Thornes v. City of Waldorf et al

Filing 47

MEMORANDUM OPINION AND ORDER granting defendants' 34 Motion for Judgment on the Pleadings (Written Opinion). Signed by Judge John R. Tunheim on September 29, 2014. (DML)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
GEOFFORY O. THORNES,

Civil No. 13- 546 (JRT/LIB)
Plaintiff,

v.
CITY OF WALDORF, ROBERT S.
VOGELSANG, ALAN K. FLEMMING,
KEVIN R. LINES, FRED D. GRUHLKE,
THOMAS J. TRAYNOR, SR., GARY
BURMEISTER, BRUCE URBATCH,
JUDITH M. KOHOUT, and CURTIS C.
COLLINS,

MEMORANDUM OPINION AND
ORDER GRANTING MOTION
FOR JUDGMENT ON THE
PLEADINGS

Defendants.
Geoffory O. Thornes, 121 Railroad Street, Post Office Box 418, St. Clair,
MN 56080, pro se.
Andrea B. Smith and Paul D. Reuvers, IVERSON REUVERS CONDON,
9321 Ensign Avenue South, Bloomington, MN 55438, for defendants.

In 2010, Plaintiff Geoffory O. Thornes acquired the J.A. Tyrholm Building in
downtown Waldorf, Minnesota. Part of the roof had collapsed, but Thornes intended to
make the necessary repairs and ultimately preserve it as a historical building. The City of
Waldorf (“the City”), however, was concerned about the building’s structural problems
and the dangers they posed to pedestrians. In January 2011, the City gave Thornes until
July 1, 2011 to make all of the necessary repairs. This was the beginning of several years
of back and forth between Thornes and the City, which ultimately led the City to pass a
resolution for the demolition of the building and to seek an order from a Minnesota state

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district court to enforce the resolution.

In the midst of the state court proceeding,

Thornes brought this action against the City and various individual city officials
(collectively, “Defendants”), in which he alleges, among other things, that Defendants
violated his Fourth and Fifth Amendment rights. Defendants move for judgment on the
pleadings, arguing that Thornes’ claims are barred by res judicata and collateral estoppel
because the state court already determined that the building was hazardous and
authorized the City to demolish it. The Court concludes that res judicata bars Thornes’
claims because he could have fully and fairly litigated them in the state court proceeding.
The Court will therefore dismiss the action with prejudice.

BACKGROUND

Plaintiff Geoffory O. Thornes purchased the “Historic J.A. Tyrholm Building”
(the “Tyrholm Building”) in downtown Waldorf on November 9, 2010 for one dollar.
(Am. Compl. ¶ 3, Aug. 14, 2013, Docket No. 31.) The building was substantially
damaged when Thornes bought the property: “the gable roof section had fallen onto the
loft floor due to weak trusses and heavy snow load.” (Id. ¶ 2.)

I.

ONGOING DISPUTE WITH CITY COUNCIL
On January 11, 2011, the City sent Thornes a letter stating that the City Council

voted at its January 10, 2011 meeting that Thornes had until July 1, 2011 to have the
“building completely repaired so as not to cause any safety issues for the residents of the
community if they wish to walk by.” (Id., Ex. C.) The letter also stated that the City
Council wanted to “view the building and have you explain what exactly it is you are

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planning to do and the timeframe you are looking at.” (Id., Ex. C.) Thornes replied to
the City Clerk, Defendant Judith Kohout, in a letter dated February 10, 2011. (Id.,
Ex. E.) He explained the precautions he had taken to keep pedestrians safe, and that
because the “roof, thankfully, has collapsed inward . . . to my knowledge, no exterior
walls are tending outward in direction and should pose no danger to the public.” (Id.,
Ex. E (emphasis in original).) He also stated that “[o]f course, July 1, 2011 is quite
unreasonable as a goal to have this building ‘completely repaired’ depending on what that
means,” and that “[t]o date, I have no clear target date for completion of the new roof.”
(Id., Ex. E.)
Meanwhile, Thornes declared a historical restoration of the building and
underwent efforts to develop community support, ideas, and funding for the project. (Id.
¶ 7-8.) This involved posting a notice on four bulletin boards along Main Street in
Waldorf, which Thornes alleges that the City Clerk has admitted to removing soon after
he posted them. (Id. ¶ 8.) He also placed an “Idea/Guest Book” in the City library,
which he alleges the City Clerk removed and has not returned. (Id.)
On June 16, 2011, the City sent a letter requesting an update on repair efforts. (Id.
Ex. H.)

