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Burns v. Office of Attorney General: US District Court : CIVIL PROCEDURE - Today is April Fools, but this was a real pro se "difficult litigant"

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VALLEY, its employees and agents;
DAKOTA COUNTY, its employees and
COUNTY, its employees and agents;
Case No. 05-CV-0858 (PJS/RLE)
Barbara R. Burns, plaintiff pro se.
Jason M. Hively, IVERSON REUVERS, LLC, for defendants City of Apple Valley, City
of Richfield, City of Richfield Police Department, and Thomas Fitzhenry.
Andrea G. White, DAKOTA COUNTY ATTORNEYS OFFICE, for defendant Dakota
Toni A. Beitz, HENNEPIN COUNTY ATTORNEYS OFFICE, for defendants Hennepin
County and Steven Sutton.
This matter is before the Court on the objection of plaintiff Barbara R. Burns to the
February 4, 2009 Report and Recommendation (R&R) of Chief Magistrate Judge Raymond L.
Erickson. The Court has reviewed de novo those portions of the R&R to which Burns has
objected, as required by 28 U.S.C. 636(b)(1) and Fed. R. Civ. P. 72(b). The Court adopts
1Although this action arises out of conduct that occurred exclusively in Minnesota, and
although all of the defendants to this action are citizens of Minnesota, Burns filed this lawsuit in
the United States District Court for the District of New Jersey, and thus Burns technically did not
violate the order barring her from filing new cases in this Court. The action was subsequently
transferred to this Court over Burnss objection.
2Burns recently faxed to the undersigneds chambers a copy of a letter addressed to Chief
Judge Michael J. Davis. The Court directed the clerks office to docket the letter and the
accompanying fax cover sheet [Docket No. 341]. The Court addresses in a separate order the
issues raised by Burns in her letter.
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Judge Ericksons thorough and well-reasoned R&R [Docket No. 334] and dismisses all of
Burnss claims the federal claims with prejudice, the state claims without.
In addition, the Court commends Judge Erickson for his work on this case. Burns is, to
put it charitably, a difficult litigant, whose past misconduct has resulted in one judge of this
Court barring her from contacting any employee of this Court by telephone, see Burns v.
Minnesota, Civ. No. 3-94-1038, Order at 1 ( D. Minn. Dec. 30, 1994), and another judge of this
Court barring her from filing any new lawsuits in this Court unless the pleadings bear the
signature of a duly admitted officer of this Court, or Ms. Burns has applied for, and received, the
prior consent of a United States Magistrate Judge, Burns v. R.A. Ungerman Constr. Co., No. 4-
95-CV-27, Order at 4 (D. Minn. Mar. 24, 1995).1 Judge Erickson has borne the brunt of Burnss
misbehavior throughout this action, including ad hominem attacks on Judge Erickson himself.
Judge Erickson took it all in stride, treating Burns with patience and respect, giving painstaking
consideration to each of Burnss claims, and doing excellent work.
Because the Court agrees entirely with Judge Ericksons analysis, the Court writes only
to address a few issues related to Burnss objection to the R&R.2
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To begin with, Burns grossly violated the local rules that apply to such objections. Under
Local Rule 72.2(b), an objection to an R&R shall not exceed 3,500 words counted in
accordance with Rule 7.1 and must comply with all other requirements contained in Rule 7.1(c)
and (e). D. Minn. L.R. 72.2(b). Burnss objection alone was roughly 9,100 words almost
triple the words that she was permitted. But Burns did not stop there. She also attached to her
objection a document designated Appendix A, which is simply a continuation of her objection.
That appendix was roughly 8,300 words. Burnss violation of the local rule was surely
intentional, as Burns is a perennial litigant who is intimately familiar with the rules of this Court.
For that reason alone, this Court overrules Burnss objection and adopts Judge Ericksons R&R.
To ensure that no injustice has been done to Burns, this Court has nevertheless read all of
Burnss objection. (The Court has disregarded Burnss Appendix A.) The Court also
considered Hennepin Countys response to Burnss objection [Docket No. 338]. That response
is properly before the Court. Local Rule 72.2(b) provides: A party may respond to another
partys objections within 10 days after being served with a copy thereof. D. Minn. L.R.
Burns devotes a significant part of her objection to her contention that she is not a
Minnesota resident, but a resident of New Jersey. Burns appears to base two different arguments
on this contention about her purported New Jersey residence. First, she continues to insist that
the Court lacks personal jurisdiction over her. Obj. at 2 [Docket No. 337]. But as the Court said
almost two years ago in rejecting Burnss argument that the case was improperly transferred
Burns contends that this court has not established that it can
obtain and exercise personal jurisdiction of the Plaintiff, a New
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Jersey resident. Docket No. 167 at 2. But lack of personal
jurisdiction is a defense it is to be raised by defendants. See
Fed. R. Civ. P. 12(b). A plaintiff who chooses to file a suit in one
federal court submits to the jurisdiction of all federal courts.
