United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
plaintiff and prisoner Peter Joshua LaBreck has filed a
complaint regarding a piece of real property in Rhinelander,
Wisconsin. He alleges that Jennifer Ayers and Thomas Ayers
agreed to “transfer [that property] to Plaintiff upon
the death of either” of them, that both Jennifer and
Thomas died in March 2015 and failed to leave the property to
him, and that defendant Nationstar Mortgage LLC is planning
to auction the property without his consent. Dkt. 1, ¶
one of many federal lawsuits that LaBreck has filed on his
own behalf over the last few years. He has filed the lawsuits
in a variety of courts on a variety of issues, including
other property disputes. None of them have been successful
(though two others are pending) and courts dismissed some of
them for LaBreck's failure to prosecute.
case is before the court for screening under 28 U.S.C. §
1915(e)(2) and § 1915A. Because it is clear from the
face of the complaint that LaBreck is not entitled to relief,
I will dismiss the case.
initial matter, LaBreck hasn't shown that the court can
exercise jurisdiction over his case. He cites the statutes
granting jurisdiction in cases arising under federal law, 28
U.S.C. § 1331, and cases involving diversity of
citizenship between the plaintiff and defendants, 28 U.S.C.
§ 1332, but it is clear that § 1331 does not apply
and it appears that § 1332 doesn't apply either.
§ 1331, LaBreck says that “defendants”
violated his rights under the Constitution and the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692. But LaBreck
cannot sue private parties for constitutional violations
under the facts alleged in his complaint, Blum v.
Yaretsky, 457 U.S. 991, 1004 (1982), and he doesn't
identify any violations of the FDCPA. Because LaBreck has no
plausible federal claims, he cannot rely on § 1331 as a
basis for jurisdiction.
§ 1332, LaBreck says that he is incarcerated in
Michigan, but “[a] prisoner is a citizen of the state
of which he was a citizen before he was sent to prison unless
he plans to live elsewhere when he gets out, in which event
it should be that state.” Bontkowski v. Smith,
(S.D. Fla. Jan. 31, 2017) (dismissing claims under Fair
Credit Reporting Act); LaBreck v. Citadel Investment
Group, Inc., 15-cv-11912 (E.D. Mich. June 7, 2016)
(dismissing for failure to prosecute claim that defendants
filed fraudulent liens on his home); LaBreck v.
Sabaugh, No. 15-cv-13303 (E.D. Mich. Oct. 14, 2015)
(dismissing claim that defendants violated his rights by
denying his requests to change his name); LaBreck v,
Aaron's Rental, No. 14-cv-10247 (E.D. Mich. Apr. 20,
2015) (dismissing for failure to prosecute claim that
defendants denied credit application because of his race);
LaBreck v. Esposito, No. 11-cv-11328 (E.D. Mich.
Oct. 31, 2013) (dismissing claims that several individuals,
business entities, and government officials engaged in a
conspiracy to unlawfully seize his home and other property);
LaBreck v. U.S. Dept. of Treasury, No. 11-cv-10155
(E.D. Mich. Feb. 12, 2013) (dismissing FOIA claim). 305 F.3d
757, 763 (7th Cir. 2002) (internal quotations omitted).
LaBreck doesn't say where he lived before his
incarceration, but he does say that he plans on residing in
Wisconsin after his release. Dkt. 4. at 2. Because LaBreck is
suing other defendants with Wisconsin citizenship, there is
no diversity. It is even unclear whether there is
diversity between LaBreck and Nationstar. LaBreck lists a
Texas address for Nationstar, but the citizenship of a
limited liability company like Nationstar is the citizenship
of its members. Hoagland ex rel. Midwest Transit, Inc. v.
Sandberg, Phoenix and von Gontard, 385 F.3d 737, 738
(7th Cir. 2004). LaBreck does not identify the names of the
members or their states of citizenship.
is another potential jurisdictional problem as well. Even
when the requirements for diversity jurisdiction are
otherwise satisfied, that type of jurisdiction has a
“probate exception, ” which “reserves to
state probate courts the probate or annulment of a will and
the administration of a decedent's estate; it also
precludes federal courts from endeavoring to dispose of
property that is in the custody of a state probate
court.” Marshall v. Marshall, 547 U.S. 293,
310-11 (2006). LaBreck is bringing a claim about the
disposition of property in the estate, so Marshall would
apply if probate proceedings are pending. It is less clear
whether the probate exception applies even after the estate
is closed. The electronic docket for the Wisconsin circuit
courts shows that probate proceedings were opened in Oneida
County, Wisconsin, but the record is sealed and no
information is provided regarding the status of the
proceedings. In the Matter of Thomas Ayers, 2015PR55 (Oneida
Cir. Ct.), available at https://wcca.wicourts.gov.
I assume that the probate proceedings are finished and the
probate exception does not apply, LaBreck's claim would
fail for other reasons. Under Wisconsin law, any claims
against an estate must be brought within a year of the
decedent's death, even if the creditor did not receive
timely notice. Wis.Stat. § 859.48(2). Because LaBreck
says that both Jennifer and Thomas Ayers died in 2015, any
claim against the estate is untimely.
claim against Nationstar is barred as well. I understand
LaBreck to be alleging that Nationstar took the title to the
property at issue and he wants to assert his rights to the
property against Nationstar. But even assuming the statute of
frauds would not bar LaBreck's claim (LaBreck does not
say whether he had a written agreement with the decedents),
his claim would fail because he does not allege that he ever
recorded his interest in the property. “Under Wisconsin
law, unrecorded real estate conveyances are not valid against
third parties.” In re Segebrecht, 536 B.R.
810, 814 (Bankr. E.D. Wis. 2015) (citing Wis.Stat. §
bottom line is that the court must dismiss LaBreck's
complaint for lack of subject matter jurisdiction. And even
if there weren't any jurisdictional defects, the court
would dismiss the complaint for failure to state a claim upon
which relief may be granted.
ORDERED that plaintiff Peter Joshua LaBreck's complaint
is DISMISSED for lack of jurisdiction. The clerk of court is