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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

KATHLEEN D. LIEBERMAN

and MARK J. LIEBERMAN,

 Plaintiffs,

v.

JUSTIN PAUL and

WENDY WALKER,

 Defendants.

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 Civil Action No. 4:23-cv-887-SDJ-KPJ

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Pending before the Court are the following motions:

• Defendants Justin Paul (“Mr. Paul”) and Wendy Walker’s (“Ms. Walker”) 

(collectively, “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 (the “First Motion to Dismiss”) (Dkt. 12) and Motion of 

Defendants to Dismiss Amended Complaint for Failure to State a Claim upon Which [Relief] Can 

Be Granted; or, Alternatively, Motion for a More Definite Statement; and Motion for Attorney’s 

Fees, Costs, and Expenses (the “Second Motion to Dismiss”) (Dkt. 13) (collectively, the “Motions 

to Dismiss”) (Dkts. 12–13), to which Plaintiffs Kathleen D. Lieberman (“Ms. Lieberman”) and 

Mark J. Lieberman (“Mr. Lieberman”) (collectively, “Plaintiffs”) filed a response (Dkt. 17) and 

an amended response (Dkt. 19), and Defendants filed replies (Dkts. 20–21);

1

and

1 Contrary to Local Rule CV-7(a), Plaintiffs filed a single response to both Motions to Dismiss (Dkts. 12–13). See 

Dkt. 17. In addition, Plaintiffs filed an amended response after the deadline to do so had passed. Compare Dkt. 16 

at 6, with Dkt. 19. Nevertheless, the Court considers the non-compliant and untimely responses for the purposes of 

this Report and Recommendation. Because the arguments contained therein are irrelevant and unpersuasive, its 

consideration will not prejudice Defendants.

However, the Court notes that, besides responding to the Motions to Dismiss (Dkts. 12–13), Plaintiffs also submit 

several requests for relief in their responses. See Dkts. 17; 19. The Court will not consider these requests at this time

because every “motion . . . must be filed as a separate document.” LOC. R. CV-7(a). Furthermore, Plaintiffs appear to 

seek the joinder of additional parties and claims. See Dkt. 19 at 1. To do so, Plaintiffs must file a motion seeking leave 

to file an amended complaint. See FED. R. CIV. P. 15(a)(2). Any such motion must be followed by the filing of the 

proposed pleading. See LOC. R. CV-7(k).

Likewise, the Court declines to consider Defendants’ requests for attorney fees contained in the Motions to Dismiss 

(Dkts. 12–13). See Dkts. 12 at 7–8; 13 at 9. If Defendants wish to renew their request, they must do so by way of a 

separate motion within the time parameters prescribed by Rule 54 of the Federal Rules of Civil Procedure. See FED.

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• Ms. Lieberman’s Motion for Summary Judgment Writ Habeas Corpus Motion for 

Attorney’s Fees, Costs, and Expense (the “Motion for Summary Judgment”) (Dkt. 23), to which 

Defendants filed a response (Dkt. 28), and Ms. Lieberman filed a reply (Dkt. 35).

For the reasons that follow, the Court recommends that the First Motion to Dismiss (Dkt. 12) be

DENIED, the Second Motion to Dismiss (Dkt. 13) be GRANTED IN PART and DENIED IN 

PART, and the Motion for Summary Judgment (Dkt. 23) be DENIED AS MOOT.

I. BACKGROUND

On October 5, 2023, Plaintiffs, proceeding pro se, initiated this action by filing a complaint 

(the “Complaint”) (Dkt. 1) against Defendants. See Dkt. 1. As the jurisdictional basis for their

lawsuit, Plaintiffs invoked “the United States Constitution,” diversity jurisdiction, supplemental 

jurisdiction, and the “Texas Family Code.” See id. at 1–2. The following day, the District Judge 

ordered Plaintiffs to “file an amended complaint properly alleging jurisdiction.” Dkt. 2 at 1. 

Specifically, the District Judge noted that Plaintiffs failed to adequately invoke both diversity and

federal question jurisdiction. See id. at 1–2. On October 13, 2023, Plaintiffs filed an amended 

complaint (the “First Amended Complaint”) (Dkt. 3). See Dkt. 3.

