Carper v. Carper
MEMORANDUM OPINION - This matter is before the Court on ten motions which the Court has reviewed and now finds as entered. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(GJG)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
JULIE LYNN CARPER,
MICHAEL DANIEL CARPER,
This matter is before the Court on ten motions which
the Court has reviewed and now finds as follows.
The plaintiff in this matter is Julie Carper, a citizen
of Colorado, erstwhile resident of Nebraska, and ex-wife of the
The plaintiff is appearing pro se.
represent the lion’s share of the pending motions in this matter.
Plaintiff filed her complaint on or about September 25,
2014 (Filing No. 1).
She filed a notice of consent of civil
action before Magistrate Judge Thalken, though she was the sole
signatory, thereby preserving this Court’s jurisdiction over the
Plaintiff filed an amended complaint on or about
September 29, 2014 (Filing No. 7).
Plaintiff has filed a motion for fees pursuant to
Federal Rule of Civil Procedure 4.
According to the motion, the
defendant refused service by certified mail (“as an intentional
delay by the Defendant as an attorney”) and therefore, plaintiff
spent $51.75 to perfect in-hand service on the defendant (Filing
No. 11, at 1).
Attached to this motion are documents purporting
to show the basis of the fees.
Id. at 2-4.
In lieu of an answer, the defendant filed a motion to
dismiss the complaint for lack of subject-matter jurisdiction and
failure to state a claim pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12 (b)(6) (Filing No. 13, at 1).
Defendant filed an accompanying brief in support of this motion
(Filing No. 14).
These documents were filed on December 2, 2014.
On December 5, 2014, the plaintiff filed four motions.
First, in response to the defendant’s motion to dismiss, the
plaintiff filed a motion (Filing No. 15) “in support of brief in
opposition of defendants [sic] motion to dismiss.”
15, at 1.
Plaintiff filed an accompanying brief (Filing No. 16)
in support of this motion.
Both of these documents were filed on
December 5, 2014, some three days after the defendant’s filings.
The Court, for the purpose of liberally construing filings of pro
se litigants, will deny this motion (Filing No. 15) as moot.
Instead, the Court will consider the motion’s accompanying brief
(Filing No. 16) as a brief in opposition of defendant’s motion to
dismiss (Filing No. 13).
Second, the plaintiff submitted a motion (Filing No.
17) seeking an expedited hearing.
This motion will be denied.
Third, the plaintiff filed a motion (Filing No. 18) for
an order to show cause.
After review of the underlying request
that the Court enter a temporary restraining order and a
preliminary injunction against the defendant to refrain from
abiding by a State court order, the Court will deny that motion.
Fourth, the plaintiff filed a motion to disqualify the
defendant’s attorney on the bases that his attorney is not
competent, does not understand domestic violence, and is a friend
of the defendant, among other reasons (Filing No. 19, at 1-4).
The Court will deny this motion.
On December 9, 2014, the plaintiff filed a motion “to
strike defendants [sic] affirmative defenses.”
Filing No. 20, at
On December 10, 2014, the plaintiff filed a motion to
amend and supplement her complaint in order to join the
defendant’s lawyer as a co-conspirator under the “RICO Act.”
Filing No. 22, at 1.
On December 29, 2014, the plaintiff filed two more
First, plaintiff filed a motion for partial summary
judgment (Filing No. 24).
Second, plaintiff filed a motion
(Filing No. 25) “for miscellaneous relief.”
The plaintiff has filed multiple lawsuits that allege
wrongdoing related to a 2008 divorce action litigated in the
District Court of Buffalo County, Nebraska, Case No. 08-0679
(hereafter the "Divorce Action").
The plaintiff alleges that the
defendant violated her rights under the Violence Against Women
Act, 42 U.S.C. § 13,925 et seq.
In plaintiff’s prior cases, she
has sued the Clerk of the Buffalo County District Court, the
Clerk of the Nebraska Supreme Court, the State of Nebraska, the
Nebraska Attorney General's Office, the Honorable Judge Owens,
the Honorable Chief Justice Michael Heavican, the Honorable David
Urbom, Nebraska Supreme Court Administrator, the defendant and
his attorney, and the law firm representing the defendant.
Carper v. Mauler, Case No. 4:12CV03229, Filing No. 41 (D. Neb.
June 6, 2013); Carper v. State, Case No. 4:12CV03182, Filing No.
38 (D. Neb. March 3, 2013); Carper v. Carper, Case No.
4:10CV3017, Filing No. 18 (D. Neb. March 25, 2010); Carper v.
Knapp, Fangmeyer, Aschwege, Besse & Marsh, P.C., Case No.
4:12CV3244, Filing No. 24 (D. Neb. August 15, 2013); Carper v.
State, 4:10CV03015, Filing No. 38 (D. Neb. June 4, 2010).
III. LEGAL STANDARDS
The Court has an obligation to consider sua sponte
whether it has subject matter jurisdiction over a case.
v. United Steelworkers Local 1938, 743 F.3d 1134, 1139 (8th Cir.
The Court "must raise jurisdictional issues 'when there
is an indication that jurisdiction is lacking, even if the
parties concede the issue.'”
Id. (quoting Thomas v. Basham, 931
F.2d 521, 523 (8th Cir. 1991)).
