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Burns v. Brazzolotto

United States District Court, N.D. Alabama, Middle Division

April 18, 2018

TIMOTHY BURNS, Pro Se Plaintiff,



         This 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.[1] 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 ruling.[2]

         For the reasons stated herein, the Plaintiff's Motion for Judgment will be DENIED, and the Defendant's Motion To Dismiss will be GRANTED.

         I. STANDARD

         Rule 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.

         Where “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)).

         If the 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) (“Twombly”).

         A claim 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).

         Once a 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)).

         In this 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. 4(c)(1)).

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).


         This matter arises out of custody proceedings pertaining to A.B.[3], 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 ...

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