Christenberry v. White (TV1)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

DORIS ANNETTE CHRISTENBERRY, )

)

Plaintiff, )

)

v. ) No.: 3:20-CV-176-TAV-DCP

)

ROBERT BRANDON WHITE, )

FELISHA WHITE, )

MARY SUE WHITE, )

BOBBY WHITE, )

PAULA JO EMBREE, )

Successor Trustee of The Dexter A. )

Christenberry, Jr. Living Trust, )

SHANKS & BLACKSTOCK, ATTYS, and )

JAMES L. SLOAN, )

)

Defendants. )

MEMORANDUM OPINION

This civil action, brought by plaintiff Doris Annette Christenberry, proceeding pro

se, is before the Court on four (4) pending motions to dismiss: Motion to Dismiss [Doc. 6]

filed by defendant James L. Sloan (“Sloan”); Motion to Dismiss [Doc. 10] filed by

defendants Robert Brandon White, Felisha White, Mary Sue White, and Bobby White

(collectively, “the Whites”); Motion to Dismiss [Doc. 13] filed by defendant Paula Jo

Embree (“Embree”); and Motion to Dismiss [Doc. 17] filed by defendant Shanks &

Blackstock, Attys (“Shanks & Blackstock”). Plaintiff responded in opposition [Docs. 16,

19, 20] to the motions made by Sloan, the Whites, and Shanks & Blackstock, and Sloan

replied [Doc. 18]. Also before the Court is plaintiff’s Motion for Extension of Time for

the Hearing of This Case [Doc. 21]. Responses in opposition to plaintiff’s motion were

filed by Sloan [Doc. 23], Embree [Doc. 24], and the Whites [Doc. 22].

For the reasons explained below, defendants’ motions to dismiss [Docs. 6, 10, 13,

17] will be GRANTED, and plaintiff’s complaint [Doc. 1] will be DISMISSED.

Accordingly, plaintiff’s Motion for Extension of Time for the Hearing of This Case

[Doc. 21] will be DENIED as MOOT.

I. Background

This case concerns a dispute over the ownership of real property located in

Seymour, Tennessee. Plaintiff appears to allege that, after her brother, Dexter

Christenberry, Jr., passed away, Embree, the trustee of his estate, claimed ownership of

H.A.G. Inc., a corporation in which plaintiff owned stock [Doc. 1 p. 5]. Plaintiff claims

that Embree then sold certain real property owned by H.A.G. Inc. (the “H.A.G. property”)

to the Whites for $600,000 [Id. at 5]. Plaintiff alleges that the Whites then converted the

H.A.G. property, which included a golf course, into a donkey farm [Id. at 5, 10].

Plaintiff filed this action on April 24, 2020 [Doc. 1]. The crux of plaintiff’s

complaint is that Dexter did not own H.A.G. Inc. at the time of his death, and, as a result,

the sale of the H.A.G. property to the Whites was unlawful [Id. at 5]. Plaintiff asserts a

claim of grand larceny against Embree for the allegedly unlawful sale of the H.A.G.

property [Id. at 8]. Plaintiff’s lawsuit includes Shanks & Blackstock, a law firm, for its

involvement in the allegedly unlawful sale, as well as Sloan, an appraiser, for allegedly

producing an unlawful appraisal of the H.A.G. property [Id. at 9]. Plaintiff also claims that

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the Whites “brought machines in and destroyed” the H.A.G. property [Id. at 5, 10]. As

relief, plaintiff requests that Embree return the $600,000 sale proceeds to defendant Bobby

White, defendant Bobby White remove his personal property from the H.A.G. property,

and “ALL property” be returned to H.A.G. Inc. and the children of plaintiff’s brother,

J.G. Christenberry [Id. at 10]. Plaintiff also requests $4,000,000 from the Whites for

damage to the H.A.G. property [Id.].

Defendants move to dismiss, arguing that plaintiff’s claims against them should be

dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure on the grounds

that plaintiff’s complaint fails to set forth facts that establish the Court’s subject matter

jurisdiction [Docs. 6, 7, 10, 11, 13, 14, 17, 18]. In the alternative, Sloan and Embree argue

that the Court should dismiss plaintiff’s complaint pursuant to Rule 12(b)(6) on the basis

that it fails to state a claim for which relief may be granted [Docs. 6, 7, 13, 14].

