                                                                                   FILED
                                                                       United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                           Tenth Circuit

                             FOR THE TENTH CIRCUIT                           October 28, 2019
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
 MICHAEL EUGENE PARKER, SR.,

       Plaintiff - Appellant,

 v.                                                           No. 19-3157
                                                  (D.C. No. 2:18-CV-02599-DDC-JPO)
 WI WATERSTONE, LLC,                                            (D. Kan.)

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, McKAY, and BACHARACH, Circuit Judges.**
                 _________________________________

      Michael Eugene Parker, Sr., proceeding pro se,1 appeals the district court’s

dismissal of his action for lack of subject matter jurisdiction and denial of his motion




      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
      1
         Because Mr. Parker is proceeding pro se, we construe his filings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also United States
v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se
litigant’s] arguments liberally; this rule of liberal construction stops, however, at the
point at which we begin to serve as his advocate.”).
for leave to amend his complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

                                 I. BACKGROUND

      WI Waterstone, LLC (“Waterstone”) is a limited liability company in Kansas.

Mr. Parker lived in a Waterstone-owned apartment complex in Kansas City, Kansas.

In July 2018, the Kansas City Police Department arrested and charged Mr. Parker

regarding a disturbance at the complex. He was jailed from July 13, 2018 until

October 11, 2018, when the district attorney dropped the charges.

      On November 7, 2018, Mr. Parker sued Waterstone, alleging diversity

jurisdiction. He claimed that while he was in jail, Waterstone employees had his

vehicle towed and wrongfully evicted him from his apartment. He sought $76,000 in

damages for wrongful incarceration, wrongful eviction, and mental distress.

      Mr. Parker filed an amended complaint, asserting violations of the Fourth and

Fourteenth Amendments and a claim for wrongful arrest. The amended complaint

referenced diversity jurisdiction but did not specify the parties’ citizenship or any

amount in controversy.

      Waterstone moved to dismiss Mr. Parker’s amended complaint for lack of

subject matter jurisdiction. Mr. Parker did not respond and instead sought leave to

amend his complaint again.

      The district court granted Waterstone’s motion to dismiss for lack of subject

matter jurisdiction and denied Mr. Parker’s motion for leave to amend. The court

determined Mr. Parker had failed to plead sufficient facts to establish either diversity

                                            2
or federal question jurisdiction. Because Mr. Parker’s proposed second amended

complaint did not remedy the jurisdictional defect, the court deemed amendment

futile and dismissed the action without prejudice.

                                   II. DISCUSSION

                             A. Subject Matter Jurisdiction

       A district court may dismiss a complaint for lack of subject matter jurisdiction

under Federal Rule of Civil Procedure 12(b)(1). Safe Sts. All. v. Hickenlooper, 859

F.3d 865, 877 (10th Cir. 2017). If the court does so “without taking evidence, as the

court did here, our review is de novo.” Id. (quoting Pueblo of Jemez v. United States,

790 F.3d 1143, 1151 (10th Cir. 2015)).

       “Federal courts are courts of limited jurisdiction, possessing only that power

authorized by Constitution and statute.” Pueblo of Jemez, 790 F.3d at 1151 (quoting

Gunn v. Minton, 568 U.S. 251, 256 (2013)). “[F]ederal subject matter jurisdiction is

elemental,” and it “must be established in every cause under review in the federal

courts.” Safe Sts. All., 859 F.3d at 878 (quoting Pueblo of Jemez, 790 F.3d at 1151).

The burden of establishing subject matter jurisdiction rests on the party asserting it.

Id. If the court lacks jurisdiction, it must dismiss the action. Id.

       When, as here, “a plaintiff files a complaint in federal court and then

voluntarily amends the complaint, courts look to the amended complaint to determine

jurisdiction.” Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473-74 (2007).

We conclude, as the district court did, that the amended complaint does not establish

either diversity or federal question jurisdiction.

                                            3
      Jurisdiction premised on diversity of citizenship requires that the parties be

completely diverse and the amount in controversy exceed $75,000. See 28 U.S.C.

§ 1332. The amended complaint here lacks sufficient information to establish either

requirement. It does not allege the citizenship of either party. Nor does it offer any

allegations that suggest the amount in controversy exceeds $75,000. The burden to

meet these requirements lies with Mr. Parker, the “party asserting jurisdiction.”

Pueblo of Jemez, 790 F.3d at 1151. He has failed to do so.2

      Federal question jurisdiction “exists only when a federal question is presented

on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v.

