Sorenson v. Minnesota Department of Human Services et al
Filing
191
MEMORANDUM OPINION AND ORDER denying 161 Motion to Vacate Order ; granting in part and denying in part 172 Motion to Vacate Order, Motion to Dismiss; To the extent the motion seeks Rule 60(b) relief, the motion is granted, the Amended Order Adopting R&R 159 is vacated, in all other respects, the motion is DENIED (Written Opinion). Signed by Judge Ann D. Montgomery on 12/05/2014. (TLU)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Eric Michael Sorenson,
Plaintiff,
MEMORANDUM OPINION
AND ORDER
Civil No. 13-2958 ADM/LIB
v.
Minnesota Department of Human
Services, Minnesota Sex Offender
Program, Lucinda Jesson, Nancy
Johnston, Jannine Herbert, James
Berg, Kevin Moser, Tom Lundquist,
Tara Osborne, Angelique BrewerOttom, Rob Rose, Jennifer Abson,
Al Jennings, Scott Sutton, David
Paulson, James Michael Olson, Mary
Skalko, Troy Basaraba, Joel Brown,
Jeremy Hammond, et al.,
Defendants.
______________________________________________________________________________
Eric Michael Sorenson, pro se.
______________________________________________________________________________
I. INTRODUCTION
On September 11, 2014, Eric Michael Sorenson (“Sorenson” or “Plaintiff”) filed a
Motion for Leave to File Report and Recommendation Objections Out of Time and to Vacate
Order Adopting R&R and Judgment in Civil Action [Docket No. 161] (“Motion for Leave and to
Vacate"). Five days later, on September 16, 2014, Sorenson filed a Motion for Rule 59 and
60(b) Relief [Docket No. 172]. For the reasons set forth below, Sorenson’s Motion for Leave
and to Vacate is Denied and Sorenson’s Motion for Rule 59 and 60(b) Relief is Granted in Part
and Denied in Part.
II. BACKGROUND
Sorenson, a patient civilly committed in the Minnesota Sex Offender Program
(“MSOP”), initiated the present lawsuit on October 29, 2013. Compl. [Docket No. 1]. A large
number of MSOP departments and employees (collectively, the “State Defendants”) are named
as defendants, along with two civilly committed MSOP patients. Id. On March 21, 2014,
Sorenson filed a Supplemental Complaint [Docket No. 70], alleging additional claims and
adding additional MSOP employees.
On July 31, 2014, Magistrate Judge Leo I. Brisbois issued an Order and Report and
Recommendation [Docket No. 153] (“R&R”) addressing the State Defendants’ Motion to
Dismiss [Docket No. 28], Plaintiff’s Motion for Partial Default Judgment [Docket No. 57],
Plaintiff’s Motion for Partial Default Judgment [Docket No. 80], Plaintiff’s Motion to Consider
the Defendants’ Current Motion to Dismiss Moot or Denied [Docket No. 88], Plaintiff’s Motion
for Leave to File an Amended Complaint [Docket No. 92], the State Defendants’ Partial Motion
to Dismiss Plaintiff’s Supplemental Complaint [Docket No. 100], and Plaintiff’s Motion to
Amend Supplemental Complaint as of Right or Freely [Docket No. 124]. The R&R granted the
State Defendants’ dismissal Motions, and granted Sorenson’s Motion for Leave to File an
Amended Complaint and his Motion to Amend Supplemental Complaint as of Right. The R&R
denied Sorenson’s other motions.
On August 8, 2014, Sorenson filed a Notice of Partial Voluntary Dismissal [Docket No.
154] pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure. This notice effectively
dismissed without prejudice every claim and every defendant from this lawsuit with the
exception of Count 1 of the Amended Supplemental Complaint as pled against Defendant
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Angelique Brewer-Ottom.
On August 22, 2014, this Court issued an Order Adopting the R&R [Docket No. 155].
Three days later, on August 25, 2014, Judgment [Docket No. 156] was entered. Sometime
thereafter, an error in the August 22, 2014 Order was identified.1 On September 8, 2014, an
Amended Order Adopting the R&R [Docket No. 159] was docketed. The Amended Order struck
the Judgment that was previously entered.
Sorenson’s September 11, 2014 Motion, Motion for Leave and to Vacate, requests
additional time to file objections to Judge Brisbois’ R&R and seeks to vacate this Court’s Order
adopting the R&R and the entry of Judgment. Sorenson’s September 16, 2014 Motion, Motion
for Rule 59 and 60(b) Relief, alleges a jurisdictional deficiency in this Court’s August 22, 2014
Order, and requests the appointment of counsel and an evidentiary hearing.
III. DISCUSSION
A. Motion for Leave and to Vacate
Sorenson requests additional time to submit objections to Judge Brisbois’ R&R. In
addition, Sorenson requests the objections submitted as Exhibit 1 to this Motion be submitted as
proper R&R objections. Because every objection Sorenson raises is directed at claims or
defendants that were voluntarily dismissed, the objections are no longer relevant to the claims in
this lawsuit. Accordingly, Sorenson’s requests are denied as moot.
