United States District Court, D. Nebraska
KATHLEEN T. BONNELL, Plaintiff,
KENNETH JAMES KARELS, GREAT WESTERN BANCORP, INC., and DOES 1 THROUGH 25, Defendants.
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
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).
SUMMARY OF PLEADINGS
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.”).
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.
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.
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
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.
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).