The letter summarized Thornes’ and the City Council’s past interactions

regarding the building going back to October 2010, when the City Council inquired about
a timeframe and contractors for repairs, which the letter asserted Thornes had still not
supplied to the Council. (Id., Ex. H.) The letter stated that at the June 13, 2011 Council
meeting, Thornes was “asked again to come back to our next meeting on July 11, 2011
and be prepared with a timetable or status reports on your progress” and reiterated the
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Council’s request “to know how many hours you anticipate putting in this summer.” (Id.,
Ex. H.)

On July 11, 2011 – after the City’s proposed July 1 deadline – Thornes

responded to the City’s June 16 letter.

(Id., Ex. I.)

He requested copies of all

conversations the City claimed to have had with him and asserted his right to know if he
was being recorded at City Council meetings. (Id., Ex. I.) He also stated that the City
Clerk had informed him that she had taken down fliers he had posted about the building
and questioned the propriety of that, observing also that “[t]he intimidating nature of
some questions and comments at the June meeting did not allow for an explanation.”
(Id., Ex. I (emphasis in original).) He also provided a “status report,” suggesting that he
would not be hiring contractors because of the cost and instead would do the repairs
himself, but that progress was slower than anticipated because of his job “situation” and
because his son was not helping him over the summer as he anticipated. (Id., Ex. I.)
Thornes alleges that, “throughout the spring and summer months of 2011,” he
“performed substantial restoration and cleanup work” on the building, including a “major
improvement [which] was to shore up and brace the upper storefront wall, thereby
alleviating any public safety issues for the residents of the community.” (Id. ¶ 13.) He
also alleges that he “re-claimed approximately 16,000 lbs. . . . of quality lumber during
the warmer months of 2010 and 2011 from dismantled buildings,” and that he stacked the
lumber in three locations within the building for future restoration work. (Id. ¶ 14.)
On March 5, 2012 the City sent Thornes a letter informing him that, “pursuant to
Minn. Stat. § 463.15, the Waldorf City Council intends to discuss at its City Council
meeting on April 9, 2012 . . . the hazardous and substandard nature of your building . . . .
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The ultimate passage of a resolution ordering you to make specific repairs to your
property will be discussed.” (Id., Ex. L.) The letter warned that “[i]f such repairs [we]re
not made, the City of Waldorf w[ould] seek a court order to demolish and raze the
structure.” (Id., Ex. L.) The City sent Thornes another letter on March 20, 2012, inviting
Thornes to a “Public Hearing regarding the building you own in Waldorf” on April 9,
2012, which would be “to discuss the options the City has, based on Minnesota Statutes,
to deal with the hazardous conditions of your building and the fact that it has been
without a roof since the Winter of 2009/2010.” (Id., Ex. M.) The letter further stated that
“[w]e have discussed this situation, in person and in writing, with you on numerous
occasions and nothing much has been accomplished” and that the “Council will make a
decision” at the April 9, 2012 meeting and that “[a] resolution regarding their decision
will be voted on at that time.” (Id., Ex. M.)
Thornes responded to the City’s letters on April 4, 2012, stating that, until he
received the March letters, he “had assumed work completed thus far was adequate,”
again raising issues about the recording of City Council meetings, and asserting that
“[t]here is no basis for the April 9, 2012 ‘Public Hearing’” and listing several reasons.
(Id., Ex. N.) His reasons centered around both his assertions about the structural integrity
of the building’s roof and the historic nature of the building and community support for
preserving it for historic purposes. (See id., Ex. N.) Finally, he asked that the City
“[p]lease immediately advise the Council to CANCEL the April 9th ‘Public Hearing’
as it does not conform to Minnesota statute and is a private property issue of harassment.”
(Id., Ex. N (emphasis in original).)
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The City nevertheless proceeded with the public hearing on April 9 during which
it adopted Resolution Number 81 (“Resolution 81”), in which the City Council declared
the building “to be a hazardous building.” (Id., Ex. P.) The resolution listed nine reasons
for the designation as hazardous, including (1) the lack of roof, (2) the boarded up front
of the building, (3) black mold in the interior, (4) the fact that progress toward restoration
had been “mostly cosmetic rather than structural,” (5) the danger the building posed to
children, (6) the fact that Thornes had been given two deadlines, (7) the fact that the
windows lacked glass, (8) lumber and debris inside the building, (9) the possibility of
rodents in the vacant building. (Id., Ex. P.) The resolution also stated that “a motion for
summary enforcement of the order will be made to the District Court of Waseca County.”
(Id., Ex. P.) Thornes was present for this meeting and alleges that he “repeatedly
defended himself and his private property.” (Id. ¶ 19 (emphasis in original).)
On May 18, 2012, the City sent a letter to Thornes indicating its desire to purchase
the building and offering $5,000, which the City believed was “a generous offer based on
the property’s recently assessed value.” (Id., Ex. Q.) Thornes declined the offer in a
letter dated May 24, 2012. (Id., Ex. R.) In his decline letter he characterized the City’s
offer as “simply another ‘policy or procedure’ you . . . have to attempt to deprive myself
of my Constitutional rights as a property owner” and listed corrections to Resolution 81.
(Id., Ex. R.)
On October 16, 2012, the City sent Thornes a letter advising him that the City had
retained Defendant Fred Gruhlke, a licensed building official, to complete an assessment
of the building. (Id., Ex. T.) The letter explained that, after receiving Gruhlke’s report,
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the City Council approved Resolution Number 2012-84 (“Resolution 84”), which
declared the property hazardous pursuant to Minn. Stat. §§ 463.15 and 463.261,1 ordered
Thornes to make a list of repairs within 45 days, and advised Thornes that if he failed to
make the repairs the City would move for an enforcement order from the district court.
(Id., Ex. U.)

