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Bonnell v. Karels

United States District Court, D. Nebraska

July 11, 2018

KATHLEEN T. BONNELL, Plaintiff,
v.
KENNETH JAMES KARELS, GREAT WESTERN BANCORP, INC., and DOES 1 THROUGH 25, Defendants.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff filed this case on May 3, 2018, and has been granted leave to proceed in forma pauperis. The court previously conducted an initial review of Plaintiff's Complaint (Filing 1), and, in a Memorandum and Order entered on May 22, 2018 (Filing 7), questioned whether it has subject matter jurisdiction over this case. The court therefore gave Plaintiff 30 days to amend her pleading in order to show there is complete diversity of citizenship and the amount in controversy exceeds $75, 000.00. See 28 U.S.C. § 1332. Plaintiff filed an Amended Complaint (Filing 9) on June 15, 2018. The court now conducts an initial review of Plaintiff's Amended Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).

         I. SUMMARY OF PLEADINGS

         Because Plaintiff's Amended Complaint specifically incorporates by reference the allegations of her original Complaint and its attached exhibits (see Filing 9, ¶ 3), and does not repeat those allegations or duplicate the exhibits, the court will consider the Amended Complaint as supplemental to, rather than superseding, the original Complaint. See NECivR 15.1(b) (“In considering pro se litigants' amended pleadings, the court may consider the amended pleading as supplemental to, rather than as superseding, the original pleading, unless the pleading states that it supersedes the prior pleading.”).

         A. Original Complaint

         Plaintiff alleges that her mother maintained a checking account at the Great Western bank in Ord, Nebraska, which passed to Plaintiff upon her mother's death on September 17, 2017, and that on October 2, 2017, the bank paid $2, 151.85 out of the account to Plaintiff's brother, who wrote an unauthorized check to himself. It is alleged that a power of attorney granting Plaintiff's brother the right to act on behalf of the mother automatically expired upon her death.

         Plaintiff seeks reimbursement, plus $75, 000.00 for emotional distress and approximately $1, 000.00 for attorney fees that were incurred in attempting to resolve the matter. Named as Defendants are Great Western Bancorp, Inc., its CEO, Kenneth Karels, and its Ord branch bank manager, Devan Eisenmenger.

         B. Amended Complaint

         Plaintiff has removed Devan Eisenmenger as a Defendant in order to have complete diversity of citizenship (see Filing 9, ¶ 2), and has increased the amount of damages by claiming the emotional distress she suffered has caused her to be unable to obtain employment as a truck driver. Plaintiff's theories of recovery include breach of contract, breach of fiduciary duty, and either intentional or negligent infliction of emotional distress. Attached to the Amended Complaint are additional documents pertaining to the banking transaction, and Plaintiff's mental health records.

         Plaintiff claims loss of present and future earnings of $70, 000.00 per year, and a total damage award of $1, 050, 000.00 for such economic loss and her emotional distress. Plaintiff also alleges she incurred a $10, 000.00 debt for unsuccessful completion of truck driver training.

         II. STANDARDS ON INITIAL REVIEW

         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).

         III. ...


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