Barta v. Farm Service Agency et al
MEMORANDUM AND ORDER that Defendants' Motions to Dismiss 26 , 28 , 30 and 44 are granted and Plaintiff's Complaint is dismissed without prejudice. A separate judgment will be entered in accordance with this Memorandum and Order. Defen dant Kathleen Laughlin's Motion to Strike Affidavit 37 is granted. The court has considered the corrected Affidavit 38 for purposes of this Memorandum and Order all other pending Motions and Objections are denied. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party) (JSF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DALE LEIGHTON BARTA,
FARM SERVICE AGENCY, et al.,
CASE NO. 8:11CV198
This matter is before the court on Defendants’ Motions to Dismiss. (Filing Nos. 26,
28, 30 and 44.) As set forth below, the Motions are granted.
BACKGROUND AND SUMMARY OF COMPLAINT
Plaintiff filed this matter on June 3, 2011. (Filing No. 1.) Plaintiff alleges claims
against 12 separate federal and Nebraska county officials and a bankruptcy trustee.1 (Id.)
Plaintiff’s Complaint is nonsensical, rambling, and extremely difficult to decipher.
As best as the court can tell, Plaintiff asserts “non judicial” claims against Defendants
relating to payments on “loans in 1982-2005.” (Id. at CM/ECF pp. 3, 7.) Although unclear
in the Complaint, Plaintiff apparently declared bankruptcy at some point prior to 2000, an
action that eventually resulted in foreclosure of his land. (Id. at CM/ECF p. 4.) Plaintiff
requests that the court issue “Crimminal [sic] Commercial Tresspassing [sic] charges”
against Defendants. (Id. at CM/ECF p. 5.) Plaintiff also “want[s] to collect on the default
of damage done to [him] of agony, anxiety, harassment, trespassing on [his] unalieable
[sic] rights under title 18 and ETC.” (Id.)2
For purposes of this Memorandum and Order, the court need not distinguish
between the separate groups of Defendants.
Although not specifically referenced in the Complaint, Plaintiff may have filed this
matter in response to a separate matter filed in this court against Plaintiff by some
Defendants. (See Case No. 8:11CV196, Filing No. 1.) The court entered judgment
Defendants filed their Motions to Dismiss, arguing, among other things, that
dismissal is warranted because this court lacks subject matter jurisdiction. (Filing Nos. 26,
29, and 33.)
Plaintiff responded to the pending Motions to Dismiss, again with
nonsensical, incomprehensible filings.3 However, Plaintiff did not respond to any of the
substantive arguments raised by Defendants. In light of this, the Motions to Dismiss are
deemed fully submitted.
SUBJECT MATTER JURISDICTION
Defendants argue that the claims against them should be dismissed because,
among other things, this court lacks subject matter jurisdiction. (Filing No. 8.) The court
against Plaintiff in that separate, related matter on September 19, 2011, finding that any
“UCC Financing Statements” and other documents filed by Plaintiff with the Nebraska
Secretary of State and other entities were “invalid, null and void and without any legal
effect.” (Case No. 8:11CV196, Filing No. 20.) The court also permanently enjoined
Plaintiff from filing any “UCC Financing Statements or other type of lien” against
Defendants “without first obtaining the express, written permission of this Court.” (Id.) The
court takes judicial notice of Case No. 8:11CV196. The court also takes judicial notice of
Case No. 8:11CV157, filed by Angeline M. Marsh, against 10 Defendants who are not
named in this matter. (See Case No. 8:11CV157, Filing No. 1.) Although the parties
appear to be unrelated, the Complaint and other filings are nearly-identical to the
Complaint in this matter. The court also recently dismissed that matter. (Case No.
8:11CV157, Filing Nos. 8 and 9.)
For example, Plaintiff states in one Objection that Defendants’ arguments for
dismissal have “no bearing on this case, because this is UNIFORM COMMERCIAL CODE
LAW.” (Filing No. 39 at CM/ECF p. 1.) Plaintiff also apparently believes the Motions to
Dismiss are improper because Defendants may not speak through counsel, but must
“speak for themselve’s [sic].” (Id.) Plaintiff states that he is “tired of answering bogus
paper work,” and that Defendants have all “admitted guilt.” (Filing No. 42 at CM/ECF p. 2.)
Diversity of Citizenship Jurisdiction
As set forth in the Federal Rules of Civil Procedure, “[i]f the court determines at any
time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ.
P. 12(h)(3). The statutory provisions conferring jurisdiction on the federal courts “are
strictly construed.” Hedberg v. State Farm Mut. Auto. Ins. Co., 350 F.2d 924, 928 (8th Cir.
