Haase v. AGS Capital et al
MEMORANDUM AND ORDER -Plaintiff shall have until August 15, 2011, to file sufficient evidence with the court showing that the amount in controversy is greater than $75,000.00, the jurisdictional amount; and The Clerk of the court is directed to set a pro se case management deadline in this matter ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for August 15, 2011: deadline for Plaintiff to show jurisdictional amount by preponderance of evidence.Ordered by Judge Laurie Smith Camp. (Copy mailed to pro se party) (MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
AGS CAPITAL, LLC, et al.,
CASE NO. 8:11CV236
Plaintiff filed his Complaint in this matter on July 1, 2011. (Filing No. 1.) Plaintiff
has previously been given leave to proceed in forma pauperis. (Filing No. 5.) The court
now conducts an initial review of Plaintiff’s claims to determine whether summary dismissal
is appropriate under 28 U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
Plaintiff filed his Complaint on July 1, 2011, against Defendant AGS Capital, and six
related entities and employees. (Filing No. 1.) Condensed and summarized, Plaintiff sues
Defendants for breach of contract, intentional infliction of emotional distress, libel, slander,
and “misrepresentation of his character.” (Id. at CM/ECF pp. 7-9.) Plaintiff alleges that he
was terminated in breach of his employment contract and that Defendants’s actions
“demonstrated reckless disregard for the likelihood of causing emotional (and
physiological) distress to Plaintiff.” (Id. at CM/ECF p. 8.) Plaintiff further alleges that he
was labeled a “vandal” by Defendants and “suffered damage to his reputation and health
as a result of untrue claims of him being a ‘vandal.’” (Id. at CM/ECF p. 9.)
APPLICABLE LEGAL 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)(2). The court must dismiss
a complaint or any portion thereof 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).
A pro se plaintiff must set forth enough factual allegations to “nudge their claims
across the line from conceivable to plausible,” or “their complaint must be dismissed” for
failing to state a claim upon which relief can be granted. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (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.”).
Regardless of whether a plaintiff is represented or is appearing pro se, the plaintiff’s
complaint must allege specific facts sufficient to state a claim. See Martin v. Sargent, 780
F.2d 1334, 1337 (8th Cir. 1985). However, a pro se plaintiff’s allegations must be
construed liberally. Burke v. North Dakota Dep’t of Corr. & Rehab., 294 F.3d 1043, 104344 (8th Cir. 2002) (citations omitted).
DISCUSSION OF CLAIMS
As set forth by 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). Subject matter jurisdiction exists pursuant to 28 U.S.C. § 1332, commonly
referred to as “diversity of citizenship” jurisdiction.1 For purposes of 28 U.S.C. § 1332,
Subject matter jurisdiction also exists 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). Even liberally construed, Plaintiff does not bring his claims pursuant to federal
“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 complaint “alleges
a sufficient amount in controversy to establish diversity jurisdiction, but the 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.” Trimble
v. Asarco, Inc., 232 F.3d 946, 959-60 (8th Cir. 2000), (quotation omitted) (abrogated on
other grounds by Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (2005)). In
addition, “[n]o presumptive truthfulness attaches to the plaintiff’s allegations, and the
existence of disputed material facts will not preclude the trial court from evaluating for itself
the merits of the jurisdictional claims.” Id. (quotation omitted).
Here, Plaintiff has failed to specify an amount in controversy. Plaintiff merely seeks
compensatory damages “in an amount subject to proof.” (Filing No. 1 at CM/ECF p. 10.)
Plaintiff’s Complaint does not indicate that he is owed, or was expected to be
compensated, an amount greater than $75,000.00. While it is clear from Plaintiff’s
Complaint that Plaintiff and each of the Defendants are citizens of different states, Plaintiff
has not alleged that the amount in controversy is greater than $75,000.00. Rather, the only
specific reference to damages in the Complaint is an allegation that Defendants owe
Plaintiff “expenses and wages incurred of $5,892.99.” (Id. at CM/ECF p. 6.) Thus, Plaintiff
has failed to establish diversity of citizenship jurisdiction as a basis for jurisdiction in this
In short, the court has serious doubts regarding “whether the amount alleged is
legitimate.” Thus, in accordance with Trimble, the court will require Plaintiff to show by a
preponderance of the evidence that the amount claimed is legitimate. This matter cannot
proceed further until Plaintiff does so.
IT IS THEREFORE ORDERED that:
Plaintiff shall have until August 15, 2011, to file sufficient evidence with the
court showing that the amount in controversy is greater than $75,000.00, the
jurisdictional amount; and
The Clerk of the court is directed to set a pro se case management deadline
in this matter with the following text: August 15, 2011: deadline for Plaintiff
to show jurisdictional amount by preponderance of evidence.
DATED this 15th day of July, 2011.
BY THE COURT:
s/Laurie Smith Camp
United States District Judge
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