Wike v. Douglas County et al

Filing 64

MEMORANDUM AND ORDER - Defendants' motions to dismiss, Filing No. 23 ; Filing No. 24 ; Filing No. 26 , are granted and Plaintiff's amended complaint is dismissed. Plaintiff's motion for bill quia timet, Filing No. 33 , is denied. P laintiff's motion for leave to amend, Filing No. 48 , is denied. Plaintiff's motion to prove authority, Filing No. 60 , is denied. Defendants Douglas County, Diane Battiato, Liliana E. Shannon, and SouthLaw, P.C., Jason C. Hubbard, and Ja son Hubbard Law, P.C., L.L.O., are dismissed from the case. Francis E. Younes and Terah Younes remain in the case as counter plaintiffs only. Andrea Wike, as counter defendant, is ordered to answer or otherwise respond to the Counterclaim, Filing No. 26 , within 21 days from the date of this Order. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANDREA M. WIKE,
Plaintiff,

8:23CV397

vs.
MEMORANDUM AND ORDER
DOUGLAS COUNTY, DIANE BATTIATO,
individual capacity; LILIANA E. SHANNON,
individual capacity; SOUTHLAW, P.C.,
FRANCIS E. YOUNES, individual capacity;
TERAH YOUNES, individual capacity;
JASON C. HUBBARD, individual capacity;
and JASON HUBBARD LAW P.C., L.L.O.,
Defendants.
This matter comes before the Court on the Defendants’ motions to dismiss, Filing
No. 23; Filing No. 24, Filing No. 26, and Plaintiff’s motion for bill quia timet, Filing No. 33,
motion to grant leave to amend amended complaint, Filing No. 48, and motion to prove
authority, Filing No. 60. For the reasons set forth herein, the motions to dismiss are
granted, Plaintiff’s motions are denied, and Plaintiff is ordered to respond to Defendants’
counterclaim.
I.

BACKGROUND
This case arises out of the non-judicial foreclosure sale of property previously

owned by plaintiff Wike. See Filing No. 19. Wike has filed three cases, including the
present action, in an attempt to halt the sale or have the property returned to her. See
8:22cv297; 8:22cv355. As set forth in the prior cases, the property in question was
encumbered by a deed of trust, and Wike failed to make payments when due under a
loan secured by the deed of trust, prompting the non-judicial foreclosure sale. Case No.

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8:22cv355, Filing No. 57 at 1. Defendant Liliana E. Shannon, employed at defendant
SouthLaw P.C., was the successor trustee under the deed of trust on the property.
Douglas County and Diane Battiato, the Douglas County Assessor, maintained the public
tax and property records relating to the property. Defendants Francis Younes and Terah
Younes purchased the property at auction and took possession of the property with the
assistance of their attorney, defendant Jason Hubbard and his law firm, defendant Jason
Hubbard Law, P.C L.L.O.
In the present action, Wike asserts a cause of action for “Conspiracy – Neb. Rev.
Stat. 28-202, 18 U.S. Code § 241” against all Defendants, arguing they conspired to
“steal” her property. Filing No. 19 at 9. She also alleges all Defendants committed
“Identity Theft” by using her name in conjunction with the sale of the property. Filing No.
19 at 10–11. Third, she asserts a cause of action for abuse of process against the
Youneses for undertaking action to remove her from the property following their purchase
of it. Filing No. 19 at 12–13. Lastly, she asserts a cause of action under 42 U.S.C. §
1983 against Hubbard and the Younes defendants for depriving her of her right to
property. Filing No. 19 at 13–15. She seeks compensatory and punitive damages in the
amount of $1,000,000. Filing No. 19 at 13, 15. Her previous requests for injunctive relief
were denied. Filing No. 11; Filing No. 22.
II.

ANALYSIS
Defendants seek to dismiss the claims against them for failure to state a claim

upon which relief can be granted. Filing No. 23; Filing No. 24; Filing No. 26. Additionally,
the Youneses assert a counterclaim against Wike for slander of title and attorney’s fees.
Filing No. 25 at 3. They claim Wike sent an email to fifty-six recipients in which she

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disparaged the Youneses’ title to the property. Filing No. 26 at 3. Wike has also filed
several miscellaneous motions. Filing No. 33; Filing No. 48; Filing No. 60. The Court
addresses these matters in turn.
A. Standard of Review
Under the Federal Rules of Civil Procedure, a complaint must contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.3 (2007). “Specific facts are not
necessary; the statement need only ‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(quoting Bell Atl. Corp., 550 U.S. at 555). In order to survive a motion to dismiss under
Fed. R. Civ. P. 12(b)(6), the plaintiff’s obligation to provide the grounds for his entitlement
to relief necessitates that the complaint contain “more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp., 550
U.S. at 555. “Factual allegations must be enough to raise a right to relief above the
speculative level.” Id.
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
presumption of truth.

