*

This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

June 18, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BEVERLY FAYE BLYTHE,

Plaintiff - Appellant, No. 10-2047

v. (D. New Mexico)

SOUTHWEST AIRLINES

COMPANY,

Defendant - Appellee.

(D.C. No. CIV-09-00739-JCH-RLP)

ORDER AND JUDGMENT*

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Plaintiff and appellant Beverly Faye Blythe, proceeding pro se, appeals

several adverse rulings by the district court in her action against Southwest
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Airlines for an injury she allegedly received while on a Southwest flight. We

affirm.

BACKGROUND

On July 27, 2009, Ms. Blythe filed a form complaint, purportedly pursuant

to 42 U.S.C. § 1983, based on the following claimed injury:

On July 24, 2006, I was traveling on Southwest Airlines flying from

Houston, Texas. I was served hot coffee in a clear plastic cup which

was sitting on a tray attached to the seat in front of me, when it

spilled directly into my crouch [sic] which caused me to be severely

burned.

Compl. at 2, R. Vol. 1 at 6. The complaint alleged no basis for federal

jurisdiction except for 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) (providing for

original federal jurisdiction over suits filed to address deprivations of federal

constitutional rights). Ms. Blythe failed to indicate either “yes” or “no” on the

area of the form complaint where she was instructed to indicate whether

Southwest Airlines was “acting under color of state law.” The complaint also

failed to allege the citizenship of Southwest Airlines for purposes of diversity of

citizenship, and it requested an unspecified amount of money for pain, suffering

and medical costs.

On September 23, 2009, Southwest filed a motion to dismiss the complaint

for failure to state a claim. On December 18, Southwest filed a second motion to

dismiss for lack of subject matter jurisdiction. On December 22, 2009,
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Ms. Blythe filed her first Motion to Amend and for an extension of time to file,

which stated as follows:

Plaintiff Beverly Blythe, in Pro Se, Plaintiff Beverly Blythe is

requesting Leave to file her claim and for Extension of Time to File,

Plaintiff’s “State of Claim” and “Subject-Matter.”

CONCLUSION

Plaintiff is requesting sixty days to file “Statement of Claim”

and “Subject Matter.” 

Mot. at 1, R. Vol. 1 at 78. The motion did not, however, attach a proposed

amended pleading, as is required by the local rules.

On January 28, 2010, Magistrate Judge Richard L. Puglisi entered an order

denying Ms. Blythe’s motion to amend, but stating that she could re-file her

motion if she attached a copy of the proposed amendment, as required by the

court rules. On that same day, the district court granted Southwest’s motion to

dismiss for lack of subject matter jurisdiction. The court “conclude[d] that Blythe

ha[d] failed to allege sufficient facts to invoke this Court’s subject matter

jurisdiction and that she should not be allowed an opportunity to amend her

Complaint . . .” Mem. Op. & Order at 1, R. Vol. 1 at 108. More specifically, the

court held that Ms. Blythe had failed to invoke the court’s federal question

jurisdiction and did not allege federal jurisdiction based on diversity. The court

further held, as had Magistrate Judge Puglisi in his order of the same date, that

Ms. Blythe should not be permitted to amend her complaint because she had

failed to submit a proposed amended complaint or explain in any of her
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submissions how a proposed amendment would cure the jurisdictional

deficiencies that Southwest had identified in its motion to dismiss. The dismissal

was, however, without prejudice. Because it concluded that it lacked subject

matter jurisdiction over Ms. Blythe’s complaint, the district court denied as moot

Southwest’s motion to dismiss for failure to state a claim.

Accordingly, on January 28, 2010, the court entered final judgment in favor

of Southwest Airlines. On February 25, 2010 (after entry of final judgment),

Ms. Blythe filed her second motion to amend her complaint. The court denied

that motion as moot. Ms. Blythe appeals the January 28 entry of final judgment

in favor of Southwest Airlines, arguing: 1) the district court erred when it

dismissed her complaint without prejudice for lack of subject matter jurisdiction;

2) her complaint stated a claim upon which relief can be granted; and 3) the

district court erred in denying her motions for leave to file an amended complaint.

DISCUSSION

“We review de novo the district court’s dismissal for lack of subject-matter

jurisdiction.” Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005). 

Furthermore, “[b]ecause the jurisdiction of federal courts is limited, there is a

presumption against our jurisdiction, and the party invoking federal jurisdiction

bears the burden of proof.” Id. (further quotation omitted).
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As indicated, Ms. Blythe filed her complaint on a form intended for § 1983

actions. “Section 1983 provides a federal cause of action against any person who,

acting under color of state law, deprives another of his federal rights.” Conn v.

Gabbert, 526 U.S. 286, 290 (1999). Ms. Blythe’s complaint included no

allegation that Southwest Airlines acted “under color of state law.” Thus, it

failed to state a federal claim or invoke federal subject-matter jurisdiction as a

§ 1983 action.

Ms. Blythe also challenges the district court’s conclusion that her

complaint failed to state a claim. The Supreme Court has recently clarified that to

withstand a motion to dismiss for failure to state a claim, a complaint must

contain enough allegations of fact “to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also

Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008). “The burden is

on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to

suggest’ that he or she is entitled to relief.” Robbins, 519 F.3d at 1247 (quoting

Twombly, 550 U.S. at 556). In an effort to give meaning to this “plausibility

requirement,” we have said that “[t]he allegations must be enough that, if

assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for

relief.” Id. at 1247.

We agree with the district court that Ms. Blythe has failed to state a claim

under either federal-question jurisdiction or diversity jurisdiction. As the district
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court observed, “Blythe has not alleged any facts to show a violation of her

federal constitutional or statutory rights [and] [i]t is also clear that Southwest

Airlines and its stewardess are private, not state, actors.” Mem. & Order at 4. 

Furthermore, “Blythe does not contend in her response to Southwest’s motion to

dismiss that the court has diversity jurisdiction, nor does she set forth any facts

regarding citizenship or the amount in controversy.” Id. at 5. Rather, she simply

asserts over and over again without support that the courts have “federal question

jurisdiction” over her complaint. We affirm the district court’s determination that

Ms. Blythe’s complaint is properly dismissed without prejudice for lack of

subject-matter jurisdiction.

Finally, in response to Southwest’s second motion to dismiss, Ms. Blythe

requested an opportunity to amend her complaint and a 60-day extension of time

in which to do so. As the district court correctly observed, while the court should

freely give leave to amend when justice requires such amendment, a plaintiff

seeking to amend a complaint “must give adequate notice to the district court and

to the opposing party of the basis of the proposed amendment.” Calderon v. Kan.

Dep’t of Social & Rehab. Servs., 181 F.3d 1180, 1186-87 (10th Cir. 1999). 

“Without this information the district court is not required to recognize, let alone

grant, a motion to amend.” Hall v. Witteman, 584 F.3d 859, 868 (10th Cir.
1

The applicable local rules also require a party seeking to amend or

supplement her pleadings to submit to the court the proposed amendment, along

with the motion to amend.

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2009).1 Ms. Blythe has not complied with this requirement. Accordingly, the

district court correctly denied her leave to amend her complaint.

Ms. Blythe’s remaining issue is her argument that the district court erred in

denying as moot her second motion for leave to filed an amended complaint, as

well as a motion to extend the time for filing. Inasmuch as the court had already

entered its final judgment in this case, we affirm the district court’s denial of

Ms. Blythe’s motion as moot.

CONCLUSION

For the foregoing reasons, the district court’s orders are AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge