United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Rossiter, Jr. United States District Judge.
matter is before the court on the Findings and Recommendation
(“F&R”) of the United States Magistrate Judge
(Filing No. 8) and on the court’s own motion.
Magistrate Judge recommends dismissal of the pro se
plaintiff’s original complaint for lack of subject
matter jurisdiction. The Magistrate Judge found the plaintiff
failed to allege either diversity jurisdiction or any
violation of a federal statute so as to confer jurisdiction
under either 28 U.S.C. §§ 1331 or 1332. The
original complaint appears to allege a breach of contract.
plaintiff has now filed an Amended Complaint, adding factual
allegations of trespass and fraud (Filing No 9). The filing
of the Amended Complaint renders the Magistrate Judge’s
F&R moot. In his Amended Complaint, the plaintiff
“prays for judgment against the Defendant for damages,
Trespass and fraud against the Plaintiffs Civil Rights in the
amount of One hundred twenty one thousand two hundred ninety
eight dollars and ninety three cents ($121, 298.93).”
He also adds the allegation that defendant Randal Ross is a
is a threshold issue for this Court. See Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 94-96
(1998); see also Arbaugh v. Y & H Corp., 546
U.S. 500, 507 (2006) (“The objection that a federal
court lacks subject-matter jurisdiction . . . may be raised
by a party, or by a court on its own initiative, at any stage
in the litigation, even after trial and the entry of
judgment.”). The party seeking to invoke federal
jurisdiction carries the burden of proof on that issue.
See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342
(2006); V S Ltd. P’ship v. Dep’t of Hous.
& Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000).
plaintiff's obligation to provide the grounds for his
entitlement to relief necessitates that the complaint contain
“more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” See Bell Atlantic v. Twombly, 550 U.S.
544, 555 (2007) (factual allegations must be sufficient to
show more than just speculative right to relief). In other
words, the complaint must plead “enough facts to state
a claim for relief that is plausible on its face.”
Id. at 547. “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 677 (2009). “A civil rights
complaint ‘must contain facts which state a claim as a
matter of law and must not be conclusory.’”
Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th
the plaintiff’s amended complaint liberally, the court
finds the plaintiff has failed to adequately allege subject
matter jurisdiction. The amended complaint does not cure the
infirmities of the original complaint.
the plaintiff added allegations of damages in excess of the
jurisdictional threshold under 28 U.S.C. § 1332, the
record shows there is no diversity of citizenship. The
Amended Complaint and the Summons show that both the
plaintiff and the defendant reside in Lewellen, Nebraska.
the Amended Complaint does not allege a violation of any
federal statute. The court rejects any argument that the
plaintiff’s prayer for relief for “damages fraud
and trespass to Plaintiff’s civil rights”
sufficiently alleges that his federal constitutional rights
were violated. The court finds the conduct the plaintiff
describes does not rise to the level of a constitutional
violation. No civil rights violation can be fairly assumed
from the facts alleged. A mere reference to “civil
rights” and identification of the defendant as a deputy
sheriff is not factual content sufficient to allow the Court
to draw the reasonable inference that the defendant is liable
for any civil rights violation. The amended complaint does
not allege that any of the defendant’s allegedly
wrongful acts were taken as a state actor or under color of
law. Further, there are no allegations that the defendant
infringed any right or interest protected under the
Constitution or any federal statute.
amended complaint alleges only state law claims for breach of
contract, trespass, or fraud. Absent diversity of
citizenship, those claims are not cognizable in this court.
Accordingly, the court finds it lacks jurisdiction over the
plaintiff’s claim and this action must be dismissed.
F&R of the Magistrate Judge (Filing No. 8) is moot and
therefore is not adopted.
the court’s own motion, this action is dismissed for