Williams v. Raynor Rensch & Pfieffer et al

Filing 124

MEMORANDUM AND ORDER on the remand from the Eighth Circuit. For the reasons discussed within this order, the Court will reenter its November 26, 2012, Memorandum and Order, and plaintiff shall have until June 28, 2013, to file an amended complaint. Plaintiff's Motion for Reconsideration (Filing No. 69 ) is granted. The clerk of the court is directed to re-open this matter. The clerk of the court is directed to send a copy of this Memorandum and Order to the District Court of Douglas Cou nty, Nebraska, and to take all necessary steps to inform the Court that the previous order to remand is no longer in effect. Plaintiff shall have until July 15, 2013, in which to file an amended complaint containing all claims, including all federa l claims, against all defendants. In the event that plaintiff fails to do so, this matter will proceed on the claims set forth in the Amended Complaint (Filing No. 22 ) only. Defendants shall file an answer or other responsive pleading no later th an August 5, 2013. Defendants' Motions to Withdraw (Filing Nos. 77 and 78 ) are granted. Counsel for defendants is permitted to withdraw, as the Assistant United States Attorney has already made her appearance on behalf of defendants Bruck, Stuck, and Brazda. The Motion to Dismiss filed by Bellevue, Nebraska, (Filing No. 87 ), plaintiff's Motion for Reconsideration (Filing No. 93 ), plaintiff's Motion to Amend Complaint (Filing No. 101 ), defendants' Motion to Strike (Filing No. 104 ), and plaintiff's Motions to Strike Pleadings (Filing Nos. 114 and 115 ), are denied in accordance with this Memorandum and Order. ***Set All Deadlines: ( Amended Complaint due by 7/15/2013.) Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party and to District Court of Douglas County, Nebraska ) (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SHANNON WILLIAMS,

)
)
Plaintiff,
)
)
v.
)
)
REYNOR RENSCH & PFIEFFER,
)
et al.,
)
)
Defendants.
)
______________________________)

8:11CV446

MEMORANDUM AND ORDER

This matter is before the Court on remand from the
Eighth Circuit.

(See Filing No. 123.)

For the reasons discussed

below, the Court will reenter its November 26, 2012, Memorandum
and Order, and plaintiff shall have until July 15, 2013, to file
an amended complaint.
I.

BACKGROUND

On March 29, 2012, this Court entered an Order and
Judgment, which remanded this matter to the District Court of
Douglas County, Nebraska (Filing Nos. 58 and 59).

On May 8,

2012, plaintiff filed a Notice of Appeal of the Court’s March 29,
2012, Order and Judgment (Filing No. 65).

Almost two weeks

later, plaintiff filed a Motion for Reconsideration of the
Court’s March 29, 2012, Judgment (Filing No. 69).
After providing defendants with several extensions of
time to respond to plaintiff’s Motion for Reconsideration, the
Court granted plaintiff’s Motion for Reconsideration on November
26, 2012 (Filing No. 82).

In doing so, the Court re-opened the

case and gave plaintiff until December 20, 2012, to file an
amended complaint.

(Id.)

The Court also gave defendants until

January 22, 2013, to file an answer or other responsive pleading.
(Id. at CM/ECF p. 2.)
On December 14, 2012, the Court entered a Memorandum
and Order finding plaintiff’s May 8, 2012, Notice of Appeal
untimely and moot (Filing No. 83).

In that order, the Court also

reminded plaintiff that he had until December 20, 2012, to file
his amended complaint in accordance with the court’s November 26,
2012, Memorandum and Order.

(Id.)

Plaintiff did not file an

amended complaint by December 20, 2012.

(See Docket Sheet.)

After the Court’s December 14, 2012, Memorandum and
Order, defendant Bellevue, Nebraska, filed a Motion to Dismiss
(Filing No. 87), plaintiff filed a Motion for Reconsideration
(Filing No. 93), plaintiff filed a Motion to Amend Complaint
(Filing No. 101), defendants filed a Motion to Strike plaintiff’s
Motion to Amend Complaint (Filing No. 104), and plaintiff filed
two Motions to Strike Pleadings (Filing Nos. 114 and 115).
of these motions are currently pending before the Court.
II.

