Bonnell et al v. Karels et al

Filing 7

MEMORANDUM AND ORDER - Plaintiff will have 30 days in which to file an Amended Complaint, with attached exhibits, as specified in this Memorandum and Order. Plaintiff's failure to file an Amended Complaint in accordance with thisMemorandum and O rder will result in dismissal of this action without further notice. Plaintiff's motion for issuance of summons (Filing No. 6 ) is deniedwithout prejudice. The clerk's office is directed to set a pro se case management deadline using the following text: June 21, 2018: check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KATHLEEN T. BONNELL,

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Plaintiff,
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v.
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KENNETH JAMES KARELS,
)
GREAT WESTERN BANCORP,
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INC., DEVAN EISENMENGER, and )
DOES 1 THROUGH 25,
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Defendants.
)
)

4:18CV3066

MEMORANDUM
AND ORDER

Plaintiff filed this case on May 3, 2018. She has been granted leave to proceed
in forma pauperis. The court now conducts an initial review of Plaintiff’s complaint
to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
For the reasons discussed below, Plaintiff will need to file an Amended Complaint
before this case may proceed.
I. SUMMARY OF COMPLAINT
Plaintiff alleges that her mother maintained a checking account at the Great
Western bank in Ord, Nebraska, which passed to Plaintiff upon her mother’s death on
September 17, 2017, and that on October 2, 2017, the bank paid $2,151.85 out of the
account to Plaintiff’s brother, who wrote an unauthorized check to himself. Plaintiff
seeks reimbursement, plus damages for “intentional infliction of emotional distress”
in the amount of $75,000.00, and approximately $1,000.00 for attorney fees that were
incurred in attempting to resolve the matter. Named as Defendants are Great Western
Bancorp, Inc., its CEO, Kenneth Karels, and its Ord branch bank manager, Devan
Eisenmenger.

II. STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must
dismiss a complaint or any portion of it that states a frivolous or malicious claim, that
fails to state a claim upon which relief may be granted, or that seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
Pro se plaintiffs must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v.
Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading standard than
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations
omitted).
III. DISCUSSION
Plaintiff alleges that subject-matter jurisdiction exists pursuant to 28 U.S.C. §
1332, which provides that federal district courts shall have original jurisdiction of all
civil actions where the matter in controversy exceeds $75,000.00 and is between
citizens of different states. Plaintiff’s allegations fail to show that either of these
requirements is met in this case. “It is axiomatic that a court may not proceed at all in
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a case unless it has jurisdiction.” Crawford v. F. Hoffman-La Roche Ltd., 267 F.3d
760, 764 (8th Cir. 2001).
Under section 1332, the citizenship of each plaintiff must be different from the
citizenship of each defendant. Ryan v. Schneider Nat’l. Carriers, Inc., 263 F.3d 816,
819 (8th Cir. 2001). Plaintiff alleges that she is a citizen of Nebraska, that Great
Western Bancorp is a South Dakota corporation (and therefore a citizen of that state),
and that Mr. Karels likewise is a citizen of South Dakota. Plaintiff does not allege the
citizenship of Mr. Eisenmenger, but he is identified as the manager of the Ord branch
bank, so he most likely is a citizen of Nebraska. To proceed with this action based on
diversity of citizenship, Plaintiff must either allege sufficient facts to show that Mr.
Eisenmenger is not a citizen of Nebraska or else dismiss him as a Defendant. The
court on its own motion will grant Plaintiff leave to file an Amended Complaint for
this purpose.
The court also questions the legitimacy of Plaintiff’s claim for $75,000.00 in
damages for emotional distress. No facts are alleged in the Complaint to justify such
a large award. Where a complaint “alleges a sufficient amount in controversy to
establish diversity jurisdiction, but ... the court questions whether the amount alleged
is legitimate, the party invoking federal jurisdiction must prove the requisite amount
by a preponderance of the evidence.” Trimble v. Asarco, Inc., 232 F.3d 946, 959 (8th
Cir. 2000), abrogated on other grounds by Exxon Mobil Corp. v. Allapattah Servs.,
Inc., 545 U.S. 546 (2005). Plaintiff therefore will be required to amend her Complaint
to allege with particularity any symptoms or physical manifestations of her emotional
distress and to attach to the Amended Complaint copies of all supporting evidence,
including any pertinent medical records, to establish that the jurisdictional amount is
satisfied in this case.1 The court makes no determination at this time as to whether
1

To protect her privacy, Plaintiff may request that the Amended Complaint be
filed as a restricted access document which will only be accessible by the parties and
court users. See NECivR 5.3(c).
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damages for emotional distress are ever recoverable for the type of claim which is
alleged by Plaintiff, but may consider that question and any other legal issues when
it conducts an initial review of the Amended Complaint.
III. CONCLUSION
The court questions whether it has subject matter jurisdiction over this case.
Plaintiff will be given 30 days to file an Amended Complaint in order to show that
there is complete diversity of citizenship and also that the amount in controversy
exceeds $75,000.00. Exhibits must also be filed to support the amount of damages
claimed by Plaintiff for emotional distress.
IT IS THEREFORE ORDERED:
1.
Plaintiff will have 30 days in which to file an Amended Complaint, with
attached exhibits, as specified in this Memorandum and Order.
2.
Plaintiff’s failure to file an Amended Complaint in accordance with this
Memorandum and Order will result in dismissal of this action without further notice.
3.
Plaintiff’s motion for issuance of summons (Filing No. 6) is denied
without prejudice.
4.
The clerk’s office is directed to set a pro se case management deadline
using the following text: June 21, 2018: check for amended complaint.
DATED this 22nd day of May, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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