Opinion
Civ. No. 03-3641 (RHK/AJB).
September 16, 2004
Berry Willis, pro se, Brooklyn Park, Minnesota.
John D. Thompson and Jessica R. Wymore, Rider Bennett, LLP, Minneapolis, Minnesota, for Defendant Sharon Denise Atkinson.
Michael J. Tostengard, Assistant Attorney General, St. Paul, Minnesota, for Defendants Minnesota Department of Commerce, James Bernstein, Chris Lubin, Bonnie Polta, Daniel Gallatin, Minnesota Office of Administrative Hearings (Administrative Law Judge Beverly Jones Heydinger), and Hennepin County District Court (Judge Katherine L. Anderson).
Rebecca F. Schiller, Reiter Schiller, St. Paul, Minnesota, for Defendants Wells Fargo and Sharon Mros.
No appearance by Defendant Holly Hollister.
MEMORANDUM OPINION AND ORDER
Introduction
In this pro se case, Plaintiff Berry Willis has sued several individuals, business entities, state agencies, and the state courts on various grounds, including fraud, defamation, breach of contract, and assorted civil rights violations. The Court has previously dismissed certain defendants and several claims. See Willis v. Centennial Mortgage Funding, Inc., Civ. No. 03-3641 (RHK/AJB), slip op. at 30-31 (D. Minn. Feb. 2, 2004) (hereinafter, "Willis I"). The remaining defendants have now moved for summary judgment and Willis has asserted several motions of his own. For the reasons set forth below, the Court will grant defendants' motions and deny Willis's motions. As a result of this Order and that of Willis I, this case will be dismissed in its entirety.
Background
Willis is a licensed mortgage broker and CEO of BlackDiamond Mortgage Real Estate Consultants Corporation ("BlackDiamond"), d/b/a ProTech Enterprise Investment Properties Trust ("ProTech"). In general, a mortgage broker solicits or negotiates residential mortgage loans on behalf of borrowers. See Minn. Stat. § 58.02, subds. 14, 23.
In early 2001, Defendant Sharon Atkinson approached Willis about obtaining a home mortgage. Ultimately, she was not pleased with his services. On August 21, 2001, she lodged a complaint with the Better Business Bureau ("BBB"). She stated in part:
Black Diamond took an application for my VA [Veteran's Administration], GI Loan, [but] they were neither qualified or licensed to handle VA Loans. . . . Now, they are double billing for an appraisal, which was paid at the time of closing. . . . I am not sure how they can get away with taking applications for VA Loans, when they are not licensed to handle them? . . . I am afraid that if I do not pay this, they will turn this over to a collection agency and ruin my credit. . . . I need some help to make sure that Black Diamond does not turn this bill over to collection. And that they do not continue to provide mortgages to other people when they are not qualified or licensed to perform VA Loans. . . . [My desired settlement is] [t]hat Black Diamond Mortgage does not turn this bill over to collection and ruin my credit [and] [t]hat someone look into the procedures and practices of this company, to make sure that someone else does not experience the problems that I had with them.
(Atkinson Aff. Ex. A.)
On August 23, 2001, BlackDiamond, represented by Willis, sued Atkinson in the Hennepin County District Court for failing to pay for a home appraisal. See Willis I, at 4-5. Eventually, the state court entered a default judgment against BlackDiamond and determined, among other things, that no contract existed between it and Atkinson. Id. at 5.
On August 24, 2001, Atkinson lodged a complaint with the Minnesota Attorney General's Office ("AG's Office"). She stated in part:
I would like for you to investigate the Black Diamond Mortgage Consultants. . . . I was not advised by Black Diamond that they are neither qualified or licensed to handle VA loans. . . . Black Diamond went on their merry way and set up the loan as conventional even to ordering a conventional appraisal even though all documentation clearly states this was a GI Loan. . . . Black Diamond had the file for almost two months before referring it to Centennial Mortgage. I do not understand the time delay when Black Diamond knew full well that they could not handle it. . . . When Black Diamond referred the loan over to Centennial they signed a release of all obligations. Once Black Diamond referred my loan to Centennial any contract that I had with Black Diamond was vacated. (Atkinson Aff. Ex. B.) On August 27, 2001, Atkinson lodged a second complaint with the AG's Office with similar grievances. (Atkinson Aff. Ex. C.)
On January 8, 2002, Willis, on behalf of BlackDiamond, responded to Atkinson's complaints in a letter to the Minnesota Department of Commerce ("DOC"). (Atkinson Aff. Ex. D.) On January 22, 2002, Atkinson sent a rebuttal letter to the DOC. She stated in part:
Because I feel that I have been wronged I will continue to file complaints with the Attorney Generals Office. Someone must investigate the practices and procedures of Black Diamond Mortgage. [T]hey should not be allowed to continue in business when they operate in this manner. In simple terms, I implore you not to accept Black Diamonds answers to my complaints and please continue your investigation. I would be more than happy to swear under oath that my complaint is justified.
(Id. Ex. E.) She faxed a copy of Willis's letter to her new mortgage broker. (Id. Ex. F.) On the fax's cover sheet she noted, "It appears that Berry Willis is representing himself as an attorney at law." (Id.)
In March or April 2002, Atkinson petitioned in state court for a Harassment Restraining Order against Willis. She stated in part:
There have been numerous other phone calls at my place of work and at home. The phone calls have threatened to destroy my credit rating and have placed my position at work in jeopardy. . . .
09/25/01 Received another bill charging me 8% interest and a finance charge. This amount was now up to $463.45 with a disclaimer, stating that Black Diamond would do everything that they needed to do to collect this debt which included garnishment of wages and a lien on my home. This had taken me to the breaking point, I had to seek medical attention for my headaches. I am on a controlled drug to stop the headaches.
10/25/01 Received another invoice, stating that Black Diamond Mortgage was going to send my name to a collection agency and also to three reporting bureaus. . . .
02/10/02 Received another bill and letter from Black Diamond Mortgage with threats of legal action. At this point, I am crying all of the time. I am having panic attacks at home, while driving and at work. They have made it difficult for me to function in my life and work and relationship with other people. . . .
(Id. Ex. G.)
Also in 2001, Defendant Holly Hollister approached Willis about obtaining a mortgage. At some point thereafter, Hollister presented Willis with a cashier's check in the amount of $4,500 made payable to Fairlane Credit. (Schiller Aff. Ex. B (Willis Dep. Ex. 3).) On December 28, 2001, Willis endorsed the check and deposited it into ProTech's Wells Fargo checking account. (Id. Exs. A (Willis Dep. Tr. at 12); B (Willis Dep. Exs. 4, 5).) Willis is not an officer or employee of Fairlane Credit. (Id. Ex. A (Willis Dep. Tr. at 11).) When he opened the ProTech account with Wells Fargo's predecessor in interest, Marquette Bank, he signed a Signature Card and received a Deposit Account Agreement and Disclosures ("Agreement"). (Id. Ex. B (Willis Dep. Ex. 6).) The Agreement stated in part:
Deposits. You authorize us to accept a deposit to your account from anyone, made in any manner and at any time. . . .
Deposits made in a form other than cash are received "subject to collection" and are handled by us as your collecting agent. . . . If we are unable to collect any check or other non-cash item, we have the right to charge the item back against your account, along with any interest earned and any applicable fees and charges. . . .
If a check or other item is deposited into your account without an endorsement, you agree to be liable on the item as if you personally endorsed it. . . .
* * *
Deposit Receipts. Deposit receipts are subject to later count and verification of the items deposited. . . .
