First National Repossessors, Inc. et al v. Commissioner of Internal Revenue, No. 0:2018cv02635 - Document 26 (D. Minn. 2019)
Court Description: MEMORANDUM OPINION AND ORDER adopting 20 Report and Recommendation; Plaintiffs' Complaint [Doc. No. 1] is DISMISSED WITHOUT PREJUDICE. (Written Opinion) Signed by Judge Susan Richard Nelson on 1/18/2019. (SMD) cc: First National Repossessors, Inc., Don Mashak. Modified text on 1/18/2019 (JLB).
First National Repossessors, Inc. et al v. Commissioner of Internal Revenue Doc. 26 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA First National Repossessors, Inc., and Don Mashak, Personally, and as President of FNR, Case No. 18-cv-2635 (SRN/SER) Plaintiffs, MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE v. Commissioner of Internal Revenue, Defendant. First National Repossessors, Inc. and Don Mashak, Route 1, Box 231, Albertville, MN 55301, pro se. SUSAN RICHARD NELSON, United States District Judge This case is before the Court on Plaintiffs’ objection (“Objection”) [Doc. No. 21] to United States Magistrate Judge Steven Rau’s December 4, 2018, Report and Recommendation (“R&R”) [Doc. No. 20]. Magistrate Judge Rau recommended that the Court dismiss Plaintiff’s complaint (“Complaint”) [Doc. No. 1] without prejudice. (R&R at 3.) For the reasons set forth below, the Court overrules Plaintiff’s Objection, adopts the R&R in full, and dismisses Plaintiff’s Complaint without prejudice. I. Background On September 10, 2018, Plaintiffs filed their Complaint and an application to proceed in forma pauperis (“IFP”) [Doc. No. 2]. On September 27, 2018, Magistrate Judge Rau denied the Plaintiffs’ IFP application on the grounds that First National 1 Dockets.Justia.com Repossessors, Inc. (“FNR”) was ineligible to proceed IFP. (Sept. 27, 2018 Order [Doc. No. 5].) Plaintiffs were given 20 days to pay the required $400.00 filing fee and were warned that, if they failed to do so, the action would be dismissed without prejudice for failure to prosecute. (Id. at 2.) That deadline was later extended to November 19, 2018. (Oct. 18, 2018 Order [Doc. No. 7].) Plaintiffs never paid the required filing fee. As a result, on December 4, 2018, Magistrate Judge Rau recommended that the Complaint be dismissed without prejudice. (R&R at 3.) On December 19, 2018, Plaintiff filed a timely objection to Magistrate Judge Rau’s R&R. (Obj. at 1.) II. Discussion 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). First, Plaintiffs object to the Court’s failure to dismiss FNR from the case. (Obj. at 1.) Mashak previously requested that FNR be dismissed if Plaintiffs’ request for additional time to pay the filing fee was not granted. (Defs.’ Oct. 19, 2018 Letter [Doc. No. 9] at 1.) However, because the motion for an extension of time was granted, the Court did not dismiss FNR from the case. (R&R at 2.) Neither Mashak nor FNR are eligible for IFP status and the filing fee remains unpaid. (See Sept. 27, 2018 Order.) Second, Plaintiffs object to the Court’s interpretation of the statutory requirement that only natural persons may proceed IFP. (Obj. at 3–4.) However, the Court may not 2 disregard the IFP statute, 28 U.S.C. § 1915, or the clear direction of the Supreme Court that “only a natural person may qualify for treatment in forma pauperis under § 1915.” Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 196 (1993). Finally, Plaintiffs object to the Court’s failure to unseal certain records from state court proceedings that he argues are relevant to this action. (Obj. at 10.) However, Mashak’s request is moot in light of the Court’s decision to dismiss the case without prejudice. (R&R at 3.) IV. Conclusion Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that: 1. Plaintiffs’ Objection [Doc. No. 21] is OVERRULED; 2. Magistrate Judge Rau’s R&R [Doc. No. 20] is ADOPTED in its entirety; and 3. Plaintiffs’ Complaint [Doc. No. 1] is DISMISSED WITHOUT PREJUDICE. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: January 18, 2019 s/ Susan Richard Nelson SUSAN RICHARD NELSON United States District Judge 3