United States District Court, S.D. Ohio, Eastern Division
Chelsey M. Vascura Magistrate Judge.
OPINION AND ORDER
D. MORRISON UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Defendants' Motion to
Dismiss for Lack of Jurisdiction and Failure to State a Claim
(ECF No. 24). Plaintiff did not file a response. For the
reasons set forth below, Defendants' Motion is hereby
initiated this matter on April 25, 2018, alleging violations
of his constitutional rights and violations of certain
treaties. (ECF No. 1, amended at ECF No. 3). According to the
Amended Complaint, Plaintiff's father is a Pakastani
citizen who had been a legal permanent resident of the United
States before being removed to Pakistan pursuant to an order
of the Immigration Court in Cleveland, Ohio. (Id. at
¶ 5). Plaintiff is a minor so he brought the action
through his next friend and guardian.
alleges that the removal of his father violates his rights
under the Equal Protection Clause (Id. at
¶¶ 6, 7, 10, 12), the Ninth Amendment to the United
States Constitution (Id. at ¶ 14), the Due
Process Clause (Id. at ¶¶ 14, 15), and the
principles of various international treaties (Id. at
¶ 16). Defendants move to dismiss the Amended Complaint
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
(ECF No. 24).
STANDARD OF REVIEW
to Rule 12(b)(1), an action may be dismissed for lack of
subject matter jurisdiction. “Plaintiffs have the
burden of proving jurisdiction in order to survive a Rule
12(b)(1) motion . . . .” Weaver v. Univ. of
Cincinnati, 758 F.Supp. 446, 448 (S.D. Ohio 1991)
(citing Moir v. Greater Cleveland Reg'l. Transit
Auth., 895 F.2d 266, 269 (6th Cir. 1990)); see also
Rapier v. Union City Non-Ferrous, Inc., 197 F.Supp.2d
1008, 1012 (S.D. Ohio 2002) (“The plaintiff bears the
burden of establishing, by a preponderance of the evidence,
the existence of federal subject matter
jurisdiction.”). Moreover, this Court may resolve any
factual disputes when adjudicating a defendant's
jurisdictional challenge. See Moir, 895 F.2d at 269.
courts are courts of limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,
377 (1994). Federal courts have subject matter jurisdiction
in civil actions only if: 1) the action arises under federal
law, 28 U.S.C. § 1331 (federal-question jurisdiction);
or 2) the action is between citizens of different states
where the amount in controversy exceeds $75, 000, 28 U.S.C.
§ 1332 (diversity jurisdiction).
contrast, Rule 12(b)(6) challenges the legal sufficiency of
the allegations in the complaint. A claim survives a motion
to dismiss pursuant to Rule 12(b)(6) if it “contain[s]
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations
omitted). A complaint's “[f]actual allegations must
be enough to raise a right to relief above the speculative
level, on the assumption that all of the complaint's
allegations are true.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal citations
omitted). A court must also “construe the complaint in
the light most favorable to the plaintiff.” Inge v.
Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). In
doing so, however, a plaintiff must provide “more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555.
The Court is without subject matter jurisdiction over claims
brought under international treaties.
first argue that the Court is without subject matter
jurisdiction over some of the claims alleged in the Amended
Complaint. In paragraph 16 of the Amended Complaint,
Plaintiff alleges that his separation from his father
violates the “principals of international
treaties.” (ECF No. 3). However, treaties are not
self-executing and, as such, are not judicially enforceable.
See Thap v. Mukasey, 544 F.3d 674, 676 (6th Cir.
2008). To become judicially enforceable, legislation must be
enacted to carry out the details and intent of the treaties.
Accordingly, Defendants' Motion is
GRANTED as to Plaintiff's claims of
violations of international treaties.
Plaintiff has failed to state ...