Myers v. Long et al
Memorandum Opinion and ORDER granting 33 Motion to Dismiss; granting 22 Motion to Dismiss; granting 36 Motion to Dismiss; granting 38 Motion to Dismiss; denying 42 Motion for Sanctions; denying 44 Motion for Sanctions; denying 46 Motion for Attorney Fees. Signed by U. S. District Judge Lawrence L. Piersol on 3/5/13. (SLW)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
MAR 05 2013
KEVIN P. MYERS,
JUDGE LARRY LONG;
THOMAS WOLLMAN, Linco1n County
States Attorney, et at.; DENNIS
JOHNSON, Linco1n County Sheriff, et al.;
JIM SCHMIDT; Linco1n County
Commissioner; DENNIS WEELDREYER,
Linco1n County Commissioner;
DALE LONG; Linco1n County
Commissioner; JASON MELCHER,
Linco1n County Commissioner;
DAVID GILLESPIE, Linco1n County
Commissioner; CADWELL, SANFORD,
DEIBERT & GARRY; STEVEN W.
SANFORD; ALEX M. HAGEN; MANNA
MINISTRY CENTER, President,
BERNARD SCHOCK; NEW HAVEN,
President, JOEL V ANEKEREN;
BRIAN EIDE; JENSEN INSURANCE &
REAL ESTATE; and
EMC INSURANCE COMPANY;
GRANTING MOTIONS TO DISMISS
Plaintiff, Kevin P. Myers ("Myers"), brought this civil rights action pursuant to 42 U.S.C. §§
1983 and 1985, claiming that the defendants acted in concert to violate his constitutional rights
through a state court eviction proceeding which resulted in the eviction ofMyers from a home located
in Linco1n County, South Dakota. The following motions are pending before the Court: (1) Motion
to Dismiss filed by defendants Manna Ministry Center, New Haven, Bernard Schock, Joel VanEkeren
and Brian Eide, joined by defendants Cadwell, Sanford, Deibert and Garry, Steven W. Sanford and
Alex M. Hagen, docs. 22 and 26; (2) Motion to Dismiss filed by defendants Thomas Wollman, Dennis
Johnson, Jim Schmidt, Dennis Weeldreyer, Dale Long, Jason Melcher and David Gillespie, doc. 33;
(3) Motion to Dismiss filed by defendants Jensen Insurance & Real Estate and EMC Insurance
Company, doc. 36; (4) Motion to Dismiss filed by defendant Larry Long, doc. 38; (5) Motion for
Rule 11 Sanctions filed by defendants Thomas Wollman, Dennis Johnson, Jim Schmidt, Dennis
Weeldreyer, Dale Long, Jason Melcher and David Gillespie, doc. 42; (6) Motion for Rule 11
Sanctions filed by defendants Jensen Insurance & Real Estate and EMC Insurance Company, doc.
44; and (7) Motion for Attorney's Fees and Rule 11 Sanctions filed by defendants Manna Ministry
Center, New Haven, Bernard Schock, Joel VanEkeren and Brian Eide, doc. 46,
This action arose out of a dispute over a parcel of property in Lincoln County. Manna
Ministry filed a suit and obtained a judgment in state court against Jerry and Sonja Adrian which
established Manna Ministry's title and evicted the Adrians from the property. After the state court
judgment was entered, the Adrians attempted to remove the action to federal court. Manna Ministry
was stayed from enforcing the judgment while the Adrians' removal action was pending. During the
stay, the Adrians allowed Kevin and Esther Myers to take possession ofa house on the property. On
January 23, 2012, the Adrians' removal action was remanded to state court. See Manna Ministry
Center v. Adrian, 2012 WL 195522 (D.S.D. January 23, 2012). A three-day notice to quit was
served on the Myers on February 24, 2012. Manna Ministry then commenced a forcible entry and
detainer action against the Myers by a summons and complaint of February 29,2012, which was
personally served on the Myers on March 1, 2012. Manna Ministry moved for judgment on the
pleadings or summary judgment, and for an expedited special execution. On March 22, 2012, the
state court held a hearing and granted the motion, entering an order and judgment that day. On
March 23,2012, the day after final judgment had been entered in state court, the Myers removed the
state court action to federal court, claiming federal jurisdiction existed based on the original U.S.
