Corbly, Cynthia et al v. Jaberg, Stephen

Filing 4

ORDER dismissing plaintiff's Amended Complaint, pursuant to Fed. R. Civ. P. 8. Second amended complaint due 12/15/2015. Signed by District Judge William M. Conley on 11/24/2015. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
CYNTHIA ANNE CORBLY and
JAMES EDWARD CORBLY,
OPINION and ORDER
Plaintiffs,
v.

Case No. 15-cv-331-wmc

MR. STEPHAN JABERG,
Defendant.

Pro se plaintiffs Cynthia Anne and James Edward Corbly have filed a proposed
amended complaint in response to the court’s June 11, 2015, order denying them leave to
proceed. See Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999) (“[D]istrict courts have the
power to screen complaints filed by all litigants, prisoners and non-prisoners alike, regardless
of fee status.”) In their original complaint (dkt. #1), the Corblys purported to bring claims
for pain and suffering, slander, intimidation, and defamation of character against the sole
defendant, Stephan Jaberg, who is the administrator of Cedar Community, an assisted living
facility located in West Bend, Wisconsin, where Cynthia Corbly’s mother was a former
resident. Although their original complaint was mostly unintelligible, the Corblys appeared
to be complaining about actions taken by Cedar Community relating to Ms. Roemer’s
funeral.
In its June 11 order, the court explained that before this matter could proceed, the
Corblys would need to file an amended complaint containing more specificity with respect to:
(1) whether the court had subject matter jurisdiction over the case; (2) whether the Corblys
had a viable legal claim against Jaberg; and (3) whether the Corblys claims should not be
dismissed as time-barred.

While the Corblys’ amended complaint purports to fix these

defects, its eighteen, single-spaced pages remain difficult to follow. In addition, numerous

details do not seem particularly relevant to any claim the Corblys intend to assert against
Jaberg. For example, the amended complaint describes Cynthia Corbly’s role in caring for her
parents and managing their assets and health care needs, as well as disputes that arose
between the Corblys and Cedar Community at the time of Helen Roemer’s death.
Essentially, the amended complaint explains that the Corblys wished to have
Roemer’s body buried in South Dakota, but a dispute with Cedar Community and confusion
among various funeral homes allegedly prevented the Corblys from obtaining the body before
it was cremated. Over the next several years, the Corblys contacted the police, federal, state
and county authorities, as well as attorneys for Cedar Community, but they have been unable
to obtain a satisfactory explanation for what happened. Cedar Community’s attorneys have
since instructed the Corblys to cease all contact. At some point, Cynthia Corbly was even
arrested in Wisconsin for actions apparently related to her investigation into her mother’s
death and burial. Unfortunately for the Corblys, despite numerous, additional allegations,
the amended complaint fails to correct the problems identified in the June 11 order for
reasons discussed below. As a result, the court must dismiss their lawsuit.
DISCUSSION
I.

Subject Matter Jurisdiction.
As an initial matter, this court still lacks subject matter jurisdiction over this case. As

explained in the June 11 order, federal courts like this one generally have authority to hear
two types of cases: (1) cases that arise under federal law, 28 U.S.C. § 1331; and (2) cases in
which the parties in suit are citizens of different states and the amount in controversy is
greater than $75,000, 28 U.S.C. § 1332.

The court does not have jurisdiction over the

Corblys’ case under 28 U.S.C. § 1331, as they have identified no federal claims in their
amended complaint, nor can this court discern one from the facts alleged. For example, the
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Corblys do not allege that Jaberg is a governmental actor, so they cannot bring claims against
him under the United States Constitution; nor do their claims implicate any federal statute.
Thus, any claims the Corblys may have against Jaberg arise under state law.
As for diversity jurisdiction under 28 U.S.C. § 1332, the Corblys include no
jurisdictional allegations in their amended complaint. In fairness, the Corblys did allege in
their original complaint that they live in Austin, Minnesota, and that defendant Jaberg and
Cedar Community are located in West Bend, Wisconsin, so the court inferred that the
parties are citizens of different states and will do so again. Since both in their original and
amended complaints, the Corblys fail to identify any claim to a compensable injury or
remedy sought in this lawsuit, it is impossible to determine the amount in controversy. As
the court explained in the June 11 order and the Corblys failed to respond, however, the
court can only exercise its diversity jurisdiction if the amount in controversy exceeds
$75,000. Moreover, even giving the Colby’s every benefit of the doubt, it seems unlikely
that there would be.
II.

Failure to State a Claim for Relief Against Defendant Jaberg.
In addition to this continuing jurisdictional defect, the Corbly’s amended complaint

continues to violate Rule 8 of the Federal Rules of Civil Procedure.

