Gadberry v. McQueen-Kuenzel et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JUSTIN GADBERRY, 	)
)
Plaintiff, 	)
)
v. 	) No. 4:23CV1311 HEA
)
JALESIA FRANKLINA McQUEEN KUENZEL 	)
and ANTHONY ALOYSIUS KUENZEL, III 	)
)
Defendants. 	)
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Second Motion to Dismiss,
[Doc. No 34]. Plaintiff has not responded to the Motion. Pursuant to the Court's
Local Rules, Plaintiff's failure to file a response can be construed as a concession
of the motion. See Local Rule 4.01. McIntosh v. Ameren UE, No. 4:09CV1461
HEA, 2009 WL 3754158, at *1 (E.D. Mo. Nov. 5, 2009) For the reasons set forth
below, the Motion will be granted.
Facts and Background
After the Court’s dismissal of Plaintiff’s Complaint, Plaintiff sought and
received leave to file his First Amended Complaint. The First Amended Complaint
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seeks recovery under the Servicemembers Civil Relief Act, 50 U.S.C. §3901, et
seq1.
Defendants move to dismiss the First Amended Complaint for failure to state
a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Discussion
On a motion to dismiss, the Court accepts as true all of the factual
allegations contained in the complaint, even if it appears that “actual proof of those
facts is improbable,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) and
reviews the complaint to determine whether its allegations show that the pleader is
entitled to relief. Id. at 555–56; Fed. R. Civ. P. 8 (a)(2). The principle that a court
must accept the allegations contained in a complaint as true is inapplicable to legal
conclusions, however. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating
“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice”). Although legal conclusions can provide
the framework for a complaint, they must be supported by factual allegations. Id.
The United States Supreme Court has cogently held:
The [Servicemembers] Civil Relief Act is always to be liberally construed to
protect those who have been obliged to drop their own affairs to take up the
1 On September 16, 2024, the Court granted Defendant’s’ Motion to dismiss Plaintiff’s
complaint under the Rooker/Feldman Doctrine, Rooker v. Fidelity Tr. Co., 263 U.S. 413 (1923),
and Dist. of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983), and the Domestic
Relations exemption to Federal jurisdiction. Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992)
(distinguishing a family tort claim from a child custody claim). Plaintiff has not reasserted these
claims in his First Amended Complaint.
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burdens of the nation. The discretion that is vested in trial courts to that end
is not to be withheld on nice calculations as to whether prejudice may result
from absence, or absence result from the service. Absence when one's rights
or liabilities are being adjudged is usually prima facie prejudicial.
Boone v. Lightner, 319 U.S. 561, 575 (1943); Taylor v. Ferguson, 437
S.W.3d 799, 806 (Mo. Ct. App. 2014). That being said, however, under the
Twombly/Iqbal directives, a complaint must set forth sufficient facts to show the
pleader is entitled to relief.
The First Amended Complaint fails these standards. The only reference to
the Servicemembers Civil Relief Act is Section 3901 which provides the name of
the statute. Plaintiff, in conclusory fashion, states that through the actions of
Defendants, Plaintiff has been damaged. Plaintiff sets forth no facts demonstrating
the source of the damages, the provisions of the Act that are causing the damages,
or the nature and extent of the damages. Merely referencing a statute does not
establish that Plaintiff would be entitled to relief.
Conclusion
Based upon the foregoing analysis, Plaintiff’s First Amended Complaint
fails to sufficiently allege claims upon which relief may be granted.
Accordingly,
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IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss, [Doc.
No. 34], is GRANTED.
Dated this 19 th day of November, 2025.
________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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