(Mros Aff. Ex. A.)
On March 15, 2002, Hollister filed an "Affidavit or Declaration of Lost, Stolen or Destroyed Cashier's Check" in Hennepin County, Minnesota. (Willis 8/5/04 Aff. "Misc. Exhibits".) In that document, she indicated that she could not determine the whereabouts of the cashier's check she presented to Willis. (See id.) On March 31, 2002, she lodged a complaint with the DOC regarding Willis's handling of the cashier's check. (See Tostengard Aff. Ex. A.)
On April 17, 2002, Wells Fargo's Brookdale branch bank received an "Affidavit of Forgery" from Fairlane Credit regarding the cashier's check Willis had deposited. (Schiller Aff. Ex. B (Willis Dep. Ex. 8).) In that document, Fairlane indicated that the cashier's check was made payable to it, but the endorsement was a forgery or was unauthorized. (See id.) On April 23, 2002, Wells Fargo charged back the deposited funds against the ProTech account. (Id. Ex. 9.) Defendant Sharon Mros is the Brookdale branch manager. (Mros Aff. ¶ 1.)
On December 3, 2002, the DOC commenced an action against BlackDiamond's license. (Tostengard Aff. Ex. A.) In doing so, the DOC served Willis with a "Notice Of And Order For Hearing, Notice of Prehearing Conference, And Statements of Charges" ("Statement of Charges"). (Id.) In the Statement of Charges, the DOC alleged that BlackDiamond had violated Minnesota law in various ways. (Id.) Defendant James Bernstein is the former Commissioner of Commerce and Defendants Chris Lubin, Bonnie Polta, and Daniel Gallatin are DOC investigators. (Id. ¶ 2.) The Administrative Law Judge on the matter, Beverly Jones Heydinger, has stayed that proceeding pending the result of the instant lawsuit. (Id. ¶ 3.)
On June 28, 2002, the DOC sent Wells Fargo a Subpoena Duces Tecum requesting documents pertaining to accounts held by BlackDiamond and ProTech. (Mros Aff. Ex. E.) Wells Fargo forwarded the requested documents to the DOC. (Id. ¶ 16.) Under the Agreement, Wells Fargo "may disclose non-public personal information in response to an inquiry by a law enforcement agency, other governmental authority or agency, or self regulatory organizations to the extent permitted or required by the Right to Financial Privacy Act of 1978 and related state laws." (Mros Aff. Ex. A.)
On July 14, 2003, Willis filed this lawsuit. On February 2, 2004, this Court dismissed claims against several defendants.See Willis I. The remaining defendants have now moved for summary judgment on all the remaining claims.
Standard of Review
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56. It is to be granted only where the evidence is such that no reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). The Court views the evidence, as well as all reasonable inferences, in a light most favorable to the nonmoving party. See Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996); see Adkinson v. G.D. Searle Co., 971 F.2d 132, 134 (8th Cir. 1992). The moving party carries the burden of showing that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);Mems v. City of St. Paul, Dep't of Fire Safety Servs., 224 F.3d 735, 738 (8th Cir. 2000). The nonmoving party, however, may not rest upon the allegations or denials of its pleadings. Rather, the nonmovant must establish the existence of specific facts that create a genuine issue for trial. Neither mere allegations nor denials are sufficient. See Liberty Lobby, 477 U.S. at 256.
Analysis
I. Atkinson's Motion for Summary Judgment
In Count 9, Willis alleges that Atkinson defamed him. Most of his defamation allegations against Atkinson were dismissed inWillis I. Those which remain are allegations that Atkinson made false statements:
(A) In complaints to the Better Business Bureau and Attorney General (see Complaint Count 9 (¶¶ 38, 39));
(B) "That [Willis] misrepresented himself as an attorney to other parties" and about "her business contract and relationship with [Willis]" (id. Count 9 (¶ 40)); and
(C) That "there have been numerous phone calls at the defendant[']s place of work and at home"; "the phone calls have threatened to destroy defendant[']s credit rating"; "she is under medical attention"; and "[Willis] had taken her to the breaking point, where she had to seek medical attention for her headaches that was caused by [Willis]" (id. Count 9 (¶ 42)). See Willis I, at 30 n. 11. Atkinson has moved for summary judgment on these remaining allegations.
A. Complaints to the BBB and AG's Office
Willis alleges that Atkinson's complaints to the BBB and AG's Office were defamatory. Atkinson responds that her statements are protected by a qualified privilege. (Def. Atkinson's Mem. in Supp. at 6-8.) For a statement to be defamatory, it must be false, it must be communicated to another, and it must tend to harm the plaintiff's reputation and to lower him in the estimation of the community. Bol v. Cole, 561 N.W.2d 143, 146 (Minn. 1997); Stuempges v. Parke, Davis Co., 297 N.W.2d 252, 255 (Minn. 1980) (citation omitted). "One who makes a defamatory statement will not be held liable if the statement is published under circumstances that make it qualifiedly privileged and if the privilege is not abused." Bol, 561 N.W.2d at 149 (citation omitted). "Qualified privilege applies when a court determines that statements made in particular contexts or on certain occasions should be encouraged despite the risk that the statements might be defamatory." Id. (citation and internal quotations omitted). "For a defamatory statement to be protected by a qualified privilege, the statement must be made in good faith and must be made upon a proper occasion, from a proper motive, and must be based upon reasonable or probable cause."Id. (citation and internal quotations omitted). Whether a qualified privilege exists is a question of law for the court.Id.
Atkinson's complaints to the BBB and AG's Office are protected by a qualified privilege. The evidence demonstrates that her statements were made in good faith, upon a proper occasion, from a proper motive, and based upon reasonable or probable cause. First, she chose the proper occasion to make her complaints, as both the BBB and the AG's Office provide consumer protection services. See Fed.R.Evid. 201(b). Second, she had a proper motive in that she "wanted someone to investigate the way BlackDiamond was doing business and make sure it was not mishandling mortgages for its other customers." (Atkinson Aff. ¶ 2.) Finally, her statements were based on reasonable or probable cause resulting from her firsthand experiences with BlackDiamond and Willis. In sum, a qualified privilege applies in this case because statements made in the context of reporting consumer complaints "should be encouraged despite the risk that the statements might be defamatory." Bol, 561 N.W.2d at 149 (citation and internal quotations omitted) (finding qualified privilege protected psychologist's report of child abuse); see McClure v. American Family Mut. Ins. Co., 223 F.3d 845, 854 (8th Cir. 2000) (finding qualified privilege protected insurance carrier's statements to clients of former insurance agents).
Atkinson's qualified privilege can be lost, however, if Willis can show that the defamatory statements were made with malice.Bol, 561 N.W.2d at 150. "Malice is defined as actual ill will or a design causelessly and wantonly to injure the plaintiff."Id. (citation and internal quotations omitted). It cannot be implied from the statement itself or from the fact that it was false. Id. Instead, malice can be shown by "extrinsic evidence of personal spite, as well as by intrinsic evidence such as the exaggerated language of the libel, the character of the language used, the mode and extent of publication, and other matters in excess of the privilege." Id. (citation and internal quotations omitted). Whether a qualified privilege has been lost "is a question of fact, and is reviewed on summary judgment to determine whether the evidence submitted raises a genuine issue of material fact." McClure, 223 F.3d at 854 (citing Bol, 561 N.W.2d at 150) (footnote omitted).
