United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE
before the Court are plaintiffs Elbert Kirby, Jr. and Kay
Kirby's complaint (Dkt. # 2), and motion for leave to
proceed in forma pauperis (Dkt. # 3).
Court addresses plaintiffs' complaint sua sponte
because “[f]ederal courts ‘have an independent
obligation to determine whether subject-matter jurisdiction
exists, even in the absence of a challenge from any
party,' and thus a court may sua sponte raise
the question of whether there is subject matter jurisdiction
‘at any stage in the litigation.'” Image
Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d
1044, 1048 (10th Cir. 2006) (quoting Arbaugh v. Y & H
Corp., 546 U.S. 500, 501 (2006)); see
Fed.R.Civ.P. 12(h)(3) (“If the court determines at any
time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”). In addition, 28 U.S.C.
§ 1915(e)(2)(B)(ii) directs the Court to dismiss a case
if, at any time, it determines that the action fails to state
a claim on which relief may be granted. Isham v. United
States, 717 Fed. App'x 770, 772 (10th Cir.
case, plaintiffs are proceeding pro se and,
consistent with Supreme Court and Tenth Circuit precedent,
the Court will construe their pro se pleadings
liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972); Gaines v. Stenseng, 292 F.3d 1222, 1224
(10th Cir. 2002). With respect to subject-matter
jurisdiction, defendants do not allege any facts to suggest
that the Court can exercise diversity jurisdiction under 28
U.S.C. § 1332(a). Instead, the Court considers whether
the complaint states any basis for the Court to exercise
federal question jurisdiction over plaintiffs' claims
under 28 U.S.C. § 1331.
purport to file their complaint “under authority of 18
U.S.C. § 1028A and 21 OK Stat § 21-1533.1, ”
and list thirteen causes of action. Dkt. # 2, at 1-6. The first,
second, and third causes of action allege state law claims
only, and, therefore, do not confer federal question
jurisdiction. Id. at 1-2. The fourth, fifth, sixth,
seventh, ninth, tenth, and eleventh causes of action cite to
“15 U.S.C. § 1028”; the eighth and
thirteenth causes of action cite to “the Act, ”
i.e., 18 U.S.C. § 1028A; and the fourteenth
cause of action cites to 18 U.S.C. § 1028. Id.
at 3-6. Finally, although not clearly identified as
pertaining to a specific cause of action, the complaint also
cites to various sections of the Fair Debt Collections
Practices Act (FDCPA),  15 U.S.C. §§ 1692d, 1692e,
1692f, 1692a(6), and 1692(a)(k). Id. at 6-7.
extent plaintiffs cite to 15 U.S.C. § 1028, the Court
assumes that plaintiffs intended to cite to 18 U.S.C. §
1028 instead, because 15 U.S.C. § 1028 does not exist.
Nonetheless, plaintiffs' citations to 18 U.S.C.
§§ 1028 and 1028A fail to confer federal question
jurisdiction, because those are criminal statutes that do not
provide for a private right of action and, thus, are not
enforceable through a civil action. See Andrews v.
Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007). The sole
federal statute cited in the complaint pursuant to which the
Court might have federal question jurisdiction is the FDCPA.
However, even assuming that plaintiffs' reference to the
FDCPA confers federal question jurisdiction, the Court finds
that dismissal of the complaint is nonetheless warranted
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
sua sponte dismissal of a pro se complaint
pursuant to § 1915(e)(2)(B)(ii) for failure to state a
claim “is appropriate only where it is patently obvious
that the plaintiff could not prevail on the facts alleged,
and allowing him an opportunity to amend his complaint would
be futile.” Whitney v. New Mexico, 113 F.3d
1170, 1173 (10th Cir. 1997). The FDCPA is a federal statute
that provides consumers with a private right of action to sue
debt collectors, as that term is defined in 15 U.S.C. §
1692a(6). Plaintiffs have not alleged that
“the principal purpose” of defendants'
business “is the collection of . . . debts” or
that they “regularly collect or attempt to collect,
directly or indirectly, debts owed or due . . . .”
Accordingly, plaintiffs have not alleged, nor can they
allege, that defendants are debt collectors to whom the FDCPA
applies. Rather, as plaintiffs make clear, the principal
purpose of defendants' business is to provide roof
construction or replacement services. Dkt. # 2, at 1-2. In
fact, plaintiffs hired defendants as contractors to repair
the roof of their home. Id at 2, 7. Moreover, to the
extent plaintiffs allege that defendants took their money
without their consent, such actions do not constitute the
collection of a debt under the FDCPA. Tatten v. City
& Cty. of Denver, 730 Fed. App'x 620, 627 (10th
Cir. 2018). Accordingly, even construing plaintiffs'
complaint liberally and accepting the allegations therein as
true, it is clear that plaintiffs cannot prevail on a claim
under the FDCPA, and that permitting them an opportunity to
amend the complaint would be futile. Therefore, the Court
finds that plaintiffs' claims under the FDCPA should be
dismissed for failure to state a claim on which relief may be
determined that plaintiffs' claims under the FDCPA should
be dismissed, the Court does not have any basis for
exercising federal subject-matter jurisdiction over
plaintiffs' remaining claims. Accordingly, the Court
finds that the complaint should be dismissed for lack of
subject-matter jurisdiction. As a result, the Court also
finds that plaintiffs' motion for leave to proceed in
forma pauperis should be deemed as moot.
IS THEREFORE ORDERED that, to the extent plaintiffs
allege claims under the Fair Debt Collection Practices Act,
15 U.S.C. § 1692 et seq., such claims are
dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim on which
relief may be granted.
IS FURTHER ORDERED that plaintiffs' complaint
(Dkt. # 2) is dismissed for lack of
subject-matter jurisdiction. A separate judgment of dismissal
is entered herewith.
IS FURTHER ORDERED that plaintiffs' motion for
leave to proceed in forma pauperis (Dkt. # 3) is
 This and other cited unpublished
decisions are not precedential, but may be cited for their
persuasive value. See Fed. R. App. P. 32.1; ...