Rickmyer v. Browne et al

Filing 222

ORDER denying 215 Motion for TRO (Written Opinion). Signed by Judge Susan Richard Nelson on 10/01/2014. (SMD)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Peter Rickmyer,

Civil No. 13-CV-559 (SRN/LIB)

Plaintiff,
ORDER
v.
Michael (Kip) Browne; Megan
Goodmundson; Dan Rother;
Robert Hodson;
John George Hubbard, II; Dave Haddy;
Ann McCandless; David
Schooler; John Willard Hoff;
William McDonald;
Jordan Area Community Council, LLC.,
and John Does 1-5,
Defendants

Peter Rickmyer, 2118 25th Ave. N., Minneapolis, MN 55411, Pro Se
David J. McGee and Christopher R. Renz, Thomsen & Nybeck, PA, 2600 American
Blvd. W., Ste. 400, Bloomington, MN 55431, for Browne, Goodmundson, Rother,
Hodson, Hubbard, Haddy, McCandless, and Jordan Area Community Council, Inc.
Michael C. Wilhelm, Briggs & Morgan, PA, 80 S. 8th St., Ste. 2200, Minneapolis, MN
55402, for Schooler
Paul Allen Godfread, Godfread Law Firm, 6043 Hudson Rd., Ste. 305, Woodbury, MN
55125, for Hoff
Julie K. Bowman, Hennepin County Attorney’s Office, 300 S. 6th St., Suite A-2000,
Minneapolis, MN 55487 for McDonald
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__________________________________________________________________
SUSAN RICHARD NELSON, United States District Court Judge
This matter is before the Court on Plaintiff’s Motion for a Temporary Restraining
Order (“TRO”) [Doc. No. 215]. For the reasons stated below, Plaintiff’s Motion is
denied.
In this Court’s Order of February 5, 2014 [Doc. No. 196], the Court ruled on a
number of motions, including a Motion to Dismiss filed by the Jordan Area Community
Council, Inc. (“JACC”) Defendants1 [Doc. No. 64]. The Court granted the JACC
Defendants’ motion, dismissing with prejudice the two claims against them in the Second
Amended Complaint (Counts 1 and 2).
On February 28, 2014, Plaintiff filed a notice of appeal to the Eighth Circuit Court
of Appeals, appealing certain rulings in the Court’s February 5, 2014 Order, including the
rulings that resulted in the dismissal of Counts 1 and 2 of the Second Amended
Complaint, as well as the rulings “granting motion to dismiss with prejudice.” (Notice of
Appeal at 2 [Doc. No. 198].) Plaintiff now seeks a TRO to prevent the JACC Defendants
from restricting his access to JACC open meetings and from criticizing the JACC Board
of Directors at the meetings. (Mem. Supp. TRO at 1 [Doc. No. 218].)
As a general matter, a federal district court and a federal appellate court “‘should

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The JACC Defendants included Michael (Kip) Browne, Megan Goodmundson,
Dan Rother, Robert Hodson, John George Hubbard II, Dave Haddy, Ann McCandless,
and the Jordan Area Community Council, Inc.
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not attempt to assert jurisdiction over a case simultaneously.’” Unison Co., Ltd. v. Juhl
Energy Dev., Inc., 2014 WL 2565652, at *1 (D. Minn. June 6, 2014) (quoting Griggs v.
Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)). Accordingly, when a party files
a notice of appeal, it is “‘an event of jurisdictional significance – it confers jurisdiction on
the court of appeals and divests the district court of its control over those aspects of the
case involved in the appeal.’” Id.
Here, not only have all claims against the JACC and the JACC Defendants been
dismissed with prejudice, but Plaintiff has appealed this Court’s ruling on these very
claims to the Eighth Circuit. In Count I of the Second Amended Complaint, Rickmyer
asserted a claim for violations of his constitutional rights pursuant to 42 U.S.C. §§ 1983,
1985, 1986, and 12203. (Second Am. Compl. ¶¶ 154-57 [Doc. No. 7].) Among the
constitutional rights that Rickmyer claimed the JACC Defendants violated, was a First
Amendment violation concerning “prior restraint of speech and liberty.” (Id. ¶ 155.) In
the Second Amended Complaint’s factual allegations, Rickmyer alleged, among other
things, that he had been ordered not to attend any JACC meetings whatsoever. (Id. ¶ 50.)
As noted, Rickmyer’s present motion seeks an order barring the JACC Defendants from
denying him access to their meetings. As this aspect of Rickmyer’s case is involved in
his appeal to the Eighth Circuit, this Court lacks jurisdiction to entertain Plaintiff’s
motion.

THEREFORE, IT IS HEREBY ORDERED THAT:
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Plaintiff’s Motion for a Temporary Restraining Order [Doc. No. 215] is DENIED.

Dated:

October 1, 2014
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Court Judge

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