United States District Court, E.D. Michigan, Southern Division
ORDER REGARDING DEFENDANT'S MOTION TO SET ASIDE
DEFAULT JUDGMENT AND RENEWED MOTION TO DISMISS COMPLAINT
Victoria A. Roberts United States District Judge
filed this case pro se in the Small Claims Court of
Isabella County, Michigan. On April 6, 2017, a nonappearance
default judgment was entered against Defendant for $5,
582.00. On April 24, 2017, Defendant removed the case to this
now moves to set aside the default judgment and dismiss the
complaint, arguing that: (1) the default judgment was
improper because Plaintiff never properly served Defendant
with the complaint; (2) Plaintiff fails to allege a waiver of
sovereign immunity - which is required when suing the United
States or one of its agencies; and (3) the complaint fails to
allege sufficient factual matter to state a plausible claim
for relief as required by the Supreme Court's decision in
Ashcroft v. Iqbal, 556 U.S. 662 (2009). [Doc. 15].
Court reviewed the motion. The grounds Defendant sets forth
for dismissing Plaintiffs complaint have merit. To proceed
against the United States or an agency of the United States
(such as the Social Security Administration), a plaintiff
must identify a waiver of sovereign immunity expressed in
statutory text. Lane v. Pena, 518 U.S. 187, 192
(1996); Reetz v. United States, 224 F.3d 794, 795
(6th Cir. 2000). Here, however, Plaintiff's complaint
fails to allege a waiver of sovereign immunity.
Defendant is correct that Plaintiff's complaint fails to
allege sufficient facts to state a plausible claim for
relief, which is required to survive a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6). See
Iqbal, 556 U.S. at 677-78. As the Court can best make
out, Plaintiff's complaint - a Small Claims
“Affidavit and Claim” form - states:
Soc. Secur. said that I received a loan from my Insur. Co.
while I was living at Main St. Living Foster Care. But I did
not[.] Received it at home. They were trying to get me to pay
them $2, 900.00 - $3, 000.00. Insur. Co. said I don't
have to pay back loan. Soc. because of this did not pay 3 mo.
rent at McBride Foster got me evicted for 1 mo. put in a
shelter house in Midland, MI for 1 mo. and then returned back
to Mc[Bride] Foster Care Home on terms of paying $20.00 a mo.
out of my [check] to live back at McBride Foster Home #10. To
this date I have had taken over $100.00 out of my [check] to
pay back the rent of $1, 700.00 and some. I also had to call
my 2 younger brothers [to use] his pick-up truck enclose[d]
trailer[;] they c[a]me from Gladwin to move my stuff back to
Gladwin in my Mom[']s shop garage now I have to repay
my brothers help use of truck trailer manual
[Doc. 1, PgID 7-8]. Nash seeks to recover $5, 500.
responding to Defendant's motion to dismiss would not
cure the defects in the complaint, the Court instead affords
Plaintiff leave to file an amended complaint pursuant to
Fed.R.Civ.P. 15(a)(1)(B). An amended complaint must: (1)
allege a waiver of sovereign immunity; and (2) set forth a
short and plain statement of the claim, specifying the legal
theory, statute and/or authority under which Plaintiff is
entitled to relief.
Plaintiff timely files an amended complaint that cures the
defects listed above, the Court will deny without prejudice
the motion to dismiss as moot. If Plaintiff does not timely
file an amended complaint, he must respond to Defendant's
arguments for dismissal and explain why his complaint should
not be dismissed.
an amended complaint or a response to Defendant's
arguments for dismissal must be filed by JULY 10,
must also respond to Defendant's motion to set aside
default judgment by JULY 10, 2017.
Plaintiff's filings in this case, including his amended
complaint and response to Defendant's motion to set aside
default judgment, MUST COMPLY with the Local Rules of this
Court, including the following relevant parts of Local Rule
Required Information. All papers presented for ...