Williams v. Raynor Rensch & Pfieffer et al

Filing 58

MEMORANDUM OPINION regarding the Plaintiff's Motion to Remove Facts from the Complaint 15 , Objections to Notice of Removal 16 and 21 and Motion to Dismiss without prejudice specific allegations 41 . In light of plaintiffs Second Amended Complaint, theCourt lacks subject matter jurisdiction and remand is appropriate. 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)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SHANNON WILLIAMS,

)
)
Plaintiff,
)
)
v.
)
)
REYNOR RENSCH & PFIEFFER,
)
et al.,
)
)
Defendants.
)
______________________________)

8:11CV446

MEMORANDUM OPINION

This matter is before the Court on plaintiff’s Motion
to Remove Facts From the Complaint (Filing No. 15), Objections to
Notice of Removal (Filing Nos. 16 and 21), and Motion to Dismiss
Without Prejudice Specific Allegations (Filing No. 41).
pending are numerous other motions filed by the parties.

Also
As set

forth below, this matter will be remanded to the Douglas County,
Nebraska, District Court.
MOTION FOR RECUSAL
As an initial matter, the Court addresses plaintiff’s
Motion to Disqualify, which is liberally construed as a Motion
for Recusal (Filing No. 39).

Plaintiff also seeks recusal of the

undersigned in his Objection to Transfer of Case (Filing No. 36).
In his Motion for Recusal, plaintiff requests that the
undersigned recuse himself from this matter because the
undersigned presided over plaintiff’s recent federal criminal
trial and failed to “rule[] in favor of the Plaintiff.”
No. 39.)

(Filing

The Court has carefully reviewed plaintiff’s Motion and
Objection.

In accordance with 28 U.S.C. 455(a), the Court finds

that there is nothing indicating that the Court’s “impartiality
might reasonably be questioned” or that there is any other basis
for recusal or reassignment in this matter.

Furthermore,

plaintiff has not filed an affidavit sufficient to trigger the
provisions of 28 U.SC. § 144.
BACKGROUND
Plaintiff filed this matter on November 3, 2011, in the
District Court of Douglas County, Nebraska (Filing No. 1-1,
Attach. 1, at CM/ECF pp. 1-15).

Because the complaint contained

allegations relating to violations of plaintiff’s federal
constitutional rights, defendants removed this matter to this
Court on December 30, 2011 (Filing No. 1).
On January 23, 2012, plaintiff filed a Motion to Remove
Facts, in which he requested that the Court remove the two facts
alleging that “his civil rights were violated under the United
States Constitution” and the single fact alleging a “clear
violation of federal law” from his complaint (Filing No. 15 at
CM/ECF p. 1).

Plaintiff simultaneously filed an Objection to the

Notice of Removal, which the Court liberally construes as a
Motion to Remand (Filing No. 16).

In his Objection, plaintiff

asserts that, if his Motion to Remove Facts is granted, all
references to federal law and federal claims have been removed

-2-

and this Court lacks subject matter jurisdiction over this
matter.

(Id.)

Three days later, on January 26, 2012, plaintiff

filed a second Objection to the Notice of Removal in which he
reiterated his previous request to remove all references to
federal law and federal claims and remand this matter to state
court (Filing No. 21).
Also on January 26, 2012, plaintiff filed an Amended
Complaint (Filing No. 22).

The Amended Complaint deletes all

references to the United States Constitution and “violations of
federal law.”

(Id.)

However, it asserts claims relating to

“wire fraud,” “a pattern of racketeering activity,” the
involvement of the U.S. Attorney and the “United States” as
plaintiff’s “adversar[y],” and “extortion.”

(Id.)

In opposition

to the Objections to the Notice of Removal, defendants filed
reply briefs asserting that the allegations in the Amended
Complaint stated federal claims under the Racketeer Influenced
and Corrupt Organization Act (“RICO”) (Filing Nos. 27, 29, 30,
and 31).

Plaintiff responded to defendants’ assertions, stating

that he is only alleging “state law violations” and requested
that the Court “remove the RICO and wire fraud allegations
altogether” and “order this lawsuit back to Douglas County
Court.”

(Filing No. 34 at CM/ECF pp. 1-2.)
On February 24, 2012, plaintiff filed a separate Motion

to Dismiss Without Prejudice Specific Allegations, which the

-3-

Court liberally construes as a Motion to Amend (Filing No. 41).
In this Motion, plaintiff requests that the Court “dismiss
without prejudice all of the allegations that refer to federal
law violations” including any and all “RICO allegations and wire
fraud allegations.”

(Id.)

Plaintiff also states that he cannot

bring his federal claims because he must first successfully
challenge his conviction prior to bringing a civil rights claim,
in accordance with Heck v. Humphrey, 512 U.S. 477 (1994).

(Id.)

With this background in mind, the Court must determine
whether plaintiff should be permitted to amend his claims to
remove all federal claims.

If plaintiff is permitted to do so,

the Court must also determine whether remand is appropriate.
MOTION TO AMEND
Plaintiff seeks to amend his claims to remove all
allegations to federal violations (Filing No. 41).

As set forth

in Federal Rule of Civil Procedure 15:
A party may amend its pleading once
as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to
which a responsive pleading is
required, 21 days after service of
a responsive pleading or 21 days
after service of a motion under
Rule 12(b), (e), or (f), whichever
is earlier.
Fed. R. Civ. P. 15(a).

Otherwise, a party may only amend his

pleading with consent of the opposing party or by leave of court.
-4-

Id.