1965). Subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1332, commonly
referred to as “diversity of citizenship” jurisdiction. For purposes of 28 U.S.C. § 1332,
“diversity of citizenship” means that “the citizenship of each plaintiff is different from the
citizenship of each defendant.” Ryan v. Schneider Natl. Carriers, Inc., 263 F.3d 816, 819
(8th Cir. 2001). In addition, the amount in controversy must be greater than $75,000.00
for diversity of citizenship jurisdiction. 28 U.S.C. § 1332(a). Where “a plaintiff's allegations
of jurisdictional facts are challenged by the defendant, the plaintiff bears the burden of
supporting the allegations by competent proof.” Janzen v. Goos, 302 F.2d 421, 424 (8th
Cir. 1962), (internal quotation omitted); see also Trimble v. Asarco, Inc., 232 F.3d 946, 95960 (8th Cir. 2000), (quotation omitted) (abrogated on other grounds by Exxon Mobil Corp.
v. Allapattah Servs., Inc., 545 U.S. 546 (2005)), (holding that where an “opposing party or
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”).
Here, Plaintiff does not allege any amount in controversy.
(Filing No. 1.)
Additionally, Plaintiff does not set forth any specific allegations relating to his citizenship,
or the citizenship of any Defendant. The only information contained in the Complaint
relating to citizenship is Plaintiff’s statement that “[a]ll parties reside and do business and
some are incorporated in Nebraska.” (Id. at CM/ECF p. 6.) Defendants have clearly
challenged both aspects of the “jurisdictional facts” underlying Plaintiff’s allegations.
Plaintiff failed to respond in any way to that challenge and has therefore failed to carry his
burden to establish diversity of citizenship jurisdiction with “competent proof.” Thus, this
court has absolutely no basis upon which to assert diversity of citizenship jurisdiction over
Plaintiff’s claims and finds that diversity of citizenship jurisdiction does not apply.
Federal Question Jurisdiction
In addition to diversity of citizenship jurisdiction, subject matter jurisdiction is also
proper where a plaintiff asserts a “non-frivolous claim of a right or remedy under a federal
statute,” commonly referred to as “federal question” jurisdiction. Northwest South Dakota
Prod. Credit Ass’n v. Smith, 784 F.2d 323, 325 (8th Cir. 1986). The only reference to any
federal statute or constitutional provision is Plaintiff’s statement that this matter “is filed
pursuant to UCC 1 commercial law and Nebraska constitutional law . . . and under USA
CONSTITUTIONAL LAW.” (Filing No. 1 at CM/ECF p. 4.) However, there is nothing more
in the Complaint regarding which, if any, federal constitutional provisions apply to Plaintiff’s
claims. Rather, as set forth above, most of Plaintiff’s Complaint is nonsense, and the bulk
of the allegations are devoted to stressing that this matter is “non judicial” and is instead
a “Criminal Commercial Complaint.” (Id. at CM/ECF pp. 3-8.)
Indeed, as best as the court can tell, Plaintiff asserts, or would like the court to
assert on his behalf, criminal charges against Defendants. However, a private plaintiff
cannot force a criminal prosecution because the “authority to initiate a criminal complaint
rests exclusively with state and federal prosecutors.” See Mercer v. Lexington Fayette
Urban Cnty. Gov’t., No. 94-6645, 1995 WL 222178, at *1 (6th Cir. Apr. 13, 1995),
(unpublished order); see also Parkhurst v. Tabor, 569 F.3d 861, 867 (8th Cir. 2009),
(quoting United States v. Batchelder, 442 U.S. 114, 124 (1979), (“Whether to prosecute
and what charge to file or bring before a grand jury are decisions that generally rest in the
prosecutor’s discretion.”)). Thus, the court does not have the authority to force a criminal
prosecution, and Plaintiff’s request to initiate criminal charges against Defendants does not
set forth a federal claim.4 Even with the most liberal construction, Plaintiff has failed to
establish that federal question jurisdiction applies here. In light of Plaintiff’s failure to
submit competent proof that this court has subject matter jurisdiction over his claims, this
matter must be dismissed.
IT IS THEREFORE ORDERED that:
Defendants’ Motions to Dismiss (Filing Nos. 26, 28, 30, and 44) are granted
and Plaintiff’s Complaint is dismissed without prejudice;
A separate judgment will be entered in accordance with this Memorandum
Defendant Kathleen Laughlin’s Motion to Strike Affidavit (Filing No. 37) is
granted. The court has considered the corrected Affidavit (Filing No. 38) for
purposes of this Memorandum and Order; and
To the extent Plaintiff seeks to challenge the foreclosure of his land, the court notes
that challenges to state foreclosure and eviction proceedings are barred under the RookerFeldman doctrine. See, e.g., Vuaai El v. Mortgage Elec. Registry Sys., No. 08-14190,
2009 WL 2705819, at *9 (E.D. Mich. Aug. 24, 2009), (concluding the court lacked subject
matter jurisdiction over plaintiff’s challenge to state foreclosure and eviction proceedings
where plaintiff alleged possession of a U.C.C. financing statement, possessory lien, land
patent and homestead levy exemption).
All other pending Motions and Objections are denied.
DATED this 20th day of December, 2011.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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