Under that Rule, a

complaint must include “a short and plain statement of the claim showing that the pleader is
entitled to relief.” This means that “the complaint must describe the claim in sufficient detail
to give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.” EEOC v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007). Here,
despite adding several pages of allegations to their amended complaint, the Corblys have
failed to include facts showing they are entitled to relief against the only named defendant,
Jaberg. Instead, in an apparent attempt at providing context for their claims, the Corblys
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have included pages of additional facts in their amended complaint that do not involve Jaberg.
If anything, this lengthy irrelevant detail makes it even more difficult to discern precisely
what claims the Corblys are attempting to assert against Jaberg.

III.

Statute of Limitations.
Finally, the Corblys have not responded to the court’s expressed concern that any

claims they intend to assert against Jaberg are likely barred by the applicable statutes of
limitation. While the Corblys do not identify any particular legal theories in their complaint,
the majority of their allegations relate to events that occurred more than 10 years ago, and
any claims based on events that occurred more than 6 years ago are likely barred by the
applicable statutes of limitations. For example, if the Corblys are attempting to assert a claim
for breach of a contract against Jaberg, they had six years from the date of the alleged breach
to bring suit.

See Wis. Stat. § 893.43.

Since plaintiffs had been aware of any possible

negligence claim almost immediately, a similar six year statute of limitations would apply.
See Wis. Stat. § 893.52. Finally, the Corblys were required to bring any intentional tort
claims, such as defamation or slander, within two or three years of the date they learned of
their injury (within two years if the injury was discovered before February 26, 2010, and
within three years if the injury was discovered after that date). See Wis. Stat. § 893.57.
Although the Corblys include some allegations about more recent events in their amended
complaint, none of those allegations appear to involve Jaberg. So even if the Corblys could
bring a timely, cognizable claim, they have not identified an appropriate defendant.
CONCLUSION
Having now been given opportunities to do so, the Corblys appear unlikely to be able
to cure the problems identified in the court’s June 11 order. Even if they could establish
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subject matter jurisdiction, it is highly likely that any claim they could have asserted against
Jaberg for actions he took relating to the death of Helen Roemer would be time-barred.
Accordingly, it appears pointless to give the Corblys another chance to amend before this
case is closed. Nevertheless, the court will allow them to try if they do the following:
A.

Use the complaint form attached to this order. The amended complaint must

contain a caption, and must be signed by both plaintiffs. See Fed. R. Civ. P. 10 and 11(a).
B.

Include jurisdictional allegations. The amended complaint must contain good

faith allegations establishing that: (a) the Corblys and Jaberg are citizens of different states,
and (b) the Corblys are seeking more than $75,000 in relief from Jaberg. As for the latter,
the Corblys must also explain why they believe they are entitled to relief exceeding this
amount in monetary value.
C.

Shorten and simplify the complaint. The Corblys should include enough facts

to tell their story, but should try to be more succinct and avoid unnecessary details. Instead,
they should simply state: (1) what happened to make them believe they have a legal claim;
(2) when it happened; (3) when it was discovered; (4) who did it; (5) why; and (6) how the
court can assist them in relation to those events. See Fed. R. Civ. P. 8. In particular, they
should take care to identify the specific actions taken by defendant Jaberg, or perhaps by
someone else at Cedar Community under Jaberg’s supervision.

The Corblys should also set

forth their allegations in separate, numbered paragraphs using short and plain sentences.
Finally, after finishing a final draft of their complaint, they should review the complaint and
consider whether it could be understood by someone who is not familiar with the facts of
their case. If not, they should make all necessary changes before filing it.
D.

Delete claims that are untimely. It is obvious from the Corblys’ allegations

that they were or should have been aware of some, if not all, of Jaberg’s actions long before
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any applicable statute of limitations expired. Therefore, they should not include any claims
that would be time-barred. If they do, the court will dismiss them immediately as barred by
the statute of limitations. See Cancer Foundation, Inc. v. Cerberus Capital Management, LP, 559
F.3d 671, 674-75 (7th Cir. 2009) (“[D]ismissal is appropriate when the plaintiff pleads
himself out of court by alleging facts sufficient to establish the complaint’s tardiness.”).
If the Corblys do not provide an amended complaint that fixes the problems identified
within three weeks of this order, the court will dismiss the complaint and close this case.
Stanard v. Nygren, 658 F.3d 792, 798 (7th Cir. 2011) (“[W]here the lack of organization and
basic coherence renders a complaint too confusing to determine the facts that constitute the
alleged wrongful conduct, dismissal is an appropriate remedy.”)

ORDER
IT IS ORDERED that plaintiffs Cynthia Anne Corbly and James Edward Corbly may
have until December 15, 2015, to file an amended complaint that establishes the court’s
subject matter jurisdiction and complies with Federal Rule of Civil Procedure 8 as described
in this order. If plaintiffs fail to respond appropriately by that date, the clerk of court
is directed to close the case.
Entered this 24th day of November, 2015.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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