II. Legal Standard

The standards governing motions to dismiss under Rules 12(b)(1) and 12(b)(6) of

the Federal Rules of Civil Procedure differ in some respects. As for Rule 12(b)(1) motions,

“[f]ederal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 377 (1994). In other words, federal courts “have only the power that

is authorized by Article III of the Constitution and the statutes enacted by Congress

pursuant thereto.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). As

such, subject matter jurisdiction is a threshold issue that the Court must address and resolve

prior to reaching the merits of the case. Steel Co. v. Citizens for a Better Env’t, 523 U.S.

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83, 94–95 (1998); see also Fed. R. Civ. P. 12(h)(3) (providing that “[i]f the court

determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the

action”). Unlike a motion to dismiss for failure to state a claim under Rule 12(b)(6), “where

subject matter jurisdiction is challenged under Rule 12(b)(1), . . . the plaintiff has the

burden of proving jurisdiction in order to survive the motion.” RMI Titanium Co. v.

Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996) (quoting Rogers v. Stratton

Indus., 798 F.2d 913, 915 (6th Cir. 1986)). Rule 8(a)(1) requires “a short and plain

statement of the grounds for the court’s jurisdiction.” Fed. R. Civ. P. 8(a)(1). However,

the liberal pleading standard of Rule 8(a) “should not be read to alter the jurisdiction of

federal courts.” Wells v. Brown, 891 F.2d 591, 593 (6th Cir. 1989) (emphasis in original).

Rule 12(b)(1) motions fall into two categories: “facial attacks and factual attacks.”

United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). “A facial attack is a challenge

to the sufficiency of the pleading itself.” Id. (emphasis in original). In considering whether

jurisdiction has been established on the face of the pleading, “a district court takes the

allegations in the complaint as true, which is a similar safeguard employed under [Federal

Rule of Civil Procedure] 12(b)(6) motions to dismiss.” Gentek Bldg. Products, Inc. v.

Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). “A factual attack, on the other

hand, is not a challenge to the sufficiency of the pleading’s allegations, but a challenge to

the factual existence of subject matter jurisdiction.” Ritchie, 15 F.3d at 598 (emphasis in

original). In this case, defendants’ motions assert a facial attack on plaintiff’s assertion of

this Court’s subject matter jurisdiction.

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As for Rule 12(b)(6) motions, Rule 8(a)(2) sets out a liberal pleading standard.

Smith v. City of Salem, 378 F.3d 566, 576 n.1 (6th Cir. 2004). Thus, pleadings in federal

court need only contain “‘a short and plain statement of the claim showing that the pleader

is entitled to relief,’ in order to ‘give the [opposing party] fair notice of what the . . . claim

is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Detailed factual allegations

are not required, but a party’s “obligation to provide the ‘grounds’ of his ‘entitle[ment] to

relief’ requires more than labels and conclusions.” Id. (alterations in original). “[A]

formulaic recitation of the elements of a cause of action will not do,” nor will “an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (citing Twombly, 550 U.S. at 555, 557).

In deciding a Rule 12(b)(6) motion, the court must determine whether the complaint

contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550

U.S. at 570; accord Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). “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.” Iqbal,

556 U.S. at 678. Determining whether a complaint states a plausible claim for relief is

ultimately “a context-specific task that requires [the Court] to draw on its judicial

experience and common sense.” Id. at 679. In conducting this inquiry, the Court “must

construe the complaint in a light most favorable to plaintiff[ ], accept all well-pled factual

allegations as true, and determine whether plaintiff[ ] undoubtedly can prove no set of facts

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in support of those allegations that would entitle [her] to relief.” Bishop v. Lucent Techs.,

Inc., 520 F.3d 516, 519 (6th Cir. 2008) (citing Harbin-Bey v. Rutter, 420 F.3d 571, 575

(6th Cir. 2005)). Thus, in this case, the Court construes the pleadings in the same way for

purposes of both Rules 12(b)(1) and 12(b)(6)—i.e., the Court takes the material allegations

of the complaint as true and draws all reasonable inferences in plaintiff's favor. See id.;

Ritchie, 15 F.3d at 598.