Land Patent grant for the property. The Myers did not appeal to the South Dakota Supreme Court.
They were evicted by the Lincoln County Sheriff on March 27, 2012. Their federal court removal
action was summarily remanded to state court on May 31, 2012, because there was no federal
jurisdiction and because removal is improper after judgment has been issued in state court. See
Manna Ministry Center v. Myers, 2012 WL 1969326 (D. S.D. May 31, 2012).
Kevin Myers filed this section1983 civil rights action on July 3, 2012. Myers claims Judge
Larry Long did not have jurisdiction over the state court action and that defendants wrongfully
evicted him in violation of his constitutional rights. He seeks compensatory and punitive damages.
Defendants seek dismissal ofthe Complaint. Myers did not file a response to the arguments set forth
by Defendants in their motions to dismiss.
Defendants request that this Court take judicial notice pursuant to Rule 201 of the Federal
Rules of Evidence of pleadings, motions, docket entries and proceedings in the state court eviction
action against the Myers entitled Manna Ministry Center v. Kevin Myers and Esther Myers, CIY 12
141, as well as the Myers' removal action and the state and federal court proceedings involving the
Adrians. The Eighth Circuit Court ofAppeals has recognized that it is appropriate for federal district
courts to take judicial notice ofstate court files when they are relevant to issues in federal court. See
Knutson v. City of Fargo, 600 F.3d 992, 1000 (8th Cir. 201 0). The state court documents are
relevant because the claims in this civil rights action arise out of and are based on the state court
proceedings involving the Adrians and the Myers. Accordingly, Defendants' request is granted and
the Court takes judicial notice of the documents attached to the Affidavit of Steven W. Sanford.
STANDARD OF REVIEW
Rule 12 ofthe Federal Rules of Civil Procedure provides that a party may move to dismiss
a complaint on various grounds, including lack of subject matter jurisdiction and failure to state a
claim upon which can be granted. See Fed.R.Civ.P. 12(b)(1) and (6). In ruling on a motion to
dismiss, the Court must view the allegations in the complaint in the light most favorable to the
plaintiff. See Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008) (citing Luney v. SGS
Auto. Servs., Inc., 432 F.3d 866, 867 (8th Cir. 2005)). The Court "must accept the allegations
contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving
party." Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005) (citation omitted). A motion to
dismiss must be granted, however, if the complaint does not contain "enough facts to state a claim
to reliefthat is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The factual allegations ''must be enough to raise a right to relief above the speculative level." Id. at
555. Although pro se complaints are to be construed liberally, ''they must still allege facts sufficient
to support the claims advanced." Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). The court is
not required to supply additional facts for a pro se plaintiff, nor construct a legal theory that assumes
facts which have not been pleaded. Id. (quoting Dunn v. White, 880 F.2d 1188, 1197 (lOth Cir.
Myers mentions 42 U.S.c. § 1985 in his Complaint. Section 1985(3) appears to be the only
subsection of the statute which could be applicable. Section 1985(3) creates a cause of action for
conspiring to interfere with a person's civil rights. In order to state a claim for conspiracy under 42
U.S.c. § 1985(3), a plaintiff must allege four elements in his complaint: (1) a conspiracy; (2) for the
purpose of depriving any person or class of persons of the equal protection of the laws, or of
priVileges and immunities under the law; (3) with an act in furtherance ofthe conspiracy; (4) whereby
a person is either injured in his person or property, or is deprived ofany right or privilege of a citizen
ofthe United States. See Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971); Larson by Larson
v. Miller, 76 F.3d 1446, 1454 (8th Cir. 1996). The "purpose" element of section 1985(3) requires
a plaintiffto prove that invidious racial or otherwise class-based discriminatory animus lay behind the
defendants' actions, and he must allege with particularity specific facts from which a conspiratorial
agreement between the defendants can be inferred. See Larson, 76 F.3d at 1454; Bray v. Alexandria
Women's Health Clinic, 506 U.S. 263, 267-68 (1993), Myers does not allege that he is a member
of a protected class or that some class-based invidious discriminatory animus exists. Nor does he
allege any facts showing that the defendants reached an agreement. His allegations are insufficient
to state a section 1985(3) claim.