Willis has failed to raise a genuine issue of material fact regarding malice. Although Atkinson was displeased with how Willis had conducted his business, Willis has offered no extrinsic evidence of Atkinson's personal spite and he has failed to show through intrinsic evidence that the language used was exaggerated or was published in excess of the privilege.
B. Statement That Willis Represented Himself as an Attorney and Statement About Her Business Contract and Business Relationship With Willis
Willis also alleges that Atkinson falsely stated that Willis represented himself as an attorney and falsely stated her "business contract and relationship with [him]." Atkinson argues that neither statement is actionable because the former is an opinion, while the latter is true. (Def. Atkinson's Mem. in Supp. at 8-9.) "It is well-recognized in Minnesota that the First Amendment absolutely protects opinion that lacks a provably false statement of fact." McClure, 223 F.3d at 853 (citation and internal quotations omitted). Whether a statement can be interpreted as stating facts or can be proven false is a question of law. Id. In addressing this question, courts consider four factors: (1) the specificity and precision of the statement; (2) the statement's verifiability; (3) the social and literary context of the statement; and (4) the public context in which the statement was made. Id.; see Metge v. Central Neighborhood Improvement Ass'n, 649 N.W.2d 488, 498 (Minn.Ct.App. 2002).
Neither of Atkinson's statements contains a provably false statement of fact. First, her statement that "[i]t appears that Berry Willis is representing himself as an attorney at law," a statement characterizing a letter Willis sent to the DOC, is not sufficiently precise or verifiable to support a defamation claim:
A commentator who advocates one of several feasible interpretations of some event is not liable in defamation simply because other interpretations exist. Consequently, remarks on a subject lending itself to multiple interpretations cannot be the basis of a successful defamation action because as a matter of law no threshold showing of "falsity" is possible in such circumstances.McClure, 223 F.3d at 853 (quoting Hunter v. Hartman, 545 N.W.2d 699, 707 (Minn.Ct.App. 1996)). This result is consistent with the holdings in similar cases under Minnesota law. See, e.g, id. (finding statements that plaintiffs had engaged in "disloyal and disruptive activity" and "conduct unacceptable by any business standard," that they did not understand the "value of loyalty and keeping promises," and were "acting against the best interests of the insurance buying public" were not provably false statements of fact); Geraci v. Eckankar, 526 N.W.2d 391, 397 (Minn.Ct.App. 1995) (finding statements that plaintiff had "poisoned the board," was "a bad influence," was "emotional," and "not a team player" could not be interpreted as stating facts).
Second, her statements about "her business contract and relationship with [Willis]," which apparently refers to comments she made to the DOC, the BBB, and AG's Office that she had no contract with Willis, are not only protected by a qualified privilege, see supra Analysis Part I.A, but they are also true. In the state court action BlackDiamond initiated against Atkinson, the Hennepin County District Court concluded that no contract existed between Atkinson and BlackDiamond. See Willis I, at 6. "[T]rue statements, however disparaging, are not actionable." Stuempges, 297 N.W.2d at 255. Furthermore, this Court has no authority to review the state court's determination.See Lemonds v. St. Louis County, 222 F.3d 488, 492 (8th Cir. 2000) (recognizing that under the Rooker-Feldman doctrine lower federal courts lack subject matter jurisdiction over challenges to state court judgments).
C. Statements in Petition for a Harassment Restraining Order
Finally, Willis alleges that Atkinson falsely stated that (a) there were numerous phone calls at her place of work and at home, (b) the phone calls threatened to destroy her credit rating, (c) she is under medical attention, and (d) Willis had taken her to the breaking point. Atkinson asserts that each statement is absolutely privileged because each was made exclusively in her state court petition for a Harassment Restraining Order. (Def. Atkinson's Mem. in Supp. at 5-6.) The Court agrees. "[D]efamatory matter published in the due course of a judicial proceeding is absolutely privileged and will not support a civil action for defamation although made maliciously and with knowledge of its falsehood." Matthis v. Kennedy, 67 N.W.2d 413, 417 (Minn. 1954). The absolute privilege protects "the party or parties, counsel, and witnesses" and encompasses "anything that may possibly be pertinent." Id. at 417, 418. As this Court previously determined in Willis I, Atkinson's statements made in the petition to the state court are absolutely privileged, see Willis I, at 21 (citing Matthis, 67 N.W.2d at 417).
D. Summary
As a result of the foregoing, the Court will grant Atkinson's Motion with respect to each of Willis's remaining claims against her.
II. Wells Fargo's and Mros's Motion for Summary Judgment and Motion to Dismiss
A. Fraud and False Statements (Count 22)
In Count 22, Willis alleges that Wells Fargo and Mros, the manager of Wells Fargo's Brookdale branch, made fraudulent and false statements. Specifically, he asserts that these defendants committed fraud by charging back against the ProTech account funds he deposited from the cashier's check. (See Compl. Count 22 (¶ 89).) The elements of fraud are the making of
Willis also asserts that Wells Fargo and Mros "file[d] a false police report." (Compl. Count 22 (¶ 89).) But he has not provided any supporting evidence and Mros denies filing a police report. (Mros Aff. ¶ 14.) Instead, it appears that Holly Hollister filed the "police report." (See Willis 8/5/04 Aff. "Misc. Exhibits".) Willis's allegations concerning Hollister will be addressed below. See infra Analysis Part IV.
a false representation of a past or existing material fact, susceptible of knowledge, knowing it to be false or without knowing whether it was true or false, with the intention of inducing the person to whom it was made to act in reliance upon it or under such circumstances that such person was justified in so acting and was thereby deceived or induced to so act to his damage.Children's Broad. Corp. v. Walt Disney Co., 245 F.3d 1008, 1020 (8th Cir. 2001) (quoting Berryman v. Riegert, 175 N.W.2d 438, 442 (Minn. 1970)). Wells Fargo and Mros respond that they acted in reliance on statements made by third parties and made no false statements themselves. (Defs. Wells Fargo and Sharon Mros's Mem. in Supp. of Summ. J. at 7.)
Willis has not generated a genuine issue of material fact as to whether Wells Fargo or Mros committed fraud. Wells Fargo charged back the funds from ProTech's account based upon Fairlane Credit's Affidavit of Forgery and Hollister's Affidavit or Declaration of Lost, Stolen, or Destroyed Cashier's Check. Willis cannot sustain a fraud claim against Wells Fargo or Mros because there is no evidence that either made a "false representation of a past or existing material fact . . . with the intention of inducing [Willis] to act in reliance upon it." Id.
B. Breach of Contract (Count 23)
To the extent Willis alleges that Wells Fargo or Mros violated 18 U.S.C. § 1006 — a criminal statute prohibiting the making of false statements in the records of certain lending institutions, see United States v. Pettigrew, 77 F.3d 1500, 1510 (5th Cir. 1996) — there is no private right of action to enforce its prohibitions, see Fed. Sav. Loan Ins. Corp. v. Reeves, 816 F.2d 130, 137-38 (4th Cir. 1987). To the extent Willis also alleges that Wells Fargo or Mros violated Minnesota's Deceptive Trade Practices Act, Minn. Stat. § 325D.44 — which prohibits deceptive trade practices such as passing off goods or services as those of another, Watkins Inc. v. Lewis, 346 F.3d 841, 847 (8th Cir. 2003) — Willis has provided no evidence supporting his claim.
In Count 23, Willis alleges that Wells Fargo is in breach of contract. Specifically, he alleges:
The Plaintiff is suing the Defendant Breach of Contract for [failure] to maintain adequate public safety and procedure in maintaining an account hold with their institution, and for making and creating fraudulent transaction regarding the plaintiff account.
