1Plaintiff did not file a response to Litton's motion.

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

PAUL J. EBERHARDT, §

§

Plaintiff, §

§

VS. § NO. 4:05-CV-315-A

§

EMC MORTGAGE CORPORATION, §

ET AL., §

§

Defendants. §

MEMORANDUM OPINION

and

ORDER

Came on for consideration the motions of defendants, EMC

Mortgage Corporation ("EMC") and Litton Loan Servicing, L.P.

("Litton"), to dismiss. Having considered the motions, the

response of plaintiff, Paul Eberhardt, to EMC's motion,1 and

applicable authorities, the court concludes the motions should be

granted.

I.

Plaintiff's Complaint

Plaintiff's complaint is a twenty-five-page document that

consists primarily of citations to various authorities. The few

factual allegations in his complaint, as well as his requests for

relief, relate the foreclosure of a property in Arlington, Texas.

 

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II.

Grounds of the Motion

EMC and Litton both move to dismiss for: (1) lack of subject

matter jurisdiction; (2) failure to state a claim upon which

relief may be granted; (3) failure to plead a short, plain, and

simple statement of plaintiff's claims. Litton also moves to

dismiss for defective service of process. In the alternative,

defendants request that the court require plaintiff to replead. 

III.

Applicable Legal Standards

A motion under Rule 12(b)(1) of the Federal Rules of Civil

Procedure allows a party to challenge the subject matter

jurisdiction of the district court to hear a case. Fed. R. Civ.

P. 12(b)(1). The district courts of the United States are courts

of limited jurisdiction; they possess only the power authorized

by Constitution and statute. Kokkonen v. Guardian Life Ins. Co.

of America, 511 U.S. 375, 377 (1994). A cause is presumed to lie

outside of this limited jurisdiction, and the burden of

establishing the contrary rests upon the party asserting

jurisdiction, in this case the plaintiff. Id. Therefore,

plaintiff constantly bears the burden of proof that jurisdiction

does in fact exist at all stages of the litigation. Menchaca v.

Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980). When a

motion under Rule 12(b)(1) is filed with other Rule 12(b)

motions, a court should first consider the jurisdictional attack

 

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2Plaintiff apparently refers to the Act entitled "An Act to provide

a national currency secured by a pledge of United States bonds, and

to provide for the circulation and redemption thereof," which has

since been renamed "The National Bank Act." See 12 U.S.C. § 38.

3

before considering an attack on the merits. Ramming v. United

States, 281 F.3d 158, 161 (5th Cir. 2001).

IV.

Analysis

In this case, plaintiff alleges that this court has

jurisdiction "pursuant to Title 18 § 1333 and § 1441." Compl. at

1. The court assumes that plaintiff intends to cite to 28 U.S.C.

§§ 1333 and 1441. But plaintiff has not alleged any facts that

would give rise to this court's exercise of jurisdiction under

any section of Title 28. Although plaintiff purports to bring

claims under the "National Bank or Currency Act of June 3, 1864

at 13 Stat. 99, Chp. 106, sections 8, 27, 28, 35, 37, & 39"2 and

"Title 62 Section 5187, 5201, [and] 5207, of the revised statutes

of the United States," e.g., Compl. at 2, he has failed to allege

facts that would support jurisdiction under the current versions

of such statutes. See 18 U.S.C. § 334 (2000); 12 U.S.C. §§ 83 &

582 (2000). Accordingly, the court concludes that plaintiff's

claims should be dismissed for lack of subject matter

jurisdiction.

Because the court's ruling as to subject matter jurisdiction

disposes plaintiff's claims, the court need not discuss the

remaining grounds in defendants' motions. Nothing the court says

in this memorandum opinion and order is to be taken as any

 

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indication of how the court would have ruled on defendants' other

contentions.

V.

ORDER

The court ORDERS that whatever claims and causes of action

are asserted by plaintiff in the above-captioned action be, and

are hereby, dismissed for lack of subject matter jurisdiction.

SIGNED July 19, 2005.

 /s/ 

JOHN McBRYDE

United States District Judge

 

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