United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
James Wolfbauer filed his Complaint (Filing No. 1)
on January 11, 2018, and has been granted leave to proceed in
forma pauperis (Filing No. 6). The court now
conducts an initial review of Plaintiff's Complaint to
determine whether summary dismissal is appropriate under 28
U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
filed his Complaint against Defendant Ocwen Loan Servicing,
LLC (“Ocwen”) and unknown “Does 1 through
10, inclusive, ” seeking damages and to set aside a
foreclosure sale of property located at 3605 W. 14th Street,
North Platte, Nebraska (hereinafter “Subject
Property”). (Filing No. 1 at CM/ECF pp.2-3,
6.) Plaintiff resides in North Platte, Nebraska, and
Ocwen is a Delaware limited liability company. (Id. at
alleges the Subject Property is his “home” and
asserts a title interest in the Subject Property. (Id. at
CM/ECF pp.2-3, 5.) Plaintiff claims Ocwen
“and any entities . . . claiming an interest in Subject
Property” acted jointly “for the purpose of
enforcing an alleged secured indebtedness upon the . . .
Subject Property, extracting money from Plaintiff, and
seizing Subject Property.” (Id. at CM/ECF
p.4.) On or about November 21, 2017, Plaintiff claims
Ocwen and Attorney Kerry Feld (acting as trustee) conducted a
trustee sale of the Subject Property without providing
Plaintiff proper notice of the sale via registered or
certified mail or publication as required by Neb. Rev.
Stat. § 76-1008. (Id. at CM/ECF p.5.)
APPLICABLE LEGAL STANDARDS ON 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).
DISCUSSION OF CLAIMS
the court can address Plaintiff's claims it must
determine whether it has jurisdiction to do so. Indeed,
“[i]f the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the
action.” Fed. R. Civ. P. 12(h)(3). Subject
matter jurisdiction may be proper pursuant to 28 U.S.C.
§ 1332, commonly referred to as “diversity of
citizenship” jurisdiction. For purposes of 28 U.S.C.
§ 1332, “diversity of citizenship” means
that “the citizenship of each plaintiff is different
from the citizenship of each defendant.” Ryan v.
Schneider Nat'l Carriers, Inc., 263 F.3d 816, 819
(8th Cir. 2001). In addition, the amount in
controversy must be greater than $75, 000.00 for diversity of
citizenship jurisdiction. 28 U.S.C. § 1332(a).
has alleged the amount in controversy is greater than $75,
000.00, and, given that Plaintiff seeks to recover his home,
the court accepts Plaintiff's allegation is made in good
faith. See Schubert v. Auto Owners Ins. Co., 649
F.3d 817, 822 (8th Cir. 2011) (“[T]he sum claimed by
the plaintiff in good faith is usually dispositive, [unless]
it appears to a legal certainty the plaintiff's claim is
actually for less than the jurisdictional amount.”).
Plaintiff also has alleged that his citizenship is different
than the citizenship of the only named Defendant, Ocwen.
See 28 U.S.C. § 1332(c)(1) (“[A]
corporation shall be deemed to be a citizen of every State .
. . by which it has been incorporated and . . . where it has
its principal place of business . . . .”). As a result,
complete diversity of citizenship exists.OnePoint
Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir.
2007) (“Complete diversity of citizenship exists where
no defendant holds citizenship in the same state where any
plaintiff holds citizenship.”)