The letter included a notice of an appeal process: “You may appeal this

Order by requesting a hearing before the City Council provided you make the appeal
within ten (10) days of receipt of this Order.” (Id., Ex. T (emphasis in original).)
Enclosed with the letter was a full copy of Resolution 84 and Gruhlke’s assessment
documents. (Id., Exs. U, V, and W.) Gruhlke’s assessment stated that he inspected the
property on September 13, 2012. (Id., Ex. W.) Thornes did not appeal pursuant to the
process outlined in the City’s notice, but on November 26, 2012, sent a letter outlining a
settlement offer to the City seeking $80,000. (Id. ¶ 29-31; id., Ex. Z.) The letter stated
that if the proposed settlement was not accepted, he would file an action in federal court.
(Id., Ex. Z.) The City did not respond. (Id. ¶ 30.)

1

Minn. Stat. § 463.15 is the definition section for chapter 463 of the Minnesota Statutes
regarding Line Easements and Hazardous or Substandard Buildings and includes a definition for
“[h]azardous building or hazardous property.” See Minn. Stat. ch. 463. Minn. Stat. § 463.16
authorizes “[t]he governing body of any municipality [to] order the owner of any hazardous
building or property within the municipality to correct or remove the hazardous condition of the
building or property or to raze or remove the building.” Minn. Stat. § 463.16; see also City of
Barnum v. Sabri, 657 N.W.2d 201, 206 (Minn. Ct. App. 2003) (“Minnesota’s hazardous-building
statute . . . authorizes the destruction of private property without compensation when a property
owner fails to take steps to make needed repairs.” (citing Minn. Stat. §§ 463.15–.261; Village of
Zumbrota v. Johnson, 161 N.W.2d 626 (1968); Ukkonen v. City of Minneapolis, 160 N.W.2d 249
(1968))).

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II.

PROCEEDINGS IN WASECA COUNTY DISTRICT COURT (“WASECA
COUNTY ACTION”)
On February 7, 2013, the City filed a motion with the Waseca County District

Court to enforce its order, of which Thornes received notice. (Id. ¶ 31; see also id.,
Ex. CC at 26.)2 Letters dated February 19 and 20, 2013 further gave notice of a hearing
on a Motion for Summary Enforcement scheduled for March 8, 2013. (Id. ¶ 33; id.,
Ex. CC at 23-25.) In the Motion for Summary Enforcement, the City alleged that it had
adopted Resolution 84 finding the Tyrholm Building to be hazardous and that, although it
had given Thornes forty-five days to make appropriate repairs, the City was now
authorized to either “compel compliance with [the order] or to raze said hazardous
building pursuant to Minn. Stat. §§ 463.15, 463.16, 463.152 and 463.261.” (Id., Ex. DD
at 28.) The motion sought a judgment against Thornes and, among other things, an order
enforcing Resolution 84 “authorizing the City of Waldorf to raze the hazardous building
described in said Resolution.” (Id., Ex. DD at 28.)
On March 7, 2013 – the day before the scheduled hearing in Waseca County
District Court – Thornes filed the instant action in federal court against the City and
various individual defendants, including the former and current Mayors, City Council
members, and the City Clerk. (Compl., March 7, 2013, Docket No. 1.) The complaint
included allegations that the City and individual defendants violated his rights under the
Fourth and Fifth Amendments of the U.S. Constitution, conspiracy under 42 U.S.C.
§ 1985, and conversion. (Id.) The Waseca County hearing proceeded on March 8, 2013,
2

Unless otherwise noted, all page citations refer to CMECF pagination.

