Allen v. Club Car Wash, The

1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MIKE ALLEN, )
)
Plaintiff, )
)
v. ) Case No. 25-1106-DDC-GEB
)
THE CLUB CAR WASH, )
)
Defendant. )
)
NOTICE AND REPORT AND RECOMMENDATION
This matter is before the Court on Plaintiff’s Motion to Proceed without Prepayment
of Fees (ECF No. 4, sealed). For the reasons set forth below, the Court recommends the
motion to proceed in forma pauperis (ECF No. 4) be DENIED and this action be
DISMISSED.
I. Background1
Plaintiff Mike Allen brings this action against Club Car Wash seeking $1,802.37 for
damages to the driver side running board on his 2007 Lincoln Navigator which occurred
while getting the vehicle washed on May 20, 2025. Plaintiff alleges Club Car Wash posted
a sign directing users to “pull in all power running boards & mirrors before entry.” Plaintiff
retracted his power mirrors, but his vehicle is not equipped with controls to retract the
1 Unless otherwise indicated, the information recited in this section is taken from the Complaint
(ECF No. 1). This background information should not be construed as judicial findings or factual
determinations.
Case 6:25-cv-01106-DDC-GEB Document 7 Filed 01/08/26 Page 1 of 8

2
running boards. The running boards were down as Plaintiff took his vehicle through the
automatic car wash. Plaintiff alleges the rotating wash brushes got caught on the driver’s
side running board, use to much force, and do not rewind when caught on something. The
rotating wash brushes catching on the running board purportedly jerked the vehicle
sideways causing great noise, but the vehicle continued through the car wash. When
Plaintiff drove out of the car wash, he stopped the car and observed the driver’s side
running board was compromised and had been separated from its metal base.
Plaintiff informed the staff about the damage and filed a claim. Two days after the
incident, Club Car Wash wrote to Plaintiff concluding because their policy states “power
running boards need to be in the up position and left up during the entirety of the wash,” it
was not responsible for the damage to the vehicle caused to running boards which are left
down. Plaintiff filed the subject lawsuit shortly after his claim was denied. Plaintiff alleges
this Court has subject matter jurisdiction to hear this matter because it presents a federal
question. He alleges the basis for federal question jurisdiction is based upon 15 U.S.C. §
3901. Plaintiff additionally seeks to proceed without prepayment of fees.
II. Recommendation of Denial of In Forma Pauperis Status
Pursuant to 28 U.S.C. § 1915, a federal court may authorize the commencement of
any action without the prepayment of fees by a person who lacks financial means.2
2 Baldwin v. City of Osawatomie, No. 07-1097-WEB, 2007 WL 1652145, at *1 (D. Kan. June 7,
2007) (citing 28 U.S.C. § 1915(a)(1)).
Case 6:25-cv-01106-DDC-GEB Document 7 Filed 01/08/26 Page 2 of 8

3
Proceeding in forma pauperis in a civil case is a privilege, not a right,3 and the decision to
grant or deny such status is within the sound discretion of the court.4 In civil cases where
money damages are sought, “courts should grant the privilege ‘sparingly,’”5 but in denying
such an application, the court must neither act arbitrarily nor deny the application on
erroneous grounds.6 Typically, the court compares an applicant’s monthly income to his
monthly expenses to determine whether the applicant lacks the financial ability to pay.7
Plaintiff’s financial affidavit indicates he is not currently employed. He receives
both Social Security benefits and welfare payments.8 He lists certain monthly expenses for
groceries, gas, utilities, and insurance.9 Plaintiff’s revenues from Social Security and
welfare exceed his monthly expenses by $410 per month.
The undersigned does not believe Plaintiff has shown the financial inability to pay
the required fee to commence this action. However, a magistrate judge does not have the
authority under 28 U.S.C. § 636 to deny Plaintiff’s motion to proceed without payment of
fees.10 The undersigned Magistrate Judge RECOMMENDS the motion to proceed without
3 Patillo v. N. Am. Van Lines, No. 02-2162-JWL, 2002 WL 1162684, at *1 (D. Kan. Apr. 15,
2002).
4 Id. (citing Cabrera v Horgas, No. 98-4231, 1999 WL 241783, at *1 (10th Cir. Apr. 23, 1999)).
5 Patillo, at *1 (D. Kan. April 15, 2002).
6 Id.
7 See Patillo, at *1 (comparing the plaintiffs’ monthly household income to their monthly
expenses).
8 ECF No. 4-1, sealed.
9 Id.
10 See Lister v. Dept. of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (finding the denial of
plaintiff’s motion to proceed in forma pauperis is a dispositive matter and the magistrate judge
should issue a report and recommendation for de novo review by the district judge).
Case 6:25-cv-01106-DDC-GEB Document 7 Filed 01/08/26 Page 3 of 8

