United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. ROSSITER, JR UNITED STATES DISTRICT JUDGE.
11, 2019, pro se plaintiff Mark Allen Koch
(“Koch”) filed suit in the District Court of
Valley County, Nebraska (“state
court”). Koch sued defendants Thomas Kruml, Center
for Rural Affairs, Inc. (“CFRA”), Rural
Enterprise Assistance Program (“REAP”), Sheer
Country, LLC (“Sheer Country”), Small Business
Administration (“SBA”), United States Department
of Agriculture (“USDA”), John and Jane Doe
(“Does”), and All Other Persons Having or
Claiming Any Right, Title or Interest in or to, East 22.5
feet of lot 2, in block 30, of the original townsite Ord
Valley County, Nebraska and Ord-original add/102 N62.5 of DIV
E in L4 B30, Ord, Valley County, Nebraska (“interested
persons”). The SBA and USDA removed (Filing No. 1)
the case to this Court on August 7, 2019. See 28
U.S.C. § 1442(a).
not entirely clear from Koch's Complaint (attached at
Filing No. 1), it appears he seeks to set aside (1) “a
trustee sale held June 11, 2019 by Thomas Kruml Trustee for
Sheer Country LLC” and (2) “transfer of lending
instruments . . . from the SBA and USDA federally funded
agency CFRA/REAP.” Koch seeks relief against all the
defendants based on allegations of false transfers of his
loans, improper trustee, improper notice, and inaccurate
documents underlying the trustee sale.
August 14, 2019, and August 16, 2019, respectively, Koch
filed a Motion for Injunction (Filing No. 10) and a Motion
for Immediate Ex Parte Restraining Order/Injunction (Filing
No. 12). Koch sought to “stop any adverse
actions/collections/replevins/taking” until this case
is resolved. Specifically, he sought to retain possession of
and access to his “home, property, business revenue and
equipment, and store building, ” and for electricity to
be returned to service in his commercial properties. The
Court scheduled a hearing on those motions for August 26,
defendants resisted Koch's motions. In their
brief in opposition to Koch's motions, the SBA and USDA
argued, in part, (1) the Court lacks subject-matter
jurisdiction over them due to principles of sovereign
immunity and (2) Koch failed to allege facts identifying any
interactions or involvement between him and the SBA and USDA.
The Court issued a text notice (Filing No. 20) on August 22,
2019, informing the parties the Court would also address the
question of jurisdiction over the United States and its
entities at the hearing.
that Koch only receives filings by mail, on August 23, 2019,
the Court, as a courtesy, emailed Koch (at the email address
he provided chambers's staff for communications involving
the hearing) a copy of that text notice as well as copies of
the documents the defendants had filed regarding Koch's
motions. Assistant United States Attorney Robert L. Homan
(“Homan”), counsel for the SBA and USDA, reports
he also emailed Koch on August 23, 2019, copies of the SBA
and USDA's filings made in opposition to Koch's
hearing on August 26, 2019, Koch objected to the Court
considering whether the Court has subject-matter jurisdiction
over the SBA and USDA because he believed he did not have a
sufficient opportunity to either prepare to discuss that
matter or review the filings from the Court or Homan.
According to Koch, (1) his computer did not have the
appropriate software to review the materials delivered by the
Court and (2) he never received Homan's email. Koch
stated he did not have time to follow up with Homan because
Koch took a business trip.
Court overruled Koch's objection, explaining Koch's
request for an expedited hearing was at odds with his
complaints he did not have enough time to prepare. Koch did
not dispute chambers's staff sent him the defendants'
filings. Nor can Koch dispute that he heard and had a full
opportunity to respond the defendants' arguments at the
Court explained it could not address Koch's motions for
injunctive relief without subject-matter jurisdiction.
See Hart v. United States, 630 F.3d 1085, 1089 (8th
Cir. 2011) (“It is well established that a court has a
special obligation to consider whether it has subject matter
jurisdiction in every case.”). Koch bore the burden of
establishing jurisdiction. See Osborn v. United
States, 918 F.2d 724, 729-30 (8th Cir. 1990). The Court
advised Koch he had not met that burden in his Complaint and
gave him the opportunity to establish jurisdiction at the
hearing based on the facts of this case and the law, which he
failed to do.
immunity shields the United States and its agencies from suit
absent a waiver.” Compart's Boar Store, Inc. v.
United States, 829 F.3d 600, 604 (8th Cir. 2016).
“Sovereign immunity is jurisdictional in nature.”
FDIC v. Meyer, 510 U.S. 471, 475 (1994); see
also Fed. R. Civ. P. 12(h)(3) (“If the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”).
did not identify any statute or other basis showing the USD A
or SB A waived sovereign immunity in this case. The Court,
therefore, found it lacks subject-matter jurisdiction over
those agencies and dismissed them from this
action. Considering the nature of Koch's
claims and the fact that several related cases are currently
pending in state court, this Court declined to exercise
supplemental jurisdiction over the remaining claims,
see 28 U.S.C. § 1367(c), and remanded this case
back to state court. Accordingly, IT IS ORDERED:
Defendants Small Business Administration and United States
Department of Agriculture are dismissed from this case.
case is remanded to the District Court of Valley County,
Clerk of Court is directed to take all steps necessary ...