McCollum v. McCollum

Appellate Case: 21-3231 Document: 010110672843 Date Filed: 04/19/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 19, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
RANDY MCCOLLUM; RONNIE
MCCOLLUM,
Plaintiffs - Appellants,
v. No. 21-3231
(D.C. No. 2:21-CV-02493-HLT-GEB)
FRANK MCCOLLUM; DONNIE (D. Kan.)
MCCOLLUM,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, BALDOCK, and McHUGH, Circuit Judges.
_________________________________
Plaintiffs/Appellants Randy McCollum and Ronnie McCollum, citizens of
Kansas proceeding pro se, filed a civil action against Defendants/Appellees Frank
McCollum and Donnie McCollum, fellow citizens of Kansas.1 In their complaint,
*
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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
1
Because all of the parties share the same last name, we refer to the parties by
their first names. Further, because Randy and Ronnie proceed pro se, “we liberally
construe [their] filings, but we will not act as [their] advocate.” James v. Wadas, 724
F.3d 1312, 1315 (10th Cir. 2013).
Appellate Case: 21-3231 Document: 010110672843 Date Filed: 04/19/2022 Page: 2
Randy and Ronnie seemingly asserted claims based on fraud/embezzlement, the
failure to repay a loan, and elder abuse/physical injury. The district court issued an
order to show cause why subject-matter jurisdiction existed over the action. Randy
and Ronnie answered the show cause order, indicating the fraud/embezzlement
underlying one of their claims involved crop insurance funds regulated by the United
States Department of Agriculture (“USDA”). But Randy and Ronnie did not identify
any federal statute creating a private right of action. The district court dismissed the
action for lack of subject-matter jurisdiction, and Randy and Ronnie appeal. We
affirm.
I. BACKGROUND
Randy and Ronnie filed a complaint that identified themselves, as well as
Frank and Donnie, as citizens of Kansas. In their complaint, Randy and Ronnie
advanced a claim for “embezzlement,” alleging in July 1998, Frank used Ronnie’s
social security number to obtain USDA crop insurance funds, but Frank retained all
of the crop insurance funds for his personal use. ROA Vol. I at 7. Randy and Ronnie
also advanced a claim sounding in contract law based on Frank’s and Donnie’s
alleged failure to repay a $5,000 loan for a tractor. Finally, through their complaint,
they advanced a claim for “elder[] abuse[]” against Frank based on an unspecified
incident in November 2008. Id. at 8.
Relative to jurisdiction, Randy and Ronnie checked off the box on the
complaint form for a civil or equal rights action arising under 28 U.S.C. § 1343. The
district court issued an Order and Notice to Show Cause, in part directing Randy and
2
Appellate Case: 21-3231 Document: 010110672843 Date Filed: 04/19/2022 Page: 3
Ronnie to identify how the court could take subject-matter jurisdiction over the
action where the action did not appear to advance a claim for the deprivation of a
civil right. Randy and Ronnie responded to the order by scribbling several notations
onto the order and returning it to the district court. In one place, they indicated
“USDA & crop insurance[,] [t]hey are Federal Busines[s].” Id. at 33. In another
place, they wrote “Frank McCollum put a hay hook 2 inches in the top of Randy[]
McCollum[‘s] head. We are getting x-rays from Eureka, KS hospital. [T]his is
attempt[ed] murder.” Id. And Randy and Ronnie submitted to the district court a copy
of 7 U.S.C. § 1515, which pertains to a crop insurance fund program. Randy and
Ronnie, however, did not identify how their action involved the alleged deprivation
of a civil right.
The district court dismissed the action for want of subject-matter jurisdiction.
In support of this conclusion, the district court observed there was not diversity of
citizenship between the parties and the claims advanced by Randy and Ronnie,
although partially involving monies distributed by a federal agency, sounded in state
tort and contract law. Randy and Ronnie appeal, advancing the same statements they
presented in response to the district court’s order to show cause.
II. DISCUSSION
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a district court may
dismiss a complaint for lack of subject-matter jurisdiction. Where, as here, a district
court dismisses an action for lack of subject-matter jurisdiction without taking
3
Appellate Case: 21-3231 Document: 010110672843 Date Filed: 04/19/2022 Page: 4
evidence, we review the dismissal de novo. Pueblo of Jemez v. United States, 790
F.3d 1143, 1151 (10th Cir. 2015).
“The burden of establishing subject-matter jurisdiction is on the party asserting
jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002). Thus, Randy and
Ronnie needed to identify a basis upon which the district court could take jurisdiction
over their case and reach the merits of their claims. “The district courts of the United
States . . . are ‘courts of limited jurisdiction. They possess only that power authorized
by Constitution and statute.’” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S.
