Unpublished Dispositiondouglas Dwight Bennett, Plaintiff-appellant, v. General Caster Service of N. Gordon Company, Inc.; Richardd. Cowles, Sr.; Janice P. Cowles, Defendants-appellees, 893 F.2d 1334 (6th Cir. 1990)

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Douglas Dwight Bennett appeals the dismissal of his civil complaint for lack of subject matter jurisdiction. Bennett alleged that the defendant Michigan corporation and corporate officers were unduly enriched when they breached a contract with Bennett. Defendants moved to dismiss the complaint and the district court granted the motion over Bennett's objection. Upon consideration, we conclude that the dismissal was proper.

No basis for federal jurisdiction over plaintiff's complaint exists. Plaintiff alleged nothing that could be construed as a "federal question," see 28 U.S.C. § 1331, and diversity of citizenship is absent. See 28 U.S.C. § 1332. Plaintiff's claims arise, if at all, solely under state law and must be asserted in the state courts.

Further, defendants were not in default in failing to file an answer to the complaint. Fed. R. Civ. P. 12 clearly contemplates that a motion to dismiss for lack of subject matter jurisdiction, see Fed. R. Civ. P. 12(b) (1), may be filed before an answer is required. Fed. R. Civ. P. 12(a) specifically provides defendant 10 days in which to file an answer in the event such a motion is denied.

Finally, defendants' request for Fed. R. App. P. 38 sanctions is granted. Plaintiff's contentions on appeal are unmeritorious and the appeal is malicious and vexatious.

Therefore, the judgment of the district court is affirmed. Rule 9(b) (5), Rules of the Sixth Circuit. Defendant is awarded double costs of this appeal. Fed. R. App. P. 38.