Suits are subject to dismissal
when the court lacks subject matter jurisdiction to hear the
Fed. R. Civ. P. 12(b)(1).
The party asserting
jurisdiction bears the burden of proving that jurisdiction is
Great Rivers Habitat Alliance v. FEMA, 615 F.3d 985, 988
(8th Cir. 2010).
Determining whether a complaint states a plausible
claim for relief is “a context-specific task” that requires the
court “to draw on its judicial experience and common sense.”
Under Twombly, a court considering a motion to dismiss
may begin by identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth.
Although legal conclusions “can provide the framework of a
complaint, they must be supported by factual allegations.”
Accordingly, the Supreme Court has prescribed a “two-pronged
approach” for evaluating Rule 12(b)(6) challenges.
Iqbal, 556 U.S. 662, 679 (2009).
First, a court should divide
the allegations between factual and legal allegations; factual
allegations should be accepted as true, but legal allegations
should be disregarded.
Second, the factual allegations must
be examined for facial plausibility.
“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
Id. at 677 (stating that the plausibility
standard does not require a probability, but asks for more than a
sheer possibility that a defendant has acted unlawfully).
court must find “enough factual matter (taken as true) to
suggest” that “discovery will reveal evidence” of the elements of
Twombly at 558, 556.
When the allegations in a
complaint, however true, could not raise a claim of entitlement
to relief, the complaint should be dismissed for failure to state
a claim under Fed. R. Civ. P. 12(b)(6).
Id. at 558; Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009).
First, the Court will dismiss the plaintiff’s action
due to lack of jurisdiction.
In United States v. Morrison, the
United States Supreme Court struck down the provision of the
Violence Against Women Act which provided women the power to sue
their attackers in federal court.
U.S. 598, 627 (2000).
United States v. Morrison, 529
Because the plaintiff seeks a remedy under
this statute, defendant’s motion to dismiss the plaintiff’s
amended complaint will be granted.
Second, the Court will dismiss the plaintiff’s amended
complaint on the basis of res judicata.
The doctrine of res
judicata bars parties from re-litigating issues which were or
could have been raised in a previous action.
The elements of res
(1) the first suit resulted in a final judgment on
the merits; (2) the first suit was based on proper jurisdiction;
(3) both suits involve the same parties (or those in privity with
them); and (4) both suits are based upon the same claims or
causes of action.
Costner v. URS Consultants, Inc., 153 F.3d
667, 673 (8th Cir. 1998).
The Court finds that these elements
have been met.
Third, this Court lacks jurisdiction over plaintiff’s
The Rooker-Feldman doctrine
prohibits lower federal courts from
exercising appellate review of
state court judgments. Rooker v.
Fidelity Trust Co., 263 U.S. 413,
416 (1923); District of Columbia
Court of Appeals v. Feldman, 460
U.S. 462, 482 (1983). In fact,
federal district courts do not have
jurisdiction “over challenges to
state-court decisions . . . even if
those challenges allege that the
state court’s action was
unconstitutional.” Feldman, 460
U.S. at 486; see also Ballinger v.
Culotta, 322 F.3d 546, 548-49 (8th
Cir. 2003) (dismissing claims under
Rooker-Feldman doctrine where the
relief requested in the complaint
would effectively reverse or
undermine the state court decision
or void its ruling and noting that
“[f]ederal district courts thus may
not ‘exercis[e] jurisdiction over
general constitutional claims that
are ‘inextricably intertwined’ with
specific claims already adjudicated
in state court”) (citation
omitted). Put simply, a federal
district court does not possess
authority in a civil rights case to
review or alter final judgments of
a state court judicial proceeding.
Carper v. Mauler, Case No. 4:12CV3229, Filing No. 41 (D. Neb.
June 6, 2013).
Plaintiff again asserts various flaws in the
Divorce Action of 2008.
In order to succeed in her claims, the
Court would have to find that State courts erred in the
In other words, awarding plaintiff the relief she
seeks would effectively undermine a decision by Nebraska state
For each of the foregoing reasons, defendant’s motions
to dismiss the plaintiff’s amended complaint will be granted.
STRIKE AFFIRMATIVE DEFENSES
The defendant has raised several sound affirmative
defenses in his motion to dismiss, and the Court finds no basis
for striking those defenses.
The plaintiff’s motion (Filing No.
20) will be denied.
Having now found that plaintiff’s amended complaint
should be dismissed in its entirety, plaintiff’s motion to amend
her complaint (Filing No. 22) will be denied.
Federal Rule of Civil Procedure 4(d)(2) states that a
Court must impose service fees when a domestic defendant “fails,
without good cause, to sign and return a waiver requested” by a
Though the Court finds the plaintiff’s
motion difficult to decipher, the onus is on the defendant to
object and show cause as to the waiver.
Because the plaintiff
filed the motion for fees on November 11, 2014, and the defendant
has failed to respond, the Court will grant the plaintiff’s
motion (Filing No. 11) to reimburse the plaintiff $51.75.
separate order will be entered in accordance with this memorandum
DATED this 5th day of January, 2015.
BY THE COURT:
/s/ Lyle E. Strom
LYLE E. STROM, Senior Judge
United States District Court
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