United States District Court, E.D. Wisconsin
ORDER DISMISSING THE CASE, AND DENYING AS MOOT
PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT THE
PREPAYMENT OF FEES (DKT. NO. 2)
PAMELA PEPPER United States District Judge
February 23, 2017, the court issued an order screening the
plaintiff's complaint. Dkt. No. 4. The court dismissed
the complaint without prejudice under 28 U.S.C.
§1915(e)(2)(B), because the United States Bankruptcy
Court is immune from suit, because the plaintiff had not
alleged a federal cause of action, because the plaintiff had
not alleged diversity of citizenship of the parties, and
because the complaint failed to state a claim against the
Kohn Law Firm. Id. at 4. The court ordered the
plaintiff to file an amended complaint on or before March 27,
2017, stating the “full factual basis for her claims
against the Kohn Law Firm.” Dkt. No. 4 at 4-5.
plaintiff filed her amended complaint on March 17, 2017. Dkt.
No. 5. Again, she made claims against the United States
Bankruptcy Court and the Kohn Law Firm, repeating the
allegations that she made in the original complaint.
Id. At this stage of the case, the court liberally
construes the allegations of a plaintiff proceeding without
the assistance of counsel. But the amended complaint did not
correct any of the problems the court observed in the
original complaint-the Bankruptcy Court remains immune from
suit, the plaintiff has not stated a basis for federal
jurisdiction, and she has not stated a cognizable claim
against the Kohn Law Firm. Because the court may dismiss a
case at any time if it fails to state a claim upon which
relief may be granted or seeks monetary relief from a
defendant who is immune from suit, the court will dismiss the
case. 28 U.S.C. §1915(e)(2)(B).
plaintiff expresses her dissatisfaction with a “Chapter
7” proceeding, and a debt that she believed was
discharged in October of 1992. The court looked on PACER
(Public Access to Court Electronic Records), and located a
voluntary Chapter 13 petition filed by Rose M. McClain in the
Southern District of Florida on March 10, 1992. In re
McClain, Case No. 92-11443 (S.D. Fla.), Dkt. No. 1. The
case converted to a Chapter 7 on January 15, 1993, and the
debtor filed a motion for voluntary dismissal on March 12,
1993. Id. at dkt. nos. 13 and 24. After the
bankruptcy court entered an order dismissing the case for a
period of six months, the case was closed on June 29, 1993.
Id. at dkt. no. 28.
court located a second bankruptcy petition filed by Rose
McClain under Chapter 7 in the Eastern District of Wisconsin
Bankruptcy Court on February 10, 2016. In re
McClain, Case No. 16-20968-beh, Dkt. No. 1. On March 14,
2016, the Chapter 7 trustee filed a report of no
distribution, stating that there was no property available
for distribution from the estate above the exemption allowed
by law. Bankruptcy Judge Beth Hanan entered a final decree on
May 18, 2016, holding that the estate had been fully
administered, and the plaintiff received her Chapter 7
discharge the same day. The clerk's office then closed
plaintiff, therefore, dismissed her Florida bankruptcy case,
and she received her discharge in the Wisconsin bankruptcy
case. Yet in her complaint, she asks for “complete
compensation for the false product” that she was sold
by the United States Bankruptcy Court. McClain v. U.S.
Bankruptcy, et al., Dkt. No. 5 at 4-5.
explained in the court's February 23, 2017 order, the
United States Bankruptcy Court, as the judicial branch of the
Federal Government, cannot be sued unless it waives its
immunity from suit. See Fed. Deposit Ins. Corp. v.
Meyer, 510 U.S. 471, 4741994). For that reason, the
court dismisses all of the plaintiff's claims against the
United States Bankruptcy Court.
respect to the Kohn Law Firm, the amended complaint does not
mention the Kohn Law Firm until the second page of the
statement of claim. The plaintiff alleges that the law
changed in 2005, giving “the University the right to
collect on school debts.” Dkt. No. 5 at 4. She says
that she “started to get phone calls in or around 2005
from the Kohn Law Firm” regarding a school debt that
she had thought was discharged in 1992 because it was listed
on her petition (presumably the Florida petition). She
indicates that the creditor took steps to garnish her wages,
which lasted “another seven years.”
the court liberally construes the amended complaint, the
plaintiff appears to be complaining that the Kohn Law Firm
was attempting to collect a debt. If the plaintiff believes
that the defendant was trying to collect a debt that had been
discharged, she needs to bring that claim in the bankruptcy
court. See 11 U.S.C. §524(c). (The court notes that the
plaintiff did not receive a discharge in the Florida case,
because she dismissed it before any discharge issued.) If the
plaintiff believes that the Kohn Law Firm violated federal
consumer debt protection laws in trying to collect the debt,
she may have waited to long to bring her claim. Plaintiffs
with claims alleging the improper pursuit of debt collection
under the Fair Debt Collection Practices Act must bring those
claims “within one year from the date on which the
violation occurs.” 15 U.S.C. §1692k(d). Aside from
all this, the plaintiff states that she does not seek relief
from the firm; rather, she is asking for
“compensation” for the “false
product” sold to her by the bankruptcy court. Dkt. No.
5 at 5. That statement circles back around to the fact that
the bankruptcy court is not subject to suit.
prior order, the court explained to the plaintiff that in her
amended complaint, she needed to provide a short and plain
statement of her claim. Dkt. No. 4 at 2. Instead, the amended
complaint repeats the same allegations that the plaintiff
made in the original complaint. As the court indicated in the
screening order, it does not have diversity jurisdiction
because the plaintiff and the Kohn Law Firm appear to be
citizens of the same state. 28 U.S.C. §1332. Further,
the plaintiff has failed to identify facts that would support
a claim under the Constitution, laws, or treaties of the
United States. 28 U.S.C. §1331.
court ORDERS that the amended complaint is DISMISSED under 28
U.S.C. § 1915(e)(2)(B)(ii) and (iii), because the United
States Bankruptcy Court is immune from suit; the plaintiff
has not alleged violations of federal laws or the federal
Constitution; the court does not have diversity jurisdiction;
and the complaint fails to state a claim upon which relief
can be granted against the Kohn Law Firm. Dkt. No. 5. The
court ORDERS that this case ...