Jakeway et al v. Livermont

Filing 6

ORDER Dismissing Case. Signed by Chief Judge Jeffrey L. Viken on 4/15/13. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
LAURIE O. JAKEWAY and
DIANE M. WILSON,
Plaintiffs,
vs.
MICHAEL A. LIVERMONT, SR.,
Defendant.

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CIV. 13-5015-JLV

ORDER DISMISSING CASE

On February 20, 2013, plaintiffs Laurie O. Jakeway and Diane M. Wilson
filed a complaint against defendant Michael A. Livermont, Sr., alleging they
were “illegally removed from [their] homesite” and lost assets. (Docket 1 at p.
1). Plaintiffs also assert a contract between Donald K. Bruce and Jerry
Jakeway, deceased, was breached.1 Id. Plaintiffs included documentation
regarding the sale of a 2002 Ford F-350, although it is unclear how this vehicle
ties into their claim. (Docket 1-1). Plaintiffs filed a motion for leave to proceed
in forma pauperis and a motion for appointment of counsel. (Dockets 3 & 4).
Subject matter jurisdiction cannot be waived and it is the duty of this
court to raise the issue sua sponte. State of Mo. Ex rel. Mo. Hwy & Transp.
Comm’n v. Cuffley, 112 F.3d 1332, 1334 (8th Cir. 1997). “Federal courts are
courts of limited jurisdiction . . . .” Mamot Feed Lot and Trucking v. Hobson,
539 F.3d 898, 902 (8th Cir. 2008). “[A] district court’s federal question
jurisdiction extends only to ‘civil actions arising under the Constitution, laws,

1

Donald Bruce is not a defendant.

or treaties of the United States.’ ” Id. (citing 28 U.S.C. § 1331). Diversity
jurisdiction is limited to cases in which that “controversy exceeds the sum . . .
of $75,000, exclusive of interest and costs, and is between . . . citizens of
different States . . . .” 28 U.S.C. § 1332(a)(1). “[S]ubject matter jurisdiction is a
threshold question [which] must [be] address[ed] at the outset.” Carton v.
General Motor Acceptance Corp., 611 F.3d 451, 455 (8th Cir. 2010). “The
threshold requirement in every federal case is jurisdiction and we have
admonished the district court to be attentive to a satisfaction of jurisdictional
requirements in all cases.” Sanders v. Clemco Industries, 823 F.2d 214, 216
(8th Cir. 1987).
Federal Rule of Civil Procedure 8(a) requires a plain statement of the
grounds for jurisdiction of the court and a concise statement of the claim
showing that the claimant is entitled to relief. Fed. R. Civ. P. 8(a). Reading
plaintiffs’ complaint liberally, it appears to assert allegations of fraud2 against
defendant and a breach of contract claim. The plaintiffs’ claims do not arise
under the Constitution, laws, or treaties of the United States. Absent a federal

2

Federal Rule of Civil Procedure 9(b) requires that allegations of fraud be
pled with particularity: “In alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P.
9(b). To satisfy this burden, the complaint must allege “such matters as the
time, place, and contents of false representations, as well as the identity of the
person making the misrepresentation, and what was obtained or given up
thereby.” Schaller Tel. Co. v. Golden Sky Sys., Inc., 298 F.3d 736, 746 (8th
Cir. 2002). This specificity is required “to enable the defendant to respond
specifically and quickly to the potentially damaging allegations.” Drobnak v.
Andersen Corp., 561 F.3d 778, 783 (8th Cir. 2009) (citations and quotations
omitted). “[C]onclusory allegations that a defendant’s conduct was fraudulent
and deceptive are not sufficient to satisfy the rule.” Id. (quoting Schaller, 298
F.3d at 746).
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claim, this court has no jurisdiction over a state-law cause of action such as
fraud or breach of contract.
The complaint also fails to satisfy the diversity jurisdiction requirements
of 28 U.S.C. § 1332(a)(1) because plaintiffs and defendant reside in the same
state. Plaintiffs reside in Kadoka, South Dakota, and defendant resides in
Belvidere, South Dakota. (Docket 1 at p.2).
The court concludes that federal subject matter jurisdiction does not
exist in this case under either the federal question statute or the diversity of
citizenship statute. Accordingly, it is hereby
ORDERED that plaintiffs’ complaint (Docket 1) is dismissed without
prejudice.
IT IS FURTHER ORDERED that plaintiffs’ motion for leave to proceed in
forma pauperis (Docket 3) is denied as moot.
IT IS FURTHER ORDERED that plaintiffs’ motion for appointment of
counsel (Docket 4) is denied as moot.
IT IS FURTHER ORDERED that the $350 filing fee is waived in full.
Dated April 15, 2013.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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