In the First Amended Complaint (Dkt. 3), Plaintiffs allege that from November 8, 2017 to 

November 2, 2020, they “maintained custody and guardianship” of Ms. Lieberman’s grandchild, 

T.A.V. Id. at 4–5. During this time, Plaintiffs allege that they “collectively invested amounts 

exceeding $78,000.00 in home renovations exclusively tailored for the occupancy of their 

grandchild and other out-of-pocket expenses solely for the intent and purpose of [T.A.V.’s] best 

interest, well-being, and long-term care.” Id. at 5.

R. CIV. P. 54(d)(2); Can Capital Asset Servicing v. Bonnie Ruth’s Allen LLC, No. 20-cv-792-SDJ, 2021 WL 8693521, 

at *2 & n.6 (E.D. Tex. June 3, 2021) (denying a request for attorney fees contained in a motion for default judgment 

based in part on the fact that the request was not filed as a separate document).

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At some point thereafter, Plaintiffs allege that T.A.V. began residing with her mother, 

Alexandra Hayden (“Ms. Hayden”), Ms. Lieberman’s daughter, at her home in Ada, Oklahoma.

Id. On August 12, 2022, Ms. Hayden died in her residence, and T.A.V. was left alone with her 

mother’s remains for approximately three days. Id. When Ms. Hayden’s body was discovered, 

Mr. Paul, T.A.V.’s paternal uncle, obtained temporary guardianship of T.A.V. Id. Immediately 

thereafter, T.A.V. was taken to Tulsa, Oklahoma, where Ms. Walker, Mr. Paul’s “longtime 

girlfriend,” also obtained temporary custody of T.A.V. Id. According to Plaintiffs, Ms. Walker

then “filed an application with inaccurate and false information . . . for permanent and exclusive 

guardianship of [T.A.V.].” Id.

Plaintiffs allege that, to date, Ms. Walker has failed to reimburse them for the money they 

spent “exclusively . . . for [T.A.V.’s] best interest.” Id. at 6. Accordingly, Plaintiffs seek “equitable 

relief” from Defendants “to include nominal damages in the amount of $78,000.00 and [a] punitive 

[damages] award.” Id. Furthermore, asserting their rights under the Due Process Clauses of the 

Fifth Amendment, Fourteenth Amendment, Texas Constitution, and Oklahoma Constitution, 

Plaintiffs assert a state law claim seeking visitation with T.A.V. See id.

According to Plaintiffs, the Court has diversity jurisdiction over their claim for monetary 

damages and supplemental jurisdiction over their claim seeking visitation with T.A.V. See id. at 1–

3. As to their claim for monetary damages, Plaintiffs assert that they seek more than $75,000.00, 

satisfying the amount in controversy. Id. at 1. Furthermore, Plaintiffs assert that they are domiciled 

in Texas and Defendants are domiciled in Oklahoma; thus, according to Plaintiffs, the parties are 

completely diverse. See id. at 1–3. Finally, Plaintiffs assert that their claim for visitation is “closely 

related” to their claim for monetary damages, indicating that the Court may exercise supplemental 

jurisdiction over this claim. Id. at 2.

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On November 1, 2023, the District Judge referred this matter to the undersigned for all 

pretrial proceedings pursuant to 28 U.S.C. § 636 and Local Rule CV-72. See Dkt. 8. On 

December 4, 2023, Defendants filed the Motions to Dismiss (Dkts. 12–13). On January 7, 2024, 

Plaintiffs filed a response and, on January 12, 2024, Plaintiffs filed an amended response. See 

Dkts. 17; 19. On January 16, 2024, Defendants filed a reply to Plaintiffs’ original response. See 

Dkt. 20. On January 19, 2024, Defendants filed a reply to Plaintiffs’ amended response. See 

Dkt. 21.

On April 8, 2024, Ms. Lieberman filed a motion for summary judgment (the “Motion for 

Summary Judgment”) (Dkt. 23), wherein she informed the Court that Mr. Lieberman had passed 

away. See Dkt. 23 at 1. As the “representative” of Mr. Lieberman’s estate, Ms. Lieberman has 

since expressed her intent to continue prosecuting this action in his stead. See Dkts. 29–30.

