Western Thrift and Loan Corp. v. Rucci

Filing 71

AMENDED ORDER. The objections to the 66 REPORT AND RECOMMENDATIONS are sustained and the Court declines to adopt the Report and Recommendation [Docket No. 66 ]. This matter is recommitted to the magistrate judge with instructions to further consider Western Thrift's Motion for Summary Judgment. (Written Opinion) Signed by Judge Joan N. Ericksen on August 21, 2013. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Western Thrift and Loan Corp.,
Plaintiff,
v.

Civil No. 11-3644 (JNE/TNL)
AMENDED ORDER

Sebastian Rucci,
Defendant.
This case is before the Court on a Report and Recommendation issued by the Honorable
Tony N. Leung, United States Magistrate Judge, on July 9, 2013. Plaintiff Western Thrift and
Loan (“Western Thrift”) moved for summary judgment and the magistrate judge recommended
that the motion be denied and that the action be dismissed for failure to comply with Minnesota
Statutes § 544.24 and this Court’s July 31, 2012 Order. Plaintiff objected; Defendant has not
responded. The Court has conducted a de novo review of the record. See D. Minn. LR 72.2(b).
On June 26, 2012, Defendant Sebastian Rucci (“Rucci”) filed a Corrected Motion to
Dismiss for Non-Compliance with Minn. Stat. § 544.42. See ECF No. 35. In this Court’s July
31, 2012 Order, the Court denied Defendant’s motion, finding that Minnesota Statutes § 544.42
applied and that Western Thrift had complied with the statute by filing an application for a
waiver of the expert certification requirement along with its Complaint and rejecting Defendant’s
argument that the affidavit of expert disclosure must be filed 180 days after the Complaint
notwithstanding a pending motion to waive the expert certification requirement. The Court
denied Western Thrift’s waiver application and ordered Western Thrift to serve on Defendant the
affidavit of expert review required under § 544.42, subdiv. 2, cl. (1) within 60 days of the Order
(by September 29, 2012), and to serve the affidavit required under § 544.42, subdiv. 2, cl. (2)
within 180 days of the Order (by January 28, 2013).

1

Western Thrift subsequently filed a Motion for Summary Judgment on January 30, 2013.
See ECF No. 47. The matter was referred to the magistrate judge for a report and
recommendation. Based upon the written submissions, the magistrate judge recommended
dismissal of the action for Western Thrift’s failure to comply with Minn. Stat. § 544.42 and this
Court’s July 31, 2012 Order. The magistrate judge noted that there was nothing in the record,
such as a certificate of service, indicating that Defendant had been served with the expert
affidavits within the timeframe ordered by the Court. Instead, the record contained only the date
upon which the expert swore to the truth of the statements contained in his affidavit. Rucci,
however, never asserted that Western Thrift failed to comply with the timeline imposed by this
Court’s July 31, 2012 Order. Rather, in his opposition to Western Thrift’s Motion for Summary
Judgment, Rucci rehashed his previously unsuccessful arguments that Western Thrift failed to
comply with Minnesota Statutes § 544.42 by failing to serve an affidavit of expert review along
with the Complaint and by failing to serve an affidavit of expert disclosure within 180 days of
the service of the Complaint. The Court had already explicitly rejected those arguments and held
that Western Thrift had 60 and 180 days after entry of the July 31, 2012 Order in which to
comply with the affidavit requirements. See July 31, 2012 Order, at 8 (ECF No. 42). Given that
Rucci never raised the issue as to whether Western Thrift complied with the timeline set forth in
the Court’s July 31 Order, Western Thrift was under no obligation to provide evidence, such as
an affidavit of service, indicating that it had so complied. Moreover, Western Thrift has since
provided the Court with an Affidavit of Service, indicating that it served Rucci with the required
affidavits on September 25, 2012, in compliance with the Court’s Order and Minnesota Statutes
§ 544.42.

2

The Court therefore finds that Western Thrift has complied with Minn. Stat. § 544.42 and
this Court’s July 31, 2012 Order. The objections to the Report and Recommendation are
sustained and the Court declines to adopt the Report and Recommendation [Docket No. 66].
This matter is recommitted to the magistrate judge with instructions to further consider Western
Thrift’s Motion for Summary Judgment.
IT IS SO ORDERED.
Dated: August 21, 2013
s/Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

3