(Compl. Count 23 (¶ 93).) Although he does not specify what contractual provision — express or implied — has been breached, he apparently bases his claim upon Wells Fargo's charge back of funds from the ProTech account. Wells Fargo and Mros contend that its actions were permitted under the Agreement. (Defs. Wells Fargo and Sharon Mros's Mem. in Supp. of Summ. J. at 8-9.)
A breach of contract claim consists of four elements: (1) a valid contract; (2) performance by plaintiff of any conditions precedent; (3) a material breach of the contract by defendant; and (4) damages. See Briggs Transp. Co. v. Ranzenberger, 217 N.W.2d 198, 200 (Minn. 1974); Parkhill v. Minn. Mut. Life Ins. Co., 174 F. Supp. 2d 951, 961 (D. Minn. 2000). "Contract interpretation is a question of law . . . [and] the primary goal of contract interpretation is to determine and enforce the intent of the parties." Travertine Corp. v. Lexington-Silverwood, 683 N.W.2d 267, 271 (Minn. 2004) (citations omitted). "[W]hen a contractual provision is clear and unambiguous, courts should not rewrite, modify, or limit its effect by a strained construction."Id. (citations omitted).
Willis has failed to generate a genuine issue of material fact as to whether Wells Fargo breached the Agreement. As an initial matter, Willis has not pointed to a single contractual provision that has been breached. Lacking evidence of that essential element, his claim fails on that basis alone.See Briggs, 217 N.W.2d at 200. Additionally, the Agreement provides that "[d]eposits made in a form other than cash are received `subject to collection,'" "[d]eposit receipts are subject to later count and verification of the items deposited," and "[i]f we are unable to collect any check . . . we have the right to charge the item back against your account." (Mros Aff. Ex. A.) The unambiguous intent of the parties as evinced by these provisions is that Wells Fargo was permitted to charge back funds from ProTech's account that were not authorized for deposit.
To the extent Willis alleges that Wells Fargo breached the Agreement by providing documents to the DOC in response to the subpoena (see Mros Aff. ¶ 16, Ex. E)), his claim fails. Under the Agreement, Wells Fargo "may disclose non-public personal information in response to an inquiry by . . . [a] governmental authority or agency . . . to the extent permitted or required by the Right to Financial Privacy Act of 1978 and related state laws." (Mros Aff. Ex. A.) Willis has not generated a genuine issue of material fact as to whether this provision was breached.
C. Defamation (Count 24)
In Count 24, Willis alleges that Wells Fargo and Mros defamed him. Specifically, he alleges:
Plaintiff incorporates all paragraphs of this Complaint as if fully set forth under this Count and . . . further alleges under 18 [U.S.C.] § 1006 for defamation of character for filing false and fraudulent information pertaining to the license, and to the Brooklyn Park Police Department that we[re] untrue pertaining to the Plaintiff by making defamatory statements to third parties.
(Compl. Count 24 (¶ 95).) Although it is not entirely clear, it appears that he bases part of his claim upon information Wells Fargo provided to the DOC (i.e., "information pertaining to the license"). While Wells Fargo did provide documents to the DOC in response to a subpoena, its actions are absolutely privileged from a defamation suit. See Kellar v. VonHoltum, 568 N.W.2d 186, 192 (Minn.Ct.App. 1997) (stating that the absolute privilege "has been extended to statements made in quasi-judicial proceedings" such as those held by the DOC). Additionally, while Willis also appears to base his claim on information given to the police, there is no evidence that Wells Fargo or Mros provided the police with any information and Mros's denial to that effect is unchallenged. (See Mros Aff. ¶ 14.) Further, any claims Willis makes under 18 U.S.C. § 1006 fail because there is no private right of action to enforce its prohibitions. See supra n. 3. D. Vicarious Liability (Count 25)
In Count 25, Willis asserts that Wells Fargo is vicariously liable for Mros's conduct. (Compl. Count 25 (¶ 98).) Having previously determined that Willis's claims against Mros for fraud and defamation fail to survive summary judgment, see supra Analysis Part II.A and C, Willis's vicarious liability claim against Wells Fargo must also fail. Willis also seeks to hold Wells Fargo vicariously liable for the actions of Holly Hollister, but his claim fails because she was not a Wells Fargo employee.
E. Negligent Retention and Negligent Supervision (Counts 26 and 27)
In Counts 26 and 27, Willis makes claims against Wells Fargo for negligent retention and negligent supervision. Under Minnesota law, a viable claim of negligent retention or negligent supervision requires the infliction, or threat, of a physical injury. See Semrad v. Edina Realty, Inc., 493 N.W.2d 528, 534 (Minn. 1992); Bruchas v. Preventative Care, Inc., 553 N.W.2d 440, 443 (Minn.Ct.App. 1996); Willis I, at 22. Willis has provided no evidence that any Wells Fargo employee caused, or threatened, physical harm. When asked whether Mros had caused or threatened physical harm, Willis testified: "Basically there's actual physical injury based on Wells Fargo filing a false police report and the Department of Commerce is basically attempting to revoke a license. That definitely is grounds for physical injuries." (Schiller Aff. Ex. A (Willis Dep. Tr. at 24).) When asked how the police report and the DOC's actions could be construed as threats of physical harm, Willis testified, "It's a big physical threat. Basically as reporting false information to police, it simulates to repeat harassment by the police department. It does cause physical injuries." (Id. Ex. A (Willis Dep. Tr. at 24).) Besides the fact that Willis has produced no evidence of a Wells Fargo police report, no reasonable jury could conclude from Willis's testimony that Wells Fargo (or its employees) caused or threatened physical harm. His unsubstantiated allegations to the contrary border on the ridiculous. To survive summary judgment, Willis must substantiate his allegations with sufficient probative evidence that would permit a finding in his favor based on more than mere speculation, conjecture, or fantasy. See Putnam v. Unity Health Sys., 348 F.3d 732, 733-34 (8th Cir. 2003). He has not done so.
F. Arbitration
In opposition to Wells Fargo's Motions, Willis claims that the dispute between them must be sent to arbitration. (See "The Plaintiff Notice and Motion Opposing Defendant(s) Wells Fargo and Sharon Mros Motion and Order for Summary Judgment and Motion for Dismissal and the Plaintiff Motion and Order Staying Court Proceeding Entitle the Court Revise its Order on February 2, 2004 and the Claims Against Wells Bank Are Settle by Legal Binding Arbitration" at 32.) In support of his argument, he relies upon the "Arbitration Agreement" contained in Wells Fargo's "Business Disclosure" pamphlet. (See Willis 8/5/04 Aff. Ex. 1.)
Willis has waived his right to arbitration. As the Eighth Circuit recently observed, "the party seeking arbitration may be found to have waived his right to it . . . if he (1) knew of an existing right to arbitration; (2) acted inconsistently with that right; and (3) prejudiced the other party by these inconsistent acts." Kelly v. Golden, 352 F.3d 344, 349 (8th Cir. 2003) (citations and internal quotations omitted). First, Willis cannot dispute that he knew of his right to arbitrate. Second, he acted inconsistently with his right. "A party acts inconsistently with its right if it [s]ubstantially invoke[s] the litigation machinery before asserting its arbitration right by failing to request a stay and fully adjudicating its rights." Id. (citation omitted) (alterations in original). It cannot reasonably be disputed that Willis has "[s]ubstantially invoke[d] the litigation machinery" by filing a complaint against Wells Fargo, opposing Wells Fargo's motions, and filing motions of his own. Finally, Wells Fargo is prejudiced by Willis's delay in seeking arbitration. "Prejudice results when, inter alia, parties use discovery not available in arbitration, when they litigate substantial issues on the merits, or when compelling arbitration would require a duplication of efforts." Id. (citation omitted). In this case, Wells Fargo incurred expenses and experienced substantial delay as a result of the extensive litigation, which has now spanned more than one year, has litigated substantial issues on the merits, and it would be required to duplicate its efforts if it were required to arbitrate. See id. at 350.
