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J.S. v. Roberts

United States District Court, Eighth Circuit

November 27, 2013

J.S., K.S., C.S., and J.S., Minors via Guardian and Parent Scott Selmer, Plaintiffs,
v.
Bryn Roberts, Timothy Rodd, Saint Paul Academy and Summit School, Charles Zelle, Jill Romans, Cynthia Richter, Timothy Elchert, Anne Fiedler, Judy Johnson, Thomas Hobert, Paul Applebaum, and Dave Thomford, Defendants.

Scott Selmer, Conner McAlister Selmer, LLC, (for Plaintiffs).

R. Ann Huntrods and Michael C. Wilhelm, Briggs & Morgan, PA, Minneapolis, MN 55402 (for Defendants Bryn Roberts, Timothy Rodd, Saint Paul Academy and Summit School, Charles Zelle, Jill Romans, Cynthia Richter, Timothy Elchert, Anne Fiedler, Judy Johnson, Thomas Hobert, and Dave Thomford).

Paul Applebaum, (pro se on brief).

Andrew M. Irlbeck, (for Defendant Paul Applebaum).

REPORT & RECOMMENDATION

TONY N. LEUNG, Magistrate Judge.

This matter is before the Court, Magistrate Judge Tony N. Leung, on Defendant Paul Applebaum's Motion to Dismiss (Docket No. 63).[1] This action has been referred to the Magistrate Judge for report and recommendation to the Honorable Michael J. Davis, Chief District Judge for the District of Minnesota, under 28 U.S.C. § 636 and Local Rule 72.1(b). ( See Docket No. 67). At the hearing on Applebaum's motion to dismiss, Andrew M. Irlbeck appeared on behalf of Applebaum. Scott Selmer appeared on behalf of Plaintiffs, but limited his oral argument to Plaintiffs' Motion for Leave to Amend Complaint (Docket No. 72). Plaintiffs failed to file any responsive papers to the present motion.

Based upon the record, memoranda, and arguments before the Court, IT IS HEREBY RECOMMENDED that Defendant's Motion be GRANTED, and this matter be DISMISSED WITH PREJUDICE.

I.

Plaintiffs J.S., K.S., C.S., and J.S. brought this action against Defendants Saint Paul Academy and Summit School ("SPA"), multiple employees and trustees of SPA, and Applebaum for violation of their civil rights and contract rights pursuant to 42 U.S.C. §§ 1981 and 1983.

During an elementary school basketball game on January 3, 2006, an altercation took place between Applebaum and Selmer, father and attorney of the Plaintiffs. (Mem. & Order Op. at 2, Docket No. 32.) Selmer states that Applebaum was assaulting his twelve-year-old son, Plaintiff J.S., and Selmer went to J.S.'s aid. ( Id. ) Applebaum claims that Selmer struck him without provocation. ( Id. ) Selmer, Plaintiffs' father and attorney, was subsequently arrested for the incident and pleaded guilty to fifth degree assault. ( Id. ) Additionally, Applebaum successfully obtained a Harassment Restraining Order against Selmer, barring contact with Applebaum and his children and excluding Selmer from SPA. ( Id. )

Thereafter, Selmer alleges that Applebaum began a harassing campaign against Selmer and his children, seeking to have them expelled from SPA. (Am. Compl. ¶ 5, Docket No. 7.) Selmer further alleges that Applebaum falsely accused the Selmer children of harassing him when he encountered them at SPA. ( Id. ¶ 6.) Selmer contends that Applebaum's actions violated Plaintiffs' civil rights and interfered with their contract rights. ( Id. ¶ 45.)

II.

Applebaum moves for dismissal of all the claims against him pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. ( See Docket Nos. 63, 64 at 2-6.) Applebaum argues that (1) he is not a state actor and therefore any conversation he had with police cannot amount to action by a state actor under color of law for purpose of § 1983; and (2) the Amended Complaint fails to allege facts showing he interfered ...


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