United States District Court, D. Minnesota
Eta Hill, pro se.
S. Paulson, BRODEEN &PAULSON, PLLP; Richard A. Duncan,
FAEGRE BAKER DANIELS LLP, for defendant Shakopee Mdewakanton
Patrick J. Schiltz United States District Judge
Shakopee Mdewakanton Sioux Community (“SMSC”)
employed plaintiff Rachel Eta Hill at Mystic Lake Casino
& Hotel (“Mystic Lake”) for three weeks in
2016. See ECF No. 51 at 5. On November 3, 2016, Hill
filed a charge with the Equal Employment Opportunity
Commission (“EEOC”) alleging that SMSC had
discriminated against her on the basis of disability in
violation of the Rehabilitation Act and the Americans with
Disabilities Act (“ADA”). Id. On April
14, 2017, the EEOC issued a Notice of Right to Sue.
Id. at 1.
later, Hill filed this action, alleging that SMSC violated
the ADA when it failed to accommodate her disabilities when
she took an examination for a gaming license. ECF No. 1. She
also alleged that SMSC had harassed her for seeking such
accommodations and retaliated against her by terminating her
gaming license and employment at Mystic Lake. Id.
These allegations had not been made in Hill's EEOC
complaint. SMSC moved to dismiss the complaint under
Fed.R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction
and under Fed.R.Civ.P. 12(b)(6) for failure to state a claim.
ECF No. 32. Hill moved to strike SMSC's motion. ECF No.
October 12, 2017, Magistrate Judge Leo I. Brisbois issued a
Report and Recommendation (“R&R”)
recommending that the Court grant SMSC's motion to
dismiss, dismiss the action with prejudice, and
“term” Hill's motion to strike. ECF No. 70.
Hill objected to the R&R, ECF No. 76, and filed a second
motion to strike SMSC's motion to dismiss, ECF No. 84.
Court has conducted a de novo review. See 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b). Based on that review,
the Court overrules Hill's objections, adopts Judge
Brisbois's R&R (except as noted below), dismisses
Hill's action without prejudice, and denies both of
Hill's motions to strike.
couple of matters merit comment:
In her objection to the R&R, Hill argues that
“[SMSC's] motion to dismiss for failure to state a
claim requires a hearing before a Judge of District
Court.” ECF No. 76. Hill is incorrect. Hill has a right
to a determination by a district judge, but she does
not have a right to a hearing before a district
judge. United States v. Raddatz, 447 U.S. 667, 674
(1980) (“It should be clear that on these dispositive
motions, the statute calls for a de novo
determination, not a de novo hearing.”).
SMSC's motion was referred to Judge Brisbois for a
recommendation-not a decision-and, after a de novo review of
Judge Brisbois's recommendation, this Court made its own
determination. Thus, this Court has fully complied with 28
U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(1).
also argues, for the first time, that her lawsuit is
authorized by the Major Crimes Act, 18 U.S.C. § 1153;
the Racketeer Influenced and Corrupt Organizations Act, 18
U.S.C. §§ 1961-68; and SMSC's gaming compacts
with the State of Minnesota. Because Hill did not present
these arguments to Judge Brisbois, she cannot present them
now. See Roberts v. Apfel, 222 F.3d 466, 470 (8th
Cir. 2000) (“[A] claimant must present all his claims
squarely to the magistrate judge . . . to preserve them for
review.”); Hammann v. 1-800 Ideas.com, Inc.,
455 F.Supp.2d 942, 947-48 (D. Minn. 2006) (“A party
cannot, in his objections to an R & R, raise arguments
that were not clearly presented to the magistrate
judge.”). Moreover, Hill's arguments display a
great deal of confusion about the laws and compacts on which
she relies. Even if the Court were to consider Hill's
arguments, it would reject them on the merits.
Court does, however, disagree with the R&R in two
First, Judge Brisbois recommends that Hill's first motion
to strike be “termed.” But
“termed”-short for “terminated”-is
what an employee of the Clerk's Office does within the
CM/ECF system to show that a judge has ruled on a motion; it
is not itself a way to dispose of a motion. Instead of
ordering that Hill's motion be “termed, ” the
Court will deny the motion. The proper way for a plaintiff to
respond to a motion to dismiss her complaint is to file a
memorandum explaining why the motion should not be granted,
not to file a motion to strike the motion. Neither the
Federal Rules of Civil Procedure nor the local rules of this
District authorize a “motion to strike” a motion.
See Carlson Mktg. Grp., Inc. v. Royal Indem. Co.,
No. 04-CV-3368 (PJS), 2006 WL 2917173, at *2 (D. Minn. Oct.
11, 2006). For that reason, the Court will deny both of
Hill's motions to strike. The Court has, however, read
the motions and the memoranda submitted in support of the
motions, and the Court has fully considered Hill's
Second, Judge Brisbois recommends that Hill's complaint
be dismissed with prejudice. But a finding that a claim is
barred by sovereign immunity is a finding that the Court does
not have subject-matter jurisdiction over the claim, and a
dismissal for lack of subject-matter jurisdiction is a
dismissal without prejudice. Therefore, a claim that is
dismissed because it is barred by sovereign immunity
generally should be dismissed without prejudice. See Roth
v. United States, 476 F. App'x 95 (8th Cir. 2012);
Hart v. United States, 630 F.3d 1085, 1091 (8th Cir.
2011); Murray v. United States, 686 F.2d ...