II. LEGAL STANDARDS

A. Subject Matter Jurisdiction

“Federal courts are courts of limited jurisdiction” and “possess only that power authorized 

by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian 

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). Accordingly, a federal 

court “must determine whether it has proper subject matter jurisdiction over every claim.” 

Insuremax Ins. Agencies, Inc. v. Shanze Enters., Inc., No. 13-cv-1231, 2013 WL 4014476, at *1 

(N.D. Tex. Aug. 7, 2013) (citing Marshall v. Gibson’s Prods., Inc. of Plano, 584 F.2d 668, 672 

(5th Cir. 1978)). It is well established that the “party invoking federal subject-matter jurisdiction 

has [the] burden of pleading and proving it.” Maxwell v. Kight, 974 F. Supp. 899, 902 (E.D. Tex. 

1996) (citing Epps v. Bexar-Medina-Atascosa Cntys. Water Improvement Dist. No. 1, 665 F.2d 

594, 595 (5th Cir. 1982)). Such a party “has the burden of proving subject matter jurisdiction by a 

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preponderance of the evidence.” Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745, 748 (5th Cir. 

2009) (citing New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 327 (5th Cir. 2008)). 

“In the Fifth Circuit, subject-matter jurisdiction determinations may be made using any one of the 

following bases: ‘(1) the complaint alone; (2) the complaint supplemented by undisputed facts 

evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s 

resolution of disputed facts.’” Maxwell, 974 F. Supp. at 902 (citing Barrett Comput. Servs., Inc. v. 

PDA, Inc., 884 F.2d 214, 220 (5th Cir. 1989)).

B. Failure to State a Claim

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move for 

dismissal of an action if the plaintiff fails to state a claim upon which relief can be granted. See

FED. R. CIV. P. 12(b)(6). “In evaluating motions to dismiss filed under Rule 12(b)(6), the court 

‘must accept all well-pleaded facts as true, and . . . view them in the light most favorable to the 

plaintiff.’” Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 899 (5th Cir. 2019) 

(quoting Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th. Cir. 1986)). “Further, ‘[a]ll 

questions of fact and any ambiguities in the controlling substantive law must be resolved in the 

plaintiff’s favor.’” Id. (quoting Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001)). However, 

courts are “not bound to accept as true ‘a legal conclusion couched as a factual allegation.’” In re 

Ondova Ltd., 914 F.3d 990, 993 (5th Cir. 2019) (quoting Papasan v. Allain, 478 U.S. 265, 286 

(1986)).

“The well-pleaded facts must permit the court ‘to infer more than the mere possibility of 

misconduct.’” Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009)). That is, the complaint “must allege enough facts to move the claim ‘across the 

line from conceivable to plausible.’” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011), as 

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revised (Dec. 16, 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 

“Determining whether the plausibility standard has been met is a ‘context-specific task that 

requires the reviewing court to draw on its judicial experience and common sense.’” Id. (quoting 

Iqbal, 556 U.S. at 663–64).

At the motion to dismiss stage, “[t]he court’s review is limited to the complaint, any 

documents attached to the complaint, and any documents attached to the motion to dismiss that 

are central to the claim and referenced by the complaint.” Allen v. Vertafore, Inc., 28 F.4th 613, 

616 (5th Cir. 2022) (quoting Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 

387 (5th Cir. 2010)).

C. Summary Judgment

Summary judgment is appropriate when, viewing the evidence and all justifiable inferences 

in the light most favorable to the non-moving party, there is no genuine issue of material fact and 

the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Hunt v. 

Cromartie, 526 U.S. 541, 549 (1999) (citations omitted). The summary judgment inquiry is 

“whether the evidence presents a sufficient disagreement to require submission to a jury or whether 

it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 251–52 (1986).

The party moving for summary judgment has the initial burden to prove there are no 

genuine issues of material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 

991 (5th Cir. 2001). To sustain this burden, the movant must identify “those portions of the 

pleadings, depositions, answers to interrogatories, and admissions on file, together with the 

affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” 

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). The moving 

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party, however, “need not negate the elements of the nonmovant’s case.” Little v. Liquid Air Corp., 

37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam) (emphasis omitted) (citing Celotex, 

477 U.S. at 323). The movant’s burden is only to point out the absence of evidence supporting the 

nonmoving party’s case. Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996) (citation omitted).

