Freiner v. Judy

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ANGELA FREINER, )

)

Plaintiff, )

)

v. ) Case No. 4:23-CV-982 HEA

)

JAMES JUDY, )

)

Defendant. )

OPINION, MEMORANDUM AND ORDER

This matter is before the Court on the motion of self-represented plaintiff Angela Freiner

for leave to commence this civil action without prepayment of the required filing fee. [ECF No.

2]. Upon consideration of the financial information provided with the motion, the Court finds

plaintiff is financially unable to pay any portion of the filing fee. As a result, plaintiff will be

granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Additionally, for the

reasons discussed below, plaintiff will be directed to show cause as to why this case should not be

dismissed for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).

Legal Standard

Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma

pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To

state a claim, a plaintiff must demonstrate a plausible claim for relief, which is more than a “mere

possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. at 678. Determining whether

a complaint states a plausible claim for relief is a context-specific task that requires the reviewing

court to draw upon judicial experience and common sense. Id. at 679. The court must “accept as

action, supported by mere conclusory statements.” Barton v. Taber, 820 F.3d 958, 964 (8th Cir.

2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73 (8th Cir. 2016) (stating

that court must accept factual allegations in complaint as true, but is not required to “accept as true

any legal conclusion couched as a factual allegation”).

When reviewing a pro se complaint under 28 U.S.C. § 1915(e)(2), the Court must give it

the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal

construction” means that if the essence of an allegation is discernible, the district court should

construe the plaintiff's complaint in a way that permits his or her claim to be considered within the

proper legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However,

even pro se complaints are required to allege facts which, if true, state a claim for relief as a matter

of law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). See also Stone v. Harry, 364

F.3d 912, 914-15 (8th Cir. 2004) (stating that federal courts are not required to “assume facts that

are not alleged, just because an additional factual allegation would have formed a stronger

complaint”). In addition, affording a pro se complaint the benefit of a liberal construction does not

mean that procedural rules in ordinary civil litigation must be interpreted to excuse mistakes by

those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

Plaintiff’s Complaint

Plaintiff, Angela Freiner, filed this action on August 7, 2023, by filing a typed complaint

titled, “Complaint for Emotional Distress Tort Claim,” naming James Judy, the co-parent of her

minor child, as a defendant in this action.

In her complaint, plaintiff states that Judy, an alleged resident of Bozeman, Montana,

engaged in a pattern of behavior “aimed at undermining the plaintiff’s relationship with the

offspring and causing emotional harm to the plaintiff.” She asserts that he “interfered with

the plaintiff’s role as a mother.”

Plaintiff, purportedly a resident of St. Louis, Missouri, is suing defendant Judy under 28

U.S.C. § 1332, under federal diversity jurisdiction. She claims violations of Missouri State law:

intentional infliction of emotional distress; alienation of her child’s affections, including a

purported withholding of her child’s whereabouts for over a 10-month period; and violation of her

parental rights. Plaintiff also appears to allege that defendant Judy made false claims during child

custody hearings, forged legal documents relating to those hearings and as such, led to a temporary

restraining order being instituted against plaintiff by a family court judge in Missouri State Court

and plaintiff’s eventual incarceration.

For relief in this action plaintiff states that she is seeking monetary damages in an amount

over $75,000, including amounts due for lost wages, emotional distress, damages for building the

parent-child relationship, amounts for attorneys’ fees, and punitive damages.

Background Facts

Because this matter deals with child custody matters, the Court is unable to access the

current Parenting Plan set forth in the child custody matter between plaintiff and defendant James

Judy on Missouri.Case.Net. See Freiner v. Judy, No. 14SL-DR2617-02 (21st Jud. Cir., St. Louis

County). And it is unclear from plaintiff’s pleading exactly who has current custody over plaintiff’s

minor child. However, the Court takes judicial notice of several documents available on Case.Net

pertinent to these proceedings.1

1Plaintiff’s underlying state court cases were reviewed on Case.net, Missouri’s online case management

system. The Court takes judicial notice of these public records. See Levy v. Ohl, 477 F.3d 988, 991 (8th

Cir. 2007) (explaining that district court may take judicial notice of public state records); and Stutzka v.

McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (stating that courts “may take judicial notice of judicial

opinions and public records”).

application for writ of habeas corpus against plaintiff Angela Freiner, who was originally

represented by attorney Keith Fuller. See Judy v. Freiner, No. 21SL-DR00544 (21st Jud. Cir., St.

