IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

KATHLEEN D. LIEBERMAN and )

MARK J. LIEBERMAN )

)

Plaintiffs, )

)

v. ) No.: 4:23-CV-00887

)

JUSTIN PAUL and )

WENDY WALKER, )

)

Defendants. )

MOTION OF DEFENDANTS TO DISMISS AMENDED COMPLAINT

FOR LACK OF SUBJECT-MATTER JURISDICTION; OR, 

ALTERNATIVELY, MOTION FOR A MORE DEFINITE STATEMENT; AND

MOTION FOR ATTORNEY’S FEES, COSTS, AND EXPENSES

Defendants Justin Paul and Wendy Walker move the Court to dismiss the amended 

complaint for lack of subject-matter jurisdiction pursuant to Rule 12(h)(3) and (b)(1) of the Federal 

Rules of Civil Procedure; or, alternatively, for an order requiring the Plaintiffs to provide a more 

definite statement of allegations to support their claims pursuant to Rule 12(e) of the Federal Rules 

of Civil Procedure. The Defendants also move the Court for an award of attorney’s fees, costs, 

and expenses required for their defense of the amended complaint. In support of their motions, 

the Defendants state as follows:

INTRODUCTION

The minor child who is the subject of this action has been in a court-ordered guardianship

in the State of Oklahoma since just days after the untimely death of her mother. The District Court 

of Tulsa County, Oklahoma has exclusive and continuing jurisdiction over matters pertaining to 

the custody of, and visitation with, the minor child. Because this Court has no subject-matter 

jurisdiction over matters pertaining to the subject guardianship, including matters concerning 

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visitation with the minor child, the Court should dismiss the amended complaint and award 

attorneys’ fees and costs to the Defendants for their defense of the baseless action. Should the 

Court decide to exercise jurisdiction over this case, the Court should require the Plaintiffs to make 

more definite their statement of allegations supporting their purported claims. 

STATEMENT OF THE ISSUES TO BE DECIDED BY THE COURT

1. Whether the Court should dismiss the amended complaint pursuant to Rule 12(h)(3) 

and (b)(1) of the Federal Rules of Civil Procedure due to the lack of subject-matter jurisdiction 

because the District Court of Tulsa County, Oklahoma has exclusive, and continuing, jurisdiction

over matters pertaining to the custody of, and visitation with, the minor child pursuant to the 

Uniform Child Custody Jurisdiction and Enforcement Act. 

2. Whether the Court should dismiss the amended complaint pursuant to Rule 12(h)(3)

and (b)(1) of the Federal Rules of Civil Procedure because the Plaintiffs wrongly assert that, as 

grandparents, they have the right under the U.S. Constitution to visitation with the minor child, 

which they assert serves as original jurisdiction for their supplementary state-law claims. 

3. Were the Court to retain jurisdiction, and in the alternative, whether the Court 

should order the Plaintiffs to make a more definite statement of the allegations supporting their 

state law claims pursuant to Rule 12(e) of the Federal Rules of Civil Procedure.

4. Whether the Court should order the Plaintiffs to pay the attorney’s fees, expenses, 

and costs of the Defendants in having to defend this matter. 

BACKGROUND OF THE CASE

On August 13, 2022, T.A.J. (the “Minor Child”) was found in her home alone with her 

deceased mother, Alexandra Paul (“Natural Mother”) whom she had been attempting to awaken 

from sleep for two days from an apparent drug overdose. (Incident Report, attached hereto as Ex. 

1.) T.A.J. used Natural Mother’s phone to call Wendy Walker, her aunt (“Ms. Walker”), who is

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one of the two named defendants in this action. After processing the scene, the Sheriff’s Office 

released T.A.J. to Jason Paul (“Mr. Paul”), who is Ms. Walker’s husband, Natural Mother’s halfbrother, T.A.J.’s uncle, and the other named defendant in this action. (Incident Report, Ex. 1.) 

T.A.J.’s putative father, Trever Jester, was incarcerated at the time. (See Tex. D.P.S. Criminal 

History Conviction Name Search, attached hereto as Ex. 2, at 18-19.) 

Pursuant to Oklahoma Statutes, the “court may without notice appoint a special guardian 

upon the filing of the petition, upon presentation of evidence of the incapacity of the subject of the 

proceeding, upon a showing that an immediate or reasonably foreseeable serious physical harm to 

the subject of the proceeding . . . will result from a delay, and upon presentation of a proposed 

emergency plan of care for the subject of the proceeding.” Okla.Stat.tit. 30, § 3-115 (emphasis 

added). The Indian Child Welfare Act (“ICWA”) likewise provides for emergency placement: 

Nothing in this subchapter shall be construed to prevent the emergency removal of 

an Indian child who is a resident of or is domiciled on a reservation, but temporarily 

located off the reservation, from his parent or Indian custodian or the emergency 

placement of such child in a foster home or institution, under applicable State law, 

in order to prevent imminent physical damage or harm to the child. . . .