4
prepayment of fees (ECF No. 4, sealed) be DENIED, pending review of the
recommendation of dismissal herein. If the recommendation of dismissal is not adopted,
the undersigned would recommend Plaintiff be allowed to pay the filing fee in five monthly
payments of $81.00 The undersigned does not believe such payments would be an undue
burden on Plaintiff.
III. Recommendation of Dismissal
When reviewing an in forma pauperis motion under 28 U.S.C. § 1915, the court
must dismiss the case if the court determines the action 1) is frivolous or malicious, 2) fails
to state a claim upon which relief may be granted, or 3) seeks relief from a defendant who
is immune from suit.11 “Furthermore, under Fed. R. Civ. P. 12(h)(3), ‘[i]f the court
determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the
action.’”12 “Federal courts have limited jurisdiction and must possess subject matter
jurisdiction to hear a case.”13 Plaintiff, as the party invoking federal jurisdiction, has the
burden to allege facts demonstrating subject matter jurisdiction.14
Fed. R. Civ. P. 8(a)(2) requires a complaint provide a “a short and plain statement
of the claim showing that the pleader is entitled to relief.” “Factual allegations in a
complaint must be enough to raise a right to relief above the speculative level.”15 Because
11 28 U.S.C. § 1915(e)(2)(B)(i)–(iii).
12 Breedlove v. Burghart, No. 21-1170-JWB, 2021 WL 4170760, at *2 (D. Kan. Aug. 24, 2021)
(quoting King v. Huffman, No. 10-4152-JAR, 2010 WL 5463061, at *1 (D. Kan. Dec. 29, 2010)).
13 Id. (citing Nicodemus v. Union Pac. Corp., 318 F.3d 1231, 1235 (10th Cir. 2003)).
14 Id. (citing Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002)).
15 Kay v. Bemis, 500 F.3d 1214, 1218 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 544).
Case 6:25-cv-01106-DDC-GEB Document 7 Filed 01/08/26 Page 4 of 8

5
Plaintiff proceeds pro se, his pleadings must be construed liberally.16 However, he still
bears the burden to allege “sufficient facts on which a recognized legal claim could be
based.”17 The Court cannot “take on the responsibility of serving as [his] attorney in
constructing arguments and searching the record.”18 Fed. R. Civ. P. 8 “demands more than
naked assertions.”19
Plaintiff alleges the court has federal question subject matter jurisdiction based on
a violation of 15 U.S.C. § 3901. This conclusory statement without supporting facts is
insufficient to establish federal question jurisdiction. 15 U.S.C. § 3901 sets forth definitions
used in Chapter 65 of Title 15 of the United States Code which regulates insurance
retention risk groups and purchasing groups, licensing of agents for risk retention groups,
and provides certain exemptions from state law for the same.
Upon review of the Complaint in this matter, the undersigned finds it, on its face,
does not establish federal question jurisdiction based upon 15 U.S.C. § 3901, et seq. As set
forth above, Plaintiff’s claim is pled like a state tort claim for property damage against a
car wash. There are no allegations Car Wash Club is an insurance risk retention group,
purchasing group, or agent of same. There is no mention of insurance at all.
Although not specifically pled, the Court will review whether the Complaint
nonetheless sets forth sufficient facts to support diversity jurisdiction. Diversity
16 Hall v. Bellmon, 935 F. 2d 1106, 1110 (10th Cir. 1991).
17 Id.
18 Mays v. Wyandotte County Sheriff’s Dep’t, 2010 WL 6032763, at *2 (10th Cir. 2011) (citing
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005)).
19 Cohen v. Delong, 369 F. App’x 953, 957 (10th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662
(2009)).
Case 6:25-cv-01106-DDC-GEB Document 7 Filed 01/08/26 Page 5 of 8

