Hill v. U.S. Bank Home Mortg.

• Decision Date: 11 October 2022
• Docket Number: 8:22CV299
• Parties: GLORIA HILL, Plaintiff, v. U.S. BANK HOME MORTGAGE, JOE VASCO, and 100 YEAR HOMES, INC., Defendants.
• Court: U.S. District Court — District of Nebraska

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GLORIA HILL, Plaintiff, v. U.S. BANK HOME MORTGAGE, JOE VASCO, and 100 YEAR HOMES, INC., Defendants.

No. 8:22CV299

United States District Court, D. Nebraska

October 11, 2022

MEMORANDUM AND ORDER

Joseph F. Bataillon Judge

Plaintiff Gloria Hill (“Hill”) filed her Complaint on August 18, 2022. Filing No. 1. On that same day Hill also filed a motion for summons against all named defendants. Filing No. 4. Hill was given leave to proceed in forma pauperis. Filing No. 7. The Court now conducts an initial review of Hill's pro se Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915.

I. SUMMARY OF COMPLAINT

The subject matter of the case is the alleged actions relating to foreclosure of real property owned by Hill^[1] taken by the following three named defendants: U.S. Bank Home Mortgage (“US Bank”), Joe Vasco (“Vasco”), and 100 Year Homes, Inc. (“100 Year”). Filing No. 1. Hill alleges various claims under state and federal law and asserts this Court has subject matter jurisdiction over the dispute in diversity because the parties are citizens of different states and the amount in controversy exceeds $75,000. Id. at CM/ECF p. 1 (citing 28 U.S.C. § 1391(b)(2).)

II. APPLICABLE 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).

“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)). While “[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), pro se plaintiffs must set forth enough factual allegations to “nudge[] their claims across the line from conceivable to plausible,” or their complaint shall 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.”).

III. DISCUSSION

“Federal courts are courts of limited jurisdiction and the ‘threshold requirement in every federal case is jurisdiction.'” Barclay Square Properties v. Midwest Fed. Sav. &Loan Ass'n of Minneapolis, 893 F.2d 968, 969 (8th Cir. 1990) (quoting Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir.1987)). Before the merits of a matter can be addressed, the Court must establish it has subject matter jurisdiction over the dispute. Id.

The Court has reviewed Hill's Complaint in which Hill alleges this Court has diversity jurisdiction over this lawsuit. Filing No. 1 at 1. Although complaints filed by pro se litigants are held to less stringent standards than those applied to formal pleadings drafted by lawyers, as set forth above, even pro se litigants must adequately allege jurisdiction for a matter to proceed in this Court. See Fish v. Ristvedt, 192 F.Supp.2d 1024, 1030 (D.N.D. 2002). Upon review, the Court finds Hill failed to adequately allege facts which would establish this Court's diversity or federal question jurisdiction.

A. Diversity Jurisdiction

Diversity jurisdiction applies to actions between “(1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state . . .; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state . . . as plaintiff and citizens of a State or of different States.” 28 U.S.C. § 1332(a). The Court cannot exercise diversity jurisdiction over a matter “unless each defendant is a citizen of a different State from each plaintiff.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). Generally, to establish diversity a plaintiff “must set forth with specificity the citizenship of the parties.” Barclay, 893 F.2d at 969 (citation omitted). However, the Eighth Circuit has relaxed the standard for pro se plaintiffs.

While an action should be dismissed as frivolous “only if it appears beyond doubt that the petitioner can prove no set of facts in support of the claim which would warrant relief,” Sanders v. U.S., 760 F.2d 869, 871 (8th Cir. 1985), a pro se plaintiff still must “set forth some facts alleging diversity jurisdiction” to survive dismissal. Fish, 192 F.Supp.2d at 1030 (citing Sanders, 760 F.2d at 871). Jurisdiction may be supported by facts conferred “in any part of the record, or are the necessary consequences of the facts stated in the pleadings or the findings of the court.” Myers v. Hettinger, 94 F. 370, 372 (8th Cir.1899). And the party seeking a federal forum has the burden of establishing jurisdiction by a preponderance of the evidence. Yeldell v. Tutt, 913 F.2d 533, 537 (8th Cir. 1990) (citing Blakemore v. Missouri Pac. R.R., 789 F.2d 616, 618 (8th Cir.1986)).