Under 42 U.S.c. § 1983, a plaintiff may seek a civil remedy against any "person who, under
color ofany [state law], subjects, or causes to be subjected, any citizen ofthe United States or other
person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws ...." 42 U.S.C. § 1983. To state a claim under 42 U.S.c.
§ 1983, Myers must establish two essential elements: (1) the violation of a right secured by the
Constitution or laws ofthe United States, and (2) the alleged deprivation was committed by a person
acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Defendant Larry Long is the Lincoln County Circuit Court judge who presided over the state
court eviction proceedings against Myers and who granted Manna Ministry's motion for judgment
on the pleadings or summary judgment, and for an expedited special execution. He moves for
dismissal pursuant to Federal Rule 0 fProcedure 12(b)(6) for failure to state a claim upon which relief
can be granted, on the grounds that he is entitled to absolute judicial immunity. Judge Long also
asserts that this Court lacks subject matter jurisdiction pursuant to the Rooker-Feldman doctrine.
Myers' claims against Judge Long must be dismissed because absolute judicial immunity bars the
Judicial immunity provides immunity to judges for all acts taken in their judicial capacities.
Stump v. Sparkman, 435 U.S. 349, 355-56 (1978). "[J]udicial immunity is an immunity from suit,
not just from ultimate assessment ofdamages." Mirelesv. Waco, 502 U.S. 9,11 (1991)(percuriam)
(citation omitted). Judicial immunity is lost only when the judge's acts are non-judicial in nature or
when the judge's acts are taken "in the complete absence of all jurisdiction." Duty v. City of
Springdale, 42 F.3d 460, 462 (8th Cir. 1994).
Although Myers alleges that Judge Long did not have an oath with him at the hearing and that
Judge Long did not have jurisdiction due to the original U.S. Land Patent grant for the property,
these allegations do not support a finding that Judge Long was without jurisdiction in the eviction
action. While the South Dakota Constitution requires all officials to take an oath of office, no
constitutional or legal requirement mandates that an official have that oath in their possession while
performing their duties. As for the land patent grant, the Supreme Court has recognized that once
title to land has passed from the United States government "that property, like all other property in
the state, is subject to state legislation." Wilcox v. Jackson, 38 U.S. 498, 517 (1839), cited with
approval in Wilson v. Omaha Indian Tribe, 442 U.S. 653, 670 (1979). The action to obtain
possession ofreal property and to evict the Myers involved matters ofstate law within a state court's
jurisdiction. Judge Long's grant of Manna Ministry'S motion and his issuance of a judgment in
Manna Ministry's favor were routine judicial acts. Thus, Judge Long is entitled to the protection
afforded by absolute judicial immunity. See, e.g., Coleman v. Watt, 40 F.3d 255 (8th Cir. 1994)
(judge who issued order authorizing impoundment was entitled to dismissal based on absolute
immunity from section 1983 lawsuit claiming unreasonable seizure of vehicle).