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which Thornes attended. (See Ex., 2B (Waseca County District Court Am. Findings of
Fact and Order for Summ. J.) at 10, Dec. 9, 2013, Docket No. 43; Reply, Ex. 1 (Waseca
County District Court Am. Findings of Fact and Order for Summ. J.) at 1, Dec. 11, 2013,
Docket No. 44.)3 At the hearing, Thornes informed the court of his recently filed federal
action and asked about delaying the state court proceedings based on his filing in federal
court. (State Court Findings and Order ¶¶ 2-3.) The court, finding that Thornes did not
provide any legal basis for delaying the state court hearing, did not do so and instead
stated that it retained jurisdiction over the matter. (Id. ¶¶ 4-5.) At the hearing, the City
called two witnesses: the City Clerk and the building inspector, and Thornes crossexamined both witnesses. (Id. ¶ 18.) Thornes called one witness: Alan Flemming, then
Mayor of the City. (Id.)
On April 4, 2013, the Waseca County District Court issued an Amended Findings
of Fact and Order for Summary Judgment, declaring the building to be hazardous and
ordering the City to enforce Resolution 84 and “remove and raze the hazardous building
as the Resolution details with full authority of this Court.” (State Court Findings and
3

Thornes attached the first page of the Amended Findings of Fact and Order for
Summary Judgment in the Waseca County District Court action as Exhibit 2B to Docket No. 43
and the entire document is included as Exhibit 1 to Defendants’ Reply. Although the Court
considers this motion under Federal Rule of Civil Procedure 12(c) on the pleadings, the Court
properly considers this and other filings from the Waseca County action both because they are
“‘necessarily embraced by the complaint,’” Cobb v. PayLease LLC, --- F. Supp. 2d ---, 2014 WL
3611800, at *1 n.2 (D. Minn. July 22, 2014) (quoting Enervations, Inc. v. Minn. Mining & Mfg.
Co., 380 F.3d 1066, 1069 (8th Cir. 2004)), and because they are a matter of public record, see
Noble Sys. Corp. v. Alorica Cent., LLC, 543 F.3d 978, 982 (8th Cir. 2008) (“When ruling on a
motion to dismiss under Rules 12(b)(6) or 12(c), a district court generally may not consider
materials outside the pleadings,” but “[i]t may, however, consider some public records . . . .”
(internal citations omitted)). The Court will refer to the document as “State Court Findings and
Order,” and use the ECF pagination found in Exhibit 1 to Defendants’ Reply.

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Order at 6-7.) The court observed that the City Clerk had “described how the City
Council had numerous council meetings and contact with [Thornes] over the years in an
attempt to address the conditions on [Thornes]’s property,” and that the building
inspector “testified that he was able to conduct his inspection without going on
[Thornes]’s property.” (Id. ¶¶ 20, 23.) The Mayor testified that “the City Council voted
on the Resolution based on the Report of Gruhlke and based on information gathered at
several meetings of the City Council over multiple years.” (Id. ¶ 26.)
Also on April 4, 2013, the Waseca County District Court received a request from
Thornes for permission to file a Motion for Reconsideration. (See Reply, Ex. 2 at 1.)
The court denied Thornes’ request on the basis that “motions to reconsider are prohibited
except by express permission of the court” which will be granted “only upon a showing
that intervening legal developments have occurred” or “where the earlier decision is
shown to be palpably wrong in some respect.” (Id. (internal quotation marks omitted).)
The court determined that Thornes had failed to demonstrate either circumstance and
denied Thornes’ request. (Id. at 2-3.) Thornes did not seek to appeal the Waseca County
District Court’s order for summary enforcement. In June 2013 the Tyrholm Building was
razed, as authorized by the Waseca County District Court Order. (Am. Compl. ¶¶ 37-42.)

III.

THIS ACTION
On August 14, 2013, Thornes filed an amended complaint in this action. (See

generally id.) The Amended Complaint, although not a model of clarity, includes three

