Doran Main, LLC v. North Central States Regional Council of Carpenters et al

Filing 71

ORDER. IT IS HEREBY ORDERED: 1.The Court ADOPTS the Report and Recommendation of United States Magistrate Judge Franklin L. Noel dated June 27, 2013 51 , with the modification that dismissal of Counts 1 and 2 is without prejudice based on lack o f subject matter jurisdiction. 2.Defendant Carpentry Contractors Association's Motion to Dismiss 13 is GRANTED.3.Defendant North Central States Regional Council of Carpenters' Motion to Dismiss the Complaint 18 is GRANTED IN PART and DENIED IN PART. 4.Counts 1 and 2 are DISMISSED WITHOUT PREJUDICE FOR LACK OF SUBJECT MATTER JURISDICTION. 5.Defendant Carpentry Contractors Association is dismissed as a party to this action. (Written Opinion). Signed by Chief Judge Michael J. Davis on 8/26/13. (GRR)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

DORAN MAIN, LLC,
Plaintiff,

v.

ORDER
Civil File No. 13-211 (MJD/FLN)

NORTH CENTRAL STATES REGIONAL
COUNCIL OF CARPENTERS and
CARPENTRY CONTRACTORS
ASSOCIATION,
Defendants.
Anthony De Sam Lazaro, David J. Goldstein, and Marko J. Mrkonich, Littler
Mendelson, P.C., Counsel for Plaintiff.
Brendan D. Cummins and Justin D. Cummins, Cummins & Cummins, PLLP,
Counsel for Defendant North Central States Regional Council of Carpenters.
David L. Hashmall and Michael G. McNally, Felhaber Larson Fenlon & Vogt, PA,
Counsel for Defendant Carpentry Contractors Association.
The above-entitled matter comes before the Court upon the Report and
Recommendation of United States Magistrate Judge Franklin L. Noel dated June
27, 2013. Plaintiff filed objections to the Report and Recommendation.

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Pursuant to statute, the Court has conducted a de novo review upon the
record. 28 U.S.C. § 636(b)(1); Local Rule 72.2(b). Based upon that review, the
Court ADOPTS the Report and Recommendation of United States Magistrate
Judge Noel dated June 27, 2013, with the modification that dismissal of Counts 1
and 2 of the Complaint are dismissed without prejudice. See, e.g., County of
Mille Lacs v. Benjamin, 361 F.3d 460, 464 (8th Cir. 2004) (“A district court is
generally barred from dismissing a case with prejudice if it concludes subject
matter jurisdiction is absent.”). This dismissal does not adjudicate the merits of
the claims asserted in Counts 1 and 2, but it does adjudicate the Court’s
jurisdiction. See Sandy Lake Band of Miss. Chippewa v. United States, 714 F.3d
1098, 1103-04 (8th Cir. 2013).
Accordingly, based upon the files, records, and proceedings herein, IT IS
HEREBY ORDERED:
1. The Court ADOPTS the Report and Recommendation of United States
Magistrate Judge Franklin L. Noel dated June 27, 2013 [Docket No. 51],
with the modification that dismissal of Counts 1 and 2 is without
prejudice based on lack of subject matter jurisdiction.
2. Defendant Carpentry Contractors Association’s Motion to
Dismiss [Docket No. 13] is GRANTED.

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3. Defendant North Central States Regional Council of Carpenters’
Motion to Dismiss the Complaint [Docket No. 18] is GRANTED
IN PART and DENIED IN PART.
4. Counts 1 and 2 are DISMISSED WITHOUT PREJUDICE FOR
LACK OF SUBJECT MATTER JURISDICTION.
5. Defendant Carpentry Contractors Association is dismissed as a
party to this action.

Dated: August 26, 2013

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

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