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Although legal

conclusions “can provide the framework of a complaint, they must be supported by factual
allegations.” See id. (describing a “two-pronged approach” to evaluating such motions:
First, a court must accept factual allegations and disregard legal conclusions; and then
parse the factual allegations for facial plausibility). “A claim has facial plausibility when

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the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id.
B. Conspiracy
Wike argues Defendants have engaged in a criminal conspiracy to “steal” her
property via the nonjudicial foreclosure sale. Filing No. 19 at 9. However, Wike purports
to bring her action under two criminal statutes, Neb. Rev. Stat. § 28-202 and 18 U.S.C. §
241. Private parties have no standing to enforce criminal statutes. See Jones v. Clinton,
206 F.3d 811, 812 (8th Cir. 2000). Accordingly, Wike’s claim for criminal conspiracy fails
to state a cause of action upon which relief can be granted and is dismissed.
C. Identity Theft
Wike also claims that Shannon and her law firm, SouthLaw, committed identity
theft by using her name in conjunction with administering the deed and the property. Filing
No. 19 at 11. As with her cause of action for conspiracy, identity theft is a criminal statute
that Wike is without standing to enforce. See Neb. Rev. Stat. § 28-639 (setting forth the
crime of identity theft). As such, her claim for identity theft is dismissed.
D. Abuse of Process
Wike next argues that Francis Younes, Terah Younes, and their attorney Hubbard
engaged in unlawful abuse of process. Filing No. 19 at 12–13. She asserts they
unlawfully employed forcible entry and detainer to take possession of her property and
make her homeless. Filing No. 19 at 12–13. Defendants counter that Wike fails to state
a claim because they were the “bona fide purchaser of the Property.” Filing No. 26 at 2.
However, whether or not the Youneses properly purchased the property is a factual
determination improper for resolution at the pleading stage. Rather, the Court finds Wike

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fails to state a claim for abuse of process because she does not allege misuse of process
to extort an improper collateral advantage.
“The two elements necessary to establish an action for abuse of legal process
under Nebraska law are (1) the existence of an ulterior purpose and (2) an act in the use
of the process not proper in the regular prosecution of the proceeding. Specifically,
Plaintiff must ‘prove irregular steps taken under cover of the process after its issuance,
and damage resulting therefrom.’” Stagemeyer v. Cnty. of Dawson, 192 F. Supp. 2d 998,
1010 (D. Neb. 2002) (quoting Gordon v. Comty. First State Bank, 587 N.W.2d 343, 351
(Neb. 1998)). “‘Abuse of process’ . . . means the perversion of it,—i.e., accomplishing
some illegal object or purpose for which such process was not legally intended.” Gordon,
587 N.W.2d at 351 (quoting Vybiral v. Schildhauer, 265 N.W. 241 (Neb. 1936)). “The
purpose for which the process is used, once it is issued, is the only thing of importance.”
Stagemeyer, 192 F. Supp. 2d at 1010 (quoting Prosser and Keeton on the Law of Torts §
121, at 897). “The improper purpose usually takes the form of coercion to obtain a
collateral advantage, not properly involved in the proceeding itself, such as the surrender
of property or the payment of money, by the use of the process as a threat or a club.” Id.
(quoting Prosser and Keeton on the Law of Torts § 121, at 898).
Here, Wike does not allege an improper use of process in order to coerce a
collateral advantage on the part of the Youneses or Hubbard. Rather, she alleges they
used process in order to force her from the property, an outcome she strongly dislikes
and disagrees with. However, her removal from the property is not an improper use of
the forcibly entry and detainer process, but rather its intended outcome. See, e.g., Neb.
Rev. Stat. § 25-21,220 (Nebraska statute setting forth the process for forcible entry and

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detainer proceedings). Nor does Wike allege the Youneses and Hubbard employed the
process in order to extort or coerce some other advantage from her; rather she claims
they employed it to remove her from the land, the very purpose for which forcible entry
and detainer was created. The fact that Wike does not think she should have been
removed from the property does not convert the Youneses’ and Hubbard’s action into an
abuse of process. Accordingly, Wike fails to state a claim upon which relief can be
granted.
E. 42 U.S.C. § 1983
Wike’s final cause of action is pursuant to 42 U.S.C. § 1983 for deprivation of
constitutional rights against the Youneses and Hubbard. Filing No. 19 at 13–15. Wike
alleges these defendants violated her rights under color of law by depriving her of the
right to use her private property. However, when bringing a § 1983 suit against a nongovernmental entity, “a plaintiff must establish not only that [the] private actor caused a
deprivation of constitutional rights, but that the private actor willfully participated with state
officials and reached a mutual understanding concerning the unlawful objective of a
conspiracy.” Dossett v. First State Bank, 399 F.3d 940, 951 (8th Cir. 2005). While Wike
claims the Youneses were “acting in concert with other Defendants including . . . the
County,” she provides no facts in support of this assertion, nor does she make any other
factual claims that would support that the Youneses and Hubbard were acting under color
of state law. See Lindenwood Female Coll. v. Zurich Am. Ins. Co., 61 F.4th 572, 574 (8th
Cir. 2023) (stating the Court “need not give deference to conclusory allegations or bare
legal assertions” (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))). Accordingly, Wike

