Rosberg v. Kinkaid et al

Filing 7

(FILED IN ERROR) ORDER Dismissing Complaint. Signed by U.S. District Judge Lawrence L. Piersol on 10/5/2015. (JLS) Modified dkt text on 10/5/2015 (JLS).

UNITED STATES DISTRICT COURT

FILED

DISTRICT OF SOUTH DAKOTA

OCT 05 2015

SOUTHERN DIVISION

~~

PAUL A. ROSBERG,

4: 15-CV-04079-LLP

Plaintiff,
vs.
ORDER DISMISSING

COMPLAINT

KAREN RIESBERG, KNOX
COUNTY / JOHN THOMAS, BONDING
COMPANY, WEST PLAINS LLC, and
TODD R. MCWHA,
Defendants.
INTRODUCTION

Plaintiff, Paul A. Rosberg, filed this pro se lawsuit, arguing defendants
violated his plea agreement. He named Karen Riesberg, Knox County/John
Thomas, Bonding Company, West Plains LLC, and Todd R. McWHA as
defendants. At the time of filing, Rosberg was incarcerated at the federal prison
camp in Yankton, South Dakota. The Court "screened" this case pursuant to
28 U. S. C. § 1915A. For the following reasons, Rosberg's claim is dismissed.

FACTUAL BACKGROUND
Rosberg claims he sold 100,000 bushels of organic corn to West Plains
Company. Docket 1 at

~ 1.

After he delivered one installment, West Plains

claimed the corn was damaged, and it would not pay for the corn. Id. at

~~2,

4.

West Plains brought the agreement to an arbitrator in Washington D.C. [d. at
~9.

Rosberg was not able to explain himself to the arbiter, and it found that he

1

must pay West Plains. [d. at

~~ 10-11.

Rosberg in Knox County. [d. at

~ 12.

West Plains filed a lawsuit against

The Knox County judge ruled against

Rosberg and refused to listen to his arguments. [d. at

~~ 14-17.

He was not

allowed to appeal the decision against him. [d. Rosberg requests that this court
find defendants responsible for his loss in this dispute and order them to pay
$173,000. [d. at ~20.

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.'" [d. (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
is incarcerated in a different state; instead, he retains the domicile he had prior
to his incarceration." [d. (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.
2

When he filed this complaint, Rosberg was a prisoner in South Dakota.
Before being incarcerated, he lived in Nebraska, where defendants Riesberg,
Thomas, and McWHA lived, as well as where Knox County and West Plains
Company are located. Rosberg has not argued that he is domiciled outside of
Nebraska. Therefore, his citizenship is not diverse to all defendants.
Accordingly, it is ORDERED that Rosberg's complaint (Docket 1) is
dismissed without prejudice for lack of jurisdiction.
Dated

C"~

October~,

2015.

BY THE COURT:

l~~~f&-

UNITED STATES DISTRICT JUDGE

3