In response, the nonmovant “may not rest upon mere allegations contained in the pleadings, 

but must set forth and support by summary judgment evidence specific facts showing the existence 

of a genuine issue for trial.” Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) 

(citing Anderson, 477 U.S. at 255–57). The citations to evidence should be specific, as the district 

court is not required to “scour the record” to determine whether the evidence raises a genuine issue 

of material fact. LOC. R. CV-56(c); see also FED. R. CIV. P. 56(c)(3) (“The court need consider 

only the cited materials, but it may consider other materials in the record.”). Neither “conclusory 

allegations” nor “unsubstantiated assertions” will satisfy the nonmovant’s burden. Hathaway v. 

Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (internal quotation marks omitted).

“When the nonmoving party bears the burden of proof at trial, summary judgment is 

warranted if the nonmovant fails to ‘make a showing sufficient to establish the existence of an 

element essential to [its] case.’” Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (quoting Celotex, 

477 U.S. at 322). “In such a situation, there can be ‘no genuine issue as to any material fact,’ since 

a complete failure of proof concerning an essential element of the nonmoving party’s case 

necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322–23.

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III. ANALYSIS

A. Subject Matter Jurisdiction

In the First Amended Complaint (Dkt. 3), Plaintiffs assert two claims against Defendants. 

See Dkt. 3 at 6. According to Plaintiffs, the Court has diversity jurisdiction over their claim for 

monetary damages and supplemental jurisdiction over their visitation claim. See id. at 1–3.

2 After 

careful consideration, the Court disagrees in part and concludes that it lacks subject matter 

jurisdiction over Plaintiffs’ visitation claim pursuant to the domestic relations exception. See FED.

R. CIV. P. 12(h)(3).

Federal courts have diversity “jurisdiction of all civil actions where the matter in 

controversy exceeds . . . $75,000” and is between “citizens of different States.” 28 U.S.C. 

§ 1332(a). However, even where these elements are satisfied, pursuant to the domestic relations 

exception, “federal courts lack jurisdiction to ‘issue divorce, alimony, and child custody decrees.’” 

Est. of Merkel v. Pollard, 354 F. App’x 88, 92 (5th Cir. 2009) (quoting Ankenbrandt v. Richards, 

504 U.S. 689, 703 (1992)). Thus, “federal courts refuse to hear ‘suits for divorce and alimony, 

child custody actions, disputes over visitation rights, suits to establish paternity and to obtain child 

support, and actions to enforce separation or divorce decrees still subject to state court 

modification.’” Congleton v. Holy Cross Child Placement Agency, Inc., 919 F.2d 1077, 1078 

(5th Cir. 1990) (quoting Crouch v. Crouch, 566 F.2d 486, 487 (5th Cir. 1978)). This exception is 

2

In their most recent response to the First Motion to Dismiss (Dkt. 12), Plaintiffs argue that the Oklahoma child 

custody proceeding, which awarded custody of T.A.V. to Mr. Paul and Ms. Walker, violated the Indian Child Welfare 

Act (“ICWA”), 25 U.S.C. §§ 1901–1963, as well as Texas and Oklahoma law. See Dkt. 19 at 1–2. Thus, Plaintiffs 

conclude that the custody proceeding should be invalidated. Id. at 5. The Court notes that Plaintiffs’ live pleading does 

not invoke federal question jurisdiction and fails to assert any federal claims, including any claims arising under 

ICWA. See Dkt. 3. Furthermore, to the extent Plaintiffs intend to join additional parties and claims for the purpose of 

manufacturing federal jurisdiction, they must file a motion seeking leave to amend their pleading. See supra note 1. 

To date, Plaintiffs have not done so. For this reason, Plaintiffs have not stated a claim under ICWA and, thus, cannot 

establish federal question jurisdiction based on their unpleaded theories of recovery. See Bishop v. Ware, No. 17-cv886, 2019 WL 2266637, at *5 n.8 (E.D. Tex. Jan. 16, 2019), R. & R. adopted, 2019 WL 1275336 (E.D. Tex. Mar. 20, 

2019).

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“founded on ‘the strong state interest in domestic relations matters, the competence of state courts 

in settling family disputes, the possibility of incompatible federal and state court decrees in cases 

of continuing judicial supervision by the state, and the problem of congested dockets in federal 

courts.’” Rogers v. Janzen, 891 F.2d 95, 98 (5th Cir. 1989) (quoting Crouch, 566 F.2d at 487).

