Eborka v. Gustafson

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DENNIS EBORKA,
Plaintiff,
vs.
JACI GUSTAFSON,
Defendant.
8:25CV630
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Dennis Eborka’s Complaint filed on
October 23, 2025. Filing No. 1. Plaintiff, a non-prisoner proceeding pro se, has also filed
a Motion for Leave to Proceed in Forma Pauperis (“IFP”). Filing No. 2. Upon review of
Plaintiff’s IFP Motion, the Court finds that Plaintiff is financially eligible to proceed in forma
pauperis. The Court now conducts an initial review of Plaintiff’s claims to determine
whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT AND ADDITIONAL BACKGROUND
Plaintiff, a citizen of Michigan, sues Jaci Gustafson (“Defendant”), an employee of
the University of Nebraska-Lincoln (the “University”), “under state law,” alleging diversity
of citizenship jurisdiction and $85,000 as the amount in controversy. Filing No. 1 at 2.
Plaintiff alleges the following as his “Statement of Claim”:
The plaintiff, Dennis Eborka, [was] a student of University of Nebraska-
Lincoln[.] On October 7th, 2024, defendant, Jaci Gustafson agreed to
submit courses attempted by Plaintiff, Dennis Eborka to the committee in
order for the committee to change Dennis Eborka, courses to pass or no
pass grade on the following courses, chem 251, stat 218 and bioc 401.
Defendant breach the agreement when she neither update pla[in]tiff about
the changes of the mentioned courses above or neither did the committee
send a letter after October 11th 2024. Defendant submitted all documents
to the committee and the committee approved the submitted document and
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promised to provide an update October 11th 2024. I contacted defendant
after that date and defendant did not respond.
Id. at 1 (punctuation as in original).
As relief, Plaintiff asks the Court to “order defendant to implement the courses
mentioned above to change pass or no pass” and alleges
[t]he eligibility requirements to change courses to pass/fail was clearly
satisfied by plaintiff. All requested supporting document was reviewed by
defendant and it was approved. Plaintiff has satisfied the requirements and
all courses attempted must be change [sic] to pass/fail due to extenuating
circumstances experienced during the semester for which the medical
withdrawal was requested.
Id. at 2.
A review of this Court’s records reveals that Plaintiff filed a substantially identical
action against Defendant on April 7, 2025, in Eborka v. Gustafson, No. 8:25-cv-00253-
JMG-PRSE (D. Neb.) (hereinafter the “Prior Case”), of which the Court takes judicial
notice.1 In the Prior Case, Plaintiff alleged he was “suing for a violation of federal law
under 28 U.S.C. § 1331.” Filing No. 1 at 5, Case No. 8:25-cv-253. Senior United States
District Judge John M. Gerrard dismissed Plaintiff’s complaint in the Prior Case without
prejudice “for failure to state a claim for relief over which the Court has federal subject
matter jurisdiction.” Filing No. 13 at 7, Case No. 8:25-cv-253. Judge Gerrard first noted
that the Court lacked diversity jurisdiction under 28 U.S.C. § 1332 because, “[w]hile
Plaintiff and Defendant are alleged to be citizens of different states, nothing in the
Complaint’s allegations suggests an amount in controversy in excess of the requisite
$75,000.00 amount.” Id. at 4, Case No. 8:25-cv-253. Judge Gerrard then liberally
1 The Court can sua sponte take judicial notice of its own records and files, and facts which are part of its
public records. United States v. Jackson, 640 F.2d 614, 617 (8th Cir. 1981). Judicial notice is particularly
applicable to the Court’s own records of prior litigation closely related to the case before it. Id.
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construed Plaintiff’s complaint as alleging a federal due process claim and concluded the
complaint’s allegations failed to establish that Plaintiff “has a constitutionally protected
property or liberty interest in the University’s purely academic decision regarding whether
to permit Plaintiff to change a past letter grade to a pass/no-pass grade.” Id. at 6–7, Case
No. 8:25-cv-253.
II. APPLICABLE LEGAL 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)). Plaintiffs must set forth enough factual allegations to “nudge[ ]
their claims across the line from conceivable to plausible,” or “their complaint must 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.”).
“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
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marks and citations omitted). This means that “if the essence of an allegation is
discernible, even though it is not pleaded with legal nicety, then the district court should
construe the complaint in a way that permits the layperson’s claim to be considered within
the proper legal framework.” Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004). However,
even pro se complaints are required to allege facts which, if true, state a claim for relief
as a matter of law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980).
III. DISCUSSION
After his lack of success in the Prior Case, Plaintiff now appears to seek to
establish the Court’s diversity jurisdiction over his claims against Defendant. Subject-
matter jurisdiction pursuant to 28 U.S.C. § 1332, commonly referred to as “diversity of
citizenship” jurisdiction, requires that “the citizenship of each plaintiff is different from the
citizenship of each defendant.” Ryan v. Schneider Nat’l Carriers, Inc., 263 F.3d 816, 819
(8th Cir. 2001) (citation omitted). In addition, the amount in controversy must be greater
than $75,000.00 for diversity of citizenship jurisdiction. 28 U.S.C. § 1332(a). Here,
Plaintiff alleges he and Defendant are citizens of different states and an amount in
controversy greater than $75,000.00. However, Plaintiff fails to allege any facts or legal
theories establishing that the $85,000 amount in controversy alleged is legitimate.
