Stone v. Benoit et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS (Written Opinion). Signed by Judge Wilhelmina M. Wright on 05/25/2017. (TJB)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 16-cv-2721 (WMW/FLN)
ORDER ADOPTING REPORT AND
RECOMMENDATION AS MODIFIED
Scott Benoit, et al.,
This matter is before the Court on the May 3, 2017 Report and Recommendation
(R&R) of United States Magistrate Judge Franklin L. Noel. (Dkt. 23.) The R&R
recommends granting the motion to dismiss filed by Defendants Scott Benoit, Mandy
Torgerson, and Ann Linkert, (Dkt. 10), and dismissing with prejudice Plaintiff Danny
Stone’s complaint, (Dkt. 1), for lack of subject-matter jurisdiction because Stone’s claims
are barred by the statute of limitations. No objections to the R&R were filed in the time
period permitted.1 In the absence of timely objections, this Court reviews an R&R for
clear error. See Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 amendment
(“When no timely objection is filed, the court need only satisfy itself that there is no clear
error on the face of the record in order to accept the recommendation.”); Grinder v.
Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (per curiam). Having reviewed the R&R, the
Stone filed objections to the R&R after the deadline to do so expired. Although
the Court need not consider Stone’s untimely submission, the Court nonetheless has
reviewed Stone’s objections. The allegations in Stone’s complaint pertain to conduct that
occurred in February 2010, and Stone has not alleged facts to permit a plausible inference
that his claims were subject to equitable tolling. Consequently, Stone’s objections do not
alter the Court’s conclusion.
Court concludes that Stone’s claims should be dismissed for failure to state a claim on
which relief can be granted under Fed. R. Civ. P. 12(b)(6) rather than for lack of subjectmatter jurisdiction under Fed. R. Civ. P. 12(b)(1). See Johnson v. Mott, 376 F. App’x
641, 641-42 (8th Cir. 2010) (affirming dismissal with prejudice for failure to state a claim
on which relief can be granted when limitations period had run).
Based on the R&R and all the files, records and proceedings herein, IT IS
The May 3, 2017 R&R, (Dkt. 23), is ADOPTED AS MODIFIED; and
The motion to dismiss of Defendants Scott Benoit, Mandy Torgerson, and
Ann Linkert, (Dkt. 10), is GRANTED;
Plaintiff Danny Stone’s complaint, (Dkt. 1), is DISMISSED WITH
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: May 25, 2017
s/Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge
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