United States District Court, D. Minnesota
Dean Meyer, % Ladapa Tiwasingha, 96 Moo 3 Vibabadee Randsit
Road, Laksi, Bangkok, Thailand 10210, pro se.
Tweeten, Richard S. Reeves, David Grobeck, Ronald S. Stadler,
Mallery & Zimmerman, S.C., Stacy A. Broman, Laura J.
Hanson, Meagher & Geer, PLLP, Bryon Glen Ascheman, Burke
& Thomas, PLLP, Virginia K. Ekola, Amie E. Penny Sayler,
Jonathan P. Norrie, Bassford Remele, P.A., Angela B. Brandt,
David M. Wilk, Larson King LLP, Ann-Marie Anderson, Wright
Welker & Pauole, PLC, Steven C. Kerbaugh, Steven M.
Phillips, Anthony Ostlund Baer & Louwagie P.A., Barry G.
Vermeer, Jennifer M. Waterworth, Gislason & Hunter,
Lindsey A. Streicher, Patrick M. Biren, Brownson &
Linnihan, PLLP, Minneapolis, Minnesota 55402, Erin M. Secord,
Ashley M. DeMinck, and Ellen B. Silverman, Hinshaw &
Culbertson LLP, for Defendants.
MEMORANDUM OPINION AND ORDER
RICHARD NELSON UNITED STATES DISTRICT JUDGE
matter comes before the undersigned United States District
Judge for consideration of Plaintiff Harley Dean Meyer's
Objections [Doc. No. 389] to United States Magistrate Judge
Hildy Bowbeer's Report and Recommendation
("R&R"), dated October 5, 2016 [Doc. No. 383].
The magistrate judge recommended as follows: that Defendant
John H. Pribyl's Motion to Dismiss the First Amended
Complaint ("FAC") [Doc. No. 283] be granted; that
Defendant Michael Fuhrman's Motion to Dismiss the FAC
[Doc. No. 296] be granted; that Defendant Janey Nelson's
Motion to Dismiss [Doc. No. 344] be granted; that Defendant
Sonia Mosch's Motion to Dismiss the FAC [Doc. No. 357] be
granted; that Meyer's Motion for Extension of Time to
File Responsive Motion to Mosch's Motion to Dismiss [Doc.
No. 376] be granted; that Meyer's Motion for Order to
Show Cause [Doc. No. 367] be denied; that all claims against
J. Does 14, 15, and 16, in their official capacities, be
dismissed without prejudice; that all claims against Marnette
Hoisve be dismissed without prejudice; and that, in
accordance with the magistrate judge's June 27, 2016
Report and Recommendation [Doc. No. 292], all claims against
J. Does 22-28 be dismissed with prejudice.
to statute, this Court reviews de novo any portion of the
magistrate judge's opinion to which specific objections
are made, and "may accept, reject, or modify, in whole
or in part, the findings or recommendations" contained
in that opinion. 28 U.S.C. § 636(b)(1)(C); see
also Fed. R. Civ. P. 72(b); D. Minn. L.R. 72.2(b)(3).
Based on that de novo review, and for the reasons set forth
below, the Court overrules Meyer's objections and adopts
the R&R in its entirety.
factual and procedural underpinnings of this case have been
thoroughly set forth in several prior orders of this Court,
and of the magistrate judge. (See, e.g., Aug. 5,
2016 Order [Doc. No. 341]; June 27, 2016 Report and
Recommendation [Doc. No. 292].) To avoid unnecessary
repetition, the Court incorporates by reference the
background sections of those documents here.
Dr. Pribyl's Motion to Dismiss
FAC, Meyer brings a claim for commercial bribery against Dr.