25 U.S.C. § 1922. 

The minor child has been in a court-ordered guardianship pursuant to the laws of the State

of Oklahoma since just days after she was found. Pursuant to Oklahoma law, the “fact of the 

existence of a guardianship . . . shall not be considered confidential information”; however, all 

other information concerning a guardianship is confidential information which “shall be strictly 

controlled.” Okla.Stat.tit. 30, § 1-122. “Upon appropriate request by a court . . . of another state, 

the court shall forward a certified copy” of the orders or other pertinent records. Okla.Stat.tit. 43, 

§ 551-112; Tex. Family Code § 152.112. In short, absent a court order or request, the factual and 

legal bases pertaining to the guardianship are strictly protected from disclosure. 

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ARGUMENT AND AUTHORITIES

I. The Liebermans’ Amended Complaint Must Be Dismissed Due to Lack of SubjectMatter Jurisdiction

The Liebermans assert that they are entitled to equitable relief as well as nominal and 

punitive damages for the purported failure of the court-appointed guardians to allow them 

visitation with T.A.J. Am. Compl. at 5-6 (ECF 3). Because the District Court of Tulsa County, 

Oklahoma, has exclusive jurisdiction over matters pertaining to the custody of, and visitation with, 

T.A.J., the Liebermans’ amended complaint must be dismissed pursuant to Rule 12(h)(3) and 

(b)(1) of the Federal Rules of Civil Procedure for lack of subject-matter jurisdiction. 

Pursuant to Rule 12 of the Federal Rules of Civil Procedure, “[i]f the court determines at 

any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. 

P. 12(h)(3); see also, Fed. R. Civ. P 12(b)(1). Both the State of Oklahoma and the State of Texas 

have adopted and enacted the Uniform Child Custody Jurisdiction and Enforcement Act 

(“UCCJEA”). See Okla.Stat.tit. 43, §§ 551-102, et seq., and Tex. Family Code §§ 152.001, et seq. 

Pursuant to the UCCJEA, the District Court of Tulsa County, Oklahoma had the statutory authority 

to exercise emergency jurisdiction over T.A.J. See Okla.Stat.tit. 43, §§ 551-204, 551-102; Tex. 

Family Code §§ 152.204, 152.102. The District Court of Tulsa County had, and has, exclusive

and continuing jurisdiction over the now-general guardianship. See Okla.Stat.tit. 43, § 551-202; 

Tex. Family Code § 152.202. Once jurisdiction is determined, a court of another state “may not 

modify a child custody determination made by a court of another state” except in limited 

circumstances which are not applicable here. See Okla.Stat.tit. 43, § 551-203; Tex. Family Code 

§ 152.203. Included within its jurisdiction and statutory requirements are that the Oklahoma 

district courts determine matters concerning visitation. See Okla.Stat.tit. 30, §§ 2-109, 1-114; 

Okla.Stat.tit. 43, § 109. 

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Further, pursuant to the UCCJEA, state courts must accord full faith and credit to an order 

issued by another state consistent with the UCCJEA. Okla.Stat.tit. 43, § 551-313; Tex. Family 

Code § 152.313. Furthermore, “[i]t is now settled that a federal court must give to a state-court 

judgment the same preclusive effect as would be given that judgment under the law of the State in 

which the judgment was rendered.” A.L.T. Corp. v. Small Bus. Admin., 801 F.2d 1451, 1455 (5th 

Cir. 1986) (quoting Migra v. Warren City School District Board of Education, 465 U.S. 75, 81 

(1984)); see also, U.S. Const. art. 4, § 1; 28 U.S.C. § 1738. 

Because the District Court of Tulsa County, Oklahoma has exclusive jurisdiction over 

matters concerning visitation with T.A.J., there is no legal basis for a state or federal court in Texas 

to exercise jurisdiction over the purported claims of the Liebermans. More specifically, Texas 

Family Code § 153.432 may not be invoked by the Liebermans in this Court to request possession 

of, or assess to, T.A.J. because the Tulsa County District Court has exclusive jurisdiction over 

matters pertaining to the custody of, or visitation with, T.A.J. Further, if the Liebermans had 

requested that the District Court of Tulsa grant them visitation – which the Defendants dispute –

there would be no basis under the law – nor do they cite any – for the purported denial of a court 

to grant visitation that could serve as a basis for the recovery for purported monetary damages. 

Accordingly, the Court must dismiss the Liebermans’ amended complaint pursuant to Rule 

12(h)(3) and (b)(1) of the Federal Rules of Civil Procedure for lack of subject-matter jurisdiction.

II. The Court Should Dismiss the Liebermans’ Amended Complaint for Lack of SubjectMatter Jurisdiction Because There Is No Federal Constitutional Right of 

Grandparents to Visitation and No Basis for Supplemental Jurisdiction

The Liebermans assert that the Court has diversity jurisdiction over this action; however,

they also assert that the Court should exercise jurisdiction over their state-law claims based on

supplemental jurisdiction. Am. Compl. at 1-2 (ECF 3). They assert that the Court should exercise 

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supplemental jurisdiction over their state-law claims based on a violation of their purported right 

to grandparent visitation. Am. Compl. at 1-2 (ECF 3). 

