Mashak et al v. State of Minnesota et al

Filing 69

ORDER denying plaintiffs' 27 Motion for Leave of First National Repossessors, Inc. to Proceed Wihout an Attorney; adopting 44 Report and Recommendation. Plaintiff First National Repossessors, Inc. is dismissed from the case (Written Opinion). Signed by Judge John R. Tunheim on June 16, 2011. (DML)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
DON MASHAK and FIRST NATIONAL
REPOSSESSORS, INC.,

Civil No. 11-473 (JRT/JSM)

Plaintiff,
v.
STATE OF MINNESOTA, MINNESOTA
SUPREME COURT, MARY YUNKER,
TIMOTHY R. BLOOMQUIST, DIANA
LONGRIE, LEE WOLFGRAM,
DANNETTE MEEKS-HULL, MICHAEL
HULL, JOHN DOE, and JANE DOE,

ORDER ADOPTING REPORT AND
RECOMMENDATION OF
MAGISTRATE JUDGE

Defendants.

Don Mashak, PO Box 231, Albertville, MN 55301, pro se.
First National Repossessors, Inc., 950 Highway 10 Number 4, Elk River,
MN 55330, unrepresented.
John S. Garry, Assistant Attorney General, MINNESOTA ATTORNEY
GENERAL’S OFFICE, 445 Minnesota Street, Suite 1100, St. Paul, MN
55101-2128, for defendants State of Minnesota, Minnesota Supreme Court,
Mary Yunker, Timothy R. Bloomquist,
Lee R. Wolfgram, THE WOLFGRAM LAW FIRM, LTD., 100 North
Sixth Street, Suite 445A, Minneapolis, MN 55403 for defendant Lee
Wolfgram.
Plaintiffs Don Mashak and First National Repossessors, Inc. (“First National”)
object to the Report and Recommendation (“R&R”) of Magistrate Judge Janie S.
Mayeron recommending the Court deny First National’s request to proceed without

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counsel. The Court has conducted a de novo review of those portions of the R&R to
which plaintiffs object.

See 28 U.S.C. § 636(b)(1)(C); D. Minn. L.R. 72.2(b).

Furthermore, the Court has given the pleadings a liberal reading to account for Mashak’s
lack of legal training. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). However, since
the pleadings must still allege sufficient facts to meet the standards for the claims
involved, Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004), the Court overrules the
objections, adopts the R&R, and denies plaintiff First National’s request to proceed
unrepresented.
After Mashak and First National filed their complaint unrepresented, the Court
ordered First National to obtain representation within thirty days. See Rowland v. Cal.
Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 201-02 (1993) (“It has
been the law for the better part of two centuries, for example, that a corporation may
appear in the federal courts only through licensed counsel.”). Mashak argues that he has
suffered from ill health and has had trouble obtaining representation for First National, of
which he is the sole shareholder. Furthermore, he objects that the cost of obtaining such
counsel is prohibitive. He requests reconsideration of the requirement or fourteen days to
obtain counsel.
However, the Supreme Court’s decision in Rowland expressly disavowed a court
imputing human conditions to corporations for the sake of in forma pauperis status,
including the right to proceed unrepresented. Id. at 203 (“Poverty, in its primary sense, is
a human condition . . . . But artificial entities do not fit this description. Whatever the
state of its treasury, an association or corporation cannot be said to [possess such a human
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condition].” (citations omitted)). Therefore, Mashak’s health issues also are not properly
imputed to First National.
Despite being the sole shareholder, Mashak and First National are not one and the
same since “incorporation’s basic purpose is to create a distinct legal entity . . . .” Cedric
Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001).

Additionally, the

Supreme Court in Rowland rejected the one case it was aware of where a court permitted
a corporation to proceed unrepresented. 506 U.S. at 203 n.5 (citing In re Holliday’s Tax
Services, Inc., 417 F. Supp. 182 (E.D.N.Y. 1976)). Finally, since over three months have
passed since the Court first advised First National to obtain representation, the Court is
not persuaded that fourteen additional days to do so are appropriate. The Court thus
overrules the objections, adopts the R&R, and dismisses First National from the case.

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, the
Court OVERRULES plaintiff Don Mashak and First National Repossessors, Inc.’s
objections [Docket No. 54] and ADOPTS the Report and Recommendation of the
Magistrate Judge dated May 4, 2011 [Docket No. 44].
Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ Motion for Leave of
First National Repossessors, Inc. to Proceed Without an Attorney [Docket No. 27] is
DENIED. First National Repossessors, Inc. is DISMISSED from the case.

DATED: June 16, 2011
at Minneapolis, Minnesota.

____s/
____
JOHN R. TUNHEIM
United States District Judge
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