Rosberg v. United States of America et al

Filing 7

ORDER Dismissing Complaint. Signed by U.S. District Judge Lawrence L. Piersol on 10/1/2015. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
PAUL A. ROSBERG,

FILED
OCT 0 1 2015

~~

4: 15-CV-04075-LLP

Plaintiff,
vs.
ORDER DISMISSING

COMPLAINT

UNITED STATES OF AMERICA, ERIC
HOLDER, DEBORAH R. GILG, LAURIE
M. BARRET, RUSSELL X. MAYER,
HORACIO J. WHEELOCK, JOEL
CARLSON, and OMAHA PUBLIC
SCHOOL,
Defendants.
INTRODUCTION

Plaintiff, Paul A. Rosberg, filed this pro se lawsuit, arguing defendants
violated his plea agreement. He named the United States of America, Eric
Holder, Deborah R. Gilg, Laurie M. Barret, Russell X. Mayer, Horacio J.
Wheelock, Joel Carlson, and Omaha Public School as defendants. At the time
of filing, Rosberg was incarcerated at the federal prison camp in Yankton,
South Dakota. The Court has "screened" this case pursuant to 28 U.S.C.
§ 1915A. For the following reasons, Rosberg's claim is dismissed.

FACTUAL BACKGROUND

Rosberg was a farmer in Nebraska and operated a federally inspected
meat processing plant with his wife, Kelly. Docket 1 at ~ 1. He was arrested for
illegally packaging meat. Id. at ~ 1, 4. At the beginning of his trial, Rosberg said
he did not want counsel appointed because he did not want to pay for counsel.
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Id. at

~3.

The judge said he would not have to pay, and appointed standby

counsel. Id.; Docket 1-1 at 1. Rosberg eventually signed a plea agreement.
Docket 1 at

~ 12.

During the change of plea hearing, the judge appointed defendant
Wheelock as defense counsel. 8: 12-cr-00271-RGK-FG3 Docket (hereinafter "CR
Docket") 207, 208. Prior to this, Wheelock acted as standby counsel in this
case and as counsel in another, related case. Id. During the hearing, the judge
said that he would wait to determine whether Rosberg was responsible for his
fees. Id. At sentencing, Rosberg was ordered to reimburse the Criminal Justice
Act (CJA) Fund for Wheelock's legal assistance in this and the related case. CR
Docket 247.

DISCUSSION
Rosberg alleges this court has diversity jurisdiction under 28 U.S.C.
§ 1332. "Diversity jurisdiction 'requires an amount in controversy greater than

$75,000 and complete diversity of citizenship of the litigants.' " E3 Biofuels,

LLC v. Biothane, LLC, 781 F.3d 972,975 (8th Cir. 2015) (quoting OnePoint
Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007)). " 'Complete
diversity of citizenship exists where no defendant holds citizenship in the same
state where any plaintiff holds citizenship.' " Id. (quoting OnePoint Solutions,
486 F.3d at 346).
"[F]or purposes of determining diversity of citizenship, the controlling
consideration is the domicile of the individual." Jones v. Hadican, 552 F.2d
249, 250 (8th Cir. 1977). "[A] prisoner does not acquire a new domicile when he
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is incarcerated in a different state; instead, he retains the domicile he had prior
to his incarceration." Id. (citations omitted). The court held this "traditional
rule" was a presumption that "could be rebutted by a prisoner who could show
facts sufficient to indicate a bona fide intention to change his domicile to the
place of his incarceration." [d. at 251.
When he filed this complaint, Rosberg was a prisoner in South Dakota.
Before being incarcerated, he lived in Nebraska, where defendants Mayer,
Wheelock, and Carlson lived, as well as where the Omaha Public School is
located. Rosberg has not argued that he is domiciled outside of Nebraska.
Therefore, his citizenship is not diverse to all defendants.
Even though Rosberg did not argue it in his complaint, Federal courts
have jurisdiction to hear "Controversies to which the United States shall be a
Party." U.S. Const. art. III, § 2, d. 1. As a defendant, however, "The United
States is immune from suit unless it consents." Hart v. United States, 630 F.3d
1085, 1088 (8th Cir. 2011). Therefore, this court does not have jurisdiction
over this case.
Accordingly, it is ORDERED that Rosberg's complaint (Docket 1) is
dismissed without prejudice for lack of jurisdiction.
Dated October 1-,2015.
BY THE COURT:

~..~~MO"""_-------'''
~wrence
L. Piersol

UNITED STATES DISTRICT JUDGE
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