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has failed to state a claim upon which relief can be granted, and her claim under § 1983
must be dismissed.
F. Wike’s Additional Motions
1. Motion for Leave to Amend
Wike seeks leave to amend her complaint. Filing No. 48. Though the district court
“should freely give leave [to amend] when justice so requires,” Fed. R. Civ. P. 15(a)(2),
plaintiffs do not enjoy “an absolute or automatic right to amend” a deficient complaint.
United States ex rel. Lee v. Fairview Health Sys., 413 F.3d 748, 749 (8th Cir. 2005).
Rather, a district court can deny a motion for leave to amend on the basis it would be
futile, meaning an amended complaint would fail to state a cause of action. Zutz v.
Nelson, 601 F.3d 842, 850 (8th Cir. 2010).
Wike has already been granted leave to file one amended complaint in this action
which, as set forth herein, fails to state a claim. That, in conjunction with the two
previously dismissed suits referenced above, leads the Court to conclude that further
amendments would be futile. Accordingly, her motion to amend, Filing No. 48, is denied.
2. Motion for Bill Quia Timet
Wike files what she terms a “motion for bill quia timet.” Filing No. 33. In short, she
seeks injunctive relief to keep the use of the property in question. Filing No. 33 at 2–3.
“Literally meaning ‘because he fears,’ quia timet is ‘[a] legal doctrine that allows a person
to seek equitable relief from a future probable harm to a specific right or interest.’” Penn.
Nat. Mut. Cas. Ins. Co. v. City of Pine Bluff, 354 F.3d 945, 950 (8th Cir. 2004) (quoting
Black’s Law Dictionary 1260 (7th Ed. 1999)). Given the resolution of the motions to
dismiss, the fact Court has twice denied Wike’s previous requests for injunctive relief, and

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because Wike seeks relief that is not entirely forward-looking (that is, the land has already
been sold), the Court denies her motion for bill quia timet.
3. Motion to Prove Authority
Lastly, Wike files what she calls a “verified motion to prove authority and ratification
of commencement.” Filing No. 60 at 1. She seems to claim that the Defendants’ attorneys
are not authorized to represent them in this case. Defendants deny this allegation, Filing
No. 61; Filing No. 62, and there is no legal basis for her motion. Accordingly, it is denied.
G. Counterclaim
Having concluded that Wike’s causes of action must be dismissed, the Court is
faced with what it should do with the Youneses’ counterclaim for slander of title and
attorney’s fees.1
Wike initially filed this action in state court and Defendants removed it on the basis
of federal question jurisdiction. Filing No. 1. The Court has concluded that the federal
causes of action must be dismissed and accordingly must determine whether to continue
to exercise jurisdiction over the remaining state-law counterclaim. “A district court’s
decision whether to exercise [supplemental] jurisdiction after dismissing every claim over
which it had original jurisdiction is purely discretionary.” Carlsbad Tech., Inc. v. HIF Bio,
Inc., 556 U.S. 635, 639 (2009). The factors the Court considers in deciding whether to
remand a case in include judicial economy, convenience, fairness and comity. Glorvigen
v. Cirrus Design Corp., 581 F.3d 737, 749 (8th Cir. 2009).

The basis for the request for attorney fees is unclear. The Court notes that federal courts follow the socalled American Rule which prohibits fee-shifting in most cases absent statutory or contractual
authorization. Lamb Eng'g & Const. Co. v. Neb. Pub. Power Dist., 103 F.3d 1422, 1435 (8th Cir. 1997).
1

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Here, the Court has extensive familiarity with this case and its facts due to
addressing numerous motions under this docket and in Wike’s two previous cases. It
finds it would be both most efficient, convenient, and fairest to retain jurisdiction over the
counterclaim. Accordingly, the Court retains jurisdiction over the counterclaim and orders
Wike to answer or otherwise respond to it within 21 days.
III.

CONCLUSION
The Court grants Defendants’ motions to dismiss, denies Wike’s various motions,

and orders her to answer or otherwise respond to the Youneses’ counterclaim within 21
days from the date of this Order.
Further, Wike is cautioned not to file any new claims or cases relating to the facts
underlying this case. Any such filings are subject to potential summary dismissal prior to
any response from the defendants on the grounds of res judicata and/or failure to state a
claim. Wike is permitted to file documents in this case related to her defense of the
counterclaim only.
IT IS ORDERED:
1. Defendants’ motions to dismiss, Filing No. 23; Filing No. 24; Filing No. 26, are
granted and Plaintiff’s amended complaint is dismissed.
2. Plaintiff’s motion for bill quia timet, Filing No. 33, is denied.
3. Plaintiff’s motion for leave to amend, Filing No. 48, is denied.
4. Plaintiff’s motion to prove authority, Filing No. 60, is denied.
5. Defendants Douglas County, Diane Battiato, Liliana E. Shannon, and
SouthLaw, P.C., Jason C. Hubbard, and Jason Hubbard Law, P.C., L.L.O., are
dismissed from the case.

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6. Francis E. Younes and Terah Younes remain in the case as counter plaintiffs
only.
7. Andrea Wike, as counter defendant, is ordered to answer or otherwise respond
to the Counterclaim, Filing No. 26, within 21 days from the date of this Order.
Dated this 27th day of March, 2024.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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