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general categories of claims. (See id. at 14-18.) 4 First, under the header of “General,”
Thornes alleges, seemingly under 42 U.S.C. § 1983, that Defendants violated Thornes’
Fourth and Fifth Amendment rights by conducting unauthorized inspections of his
property and seizing and demolishing his property with deliberate indifference to and
reckless disregard of his constitutional rights. (Id. at 14-15.) Second, under the header of
“Conspiratory,” Thornes alleges that “Defendants acted in concert per 42 U.S.C. § 1985
to make overtly false statements in their reports to justify demolition and removal of [his]
private property,” and “acted unreasonably and in concert to plan for, trespass on, and
eventually, remove and destroy all of Plaintiff’s property from his land.” (Id. at 15.)
Third, under the header of “Conversion,” Thornes alleges that Defendants “acted
intentionally and in reckless disregard for the rights of Plaintiff, in the exercise of
attempting dominion or control over [his] personal property,” and that “[t]hese
unreasonable acts seriously interfered with [his] rights as a property owner in the state of
Minnesota to enjoy and/or control his private property.” (Id. at 15-16.) Thornes alleges
that these violations caused him a variety of damages, including, among other things, loss
of standing, “lost opportunities to raise community support for the ‘Tyrholm Building’
restoration project,” “lost opportunities to earn income near his primary residence” and
being forced “to move away from family and obtain secondary residence and
employment in South Dakota,” “trauma, humiliation, pain, suffering, ridicule, mental
distress, mental anguish, and defamation of character,” loss of “the respect and affection
4

The Amended Complaint also adds one individual defendant, Curtis C. Collins, a

City Council member. (Am. Compl. 3.)

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of his family,” and lost property. (Id. at 16-17.) He seeks $2 million as a result of these
damages. (Id. at 18.)
Defendants answered the amended complaint, and have now moved for judgment
on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Mot. for J. on
Pleadings, Nov. 13, 2013, Docket No. 34; Answer, Aug. 21, 2013, Docket No. 33.) First,
they argue that Thornes’ claims are barred by res judicata because the Waseca County
District Court judgment was a final judgment on the merits and Thornes did not pursue
any appeal, was based on proper jurisdiction, and involved the same parties and same
claims as this action. (Mem. in Supp. of Mot. for J. on Pleadings at 7, Nov. 13, 2013,
Docket No. 36.) They argue in the alternative that his claims are precluded by collateral
estoppel. (Id. at 8-9.) Second, Defendants argue that they are entitled to various forms of
immunity: quasi-judicial immunity for all defendants, absolute immunity for the elected
officials, and qualified immunity for individual defendants. (Id. at 9-10.) Finally, they
argue that Thornes’ state law conversion claim is not actionable and barred by statutory
immunity. (Id. at 12.) In his response, Thornes first notes that Defendants have failed to
respond to several of his discovery requests. (Mem. in Opp’n to Mot. for J. on Pleadings
at 2, Dec. 9, 2013, Docket No. 40.) He appears to argue, presumably in response to
Defendants’ res judicata argument, that the Waseca County action is not complete
because he raised fraud claims in his motion for reconsideration that went unaddressed
and there is “no Statute of Limitation concerning fraud.” (Id. at 4.) Also in response to
Defendants’ res judicata argument, Thornes argues that at least one element is not met
because the causes of action in the two cases are not the same because he is raising
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constitutional claims that were not present in the Waseca County action. (Id. at 5.)
Finally, he also makes several responses to Defendants’ immunity and conversion
arguments. (Id. at 6-7.)

ANALYSIS
I.

STANDARD OF REVIEW
Reviewing a motion for judgment on the pleadings pursuant to Rule 12(c) of the

Federal Rules of Civil Procedure, the Court applies the same standard as under a motion
to dismiss pursuant to Rule 12(b)(6). Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir.
2009). Therefore, when considering a motion for judgment on the pleadings under
Rule 12(c), the Court is required to “‘accept as true all factual allegations set out in the
complaint’ and to ‘construe the complaint in the light most favorable to the [plaintiff],
drawing all inferences in [the plaintiff’s] favor.’” Ashley Cnty., Ark. v. Pfizer, Inc., 552
F.3d 659, 665 (8th Cir. 2009) (quoting Wishnatsky v. Rovner, 433 F.3d 608, 610 (8th Cir.
2006)). Although a complaint need not contain “detailed factual allegations,” it must
contain sufficient factual allegations “to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

In addition to the

pleadings, the Court may properly consider materials that are necessarily embraced by
the pleadings. Enervations, Inc. v. Minn. Mining & Mfg. Co., 380 F.3d 1066, 1069
(8th Cir. 2004).

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II.

