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Ontiveros v. Ontiveros

United States District Court, D. Minnesota

February 25, 2019

TITO FREDDY ONTIVEROS, Legal/Status Active and in Good Standing Minnesota SOS File No. 995833400035, Plaintiff,
v.
TITO FREDDY ONTIVEROS, Defendant.

          REPORT AND RECOMMENDATION

          Katherine Menendez, United States Magistrate Judge.

         This 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 frivolous.

         I. Plaintiff's Motion for Summary Judgment

         The Complaint in this action alleges that the Plaintiff, Tito Freddy Ontiveros, is a corporation.[1] 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 damaged anyone.

         The 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 ONTIVEROS”).

         Not 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).

         Here, 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.”).

         Second, 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.

         Third, 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).

         In the 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 ...


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