Finally, the Court notes that plaintiff here is proceeding pro se. Pro se pleadings

are to be “liberally construed” and “held to less stringent standards than formal pleadings

drafted by lawyers.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). However, a pro se party

“will not be relieved of the responsibility to comply with the basic rules of the court.”

Brown v. Woodward, No. 95-5792, 1998 WL 211785, at *1 (6th Cir. 1998); Felts v.

Cleveland Hous. Auth., 821 F. Supp. 968, 970 (E.D. Tenn. 2011). As such, this Court is

not required to construct claims for the plaintiff because to do so would “‘transform the

district court from its legitimate advisory role to the improper role of an advocate seeking

out the strongest arguments and most successful strategies for a party.’” Lawrence v.

Maryland, No. 3:18-CV-304, 2019 WL 4723073, at *8 (E.D. Tenn. Sept. 26, 2019)

(quoting Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)).

III. Discussion

A. Subject Matter Jurisdiction

Defendants argue that the Court should dismiss plaintiff’s complaint under Rule

12(b)(1) because it suggests no basis for federal subject matter jurisdiction. Sections 1331

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and 1332 set forth the statutory bases for this Court’s subject matter jurisdiction. See 28

U.S.C. §§ 1331, 1332; Arbaugh v. Y & H Corp., 546 U.S. 500, 513 (2006). Plaintiff asserts

the Court’s subject matter jurisdiction under 28 U.S.C. § 1331 [Doc. 1 p. 2]. Section 1331

governs federal-question jurisdiction, which requires a plaintiff to plead a colorable claim

that arises under the U.S. Constitution or federal statutes enacted by Congress. See 28

U.S.C. § 1331. Plaintiff’s complaint, which fails to cite any federal constitutional or

statutory provision which plaintiff claims has been violated, suggests no basis for the

Court’s federal-question jurisdiction.1 See Turner v. Metro. Sav. Bank, 182 F.3d 918

(table), 1999 WL 454696, at *1 (6th Cir. 1999) (affirming the dismissal of a pro se

complaint that, even when construed liberally, “did not refer to federal law, or allege

diversity of citizenship under 28 U.S.C. § 1332”).

Further, this is not a case in which diversity of citizenship may give rise to federal

jurisdiction under 28 U.S.C. § 1332 because it appears that all defendants reside or do

business in the state of Tennessee [see Doc. 1 p. 1]. Plaintiff states that “this case involves

a [b]usiness doing business in China, [plaintiff’s brother’s] Chinese Child, [and] a former

Chinese wife” [Doc. 20 p. 2]. Additionally, plaintiff references another case in which she

is involved, alleging fraud and “[f]raudulent lending” against Wells Fargo, India, a

1 Plaintiff’s responds by making general assertions regarding the jurisdiction of federal

courts—e.g., that federal courts address issues related to the “Constitution, Life, Liberty, and The

Possession of Land” [Doc. 16 p. 2; Doc. 19 p. 2; Doc. 20 p. 2]. However, “[s]uch allegations are

insufficient to establish this Court’s subject matter jurisdiction over plaintiff’s claims because

simply referencing constitutional provisions or federal statutes is insufficient to establish subject

matter jurisdiction.” Wilder v. Swann, No. 3:11-CV-93, 2011 WL 4860041, at *4 (E.D. Tenn. Oct.

13, 2011).

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deceased judge, and deceased lawyers, “stating that if The American People have a Justice

System, a Federal Court and a Federal Judge should hear cases that involve the take-over

of corporations, and the taking of American Land by Chinese and by India [sic]” [Id. at 3].

To establish diversity jurisdiction under § 1332, all plaintiffs must be citizens of states

different from all defendants. See Roberts v. Mars Petcare US, Inc., 874 F.3d 953, 955

(6th Cir. 2017). Accordingly, plaintiff’s attempt to establish the Court’s diversity

jurisdiction based on the citizenship of her brother’s former wife and child, neither of

whom are parties to the instant lawsuit, fails. For the same reason, plaintiff may not

predicate the Court’s jurisdiction on the activities of a business that is not a party to this

lawsuit, nor may plaintiff establish the Court’s subject matter jurisdiction in this case based

on the facts of another case. Accordingly, even construing plaintiff’s complaint liberally

in light of her pro se status, the Court finds that the claims and allegations in the complaint

do not meet the minimal, liberal pleading requirements of Rule 8(a) in regard to subject

matter jurisdiction.