G. Summary
As a result of the foregoing, the Court will grant Wells Fargo's and Mros's Motions with respect to each of Willis's claims against them. III. State Defendants' Motion for Summary Judgment
Willis has moved to strike Sharon Mros's and Rebecca Schiller's Affidavits. (See "The Plaintiff Notice and Motion Opposing Defendant(s) Wells Fargo and Sharon Mros Motion and Order for Summary Judgment and Motion for Dismissal and the Plaintiff Motion and Order Staying Court Proceeding Entitle the Court Revise its Order on February 2, 2004 and the Claims Against Wells Bank Are Settle by Legal Binding Arbitration" at 4.) Because he has not provided any supporting evidence or relevant legal argument, the Court will deny his request.
A. Defamation (Count 1)
In Count 1, Willis asserts that the DOC's allegations that he had violated Minnesota law contained in its Statement of Charges were defamatory. (Compare Compl. Count 1 (¶¶ 4-10), with Tostengard Aff. Ex. A (Statement of Charges ¶¶ 17-24).) The DOC's Statement of Charges, however, is absolutely privileged from a defamation suit. See Matthis, 67 N.W.2d at 417; Kellar, 568 N.W.2d at 192; Willis I, at 16-17.
B. Discrimination in Public Services (Count 2)
In Count 2, Willis alleges that the DOC discriminated against him in the access to public services. Under Minn. Stat. § 363A.12, subd. 1, "[i]t is an unfair discriminatory practice to discriminate against any person in the access to, admission to, full utilization of or benefit from any public service because of race." Under this statute, Willis must show that he was treated differently with respect to public services than others similarly situated, or that the treatment of him was so different from what would be expected that discrimination is the probable explanation. See Greiner v. City of Champlin, 27 F.3d 1346, 1355 (8th Cir. 1994); City of Minneapolis v. Richardson, 239 N.W.2d 197, 202 (Minn. 1976). He has failed, however, to make such a showing.
"Public services" are defined as, inter alia, "any public facility, department, agency, board or commission, owned, operated or managed by or on behalf of the State of Minnesota." Minn. Stat. § 363A.03, subd. 35.
C. 42 U.S.C. § 1983 (Count 3)
In Count 3, Willis asserts violations of 42 U.S.C. § 1983 against the DOC, its former commissioner (James Bernstein), and three of its employees (Chris Lubin, Bonnie Polta, and Daniel Gallatin). Specifically, Willis alleges:
[T]hat Defendants misconduct described above [in Counts 1 and 2], including their abuse of their position and authority against the plaintiff's constitutes an impermissible use of their office to restrict the Plaintiff's liberties and, as a result, Defendants has violated the Plaintiff's constitutionally protected rights, in violation of the Fourth Amendment of the United States Constitution, 42 U.S.C. § 1983, and the Minnesota State Constitution that allows the plaintiff to seek redress. . . . The Plaintiff's alleges that "a person" as in the Defendants James C. Bernstein, Bonnie J. Polta, Daniel M. Gallatin and Chris Lubin acted under color of state law, and that the action of these individually actually deprived the Plaintiff of his rights, privileges, and immunities secured by the Federal Constitution or federal laws. . . .
(Compl. Count 3 (¶ 18).) Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . . 42 U.S.C. § 1983.
Defendants argue that Willis's § 1983 claims fail because: (1) neither the individual defendants sued in their official capacities, nor the DOC, are "persons" within the meaning of § 1983; (2) the individual defendants sued in their personal capacities are protected by qualified immunity; and (3) the individual defendants sued in their personal capacities are protected by absolute immunity. (Mem. in Supp. at 10-12.)
With respect to the defendants' first argument, "[t]o the extent that the individual defendants were sued in their official capacities and that the [DOC] itself was sued, the defendants are not `persons' within the meaning of § 1983." Zar v. South Dakota Board of Examiners of Psychologists, 976 F.2d 459, 464 (8th Cir. 1992) (citing Hafer v. Melo, 502 U.S. 21, 27 (1991)).
With respect to the defendants' second argument, qualified immunity "shields government officials from suit unless their conduct violated a clearly established constitutional or statutory right of which a reasonable person would have known."Davis v. Hall, 375 F.3d 703, 711 (8th Cir. 2004) (citations and internal quotations omitted); see Zar, 976 F.2d at 464. Courts employ a two-part inquiry to determine whether a lawsuit against a public official can proceed in the face of the official's assertion of qualified immunity. Davis, 375 F.3d at 712 (citations omitted). First, courts must consider whether, when viewed in the light most favorable to the party asserting the injury, the facts alleged show the public official's conduct violated a constitutional right. Id. The existence of a constitutional right is the threshold question; if the answer to this inquiry is no, the inquiry ends and the defendant is entitled to qualified immunity. See id. However, if a constitutional right may have been violated, the second step requires courts "to ask whether the right was clearly established." Id. (citation and internal quotations omitted).
Although it is not entirely clear, Willis appears to allege that the individual defendants have deprived him of procedural due process. (See Compl. Count 3 (¶ 18).) His constitutional rights were purportedly violated when the defendants investigated complaints and brought an administrative action against him.
The individual defendants are entitled to qualified immunity because Willis has not shown that they violated procedural due process. "A deprivation by state action of a constitutionally protected interest in life, liberty, or property is not a violation of federal procedural due process and is not actionable under § 1983 `unless and until the State fails to provide due process.'" Zar, 976 F.2d at 465 (citing Zinermon v. Burch, 494 U.S. 113, 126 (1990)). Not only has Willis not shown any deprivation of a protected interest in life, liberty, or property, but he has also not shown that the state failed to provide him due process. To the contrary, the DOC's action has been stayed pending this lawsuit. (See Tostengard Aff. ¶ 3.) When that action resumes, Willis can make arguments and present evidence in a hearing before an Administrative Law Judge ("ALJ") and can appeal the ALJ's final decision to the Minnesota Court of Appeals. See Minn. Stat. §§ 14.58, 14.63; Bohn v. Dakota County, 772 F.2d 1433, 1437 (8th Cir. 1985). Because the defendants are entitled to qualified immunity, the Court need not address their absolute immunity arguments.
D. Fraud and False Statements (Count 4)
In Count 4, Willis asserts that the DOC, its former commissioner, and the three DOC employees made fraudulent or false statements. Specifically, he alleges:
[T]hat Defendants misconduct described above [in Counts 1, 2, and 3], including their abuse of their position and authority against the plaintiff's was done deliberately, willfully, and maliciously, when the Defendants engaged into this . . . [un]lawful misconduct of fraud and false statements against the Plaintiff(s) knowing that the statements that where made by the Department [were] false and fabricated by the Department of Commerce, through its agents, servants and employees for their own personal outcome. When in FACT the Department of Commerce never did a[n] internal investigation of the Plaintiff(s) business practices nor did the Department conclude a financial audit of the Plaintiff.
