Kalk v. Specialized Loan Service et al

Filing 13

ORDER DISMISSING CASE sua sponte based upon lack of subject matter jurisdiction, signed by Chief Judge William C Griesbach on 08/23/2016. ECF 7 , 10 , 12 are therefore denied as moot. (cc: all counsel via e-file; William O. Kalk via US Mail)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

WILLIAM O. KALK,
Plaintiff,
v.

Case No. 16-C-1017

SPECIALIZED LOAN SERVICE, et al.,
Defendants.

ORDER

Plaintiff, William Kalk, filed this action on August 3, 2016 for injunctive and declaratory
relief to prevent a foreclosure sale scheduled for August 29, 2016. On August 22, 2016, Kalk filed
three motions: an emergency motion for a temporary restraining order and preliminary injunction,
an emergency motion for an order to show cause, and a motion for an order shortening the time to
hear his motions. (ECF Nos. 7, 10, 12.)
As a preliminary matter, the court finds that it has no subject matter jurisdiction over this
action. Subject matter jurisdiction cannot be waived and may be “raised sua sponte by the court at
any point in the proceedings.” Hawxhurst v. Pettibone Corp., 40 F.3d 175, 179 (7th Cir. 1994).
After reviewing the complaint, the court finds it does not have subject matter jurisdiction over this
action based on either diversity jurisdiction pursuant to 28 U.S.C. § 1332 or federal question
jurisdiction under 28 U.S.C. § 1331.
Diversity jurisdiction exists when there is complete diversity of citizenship among the parties
to an action and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1). Complete
diversity of citizenship means that “none of the parties on either side of the litigation may be a citizen

of the state of which a party on the other side is a citizen.” Howell v. Tribune Entm’t Co., 106 F.3d
215, 217 (7th Cir. 1997). In this case, complete diversity does not exist because Kalk and the
Waushara County Sheriff Office, one of the defendants, reside in Wisconsin.
Additionally, Kalk failed to sufficiently plead a federal question. For a court to exercise
federal question jurisdiction, a well-pleaded complaint must establish “that federal law creates the
cause of action or that plaintiff’s right to relief necessarily depends on resolution of a substantial
question of federal law.” Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27–28
(1983). A federal court must entertain a complaint seeking recovery under the Constitution or laws
of the United States “unless the alleged federal claim either ‘clearly appears to be immaterial and
solely made for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial
and frivolous.’” Ricketts v. Midwest Nat. Bank, 874 F.2d 1177, 1180 (7th Cir. 1989) (quoting Bell
v. Hood, 327 U.S. 678, 681–82 (1946)). If a district court determines a complaint is undermined
by either deficiency, “the complaint must be dismissed for want of federal subject matter
jurisdiction.” Ricketts, 874 F.2d at 1180.
Kalk makes one reference to federal law by stating “[u]pon information and belief plainti [sic]
believes that defendants and each of them acting in coucert [sic] have violated the Fair Debt
Collection Practice Act (FDCPA).” Compl. ¶ 35. However, Kalk does not allege any facts
suggesting that this is the true nature of his claim. In the body of the complaint, Kalk challenges the
foreclosure of the property and claims defendants breached a mortgage contract and violated the
covenant of good faith and fair dealing. He does not allege when or how any of the defendants
violated the FDCPA. In short, Kalk’s FDCPA claim is immaterial and made solely for the purpose
of obtaining jurisdiction. His claim is insufficient to vest this court with federal question jurisdiction.
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The Court also lacks subject matter jurisdiction under the Rooker–Feldman doctrine. See
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462 (1983). District courts do not have the power to exercise appellate review
over state court decisions. Garry v. Geils, 82 F.3d 1362, 1365 (7th Cir. 1996). Kalk asks this court
to vacate the foreclosure sale and the state court’s orders. Instead, Kalk must appeal the state
proceeding through the Wisconsin state courts. See Wright v. Tackett, 39 F.3d 155, 157–58 (7th
Cir. 1994). In sum, Kalk’s complaint must be dismissed for lack of subject matter jurisdiction.
Accordingly, IT IS ORDERED that this action is dismissed sua sponte for lack of subject
matter jurisdiction.
IT IS FURTHER ORDERED that Kalk’s motions are DENIED as moot.
Dated this 23rd

day of August, 2016.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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