United States District Court, D. Minnesota
TITO FREDDY ONTIVEROS, Legal/Status Active and in Good Standing Minnesota SOS File No. 995833400035, Plaintiff,
TITO FREDDY ONTIVEROS, Defendant.
REPORT AND RECOMMENDATION
Katherine Menendez, United States Magistrate Judge.
matter is before the Court on the Plaintiff's motion for
summary judgment. Mot. for Summ. J., ECF No. 22. Because the
Court concludes that the Plaintiff has failed to show that it
is entitled to judgment as a matter of law, the Court
recommends that the summary-judgment motion be denied.
Moreover, based on its review of the entire record, the Court
recommends that this action be dismissed with prejudice as
Plaintiff's Motion for Summary Judgment
Complaint in this action alleges that the Plaintiff, Tito
Freddy Ontiveros, is a corporation. Compl. at 1
(“Plaintiff is incorporated under the laws of St. Paul,
Minnesota, with its principal place of business in
Minnesota.”), ECF No. 1. The Plaintiff alleges that the
Defendant, a Colorado corporation which is also named Tito
Freddy Ontiveros, converted the Plaintiff's private
property for its own use. Id. Specifically,
Plaintiff alleges that:
The Private Property consists of [a] Re-registered Judgement
[No. 1:11-cr-00214-PAB-1] Registration No. 2019029095 and the
Re-registered Certificate of Live Birth registration No.
2018013741, that is Private Property and is registered with
the Denver County Records of Deeds Office located in Denver,
Colorado, in the Wellington Building.
Id. The Plaintiff claims that the judgment and birth
certificate are worth either $104 Billion or $104 Million,
id. at 2, although no clear explanation is offered
for how the defendant used the document or how doing so
corporate Plaintiff purports to be represented by an
individual named Tito Freddy Ontiveros (“Mr.
Ontiveros”), who is incarcerated in the Federal
Correctional Institution in Florence, Colorado. Attached to
the Complaint is a judgment in a criminal case, showing that
on August 29, 2016, Mr. Ontiveros was found guilty of
possessing a firearm as a prohibited person in violation of
18 U.S.C. §§ 922(g)(1) and 924(e)(1) and of
possessing an unregistered firearm in violation of 26 U.S.C.
§§ 5861(d) and 5871. ECF No. 1-4 at 10. Mr.
Ontiveros asserts that he is the Chief Executive Officer of
the corporate Plaintiff. See, e.g., ECF No. 1-4 at
10 (“Ontiveros, Tito Freddy - CEO; dba TITO FREDDY
long after bringing suit, the Plaintiff has now filed a
motion for summary judgment. Summary judgment is appropriate
when “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
there are at least three reasons that the Plaintiff's
motion for summary judgment should be denied. First, there is
no indication that the Defendant has ever been served. Absent
service, the Court does not have jurisdiction over the
Defendant and could not enter a summary judgment against it.
Before a federal court may exercise personal jurisdiction
over a defendant, the procedural requirement of service of
summons must be satisfied. “[S]ervice of summons is the
procedure by which a court having venue and jurisdiction of
the subject matter of the suit asserts jurisdiction over the
person of the party served.”
Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co.,
Ltd., 484 U.S. 97, 104 (1987) (quoting Mississippi
Publishing Corp. v. Murphree, 326 U.S. 438, 444-45
(1946)). Even if the Defendant has actual knowledge that this
lawsuit exists, that knowledge does not give the Court
personal jurisdiction over the Defendant in the absence of
valid service. Mid Continental Wood Prods., Inc. v.
Harris, 936 F.2d 297, 301 (7th Cir. 1991)). Because
there is no indication that the Defendant has been properly
served, it would be inappropriate to enter summary judgment
against it. Cf. Grand Entm't Gr., Ltd. v. Star Media
Sales, Inc., 988 F.2d 476, 492 (3d Cir. 1993) (“A
district court's power to assert in personam
authority over parties defendant is dependent not only on
compliance with due process but also on compliance with the
technicalities of Rule 4.”).
the motion should be denied because the corporate Plaintiff
is purportedly represented by Mr. Ontiveros, who is not an
attorney. It is well-settled that a corporation cannot appear
in federal court except through an attorney. Rowland v.
Cal. Men's Colony, Unit II Men's Advisory
Council, 506 U.S. 194, 201-02 (1993) (recognizing that
it has been established law “for the better part of two
centuries ... that a corporation may appear in the federal
courts only through licensed counsel”). As a
non-lawyer, Mr. Ontiveros cannot represent a corporation in
federal court. Steele v. City of Bemidji, 257 F.3d
902, 905 (8th Cir. 2001). Because Mr. Ontiveros cannot bring
claims on behalf of a corporate plaintiff, the motion for
summary judgment and the supporting materials that have been
filed are not properly before the Court.
the Plaintiff has failed to show that it is entitled to
judgment as a matter of law. Under Minnesota law, the tort of
conversion “occurs where one willfully interferes with
the personal property of another without lawful
justification, depriving the lawful possessor of use and
possession.” Williamson v.
Prasciunas, 661 N.W.2d 645, 649 (Minn.Ct.App. 2003);
see also DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn.
1997) (defining conversion as “an act of willful
interference with personal property, done without lawful
justification by which any person entitled thereto is
deprived of use and possession”) (internal quotation
marks and citation omitted).
corporate Plaintiff's motion for summary judgment, it
asserts that the corporation's CEO, Mr. Ontiveros,
registered the judgment in his criminal case as private
property. Pl.'s Mot. at 3. In support of the motion, the
Plaintiff attaches a copy of “Certificate of Live
Birth” from the Colorado Department of Public Health
and Environment and a copy of the same criminal case Judgment
attached to its Complaint. ECF No. 22-1. The Plaintiff
contends that the Defendant had previously possessed the
criminal case and birth certificate for over a year prior to
that registration, thereby wrongfully interfering with the
Plaintiff's use and possession ...