Here, Hill's requests for monetary relief satisfies the amount-in-controversy requirement for diversity jurisdiction. See Filing No. 1 at 1. However, Hill failed to meet her burden of establishing diversity jurisdiction over parties^[2] as follows.

1. Gloria Hill

“The existence of diversity of citizenship is determined at the time the suit is instituted, and not when the cause of action arose,” Yeldell v. Tutt, 913 F.2d 533, 537 (8th Cir. 1990) (citing Smith v. Snerling, 354 U.S. 91, 93 n. 1 (1957); Blakemore v. Missouri Pac. R.R., 789 F.2d 616, 618 (8th Cir.1986), therefore a party's prior residence is of no consequence for determining diversity jurisdiction. However, “[i]t has long been held that, for purposes of determining diversity of citizenship, the controlling consideration is the domicile of the individual.” Jones v. Hadican, 552 F.2d 249, 250 (8th Cir. 1977) (emphasis added). Residency, is not the same as domicile for purposes of establishing diversity jurisdiction. Brunk v. Graybar Elec. Co. Inc., 713 F.Supp.2d 814, 817 n.3 (S.D. Iowa 2010) (“[A]n averment of residency is not sufficient to establish citizenship for purposes of diversity jurisdiction.”). Instead, the proper analysis for determining citizenship is the two-part test for domicile: a party's presence in the purported state of domicile and his or her intention to remain there indefinitely. Sheehan v. Gustafson, 967 F.2d 1214, 1215 (8th Cir. 1992).

Here, Hill alleges she is a “resident of California, previously being a resident of Douglas County, Nebraska.” Filing No. 1 at 2 (emphasis added). While Hill's prior residence of Nebraska is irrelevant for establishing citizenship, her allegation that she is currently a resident of California is indicative of her presence in California but does not establish her intent to remain there indefinitely. As the pleadings provide no additional information as to Hill's intent to remain in California indefinitely, she must amend her Complaint to address this deficiency.

2. US Bank

“All national banking associations shall, for the purposes of all other actions by or against them, be deemed citizens of the States in which they are respectively located.” 28 U.S.C. § 1348. A national banking association is located, for diversity jurisdiction purposes, in the state designated in its articles of association as locus of its main office, not in every state where it has branch offices. Wachovia Bank v. Schmidt, 546 U.S. 303, 303 (2006); Anthony v. Cattle Nat. Bank & Tr. Co., 684 F.3d 738, 739 (8th Cir. 2012).

Here, Hill's jurisdictional allegations regarding U.S. Bank are insufficient. Hill submits that “Defendant U.S. Bank is a national banking association, a Non-Depository Payor Bank” but only alleges U.S. Bank is “licensed to conduct ordinary business in Douglas County, Nebraska,” Filing No. 1 at CM/ECF p. 2, failing to address where U.S. Bank's main office is located. As the pleadings provide no additional information as to U.S. Bank's main office location, Hill must amend her Complaint to address the deficiency.

3. Joe Vasco

As previously stated, when suing an individual, “for purposes of determining diversity of citizenship, the controlling consideration is the domicile of the individual.” See Jones, 552 F.2d at 250, supra.

Here, Hill fails to allege any facts related to Vasco's domicile, instead submitting only that Vasco “was an employee of Defendant 100 Year, operating in his individual capacity under the direction and control of Defendant 100 Year” without any mention of his individual citizenship. See Filing No. 1 at 2. As the pleadings provide no additional information as to Vasco's individual citizenship, Hill must amend her Complaint to address the deficiency.

4. 100 Year

Hill alleges “Defendant 100 Year is a for-profit corporation . . . licensed to conduct ordinary business in Douglas County, Nebraska.” Filing No. 1 at 2. A corporation's citizenship derives, for diversity jurisdiction purposes, from its State of incorporation and principal place of business. 28 U.S.C. § 1332(c)(1).

As Hill fails to allege where 100 Year is incorporated or where its principal place of business is located and as the pleadings provide no additional information as to where 100 Year was incorporated...