United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' Motion to
Dismiss for lack of Standing, [Doc. No. 14]. Plaintiff
opposes the motion. For the reasons set forth below,
Defendants' motion is well taken and will be granted.
Complaint alleges Defendants wrongfully foreclosed
Plaintiff's deceased father's property and
“theft of personal property” by failing to send
out an “Important Notice” as required by HUD
and/or FHA guidelines relating to reverse mortgages,
foreclosing the subject property and removing the contents
thereof. The Complaint seeks recovery of damages allegedly
suffered by the estate of Plaintiff's father, Kenneth
Wayne Bray. The Complaint identifies Barry Fishbach as the
personal representative of the Estate. Further, the Complaint
identifies the heirs of the Estate as plaintiff and his
estranged brother, however, the Complaint also details that a
finding of heirship has not been made in the Missouri Probate
move to dismiss this matter for lack of subject matter
jurisdiction by reason of the fact that it has not been
brought by the proper party, i.e., the personal
representative of the estate, Barry Fishbach.
motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1) may be either a “facial”
challenge based on the face of the pleadings, or a
“factual” challenge, in which the court considers
matters outside the pleadings. See Titus v.
Sullivan, 4 F.3d 590, 593 (8th Cir. 1993); Osborn v.
United States, 918 F.2d 724, 729, n. 6 (8th Cir. 1990);
C.S. ex rel. Scott v. Mo. State Bd. of Educ., 656
F.Supp.2d 1007, 1011 (E.D. Mo. 2009). Here, Defendant's
challenge is based on the face of the pleadings and is
therefore a facial attack. In evaluating a facial attack,
“the court restricts itself to the face of the
pleadings and the non-moving party receives the same
protections as it would defending against a motion brought
under Rule 12(b)(6).” Branson Label, Inc. v. City
of Branson, Mo., 793 F.3d 910, 914 (8th Cir. 2015)
(quoting Osborn, 918 F.2d at 729 n. 6). The court
must accept as true all of the factual allegations in the
complaint, but it need not accept legal conclusions.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Article III, § 2 of the United States Constitution,
federal jurisdiction is limited to “Cases” and
“Controversies.” U.S. Const. Art. III, § 2.
“‘One element of the case-or-controversy
requirement' is that plaintiffs ‘must establish
that they have standing to sue.' ” Clapper v.
Amnesty Int'l U.S.A., 133 S.Ct. 1138, 1146 (2013)
(quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)).
The “irreducible constitutional minimum” of
standing consists of three elements. Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1547 (2016) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
“The plaintiff must have (1) suffered an injury in
fact, (2) that is fairly traceable to the challenged conduct
of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Id. “The
plaintiff, as the party invoking federal jurisdiction, bears
the burden of establishing these elements.”
Id. (citing FW/PBS, Inc. v. Dallas, 493
U.S. 215, 231 (1990)). Where a case is at the pleading stage,
the plaintiff must “clearly...allege facts
demonstrating each element.” Id. (quoting
Warth v. Seldin, 422 U.S. 490, 518 (1975)).
urge dismissal for lack of standing because Plaintiff is not
the personal representative of the Estate of Kenneth Wayne
Bray, original owner of the subject property.
473.270 of the Missouri Revised Statutes provides:
and administrators shall collect all money and debts of every
kind due to the decedent, and give receipts and discharges
therefor, and shall commence and prosecute all actions which
may be maintained and are necessary in the course of his
administration, and defend all actions brought against him.
decedent's cause of action can only survive if brought by
a personal representative of his estate appointed by a
probate court. Johnson v. Akers, 9 S.W.3d 608,
609-610 (Mo.2000). “A personal representative of an
estate is appointed by the probate division of the circuit
court in the applicable jurisdiction upon filing of letters
of administration with the court.” Id. (citing
Mo.Rev.Stat. § 473.110).
admits he is not the personal representative of his
father's estate. Plaintiff, therefore, lacks standing to
bring this claim, so this case must, necessarily, be
dismissed. “Standing is jurisdictional and a lack of
standing cannot be waived, ” under the doctrine of
laches or otherwise. See Sauter v. Schnuck Market,
Inc.,803 S.W.2d 54, 55 ...