Barth v. Rounds et al

Filing 38

ORDER Dismissing Case. Signed by U.S. District Judge Karen E. Schreier on 2/19/2015. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JEFF BARTH, personally and in his
capacity as sitting County
Commissioner for the County of
Minnehaha, South Dakota, and all
others similarly situated,
Petitioner,

4:14-MC-00118-KES

ORDER DISMISSING CASE

vs.
MARION M. “MIKE” ROUNDS;
JEFFREY T. SVEEN; and
ROBERT “TAD” PERRY;
Respondents.
.
Petitioner, Jeff Barth, moves to add a petitioner to the pre-complaint
petition to preserve evidence. Respondents, Marion M. “Mike Rounds,
Jeffrey T. Sveen, and Robert “Tad” Perry, oppose the motion arguing that it
would be futile. The motion to amend is denied because this court does not
have jurisdiction over this matter.
After a hearing, this court denied the petition as it pertained to Jeff Barth
because the claim identified in the petition was a general tax payer grievance
that is not sufficient to establish standing under Article III of the United States
Constitution. See DaimlerChryslter Corp., v. Cuno, 547 U.S. 332, 343-45
(2006). As a result, the only issue before the court is whether the petition to
preserve evidence can be amended to add Richard G. Hulshof as a petitioner.

The court assumes that motions to amend a Rule 27 pre-complaint
petition to preserve evidence would be treated similarly to other motions to
amend traditional pleadings. See Fed. R. Civ. P. 15(a)(2). Under Rule 15(a)(2),
the court may “properly deny a party’s motion to amend its complaint when
such an amendment would unduly prejudice the non-moving party or would be
futile.” Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008). The
local rules of the District of South Dakota require “any party moving to amend
a pleading to attach a copy of the proposed amended pleading to its motion
with the proposed changes highlighted or underlined[.]” D.S.D. Civ. LR 15.1.
No proposed amended pleading was attached to the motion to amend, so the
court will assume the only proposed change was to add Hulshof’s name as a
named petitioner.
Rule 27(a)(1) provides in pertinent part that “[a] person who wants to
perpetuate testimony about any matter cognizable in a United States court may
file a verified petition in the district court for the district where any expected
adverse party resides.” A plain reading of Rule 27(a)(1) requires that a petition
verified by the person who wants to perpetuate the testimony must be filed and
that the petition involves a matter cognizable in a United States court. Here,
Hulshof has not signed a verified petition. Furthermore, the petition that was
filed does not identify how the anticipated complaint would be cognizable in a
United States court. The petition alleges that jurisdiction is proper “because
the Files are/is believed to be located in, and the parties are all within this
Jurisdiction. The amount in controversy meets the definition of this Court.”
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(Docket 1 at 4). Diversity jurisdiction would not be proper because the parties
are all residents of South Dakota, according to the allegations in the petition.
The other basis for a cognizable claim in federal court is a claim arising under
federal law. See 28 U.S.C. § 1331. But the petition fails to identify what
federal law the complaint would rely on to assert a claim against respondents
in federal court. As a result, the proposed amendment would be futile because
the petition was not verified by Hulshof, and it does not establish that it
involves a matter that is cognizable by this court. Therefore, the motion to
amend is denied. It is
ORDERED that the motion to add petitioner (Docket 33) is denied. The
pre-complaint petition to preserve evidence is dismissed.
Dated February 19, 2015.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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