Rosberg v. Sands et al

Filing 5

ORDER Dismissing Complaint. Signed by U.S. District Judge Lawrence L. Piersol on 10/5/2015. (JLS)

UNITED STATES DISTRICT COURT

FILED

DISTRICT OF SOUTH DAKOTA

OCT 05 2015

SOUTHERN DIVISION

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PAUL A. ROSBERG, ELIAS P.
ROSBERG, LEAH K. ROSBERG,
SAMUAL P. ROSBERG, LILY A.
ROSBERG, ANDREW P. ROSBERG,
and MARY K. ROSBERG,

4: 15-CV-04080-LLP

ORDER DISMISSING

COMPLAINT

Plaintiffs,
vs.
JOSEPH SANDS, CHRISTOPHER A.
MIHALO, KELLY R. ROSBERG, BRIAN
E. JORDE, and RONALD JONES,
Defendants.
INTRODUCTION

Plaintiff, Paul A. Rosberg, filed this pro se lawsuit naming Joseph Sands,
Christopher A. Mihalo, Kelly R. Rosberg, Brian E. Jorde, and Ronald Jones as
defendants. He named himself and his children as plaintiffs. 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 married Kelly in 1996 and farmed and operated a meat
processing plant until they were arrested for illegally packaging federally
inspected meat. Docket 1 at 2. Rosberg agreed to a plea deal in which he
received an eighteen month prison sentence, and Kelly received probation. Id.
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at 3. He started serving time on February 27,2014. Id. at 4. On August 19,
2014, Kelly filed for divorce, which Rosberg blames on defendant Sands. Id.
Rosberg claims Sands dated his wife, convinced her to file for divorce, and had
her take money from Rosberg. Id. at 3-4.
Rosberg also claims that Kelly cashed a cashier's check made out to him
and his corporation, transferred money out of his corporate bank account, and
cashed a check made out to both of them without giving him any money. Id. at
6-7. Overall, Rosberg claims Kelly took $92,268 from him. Id. at 7. He also
alleges Sand conspired to take this money. Id.
Rosberg claims that his children lost their stable home environment and
are suffering emotionally because of Sands. Id. Finally, he claims that Kelly
took $3,000 of his money and gave it to defendants Mihalo, Jorde, and Jones.
Id.

Rosberg requests $400,000 in damages from Sands under Count 1. [d. at
8. Under Count II, he requests $92,268 from Sands and Kelly. Id. Under Count
III, he requests $600,000 in damages from Sands for his children. Id. Under
Count IV and V, he requests the $1,000 and $2,000 that was taken by Kelly
and given to other defendants. Id.
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
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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
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." Id. at 251.
When he filed this complaint, Rosberg was a prisoner in South Dakota.
Before being incarcerated, he lived in Nebraska, where all defendants lived.
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.

.-IJ,..

Dated October ~ ,2015.

BY THE COURT:

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UNITED STATES DISTRICT JUDGE

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