Lincoln County Defendants
Thomas Wollman is the Lincoln County States Attorney, Dennis Johnson is the Lincoln
County Sheriff, and Jim Schmidt, Dennis Weeldreyer, Dale Long, Jason Melcher and David Gillespie
are Lincoln County Commissioners. The Lincoln County Defendants request dismissal pursuant to
Rule 12(b)(6) ofthe Federal Rules of Civil Procedure for failure to state a claim upon which relief
can be granted. The Complaint alleges that Lincoln County (not a named defendant) was engaged
in a pattern and practice of unconstitutional activity and did not properly train or supervise its
employees, and that the defendants must be held accountable to their oaths ofoffice. Myers asserts
that "[ f]rom the time an inadequate judgment was made by Long, The State's Attorney and Sheriff s
Department then carried out his unlawful eviction," knowing that the judgment was in violation of
due process and void. (Complaint at p. 6,
The only fact Myers offers to support these
conclusions is that Judge Long's void judgment was enforced. Not a single fact relates to the manner
in which the eviction was effectuated. With no specific factual allegations against the named Lincoln
County Defendants, Myers' complaint fails to state a claim upon which relief can be granted against
To the extent that Myers is claiming the Lincoln County Defendants should be liable for
alleged unconstitutional actions by virtue oftheir supervisory positions, that theory does not apply
in a section 1983 suit for damages. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
Thus, liability cannot be attnbuted to the Lincoln County Defendants under section 1983 for the
actions of others under their supervision.
In addition, the Sheriff is immune from section 1983 liability for an eviction carried out
pursuant to a state court order. See, e.g., Tymiak v. Omodt, 676 F.2d 306 (8th Cir. 1982) (district
court correctly dismissed for failure to state a claim a section 1983 damage claim against sheriff for
evicting plaintiff pursuant to court order). Furthermore, the States Attorney enjoys immunity from
section 1983 lawsuits for actions taken in the course of his prosecutorial duties. See Imbler v.
Pachtman, 424 U.S. 409, 424-27 (1976); Price v. Moody, 677 F.2d 676, 677 (8th Cir. 1982).
Myers alleges an Eighth Amendment violation by the Sheriff. He states that the eviction
caused him and his family to suffer "cruel and unusual punishment, in direct violation ofthe Eighth
Amendment." (Complaint at p. 6, ~ 4.) The Eighth Amendment provides: "Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S.C.A.
Const.Amend.8. "The Cruel and Unusual Punishments Clause of the Eighth Amendment was
designed to protect those convicted of crimes." Whitley v. Albers, 475 U.S. 312,318 (1986). A
claim under section 1983 is a private tort action, not a criminal proceeding. See Smith v. Wade, 461
U.S. 30, 34 (1983). Myers has not been convicted of a crime, and the Eighth Amendment is
For all of these reasons, the Lincoln County Defendants are entitled to dismissal for failure
to state a claim.
Manna Ministry is the nonprofit corporation that commenced the state court eviction action
against Myers after a judgment was entered against the Adrians finding title for the property in Manna
Ministry. Bernard Schock is the president of Manna Ministry. New Haven is a related nonprofit
corporation with Joel VanEkeren as its president. Other than his name appearing in the caption,
Brian Eide is mentioned only once in the Complaint simply as being responsible for his actions in the
unlawful eviction process.
The Sheriff's Return of Writ of Special Execution states that, in
furtherance ofthe judgment and execution, the property was entrusted to Brian Eide as the "assigned
caretaker" for Manna Ministry. (Dec. 23, Exhibit U.) All of the Manna Defendants move for
dismissal pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the following
grounds: (1) the Complaint fails to state a claim for which relief may be granted; (2) the Complaint
is barred by res judicata; and (3) this Court lacks subject matter jurisdiction.
Only state actors acting under color oflaw can be held liable under Section 1983. Carlson
v. Roetzel & Andress, 552 F.3d 648, 650 (8th Cir. 2008). There are no factual allegations in the
Complaint indicating that the Manna Defendants are state actors or that they were acting under color
of state or federal law at any time throughout the eviction process. It is true that Manna Ministry
decided to pursue the eviction action against Myers, but the "mere invocation of state legal
procedures is not state action." Id. at 651 (citations omitted). The most that Myers alleges is that
all of the defendants acted "in concert" with state and county officers. This vague assertion is
insufficient to state a claim against the Manna Defendants. See, e.g., Sooner Products Co. v.
McBride, 708 F.2d 510, 512 (10th Cir. 1983) ("When a plaintiffin a § 1983 action attempts to assert
the necessary 'state action' by implicating state officials or judges in a conspiracy with private
defendants, mere conclusory allegations with no supporting factual averments are insufficient; the
pleadings must specifically present facts tending to show agreement and concerted action.").