In the present case, Plaintiffs invoke diversity jurisdiction over their claim for monetary 

damages, and supplemental jurisdiction over their claim seeking visitation with T.A.V. See Dkt. 3 

at 1–2, 6. Because Plaintiffs’ claim for monetary damages “does not require any federal court to 

issue a divorce, alimony, or child custody decree,” the domestic relations exception does not 

“deprive” the Court of jurisdiction to hear that claim. See Escalante v. Lidge, 34 F.4th 486, 491 

(5th Cir. 2022). However, Plaintiffs’ claim for visitation certainly does. See Congleton, 919 F.2d 

at 1078. Furthermore, as discussed below, Plaintiffs cannot rely on supplemental jurisdiction to 

avoid the strictures of the domestic relations exception.

“The domestic relations exception obtains from the diversity jurisdiction statute and 

therefore it has no application where . . . there exists an independent basis for federal jurisdiction.” 

See United States v. Bailey, 115 F.3d 1222, 1231 (5th Cir. 1997) (citations omitted). The instant 

case rests solely on diversity jurisdiction, and the Court lacks any other, independent basis to 

exercise original jurisdiction. See 13D CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL 

PRACTICE AND PROCEDURE § 3567.2 (3d ed. 2024) (“Supplemental jurisdiction permits a federal 

court to entertain claims that do not invoke an independent basis of federal subject matter 

jurisdiction.”). Thus, because the Court’s original jurisdiction is based on diversity jurisdiction, 

Plaintiffs’ custody claim is barred by the domestic relations exception, and the Court recommends 

that it be dismissed without prejudice on this basis. See Falls v. Goldman Sachs Tr. Co., N.A., 

No. 16-cv-740, 2017 WL 6453662, at *14 (E.D.N.C. Dec. 18, 2017) (rejecting supplemental 

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jurisdiction over claims otherwise barred by the domestic relations exception because the basis of 

the Court’s “original jurisdiction” was “grounded solely in diversity of citizenship”).

In the First Motion to Dismiss (Dkt. 12), Defendants challenge the Court’s subject matter 

jurisdiction over both of Plaintiffs’ claims. See Dkt. 12. According to Defendants, the Court lacks 

subject matter jurisdiction because, pursuant to the Uniform Child Custody Jurisdiction and 

Enforcement Act (the “UCCJEA”), “[t]he District Court of Tulsa County had, and has, exclusive 

and continuing jurisdiction over the now-general guardianship.” Dkt. 12 at 4. Thus, Defendants 

assert that “there is no legal basis for a state or federal court in Texas to exercise jurisdiction over 

the purported claims of [Plaintiffs].” Id. at 5.3 Plaintiffs fail to address Defendants’ argument in 

their responsive briefing. See Dkts. 17; 19. The Court disagrees with Defendants.

Defendants assert that the UCCJEA—a uniform state law—abrogates diversity jurisdiction 

because Oklahoma courts have “exclusive and continuing jurisdiction” over the issues raised in 

this lawsuit. Dkt. 12 at 4. However, federal jurisdiction is solely defined by “the Constitution and 

the laws of the United States.” Randall v. Arabian Am. Oil Co., 778 F.2d 1146, 1150 (5th Cir. 

1985). In other words, “federal diversity jurisdiction cannot be affected, restricted, or defeated by 

state legislation giving state courts exclusive jurisdiction over the matter involved.” Atlas R.R. 

Constr. Co. v. Columbus & Greenville Ry. Co., 190 F. Supp. 2d 908, 910 (N.D. Miss. 2002) (first 

3 Defendants also argue that the Court lacks federal question jurisdiction because “grandparents have no constitutional 

right to custody or visitation.” Dkt. 12 at 5–6. Without federal question jurisdiction, Defendants assert that the Court 

lacks original jurisdiction over Plaintiffs’ claims and, thus, cannot exercise supplemental jurisdiction. Id. at 6. But 

Plaintiffs—who have the burden of establishing subject matter jurisdiction—never invoke federal question 

jurisdiction. See Dkt. 3. Instead, Plaintiffs assert, albeit inartfully, that the Court has diversity jurisdiction over their 

state law claim for monetary damages and supplemental jurisdiction over their state law claim for visitation with 

