Collum v. PayPal et al
MEMORANDUM AND ORDER - Collum's Motion for Reconsideration (filing no. 12 ) is denied. Defendants' Motion to Dismiss (filing no. 15 ) is granted. Collum's Motion to Continue (filing no. 17 ) is denied. Collum's Complaint (filing no. 1 ) is dismissed without prejudice. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy emailed to pro se party)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRIAN T. COLLUM,
PAYPAL, and KELLIE CAIN,
This matter is before the court on Defendants’ Motion to Dismiss. (Filing No.
15.) Also pending is Plaintiff’s Motion for Reconsideration (filing no. 12) and Motion
to Continue (filing no. 17). For the reasons discussed below, Defendants’ Motion to
Dismiss is granted and Plaintiff’s Motions are denied.
Plaintiff Brian T. Collum (“Collum”) filed this action alleging defamation and
false light claims against PayPal and Kellie Cain (“Cain”). (Filing No. 1 at CM/ECF
pp. 1-2.) PayPal and Cain reside in La Vista, Nebraska. (Id. at CM/ECF p. 1.)
Collum is a resident of Omaha, Nebraska. (Id.)
After being served with summons and the Complaint, Defendants filed a
Motion for Extension of Time to file an answer. (Filing No. 10.) On January 25,
2012, the Court granted this Motion via Text Order. (Filing No. 11.) Collum has filed
a Motion asking the court to Reconsider. (Filing No. 12.)
On March 9, 2012, Defendants’ filed a Motion to Dismiss along with a Brief
in Support. (Filing Nos. 15 and 16.) In response, Collum filed a Motion to Continue.
(Filing No. 17.)
Motion to Reconsider
As discussed above, Collum has filed a Motion asking the court to Reconsider
its January 25, 2012, Text Order. (Filing No. 12.) In this Order, the court provided
Defendants additional time to file an answer. (Filing No. 11.) Because the court may
extend the time to file an answer, the court will deny Collum’s Motion to Reconsider.
See Fed. R. Civ. P. (6)(b)(1) (providing that the court may, for good cause, extend the
time to file an answer).
Motion to Dismiss Standard
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, 1043-44 (8th Cir. 2002) (citations omitted).
Subject Matter Jurisdiction
In their Motion to Dismiss, Defendants argue, among other things, that the court
lacks subject matter jurisdiction over Collum’s Complaint. (Filing No. 16 at CM/ECF
pp. 4-5; Filing No. 15.) “If the court determines at any time that it lacks subjectmatter 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 Nat’l 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, Collum does not allege that his citizenship is different from the
citizenship of each Defendant. (Filing No. 1.) Indeed, Defendants are from La Vista,
Nebraska, and he is from Omaha, Nebraska. (Id. at CM/ECF p. 1.) Thus, Collum has
failed to establish diversity of citizenship jurisdiction as a basis for jurisdiction in this
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. Nw. S. Dakota Prod. Credit Ass’n v. Smith, 784
F.2d 323, 325 (8th Cir. 1986). Collum does not set forth any allegations that could
be liberally construed to violate a constitutional right or any federal statute. Keeper
v. King, 130 F.3d 1309, 1314 (8th Cir. 1997). In short, Collum does not allege that
Defendants 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). Rather, Collum asserts claims and seeks relief pursuant to state law, such as
claims for defamation and false light.
(Filing No. 1 at CM/ECF pp. 2, 6.)
Accordingly, the court lacks subject matter jurisdiction, and the Complaint is
dismissed without prejudice.
IT IS THEREFORE ORDERED that:
Collum’s Motion for Reconsideration (filing no. 12) is denied.
Defendants’ Motion to Dismiss (filing no. 15) is granted.
Collum’s Motion to Continue (filing no. 17) is denied.
Collum’s Complaint (filing no. 1) is dismissed without prejudice.
A separate judgment will be entered in accordance with this
Memorandum and Order.
DATED this 16 th day of May, 2012.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
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