RES JUDICATA
In ascertaining the preclusive effect of a judgment, “[t]he law of the forum that

rendered the first judgment controls the res judicata analysis.” St. Jude Med. S. C., Inc. v.
Cormier, 745 F.3d 325, 327 (8th Cir. 2014) (internal quotation marks omitted); see also
Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984) (“[A] federal court
must give to a state-court judgment the same preclusive effect as would be given that
judgment under the law of the State in which the judgment was rendered.”). Here,
because the preclusive effect of a Minnesota state court judgment is at issue, the Court
applies Minnesota law to the res judicata question.
Under Minnesota law, res judicata operates to bar subsequent litigation when
“(1) the earlier claim involved the same set of factual circumstances; (2) the earlier claim
involved the same parties or their privies; (3) there was a final judgment on the merits;
[and] (4) the estopped party had a full and fair opportunity to litigate the matter.” Minch
Family LLLP v. Buffalo–Red River Watershed Dist., 628 F.3d 960, 966 (8th Cir. 2010)
(citing Hauschildt v. Beckingham, 686 N.W.2d 829, 840 (Minn. 2004)). The first factor
is satisfied if the subsequent claim arises out of “the same nucleus of operative facts as
the prior claim.” Banks v. Int’l Union Electronic, Elec., Technical, Salaried & Mach.
Workers, 390 F.3d 1049, 1052 (8th Cir. 2004) (internal quotation marks omitted); see also
Costner v. URS Consultants, Inc., 153 F.3d 667, 673 (8th Cir. 1998) (“Regarding the
‘same claims or causes of action’ element of claim preclusion, we have stated that
whether a second lawsuit is precluded turns on whether its claims arise out of the ‘same
nucleus of operative facts as the prior claim.’”) (quoting United States v. Gurley, 43 F.3d
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1188, 1195 (8th Cir. 1994)). Res judicata “bars the relitigation of issues which were
actually litigated or which could have been litigated” in the first action so long as the
party against whom the earlier decision is being asserted had a “full and fair opportunity
to litigate the issue.” Lovell v. Mixon, 719 F.2d 1373, 1376 (8th Cir. 1983) (emphasis in
original) (internal quotation marks omitted); see also State v. Joseph, 636 N.W.2d 322,
327 (Minn. 2001).
There can be little dispute regarding the application of the second and third
res judicata factors here. With regard to the second factor, the parties in the Waseca
County action were Thornes and the City of Waldorf; the parties in this action are
Thornes and the City of Waldorf and various current and former City Council members,
Mayors, and the City Clerk, who qualify as “privies” of the City. See Minch Family, 628
F.3d at 966 (under Minnesota law second factor is “the earlier claim involved the same
parties or their privies”); Ruple v. City of Vermillion, S.D., 714 F.2d 860, 862 (8th Cir.
1983) (holding that, where only the city and city manager were parties to earlier action
and later action additionally included the mayor and four city council members, “[t]he
newly named defendants are in privity with those who were defendants in the state
court,” as “they are so closely related to the state-court defendants, and their interests are
so nearly identical, that it is fair to treat them as the same parties for purposes of
determining the preclusive effect of the state-court judgment”).5 With regard to the third

5

The Eighth Circuit’s decision in Ruple was distinguished by the Eighth Circuit in
Headley v. Bacon, 828 F.2d 1272 (8th Cir. 1987), where it observed that “[n]ot all government
employees and officials are in privity with the government,” and that “even persons in such
(Footnote continued on next page.)

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factor, under Minnesota law “for res judicata purposes, a judgment becomes final when it
is entered in the district court and it remains final, despite a pending appeal, until it is
reversed, vacated or otherwise modified.” Brown-Wilbert, Inc. v. Copeland Buhl & Co.,
P.L.L.P., 732 N.W.2d 209, 221 (Minn. 2007). There is no dispute that the Waseca
County District Court entered judgment on April 4, 2013, ordering the City to enforce
Resolution 84 and declaring the Tyrholm Building to be hazardous, which constitutes a
final judgment on the merits under Minnesota res judicata law. (See State Court Findings
and Order 7 (“Let Judgment be Entered Accordingly” (capitalization omitted)).)
It is a closer question, however, whether that judgment adequately encompassed
the issues raised in this action such that it bars the proceedings here. This implicates the
first and fourth factors of the res judicata test under Minnesota law. The first – whether
the earlier action involved the same set of factual circumstances – is not limited to
situations in which both actions involved identical claims. Rather, “[t]he doctrine of
res judicata dictates that any right, fact, or matter expressly or directly adjudicated on the
merits before a court of competent jurisdiction is conclusively settled and ‘may not be
____________________________________
(Footnote continued.)

clearly policy-making positions may not be in privity with the government.” Id. at 1276. There,
the plaintiff brought an action against police force officials after having brought a similar action
against the city, and the court concluded that “the defendants in the present case were not in such
clearly policymaking positions as to be the same sort of voice and hand of a municipality as its
elected governing officials.” Id. (internal quotation marks omitted). Here, the individual
defendants are the individuals named throughout Thornes’ complaint as the policymaking
individuals who made the decisions to take the actions that form the basis of his complaint and
implemented them, and thus are either actually the municipality’s “elected governing officials”
or are in “such clearly policymaking positions as to be the same sort of voice and hand of a
municipality as its elected governing officials.” Id. (internal quotation marks omitted).