Louis County). In his petition, James Judy alleged the following:

1. It is in the best interest of the minor child that the Court grant a

Writ of Habeas Corpus ordering Respondent and, as necessary,

law enforcement, to produce the parties’ minor child, [D. J.], to

Petitioner who shall be granted the sole physical and sole legal

custody of the minor child until further order of the Court.

2. In support thereof, Petitioner states as follows:

i. Mother refuses to return the minor child to Father in

contumacious disregard of this court’s modification

judgment of August 28, 2020, awarding to Father residential

custody of the parties’ child.

ii. Mother refuses to return the minor child to Father in

contumacious disregard of this court’s Temporary

Restraining Order dated January 15, 2021.

iii. Mother refuses to return the minor child to Father in

contumacious disregard of this court’s Preliminary

Injunction Order dated February 3, 2021.

Petitioner sought return of the minor child in accordance with the February 3, 2021 Order

of the St. Louis County Court, which was presumably issued in Case No. 14SL-DR2617-02. The

matter was set for trial on April 15, 2022, in front of the Honorable Robert M. Heggie. After

testimony, it was dismissed on May 11, 2022, with reference to Case. No. 14SL-DR2617-02. The

Order of Dismissal stated:

THIS CAUSE was called for hearing on James Judy’s Motion to

Modify Child Custody and Support. On November 5, 2021 and

April 15, 2022 the Petitioner, James Judy appeared in person and by

attorney Mrs. Kathleen Shaul, Angela Freiner appeared in person

and represented herself. Additional trial testimony was also heard

by WebEx on January 28, 2022 by WebEx, due to the ongoing

pandemic, that testimony was stopped and not considered by the

court due to audio issues that both parties had.

Since the minor child was the subject of Mr. Judy’s Application for

Writ of Habeas Corpus has long been returned to Mr. Judy (See

Cause Number 14SL-DR02617-02) the Court hereby dismisses the

Application for Writ of Habeas Corpus as moot.

Id.

From review of the aforementioned Court documents, it appears that defendant James Judy

was awarded custody of the minor child by St. Louis County Court in August of 2020. Despite the

Court Order, plaintiff failed to return the minor child to James Judy throughout 2021. However, at

some point in 2022, the minor child was returned to James Judy pursuant to the Court Order.

Nonetheless, the Court is unable to ascertain who currently has legal custody of the minor child

pursuant to the Parenting Plan. And plaintiff’s allegations relative to “alienation of the child’s

affections,” interference with custody and emotional distress do not allege a particular time frame

or date of alleged occurrence such that the Court is unable to ascertain whether plaintiff is properly

alleging a cause of action under Missouri law.

Discussion

“In every federal case the court must be satisfied that it has jurisdiction before it turns to

the merits of other legal arguments.” Carlson v. Arrowhead Concrete Works, Inc., 445 F.3d 1046,

1050 (8th Cir. 2006). The Court has the duty to determine its jurisdiction and raise the issue of

subject matter jurisdiction sua sponte, if necessary. See City of Kansas City, Mo. v. Yarco Co.,

Inc., 625 F.3d 1038, 1040 (8th Cir. 2010). The Court must dismiss any action over which it

determines that it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3).

Federal courts are courts of limited jurisdiction. This Court has jurisdiction to hear cases

involving the Constitution, laws, or treaties of the United States under 28 U.S.C. § 1331, and cases

where diversity jurisdiction exists under 28 U.S.C. § 1332. If this Court lacks both diversity of

citizenship and federal question jurisdiction, the case is subject to dismissal for lack of jurisdiction.

See Auto-Owners Ins. Co. v. Tribal Ct. of Spirit Lake Indian Rsrv., 495 F.3d 1017, 1020-24 (8th

Cir. 2007) (finding that subject matter jurisdiction is lacking where there is neither diversity of

citizenship nor federal question jurisdiction).

Court has diversity jurisdiction under 28 U.S.C. § 1332 over cases where the citizenship of each

plaintiff is different from the citizenship of each defendant, and where the amount in controversy

is more than $75,000. Ryan ex rel. Ryan v. Schneider Nat. Carriers, Inc., 263 F.3d 816, 819 (8th

Cir. 2001). Plaintiff claims that the parties are residents of different states; however, “[d]iversity

jurisdiction requires that the parties be ‘citizens of different States.’” Sanders v. Clemco Indus.,

823 F.2d 214, 216 (8th Cir. 1987)) (quoting 28 U.S.C. § 1332(a)(1)) (emphasis in original)

(agreeing with district court that complaint stating individual's residency, but not citizenship, failed

to establish diversity jurisdiction). “[T]he term ‘citizen’ in 28 U.S.C. § 1332 has long meant

something different from ‘resident,’” and “[a] complaint or notice of removal resting on

residency...will not establish citizenship for diversity jurisdiction.” Hargett v. RevClaims, LLC,