T.A.V. See id. at 1–3. In any event, Plaintiffs’ visitation claim, in and of itself, does not establish federal question 

jurisdiction. See, e.g., Janosek v. Gonzalez, No. 17-cv-111, 2017 WL 3474104, at *3 (S.D. Tex. Aug. 11, 2017) 

(finding that “a dispute over child custody and child support, which are clearly state law claims,” failed to confer 

federal question jurisdiction). Furthermore, no exceptions to this general rule are applicable here. See Singh v. Duane 

Morris LLP, 538 F.3d 334, 338 (5th Cir. 2008) (permitting courts to exercise federal question jurisdiction where 

“(1) resolving a federal issue is necessary to resolution of the state-law claim; (2) the federal issue is actually disputed; 

(3) the federal issue is substantial; and (4) federal jurisdiction will not disturb the balance of federal and state judicial 

responsibilities” (citing Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005))).

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citing Ry. Co. v. Whitton’s Adm’r, 80 U.S. 270, 286 (1871); and then citing Akin v. La. Nat’l Bank 

of Baton Rouge, 322 F.2d 749, 754 (5th Cir. 1963)); cf. Marshall v. Marshall, 547 U.S. 293, 312–

14 (2006) (“Under our federal system, Texas cannot render its probate courts exclusively 

competent to entertain a claim of that genre.”). Defendants cite no federal authority, and the Court 

finds none, dismissing a claim for lack of subject matter jurisdiction on the grounds that the courts 

of another state have exclusive jurisdiction pursuant to the UCCJEA. See Dkt. 12. For these 

reasons, the Court recommends that the First Motion to Dismiss (Dkt. 12) be denied. However, as 

discussed above, the Court further recommends that Plaintiffs’ visitation claim be dismissed 

without prejudice for lack of subject matter jurisdiction pursuant to the domestic relations 

exception.

B. Failure to State a Claim

In the Second Motion to Dismiss (Dkt. 13), Defendants argue that Plaintiffs “cite no legal 

basis in contract, tort, statute, or otherwise to support the claim that the court-ordered guardians 

are liable for any monetary damages for monies that [Plaintiffs] purportedly spent on T.A.[V].” 

Dkt. 13 at 7. Thus, Defendants argue that any claim for monetary damages should be dismissed 

for failure to state a claim. Id. at 8.4 Plaintiffs fail to make any argument in response. See Dkts. 17; 

19. The Court agrees with Defendants.

Under Rule 8 of the Federal Rules of Civil Procedure, a complaint must include “a short 

and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV.

P. 8(a)(2). While this threshold is low, “a complaint must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 

(quoting Twombly, 550 U.S. at 570). That is, the plaintiff must plead “factual content that allows 

4 Defendants also argue that Plaintiffs’ visitation claim should be dismissed for failure to state a claim. See Dkt. 13 

at 4–7. However, because the Court lacks subject matter jurisdiction over this claim, it declines to reach this argument.

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the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Id. (citing Twombly, 550 U.S. at 556).

In the present case, Plaintiffs allege that, while they maintained custody of T.A.V., they 

invested “$78,000.00 into home renovations exclusively tailored for the occupancy of their 

grandchild.” Dkt. 3 at 4–5. Plaintiffs further allege that—multiple years later—Defendants 

obtained custody of T.A.V. from Ms. Hayden after she “unexpectedly died.” See id. at 5. 

According to Plaintiffs, Defendants conducted a series of “unauthorized” custodial transfers and, 

eventually, obtained “permanent and exclusive guardianship of [T.A.V.]” based on “inaccurate 

and false information.” Id. On this basis, Plaintiffs seek reimbursement for the money they spent 

on T.A.V. Id. at 6. Accepting these allegations as true, Plaintiffs fail to allege more than the “sheer 

possibility” that Defendants “acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 

at 556). Indeed, the Court cannot conceive of any claim which would entitle Plaintiffs to the relief 

sought; that is, it is implausible that Defendants could be held legally responsible for the 

renovations Plaintiffs made to their house. See, e.g., Shahrdar v. Tech Data Corp., No. 06-397, 

2006 WL 1750955, at *1 (W.D. La. May 24, 2006) (recommending dismissal because the court 

could find “no legal theory” which “would permit relief to be granted”), R. & R. adopted, 2006 

WL 8460203 (W.D. La. June 16, 2006). For this reason, as well as those discussed above, the 

Second Motion to Dismiss (Dkt. 13) should be granted to the extent it seeks dismissal of Plaintiffs’ 

claim for monetary damages and denied in all other respects. See supra note 1.