B. Failure to State Claims for Which Relief May be Granted

In the alternative, Sloan and Embree argue that the Court should dismiss plaintiff’s

complaint under Rule 12(b)(6) because her “allegations are conclusory and do not inform

the Defendant on what basis the Plaintiff is bringing her lawsuit against him” [Doc. 7 p. 6;

see Doc. 14 p. 6]. Plaintiff asserts a claim of grand larceny against Embree [Doc. 1 p. 8].

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Grand larceny previously constituted a criminal offense in Tennessee.2 See Tenn. Code

Ann. § 39-3-1103. “Criminal offenses may only be brought by a prosecuting authority and

contain no private right of action.” Glenn-Lopez v. Mangrum, No. 2:17-cv-02147, 2019

WL 2537661, at *7 (W.D. Tenn. Jan. 31, 2019) (citing Hamilton v. Reed, 29 F. App’x 202,

204 (6th. Cir. 2002) (stating that a private citizen has no authority to initiate a federal

criminal prosecution)). Accordingly, plaintiff’s grand larceny claim fails to state a claim

for which relief may be granted.

The only allegation plaintiff asserts against Sloan is that his appraisal of the H.A.G.

property was “unlawful” [Doc. 1 p. 9].3 Further, plaintiff does not request relief

against Sloan [see id. at 10]. As noted previously, “an unadorned, the-defendant-

unlawfully-harmed-me accusation” fails to state a claim showing entitlement to relief.

Iqbal, 556 U.S. at 678. And “absent a clear allegation or claim of relief, the Court will not

create one.” Little v. Carl, No. 2:19-CV-18, 2020 WL 5201306, at *4 (E.D. Ky. Aug. 6,

2020); see also Leadingham v. Bowser, No. 2:14-CV-10457, 2014 WL 651166, at *2 (E.D.

Mich. Feb. 18, 2014) (dismissing pro se plaintiff’s complaint for failure to state a claim

2 Under modern Tennessee law, theft of property is a criminal offense pursuant to § 39-

14-103. See Tenn. Code Ann. § 39-14-103; State v. Gentry, 538 S.W.3d 413, 426 (Tenn. 2017)

(applying § 39-14-103 to theft of real property).

3 The Court notes that plaintiff’s response in opposition to Sloan’s motion states that “this

Appraisal is a part of the Documents that would be very Fraudulently establishing the Value of

this Land and in the Fraudulent Orchestrating of the take-over of an established Corporation,

H.A.G. Inc. in 1987 [sic]” [Doc. 16 p. 2]. “However, it is axiomatic that the complaint may not

be amended by the briefs in opposition to a motion to dismiss.” Car Carriers, Inc. v. Ford Motor

Co., 745 F.2d 1101, 1107 (7th Cir. 1984) (citing Jacobson v. Peat, Marwick, Mitchell & Co., 445

F. Supp. 518, 526 (S.D.N.Y. 1977); Chambliss v. Coca-Cola Bottling Corp., 274 F. Supp. 401,

409 (E.D. Tenn. 1967), aff’d on other grounds, 414 F.2d 256 (6th Cir. 1969). As such, the Court

limits its analysis to the allegations contained in plaintiff’s complaint.

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upon which relief may be granted where complaint “fail[ed] to state a discernible legal

claim,” relied on “conclusory allegations,” and “fail[ed] to request any particular form or

type of relief”). After thoroughly reviewing the complaint, and liberally construing

plaintiff’s claims, the Court finds that even taking the allegations in the complaint as true

and in the light most favorable to plaintiff, plaintiff fails to state a claim upon which relief

may be granted.

IV. Conclusion

For the reasons set forth above, defendants’ motions to dismiss [Docs. 6, 10, 13, 17]

will be GRANTED, and plaintiff’s complaint [Doc. 1] will be DISMISSED. Accordingly,

plaintiff’s Motion for Extension of Time for the Hearing of This Case [Doc. 21] will be

DENIED AS MOOT. The Clerk of Court will be DIRECTED to CLOSE this case.

IT IS SO ORDERED.

s/ Thomas A. Varlan

UNITED STATES DISTRICT JUDGE

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