Order July 24, 2007 at 3 [Docket No. 203]. Burns simply ignores the Courts words and persists
in objecting to personal jurisdiction as though she were a defendant who had been sued in
Minnesota. Burns is not a defendant, and, even if she were, the notion that a Minnesota court
could not exercise personal jurisdiction over her in this lawsuit a lawsuit arising out of actions
taken in Minnesota, by Minnesota citizens, against someone who claimed in her pleadings to be
a Minnesota citizen is absurd.
Second, Burns seems to argue that because she is a New Jersey resident, the City of
Apple Valley should not have issued the citations that led to her arrest on a bench warrant in
November 2003. Obj. at 7-14. But whether those citations were valid is entirely irrelevant to
Burnss claims against defendants Dakota County, the City of Richfield, Thomas Fitzhenry,
Hennepin County, and Steven Sutton. Those defendants had nothing to do with the citations
themselves; their actions all related to or followed from a bench warrant that was issued when
Burns failed to appear at a hearing about the citations. The validity of that bench warrant and the
propriety of enforcing it have nothing to do with the validity of the citations. If a party is
ordered to appear in court, that party must appear, regardless of whether the charges giving rise
to the court-ordered appearance are proper or not. And as Judge Erickson correctly found,
Fitzhenry was entitled to rely on the bench warrant when he arrested Burns, and Hennepin
County was entitled to incarcerate her following the arrest. R&R at 23-25, 38 ([W]e have
already determined that Fitzhenry had probable cause to arrest the Plaintiff, and resultantly, there
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can be no cognizable claim for false imprisonment against any Defendant, including Hennepin
With respect to Apple Valley, which issued the citations, the Court agrees with Judge
Erickson that Burnss claims against Apple Valley fail for the reasons given in the R&R: She
has not raised a legally cognizable claim for conspiracy to violate her civil rights, she has not
raised a legally cognizable claim for malicious prosecution under 42 U.S.C. 1983, she has not
identified any policy or custom on the part of Apple Valley to support her constitutional claims,
and many of her claims against Apple Valley have been fully resolved in a separate lawsuit.
R&R at 34-38 & 34 n.17.
Burns also objects that the case cannot be dismissed because the State of Minnesota is a
necessary and indispensable party. This objection is frivolous. In an R&R dated March 8, 2007,
Judge Erickson recommended dismissing without prejudice Burnss claims against the Office of
the Attorney General of the State of Minnesota because Burns did not properly effect service on
the state. R&R Mar. 8, 2007 at 12-17 [Docket No. 130]. The Court adopted that R&R on
August 2, 2007, but inadvertently failed to dismiss Burnss claims against the State of
Minnesota. Order Aug. 2, 2007 [Docket No. 208]. The Court remedied its oversight in an order
dated September 16, 2008. Order Sept. 16, 2008 at 3 [Docket No. 326]. Burns failed to prove
that she properly served the State of Minnesota. She cannot now argue that because the state is
not a part of the lawsuit a situation for which she alone is responsible this suit cannot be
Moreover, the State of Minnesota is plainly not an indispensable party under Rule 19 of
the Federal Rules of Civil Procedure. Burnss case arises out of her arrest by a Richfield police
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officer, and her subsequent detention by Hennepin County, on a bench warrant issued by Dakota
County that related to citations issued by the City of Apple Valley. The Court can accord
complete relief among existing parties without the State of Minnesota as a defendant. Fed. R.
Civ. P. 19(a)(1)(A). Finally, even if the State of Minnesota were an indispensable party, the
Court would have two choices: to proceed among the existing parties or to dismiss the case.
Burns seems to want the Court to do something else entirely: to deny the meritorious motions of
the existing parties, and to grant her non-meritorious motion. The Court declines to do so.
Burns also objects on the basis that discovery is incomplete. This, too, is a frivolous
objection. This case has been pending in this Court for almost four years. Burns has had ample
opportunity to take discovery.
Finally, Burns seems to object to Judge Ericksons recommendation that the Court
decline to exercise supplemental jurisdiction over Burnss state-law claims and dismiss those
claims without prejudice. Obj. at 5. Burns argues that since she is a citizen of New Jersey, and
defendants are citizens of Minnesota, this Court has original jurisdiction over her state-law
claims under 1332(a)(1). Id.
The Court first notes that, in her First Amended Complaint, Burns does not allege that
this Court has diversity jurisdiction over any of her claims and for good reason: In that same
complaint, Burns contends that she is a citizen of Minnesota (as well as New Jersey) and that she
resided at all relevant times . . . at 13684 Harmony Way, Apple Valley, Minnesota (as well as
at an address in New Jersey). First Am. Compl. 1. It is a well-established rule that diversity
of citizenship is assessed at the time the action is filed. Freeport-McMoRan, Inc. v. KN Energy,
Inc., 498 U.S. 426, 428 (1991); see also Harris v. Garner, 216 F.3d 970, 983 (11th Cir. 2000)
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(It is well established that the only citizenship of the original parties that matters for purposes of
determining whether diversity jurisdiction exists is their citizenship at the time the lawsuit is
filed; any changes in a partys citizenship that occur after filing are irrelevant.). Burns declared
at the outset of this litigation that she was a citizen of Minnesota, there has been no finding to the
contrary by this Court, and thus Burns must accept the consequences of her assertion.