854 F.3d 962, 965 (8th Cir. 2017) (citation omitted). And although “[f]or purposes of federal

jurisdiction, ‘domicile’ and ‘citizenship’ are synonymous terms,” Eckerberg v. Inter-State Studio

& Publ'g Co., 860 F.3d 1079, 1086 (8th Cir. 2017), the Court is unaware of any Eighth Circuit or

Supreme Court authority stating that merely alleging that an individual's “home address” is in a

particular state is sufficient to allege domicile. Plaintiff’s allegations regarding she and defendant’s

residency does not establish citizenship; thus, she fails to establish diversity jurisdiction for this

reason alone.

Furthermore, plaintiff has not properly alleged the amount in controversy. Regarding the

amount in controversy, a complaint making a good faith allegation of the jurisdictional amount is

sufficient to confer jurisdiction. Scottsdale Ins. Co. v. Universal Crop Prot. All., LLC, 620 F.3d

926, 931 (8th Cir. 2010). However, a “complaint will be dismissed if it appears to a legal certainty

that the claim is really for less than the jurisdictional amount.” Id. See also Kopp v. Kopp, 280 F.3d

883, 884 (8th Cir. 2002). “The legal certainty standard is met where the legal impossibility of

Peterson v. The Travelers Indem. Co., 867 F.3d 992, 995 (8th Cir. 2017).

As set forth above under the “Background” section of this Opinion, Memorandum and

Order, plaintiff’s allegations are difficult to discern because she has not indicated when they

allegedly occurred and if she had proper legal custody of the minor child at that time. It appears

that plaintiff is bringing claims against defendant for emotional distress, alienation of her child’s

affections and violation of her parental rights. However, the claim of alienation of the affections

of a child is not a recognized tort in Missouri. See Hester v. Barnett, 723 S.W.2d 544, 555–56

(Mo.Ct.App.1987). Likewise, plaintiff’s claim of intentional infliction of emotional harm is not a

tort in this context. An “action for intentional infliction of emotional distress cannot be maintained

where the underlying claim for alienation of affection is not actionable and the emotional distress

is the alleged consequence of the same acts which caused the child[ ] to separate from the parent.”

R.J. v. S.L.J., 810 S.W.2d 608, 609 (Mo.Ct.App.1991).2

Even if plaintiff were to establish one of the aforementioned torts, and as such, a claim to

damages, her complaint fails to properly allege such damages. Plaintiff has stated in a conclusory

manner that she suffered lost wages in an amount of $100,000. However, she has failed to indicate

in her complaint where this amount arose, as there is no mention in the complaint that she suffered

loss of her employment because of defendant Judy’s actions. There is nothing in the complaint to

substantiate the fact that plaintiff lost wages in the amount quoted in the complaint, as she has not

2Plaintiff also alleges that defendant illegally harbored her child, but even assuming this is a valid tort in

Missouri, it may only be brought by a custodial parent, and the Court is unsure if she was the proper

custodial parent during the time at which she was complaining. See Kipper v. Vokolek, 546 S.W.2d 521,

525–26 (Mo.Ct.App.1977); see also Meikle v. Van Biber, 745 S.W.2d 714, 716–17 (Mo.Ct.App.1987).

Because none of these activities allegedly engaged in by the defendant are valid torts in Missouri, or if so,

one which plaintiff can legitimately assert, it follows that the Missouri long-arm statute is not applicable

to the defendant on these claims and damages are not available.

employment could be attributed to defendant’s actions as set forth in the complaint.

Similarly, plaintiff indicates that she is entitled to attorneys’ fees in this action in an amount

of $10,000 and punitive damages in an amount of $100,000. “[P]unitive damages are included in

the amount in controversy,” but “the existence of the required amount must be supported by

competent proof.” OnePoint Sols., LLC v. Borchert, 486 F.3d 342, 348 (8th Cir. 2007), quoting

Larkin v. Brown, 41 F.3d 387, 388-89 (8th Cir.1994). To submit punitive damages to the fact finder

in Missouri, a plaintiff must provide clear and convincing proof of a defendant's culpable mental

state. Peel v. Credit Acceptance Corp., 408 S.W.3d 191, 209 (Mo. Ct. App. 2013). A plaintiff

establishes the culpable mental state by showing that the defendant “‘committed an intentional

wanton, willful, and outrageous act without justification or acted with reckless disregard for the

[plaintiff's] rights and interest.’” Peel, 408 S.W.3d at 209-10 (emphasis and alteration in original)

(quoting Bailey v. Hawthorn Bank, 382 S.W.3d 84, 103 (Mo. Ct. App. 2012)).