"[M]erely resorting to the courts and being on the winning side of a lawsuit does not make a party
a co-conspirator or ajoint actor with the judge." Dennis v. Sparks, 449 U.S. 24, 28 (1980). Here,
Myers does not allege any facts tending to show an agreement between the Manna Defendants and
a state official. Myers has failed to allege sufficient facts to support a section 1983 action against the
Manna Defendants, and they are entitled to dismissal.
Steven W. Sanford and Alex M. Hagen are the lawyers who represented Manna Ministry in
the eviction proceeding against Myers. They are with the law firm Cadwell, Sanford, Deibert and
Garry, also a named defendant. The Lawyer Defendants join in the motion to dismiss filed by the
Manna Defendants. Myers' main complaint against the Lawyer Defendants is that Steven Sanford,
attorney of record for Manna Ministry, "has never proved he is an attorney and his contract to
represent" Manna Ministry, and "has failed to prove up his Oath of office...." (Complaint at ~ 3,
Myers has failed to show state action by the Lawyer Defendants. It is well-settled that a
lawyer representing a private client is not a state actor acting under color of state law. Holbird v.
Armstrong- Wright, 949 F.2d 1019, 1020 (8th Cir. 1991) (per curiam). Although a valid conspiracy
charge could support an allegation that a private lawyer acted under color of state law, Myers has
failed to plead facts showing that there was a mutual understanding, or a meeting of the minds,
between the lawyers and a state actor. See Mershon v. Beasley, 994 F.2d 449, 451 (8th Cir. 1993)
("[A] plaintiff seeking to hold a private party liable under § 1983 must allege, at the very least, that
there was a mutual understanding, or a meeting ofthe minds, between the private party and the state
actor."). Accordingly, Myers has failed to state a claim against the Lawyer Defendants upon which
reliefmaybe granted, and they are entitled to dismissal. See, e.g., Myers v. Vogal, 960 F.2d 750, 750
(8th Cir. 1992) (per curiam) (lawyers did not act under color ofstate law and thus are not subject to
suit under section 1983).
In his Complaint, Myers asserts that defendant EMC Insurance Company insures Lincoln
County, and that defendant Jensen Insurance & Real Estate is an agent for EMC. Myers alleges,
"The insurance companies ... are providing the coverage for Lincoln County to Facilitate unlawful
acts against the Private [sic] and public of Lincoln County." (Complaint at p. 6.) The Insurance
Defendants move for dismissal pursuant to Rule 12(b)( 6) ofthe Federal Rules ofCivil Procedure for
failure to state a claim upon which relief can be granted.
The Supreme Court has been clear that determining whether state action exists is not to occur
in the abstract, but rather with reference to "'the specific conduct ofwhich the plaintiff complains. '"
American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (quoting Blum v. Yaretsky,457
U.S. 991, 1004 (1982)). Alleging that a party provided insurance for a government agency does not
suffice. Here, there are no allegations in the Complaint that make it plausible that the alleged
constitutional deprivation-the wrongful eviction-has anything at all to do with the county's
insurance contract, and there is no basis on which to say that the Insurance Defendants are state
actors subject to suit under section 1983 by virtue of that contract. The Insurance Defendants'
motion to dismiss will be granted.
Dismissal for Lack of Subject Matter Jurisdiction
Even though Myers has failed to state a claim against any ofthe defendants upon which relief
can be granted, in the interest ofcompleteness, the Court will address the Rooker-Feldman doctrine
and the issue of subject matter jurisdiction.
Some of the defendants move for dismissal of Myers' lawsuit for lack of subject matter
jurisdiction pursuant to Federal Rule 0 f Civil Procedure 12(b)( 1) and the Rooker-Feldman doctrine.
The fundamental principle ofthe Rooker-Feldman doctrine, ajurisdictional consideration rooted in
the Supreme Court decisions of Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), is "that only the United States
Supreme Court has been given jurisdiction to review a state-court decision, so federal district courts
generally lack subject-matter jurisdiction over attempted appeals from a state-court judgment."
