Bauermeister v. Hmong Satellite T.V., INC.
Filing
6
MEMORANDUM OPINION - The Court lacks subject matter jurisdiction, and the complaint will be dismissed without prejudice. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy mailed/e-mailed to pro se party)(GJG)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
MICHAEL BAUERMEISTER,
Shareholder, Hmong Satellite
T.V., Inc.,
)
)
)
)
Plaintiff,
)
)
v.
)
)
HMONG SATELLITE T.V., INC.,
)
)
Defendant.
)
______________________________)
8:11CV332
MEMORANDUM OPINION
Plaintiff filed his complaint in this matter on
September 26, 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).
I.
SUMMARY OF COMPLAINT
Plaintiff filed his complaint against one defendant,
Hmong Satellite TV, Inc. (“Hmong”) (Filing No. 1 at CM/ECF p. 1).
Plaintiff’s allegations consist of two sentences.
entirety, the complaint alleges:
In its
“I been asking for the
company’s books and records on request.
The company refuse the
request because they say I am not a shareholder for the company
and I have no right from the company.”
(Id. at CM/ECF p. 2.)
Plaintiff requests that the Court “force the shareholder’s rights
and provide on request.”
(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).
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.
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
“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 Hmong are “located
in two difference [sic] states” but does not allege any amount in
controversy (Filing No. 1).
Indeed, plaintiff does not seek any
monetary relief at all, requesting instead that the Court “force
the shareholder’s rights and provide on request.”
p. 5.)
(Id. at CM/ECF
Thus, plaintiff has failed to establish diversity of
citizenship jurisdiction as a basis for jurisdiction in this
matter.
However, subject matter jurisdiction is also proper
where a plaintiff asserts a “non-frivolous claim of a right or
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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 allegations are extremely sparse, consisting
of only two sentences.
Plaintiff does not set forth any specific
actions taken by defendant which violate any constitutional right
or support a claim under 42 U.S.C. § 1983 or any other federal
statute.
Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997).
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, 487 U.S. at 48; Buckley, 997 F.2d at 495.
Thus, the Court lacks subject matter jurisdiction, and the
complaint will be dismissed without prejudice.
A separate order
will be entered in accordance with this memorandum opinion.
DATED this 29th day of November, 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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