Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gross v. Gann

United States District Court, N.D. Mississippi, Aberdeen Division

August 20, 2014

CHARLES W. GROSS, M.D., Plaintiffs,
v.
BILLY B. GANN; and BEAR CREEK APARTMENTS, LTD., Defendants.

OPINION AND ORDER GRANTING MOTION TO DISMISS

DEBRA M. BROWN, District Judge.

This action arises from a dispute between Plaintiff Charles Gross and Defendant Billy Gann over control of the partnership that is Defendant Bear Creek Apartments, LTD. Before the Court is Defendants' motion to dismiss for failure to state a claim, Doc. #8; and Defendant Gann's motion to dismiss for lack of jurisdiction, Doc. #32. For the reasons below, this action is dismissed for lack of subject-matter jurisdiction.

I

Applicable Standards

Defendant Gann seeks to dismiss the complaint for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1); Defendants seek dismissal for failure to state a claim pursuant to Rule 12(b)(6).

A. 12(b)(1) Motion Standard

"Motions filed under Rule 12(b)(1)... allow a party to challenge the subject matter jurisdiction of the district court to hear a case. Lack of subject matter jurisdiction may be found in any one of three instances: (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." Ramming v. U.S., 281 F.3d 158, 161 (5th Cir. 2001) (internal citations omitted). Because the burden of proof rests on the party asserting jurisdiction, when considering a motion to dismiss for lack of subject-matter jurisdiction, "the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist." Id. "When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Id.

B. 12(b)(6) Standard

"A pleading that states a claim for relief must contain... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). When a complaint falls short of this directive, a defendant may move to dismiss the claim for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In considering the interplay between Rule 8 and Rule 12, the United States Supreme Court has explained that:

To survive a motion to dismiss [for failure to state a claim], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and punctuation omitted) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-58 (2007)). Under the Rule 12(b)(6) standard, a "court must accept all well-pleaded facts as true and view those facts in the light most favorable to the plaintiff." Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 803 n.44 (5th Cir. 2011) (internal quotation marks and punctuation omitted).

II

Relevant Allegations

On August 1, 1983, Plaintiff and Defendant Gann executed an Amended and Restated Agreement and Certificate of Limited Partnership ("Partnership Agreement") concerning control of Defendant Bear Creek. Doc. #1 at ΒΆ 5. Under the terms of the Partnership Agreement, Plaintiff was named as Limiting Partner, and Defendant Gann was named as General Partner. Id. Plaintiff ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.