Friends of Lake View Schl. Dist. No. 25 v. Beebe, 578 F.3d 753, 758 (8th Cir. 2009) (internal
quotations and citation omitted). More recently, the Supreme Court confined the application ofthe
Rooker-Feldman doctrine to those cases: (1) "brought by state-court losers;" (2) "complaining of
injuries caused by state-court judgments;" (3) "rendered before the district court proceedings;" and
(4) "inviting district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280,284 (2005); see Lance v. Dennis, 546 U.S. 459, 466 (2006) ("The
doctrine applies only in 'limited circumstances' where a party in effect seeks to take an appeal of an
unfavorable state-court decision to a lower federal court.") (internal citation omitted).
The first Exxon element is satisfied because Myers lost in state court. Turning to Myers'
Complaint and the second Exxon element, he is clearly complaining ofthe injuries caused by the state
court judgment. The gravamen of Myers' complaint is that the state court judge, in Myers' opinion,
had no authority to make a ruling in the eviction case and, consequently, the state court judgment is
invalid or void. Myers alleges that his injuries (violations ofhis constitutional rights) were caused by
his eviction from the property pursuant to the void judgment. These allegations demonstrate that the
second Exxon element has been satisfied. The third element is met because the state court judgment
was entered over three months before Myers filed the Complaint in this case. The last element of
Exxon is also satisfied. Myers' claims go to the heart ofthe state court's eviction order, and this
Court would be required to find that the state court's judgment and order are wrong in order for
Myers to prevail in this case. Thus, his claims are barred by the Rooker-Feldman doctrine.
The Seventh Circuit reached the same conclusion when confronted with similar facts in Holt
v. Lake Court Bd. ofComm 'rs, 408 F.3d 335 (7th Cir. 2005). In Holt, the plaintiff lost possession
ofhis property after the county sold it to recover unpaid taxes. ld. at 335. He challenged the validity
ofthe tax sale in state court eviction proceedings but lost. ld. The plaintiff then filed a section 1983
action in federal court arguing that he was deprived ofhis property without due process. See id. The
district court dismissed the section 1983 action pursuant to the Rooker-Feldman doctrine, and the
Seventh Circuit affirmed, stating that the plaintiffs injury was caused by the state court judgments
upholding the tax sale and evicting him from his property. See id. at 336. The Court stated that the
plaintiff could not avoid the jurisdictional bar of Rooker-Feldman and seek reversal of a state court
judgment simply by styling his claim as a section 1983 civil rights action alleging a due process
vio lation. See id.
Even under the most liberal construction ofMyers' complaint, the Court finds that his claims
all relate to the eviction action. Myers would have no need for relief if the state court had not
awarded Manny Ministry possession, which allowed for Myers' eviction.
To grant Myers reliefin
this case, the Court would need to overturn the state court's ruling that Manna Ministry had the right
to possess the property and evict Myers. As a result, Myers' complaint alleges an injury caused by
a state court judgment. This amounts to an appeal of the state-court judgment. To the extent that
the state court might have committed an error oflaw, Myers' proper remedy was an appeal to the
South Dakota Supreme Court - - not this section 1983 action. This action must be dismissed for lack
of subject matter jurisdiction.
It is not clear whether Myers is asserting any state-law causes of action in his Complaint.
Because no federal claims are sufficiently alleged against any ofthe defendants, and because the Court
lacks subject matter jurisdiction over the federal claims, the Court declines to exercise supplemental
jurisdiction over any potential state law claims. See 28 U.S.C. § 1367(c).
Some ofthe defendants have moved for sanctions against Myers pursuant to Federal Rule of
Civil Procedure 11, arguing that they should be compensated for attorney's fees and costs incurred
in defending this action which they believe is frivolous. Defendants also request an order enjoining
Myers from filing any civil action against them based on the same legal and factual claims that have
already been made arising out of the dispute over the Manna Ministry property.
