McClain v. US Bankruptcy et al

Filing 6

ORDER signed by Judge Pamela Pepper on 4/25/2017 DISMISSING the Case and DENYING AS MOOT Plaintiff's 2 MOTION for Leave to Proceed Without Prepayment of the Filing Fee. (cc: all counsel and copy sent to the plaintiff by US Mail on 4/26/2017)(kgw)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ROSE MCCLAIN,
Plaintiff,
v.

Case No. 17-cv-196-pp

US BANKRUPTCY and
KOHN LAW FIRM,
Defendants.
ORDER DISMISSING THE CASE,
AND DENYING AS MOOT PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT THE PREPAYMENT OF FEES (DKT. NO. 2)

On February 23, 2017, the court issued an order screening the plaintiff’s
complaint. Dkt. No. 4. The court dismissed the complaint without prejudice
under 28 U.S.C. §1915(e)(2)(B), because the United States Bankruptcy Court is
immune from suit, because the plaintiff had not alleged a federal cause of
action, because the plaintiff had not alleged diversity of citizenship of the
parties, and because the complaint failed to state a claim against the Kohn Law
Firm. Id. at 4. The court ordered the plaintiff to file an amended complaint on or
before March 27, 2017, stating the “full factual basis for her claims against the
Kohn Law Firm.” Dkt. No. 4 at 4-5.
The plaintiff filed her amended complaint on March 17, 2017. Dkt. No. 5.
Again, she made claims against the United States Bankruptcy Court and the

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Kohn Law Firm, repeating the allegations that she made in the original
complaint. Id. At this stage of the case, the court liberally construes the
allegations of a plaintiff proceeding without the assistance of counsel. But the
amended complaint did not correct any of the problems the court observed in
the original complaint—the Bankruptcy Court remains immune from suit, the
plaintiff has not stated a basis for federal jurisdiction, and she has not stated a
cognizable claim against the Kohn Law Firm. Because the court may dismiss a
case at any time if it fails to state a claim upon which relief may be granted or
seeks monetary relief from a defendant who is immune from suit, the court will
dismiss the case. 28 U.S.C. §1915(e)(2)(B).
The plaintiff expresses her dissatisfaction with a “Chapter 7” proceeding,
and a debt that she believed was discharged in October of 1992. The court
looked on PACER (Public Access to Court Electronic Records), and located a
voluntary Chapter 13 petition filed by Rose M. McClain in the Southern District
of Florida on March 10, 1992. In re McClain, Case No. 92-11443 (S.D. Fla.), Dkt.
No. 1. The case converted to a Chapter 7 on January 15, 1993, and the debtor
filed a motion for voluntary dismissal on March 12, 1993. Id. at dkt. nos. 13 and
24. After the bankruptcy court entered an order dismissing the case for a period
of six months, the case was closed on June 29, 1993. Id. at dkt. no. 28.
The court located a second bankruptcy petition filed by Rose McClain
under Chapter 7 in the Eastern District of Wisconsin Bankruptcy Court on
February 10, 2016. In re McClain, Case No. 16-20968-beh, Dkt. No. 1. On

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March 14, 2016, the Chapter 7 trustee filed a report of no distribution, stating
that there was no property available for distribution from the estate above the
exemption allowed by law. Bankruptcy Judge Beth Hanan entered a final decree
on May 18, 2016, holding that the estate had been fully administered, and the
plaintiff received her Chapter 7 discharge the same day. The clerk’s office then
closed the case.
The plaintiff, therefore, dismissed her Florida bankruptcy case, and she
received her discharge in the Wisconsin bankruptcy case. Yet in her complaint,
she asks for “complete compensation for the false product” that she was sold by
the United States Bankruptcy Court. McClain v. U.S. Bankruptcy, et al., Dkt.
No. 5 at 4-5.
As explained in the court’s February 23, 2017 order, the United States
Bankruptcy Court, as the judicial branch of the Federal Government, cannot be
sued unless it waives its immunity from suit. See Fed. Deposit Ins. Corp. v.
Meyer, 510 U.S. 471, 474 1994). For that reason, the court dismisses all of the
plaintiff’s claims against the United States Bankruptcy Court.
With respect to the Kohn Law Firm, the amended complaint does not
mention the Kohn Law Firm until the second page of the statement of claim. The
plaintiff alleges that the law changed in 2005, giving “the University the right to
collect on school debts.” Dkt. No. 5 at 4. She says that she “started to get phone
calls in or around 2005 from the Kohn Law Firm” regarding a school debt that
she had thought was discharged in 1992 because it was listed on her petition

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(presumably the Florida petition). She indicates that the creditor took steps to
garnish her wages, which lasted “another seven years.”
Even if the court liberally construes the amended complaint, the
plaintiff appears to be complaining that the Kohn Law Firm was attempting to
collect a debt. If the plaintiff believes that the defendant was trying to collect a
debt that had been discharged, she needs to bring that claim in the bankruptcy
court. See 11 U.S.C. §524(c). (The court notes that the plaintiff did not receive a
discharge in the Florida case, because she dismissed it before any discharge
issued.) If the plaintiff believes that the Kohn Law Firm violated federal
consumer debt protection laws in trying to collect the debt, she may have waited
to long to bring her claim. Plaintiffs with claims alleging the improper pursuit of
debt collection under the Fair Debt Collection Practices Act must bring those
claims “within one year from the date on which the violation occurs.” 15 U.S.C.
§1692k(d). Aside from all this, the plaintiff states that she does not seek relief
from the firm; rather, she is asking for “compensation” for the “false product”
sold to her by the bankruptcy court. Dkt. No. 5 at 5. That statement circles back
around to the fact that the bankruptcy court is not subject to suit.
In its prior order, the court explained to the plaintiff that in her amended
complaint, she needed to provide a short and plain statement of her claim. Dkt.
No. 4 at 2. Instead, the amended complaint repeats the same allegations that
the plaintiff made in the original complaint. As the court indicated in the
screening order, it does not have diversity jurisdiction because the plaintiff and

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the Kohn Law Firm appear to be citizens of the same state. 28 U.S.C. §1332.
Further, the plaintiff has failed to identify facts that would support a claim
under the Constitution, laws, or treaties of the United States. 28 U.S.C. §1331.
The court ORDERS that the amended complaint is DISMISSED under 28
U.S.C. § 1915(e)(2)(B)(ii) and (iii), because the United States Bankruptcy Court is
immune from suit; the plaintiff has not alleged violations of federal laws or the
federal Constitution; the court does not have diversity jurisdiction; and the
complaint fails to state a claim upon which relief can be granted against the
Kohn Law Firm. Dkt. No. 5. The court ORDERS that this case is DISMISSED,
and DENIES as moot the plaintiff’s motion for leave to proceed without
prepayment of the filing fee, dkt. no. 2.
Dated in Milwaukee, Wisconsin, this 25th day of April, 2017.

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