Bauermeister et al v. Host Gator, L.L.C.

Filing 6

MEMORANDUM OPINION - The Court lacks subject-matter jurisdiction, and the complaint will be dismissed without prejudice. Ordered by Senior Judge Lyle E. Strom. (Copy mailed/e-mailed to pro se party) (TEL)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
MICHAEL BAUERMEISTER,
Shareholder, and HMONG
SATELLITE T.V., INC.,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
HOST GATOR, L.L.C.,
)
)
Defendant.
)
______________________________)

8:11CV330

MEMORANDUM OPINION

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,

Host Gator, L.L.C. (Filing No. 1 at CM/ECF p. 1).

In its

entirety, the complaint alleges, “Host Gator, L.L.C. allow Kor
Xiong to created the website under his name and at the address of
337 W. Wisconsin Avenue Suite 6, Appleton, WI 54911.

Which it

lie consider the company is register under William Xiong at 5207
Duvall Street NW Rochester, MN 55901-3832 on October 19, 2010.”
(Id. at CM/ECF p. 2.)

Plaintiff requests that the Court “[s]top

down the website and the defendants pay for the damages.”

(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.
Cir. 1985).

See Martin v. Sargent, 780 F.2d 1334, 1337 (8th

However, a pro se plaintiff’s allegations must be

construed liberally.

Burke v. North Dakota Dep’t of Corr. &
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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).

Here, plaintiff alleges that he and defendant reside in
different states, 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 force “defendants [to] pay for
the damages.”

(Id. at CM/ECF p. 5.)

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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 “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).
above, plaintiff’s complaint is nonsensical.

As set forth

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).

Thus, the Court lacks subject-matter

jurisdiction, and the complaint will be dismissed without

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prejudice.

A separate order will be entered in accordance with

this memorandum opinion.
DATED this 5th day of December, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

* This opinion may contain hyperlinks to other documents or
Web 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 Web
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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