(Compl. Count 4 (¶ 20).) As with his fraud claims against Wells Fargo and Mros, Willis cannot sustain a fraud claim against these defendants because there is no evidence that any of them made a "false representation of a past or existing material fact . . . with the intention of inducing [Willis] to act in reliance upon it." Children's Broad. Corp., 245 F.3d at 1020.
E. Retaliation (Count 5)
In Count 5, Willis contends that the DOC, its former commissioner, and the three DOC employees unlawfully retaliated against him for complaining about the DOC by bringing the Statement of Charges. (Compl. Count 5 (¶ 22).) He does not, however, specify under what legal theory of retaliation, state or federal, his claims rest. "Summary judgment should be granted . . . when the nonmoving party fails to meet its burden to come forward with facts and law demonstrating a basis for recovery that would support a jury verdict." Beattie v. Madison County Sch. Dist., 254 F.3d 595, 600 (5th Cir. 2001). Indeed, "[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment. . . . Rather, the onus is upon the parties to formulate arguments." Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (citations omitted). Although pro se complaints are to be construed liberally, Willis has not met his burden to come forward with facts and law demonstrating a basis for recovery. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004) (stating that pro se complaints, though construed liberally, "still must allege sufficient facts to support the claims advanced"); Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (regarding a pro se plaintiff, "we will not supply additional facts, nor will we construct a legal theory for plaintiff that assumes facts that have not been pleaded").
F. Racketeer Influenced and Corrupt Organization Act (Count 6)
In Count 6, Willis asserts that the DOC, its former commissioner, and the three DOC employees have violated the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. §§ 1961-68. (Compl. Count 6 (¶¶ 23-24).) Specifically, he alleges that the DOC "created fraudulent charges" to extort money. (Id. Count 6 (¶ 24).) Section 1962(c) of the RICO Act makes it "unlawful for any person employed by or associated with any enterprise engaged in . . . interstate . . . commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." 18 U.S.C. § 1962(c). Section 1964(c) allows a private party, who has been injured in his property from a RICO violation, to sue for damages. See id. § 1964(c);Wisdom v. First Midwest Bank, of Poplar Bluff, 167 F.3d 402, 406 (8th Cir. 1999).
To survive summary judgment, a RICO plaintiff must provide evidence of "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Wisdom, 167 F.3d at 406 (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985)). The pattern element "requires at least two acts of racketeering activity." 18 U.S.C. § 1961(5); see Wisdom, 167 F.3d at 406. "Racketeering activity" is defined in § 1961(1) as any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemicals, acts indictable under certain federal laws, and numerous other offenses. See 18 U.S.C. § 1961(1); Handeen v. Lemaire, 112 F.3d 1339, 1357 (8th Cir. 1997). Merely pleading two or more acts, however, is not by itself sufficient to support a RICO claim. Wisdom, 167 F.3d at 406. "[T]he predicate acts must be related and must amount to or pose a threat of continued criminal activity." Id. (citation and internal quotations omitted).
Willis has not generated a genuine issue of material fact on his RICO claim. Specifically, his allegations of common law fraud and extortion committed by these defendants fail to establish the necessary two acts of racketeering activity. First, common law fraud is not an actionable predicate act under RICO. Smith v. Wampler, 95 Fed. Appx. 194, 195 (8th Cir. 2004) (citing cases) (unpublished); see Handeen, 112 F.3d at 1348. Second, although extortion is a predicate act, see 18 U.S.C. § 1961(1), Willis provides no evidence of extortion to substantiate his claim. Extortion is defined as "obtaining . . . property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U.S.C. § 1951(b)(2); see Wisdom, 167 F.3d at 407. As there is no evidence of wrongful use of actual or threatened force, violence, or fear, Willis's claim must rest upon the theory that these defendants threatened to obtain his property under color of official right. Extortion "under color of official right" involves "the taking of money by a public official not due him or his office for the performance or nonperformance of an official function." United States v. Martin, 751 F.2d 258, 259 (8th Cir. 1984) (citation and internal quotations omitted). There is no evidence, however, that these defendants extorted Willis in this manner. Moreover, there is no evidence that the alleged extortion posed a serious threat of continued criminal activity. See Wisdom, 167 F.3d at 406. G. 42 U.S.C. § 1985 (Count 6)
Also in Count 6, Willis claims that the DOC, its former commissioner, and the three DOC employees obstructed justice and conspired to violate his rights in violation of 42 U.S.C. § 1985. (Compl. Count 6 (¶ 25).) Generally, § 1985 proscribes five different types of conspiracies, but only two apply to the facts here: (1) conspiracies to interfere with the administration of justice in state courts (second clause of 42 U.S.C. § 1985(2)); and (2) private conspiracies to deny any person enjoyment of "equal protection of the laws" and "equal privileges and immunities under the laws" (first clause of 42 U.S.C. § 1985(3)).Harrison v. Springdale Water Sewer Comm'n, 780 F.2d 1422, 1429 (8th Cir. 1986). For these claims to survive summary judgment, Willis must generate a genuine issue of material fact that the conspiracy was predicated upon on a class-based, invidiously discriminatory animus. See id.; see also Kush v. Rutledge, 460 U.S. 719, 724-26 (1983); Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). He has not done so. There is no evidence that these defendants' actions in investigating complaints made against him or in instituting an administrative action were motivated by a class-based, invidiously discriminatory animus. See Harrison, 780 F.2d at 1429;Weseman v. Meeker County, 659 F. Supp. 1571, 1575 (D. Minn. 1987) (Rosenbaum, J.).
H. Vicarious Liability (Count 7)
In Count 7, Willis asserts that the DOC is vicariously liable for the alleged wrongs of former commissioner Bernstein and DOC employees Polta, Gallatin, and Lubin. Because the Court has determined that Willis's claims against Bernstein, Polta, Gallatin, and Lubin do not survive summary judgment, there is nothing for which the DOC can be vicariously liable.
I. Negligent Retention and Negligent Supervision (Count 8)
Willis's Complaint contains two Counts numbered as 8 — one asserts a negligent retention claim and the second asserts a negligent supervision claim. (See Compl. Count 8 (¶¶ 29-32), Count 8 (¶¶ 33-36).) As noted above, see supra Analysis Part II.E, a viable claim of negligent retention or negligent supervision requires the infliction, or threat, of a physical injury, see Semrad, 493 N.W.2d at 534; Bruchas, 553 N.W.2d at 443. Willis has provided no evidence that any DOC employee caused, or threatened, physical harm.
J. Injunctive and Declaratory Relief Against the Hennepin County District Court and State of Minnesota Office of Administrative Hearings (Counts 29 and 30)
In Counts 29 and 30, Willis requests injunctive and declaratory relief against the Hennepin County District Court and the State of Minnesota Office of Administrative Hearings. (Compl. Count 29 (¶ 110), Count 30 (¶ 112).) He does not, however, specify the legal grounds upon which such relief is predicated. Defendants argue that these claims should be dismissed under the doctrine of abstention announced in Younger v. Harris, 401 U.S. 37 (1971). (Mem. in Supp. at 6-9.) Abstention is proper under Younger if there is an ongoing state judicial proceeding, the proceeding implicates important state interests, there is an adequate opportunity in the state proceedings to raise constitutional challenges, and in the absence of "bad faith, harassment, or other exceptional circumstances." Yamaha Motor Corp., U.S.A. v. Stroud, 179 F.3d 598, 602 (8th Cir. 1999) (quoting Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 437 (1982)).