Additionally, although “[s]tatutory attorney[s’] fees do count toward the jurisdictional

minimum for diversity jurisdiction,” plaintiff must establish the statutory basis for such fees.

Crawford v. F. Hoffman-La Roche Ltd., 267 F.3d 760, 764 (8th Cir. 2001), citing Missouri State

Life Ins. Co. v. Jones, 290 U.S. 199, 202 (1933). In other words, plaintiff would need to allege that

the causes of action under which she is bringing claims allow for statutory attorneys’ fees in order

to include these fees in the jurisdictional amount.

Federal question jurisdiction under 28 U.S.C. § 1331 gives district courts original

jurisdiction over civil actions arising under the Constitution, laws, or treaties of the United States.

Griffioen v. Cedar Rapids & Iowa City Ry. Co., 785 F.3d 1182, 1188 (8th Cir. 2015). Whether a

claim arises under federal law is determined by reference to the “well-pleaded complaint.” Great

Lakes Gas Transmission Ltd. P’ship v. Essar Steel Minn. LLC, 843 F.3d 325, 329 (8th Cir. 2016)

when a federal question is presented on the face of a plaintiff’s properly pleaded complaint. Id.

To the extent plaintiff is simply contesting a state-court custody decision regarding her

child and attempting to do an end-run around Missouri family court, such an action does not arise

under the Constitution, laws, or treaties of the United States. Moreover, this Court lacks

jurisdiction over cases involving child custody under the domestic relations exception to federal

court jurisdiction. In general, federal courts have no jurisdiction over domestic relations matters.

See Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992). Rather, state courts have exclusive

jurisdiction over these matters. Id. at 703-04. “The whole subject of the domestic relations of

husband and wife, parent and child, belongs to the laws of the states, and not to the laws of the

United States.” Ex parte Burrus, 136 U.S. 586, 593-94 (1890); see also Kahn v. Kahn, 21 F.3d

859, 861 (8th Cir. 1994) (“The domestic relations exception … divests the federal courts of

jurisdiction over any action for which the subject is a divorce, allowance of alimony, or child

custody.”) (internal citations omitted).

Nothing in plaintiff’s complaint indicates that the Court has jurisdiction over this matter.

The instant action does not arise under the Constitution, laws, or treaties of the United States, so

federal question jurisdiction pursuant to 28 U.S.C. § 1331 is inapplicable. Diversity jurisdiction

under 28 U.S.C. § 1332 does not exist here because it appears that plaintiff and defendants are all

are citizens of the same state. As a result, plaintiff will be required to show cause, within twenty-

one (21) days of the date of this Memorandum and Order, why this action should not be dismissed

for lack of subject matter jurisdiction.

Motion for Appointment of Counsel

Plaintiff has also filed a motion seeking appointment of counsel in this action. The motion

will be denied at this time. In civil cases, a pro se litigant does not have a constitutional or statutory

right to appointed counsel. Ward v. Smith, 721 F.3d 940, 942 (8th Cir. 2013). Rather, a district

court may appoint counsel in a civil case if the court is “convinced that an indigent plaintiff has

stated a non-frivolous claim...and where the nature of the litigation is such that plaintiff as well as

the court will benefit from the assistance of counsel.” Patterson v. Kelley, 902 F.3d 845, 850 (8th

Cir. 2018). When determining whether to appoint counsel for an indigent litigant, a court considers

relevant factors such as the complexity of the case, the ability of the pro se litigant to investigate

the facts, the existence of conflicting testimony, and the ability of the pro se litigant to present his

or her claim. Phillips v. Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006).

After reviewing these factors, the Court finds that the appointment of counsel is not

warranted at this time. Plaintiff has demonstrated that she can adequately present her claims to

the Court and neither the factual nor the legal issues in this case appear to be complex.

Accordingly,

IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF

No. 2] is GRANTED.

IT IS FURTHER ORDERED that plaintiff will be required to show cause, within

twenty-one (21) days of the date of this Memorandum and Order, why this action should not

be dismissed for lack of jurisdiction.

IT IS FURTHER ORDERED that if plaintiff fails to comply with the Court’s Order, this

action may be dismissed, without prejudice.

IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [ECF

NO. 3] is DENIED at this time.

Dated this 10" day of August, 2023.

HENRY EDWARD AUTREY

UNITED STATES DISTRICT JUDGE

-10-