United States District Court, D. Montana, Missoula Division
JOSHUA MAN OF GOD, HOROWITZ FAMILY, and DAVID MAN OF GOD, HOROWITZ FAMILY, Plaintiffs,
TIM FOX et al., Defendants.
L. Christensen, Chief Judge United States
17, 2017, Plaintiffs filed their Complaint purporting to
assert 18 separate causes of action against the State of
Montana, all of the State of Montana's agents, and all of
the State of Montana's public trustees and employees.
(Doc. 1) On May 31, 2017, Magistrate Judge Jeremiah C. Lynch
filed his Findings and Recommendations recommending that
Plaintiffs action be dismissed for lack of jurisdiction
without leave to amend. (Doc. 5 at 6.) Judge Lynch noted that
Plaintiffs' "implausible and frivolous
allegations" were devoid of any factual basis or legal
claim upon which the Court's jurisdiction could be
founded. (Id.) Further Judge Lynch found that the
jurisdictional defects in Plaintiffs' Complaint could not
be cured by the "addition of further facts or
claims." (Id.) On June 6, 2017, Plaintiffs
filed an Amended Complaint (Doc. 7) which was superseded
shortly thereafter by the filing of yet another Amended
Complaint on June 13, 2017 (Doc. 11). Plaintiffs also timely
filed an objection to Judge Lynch's Findings and
Recommendations on June 15, 2017. (Doc. 13.)
18, 2017, the Court modified in part and rejected in part
Judge Lynch's Findings and Recommendations. (Doc. 18 at
5.) In doing so, the Court dismissed Plaintiffs' Second
Amended Complaint (Doc. 11) without prejudice and gave
Plaintiffs 21 days to file an amended pleading pursuant to
Eldridge v. Block, 832 F.2d 1132, 1135-36 (9th Cir.
1987). (Doc. 18 at 4-5.) After laborious and liberal
interpretation of Plaintiffs' Second Amended Complaint,
the Court found that it contained only vague and conclusory
statements which failed to allege a viable claim for relief.
The Court stated that a "pleading that states a claim
for relief must contain ... a short and plain statement of
the claim showing that the pleader is entitled to
relief." (Id. at 3 (quoting Fed. Rule Civ. P.
8(a)(2)).) Further, the Court explained that Rule 8's
pleading standard "does not require detailed factual
allegations, but it demands more than an unadorned,
(Id. at 3-4 (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)).) Importantly, in
giving Plaintiffs leave to file an amended pleading, the
Court cautioned Plaintiffs that "failure to allege a
cognizable claim upon which relief may be granted will result
in dismissal of this matter with prejudice."
(Id. at 4.)
the Court is a "Notice" filed by Plaintiffs
including numerous separately signed pages each titled
"Common Law Claim to be Heard by a Jury in the Superior
Court of Record at Common Law, Federal Article III
Jurisdiction." (Doc. 19.) As this document was filed
within the time frame the Court allotted to Plaintiffs for
the filing of an amended pleading and purports to assert 11
claims against 34 separate defendants, the Court will
liberally construe this as Plaintiffs' Third Amended
the liberal construction and interpretation afforded
Plaintiffs' Third Amended Complaint, dismissal with
prejudice is warranted in this matter. Plaintiffs have
received repeated and thorough explanation of the rules of
procedure in both Judge Lynch's Findings and
Recommendations (Doc. 5) and this Court's previous Order
(Doc. 18). Plaintiffs have also been afforded an opportunity
to implement this instruction by filing a third amended
complaint. (Doc. 18 at 4.) Additionally, Plaintiffs received
a warning that failure to plead a cognizable claim upon which
relief could be granted would result in their case being
dismissed with prejudice. (Id.) Despite all of this,
Plaintiffs' Third Amended Complaint wholly fails to
allege a claim upon which relief may be granted.
se litigants, Plaintiffs are bound by the rules of procedure.
Ghazali v. Morcm, 46 F.3d 52, 54 (9th Cir. 1995).
Pleadings in federal court must set forth sufficient
allegations to invoke the jurisdiction of the Court.
Fed.R.Civ.P. 8(a)(1). The burden is on the plaintiff to
establish jurisdiction. Farmers Ins. Ex. v. Portage La
Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir.
1990). Judge Lynch previously explained the grounds for
establishing either diversity or federal question
jurisdiction in his Findings and Recommendations. (Doc. 5 at
2-6.) As has also been previously stated, a pleading must
contain "a short and plain statement of the claim
showing that the pleader is entitled to relief." (Doc.
18 at 3 (quoting Fed. Rule Civ. P. 8(a)(2)).) Again, the
complaint must contain more "than an unadorned,
(Id. at 3-4 (quoting Ashcroft, 556 U.S. at
678).) A district court may sua sponte dismiss a
complaint for failure to state a claim or whenever it appears
that jurisdiction is lacking. Fed.R.Civ.P. 12(h)(3);
Fiedler v. Clark, 714 F.2d 77, 78-79 (9th Cir.
1983); Omar v. Sea-LandServ., Inc., 813 F.2d 986,
991 (9th Cir. 1987).
the Third Amended Complaint does not cure any of the defects
stressed in previous orders of the Court. The pleading is
devoid of any attempt to establish jurisdiction other than
the inclusion of the words "Federal Article III
Jurisdiction" in the title of each page. (Doc. 19 at
1-51.) Additionally, the pleading is completely devoid of any
factual support and amounts to a litany of "unadorned,
the-defendant-unlawfully-harmed-me" accusations. (Doc.
19.) Accordingly, IT IS ...