause' exists
‘only when some outside factor [, ] such as reliance on
faulty advice, rather than inadvertence or negligence,
prevented service.'” Anderson, 255
Fed.Appx. at 347 (quoting Prisco v. Frank, 929 F.2d
603, 604 (11th Cir.1991) (discussing “good cause”
under former Rule 4(j)), superseded in part by rule as stated
in Horenkamp v. Van Winkle And Co., 402 F.3d 1129,
1132 (11th Cir. 2005)). “[E]ven in the absence of
‘good cause, ' district courts have the discretion
to extend the time for service of process.”
Anderson, 255 Fed.Appx. at 347 (citing
Horenkamp, 402 F.3d at 1132-33).
ALLEGATIONS IN THE COMPLAINT
matter arises out of custody proceedings pertaining to
A.B., the Plaintiff's minor child. On
August 17, 2017, Turquoise Garnett, A.B.'s sister, filed
a Dependency Petition in the Juvenile Court of St. Clair
County. As a result of that petition, on October 4, 2017, via
an Emergency Temporary Order entered by Judge Robert Minor,
the Juvenile Court awarded “care, custody[, ] and
control” of A.B. to Garnett. (Doc. 1-1 at 4). That same
date, the Circuit Court of St. Clair County denied a petition
by Sharon Evans, A.B.'s mother, to modify custody. (Doc.
1-1 at 6). The nature of the modification sought is unclear,
but the Court assumes that the Circuit Court had previously
granted Burns custody of A.B. and, in light of the Dependency
Petition filed by Garnett, Evans sought to have custody
vested with Evans. In any case, as part of the proceedings in
the Circuit Court, Sarah ...