Burns points out that Judge Dennis M. Cavanaugh of the United States District Court for
the District of New Jersey found that she was a citizen of New Jersey in a December 30, 2008
order. See Estate of Renee A. DeFina v. Burns, No. 08-CV-4457 (DMC), slip op. at 3 (D.N.J.
Dec. 30, 2008). That order was entered in the course of litigation filed by the estate of Burnss
late mother to eject Burns from a condominium. That litigation was filed in a New Jersey state
court, removed to federal court by Burns, and then remanded to state court. Burns filed a motion
for reconsideration of the remand order, arguing that she was a citizen of Minnesota, and thus
that the federal court had jurisdiction over the lawsuit under 28 U.S.C. 1332. Judge
Cavanaugh found that at some earlier point Burns had become domiciled in New Jersey and that
since it is unclear where [Burns] currently resides, and because [Burns] has not provided
sufficient evidence to the contrary, the Court sees no reason to find that [Burnss] status as a
New Jersey domiciliary, once established, has changed. Id. at 4 (footnote omitted).
But that order was entered in litigation between the estate of Burnss mother and Burns,
based upon the evidence presented by those two parties. The order in no way binds this Court or
any of the defendants to this action who, obviously, were not parties to the New Jersey
litigation. Burns seems to think that she can say whatever she wants about her residence,
regardless of the truth. When it is to Burnss advantage to say that she is a Minnesota resident
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(as it was in the New Jersey case), that is what she says. When it is to Burnss advantage to say
that she is a New Jersey resident (as she thinks it is in this case), that is what she says.
Again, Burns asserted in her complaint that she was a citizen of Minnesota (as well as
New Jersey), and just a few months ago Burns insisted before another federal court that she was
a citizen of Minnesota (and not of New Jersey). The defendants have not contested Burnss
assertion that she is a citizen of Minnesota; to the contrary, they have expressed great skepticism
about her claims to reside anywhere other than Minnesota. And this Court has never found that
Burnss allegation that she is a citizen of Minnesota is untrue. The Court holds Burns to her
assertions, and accordingly, the Court finds that it lacks diversity jurisdiction over Burnss statelaw
claims against Minnesota citizens.
Alternatively, even if this Court were to find that it had diversity jurisdiction over
Burnss state-law claims, it would dismiss those claims as a sanction for Burnss bad faith in
swearing before one federal court that she was a citizen of Minnesota while at the same time
swearing before another federal court that she was not a citizen of Minnesota. Obviously, the
misconduct of a litigant cannot confer subject-matter jurisdiction on a federal court where none
exists; but a federal court has inherent authority to decline to exercise subject-matter jurisdiction
in aid of a litigant who, like Burns, has attempted to commit fraud on the federal courts. See
Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991). Given that Burnss inequitable conduct
involves attempting to manufacture federal jurisdiction by insisting when she is sued by a New
Jersey citizen that she is a citizen of Minnesota, while simultaneously insisting when she sues
Minnesota citizens that she is a citizen of New Jersey, dismissal of her state-law claims without
prejudice would be a measured and appropriate sanction.
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Based on the foregoing and on all of the files, records, and proceedings herein, the Court
OVERRULES Burnss objection [Docket No. 337] and ADOPTS Judge Ericksons February 4,
2009 Report and Recommendation [Docket No. 334]. Accordingly, IT IS HEREBY ORDERED
1. The motion of plaintiff Barbara Burns for summary judgment [Docket No. 314] is
2. The motion of defendant Dakota County for summary judgment [Docket No. 275]
3. The motion of defendants Hennepin County and Steven Sutton for summary
judgment [Docket No. 278] is GRANTED.
4. The motion of defendants City of Apple Valley, City of Richfield, City of
Richfield Police Department, and Thomas Fitzhenry for summary judgment
[Docket No. 293] is GRANTED.
5. Accordingly:
a. Count I of plaintiffs First Amended Complaint is DISMISSED WITH
b. With respect to Count II of plaintiffs First Amended Complaint:
MERITS, except to the extent that it asserts claims under state law.
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ii. To the extent that it asserts claims under state law, Count II of
plaintiffs First Amended Complaint is DISMISSED WITHOUT
c. Count III of plaintiffs First Amended Complaint is DISMISSED WITH
d. Counts IV through VII of plaintiffs First Amended Complaint are
Dated: March 27, 2009 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge


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