Nails v. Blumkin et al

Filing 10

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that, on the court's own motion: Plaintiff will have 30 days from the date of this Memorandum and Order to file sufficient evidence with the court showing that the amount in controversy is grea ter than $75,000.00, the jurisdictional limit. The court reserves the right to conduct further review of Plaintiff's claims pursuant to 28 U.S.C. § 1915(e)(2) after Plaintiff addresses the matters set forth in this Memorandum and Ord er. The Clerk of the court is directed to set a pro se case management deadline in this matter with the following text: July 21, 2014: deadline for Plaintiff to amend. Plaintiff must keep the court informed of her current address at all times while this case is pending. Failure to do so may result in dismissal of this matter without further notice. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANGELA NAILS,
Plaintiff,
v.
RON BLUMKIN, and NEBRASKA
FURNITURE MART, Inc.,
Defendants.

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8:14CV76

MEMORANDUM
AND ORDER

Plaintiff filed her Complaint in this matter on March 5, 2014. (Filing No. 1.)
The court has given Plaintiff leave to proceed in forma pauperis. (Filing No. 6.) The
court now conducts an initial review of Plaintiff’s Complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I.

SUMMARY OF COMPLAINT

Plaintiff Angela Nails filed her Complaint against Nebraska Furniture Mart and
Nebraska Furniture Mart President Ron Blumkin. (Filing No. 1 at CM/ECF p. 1.)
Plaintiff’s allegations are difficult to decipher. As best as the court can tell, Plaintiff
alleges that, on February 3, 2014, Nebraska Furniture Mart security officers asked
Plaintiff to leave one of the Nebraska Furniture Mart stores. (See generally Filing
No. 1.) Plaintiff attached to her Complaint what appears to a “Ban & Bar Notice” that
bans Plaintiff from entering any property owned or occupied by Nebraska Furniture
Mart, Inc. (See id. at CM/ECF p. 12.) Plaintiff seeks $100,000.00 in damages from
Defendants. (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 failure 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, 1949 (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) (citation
omitted). Pro se litigants must comply with the Federal Rules of Civil Procedure. See
Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir. 1984) (“[P]ro se litigants are not excused
from failing to comply with substantive and procedural law.”).
III.

DISCUSSION OF CLAIMS

Plaintiff sets forth that 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) (citation omitted).

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In addition, the amount in controversy must be greater than $75,000.00 for diversity
of citizenship jurisdiction. 28 U.S.C. § 1332(a).
When a complaint “alleges a sufficient amount in controversy to establish
diversity jurisdiction, but . . . the court questions whether the amount alleged is
legitimate, the party invoking federal jurisdiction must prove the requisite amount by
a preponderance of the evidence.” Trimble v. Asarco, Inc., 232 F.3d 946, 959 (8th
Cir. 2000) (quotation omitted) (abrogated on other grounds by Exxon Mobil Corp.
V. Allapattah Servs., Inc., 545 U.S. 546 (2005)). The complaint will be dismissed if
it appears “to a legal certainty” that the value of the claim is actually less than the
required amount. Id. In addition, “[n]o presumptive truthfulness attaches to the
plaintiff’s allegations, and the existence of disputed material facts will not preclude
the trial court from evaluating for itself the merits of the jurisdictional claims.” Id.
(quotation omitted).
Plaintiff has provided a Missouri address for herself and a Nebraska address
for Defendants. (Filing No. 1 at CM/ECF p. 1.) Accordingly, the court can determine
that Plaintiff’s citizenship differs from Defendants’ citizenship. However, the court
has serious doubts that Plaintiff’s claim for $100,000.00 in money damages is
legitimate. Plaintiff fails to set forth any facts or legal theories for why Defendants
should be liable to her for this amount. Thus, in accordance with Trimble, the court
will require Plaintiff to show by a preponderance of the evidence that the amount
claimed is legitimate, and that the court has subject-matter jurisdiction. See Trimble,
232 F.3d at 959-60. This matter will not proceed until Plaintiff does so.
IT IS THEREFORE ORDERED that, on the court’s own motion:
1.
Plaintiff will have 30 days from the date of this Memorandum and Order
to file sufficient evidence with the court showing that the amount in controversy is
greater than $75,000.00, the jurisdictional limit.
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2.
The court reserves the right to conduct further review of Plaintiff’s
claims pursuant to 28 U.S.C. § 1915(e)(2) after Plaintiff addresses the matters set
forth in this Memorandum and Order.
3.
The Clerk of the court is directed to set a pro se case management
deadline in this matter with the following text: July 21, 2014: deadline for Plaintiff
to amend.
4.
Plaintiff must keep the court informed of her current address at all times
while this case is pending. Failure to do so may result in dismissal of this matter
without further notice.
DATED this 18th day of June, 2014.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

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of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
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court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
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