Importantly, “[t]he court should freely give leave when

justice so requires.”

Id.

Under this “liberal amendment

policy . . . a district court’s denial of leave to amend
pleadings is appropriate only in those limited circumstances in
which undue delay, bad faith on the part of the moving partly,
futility of the amendment, or unfair prejudice to the non-moving
party can be demonstrated.”

Roberson v. Hayti Police Dep’t., 241

F.3d 992, 995-96 (8th Cir. 2001).
Here, plaintiff amended his complaint once prior to any
response by defendants (Filing No. 22).

Plaintiff seeks to amend

his claims a second time to remove all allegations relating to
“RICO” or other federal claims (Filing No. 41).

In response,

defendants argue that “Plaintiff has made it clear he will
eventually file another lawsuit” alleging these claims, so
plaintiff should not be permitted to dismiss them now (Filing No.
46).1
However, defendants do not assert that amendment is
futile or any unfair prejudice will result if amendment is
permitted.

(Id.)

The record before the Court shows that, while

defendants have filed responsive pleadings, not all defendants
have been served, no discovery has taken place, and this matter
has been pending only for a matter of months.

1

The Court finds no

Only defendants John Stuck, John Brazda, and the City of
Bellevue, Nebraska, filed this response.
-5-

undue delay or bad faith on the part of plaintiff.

Rather, it

appears that plaintiff will pursue other federal claims which are
not yet ripe, and he wishes to pursue all of his federal claims
in one action at the appropriate time (Filing No. 41).

In light

of these facts, the Court finds that plaintiff should be
permitted to amend his claims to remove all federal allegations.2
However, in deciding to grant plaintiff the relief he
seeks, the Court makes no determination whether plaintiff’s
voluntary election not to proceed with his federal claims may
subsequently bar assertion or reassertion of those claims.
Plaintiff is presumed to understand the consequences of his
repeated requests to dismiss these claims.
MOTION TO REMAND
In light of plaintiff’s amendment to remove all
allegations relating to RICO, wire fraud, extortion, and any
other federal claim, the Court must determine whether remand is
appropriate.

As set forth in 28 U.S.C. §1441(a), “any civil

action brought in a State court of which the district courts of
the United States have original jurisdiction, may be removed by
the defendant or the defendants, to the district court of the

2

For purposes of this Memorandum Opinion, the Court refers to
the Amended Complaint, as amended to delete all federal
allegations, as the Second Amended Complaint. Because it is
remanding this matter as set forth below, the Court will not
require the formal filing of the Second Amended Complaint, but
deems Filing No. 22 amended to delete the federal allegations.
-6-

United States for the district and division embracing the place
where such action is pending.”

However, “[i]f at any time before

final judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.”
§1447(c).

28 U.S.C.

The Eighth Circuit has held that “where a plaintiff

has filed an amended complaint, federal courts must resolve
questions of subject matter jurisdiction by examining the face of
the amended complaint.”

In re Atlas Van Lines, Inc., 209 F.3d

1064, 1067 (8th Cir. 2000) (affirming decision to remand after
removal).

As set forth above, the Court has permitted plaintiff

to amend his Amended Complaint to remove all references to RICO,
wire fraud, extortion, and any other federal claim.

This Second

Amended Complaint supersedes the Complaint and the Amended
Complaint “and renders [them] without legal effect.”

Id.

Thus,

for purposes of determining subject matter jurisdiction, the
Court considers the Second Amended Complaint without any
reference to RICO, extortion, wire fraud, or other federal claims
(Filing No. 22).
Subject matter jurisdiction may be asserted 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

-7-

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 does not

allege that his citizenship is different from the citizenship of
each defendant (Filing No. 22).

Further, plaintiff does not

allege an amount in controversy.

(Id.)

Thus, it is clear from

the face of the Second Amended Complaint that diversity of
citizenship jurisdiction is not 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
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 amended

and liberally construed, plaintiff does not set forth any
specific actions taken by defendants which violate any
constitutional right or support a claim under 42 U.S.C. § 1983 or
any other federal statute.
(8th Cir. 1997).

Keeper v. King, 130 F.3d 1309, 1314

Considering the Second Amended Complaint, and

noting the removal of all claims relating to RICO, wire fraud,
extortion, and any other federal claim, plaintiff asserts claims,
and seeks relief, pursuant to state law only (Filing No. 22, as
amended).

In light of plaintiff’s Second Amended Complaint, the

Court lacks subject matter jurisdiction and remand is

-8-

appropriate.

Lindsey v. Dillard’s, Inc., 306 F.3d 596, 597-98

(8th Cir. 2002) (affirming remand of removed case where the
plaintiff voluntarily dismissed all federal claims without
prejudice and found that it lacked subject matter jurisdiction
after dismissal).3

A separate order will be entered in

accordance with this memorandum opinion.
DATED this 29th day of March, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

3

The Court recognizes that, under 28 U.S.C. § 1367(c)(3), it
may decline to exercise supplemental jurisdiction when it “has
dismissed all claims over which it has original jurisdiction,”
but that it is not required to remand state-law claims under
§ 1367(c) when only the federal claims have been dismissed.
Lindsey v. Dillard’s, Inc., 306 F.3d 596, 599 (8th Cir. 2002).
Indeed, “the district court maintains discretion to either remand
the state law claims or keep them in federal court.” Id.
However, in the interests of judicial economy, convenience,
fairness, and comity, the Court sees no reason to deny
plaintiff’s request for remand. Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 350 n. 7 (1988).
* 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.
-9-