LaBreck, Peter v. 1625 County Hwy C Rhinelander, WI 54501 et al

Filing 13

ORDER dismissing plaintiff Peter Joshua LaBreck's complaint for lack of jurisdiction. The clerk of court is directed to enter judgment accordingly and close this case. Signed by District Judge James D. Peterson on 2/9/2018. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

PETER JOSHUA LABRECK,
Plaintiff,
v.
1625 COUNTY HWY. C RHINELANDER, WI 54501,
JENNIFER F. AYERS (Deceased), THOMAS H. AYERS
(Deceased), NATIONSTAR MORTGAGE LLC, and
ANY AND ALL PERSONS CLAIMING ANY LEGAL
RIGHT OR EQUITABLE RIGHT, TITLE, ESTATE,
LIEN, OR INTEREST IN THE REAL PROPERTY
COMMONLY KNOWN AS 1625 COUNTY HWY. C
RHINELANDER, WI 54501 ADVERSE TO
PLAINITFF’S TITLE, OR ANY CLOUD ON
PLAINTIFF’S TITLE,

OPINION & ORDER
17-cv-680-jdp

Defendants.
Pro se plaintiff and prisoner Peter Joshua LaBreck has filed a complaint regarding a
piece of real property in Rhinelander, Wisconsin. He alleges that Jennifer Ayers and Thomas
Ayers agreed to “transfer [that property] to Plaintiff upon the death of either” of them, that
both Jennifer and Thomas died in March 2015 and failed to leave the property to him, and
that defendant Nationstar Mortgage LLC is planning to auction the property without his
consent. Dkt. 1, ¶ 7.
This is one of many federal lawsuits that LaBreck has filed on his own behalf over the
last few years. He has filed the lawsuits in a variety of courts on a variety of issues, including
other property disputes. None of them have been successful (though two others are pending)
and courts dismissed some of them for LaBreck’s failure to prosecute.1

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E.g., LaBreck v. Bank of America, N.A., No. 17-cv-15 (D. Del.) (alleging that defendant reported

false information about his mortgages); LaBreck v. Bayview Loan Servicing, No. 16-cv-24971

This case is before the court for screening under 28 U.S.C. § 1915(e)(2) and § 1915A.
Because it is clear from the face of the complaint that LaBreck is not entitled to relief, I will
dismiss the case.
As an initial matter, LaBreck hasn’t shown that the court can exercise jurisdiction over
his case. He cites the statutes granting jurisdiction in cases arising under federal law, 28 U.S.C.
§ 1331, and cases involving diversity of citizenship between the plaintiff and defendants, 28
U.S.C. § 1332, but it is clear that § 1331 does not apply and it appears that § 1332 doesn’t
apply either.
As to § 1331, LaBreck says that “defendants” violated his rights under the Constitution
and the Fair Debt Collection Practices Act, 15 U.S.C. § 1692. But LaBreck cannot sue private
parties for constitutional violations under the facts alleged in his complaint, Blum v. Yaretsky,
457 U.S. 991, 1004 (1982), and he doesn’t identify any violations of the FDCPA. Because
LaBreck has no plausible federal claims, he cannot rely on § 1331 as a basis for jurisdiction.
As to § 1332, LaBreck says that he is incarcerated in Michigan, but “[a] prisoner is a
citizen of the state of which he was a citizen before he was sent to prison unless he plans to
live elsewhere when he gets out, in which event it should be that state.” Bontkowski v. Smith,

(S.D. Fla. Jan. 31, 2017) (dismissing claims under Fair Credit Reporting Act); LaBreck v. Citadel
Investment Group, Inc., 15-cv-11912 (E.D. Mich. June 7, 2016) (dismissing for failure to
prosecute claim that defendants filed fraudulent liens on his home); LaBreck v. Sabaugh, No.
15-cv-13303 (E.D. Mich. Oct. 14, 2015) (dismissing claim that defendants violated his rights
by denying his requests to change his name); LaBreck v, Aaron’s Rental, No. 14-cv-10247 (E.D.
Mich. Apr. 20, 2015) (dismissing for failure to prosecute claim that defendants denied credit
application because of his race); LaBreck v. Esposito, No. 11-cv-11328 (E.D. Mich. Oct. 31,
2013) (dismissing claims that several individuals, business entities, and government officials
engaged in a conspiracy to unlawfully seize his home and other property); LaBreck v. U.S. Dept.
of Treasury, No. 11-cv-10155 (E.D. Mich. Feb. 12, 2013) (dismissing FOIA claim).