Abstention is proper in this case. There is no dispute that there is an ongoing state judicial proceeding initiated by the DOC against Willis — albeit stayed pending the outcome of this case. "Administrative proceedings which declare and enforce liabilities can be state judicial proceedings for purposes ofYounger abstention." Stroud, 179 F.3d at 602 (citations omitted). It is also uncontroverted that the proceedings implicate significant state interests — Minnesota has a significant interest in effectuating its laws regulating the mortgage broker industry. See Minn. Stat. §§ 58.01 — 58.17; see also Stroud, 179 F.3d at 602-03 (finding state has a significant interest in regulating the motor vehicle industry);Fuller v. Ulland, 76 F.3d 957, 959 (8th Cir. 1996) (finding state has important interest in enforcing its insurance laws). Additionally, there is adequate opportunity in the state proceeding for Willis to raise constitutional challenges. See Minn. Stat. §§ 14.50, 14.62, 14.63, 14.69 (providing, inter alia, hearings, agency orders, and appeals). Finally, there is no evidence of "bad faith, harassment, or other exceptional circumstances" that would counsel against abstaining.
Having determined that abstention is proper, the remaining issue is whether the Court should stay this proceeding or dismiss the claims. "Younger abstention means that courts should not grant declaratory relief that would interfere with pending judicial proceedings." Stroud, 179 F.3d at 603 (citation omitted). "When monetary damages are sought in addition to injunctive relief and the federal court is not asked to declare a state statute unconstitutional in order to award damages, the case should not be dismissed." Id. at 603-04 (citation omitted). In this case, Willis does not seek damages against the Hennepin County District Court or the State of Minnesota Office of Administrative Hearings. Instead, he wants a declaration (stating what, he does not say) and an injunction preventing both entities from going forward with the proceedings against him. As such, the Court will dismiss his claims against these entities without prejudice.
To the extent Willis seeks review of the Hennepin County District Court's adverse rulings, this Court has no subject matter jurisdiction to do so. See Lemonds, 222 F.3d at 492.
The Eighth Circuit has observed that "[a]s long as there may be issues which will need to be determined in federal court, a stay rather than a dismissal is the preferred procedure to use in abstaining." Stroud, 179 F.3d at 604 (citation omitted). Given that Willis has not articulated any federal issues relating to these entities, and given the fate of the federal issues he has raised against other defendants heretofore, there are no issues that will need to be determined in this Court. Thus, a stay is not warranted.
K. Summary
As a result of the foregoing, the Court will grant the state defendants' Motions with respect to each of Willis's claims against them. IV. Willis's Motion for Entry of Default and Default Judgment Against Defendant Holly Hollister
Willis has requested the Court to strike the Affidavit of Michael Tostengard. (See "The Plaintiff Responds to Defendant Department of Commerce, James Bernstein, Chris Lubin, Bonnie Polta, Daniel Gallatin, The Minnesota Office of Administrative Hearings, Beverly Jones Heydinger, Hennepin County District Court and Catherine L. Anderson; and the Plaintiff's Motion and Orders" at 26.) Because he has not presented any evidence or relevant argument in support, the Court will deny his request.
In Counts 22 and 24, Willis asserts state common law claims of fraud and defamation against Holly Hollister. (Compl. Count 22 (¶¶ 88-90), Count 23 (¶¶ 94-95).) He also asserts that Hollister made statements that violated federal law — namely, 18 U.S.C. § 1006. (Id. Count 22 (¶ 89), Count 23 (¶ 95).) As can be determined from the evidence, Hollister, a New Hope, Minnesota, resident (id. ¶ 17), allegedly made fraudulent and defamatory statements in complaints to the DOC and in the Affidavit or Declaration of Lost, Stolen or Destroyed Cashier's Check regarding Willis's handling of her cashier's check. Because she has not responded to these claims and has not otherwise made an appearance in this case, Willis has moved for the entry of default and a default judgment. (See "The Plaintiff['s] Amended Request for Entry of Default and Default Judgment Against Defendant Hollister Holding Defendant Civil Disobedience Of Court"; Doc. No. 108.)
The Court will dismiss Willis's federal claim, decline to exercise supplemental jurisdiction over his state law claims, and deny his Motion. Willis's sole federal claim against Hollister — that she violated 18 U.S.C. § 1006 — will be dismissed because there is no private right of action. See supra n. 3. Upon consideration of the remaining state law claims, the Court finds that the continued exercise of supplemental jurisdiction is inappropriate. When a district court dismisses the claims over which it has original jurisdiction, it may decline to continue to exercise supplemental jurisdiction over the state law claims that are related to those federal claims. See 28 U.S.C. § 1367(c)(3); American Civil Liberties Union v. City of Florissant, 186 F.3d 1095, 1098-99 (8th Cir. 1999) ("[W]hen state and federal claims are joined and all federal claims are dismissed . . . the state claims are ordinarily dismissed without prejudice to avoid needless decisions of state law . . . as a matter of comity."). Accordingly, the Court will deny Willis's Motion and dismiss his state law claims against Hollister without prejudice. V. Miscellaneous Motions
There is no diversity jurisdiction — Willis and Hollister are both Minnesota citizens.
"The period of limitations" on Willis's state law claims against Hollister "shall be tolled . . . for a period of 30 days after [they are] dismissed unless State law provides for a longer tolling period." 28 U.S.C. § 1367(d).
A. Willis's Motion For Rule 60 Relief
Willis filed a Motion entitled "The Plaintiff Notice and Motion Against Defendant(s) Centennial Mortgage Funding, Inc., Trent E. Bowman, Al Gelschus, and Rider Bennett Egan Arunde[l]." (See Doc. No. 129.) The entities and persons named in the Motion were previously dismissed in Willis I. In the Motion, he requests relief from Willis I under Rule 60 of the Federal Rules of Civil Procedure: "The plaintiff claims that he is entitle[d] to relief from the court order on February 2, 2003, due to mistakes; inadvertence; surprise[;] excusable neglect[;] fraud[;] misrepresentation or other misconduct of an adverse party and defendant(s)." (Motion at 10.)
Rule 60(b) provides in relevant part:
[T]he court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.
Fed.R.Civ.P. 60(b). Generally, Rule 60(b) motions are viewed with disfavor and "provide . . . extraordinary relief, which may be granted only upon a showing of exceptional circumstances."Mitchell v. Shalala, 48 F.3d 1039, 1041 (8th Cir. 1995) (citation omitted); see Rosebud Sioux Tribe v. A P Steel, Inc., 733 F.2d 509, 515 (8th Cir. 1984). For relief under Rule 60(b)(1) due to mistake, inadvertence, surprise, or excusable neglect, "[i]t remains the law in this Circuit that `relief under [the rule] for judicial error other than for judicial inadvertence' is not available." Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 460-61 (8th Cir. 2000) (citation omitted). For relief under Rule 60(b)(3) due to fraud, misrepresentation, or other misconduct of an adverse party, "the movant must show by clear and convincing evidence that his opponent engaged in a fraud or misrepresentation that prevented the movant from fully and fairly presenting his case." Greiner v. City of Champlin, 152 F.3d 787, 789 (8th Cir. 1998) (citation omitted).
The Court will deny Willis's Motion. Willis has not pointed to any mistake, inadvertence, surprise, or excusable neglect by defendants, nor has he pointed to any inadvertence by this Court.See Lowry, 211 F.3d at 460-61. Likewise, Willis has not shown by clear and convincing evidence that defendants engaged in any fraud or misrepresentation that prevented him from presenting his case.See Greiner, 152 F.3d at 789.
