SUSAN RICHARD NELSON, District Judge.
This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge Jeffrey J. Keyes, dated April 14, 2015 [Doc. No. 68]. Plaintiff James E. Thornberg filed timely Objections to the R&R [Doc. No. 74], to which Defendants responded [Doc. No. 79]. In the R&R, Magistrate Judge Keyes addressed the Motion to Dismiss, or alternatively, Motion for Summary Judgment, filed by Defendants Dale and Carol Gerdin [Doc. No. 50] and Plaintiff's Motion to Amend [Doc. No. 62]. Magistrate Judge Keyes recommended that Defendants' motion be granted, this matter be dismissed with prejudice, and that Plaintiff's Motion to Amend be denied. (R&R at 27 [Doc. No. 68].) Plaintiff has since filed a Motion to Amend/Stay, requesting that this Court either disregard the R&R or defer ruling on the R&R until formal discovery is completed [Doc. No. 76].
According to statute, the Court must conduct a de novo review of any portion of the Magistrate Judge's opinion to which specific objections are made and "may accept, reject, or modify, in whole or part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(c); see also Fed. R. Civ. P. 72(b); D. Minn. L.R. 72.2(b). Based on that de novo review and for the reasons set forth below, the Court adopts the R&R in its entirety.
The facts underlying these motions are thoroughly set forth in the detailed R&R, which the Court incorporates by reference. (R&R at 2-10 [Doc. No. 68].) In brief, in his Complaint, Plaintiff asserts various claims against his former landlords Dale and Carol Gerdin, as well as unnamed Doe Defendants, resulting from the alleged taking of certain items of personal property in late June or early July, 1999.
After they were served with the Complaint, the Gerdins filed an Answer, denying the allegations in the Complaint. (Answer [Doc. No. 30].) Defendants subsequently filed the underlying motion, arguing that all of Plaintiff's claims were time-barred.
Magistrate Judge Keyes found it appropriate to convert the Motion to Dismiss into a Motion for Summary Judgment, given the submission of material outside the record, and in light of the full response submitted in opposition by Plaintiff. (R&R at 10-13 [Doc. No. 68].) Magistrate Judge Keyes considered each of Plaintiff's claims, finding that none of them survived the six-year Minnesota statute of limitations, Minn. Stat. § 541.05. (
In his Objections, Plaintiff contends that the statute of limitations should be excused because he sustained memory loss that rendered him unable to determine the extent of Defendants' involvement in the claims asserted in the Complaint. (
In response to Thornberg's Objections, Defendants ask the Court to adopt the R&R, arguing that previous Court determinations and filings belie Plaintiff's claims of memory loss and that no additional discovery is necessary in light of Plaintiff's undisputed previous awareness of his time-barred claims.
A motion to dismiss pursuant to Rule 12(b)(6) will be treated as a motion for summary judgment "`when matters outside the pleadings are presented to and not excluded by the trial Court.'"
When a court treats a motion to dismiss as a motion for summary judgment, Fed. R. Civ. P. 12(d) requires that the parties "must be given a reasonable opportunity to present all the material that is pertinent to the motion." Parties are deemed to have received constructive notice that the court will treat a motion to dismiss as one for summary judgment when the moving party indicates that it is moving for summary judgment and the parties submit and refer to materials outside the complaint."
Applying these principles to this case, the requisite notice was given. The Gerdins entitled their motion for relief as either a motion to dismiss under Rule 12(b)(6) or a motion for summary judgment under Rule 56(a). (Def.'s Mot. [Doc. No. 50].) Their accompanying brief discussed both standards (Def.'s Mem. Supp. Mot. at 5-7 [Doc. No. 51]), and they submitted a declaration and supporting exhibits — materials outside the pleadings — with their legal memorandum. (
Based on the foregoing, the Court finds that Plaintiff had both actual and constructive notice that the Court would treat Defendants' motion as one for summary judgment. Moreover, to the extent that Plaintiff might have rectified any deficiencies in his pleadings, he took the opportunity to submit proposed amendments to the Court, as noted above. Accordingly, the Court agrees with Magistrate Judge Keyes that treating Defendant's motion as a motion for summary judgment is appropriate here and that the standard of review applicable to summary judgment applies.
As noted in the R&R, that standard of review requires the Court to view the evidence and the inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party.
The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
Jurisdiction in this case is based on diversity of citizenship. (Compl. ¶¶ 1-4 [Doc. No. 1].) As noted in the R&R, a federal court exercising diversity jurisdiction applies state law to claims arising under state law.
The Court first determines the statute of limitations period applicable to each of Plaintiff's claims. Under Minn. Stat. § 541.05, a six-year limitation period applies to actions for trespass and for taking, detaining, or injuring personal property, including actions for specific recovery. Minn. Stat. § 541.05, Subd. 1(3) &(4). On its face, this statute applies to Plaintiff's claims for trespass and conversion of personal property, as the magistrate judge found. (R&R at 17-18 [Doc. No. 68].)
The six-year limitation period of Minn. Stat. § 541.05 also applies to Plaintiff's unjust enrichment and breach of contract claims, as the statute also applies "upon a contract or other obligation, express or implied, as to which no other limitation period is expressly prescribed." Minn. Stat. § 541.05, Subd. 1(1);
The Court agrees with Magistrate Judge Keyes that Plaintiff's "interference with property right" claim is properly construed as a claim for tortious interference. A claim for tortious interference is also subject to the six-year limitation period of Minn. Stat. § 541.05. Minn. Stat. § 541.05, Subd. 1(1);
As to Thornberg's claim for "wrongful eviction" of personal property under Minn. Stat. § 504B.365, Subd. 3, the Court agrees with the magistrate judge that this statute — which concerns the execution of a writ of recovery of premises and orders to vacate — is inapplicable to the facts alleged. (R&R at 20 [Doc. No. 68].) However, as noted in the R&R, even assuming that Plaintiff had asserted a recognized statutory cause of action, the six-year limitation period of Minn. Stat. § 541.05, Subd. 1(2) applies to liabilities created by statute.