Pursuant to 28 U.S.C. § 1367, the federal district courts may only exercise supplemental 

jurisdiction “in a civil action of which the district courts have original jurisdiction.” 28 U.S.C. § 

1367(a). The U.S. Supreme Court has ruled that grandparents have no constitutional right to 

custody or visitation. See Troxel v. Granville, 530 U.S. 57 (2000). Therefore, based on the 

Liebermans’ assertions, because there is no basis for the Court to exercise original jurisdiction, 

there is no basis for the Court to exercise supplemental jurisdiction over their state-law claims. 

Accordingly, pursuant to their assertions and Rule 12(h)(3) and (b)(1) of the Federal Rules 

of Civil Procedure, the Court should dismiss the Liebermans’ amended complaint for lack of 

subject-matter jurisdiction. 

III. Motion for a More Definite Statement

If the Court were to exercise jurisdiction over their purported claims, the Court should 

order the Liebermans, pursuant to Rule 12(e) of the Federal Rules of Civil Procedure, to make 

more definite their statement of claims. 

According to the Liebermans, they “maintained custody and guardianship” of T.A.J. from 

2017 to 2020 and “collectively invested amounts exceeding $78,000 into home renovations 

exclusively tailored for the occupancy” of T.A.J. as well as other purported out-of-pocket 

expenses. Am. Compl. at 4, 6 (ECF 3). Thus, even if any of the facts supporting the Liebermans’ 

claims as to their purported custody and guardianship of T.A.J. were true—which Ms. Walker and 

Mr. Paul dispute1 —the Liebermans’ purported expenditure of funds occurred during T.A.J.’s 

Natural Mother’s lifetime. Am. Compl. at 4, 6 (ECF 3). Accordingly, any purported claims for 

1 For instance, prior to Natural Mother’s passing, Ms. Walker and Mr. Paul also had legal guardianship of 

T.A.J. from August 2019 until November 2019, and again from January 2020 to October 2020. 

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any purported losses should be against the estate of the Natural Mother—Ms. Lieberman’s late 

daughter—not the court-appointed co-guardians. Therefore, if the Court does not dismiss this 

action due to its lack of subject-matter jurisdiction and failure to state a claim upon which relief 

may be granted, the Court should require the Liebermans to make more definite their claims.

IV. The Court Should Award Costs, Fees, and Expenses to the Defendants

Pursuant to the UCCJEA, a “court shall award the prevailing party . . . necessary and 

reasonable expenses incurred by or on behalf of the party, including costs, communication 

expenses, attorney’s fees, investigative fees, expenses for witnesses, travel expenses, and child 

care during the course of the proceedings, unless the party from whom fees or expenses are sought 

establishes that the award would be clearly inappropriate.” Okla.Stat.tit. 43, § 551-312, Tex. 

Family Code § 152.312.

It would be difficult to imagine a case more compelling than this for the award of costs, 

fees, and expenses—where an attorney brought a federal action against court-appointed guardians

based on misrepresentations of fact and in flagrant disregard for basic principles of law and 

procedure. Their sole purpose is to harass the court-appointed guardians. That it is also shortsighted is best exemplified by the fact that they are attempting to bankrupt and inflict mental and 

emotional strain on the two people appointed by the court to take care of T.A.J. That the 

Liebermans do not have the best interest of the Minor Child in mind is also demonstrated by their

failure to follow the basic rules for protecting the confidentiality of T.A.J. in filing the complaint 

and amended complaint—with T.A.J.’s full name and none of her confidential information 

redacted. See Compl. (ECF 1); Am. Compl. (ECF 3); Fed. R. Civ. P. 5.2. 

The Court can discourage the improper behavior of an attorney and his spouse from using 

the federal court to harass court-appointed guardians by, at a minimum, requiring that the

Liebermans pay the entirety of the costs, fees, and expenses of the defendants in defending this 

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improper action. Accordingly, Ms. Walker and Mr. Paul respectfully request that the Court award

the entirety of their costs, fees, and expenses in defending this improper action.

CONCLUSION

Because there is no basis for the Court to exercise jurisdiction over this matter, the Court 

should dismiss the amended complaint for lack of subject-matter jurisdiction. In the alternative, 

the Court should order the Plaintiffs to make a more definite statement of their purported claims. 

The Court should also award the Defendants the entirety of their attorney’s fees, costs, and 

expenses in defending this action. 

Respectfully submitted,

/s/ David C. Youll

 ________________________________

David C. Youll, OBA No. 16553

Attorney and Counselor at Law

Welsh & McGough, PLLC

Midway Building

2727 E. 21st St., Ste. 600

Tulsa, Oklahoma 74114

Telephone: 918.585.8600

Telefax: 918.794.4411

david@tulsafirm.com

www.tulsafirm.com

 Attorney for Defendants

Justin Paul and Wendy Walker

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CERTIFICATE OF SERVICE

It is hereby certified that a true and correct copy of the above and foregoing motion was 

filed via the Court’s CM/ECF system on December 4, 2023, which caused an electronic copy of 

the same to be served on the following counsel of record: 

Mark Lieberman

1704 Pine Hills Lane

Corinth, Texas 76210

Mjc358@hotmail.com

/s/ David C. Youll 

__________________________________________

David C. Youll

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