United States District Court, N.D. Ohio, Western Division
JEFFREY J. HELMICK, UNITED STATES DISTRICT JUDGE.
matter is before me on motions to dismiss filed by Defendants
Ed Schmidt (Doc. No. 3) and Allstate (Doc. No. 8). The
Plaintiff filed motions to strike the responses of each
Defendant (Doc. Nos. 6 and 10) as well as seeking a motion to
move forward with a speedy trial (Doc. No. 12).
litigation arises out of alleged faulty car repairs to Rodney
Wilson's 2004 Volkswagen Phaeton by Ed Schmidt. (Doc. No.
5 at pp. 14-15). In July 2016, Wilson had the vehicle towed
to Ed Schmidt. (Id.) Wilson also submitted a claim
to his insurer, Allstate, for the damages. His insurance
claim was denied. In October 2016, Wilson was notified that
his car had been at Ed Schmidt's since August, provided
an estimate of the repairs, and advised him the vehicle
needed to be removed within 10 days or it could be considered
an abandoned vehicle. (Id. at p. 12).
se Plaintiff, Rodney Wilson, initiated this complaint
against Allstate and Ed Schmidt Auto Mall on December 9,
2016. He alleges claims in the nature of: (1) breach of
contract; (2) failure to perform in good faith; and (3)
punitive damages. (Doc. No. 1). He states jurisdiction
pursuant to 28 U.S.C. § 1331. He contends jurisdiction
is appropriate under 42 U.S.C. § 1983 and 18 U.S.C.
Defendants seek dismissal of this lawsuit and contend this
Court is without subject matter jurisdiction to consider
Wilson's claims. The Plaintiff's responses to these
dispositive motions are presented via his respective motions
must have jurisdiction over the subject matter in order to
consider the claims alleged. Fed.R.Civ.P. 12(b)(1). Where a
defendant challenges a court's jurisdiction, the
plaintiff bears the burden of demonstrating that the Court
has and may appropriately exercise jurisdiction over the
subject matter. DXL, Inc. v. Commonwealth of
Kentucky, 381 F.3d 511, 516 (6th Cir. 2004).
28 U.S.C. § 1331, the “district courts shall have
original jurisdiction of all civil actions arising under the
Constitution, laws or treaties of the United States.” A
statute may create a private right of action. Alexander
v. Sandoval, 532 U.S. 275, 286 (2001) (private rights of
action must be created by Congress to enforce federal law).
case, the Plaintiff invokes 42 U.S.C. § 1983 and 18
U.S.C. § 1163 as the statutes under which federal
jurisdiction arises. I disagree.
42 U.S.C. § 1983, the plaintiff must contend the alleged
conduct was committed by a person under color of state law
and that the conduct deprived the plaintiff of rights,
privileges, or immunities secured by the Constitution or laws
of the United States. Graham v. NCAA, 804 F.2d 953,
957 (6th Cir. 1986). There is no private right of
action under a § 1983 claim as the offending actions
“must be fairly attributable to the state.”
Collyer v. Darling, 98 F.2d 211, 231-32
(6th Cir. 1997). As correctly noted by Defendants,
Section 1983 “merely provides a method for vindicating
federal rights elsewhere conferred.” (Doc. No. 3 at p.
4, citing Albright v. Oliver, 510 U.S. 266, 271
(1994) (quotation omitted)).
other statute invoked in Plaintiff's statement of
jurisdiction, 18 U.S.C. § 1163, addresses embezzlement and
theft from Indian tribal organizations. Again, as correctly
noted by the Defendants, this is a criminal statute. There is
no private right of action under this statute. Chilkat
Indian Village v. Johnson, 643 F.Supp. 535, 537-37 (D.
Ak. 1986), aff'd , 870 F.3d 1469 (9th
Plaintiff has failed to demonstrate a basis for federal
subject matter jurisdiction, I must dismiss this action
because the complaint fails to state a claim under federal