Where a complaint “alleges a sufficient amount in controversy to establish diversity
jurisdiction, but . . . the court questions whether the amount alleged is legitimate, the party
invoking federal jurisdiction must prove the requisite amount by a preponderance of the
evidence.” Trimble v. Asarco, Inc., 232 F.3d 946, 959 (8th Cir. 2000) (quotation omitted)
(abrogated on other grounds by Exxon Mobil Corp. V. Allapattah Servs., Inc., 545 U.S.
546 (2005)). In addition, “[n]o presumptive truthfulness attaches to the plaintiff’s
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allegations, and the existence of disputed material facts will not preclude the trial court
from evaluating for itself the merits of the jurisdictional claims.” Id. (quotation omitted).
Here, Plaintiff alleges a state-law claim against Defendant for breach of contract
based on his allegations that “Defendant breach the agreement when she neither update
pla[in]tiff about the changes of the mentioned courses above or neither did the committee
send a letter after October 11th 2024.” Filing No. 1 at 1 (as in original). “Under Nebraska
law, the elements of a claim for breach of contract are: ‘(1) the existence of a contract; (2)
breach of the contract; and (3) damages which flow from the breach.’” Knowles v. TD
Ameritrade Holding Corp., 2 F.4th 751, 757 (8th Cir. 2021) (quoting United States v. Basin
Elec. Power. Coop., 248 F.3d 781, 810 (8th Cir. 2001)); see also Phipps v. Skyview Farms,
Inc., 610 N.W.2d 723, 730 (Neb. 2000) (“In order to recover in an action for breach of
contract, the plaintiff must plead and prove the existence of a promise, its breach,
damage, and compliance with any conditions precedent that activate the defendant’s
duty.”). “[F]or a cause of action based on a breach of express contract, there must be an
unconditional and absolute acceptance of a definite offer constituting an agreement
supported by sufficient and valid consideration.” Hecker v. Ravenna Bank, 468 N.W.2d
88, 93 (Neb. 1991).
Liberally construed, Plaintiff alleges Defendant failed to provide an update on
October 11, 2024, to Plaintiff as “promised” regarding the committee’s decision on
whether to change Plaintiff’s past three courses to pass or no pass grades. Filing No. 1
at 1. Even assuming Plaintiff’s allegations establish a valid contract and breach of that
contract, Plaintiff does not allege any facts suggesting damages, let alone damages in
excess of the requisite $75,000 amount in controversy, as a result of Defendant’s actions.
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Rather, the injuries and damages Plaintiff claims to have suffered are the result of the
University committee’s decision declining to change his past courses to pass or no pass
grades, and Plaintiff does not even allege facts suggesting why that decision caused
Plaintiff damages of more than $75,000.
Moreover, the relief Plaintiff seeks is to have the courses changed to pass or no
pass grades, but Plaintiff alleges no facts suggesting that Defendant Jaci Gustafson has
anything to do with the University committee’s decision on such matters. Defendant is
only alleged to have provided Plaintiff’s documentation in support of his course change
request to the committee and then to have failed to respond to Plaintiff’s inquiry regarding
his change request. However, Plaintiff’s allegations clearly show that he is aware of the
committee’s decision not to grant his request to change his courses to pass or no pass
grades, regardless of any failure by Defendant to respond to his inquiry regarding the
same. Thus, nothing in the Complaint suggests that Defendant’s failure to contact Plaintiff
after submitting his documentation to the committee caused Plaintiff damages in excess
of $75,000. Plaintiff’s allegations fail to show that Defendant breached a contract with
Plaintiff resulting in damages in excess of the requisite amount to establish the Court’s
diversity jurisdiction.
IV. CONCLUSION
Plaintiff’s Complaint fails to state a plausible breach of contract claim over which
the Court has subject matter jurisdiction and is, therefore, subject to dismissal pursuant
to 28 U.S.C. § 1915(e)(2). The Court, therefore, will dismiss Plaintiff’s action against
Defendant without prejudice and without leave to amend as the Court finds such
amendment would be futile, particularly in light of Plaintiff’s previous attempt to obtain
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relief against Defendant based on essentially the same allegations in the Prior Case. See
Hart v. United States, 630 F.3d 1085, 1091 (8th Cir. 2011) (dismissal for lack of subject
matter jurisdiction should be without prejudice); Horras v. Am. Cap. Strategies, Ltd., 729
F.3d 798, 804 (8th Cir. 2013) (district court may deny leave to amend when amendment
would be futile).
IT IS THEREFORE ORDERED that:
1. Plaintiff’s Motion for Leave to Proceed in Forma Pauperis, Filing No. 2, is
granted, and the Complaint shall be filed without payment of fees.
2. This matter is dismissed without prejudice.
3. The Court will enter a separate judgment.
Dated this 30th day of October, 2025.
BY THE COURT:
Joseph F. Bataillon
Senior United States District Judge
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