Bauermeister v. Xiong

Filing 6

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Plaintiff's Complaint (filing no. 1 ) is dismissed without prejudice. A separate Judgment will be entered in accordance with this Memorandum and Order. Ordered by Judge Richard G. Kopf. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL BAUERMEISTER,
Shareholder, Hmong Satellite T.V.,
Inc.,
Plaintiff,
v.
WILLIAM XIONG, Hmong Satellite
T.V., Inc.,
Defendant.

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8:11CV329

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on September 26, 2011. (Filing No.
1.) Plaintiff has been given leave to proceed in forma pauperis in this matter. (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).
I.

SUMMARY OF COMPLAINT
Plaintiff filed his Complaint against one Defendant, William Xiong. (Filing No.

1 at CM/ECF p. 1.) In its entirety, the Complaint alleges, “William Xiong claim to
be the name of the company to Office of the Minnesota Secretary of State. On
Minnesota Secretary of State’s paperwork and submit it on October 19, 2010. Which
William was never in charge of signing submit it and put the company name under his
name.” (Id. at CM/ECF p. 2.) Plaintiff requests that the court “correct this issue and
fine the person who cause[d] it.” (Id. at CM/ECF p. 5.)
II.

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).
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” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (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, 1043-44 (8th Cir. 2002) (citations omitted).
III.

DISCUSSION OF CLAIMS
Even under the most liberal construction, Plaintiff’s Complaint is nonsensical.

Regardless, the court must dismiss this action because it does not have subject-matter
jurisdiction over it. “If 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 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).

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Here, Plaintiff alleges that he resides in Nebraska and Defendant resides in
Minnesota, but he does not allege any amount in controversy. (Filing No. 1 at
CM/ECF p. 4.) Indeed, Plaintiff does not allege any specific monetary damages at all.
Instead, he vaguely requests that the court “correct this issue and fine the person who
cause[d] it.” (Id. at CM/ECF p. 5.) Thus, Plaintiff has failed to establish diversity of
citizenship jurisdiction as a basis for jurisdiction in this matter.
Subject matter jurisdiction is also proper where a plaintiff asserts a “nonfrivolous 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). As set forth above, Plaintiff’s Complaint is
nonsensical. Plaintiff does not set forth any specific actions taken by Defendant that
violate any constitutional right or support a claim under 42 U.S.C. § 1983 or any other
federal statute. In short, Plaintiff does not allege that Defendant deprived him of a
right secured by the Constitution or laws of the United States or that the alleged
deprivation was committed under “color of state law.” West v. Atkins, 487 U.S. 42,
48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). As such, the court
lacks subject-matter jurisdiction, and the Complaint is dismissed without prejudice.
IT IS THEREFORE ORDERED that: Plaintiff’s Complaint (filing no. 1) is
dismissed without prejudice. A separate Judgment will be entered in accordance with
this Memorandum and Order.
DATED this 30 th day of November, 2011.
BY THE COURT:
Richard G. Kopf
United States District Judge

*This opinion may contain hyperlinks to other documents or W eb sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their W eb sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The
court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
to work or directs the user to some other site does not affect the opinion of the court.

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