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Hilgert v. Vanderford

United States District Court, D. Nebraska

June 12, 2017

CLIVE B. HILGERT, Plaintiff,


          Richard G. Kopf Senior United States District Judge

         Plaintiff filed a Complaint on April 3, 2017. (Filing No. 1.) He has been given leave to proceed in forma pauperis. (Filing No. 7.) The court now conducts an initial review of the Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2).


         Plaintiff's father, Clive D. Hilgert (“Decedent”), was the sole shareholder of Cotner Investment Corporation (“CIC”), a Nebraska corporation. CIC was established and classified as a C corporation for tax purposes. (Filing No. 1 at CM/ECF p. 6.) CIC owned Sugar Plum Candies - a candy store - which was operated in Lincoln, Nebraska. Prior to his death Decedent executed a will (the “Will”) naming his three children the equal beneficiaries of CIC stock including Plaintiff Clive B. Hilgert. (Id. at CM/ECF pp. 7-8.) However, the Will also provided that the shares of stock were restricted and they could not be “sold, transferred, liquidated, gifted, or encumbered.” (Id. at CM/ECF p. 3.) The Will purports to name Decedent's widow, Katrinka Hilgert, as president of CIC and bestows upon her managerial authority over CIC for two years following Decedent's death.

         Defendant Christine Vanderford is the attorney in Lincoln, Nebraska who drafted Decedent's Last Will and Testament. Vanderford also allegedly served as the personal representative of Decedent's estate and as a vice president of CIC.

         Decedent died on January 21, 2011. (Id. at CM/ECF p. 27.) On June 27, 2013, Defendant Katrinka Hilgert sent a “letter of intent” to purchase CIC stock and Sugar Plum Candies from the beneficiaries for a total amount of $4, 500. (Id. at CM/ECF p. 15.) Plaintiff alleges that Katrinka Hilgert and Vanderford swore by affidavit “that the only asset of [CIC] was the money losing candy store named Sugar Plum Candies.” (Id.) Plaintiff further asserts that because CIC was operating at a loss, Defendants did not assign any value to an alleged $1, 000, 000 loss carried forward by CIC. (Id. at CM/ECF p. 3.)

         Plaintiff initially filed a complaint in the United States District Court for the Southern District of Texas. (Id. at CM/ECF p. 1.) The court found venue was not proper in the Southern District of Texas. Rather than transfer the case to the District of Nebraska, the court determined transfer was inappropriate because Plaintiff's claims were wholly without merit. See Hilgert v. Vanderford , case no. 7:15cv00488, Filing No. 26 (S.D. Tex. August 22, 2016). As a result, the Southern District of Texas dismissed Plaintiff's claims without prejudice to refiling. Id.

         Plaintiff's Complaint now before this court raises five separate causes of action, but they can be narrowed down to two separate claims: 1) fraudulent and/or negligent misrepresentation and 2) conspiracy. Specifically, Plaintiff alleges Decedent could not create special classes of stock and appoint Katrinka Hilgert as president of CIC through his Will. Plaintiff argues that if he had received unrestricted stock he (and the other beneficiaries of the stock) could have used the $1, 000, 000 federal income tax loss carry forward.


         The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

         Pro se plaintiffs must set forth enough factual allegations to “nudge[] their claims across the line from conceivable to plausible, ” or “their complaint must be dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“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.”).

         “The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

         A. Fraudulent/Negligent ...

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