J.S. et al v. Roberts et al

Filing 38

MEMORANDUM OF LAW & ORDER. IT IS HEREBY ORDERED that Plaintiffs' Motion to Reconsider 34 is DENIED.(Written Opinion). Signed by Chief Judge Michael J. Davis on 3/22/12. (GRR)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

J.S., K.S., C.S., and J.S., Minors via
Guardian and Parent SCOTT SELMER,
Plaintiffs,
MEMORANDUM OF LAW & ORDER
Civil No. 11-1537 (MJD/TNL)

v.

SAINT PAUL ACADEMY AND SUMMIT
SCHOOL, BRYN ROBERTS, CHARLES
ZELLE, JILL ROMANS, CYNTHIA
RICHTER, TIMOTHY ELCHERT, ANNE
FIEDLER, JUDY JOHNSON, DAVE
THOMFORD, THOMAS HERBERT, and
PAUL APPLEBAUM,
Defendants.

Scott Selmer, Conner McAlister Selmer, LLC, Counsel for Plaintiffs.
Ann Huntrods and Michael C. Wilhelm, Briggs & Morgan, P.A., Counsel for
Defendants.

I.

Introduction
This matter is before the court on Plaintiff Scott Selmer’s Motion to

Reconsider. [Docket No. 34.] For the following reasons, the Court will deny the
motion.
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II.

Background
This action arises out of events detailed in the Court’s February 22, 2012

Memorandum of Law & Order (“February 22 Order”). [Docket No. 32.] Because
Selmer now argues that the Court should reconsider its dismissal of his
complaint, a review of the procedural history leading to that order is instructive.
Using the Court’s electronic filing system (“CM/ECF”)—a system in which
Selmer is a registered attorney—Defendants filed their Motion to Dismiss on
November 23, 2011. [Docket No. 18.] Following this Court’s procedures,
Defendants concurrently filed a Notice of Hearing on Motion with a date and
briefing schedule to be determined. [Docket No. 19.] After consultation with
this Court’s staff, Defendants filed an Amended Notice of Hearing on Motion on
December 22, 2011. [Docket No. 24.] That notice set a hearing for April 6, 2012
and further stated:
Pursuant to the Court's custom briefing schedule, Plaintiffs’
memorandum of law in opposition to this motion to dismiss shall be
filed on or before Thursday, January 12, 2012, and the SPA
Defendants’ reply memorandum of law in support of this motion to
dismiss shall be filed on or before Thursday, January 19, 2012.
The receipt generated by the Court’s CM/ECF system indicates that Selmer
received this notice, and Selmer does not argue to the contrary.

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Selmer did not file an opposition to Defendants’ Motion to Dismiss. By his
own admission, this Court contacted Selmer on January 17, 2012, alerting him of
his failure to meet the January 12, 2012 deadline. On January 19, 2012,
Defendants’ filed a “Reply,” requesting that the Court consider their motion
without oral argument pursuant to Local Rule 7.1(e). [Docket No. 31.] As above,
the CM/ECF system indicates that Selmer received notice of Defendants’ Reply
and, again, Selmer does not allege otherwise.
More than one month after Defendants filed their Reply, the Court issued
its ten-page February 22 Order. As the Court explained, because Selmer failed to
submit an opposition to Defendants’ Motion to Dismiss, the Court considered the
motion submitted without oral argument under Local Rule 7.1(e). Considering
the merits of Defendants’ motion, the Court concluded that Selmer’s complaint
failed to state a claim upon which relief could be granted. The Court therefore
granted Defendants’ Motion to Dismiss under Rule 12(b)(6).
Two weeks after the Court issued the February 22 Order, and nearly two
months after the deadline for Selmer’s opposition, Selmer filed the instant
Motion to Reconsider. [Docket No. 34.] Selmer has never filed an opposition to

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Defendants’ Motion to Dismiss, amended his complaint, or requested a
continuance or extension in this matter.
III.

