United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. GERRARD UNITED STATES DISTRICT JUDGE
plaintiff, John Zapata, has sued Nebraska Governor Pete
Ricketts and Nebraska Attorney General Doug Peterson under 42
U.S.C. § 1983. Filing 1. The defendants move to dismiss
the plaintiff's pro se complaint for lack of
subject matter jurisdiction under the Rooker-Feldman
doctrine (filing 8), and for monetary sanctions
under Fed. R. Civ. P. 11 (filing 16). For the reasons
discussed below, the defendants' motion to dismiss will
be granted, and the motion for sanctions denied.
dispute arises from a separate state court action between
Zapata and a Nebraska recycling company for an alleged breach
of a lease agreement. In that case, Zapata accused the
recycling company of abandoning property it had leased from
Coljo Investment LLC, resulting in lost rent and property
damage. Filing 9-1. Coljo Investment had assigned
its claim under the lease agreement to Zapata, who pursued
the action pro se.
state district court dismissed Zapata's complaint in a
May 16, 2016 Order, relying in part on Neb. Rev. Stat.
§ 7-101. See filing 9-2. That provision
prohibits a pro se litigant from "practic[ing]
as an attorney or counselor at law" in any proceeding to
which he is not a party. And because Zapata was not a party
to the underlying lease agreement, the court determined that
he could not proceed on the claim without licensed counsel.
Filing 9-2 at 2-3. The court rejected Zapata's
argument that he was representing himself through a valid
assignment, as opposed to the lessor-LLC as the owner of the
property. See filing 9-2 at 2. The Nebraska
Supreme Court affirmed, holding that "[w]hen an assignee
brings suit in his or her own name, the assignee is still
bound by the [assignor] business entity's limitation that
any legal action arising out of its interests must be
represented by counsel." Zapata v. McHugh, 893
N.W.2d 720, 728 (Neb. 2017).
decision resulted in the underlying complaint, in which
Zapata has sued Nebraska's governor and attorney general.
Filing 1. As discussed above, Zapata alleges that
the Nebraska Supreme Court's decision in Zapata v.
McHugh violates his constitutional right to
self-representation by denying him the opportunity to
"defend himself in a civil action . . . [regarding]
property previously owned by a corporation." Filing
1 at 3. Zapata asks this Court to "reverse the
decision of the Nebraska Supreme Court on the basis that [it]
violates the constitutional rights of the Plaintiff."
Filing 1 at 3.
defendants characterize Zapata's complaint as an attempt
to "invalidate an order of the Nebraska Supreme
Court." Filing 9 at 6. So, they argue, the
Court lacks jurisdiction over the dispute pursuant to the
Rooker-Feldman doctrine. See D.C. Court
of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker
v. Fid. Tr. Co., 263 U.S. 413 (1923). That doctrine
holds that federal district courts lack subject matter
jurisdiction over cases "brought by state-court losers
complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced and
inviting district court review and rejection of those
judgments." Shelby Cty. Health Care Corp. v. S. Farm
Bureau Cas. Ins. Co., 855 F.3d 836, 840 (8th Cir. 2017).
Court agrees that dismissal is warranted under the
Rooker-Feldman doctrine. Indeed, this is not a case in which
Zapata raises "independent claim[s]" as to avoid
jurisdictional impediments, or "targets as
unconstitutional" a Nebraska statute as construed by the
state's highest court. Skinner v. Switzer, 562 U.S. 521,
532 (2011).Rather, the complaint expressly challenges a
Nebraska Supreme Court decision, claiming that it violates
the plaintiff's constitutional right to
self-representation. Filing 1 at 2-3. In that way, Zapata
seeks what is, in substance, federal appellate review of a
state court judgment. Johnson v. De Grandy, 512 U.S.
997, 1005-06 (1994). And that, this Court cannot, and will
not, do. Exxon Mobil Corp., 544 U.S. at 283.
Accordingly, the defendants motion to dismiss (filing 8) will
defendants also move for monetary sanctions under
Fed.R.Civ.P. 11 (filing 16), noting that they (i.e., the
governor and attorney general) "had [no] involvement in
the underlying actions or the Nebraska Supreme Court
ruling." Filing 17 at 3. To that end, the defendants
suggest that Zapata filed his complaint for an improper
purpose, such as to harass the defendants or "increase
 the cost of litigation." Filing 17 at 4. But there is
no evidence, in the complaint or otherwise, of a bad faith
intent on the part of Zapata. And it cannot be said that his
understanding (or lack thereof) of complex federal abstention
doctrines borders on the frivolous. Accordingly, the
defendants' motion for Rule 11 sanctions will be denied.
final matter, Zapata requests leave to amend his complaint in
the event it is dismissed under Rule 12(b)(1). Filing 21 at
7. But that request does not comply with the local rules,
which require the moving party to "file as an attachment
to [a] motion an unsigned copy of the proposed amended
pleading." NECivR 15.1(a); see U.S. ex rel. Raynor
v. Nat'l Rural Utilities Coop. Fin., Corp., 690 F.3d
951, 958 (8th Cir. 2012). Thus, because Zapata has neither
filed a motion nor attached a proposed amended pleading, his
request to amend his complaint is denied.
defendants' motion to dismiss (filing 8) is granted.
Zapata's complaint is dismissed, and no repleading will
defendants' motion for sanctions ...