Under Rule 11 (b)(2), an attorney or unrepresented party presenting a pleading or other paper
certifies "to the best of the person's knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances, . . . the claims, defenses, and other legal contentions are
warranted by existing law or by a nonfrivolous argument for extending, modifYing, or reversing
existing law or for establishing new law[.]" Fed.R.Civ.P. 11 (b)(2). Rule 11 (c) provides that sanctions
may be imposed against a party or attorney where a court finds that Rule 11 (b) has been violated.
Id. at II(c). The primary goal of Rule 11 sanctions is to deter litigant misconduct, "not to
compensate the opposing party for all of its costs in defending." Kirk Capital Corp. v. Bailey, 16
F.3d 1485, 1490 (8th Cir. 1994). A sanction must be "limited to what suffices to deter repetition of
the conduct or comparable conduct by others similarly situated." Fed.R.Civ.P. II (c)(4). Although
a pro se plaintiff is bound by Rule 11, "the court has sufficient discretion to take account of the
special circumstances that often arise in pro se situations." Fed.R.Civ.P. II Advisory Committee
Notes for 1983 Amendment (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972».
This lawsuit is on the very edge ofbeing a frivolous action, particularly when a state court of
competent jurisdiction has already considered and rejected Myers' challenges to Manna Ministry's
ownership ofthe property and where this Court had just remanded the attempted removal by Myers
on May 31, 2012. The case that Myers attempted to remove had the same factual background as the
present case, although other bare claims are made in the present case. Ifa lawyer had presented these
same claims, sanctions would have been entered. This Court, however, is reluctant to impose
sanctions at this time on this pro se plaintiff not learned in the law. The Court warns Myers that filing
future cases in this Court related to ownership of the disputed property or the allegedly wrongful
eviction of Myers therefrom, or anything else related to those facts, will result in sanctions that will
The Court will allow Defendants to recover costs as the prevailing parties pursuant to Federal
Rule ofCivil Procedure 54( d)( 1). Local Rule 54.1 (a) requires a party seeking costs to "file a verified
bill ofcosts within 28 calendar days after entry ofjudgment or an order of dismissal, together with
proofof service on the party liable for costs. n Thus, any Defendant requesting costs must comply
with Local Rule 54.1 (a) within the time specified therein.
IT IS ORDERED:
That the Motion to Dismiss filed by defendants Manna Ministry Center, New Haven,
Bernard Schock, Joel VanEkeren and Brian Eide, doc. 22, and joined by defendants
Cadwell Sanford Deibert and Garry, Steven W. Sanford and Alex M. Hagen, doc. 26,
is granted, and the claims will be dismissed with prejudice.
That the Motion to Dismiss filed by defendants Thomas Wollman, Dennis Johnson,
Jim Schmidt, Dennis Weeldreyer, Dale Long, Jason Melcher and David Gillespie, doc.
33, is granted, and the claims will be dismissed with prejudice.
That the Motion to Dismiss filed by defendants Jensen Insurance & Real Estate and
EMC Insurance Company, doc. 36, is granted, and the claims will be dismissed with
That the Motion to Dismiss filed by defendant Larry Long, doc. 38, is granted, and
the claims will be dismissed with prejudice.
That the Motion for Rule 11 Sanctions filed by defendants Thomas Wollman, Dennis
Johnson, Jim Schmidt, Dennis Weeldreyer, Dale Long, Jason Melcher and David
Gillespie, doc. 42, the Motion for Rule 11 Sanctions filed by defendants Jensen
Insurance & Real Estate and EMC Insurance Company, doc. 44, and the Motion for
Attorney's Fees and Rule 11 Sanctions filed by defendants Manna Ministry Center,
New Haven, Bernard Schock, Joel VanEkeren and Brian Eide, doc. 46, are denied.
That any Defendant seeking costs will file a verified bill of costs in compliance with
Local Rule 54. 1(a).
Dated this 5th day of March, 2013.
BY THE COURT:
(J1wrence L. Piersol
United States District Judge
JOSEPH HAAS, CLERK