United States District Court, D. Nebraska
CLIVE B. HILGERT, Plaintiff,
CHRISTINE VANDERFORD, Defendant.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
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).
SUMMARY OF COMPLAINT
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
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.
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
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.
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.
APPLICABLE STANDARDS OF INITIAL REVIEW
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. §
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.”).
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).