Leato v. VL Apartments, LLC

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

JOHN M. LEATO and

LAURINA T. LEATO PLAINTIFF

V. CASE NO. 5:19-CV-05023 .

VL APARTMENTS, LLC and

WEST BEND MUTUAL INSURANCE COMPANY DEFENDANTS

OPINION AND ORDER

John and Laurina Leato have filed this lawsuit under the diversity of citizenship

statute, 28 U.S.C. § 1332. They proceed pro se and have sought leave to proceed in

forma pauperis ("IFP”). The case is before the Court for screening pursuant to 28 U.S.C.

§ 1915(e)(2).

|. BACKGROUND

According to the allegations of the Complaint, on February 9, 2017, Laurina Leato

sustained an injury to her ankle when she slipped and fell on snow and ice that had not

been cleared away at the Fountain Lakes Apartments in Fort Wayne, Indiana. Fountain

Lakes Apartments is owned by VL Apartments, LLC, and operated by !.G.C. Residential

Property Management. West Bend Mutual Insurance Company (“West Bend”) is the

general liability carrier for VL Apartments. West Bend paid all medical bills submitted

by Laurina Leato in a total amount of $686.50 for her visit to the emergency room

following the fall.

From documents the Plaintiffs attached to the Complaint, it appears that no other

medical bills were submitted. The Plaintiffs apparently sent West Bend a copy of a

small claims lawsuit. The attached letter, however, indicates that the small claims

lawsuit was never filed.

Plaintiffs filed bankruptcy in the State of Indiana and indicate they listed this slip-

and-fall accident as a potential claim against a third party.' They are asking for damages

in the amount of $50,000, as listed in their bankruptcy, and $25,000 in legal expenses,

which brings their total demand to $75,000.

ll. LEGAL STANDARD

The Court is obligated to screen a case prior to service of process being issued. |

A claim is frivolous when it "lacks an arguable basis either in law or fact." Neitzke v.

Williams, 490 U.S. 319, 325 (1989). A claim fails to state a claim upon which relief may

be granted if it does not allege “enough facts to state a claim to relief that is plausible on

its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court bears in

. mind, however, that when "evaluating whether a pro se plaintiff has asserted sufficient

facts to state a claim, we hold ‘a pro se complaint, however inartfully pleaded, . . . to less

stringent standards than formal pleadings drafted by lawyers." Jackson v. Nixon, 747

F.3d 537, 541 (8th Cir. 2014) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).

Federal courts are courts of limited jurisdiction. See, e.g., Godfrey v. Pulitzer

Publ'g Co., 161 F.3d 1137, 1141 (8th Cir. 1998). Generally, the federal district courts

may only exercise jurisdiction over cases in which diversity of citizenship exists and the

requisite amount in controversy is involved and those cases in which a federal question

is presented; that is, those cases involving violations of federal constitutional or statutory

1 The entry, marked with an asterisk, is: vonn & Laurina Leato v. AIG. (Doc. 2 at 7).

law. See, e.g., Southwestern Bell Tel. Co. v. Connect Comme'ns Corp., 225 F.3d 942,

945 (8th Cir. 2000). "The requirement that jurisdiction be established as a threshold

matter 'spring[s] from the nature and limits of the judicial power of the United States’ and

is ‘inflexible and without exception.” Stee/ Co. v. Citizens for a Better Env't, 523 U.S.

83, 94-95 (1998) (quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884))

(alteration in original)). If it appears that jurisdiction is lacking, the Court will raise the

issue sua sponte. Dieser v. Continental Cas. Co., 440 F.3d 920, 923 (8th Cir. 2006).

ill. DISCUSSION

Here, Plaintiffs contend that this Court has jurisdiction due to diversity of

citizenship. Diversity jurisdiction exists if the action is between citizens of different states

and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1). Complete

diversity among all parties is required. Complete diversity of citizenship exists where no

defendant holds citizenship in the same state where any plaintiff holds citizenship.”

OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007) (citation omitted).

A limited liability company’s citizenship is the citizenship of each of its members. /d.

The Defendants include VL Apartments, LLC, a limited liability company

established under the laws of Indiana. Plaintiffs have not alleged the citizenship of each

of the LLC’s members. With respect to West Bend Mutual Insurance Company, Plaintiffs

have listed only the Wisconsin address of Mr. Jacob J. Schmidt, who they indicate is an

attorney representing West Bend. Thus, Plaintiffs have provided insufficient information

to determine if all parties are of diverse citizenship. Nevertheless, allowing Plaintiffs to

amend their Complaint to include that information would be futile because they have also

failed to plausibly plead the minimum amount in controversy required for diversity

jurisdiction. .

“[G]enerally, a complaint that alleges the jurisdictional amount in good faith will

suffice to confer jurisdiction, but the complaint will be dismissed if it appears to a legal

certainty that the claim is really for less than the jurisdictional amount.” Larkin v. Brown,

41 F.3d 387, 388 (8th Cir. 1994) (internal quotation marks and citation omitted). Here,

although the Plaintiffs claim damages in the amount of $50,000 (the amount they

allegedly claimed in connection with their bankruptcy), plus another $25,000 in attorney's

fees, the total amount of damages claimed does not exceed $75,000, as required by

statute. Moreover, even if the Court were to assume that an award of $50,000 were

appropriate in a slip-and-fall case like this one—in which only minor injury has been

alleged and medical expenses total less than $1,000—Plaintiffs cannot recover an

additional amount in attorney’s fees, as they are representing themselves pro se.

Regardless of whether Indiana, Wisconsin, or Arkansas law would apply in this

case, none of those states allow pro se litigants to recover attorney's fees.2 See Marion

Cnty. Election Bd. v. Bowes, 53 N.E.3d 1203, 1207 (Ind. Ct. App. 2016) (Indiana follows

the “American Rule,” under which each party is ordinarily responsible for his own

attorney's fees; and even when there is a statutory basis for an award, no attorney’s fees

are earned unless independent counsel is engaged); State ex rel. Young v. Shaw, 477

2 In diversity actions, the Court applies the choice-of-law rules of its forum state. See,

e.g., DCS Sanitation Mgmt., Inc. v. Castillo, 435 F.3d 892, 895 (8th Cir. 2006). The Court

need not delve into this issue, as Plaintiffs are not entitled to an award of attorney's fees

under the laws of any of the states having a connection with this case.

N.W.2d 340, 348 (Wis. Ct. App. 1991) (pro se litigant not entitled to award of fees since

“[t]he provision for attorney’s fees implies the existence of an attorney-client relationship’);

Elliott v. Hurst, 817 S.W.2D 877, 881-82 (Ark. 1991) (attorney's fees not allowed in

Arkansas unless expressly authorized by statute); Swinson v. Jarratt, 578 S.W.2d 197,

200 (Ark. 1979) (“We adopt the view in regard to attorney's fees for parties who represent

themselves that they are improper.”). Accordingly, the Court finds to a degree of legal

certainty that the Complaint fails to meet the required jurisdictional amount.

IV. CONCLUSION

For the reasons stated, this Court lacks subject matter jurisdiction over this case.

Therefore, this case is DISMISSED WITHOUT PREJUDICE.

The IFP motion (Doc. 2) is DENIED AS MOOT.

IT IS SO ORDERED on this 15%, of February, 2019. 2

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T ar et KS

J UNITED-SPATES DISTRICT JUDGE