6
jurisdiction requires complete diversity of citizenship between plaintiff and defendants.20
Additionally, the case’s amount in controversy must exceed $75,000.21 Plaintiff’s
Complaint does not make clear the citizenship of either party. It provides an address in
Wichita, Kansas for Plaintiff and in Columbia, Missouri for Club Car Wash. The Court
will liberally construe the allegations regarding Plaintiff to indicate he resides in Kansas.
However, a resident of state is not the same as a citizen of a state. An individual “is a citizen
of a state if the person is domiciled in that state.”22 Domicile is established by “physical
presence in a place with a certain state of mind concerning one’s intent to remain there.”23
A person’s residence is not synonymous with domicile.24 Plaintiff’s Complaint does not
allege facts sufficient for the Court to determine he is a citizen of Kansas.
Neither does he allege facts sufficient to support a finding Club Car Wash is a citizen
of Missouri. The citizenship of a business entity is determined by its organizational
structure. “In general, for jurisdictional citizenship, there are two types of business
organizations: corporations and unincorporated associations.”25 The Complaint does not
allege whether Club Car Wash is a corporation or an unincorporated association such as a
limited liability corporation or limited partnership. It neither alleges the state of
incorporation and principal place of business for Club Car Wash to establish the state(s) of
20 28 U.S.C. § 1332(a); Middleton v. Stephenson, 749 F.3d 1197, 1200 (10th Cir. 2014).
21 PHH Mortg. Corp. v. Stuber, No. 23-1123-DDC, 2024 WL 1344432, at *1 (D. Kan. Mar. 29,
2024) (citing 28 U.S.C. § 1332(a)).
22 Middleton at 1200 (citing Crowley v. Glaze, 710 F.2d 676, 678 (10th Cir. 1983).
23 Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989).
24 Siloam Springs Hotel, LLC. v. Century Sur. Co., 781 F.3d 1233, 1238 (10th Cir. 2015).
25 Grynberg v. Kinder Morgan Energy Partners, L.P., 805 F.3d 901, 905 (10th Cir. 2015).
Case 6:25-cv-01106-DDC-GEB Document 7 Filed 01/08/26 Page 6 of 8

7
citizenship if it is a corporation26 nor the citizenship of all its members if is an unassociated
association.27
Although the Court could grant Plaintiff leave to amend his Complaint to allege the
citizenship of the parties, it is not necessary as the current Complaint is specific regarding
the amount in controversy and it is not nearly enough to meet the jurisdictional amount.
The amount in controversy is $1,802.37.28 The only relief sought by Plaintiff is the
$1,802,37 estimated to repair the driver’s side running board on his vehicle. Based upon
Plaintiff’s allegations regarding the amount in controversy, he has not and cannot show the
court has diversity jurisdiction. After careful review and being mindful Plaintiff proceeds
pro se, the undersigned concludes the Complaint is insufficient to set forth subject matter
jurisdiction allowing the case to be heard in this court. The undersigned therefore
recommends the case be DISMISSED for a lack of subject matter jurisdiction under Fed.
R. Civ. P. 12(h)(3).
IV. Notice
Within fourteen (14) days after a party is served with a copy of this Report and
Recommendation, any party may, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.
72(b)(2), file written objections to this Report and Recommendation. A party must file any
26 Id. (citing 28 U.S.C. § 1332(c)(1) and Hertz Corp. v. Friend, 559 U.S. 77, 85, 88, 130 S.Ct.
1181, 175 L.Ed.2d 1029 (2010)).
27 Sepulveda v. Kansas Car Finder, No. 22-2338-DDC, 2022 WL 21784117, at *1 (D. Kan. Sept.
1, 2022) (citing Americold Realty Trust v. Conagra Foods, Inc., 577 U.S. 378, 381 (2016)).
28 ECF No. 1, at 4.
Case 6:25-cv-01106-DDC-GEB Document 7 Filed 01/08/26 Page 7 of 8

8
objections within the fourteen-day period if the party wants to have appellate review of the
proposed findings of fact, conclusions of law, or recommended disposition.
For the reasons set forth above, IT IS THEREFORE RECOMMENDED that
Plaintiff’s motion to proceed in forma pauperis (ECF No. 4) be DENIED. If the
recommendation of dismissal is not adopted, the undersigned would recommend Plaintiff
be allowed to pay the filing fee in five monthly payments of $81.00 The undersigned does
not believe such payments would be an undue burden on Plaintiff.
IT IS FURTHER RECOMMENDED the case be DISMISSED for a lack of
subject matter jurisdiction under Fed. R. Civ. P. 12(h)(3).
IT IS ORDERED that a copy of this recommendation shall be mailed to Plaintiff
by certified mail. Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), Plaintiff
may file a written objection to the proposed findings and recommendations with the clerk
of the district court within fourteen (14) days after being served with a copy of this report
and recommendation. Failure to make a timely objection waives appellate review of both
factual and legal questions.29
IT IS SO ORDERED.
Dates at Wichita, Kansas this 8th day of January, 2026.
s/ Gwynne E. Birzer
GWYNNE E. BIRZER
U.S. Magistrate Judge
29 Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).
Case 6:25-cv-01106-DDC-GEB Document 7 Filed 01/08/26 Page 8 of 8