REMAND

On May 24, 2013, the Eighth Circuit concluded that
plaintiff’s May 8, 2012, Notice of Appeal was a timely and
effective appeal of this Court’s March 29, 2012, Order and
Judgment (Filing No. 123).

As a result, this Court lacked

-2-

All

jurisdiction to grant plaintiff’s May 21, 2012, Motion for
Reconsideration.

(Id.)

The Eighth Circuit then affirmed the

Court’s March 29, 2012, Order and Judgment and dismissed
plaintiff’s remaining challenges for lack of jurisdiction.

(Id.)

However, the Eighth Circuit also instructed the Court to “reenter
its November 26, order granting the motion for reconsideration
nunc pro tunc.”

(Id. at CM/ECF p. 2.)
III.

ANALYSIS

In light of the Eighth Circuit’s instructions on
remand, the Court adopts the following analysis from its November
26, 2012, Memorandum and Order:
This matter is before the Court on
plaintiff’s Motion for
Reconsideration (Filing No. 69).
In his motion, plaintiff requests
that the Court reconsider its
previous decision to remand this
matter to the Nebraska state court,
action the Court took at
plaintiff’s request (Filing No.
59). Plaintiff states that he
would like this matter to remain in
this Court “so he can pursue all of
[his] claims against the defendants
now,” including all of his federal
claims (Filing No. 59 at CM/ECF p.
1).
In addition, since the filing of plaintiff’s Motion for
Reconsideration, defendants Stuck, Bruck, and Brazda have
retained the Assistant United States Attorney as counsel (Filing
No. 79[)].

Indeed, these defendants also seek reconsideration of

the Court’s previous decision to remand this matter because
-3-

defendants Stuck, Bruck, and Brazda “were federal officers acting
under color of federal law for purposes of the actions alleged in
Plaintiff’s Complaints.”

(Filing No. 80 at CM/ECF p. 1.)

This

fact was apparently unknown to either plaintiff or defendants at
the time plaintiff sought remand. (Id. at CM/ECF pp. 1-3.)

The

Court has carefully reviewed the record in this matter and finds
that reconsideration is warranted.

Because defendants Stuck,

Bruck, and Brazda were federal officers during all relevant
times, plaintiff’s Second Amended Complaint contains allegations
of federal law violations.

This matter will therefore proceed as

set forth below.
Further, because this Court lacked jurisdiction to
reopen this matter until remand, the pending motions before the
Court, which were filed in reliance upon the Court’s improperly
entered November 26, 2012, Memorandum and Order, will be denied
without prejudice to reassertion.

The Court elects not to strike

any of the parties’ pleadings at this time.
IT IS ORDERED:
1.
69) is granted.

Plaintiff’s Motion for Reconsideration (Filing No.
The clerk of the court is directed to re-open

this matter.
2.

The clerk of the court is directed to send a copy

of this Memorandum and Order to the District Court of Douglas

-4-

County, Nebraska, and to take all necessary steps to inform that
Court that the previous order to remand is no longer in effect.
3.

Plaintiff shall have until July 15, 2013, in which

to file an amended complaint containing all claims, including all
federal claims, against all defendants.

In the event that

plaintiff fails to do so, this matter will proceed on the claims
set forth in the Amended Complaint (Filing No. 22) only.
4.

Defendants shall file an answer or other

responsive pleading no later than August 5, 2013.
5.

Defendants’ Motions to Withdraw (Filing Nos. 77

and 78) are granted.

Counsel for defendants is permitted to

withdraw, as the Assistant United States Attorney has already
made her appearance on behalf of defendants Bruck, Stuck, and
Brazda.
6.

The Motion to Dismiss filed by Bellevue, Nebraska,

(Filing No. 87), plaintiff’s Motion for Reconsideration (Filing
No. 93), plaintiff’s Motion to Amend Complaint (Filing No. 101),
defendants’ Motion to Strike (Filing No. 104), and plaintiff’s

-5-

Motions to Strike Pleadings (Filing Nos. 114 and 115), are denied
in accordance with this Memorandum and Order.
DATED this 20th day of June, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

* This opinion may contain hyperlinks to other documents or
Web sites. The U.S. District Court for the District of Nebraska
does not endorse, recommend, approve, or guarantee any third
parties or the services or products they provide on their Web
sites. Likewise, the Court has no agreements with any of these
third parties or their Web sites. The Court accepts no
responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion
of the Court.
-6-