Regarding Plaintiff's claim that Defendants aided and abetted the conversion of personal property, Magistrate Judge Keyes properly noted that aiding and abetting the conduct of another is not an independently actionable claim. (R&R at 21-22 [Doc. No. 68]) (citing
Plaintiff also asserts a claim for civil theft. Under Minn. Stat. § 604.14, persons who steal personal property from another are civilly liable to the property owner. As this is a statutory cause of action, it is subject to the six-year limitations period found in Minn. Stat. § 541.05, Subd. 1(2).
As to Plaintiff's claim of "fraudulent concealment," Plaintiff alleges that the Gerdins fraudulently concealed their involvement in the alleged conversion of Plaintiff's personal property. (Compl. ¶¶ 4-8 [Doc. No. 1].) As the magistrate judge correctly noted, fraudulent concealment is not an independent cause of action, but is a doctrine that may toll the applicable statute of limitations.
Finding that all of Plaintiff's claims are subject to the six-year limitations period of Minn. Stat. § 541.05, the Court also finds that there is no disputed issue of fact that the alleged actions underlying Plaintiff's claims occurred in 1999. The Court next considers when Plaintiff became aware of the facts giving rise to his claims, and whether he has demonstrated his lack of awareness of the existence of such facts.
As the Magistrate Judge noted, it is undisputed that Plaintiff was aware of the bases for his causes of action in 1999, when he submitted a claim to the Gerdin's insurer, State Farm, against the Gerdin's insurance policy. (Letter of 9/27/99 from State Farm to J. Thornberg, Ex. B to Compl. [Doc. No. 1-1].) A September 27, 1999 letter from State Farm denying liability coverage on behalf of the Gerdins indicates that Plaintiff provided statements revealing his awareness of the person or persons who removed the property in question, and that State Farm's own investigation failed to establish that the Gerdins had any involvement in the property loss. (
Moreover, as the magistrate judge noted, Plaintiff's brother, Steven Thornberg, wrote Plaintiff a letter on July 10, 2002, reproaching Plaintiff for accusing him of burglary, and informing Plaintiff that he had helped Dale Gerdin remove Plaintiff's items from the Gerdin's building. (Letter of 7/10/02 from S. Thornberg to J. Thornberg, Ex. B to Mem. [Doc. No. 18 at 5].) Even assuming that the Gerdins fraudulently concealed their involvement in the alleged actions, by 2002, Steven Thornberg's letter would have alerted Plaintiff to the Gerdins' role in these events. The six-year limitations period on his claims has since expired.
Similarly, if the Court construed the allegation in Count 1 concerning fraudulent concealment as a claim for fraud, the claim would likewise fail, as it would be subject to the six-year limitations period for fraud claims under Minn. Stat. § 541.05, Subd. 1(6). The limitations period for fraud claims begins to run when the facts constituting the fraud are deemed to have been discovered, or, by reasonable diligence, should have been discovered.
In his Objections, Plaintiff alleges that the statute of limitations should be tolled because "when in the midst of a concealment[-]motivated violent assault by the Gerdin klan [sic], Plaintiff, collapses, died and was revived but he lost his memory: loss was directly due to behavior of Defendants." (Pl.'s Obj. at 4-5 [Doc. No. 74].) Thornberg contends that his memory was not "restored" until 2013, and describes the time from 1999-2013 as a period of "fugue," "as though the Plaintiff were comatose as his memory was essentially dead." (
In any event, the facts here fail to support memory loss or a comatose condition as a plausible excuse to toll the limitations period, even if the Minnesota Supreme Court recognized such an exception. Plaintiff, who is a federal inmate, pleaded guilty to wire fraud and money laundering and was sentenced in 2002 to a 96-month term of imprisonment.
In 2003, while serving his sentence at the federal prison camp in Duluth, Minnesota, Plaintiff escaped.
The Court agrees with the magistrate judge's conclusions regarding denial of leave to amend the Complaint. As the magistrate judge noted, failure to amend the Complaint earlier to include Steven Thornberg is particularly dilatory, given Steven Thornberg's 2002 letter explaining that he removed Plaintiff's items. (R&R at 24-26 [Doc. No. 68].) As the magistrate judge also observed, where there is evidence that a plaintiff knew of the parties whom he seeks to add prior to the beginning of the suit, a court may properly deny the motion to amend as unduly dilatory. (R&R at 24 [Doc. No. 68]) (citing
Plaintiff's request to amend the Complaint to add a conspiracy claim likewise fails, as the magistrate judge concluded. In civil conspiracy actions, conspiracy is based on an underlying tort.
Nor do the facts suggest that discovery would yield additional evidence to support Plaintiff's claims, given Plaintiff's knowledge concerning the disposition of his property — knowledge that dates back to 1999, or at least 2002 — and all of the evidence that corroborates his knowledge. Accordingly, Plaintiff's request that the Court stay its ruling on this R&R, pending the completion of discovery (Pl.'s Mot. to Amend/Stay [Doc. No. 76]), is denied.