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305 F.3d 757, 763 (7th Cir. 2002) (internal quotations omitted). LaBreck doesn’t say where
he lived before his incarceration, but he does say that he plans on residing in Wisconsin after
his release. Dkt. 4. at 2. Because LaBreck is suing other defendants with Wisconsin citizenship,
there is no diversity.2 It is even unclear whether there is diversity between LaBreck and
Nationstar. LaBreck lists a Texas address for Nationstar, but the citizenship of a limited
liability company like Nationstar is the citizenship of its members. Hoagland ex rel. Midwest
Transit, Inc. v. Sandberg, Phoenix and von Gontard, 385 F.3d 737, 738 (7th Cir. 2004). LaBreck
does not identify the names of the members or their states of citizenship.
There is another potential jurisdictional problem as well. Even when the requirements
for diversity jurisdiction are otherwise satisfied, that type of jurisdiction has a “probate
exception,” which “reserves to state probate courts the probate or annulment of a will and the
administration of a decedent's estate; it also precludes federal courts from endeavoring to
dispose of property that is in the custody of a state probate court.” Marshall v. Marshall, 547
U.S. 293, 310–11 (2006). LaBreck is bringing a claim about the disposition of property in the
estate, so Marshall would apply if probate proceedings are pending. It is less clear whether the
probate exception applies even after the estate is closed. The electronic docket for the
Wisconsin circuit courts shows that probate proceedings were opened in Oneida County,
Wisconsin, but the record is sealed and no information is provided regarding the status of the

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Although the caption of LaBreck’s complaint lists Jennifer and Thomas Ayers as defendants,
he makes clear in the body of his complaint that he means to sue their estates, which are
citizens of Wisconsin. Hunter v. Amin, 583 F.3d 486, 491–92 (7th Cir. 2009) (“[T]he federal
diversity statute treats the legal representative of a decedent's estate . . . as a citizen of the
same state as the decedent.”) (internal quotations omitted).

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proceedings. In the Matter of Thomas Ayers, 2015PR55 (Oneida Cir. Ct.), available at
https://wcca.wicourts.gov.
Even if I assume that the probate proceedings are finished and the probate exception
does not apply, LaBreck’s claim would fail for other reasons. Under Wisconsin law, any claims
against an estate must be brought within a year of the decedent’s death, even if the creditor
did not receive timely notice. Wis. Stat. § 859.48(2). Because LaBreck says that both Jennifer
and Thomas Ayers died in 2015, any claim against the estate is untimely.
Any claim against Nationstar is barred as well. I understand LaBreck to be alleging that
Nationstar took the title to the property at issue and he wants to assert his rights to the
property against Nationstar. But even assuming the statute of frauds would not bar LaBreck’s
claim (LaBreck does not say whether he had a written agreement with the decedents), his claim
would fail because he does not allege that he ever recorded his interest in the property. “Under
Wisconsin law, unrecorded real estate conveyances are not valid against third parties.” In re
Segebrecht, 536 B.R. 810, 814 (Bankr. E.D. Wis. 2015) (citing Wis. Stat. § 706.08(1)(a)).
The bottom line is that the court must dismiss LaBreck’s complaint for lack of subject
matter jurisdiction. And even if there weren’t any jurisdictional defects, the court would dismiss
the complaint for failure to state a claim upon which relief may be granted.

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ORDER
IT IS ORDERED that plaintiff Peter Joshua LaBreck’s complaint is DISMISSED for
lack of jurisdiction. The clerk of court is directed to enter judgment accordingly and close this
case.
Entered February 9, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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