Pribyl. (R&R at 5.) Dr. Pribyl has since moved to dismiss
this claim pursuant to Federal Rule of Civil Procedure
12(b)(6), arguing that no such cause of action exists under
Minnesota law. (See Pribyl Mot. to Dismiss at 1;
Mem. in Supp. of Pribyl's Mot. to Dismiss [Doc. No. 285]
at 1.) In a thorough examination of the issue, the magistrate
judge concluded that, while commercial bribery is a criminal
act prohibited by Minn. Stat. § 609.86, that fact by
itself does not imply the existence of a civil cause of
action. See U.S. Fed. Credit Union v. Stars &
Strikes, LLC, No. AlO-1101, 2011 WL 1466383, at *5
(Minn.Ct.App. Apr. 19, 2011) ("[A] criminal statute does
not automatically give rise to a civil cause of action unless
the statute expressly or by clear implication so
provides."). Noting that Minn. Stat. § 609.86 does
not provide for a civil cause of action, the magistrate judge
recommended dismissal of the commercial bribery claim.
(R&R at 6 (citing Stars & Strikes, 2011 WL
1466383, at *5).)
magistrate judge also addressed a contention raised by Meyer
for the first time in his opposition memorandum-that the
commercial bribery allegation serves as a predicate act under
the Racketeer Influenced and Corrupt Organizations Act
("RICO"), 18 U.S.C. § 1962. (See
R&R at 7.) Meyer apparently contends that Dr. Pribyl is
one of the J. Doe Defendants listed under Count XXVIII of the
FAC, which asserts a civil RICO claim. (See id.) As
to Dr. Pribyl, however, the magistrate judge concluded that
any RICO claim is clearly barred by the applicable four-year
statute of limitations, given that the alleged commercial
bribery arises from proceedings that occurred more than
eleven years prior to the filing of this suit. (Id.
(citing Klehr v. A.O. Smith Corp., 87 F.3d 231, 238
(8th Cir. 1996).) Finding no allegations in the FAC that
would support a claim for fraudulent concealment or equitable
tolling, Judge Bowbeer recommended dismissal of the purported
RICO claim against Dr. Pribyl. (Id.)
objections do not directly address the magistrate judge's
recommendations as to either the commercial bribery claim or
the purported RICO claim leveled against Dr.
Pribyl. (See generally PL's Obj.) As
previously noted, the burden is on the objecting party to
note-with specificity-the basis upon which he objects to each
recommendation. See D. Minn. LR 72.2(b)(1). General
or conclusory objections are insufficient to trigger de novo
review of the magistrate judge's report. Id. at
72.2(b)(3); see also United States v. $90, 000 in U.S.
Currency, No. 07-cv-4744 (JRN/FLN), 2010 WL 1379777, at
*9 n.3 (D. Minn. Mar. 31, 2010) (noting that "general
objections" to a magistrate judge's Report and
Recommendation are "inadequate" under Fed.R.Civ.P.
72(b)(2)). These deficiencies aside, however, the Court finds
no error in the magistrate judge's recommendation that
Dr. Pribyl's motion to dismiss for failure to state a
claim should be granted. The law in Minnesota is clear that
commercial bribery exists only as a criminal act-not a civil
cause of action. Stars & Strikes, 2011 WL
1466383, at *5. Likewise, the allegations in the FAC show
that Meyer has been aware of any injury suffered at the hands
of Dr. Pribyl since at least 2003-well beyond the four-year
statute of limitations applicable to civil RICO claims.
See Klehr, 87 F.3d at 238. Accordingly, the Court
will adopt Judge Bowbeer's recommendations with regard to
Dr. Pribyl, and dismiss both claims against him with
Dr. Fuhrman's Motion to Dismiss
Dr. Pribyl, Meyer's claim against Dr. Fuhrman is based on
a purported civil cause of action for commercial bribery.
(See R&R at 7.) For reasons identical to those
discussed in Part III.A, supra, the magistrate judge
concluded that no such cause of action exists under Minnesota
law, and recommended dismissal of the commercial bribery
claim. (See Id. at 8.) Likewise, the magistrate
judge rejected as time-barred contentions raised by Meyer in
his opposition memorandum that the commercial bribery alleged
against Dr. Fuhrman is a predicate act under RICO, and that
Dr. Fuhrman is one of the J. Doe Defendants listed under his
civil RICO claim. (See id.) Because Judge Bowbeer