C. Summary Judgment

While the Motions to Dismiss (Dkts. 12–13) remained pending, Ms. Lieberman filed the 

Motion for Summary Judgment (Dkt. 23), wherein she sought summary judgment on her claims, 

as well as all fees accumulated during these proceedings. See Dkt. 23. In light of the Court’s 

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recommendation that the claims in the First Amended Complaint (Dkt. 3) should be dismissed, the 

Court recommends that the Motion for Summary Judgment (Dkt. 23) be denied as moot. See, e.g., 

Gaggos v. Walmart Distrib. Ctr. 7036, No. 22-cv-567, 2022 WL 16952038, at *1 n.2 (S.D. Tex. 

Oct. 27, 2022) (recommending a motion for summary judgment be denied as moot because the 

court also recommended dismissal and repleading), R. & R. adopted, 2022 WL 16950280 (S.D. 

Tex. Nov. 15, 2022).5

D. Leave to Amend

A “plaintiff’s failure to meet the specific pleading requirements should not automatically 

or inflexib[ly] result in dismissal of the complaint with prejudice to re-filing.” Hart v. Bayer Corp., 

199 F.3d 239, 247 n.6 (5th Cir. 2000) (citation omitted). Further, a pro se litigant should generally 

be offered an opportunity to amend his complaint before it is dismissed. Brewster v. Dretke, 

587 F.3d 764, 767–68 (5th Cir. 2009) (per curiam) (citing Bazrowx v. Scott, 136 F.3d 1053, 1054 

(5th Cir. 1998) (per curiam)). “Granting leave to amend is not required, however, if the plaintiff 

has already pleaded his ‘best case.’” Id. at 768 (quoting Bazrowx, 136 F.3d at 1054). The Court 

can deny leave to amend where such an amendment would be futile. See, e.g., Isom v. U.S. Dep’t 

of Homeland Sec., No. 20-cv-948, 2021 WL 2232052, at *3 (E.D. Tex. Apr. 28, 2021), R. & R. 

adopted, 2021 WL 2224345 (E.D. Tex. June 2, 2021).

In the present case, the Court finds that permitting Ms. Lieberman leave to amend her

pleading is warranted. First, Ms. Lieberman is proceeding pro se, and this is the first time the Court 

5 The Court also notes that Ms. Lieberman’s request for attorney fees is improperly included in the Motion for 

Summary Judgment (Dkt. 23). See LOC. R. CV-7(a); supra note 1. In any event, Ms. Lieberman provides no basis in 

law or fact indicating that she may recover attorney fees in this action. See Buckhannon Bd. & Care Home, Inc. v. W. 

Va. Dep’t of Health & Hum. Res., 532 U.S. 598, 602 (5th Cir. 2001) (“In the United States, parties are ordinarily 

required to bear their own attorney’s fees—the prevailing party is not entitled to collect from the loser.” (citing Alyeska 

Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975))). Furthermore, “plaintiffs in the Fifth Circuit cannot 

recover attorney’s fees under any type of claim when they proceed on their own behalf.” Shaunfield v. Experian Info. 

Sols., Inc., 991 F. Supp. 2d 786, 805 (N.D. Tex. 2014) (citing Vaksman v. Comm’r of Internal Revenue, No. 02-60062, 

2002 WL 31730351, at *3 (5th Cir. Nov. 21, 2002)).

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has addressed the sufficiency of the allegations. Second, the factual and legal basis supporting 

Ms. Lieberman’s claim for monetary damages is threadbare and, frankly, confusing. After careful 

consideration, the Court cannot identify the legal basis for this claim, nor why the factual 

allegations entitle her to reimbursement for funds spent to benefit T.A.V. Given this ambiguity, 

and out of an abundance of caution, the Court recommends that Ms. Lieberman be given leave to 

amend her complaint.