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relitigated by the parties to the previous action, whether the claim, demand, purpose or
subject matter would or would not be the same as that in the previous litigation.’” King
v. Hoover Grp., Inc., 958 F.2d 219, 223 (8th Cir. 1992). The Waseca County action
involved distinct claims and a distinct posture from the instant action. There the court
considered the City’s motion to enforce its declaration that the Tyrholm Building was
hazardous and that it would demolish the building if Thornes failed to make the necessary
repairs, as it was authorized to do by Minnesota Statute. Here, Thornes brings claims
against the City for violations of the U.S. Constitution and Minnesota common law for
the City and its officials’ actions in the events leading up to the City’s Resolution 84 and
the state court order. Although distinct in posture and claims, however, the actions
involve the same “nucleus of operative facts,” Banks, 390 F.3d at 1052 – the events
leading up to the demolition of the Tyrholm Building, including the alleged trespassing
inspection, the City Council’s resolutions, and the City’s enforcement of the demolition
order through the Waseca County action. The bulk of the topics addressed by the factual
allegations in the complaint are encompassed by the factual findings in the Waseca
County order.

(Compare Am. Compl. ¶¶ 2-3 (detailing Thornes’ purchase of the

building), with State Court Findings and Order ¶ 19 (City Clerk testified to the same);
Am. Compl. ¶¶ 4-6, 10-13, 15-21 (detailing ongoing communications and interaction
between the City and Thornes in 2011 and 2012), with State Court Findings and Order
¶¶ 20, 26 (City Clerk and Mayor testified about the same); Am. Compl. ¶¶ 24-27
(detailing allegations regarding inspection, which Thornes alleges amounted to trespass),
with State Court Findings and Order ¶¶ 21-25 (inspector testified, among other things,
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that “he was able to conduct his inspection without going on Defendant’s property”); Am.
Compl. ¶¶ 19, 31-35 (allegations regarding Resolution 84 and subsequent Waseca County
action), with State Court Findings and Order ¶¶ 6-16 (detailing procedural history of
resolution and motion for enforcement).) Thus, Thornes’ “newly asserted constitutional
claims are based on the same set of facts” as the facts before the Waseca County District
Court and this element of res judicata is satisfied. See Laase v. Cnty. of Isanti, 638 F.3d
853, 857 (8th Cir. 2011) (finding first element of res judicata test met where plaintiff had
challenged automatic forfeiture of his vehicle pursuant to Minnesota statute in state court
and subsequently brought a federal court action under 42 U.S.C. § 1983 for violation of
the Fifth and Eighth Amendments).
Certainly, the specific claims Thornes raises here were not part of the Waseca
County action. But “[r]es judicata applies equally to claims actually litigated and to
claims that could have been litigated in the earlier action,” so long as the party has a full
and fair opportunity to litigate the issues, Brown-Wilbert, 732 N.W.2d at 220, and
Thornes’ claims in the instant action could have been raised as counterclaims in the
summary enforcement action in Waseca County District Court.

Minnesota Statutes

§ 463.20 provides that if a property owner files an answer in a summary enforcement
proceeding under Chapter 463, “further proceedings in the action shall be governed by
the Rules of Civil Procedure for the District Courts,” and those rules contemplate
counterclaims – both arising out of the transaction involved in the initial claim and not.
See Minn. R. Civ. P. 13.01 (rule governing compulsory counterclaims: “A pleading shall
state as a counterclaim any claim which at the time of serving the pleading the pleader
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has against any opposing party, if it arises out of the transaction that is the subject matter
of the opposing party’s claim”); Minn. R. Civ. P. 13.02 (rule governing permissive
counterclaims: “A pleading may state as a counterclaim any claim against an opposing
party not arising out of the transaction that is the subject matter of the opposing party's
claim”); see also Minn. R. Civ. P. 7.01 (rule on pleadings contemplating answer,
counterclaims, and cross-claims). The Minnesota Court of Appeals has observed that if a
city orders the owner of a hazardous building to raze or remove the building, “the
building owner may then comply with the order or file an answer under Minn. Stat.
§ 463.18,” and that “[i]f an answer is filed, the matter is treated as a contested case heard
by the district court.” City of Mankato v. Dickie, Civ. No. A10-720, 2011 WL 589613, at
*2 (Minn. Ct. App. Feb. 22, 2011). Therefore, the claims Thornes now raises could have
been raised as counterclaims in the Waseca County action. Cf. id. at *1 (observing that in
summary enforcement hearing under Chapter 463 before the district court, the property
owner “appeared with counsel and obtained leave to file an answer,” and that in “his
amended answer and counter-claim, [the owner] challenged the hazardous-building
action as lacking a sufficient factual basis, alleged that he was denied due process of law
in the proceedings, raised various constitutional challenges to the rental-licensing
ordinance, and claimed that demolition of his home would constitute destruction of a
historical resource in violation of the Minnesota Environmental Rights Act”).6