546, 552 (2005) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994)). Generally speaking, through 28 U.S.C. §§ 1331 and 1332, “Congress
granted federal courts jurisdiction over two general types of cases: cases that ‘arise
under’ federal law, § 1331, and cases in which the amount in controversy exceeds
$ 75,000 and there is diversity of citizenship among the parties, § 1332(a).” Home
Depot U. S. A., Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019). Where Randy and
Ronnie alleged in their complaint that they and Frank and Donnie are all citizens of
Kansas, ROA Vol. I at 6, the action could not arise in diversity jurisdiction.
Accordingly, Randy and Ronnie needed to satisfy § 1331’s federal-question
jurisdiction for the district court to possess authority to entertain the action. See
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (“Absent diversity of
citizenship, federal-question jurisdiction is required.”).
“The presence or absence of federal-question jurisdiction is governed by the
‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only
4
Appellate Case: 21-3231 Document: 010110672843 Date Filed: 04/19/2022 Page: 5
when a federal question is presented on the face of the plaintiff’s properly pleaded
complaint.” Id. Additionally, for a plaintiff to invoke federal-question jurisdiction,
the “cause of action must either be (1) created by federal law, or (2) if it is a
state-created cause of action, its resolution must necessarily turn on a substantial
question of federal law.” Nicodemus v. Union Pac. Corp., 318 F.3d 1231, 1235 (10th
Cir. 2003) (internal quotation marks omitted).
“The ‘vast majority’ of federal-question jurisdiction cases [are those where] a
‘suit arises under the law that creates the cause of action.’” Id. at 1236 (quoting
Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 808 (1986)). Here, while
Randy and Ronnie alleged, relative to their embezzlement claim, that the USDA
played a role in distributing to Frank the money at issue, they did not identify any
federal statute providing for a private federal cause of action for the facts they
alleged in their complaint.2 Nor did they identify any federal statute relative to claims
based on a loan, elder abuse, or attempted murder. Accordingly, Randy and Ronnie,
having not identified a federal statute creating a private right of action, needed to
demonstrate their claims involved a substantial question of federal law. See Morris v.
2
Randy and Ronnie attempted to rely upon 7 U.S.C. § 1515. To be sure, this
provision does provide for an enforcement action where an individual engaged in
fraud or provided false information when obtaining funds from the Federal Crop
Insurance Corporation. 7 U.S.C. § 1515(h); see also 7 U.S.C. § 1502(b)(5) (defining
Corporation as used in § 1515(h)). But the provision gives authority to the Secretary
of Agriculture to pursue such an action, not a private individual. See 7 U.S.C.
§ 1515(h)(3), (4). And Congress giving authority to a federal agency to enforce
violations of a federal program can cut against the existence of a private right of
action. See Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S.
1, 13–14, 22 (1981).
5
Appellate Case: 21-3231 Document: 010110672843 Date Filed: 04/19/2022 Page: 6
City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (concluding that where plaintiff
did not identify federal law creating cause of action for contract claim, “federal
jurisdiction will lie only if resolution of th[e] breach of contract claim requires
resolution of a substantial question of federal law”).
“When making the determination of whether a nonfederal claim turns on a
substantial question of federal law, courts should exercise ‘prudence and restraint.’”
Id. (quoting Merrell Dow Pharms. Inc., 478 U.S. at 810). “[F]ederal jurisdiction can
be found in state-law created causes of action if the right to relief turns on the
construction of a federal law.” Id. “Nevertheless, the ‘mere presence of a federal
issue in a state cause of action does not automatically confer federal-question
jurisdiction.’” Id. (quoting Merrell Dow Pharms. Inc., 478 U.S. at 813). Randy and
Ronnie did not identify any question of federal law, substantial or otherwise,
underlying their claims based on a loan, elder abuse, and attempted murder. Nor can
we imagine any such question of federal law exists where these claims are inherently
and entirely state-law in nature. And, although the “embezzlement” claim allegedly
involved funds distributed by a federal agency, nothing on the face of Randy’s and
Ronnie’s complaint or their response to the show cause order suggested resolution of
the claim would entail interpreting any federal law. Rather, the claim appeared to
focus on whether Frank had Ronnie’s permission to use Ronnie’s social security
number and retain the federal crop insurance funds, or if Frank entered into an
agreement with Ronnie to perform the administrative tasks necessary to obtain the
crop insurance funds on Ronnie’s behalf and then distribute all or part of the funds to
6
Appellate Case: 21-3231 Document: 010110672843 Date Filed: 04/19/2022 Page: 7
Ronnie. ROA Vol. I at 7–8. Accordingly, if Randy’s and Ronnie’s claims may be
heard in any court, they would need to present the claims in a state court rather than a
federal court.
III. CONCLUSION
We AFFIRM the district court’s dismissal of Randy’s and Ronnie’s action for
want of subject-matter jurisdiction.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
7