United States District Court, W.D. Missouri, Western Division
ORDER GRANTING DEFENDANTS' MOTION TO
ROSEANN A. KETCHMARK, JUDGE.
the Court is Defendant State of Missouri, Consumer Protection
Division (“Defendant”)'s Motion to Dismiss.
(Doc. 12.) The Motion to Dismiss is fully briefed. (Docs. 13,
15, 16.) After careful consideration and for the reasons
below, the Motion to Dismiss (Doc. 12) is
GRANTED, and this case is DISMISSED
filed this action in this Court on October 25, 2018. (Doc.
4.) After receiving leave to amend, Plaintiff filed his
Amended Complaint on November 13, 2018. (Doc. 7.) Plaintiff
alleges Defendant violated Plaintiff's Fourteenth
Amendment equal protection rights. Plaintiff alleges that
Defendant failed to properly respond to Plaintiff's
grievances concerning a series of incidents that occurred at
Plaintiff's residence at the Welcome Home Estates in
Grandview, Missouri. Plaintiff alleges that Defendant's
failure to properly respond to Plaintiff's grievances
violated the Fourteenth Amendment.
argues dismissal is proper because this Court lacks subject
matter jurisdiction over this action as Defendant is entitled
to sovereign immunity. Defendant also argues that even if the
Court finds it has subject matter jurisdiction over the case,
Plaintiff has failed to state a claim under Fed.R.Civ.P.
Rule 12(b)(1) motion challenges the federal court's
subject matter jurisdiction over a cause of action.”
Knox v. St. Louis City Sch. Dist., 2018 U.S. Dist.
LEXIS 209123, at *2 (E.D. Mo. Dec. 12, 2018). When asserting
a Rule 12(b)(1) motion to dismiss, the defendant must either
attack the facial or factual basis for subject matter
jurisdiction. Osborn v. United States, 918 F.2d 724,
729 n.6 (8th Cir. 1990). The plaintiff has the burden of
proving subject matter jurisdiction regardless of whether the
defendant makes a facial or factual attack. V S Ltd.
P'ship v. Dep't of Hous. & Urban Dev., 235
F.3d 1109, 1112 (8th Cir. 2000). During a facial attack,
“the court restricts itself to the face of the
pleadings, and the nonmoving party receives the same
protections as it would defending against a motion brought
under Rule 12(b)(6).” Jones v. United States,
727 F.3d 844, 846 (8th Cir. 2013) (internal quotation marks
and citation omitted).
Fed.R.Civ.P. 12(b)(1) - Lack of Subject Matter
the Eleventh Amendment and constitutional principles of
sovereign immunity, an unconsenting State is immune from
suits brought in federal courts by her own citizens.”
Fryberger v. Univ. of Arkansas, 889 F.3d 471, 473
(8th Cir. 2018). “A suit generally may not be
maintained directly against the state itself, or against an
agency or department of the State, unless the State has
waived its sovereign immunity.” Florida Dept. of
State v. Treasure Salvors, Inc., 458 U.S. 670, 684
(1982) (per curiam). “An effective waiver of sovereign
immunity requires an “intentional relinquishment or
abandonment of a known right or privilege.” Doe v.
Nebraska, 345 F.3d 593, 600 (8th Cir. 2003). “In
assessing whether there has been a knowing waiver of
sovereign immunity, courts must ‘indulge in every
reasonable presumption against waiver.'”
Id. (citation omitted). “A state may waive its
immunity by explicitly specifying its intention to subject
itself to suit or by voluntarily participating in federal
spending programs where Congress expressed a clear intent to
condition receipt of federal funds on a state's consent
to waive its sovereign immunity.” Id. at 597.
It is Plaintiff's burden to show that Defendant has
waived sovereign immunity or that a statutory exception to
immunity applies. Johnson v. City of Ferguson, 2016
U.S. Dist. LEXIS 33011, at *30-31 (E.D. Mo. Mar. 15, 2016).
Plaintiff's suit against Defendant is a suit against the
State. Plaintiff has neither alleged that Defendant waived
sovereign immunity nor that an exception to sovereign
immunity applies. Further, while Plaintiff captions this
action with Defendant State of Missouri, Consumer Protection
Division as the only defendant in this case, Plaintiff'
Amended Complaint alleges “[t]he defendant in this case
is Mr. Joshua D. Hawley, Missouri's Attorney
General.” (Doc. 7, ¶ 2.) While Defendant Hawley is
an individual, he is named in his role as Attorney General.
Therefore, the suit against Defendant Hawley is a suit
against him in his official capacity as attorney general.
See Baker v. Chisom, 501 F.3d 920, 923 (8th Cir.
2007) (“[i]f a plaintiff's complaint is silent
about the capacity in which [he] is suing the defendant, we
interpret the complaint as including only official-capacity
claims” (internal quotation marks and citation
omitted). When state officials are sued in their official
capacities, sovereign immunity bars damages actions against
them. Brock v. Spalding, 2018 U.S. Dist. LEXIS
102074, at *3 (W.D. Mo. June 19, 2018). Accordingly, no
matter whether Plaintiff sued the State itself or the
Attorney General, Plaintiff's suit is barred by sovereign
immunity. Therefore, this Court lacks subject matter
jurisdiction over this case.
Fed.R.Civ.P. 12(b)(6) - Failure to State a Claim
the Court has determined it does not have subject matter
jurisdiction over this case, the Court cannot adjudicate the
merits of Defendant's Rule 12(b)(6) argument. See
Bright v. United States Dep't of ...