6

It could be argued that some of the bases of Thornes’ claims could not have supported a
claim that could have been raised in the Waseca County action because they did not occur until
after that final judgment – for example, paragraphs 37 through 39 of Thornes’ amended
(Footnote continued on next page.)

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Here, Thornes had a full and fair opportunity to litigate his instant claims in the
Waseca County action, even if he failed to take advantage of that opportunity. “The
question of whether a party had a full and fair opportunity to litigate a matter generally
focuses on whether there were significant procedural limitations in the prior proceeding,
whether the party had the incentive to litigate fully the issue, or whether effective
litigation was limited by the nature or relationship of the parties.” Joseph, 636 N.W.2d at
329 (concluding that, where party had “both the right and the opportunity to appeal,” but
chose not to, the fourth res judicata requirement was met); see also Gahr v. Trammel, 796
F.2d 1063, 1070 (8th Cir. 1986) (observing that “[a] party receives a fair opportunity to
present the claims allegedly precluded if the party could have brought the claims in a
proceeding that would satisfy the minimal procedural requirements of the due process
clause”). Thornes had the opportunity to fully participate in the state court proceeding.
As the Waseca County District Court found and Thornes does not contest, Thornes failed
to file an answer in the Waseca County action. (See State Court Findings and Order
¶ 17.) Nor does he allege that notice of the proceeding was inadequate – rather, he
____________________________________
(Footnote continued.)

complaint in which he details the demolition of the Tyrholm building. However, the demolition
of the building was the immediate consequence of the order in the state court judgment (and a
foreseeable result based on the proceedings up until that point). Thus, these additional
allegations do not add facts that undermine the Court’s res judicata conclusion here. Cf. Laase,
638 F.3d at 857 (in context of automatic vehicle forfeiture under Minnesota statute, finding that
“[b]ecause of th[e] automatic nature of forfeiture under the statute, the fact that state litigation
over forfeitability has concluded adds nothing to the ‘group of operative facts’ that gives rise to
Laase’s state and federal excessive fines and takings claims” and “[t]o the extent Laase argues
that his constitutional challenges to forfeiture were not ripe until state-court litigation over
seizure and forfeitability concluded, his argument fails because forfeiture is automatic upon the
determination of forfeitability.”)

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alleges that he received notice of the action. (See Am. Compl. ¶ 31.) Finally, the State
Court Findings and Order indicates that he attended and participated in the hearing –
requesting a delay on account of this federal action, cross-examining the City’s witnesses,
and even presenting his own witness. (See State Court Findings and Order ¶¶ 1-4, 18.)
Thus, the Court concludes that Thornes had a “full and fair opportunity to litigate” the
claims he now presents.

Cf. Gahr, 796 F.2d at 1070 (concluding that “[t]he state

proceedings in this case clearly met the requirements of the due process clause,” where
the plaintiff had the opportunity to present arguments on the record, was represented,
submitted evidence, called witnesses, and cross-examined witnesses).
The Court therefore concludes that all four requirements of res judicata are met.
Because the Waseca County action involved the same factual circumstances, the same
parties, and a final judgment on the merits, and because Thornes could have litigated all
of the issues he now brings in this action, his instant claims are barred by res judicata.
The Court will therefore dismiss all claims with prejudice. See Brown-Wilbert, Inc. v.
Copeland Buhl & Co., P.L.L.P., 715 N.W.2d 484, 487 (Minn. Ct. App. 2006) (“Under the
doctrine of res judicata, a final judgment on the merits is an absolute bar to a second suit
for the same cause of action and is conclusive, not only as to every matter actually
litigated, but also as to every matter that might have been litigated.”), aff’d on other
grounds, 732 N.W.2d 209 (Minn. 2007). Because the Court concludes that this action
must be dismissed with prejudice, the Court need not address the parties’ remaining
arguments regarding Defendants’ motion for judgment on the pleadings.

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ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Defendants’ Motion for Judgment on the Pleadings [Docket
No. 34] is GRANTED. This matter is DISMISSED with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: September 29, 2014
at Minneapolis, Minnesota.

____s/

____
JOHN R. TUNHEIM
United States District Judge

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