Corbly, Cynthia et al v. Jaberg, Stephen

Filing 8

ORDER dismissing plaintiffs's complaint as barred by the applicable statute of limitations. The clerk of court is directed to enter judgment for defendants and close this case. Signed by District Judge William M. Conley on 3/7/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
CYNTHIA ANNE CORBLY and
JAMES EDWARD CORBLY,

v.

OPINION and ORDER

Plaintiffs,

Case No. 15-cv-331-wmc

MR. STEVEN JABERG and
CEDAR COMMUNITY,
Defendant.

Pro se plaintiffs Cynthia Anne and James Edward Corbly have now had three
opportunities to draft a coherent civil complaint that raises a viable federal claim against
defendant Steven Jaberg, the administrator of Cedar Community, an assisted living facility
located in West Bend, Wisconsin, where Cynthia Corbly’s mother, Helen Roemer, was a
former resident. The court dismissed two previous complaints filed by the Corblys because
they had failed to establish that (1) the court had subject matter jurisdiction over the case;
(2) they had a viable legal claim against Jaberg; and (3) any of their claims were timely. The
court gave the Corblys one final opportunity to file a complaint that fixed the numerous
problems identified by the court. Unfortunately for the Corblys, their most recent complaint
again fails to establish that they have any viable claims against defendant Jaberg or Cedar
Community 1 that are not time-barred and over which this court would have jurisdiction.
Accordingly, the court will dismiss the case and this case will be closed.

DISCUSSION
In the Corbly’s previous two complaints, the court discerned that they were
complaining about actions taken by Jaberg and Cedar Community relating to Ms. Roemer’s

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The Corblys added Cedar Community as a defendant in their most recent complaint.

death and funeral arrangements. In particular, the Corblys alleged that they had wished to
have Roemer’s body buried in South Dakota, but actions by Cedar Community 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.
contact.

Cedar Community’s attorneys have since instructed the Corblys to cease all
At some point, Cynthia Corbly was even arrested in Wisconsin for actions

apparently related to her investigation into her mother’s death and burial.
The primary problems with the previous complaints were (1) the Corblys had failed to
established subject matter jurisdiction; (2) the complaint violated Rule 8 of the Federal Rules
of Civil Procedure in that it failed to provide defendant Jaberg with fair notice of the claims
against him; and (3) all of the Corblys’ claims appeared to be barred by the applicable
statutes of limitations. The Corblys’ most recent amended complaint includes allegations
responding to the first and second problems identified above.
With respect to subject matter jurisdiction, the Corblys clarify that they are
attempting to sue under state law, that there is complete diversity of citizenship between
plaintiffs and defendants, and that they are seeking more than $800,000 in damages for their
various state law claims. These allegations are sufficient at the pleading stage to invoke this
court’s jurisdiction under 28 U.S.C. § 1332.
With respect to the nature of their claims, the Corblys allege that they are suing
Jaberg and Cedar Community for an accounting of Ms. Roemer’s estate, as well as for injuries
resulting from Cedar Community’s libel, defamation, fraud and infliction of emotional
distress, among other things.

Assuming, without deciding, that the Corblys would have

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standing to sue for injuries to Ms. Roemer’s estate or to fraud on Ms. Roemer, however, the
Corblys have still failed to address the significant problem of the statute of limitations.
As the court explained to the Corblys previously, the majority of the Corblys’
complaints stem from events that occurred more than 10 years ago, when Ms. Roemer died.
This includes allegations regarding her funeral arrangements and cremation. To the extent
that the Corblys are attempting to assert a claim for breach of a contract against Jaberg or
Cedar Community, they had 6 years from the date of the alleged breach to bring suit. See
Wis. Stat. § 893.43. Because the Corblys were aware almost immediately after her death
that Ms. Roemer’s body would not be transferred to South Dakota, they were aware of any
potential breach of contract almost immediately. Since plaintiffs would also have been aware
of any possible negligence claim almost immediately, a similar 6 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. Based on the allegations in the second amended complaint against Jaberg and
Cedar Community, all of the Corblys’ potential claims expired long before they filed suit.
The Corblys include some allegations in their complaint about information they
obtained between 2009 through 2012 regarding Cedar Community’s actions, but that more
recently obtained information cannot revive the Corblys’ expired claims. According to their
allegations, the Corblys obtained this information as part of their investigation into why
Cedar Community had failed to involve the Corblys in Ms. Roemer’s end of life planning and
cremation arrangements. However, although the Corblys may have discovered additional
information that they believed support their claims of fraud or negligence against Cedar
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Community, the Corblys knew the basis for their claims back in 2004. See Stroh Die Casting
Co. v. Monsanto Co., 177 Wis. 2d 91, 102–03, 502 N.W.2d 132, 136 (Ct. App. 1993)
(holding that cause of actions accrues when claimant knows or should have known that there
is “a relationship between the [causation] event and injury”). Additionally, to the extent
they are alleging separate claims that arose in 2009 and later, they have not coherently
identified any specific actions taken by Jaberg or Cedar Community, post-2004, that would
support a claim for relief.
In sum, the Corblys’ three attempts at pleading claims against Jaberg and Cedar
Community confirm that their claims must be dismissed as untimely. The court will direct
the clerk of court to enter judgment for defendants and close this case.

ORDER
IT IS ORDERED that the complaint filed by plaintiffs Cynthia Anne Corbly and
James Edward Corbly is DISMISSED as barred by the applicable statute of limitations. The
clerk of court is directed to enter judgment for defendants and close this case.
Entered this 7th day of March, 2017
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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