Blythe v. Southwest Airlines Co.

FILED
United States Court of Appeals
Tenth Circuit
June 18, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
BEVERLY FAYE BLYTHE,
Plaintiff - Appellant, No. 10-2047
v. (D. New Mexico)
SOUTHWEST AIRLINES (D.C. No. CIV-09-00739-JCH-RLP)
COMPANY,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff and appellant Beverly Faye Blythe, proceeding pro se, appeals
several adverse rulings by the district court in her action against Southwest
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Airlines for an injury she allegedly received while on a Southwest flight. We
affirm.
BACKGROUND
On July 27, 2009, Ms. Blythe filed a form complaint, purportedly pursuant
to 42 U.S.C. § 1983, based on the following claimed injury:
On July 24, 2006, I was traveling on Southwest Airlines flying from
Houston, Texas. I was served hot coffee in a clear plastic cup which
was sitting on a tray attached to the seat in front of me, when it
spilled directly into my crouch [sic] which caused me to be severely
burned.
Compl. at 2, R. Vol. 1 at 6. The complaint alleged no basis for federal
jurisdiction except for 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) (providing for
original federal jurisdiction over suits filed to address deprivations of federal
constitutional rights). Ms. Blythe failed to indicate either “yes” or “no” on the
area of the form complaint where she was instructed to indicate whether
Southwest Airlines was “acting under color of state law.” The complaint also
failed to allege the citizenship of Southwest Airlines for purposes of diversity of
citizenship, and it requested an unspecified amount of money for pain, suffering
and medical costs.
On September 23, 2009, Southwest filed a motion to dismiss the complaint
for failure to state a claim. On December 18, Southwest filed a second motion to
dismiss for lack of subject matter jurisdiction. On December 22, 2009,
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Ms. Blythe filed her first Motion to Amend and for an extension of time to file,
which stated as follows:
Plaintiff Beverly Blythe, in Pro Se, Plaintiff Beverly Blythe is
requesting Leave to file her claim and for Extension of Time to File,
Plaintiff’s “State of Claim” and “Subject-Matter.”
CONCLUSION
Plaintiff is requesting sixty days to file “Statement of Claim”
and “Subject Matter.”
Mot. at 1, R. Vol. 1 at 78. The motion did not, however, attach a proposed
amended pleading, as is required by the local rules.
On January 28, 2010, Magistrate Judge Richard L. Puglisi entered an order
denying Ms. Blythe’s motion to amend, but stating that she could re-file her
motion if she attached a copy of the proposed amendment, as required by the
court rules. On that same day, the district court granted Southwest’s motion to
dismiss for lack of subject matter jurisdiction. The court “conclude[d] that Blythe
ha[d] failed to allege sufficient facts to invoke this Court’s subject matter
jurisdiction and that she should not be allowed an opportunity to amend her
Complaint . . .” Mem. Op. & Order at 1, R. Vol. 1 at 108. More specifically, the
court held that Ms. Blythe had failed to invoke the court’s federal question
jurisdiction and did not allege federal jurisdiction based on diversity. The court
further held, as had Magistrate Judge Puglisi in his order of the same date, that
Ms. Blythe should not be permitted to amend her complaint because she had
failed to submit a proposed amended complaint or explain in any of her
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submissions how a proposed amendment would cure the jurisdictional
deficiencies that Southwest had identified in its motion to dismiss. The dismissal
was, however, without prejudice. Because it concluded that it lacked subject
matter jurisdiction over Ms. Blythe’s complaint, the district court denied as moot
Southwest’s motion to dismiss for failure to state a claim.
Accordingly, on January 28, 2010, the court entered final judgment in favor
of Southwest Airlines. On February 25, 2010 (after entry of final judgment),
Ms. Blythe filed her second motion to amend her complaint. The court denied
that motion as moot. Ms. Blythe appeals the January 28 entry of final judgment
in favor of Southwest Airlines, arguing: 1) the district court erred when it
dismissed her complaint without prejudice for lack of subject matter jurisdiction;
2) her complaint stated a claim upon which relief can be granted; and 3) the
district court erred in denying her motions for leave to file an amended complaint.
DISCUSSION
“We review de novo the district court’s dismissal for lack of subject-matter
jurisdiction.” Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005).
Furthermore, “[b]ecause the jurisdiction of federal courts is limited, there is a
presumption against our jurisdiction, and the party invoking federal jurisdiction
bears the burden of proof.” Id. (further quotation omitted).
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As indicated, Ms. Blythe filed her complaint on a form intended for § 1983
actions. “Section 1983 provides a federal cause of action against any person who,
acting under color of state law, deprives another of his federal rights.” Conn v.
Gabbert, 526 U.S. 286, 290 (1999). Ms. Blythe’s complaint included no
allegation that Southwest Airlines acted “under color of state law.” Thus, it
failed to state a federal claim or invoke federal subject-matter jurisdiction as a
§ 1983 action.
Ms. Blythe also challenges the district court’s conclusion that her
complaint failed to state a claim. The Supreme Court has recently clarified that to
withstand a motion to dismiss for failure to state a claim, a complaint must
contain enough allegations of fact “to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also
Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008). “The burden is
on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to
suggest’ that he or she is entitled to relief.” Robbins, 519 F.3d at 1247 (quoting
Twombly, 550 U.S. at 556). In an effort to give meaning to this “plausibility
requirement,” we have said that “[t]he allegations must be enough that, if
assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for
relief.” Id. at 1247.
We agree with the district court that Ms. Blythe has failed to state a claim
under either federal-question jurisdiction or diversity jurisdiction. As the district
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court observed, “Blythe has not alleged any facts to show a violation of her
federal constitutional or statutory rights [and] [i]t is also clear that Southwest
Airlines and its stewardess are private, not state, actors.” Mem. & Order at 4.
Furthermore, “Blythe does not contend in her response to Southwest’s motion to
dismiss that the court has diversity jurisdiction, nor does she set forth any facts
regarding citizenship or the amount in controversy.” Id. at 5. Rather, she simply
asserts over and over again without support that the courts have “federal question
jurisdiction” over her complaint. We affirm the district court’s determination that
Ms. Blythe’s complaint is properly dismissed without prejudice for lack of
subject-matter jurisdiction.
Finally, in response to Southwest’s second motion to dismiss, Ms. Blythe
requested an opportunity to amend her complaint and a 60-day extension of time
in which to do so. As the district court correctly observed, while the court should
freely give leave to amend when justice requires such amendment, a plaintiff
seeking to amend a complaint “must give adequate notice to the district court and
to the opposing party of the basis of the proposed amendment.” Calderon v. Kan.
Dep’t of Social & Rehab. Servs., 181 F.3d 1180, 1186-87 (10 th Cir. 1999).
“Without this information the district court is not required to recognize, let alone
grant, a motion to amend.” Hall v. Witteman, 584 F.3d 859, 868 (10th Cir.
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2009). 1 Ms. Blythe has not complied with this requirement. Accordingly, the
district court correctly denied her leave to amend her complaint.
Ms. Blythe’s remaining issue is her argument that the district court erred in
denying as moot her second motion for leave to filed an amended complaint, as
well as a motion to extend the time for filing. Inasmuch as the court had already
entered its final judgment in this case, we affirm the district court’s denial of
Ms. Blythe’s motion as moot.
CONCLUSION
For the foregoing reasons, the district court’s orders are AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
1
The applicable local rules also require a party seeking to amend or
supplement her pleadings to submit to the court the proposed amendment, along
with the motion to amend.
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