Sorenson also requests that the entry of Judgment be vacated. This request is also moot
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Specifically, the State Defendants’ Partial Motion to Dismiss Plaintiff’s Supplemental
Complaint sought dismissal of the entire Supplemental Complaint except for Count I as asserted
against Angelique Brewer-Ottom. The single claim that survived the motion was initially
overlooked, which resulted in the entire case being incorrectly dismissed and a final judgment
entered by the Clerk of Court.
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because the Judgment was stricken by the Amended Order docketed on September 8, 2014.
B. Motion for Rule 59 and 60(b) Relief
1. Subject Matter Jurisdiction
Sorenson argues that the September 8, 2014 Amended Order Adopting the R&R should
be vacated because the court lacked subject matter jurisdiction. Specifically, Sorenson contends
that his notice of voluntary dismissal, which was docketed after Judge Brisbois’ R&R and before
the Order adopting the R&R, divested this Court’s jurisdiction to rule on the merits of all claims
voluntarily dismissed.
Rule 41(a)(1)(A)(I) permits a plaintiff to voluntarily dismiss the suit without prejudice
and without any court action when no answer or a motion for summary judgment has been filed.
“These two instances have been construed strictly and exclusively.” Safeguard Business
Systems, Inc. v. Hoeffel, 907 F.2d 861, 863 (8th Cir. 1990). As the Eighth Circuit explained:
In Foss v. Federal Intermediate Credit Bank, we recognized that the rule ‘must
not be stretched beyond its literal terms.’ Similarly, other courts have held that
Rule 41(a)(1) creates a bright line that leaves no discretion to the courts. Thus,
we consider only whether an answer or a motion for summary judgment was filed
before the notice of voluntary dismissal.
808 F.2d 657, 660 (8th Cir. 1986) (internal citations omitted). “The effect of a voluntary
dismissal without prejudice is to render the proceedings a nullity and leave the parties as if the
action had never been brought.” In re Piper Aircraft Distribution Systems Antitrust Litigation,
551 F.2d 213, 219 (8th Cir. 1977). In such circumstances, the district court is stripped of its
“jurisdiction to pass upon the merits of the case.” Foss, 808 F.2d at 660.
In Foss, a magistrate recommended that a complaint lacked merit and should be
dismissed. Id. at 658. The plaintiffs petitioned the district court for review of the
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recommendation. Id. However, before the district court could issue a ruling on the
recommendation, the plaintiffs tendered a voluntary dismissal pursuant to Fed. R. Civ. P.
41(a)(1)(I). Id. at 658-59. The Eighth Circuit held that the notice of voluntary dismissal
divested the district court’s jurisdiction to rule on the merits of the case. Id. at 660.
The same result is reached here. Sorenson filed his Notice of Partial Voluntary Dismissal
on August 8, 2014 before the Defendants submitted an answer or moved for summary judgment.
Thus, Sorenson’s notice deprived this Court of jurisdiction to rule on the merits of the claims and
Defendants Sorenson chose to voluntarily dismiss. Pursuant to Rule 60(b), the Amended Order
Adopting R&R is vacated.
2. Evidentiary Hearing
Sorenson requests an evidentiary hearing on this Motion. Because Sorenson’s
memorandum successfully identified a legal basis that merits granting his motion to vacate
judgment, an evidentiary hearing is unnecessary.
3. Request for Referral for Appointment of Counsel
Sorenson has twice attempted and has twice been denied appointment of counsel.
Sorenson’s first attempt was filed in conjunction with his Complaint. See Mot. Appoint Counsel
[Docket No. 4]. Judge Brisbois denied Sorenson’s request, finding “that neither the facts nor the
legal issues raised in Plaintiff’s Complaint, [Docket No.1], are so complex as to warrant
appointment of counsel.” Order Denying Mot. Appoint Counsel [Docket No. 10].
Sorenson renewed his appointment of counsel efforts on April 15, 2014. See Renewed
Mot. Appointment Counsel [Docket No. 112]. Sorenson’s renewed effort was made, in part, on
new arguments that were not previously raised and the fact that the procedural posture had
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changed significantly since his initial request. Sorenson also requested a referral to the
appropriate pro se lawyer referral services. Despite these factors, Sorenson’s request was again
denied. See Order R&R [Docket No. 136].
Sorenson’s current request is simply a more specific version of the request Sorenson
raised in his Renewed Motion for the Appointment of Counsel. While cognizant of Sorenson’s
Pro Se status, Judge Brisbois’ reasoning on Sorenson’s previous motions is still applicable.
Indeed, the facts and legal issues are now significantly less complex because the Supplemental
Complaint is now a single claim against a single defendant. For these reasons, Sorenson’s
Request for Referral to the Federal Bar Association’s Pro Se Project for Appointment of Counsel
is denied.
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IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS
HEREBY ORDERED that:
1.
Plaintiff’s Motion for Leave to File Report and Recommendation Objections Out
of Time and to Vacate Order Adopting R&R and Judgment in Civil Action
[Docket No. 161] is DENIED.
2.
Plaintiff’s Motion for Rule 59 and 60(b) Relief [Docket No. 172] is GRANTED
IN PART AND DENIED IN PART, as follows:
A.
To the extent the motion seeks Rule 60(b) relief, the motion is granted.
The Amended Order Adopting R&R [Docket No. 159] is vacated;
B.
In all other respects, the motion is DENIED.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: December 5, 2014.
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