Tocco v. Easley, No. 5:2010cv00172 - Document 8 (W.D. Ky. 2010)

Court Description: OPINION & ORDER denying 6 Motion to Amend Complaint; denying 7 Motion to Alter Judgment. Signed by Chief Judge Thomas B. Russell on 11/16/2010. cc:counsel (KJA)

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Tocco v. Easley Doc. 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT PADUCAH IDA JO TOCCO PLAINTIFF v. CIVIL ACTION NO. 5:10CV-172-R CHRISTOPHER LEE EASLEY DEFENDANT OPINION AND ORDER By Order entered November 3, 2010, Plaintiff s claims were dismissed by the Court pursuant to Federal Rule of Civil Procedure 12(h)(3) for lack of subject-matter jurisdiction. She has now filed a motion to amend her complaint and a motionasking the Court to alter, vacate, or amend the judgment dismissing this action. In its prior Memorandum and Opinion, the Court noted that Plaintiff had failed to properly invoke the Court s jurisdiction under 42 U.S.C. § 1985 because by its plain terms that section requires action by two or more persons, and Plaintiff had not alleged a conspiracy involving two or more persons. Plaintiff now alleges that the failure to name another person was an oversight, and her amended complaint indicates that her ex-husband, Defendant Easley, acted in concert with his sister to deprive Plaintiff of her property. The proposed amendment is futile because there is no allegation of a racial or otherwise class based invidiously discriminatory animus behind the actions of the alleged conspirators as required by § 1985. Denman v. Leedy, 479 F.2d 1097, 1098 (6th Cir. 1973). Rather, the substance of this claim is an intrafamily [dispute rendering] . . . this court [without] jurisdiction to entertain the present suit. Id. For the reasons set forth above, IT IS HEREBY ORDERED that Plaintiff s motion to amend her complaint (DN 6) is DENIED as futile. Having reviewed its prior Order of Dismissal, IT IS FURTHER ORDERED that Dockets.Justia.com Plaintiff s motion to alter, vacate or amend the Court s Order dismissing this action for lack of subject-matter jurisdiction (DN 7) is DENIED. Date: November 16, 2010 cc: Plaintiff, pro se 4413.008 2

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