Williams, 482 U.S. 386, 392 (1987). When a federal claim is clearly unsubstantiated,

frivolous, or devoid of merit, “dismissal for lack of subject-matter jurisdiction

because of the inadequacy of the federal claim is proper.” Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 89 (1998).

      Construing his pleadings liberally and assuming their few allegations as true,

Mr. Parker has not presented a federal question “on the face” of his amended

complaint. Caterpillar, 482 U.S. at 392. Although the complaint references the

Fourth and Fourteenth Amendments, it does not explain how they were violated. It

cites Mr. Parker’s arrest warrant and eviction form but does not connect either


      2
         It also appears the parties are not completely diverse. Mr. Parker’s original
complaint and his reply brief on appeal state he is a citizen of Kansas. Waterstone,
as a limited liability company, takes the citizenship of each of its members. See
Siloam Springs Hotel, L.L.C. v. Century Sur. Co., 781 F.3d 1233, 1237-38 (10th Cir.
2015). Per Waterstone’s Corporate Disclosure Statement, one of its members is also
a citizen of Kansas.
                                           4
document to any specific violation of his rights. Mr. Parker’s mere use of federal law

labels is insufficient to invoke federal question jurisdiction. See Firstenberg v. City

of Santa Fe, 696 F.3d 1018, 1025 (10th Cir. 2012) (holding pro se litigant’s

“reference in the complaint to four different sources of federal law” was insufficient

to establish federal question jurisdiction); Kucera v. Cent. Intelligence Agency, 754

F. App’x 735, 737-38 (10th Cir. 2018) (affirming dismissal of pro se litigant’s

complaint for lack of subject matter jurisdiction where he “ha[d] not alleged facts

sufficient to show” a viable claim under federal law).3

       In sum, Mr. Parker has failed to establish in his amended complaint that the

district court had diversity or federal question jurisdiction over his action. We affirm

the court’s grant of Waterstone’s motion to dismiss for lack of subject matter

jurisdiction.

                                   B. Leave to Amend

       “[W]e generally review for abuse of discretion a district court’s denial of leave

to amend a complaint.” Barnes v. Harris, 783 F.3d 1185, 1197 (10th Cir. 2015)

(quoting Cohen v. Longshore, 621 F.3d 1311, 1314 (10th Cir. 2010)). When, as here,

the “denial is based on a determination that amendment would be futile, our review

for abuse of discretion includes de novo review of the legal basis for the finding of

futility.” Id. (quotations omitted).


       3
         Although not precedential, we find the reasoning of unpublished opinions
cited in this order and judgment instructive. See 10th Cir. R. 32.1 (“Unpublished
decisions are not precedential, but may be cited for their persuasive value.”); see
also Fed. R. App. P. 32.1.
                                           5
      “Although Federal Rule of Civil Procedure 15(a) provides that leave to amend

shall be given freely, the district court may deny leave to amend where amendment

would be futile.” Doe v. Woodard, 912 F.3d 1278, 1302 n.28 (10th Cir. 2019)

(quotations and alterations omitted). “A proposed amendment is futile if the

complaint, as amended, would be subject to dismissal.” Barnes, 783 F.3d at 1197

(quotations omitted).

      Mr. Parker’s proposed second amended complaint fails to cure the

jurisdictional defects discussed above. Although the proposed complaint cites the

Second, Third, Fourth, and Fourteenth Amendments, Mr. Parker provides no

explanation of how Waterstone violated their provisions. For instance, Mr. Parker

quotes the Second Amendment and then claims a Waterstone employee told the

police he was carrying a gun. But he does not articulate how the employee’s

statement may have violated his right to bear arms. See Garrett v. Selby Connor

Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“[T]he court cannot take on

the responsibility of serving as the litigant’s attorney in constructing arguments and

searching the record.”).

      Mr. Parker’s sparse factual allegations and mere references to the Constitution

are insufficient to establish subject matter jurisdiction. Because his proposed

complaint would not survive dismissal, the court did not err in concluding

amendment was futile. See Barnes, 783 F.3d at 1197; see also Craig v. United

States, 340 F. App’x 471, 474 (10th Cir. 2009) (affirming denial of pro se plaintiff’s

motion for leave to amend where amended federal law claims were “sufficiently

                                           6
attenuated, insubstantial, and frivolous” such that dismissal would be proper under

Rule 12(b)(1)).

                                III. CONCLUSION

      We affirm the district court’s dismissal of Mr. Parker’s amended complaint

and its denial of his motion for leave to amend.


                                           Entered for the Court


                                           Scott M. Matheson, Jr.
                                           Circuit Judge




                                           7