Discussion
The Local Rules provide that a motion to reconsider may be filed only with

the Court's express permission, and then, only “upon a showing of compelling
circumstances.” L.R. 7.1(g). The Court’s decision on a motion for
reconsideration rests within its discretion. Hagerman v. Yukon Energy Corp.,
839 F.2d 407, 413 (8th Cir. 1988). “Motions for reconsideration serve a limited
function: to correct manifest errors of law or fact or to present newly discovered
evidence.” Id. at 414 (citation omitted). The Court notes that Selmer did not seek
or obtain permission before he filed his Motion to Reconsider. Moreover, the
Court concludes that the February 22 Order contains no manifest errors.
Selmer has not alleged that he failed to receive the December 22, 2011
Amended Notice of Hearing on Motion, which clearly explained when his
opposition was due, or the Defendants’ Reply, which noted his failure to file an
opposition by the deadline. He further admits that he was contacted by the
Court’s staff, who further alerted him of his failure to meet the relevant
deadlines. He asserts that, while he is admitted to practice before this Court, he

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is “not experienced in federal court practice” and that his failure to file
responsive documents was not intentional. He argues that the Court’s decision
to dismiss his claims with prejudice was therefore overly harsh.
In support of his motion, Selmer references cases relating to dismissals
granted pursuant to Federal Rule of Civil Procedure 41(b), which provides:
If the plaintiff fails to prosecute or to comply with these rules or a
court order, a defendant may move to dismiss the action or any
claim against it. Unless the dismissal order states otherwise, a
dismissal under this subdivision (b) and any dismissal not under
this rule--except one for lack of jurisdiction, improper venue, or
failure to join a party under Rule 19--operates as an adjudication on
the merits.
Rule 41(b) provides a sanction against plaintiffs who fail to prosecute their
claims. It allows a Court to dismiss an action or claim, without reference to the
substantive merits of the case. Without deciding whether a Rule 41(b) dismissal
might also have been warranted in this case, the Court notes that neither the
Defendants’ Motion to Dismiss nor the Court’s February 22, 2012 Order relied on
Rule 41(b). The Court’s ruling was instead based on the merits of Defendants’
arguments under Rule 12(b)(6) and the substance of Selmer’s complaint.
In short, the Court did not dismiss Selmer’s complaint, as Selmer states,
“because [he] failed to timely file responsive documents.” The Court’s only

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decision based on Selmer’s failure to file an opposition was its decision to
consider the case submitted without oral argument. That decision was made
pursuant to Local Rule 7.1(e), which provides:
In the event a party fails to timely deliver and serve a memorandum
of law, the Court may strike the hearing from its motion calendar,
continue the hearing, refuse to permit oral argument by the party
not filing the required statement, consider the matter submitted
without oral argument, allow reasonable attorney’s fees, or proceed
in such other manner as the Court deems appropriate.
Because the Court dismissed Selmer’s complaint due to a failure to state a claim
upon which relief could be granted, not due to Selmer’s failure to prosecute his
case, Selmer’s references to cases related to Rule 41(b) dismissal are inapposite.
Selmer further argues that the Court should not have granted Defendants’
Motion to Dismiss without allowing for discovery. As the Eighth Circuit has
explained, however, “[d]iscovery should follow the filing of a well-pleaded
complaint. It is not a device to enable a plaintiff to make a case when his
complaint has failed to state a claim.” Kaylor v. Fields, 661 F.2d 1177, 1184 (8th
Cir. 1981) (emphasis added). Where all of the allegations contained in a
complaint are “disposed of on legal grounds,” discovery is “not necessary.” Id.
The facts and procedure relevant to the disposition of Selmer’s Motion to
Reconsider can be summarized as follows: Selmer is an attorney admitted to
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practice in this Court. Clear deadlines were set in this case. At each step, Selmer
was notified of those deadlines. The deadlines expired without any response
from Selmer. After the deadlines expired and in light of Selmer’s failure to
respond, the Court concluded that a hearing was not required. Finally, after a
thorough examination of Selmer’s complaint, the Court granted Defendants’
Motion to Dismiss. Only after the deadlines had expired and the Court had
ruled did Selmer challenge Defendants’ Motion to Dismiss through his Motion to
Reconsider. Because Selmer has shown neither the requisite compelling
circumstances nor a manifest error of law or fact in the February 22 Order, his
Motion to Reconsider cannot succeed.

Accordingly, based on the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Plaintiffs’ Motion to Reconsider [Docket No. 34] is
DENIED.

Dated: March 22, 2012

s/ Michael J. Davis
Michael J. Davis
Chief Judge
United States District Court

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