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Thornberg v. State Farm Fire and Casualty Co.

United States District Court, D. Minnesota

June 9, 2015

James E. Thornberg, Plaintiff,
State Farm Fire and Casualty Company, Dale Gerdin, Carol Gerdin, and John & Jane Does 1-5, Defendants.

James E. Thornberg, Reg. No. 08615-029, Federal Correctional Institution, Lompoc, Pro Se.

Michael J. Tomsche, Tomsche, Sonnesyn & Tomsche, P.A., for Defendants Dale and Carol Gerdin.



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.[1] The property in question was stored in a storage locker in a Robbinsdale, Minnesota apartment building owned by the Gerdins. Plaintiff asserts claims of fraudulent concealment, trespass, conversion of personal property, unjust enrichment, breach of contract, interference with property rights, theft, wrongful eviction of personal property, and aiding and abetting the conversion of personal property. (Compl. Counts 1-9 [Doc. No. 1].)

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. (Id. at 13-23.) Also, the magistrate judge concluded that Plaintiff's request to amend the Complaint to add a conspiracy claim and to add defendants was futile in light of the statute of limitations. (Id. at 25.) As to adding new parties, the magistrate judge further found that because Plaintiff knew of the parties that he sought to add prior to the initiation of this lawsuit, any attempt to amend now was also dilatory. (Id.) Accordingly, Magistrate Judge Keyes recommended the dismissal with prejudice of Plaintiff's claims and the denial of Plaintiff's Motion to Amend. (Id. at 27.)

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. (See Pl.'s Obj. at 5 [Doc. No. 74].) He provides a list of witnesses who will testify to his memory loss. (Id. at 14-15.) In addition, Plaintiff notes that he is serving a prison sentence in California, is not a skilled advocate, and that his incarceration has made it difficult to gather evidence and prosecute his case. (Id. at 7.) He also urges the Court to permit discovery into his underlying claims before ruling on the R&R. (Pl.'s Mot. to Amend/Stay [Doc. No. 76].)

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. Standard of Review

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.'" Gibb v. Scott, 958 F.2d 814, 816 (8th Cir. 1992) (quoting Woods v. Dugan, 660 F.2d 379, 380 (8th Cir.1981)). "Most courts... view matters outside the pleading' as including any written or oral evidence in support of or in opposition to the pleading that provides some substantiation for and does not merely recite what is said in the pleadings." Id. (internal citation and quotation omitted). Courts have discretion to decide whether to accept material outside the pleadings that ...

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