In addition, the Court notes that, as the representative of Mr. Lieberman’s estate, see 

Dkt. 29, Ms. Lieberman should file a motion seeking to substitute the “proper party” in place of 

her now-deceased husband. See FED. R. CIV. P. 25(a); see also Harvey v. United States, No. 21-

cv-4, 2022 WL 4653739, at *2 (N.D. Tex. Mar. 28, 2022) (“Executors, administrators, and primary 

distributes of a decedent-plaintiff’s estate are proper parties under Rule 25.” (citing Janvey v. 

Adams & Reese, LLP, No. 12-cv-495, 2014 WL 12834493, at *2 (N.D. Tex. Oct. 3, 2014))),

R. & R. adopted, 2022 WL 4657766 (N.D. Tex. Sept. 30, 2022). Furthermore, to the extent that 

the proper party is Ms. Lieberman, as the representative of her husband’s estate, see Armes v. 

Thompson, 222 S.W.3d 79, 82 (Tex. App.—Eastland 2006, no pet.), the Court notes that “those 

not licensed to practice law may not represent the legal interests of others.” Rodgers v. Lancaster 

Police & Fire Dep’t, 819 F.3d 205, 210 (5th Cir. 2016) (citing Weber v. Garza, 570 F.2d 511, 514 

(5th Cir. 1978)). Thus, if Ms. Lieberman intends to substitute herself as the proper party in place 

of her husband in a representative capacity, and further intends to continue proceeding pro se, she 

must allege that she is “the only beneficiary and the estate has no creditors.” Id. at 211. Otherwise, 

Mr. Lieberman’s claim is subject to dismissal without prejudice. See, e.g., Rathbone v. Bank of 

N.Y. Mellon, No. 17-cv-1828, 2018 WL 615084, at *3 (S.D. Tex. Jan. 9, 2018), R. & R. adopted, 

2018 WL 588363 (S.D. Tex. Jan. 29, 2018); Seilheimer v. Soundview Home Loan Tr. 2006-OPT2, 

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No. 22-cv-681, 2022 WL 17167952, at *2–3 (N.D. Tex. Oct. 3, 2022), R. & R. adopted, 2022 WL 

17168361 (N.D. Tex. Nov. 21, 2022).

IV. RECOMMENDATION

For the foregoing reasons, the Court recommends that the First Motion to Dismiss (Dkt. 12) 

be DENIED. 

The Court further recommends that Plaintiffs’ visitation claim be DISMISSED 

WITHOUT PREJUDICE for lack of subject matter jurisdiction.

The Court further recommends that the Second Motion to Dismiss (Dkt. 13) be 

GRANTED IN PART and DENIED IN PART. Specifically, the Second Motion to Dismiss 

(Dkt. 13) should be GRANTED to the extent that it seeks dismissal of Plaintiffs’ claim for 

monetary damages, and DENIED to the extent it requests attorney fees. Accordingly, the Court 

recommends that Plaintiffs’ claim for monetary damages be DISMISSED WITHOUT 

PREJUDICE, and Ms. Lieberman be given leave to file an amended complaint with respect to 

this claim, rectifying the deficiencies identified herein, no later than fourteen (14) days after the 

entry of the Memorandum Adopting Report and Recommendation, if any. If Ms. Lieberman fails 

to timely file an amended complaint, her claim for monetary damages should be DISMISSED 

WITH PREJUDICE. 

The Court further recommends that the Motion for Summary Judgment (Dkt. 23) be 

DENIED AS MOOT. 

Within fourteen (14) days after service of the magistrate judge’s report, any party may 

serve and file written objections to the findings and recommendations of the magistrate judge. 

28 U.S.C. § 636(b)(1)(C). 

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A party is entitled to de novo review by the district court of the findings and conclusions 

contained in this report only if specific objections are made, and failure to timely file written 

objections to any proposed findings, conclusions, and recommendations contained in this report 

shall bar an aggrieved party from appellate review of those factual findings and legal conclusions 

accepted by the district court, except on grounds of plain error, provided that the party has been 

served with notice that such consequences will result from a failure to object. Id.; Thomas v. Arn, 

474 U.S. 140, 148 (1985); see also Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1417 

(5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) 

(extending the time to file objections from ten to fourteen days).

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