Willis also requests that the Court "correct its docket as originally filed on July 14, 2003 to state Berry A. Willis vs. the government et. and al. and not Berry A. Willis vs. Centennial Mortgage Funding et. and al." (July 9, 2004 Motion at 9.) The Court declines to change the docket; it accurately names the parties in this case.
B. Willis's Motions To Disqualify, Sanction, and Hold In Contempt
Willis's Motion for a "Temporary Interlocutory Injunction" to disqualify attorneys from the law firm of Rider Bennett from representing certain defendants will be denied. (See Doc. No. 71.) Similarly, his Motion to impose Rule 11 sanctions upon certain defendants and to hold them in contempt of court under Minn. Stat. § 588 will be denied. (See id.) Likewise, his Motion to disqualify the undersigned and Magistrate Judge Boylan for alleged bias pursuant to 28 U.S.C. §§ 144 and 455 will be denied. (See Doc. No. 137); see also Bannister v. Delo, 100 F.3d 610, 614 (8th Cir. 1996) (stating that district judges are presumed impartial and movant bears substantial burden of proving otherwise). Willis provides neither evidence nor relevant argument to substantiate his claims or to warrant the findings and relief he requests.
To the extent that Willis also requests Rule 60 relief under these Motions, the Court will deny his request for the reasons previously discussed. See supra Analysis V.A.
C. Discovery Request
Scattered throughout his responsive memoranda, Willis alleges that he was denied sufficient time to conduct discovery. For example, in his papers entitled "The Plaintiffs' Motion And Order to the Court Pursuant to Rule 38(a)[,] 39(b) [et] seq.[,] and Rule 59(a), 60(a)(b)," he asserts:
Because the pre-trial scheduling order already stayed discovery pending the various motion to dismiss and summary judgment motions the court abuse[d] . . . its discretion [and it] was actual prejudice and bias against the non-movant that was unjust. The deadline for non-dispositive motions relating to discovery was June 1, 2004. Accordingly, the non-movant (Berry A. Willis) did not ha[ve] adequate time to discovery proceedings, if there is any further delay in the discovery process it was caused by these defendant(s), and the courts' conduct of fraud and its . . . conspiracy against the non-movant that was unjustified.
(Id. at 10; see also "The Plaintiff Responds to Defendant Department of Commerce, James Bernstein, Chris Lubin, Bonnie Polta, Daniel Gallatin, The Minnesota Office of Administrative Hearings, Beverly Jones Heydinger, Hennepin County District Court and Catherine L. Anderson; and the Plaintiff's Motion and Orders" at 25.)
Although Willis does not specifically invoke it, Rule 56(f) of the Federal Rules of Civil Procedure provides that the party faced with a summary judgment motion may request the court to postpone ruling on the motion until he conducts discovery. See Fed.R.Civ.P. 56(f); Duffy v. Wolle, 123 F.3d 1026, 1040 (8th Cir. 1997). Rule 56(f), however, "is not a shield that can be raised to block a motion for summary judgment without even the slightest showing by the opposing party that his opposition is meritorious." Duffy, 123 F.3d at 1040 (citation and internal quotations omitted). Rather, a party invoking the protections of Rule 56(f) "must do so in good faith by affirmatively demonstrating why he cannot respond to a movant's affidavits . . . and how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact." Id. (citations and internal quotations omitted); see Willis I, at 24.
The Court will deny Willis's Motion. He has not demonstrated why he cannot respond to the pending motions against him or how postponement would enable him to cure the inherent flaws of his legal theories. See Duffy, 123 F.3d at 1040. In the Court's view, additional discovery will not remedy the existing defects. While it is true that the November 2003 Pretrial Scheduling Order stayed discovery pending the outcome of the dispositive motions filed in late 2003, "the parties [were] free to serve discovery at [that] time, [but] no response [was] required until a date 30 days following the issuance of the Court's ruling on any such dispositive motions filed." (See Doc. No. 41.) Thus, Willis could have served discovery beginning in November 2003 and he would have received responses in March 2004, which was 30 days after the issuance of Willis I. He has not, however, provided any reasons for why this opportunity to conduct discovery was insufficient.
Conclusion
Based on the foregoing, and all of the files, records and proceedings herein, IT IS ORDERED that:
1. Defendant Sharon Atkinson's Motion for Summary Judgment (Doc. No. 98) is GRANTED;
2. Plaintiff Berry Willis's "Motion and Order Dismissing the Defendant[']s [Atkinson's] Motion, Affidavit and Hennepin County District Order" (Doc. No. 114) is DENIED;
3. Defendants Wells Fargo's and Sharon Mros's Motion for Summary Judgment (Doc. No. 120) and Motion to Dismiss (Doc. No. 122) are GRANTED;
4. Plaintiff's "Motion and Order Staying Court Proceeding, Entitled the Court Revise its Order on 2/2/04 and the Claims Against Wells Bank Are Settled by Legal Binding Arbitration" (Doc. No. 134) is DENIED;
5. Motion for Summary Judgment by Defendants Minnesota Department of Commerce, James Bernstein (Former Commissioner of Commerce), Chris Lubin, Bonnie Polta, and Daniel Gallatin, The Minnesota Office of Administrative Hearings (Administrative Law Judge Beverly Jones Heydinger), and The Hennepin County District Court (Judge Katherine L. Anderson) (Doc. No. 102) is GRANTED;
6. Plaintiff's Motion to Exclude Michael Tostengard's Affidavit and Exhibits (Doc. No. 113) is DENIED;
7. Plaintiff's Motion for Entry of Default and Default Judgment against Defendant Holly Hollister (Doc. Nos. 34, 108) is DENIED;
8. Plaintiff's "Motion Against Defendant(s) Centennial Mortgage Funding, Inc., Trent E. Bowman, Al Gelschus, and Rider Bennett Egan Arunde[l]" seeking Rule 60 relief (Doc. No. 129) is DENIED;
9. Plaintiff's Motion for Order Dismissing Defendant's Motion filed November 5, 2003 (Doc. No. 39) is DENIED;
10. Plaintiff's Motion for Temporary Interlocutory Injunction and For Contempt (Doc. No. 71) is DENIED;
11. Plaintiff's "Motion and Order To The Court Pursuant to Rule 38(A), 39(B) seq. to Rule 59(a), 60(a)(b)" (Doc. No. 137) is DENIED;
12. Defendant RSKCO's Motion for Entry of Judgment (Doc. No. 88) is GRANTED;
13. As a result of the foregoing:
a. Counts 1, 2, 3, 4, 5, 6, 7, 8 (the first), 8 (the second), 9, 22 (all claims against Wells Fargo and Sharon Mros and the federal claims against Holly Hollister), 23, 24 (all claims against Wells Fargo and Sharon Mros and the federal claims against Holly Hollister), 25, 26, and 27 of the Complaint (Doc. No. 1) are DISMISSED WITH PREJUDICE;
b. The state law claims against Holly Hollister in Counts 22 and 24 of the Complaint (Doc. No. 1) are DISMISSED WITHOUT PREJUDICE;
c. Counts 29 and 30 of the Complaint (Doc. No. 1) are DISMISSED WITHOUT PREJUDICE;
14. As a result of this Order and the February 2, 2004 Order in Willis I (see Doc. No. 73), there are no claims remaining in this case against any defendant and the Complaint (Doc. No. 1) is hereby DISMISSED.