Steele v. City of Bemidji, Minn.

• Citation: 114 F.Supp.2d 838
• Decision Date: 29 August 2000
• Docket Number: Civil No. 99-1862(RHK/RLE).
• Parties: Adam STEELE and Northern Herald Publications, Inc., a Minnesota Corporation, Plaintiffs, v. The CITY OF BEMIDJI, MINNESOTA, a Municipal Corporation, et al., Defendants.
• Court: U.S. District Court — District of Minnesota

114 F.Supp.2d 838

Adam STEELE and Northern Herald Publications, Inc., a Minnesota Corporation, Plaintiffs, v. The CITY OF BEMIDJI, MINNESOTA, a Municipal Corporation, et al., Defendants.

Civil No. 99-1862(RHK/RLE).

United States District Court, D. Minnesota.

August 29, 2000.

COPYRIGHT MATERIAL OMITTED

Adam Steele, Bemidji, MN, pro se.

H. Patrick Weir, Angie E. Lord, Vogel Weir Bye Hunke & McCormick, Fargo, ND, for Forum Communications Co., Omar Forberg.

Jon K. Iverson, Paul D. Reuvers, Erstad & Riemer, Minneapolis, MN, for City of Bemidji, Alex Felix, Phil Shealy, Michael Porter, Jon Hunt, Robert Tell.

Carl C. Drahos, Drahos, Young & Kieson, Bemidji, MN, for Lynette Russell, Joseph Lueken, Lueken's Food Stores, William Batchelder, Terry Smart, Cenex Corporation, Countryside Restaurant Blackduck Restaurant, Country Side Restaurant, Maid-Rite Café, Southside Restaurant, Tim Saga, Highway Host Restaurant, and Festival Foods.

Peter D. Bergstrom, Thomas P. Carlson, Bergstrom Carlson, St. Paul, MN, for County of Beltrami, Tim Faver, David Frank.

Jennifer K. Eggers, Oppenhiemer Wolff & Donnelly, Minneapolis, MN, for J & B Foods.

Gregory D. Larson, for Superamerica of Park Rapids.

Bradford J. Roegge, Abrams & Smith, Minneapolis, MN, for Rich Johanneson, Johanneson's Inc.

William E. Flynn, Hassan Saffouri, Lindquist & Vennum, Minneapolis, MN, for Petro Pete's.

Kitty Lemer, Wadena, MN, pro se.

James Michael Njus, Teresa M. Jones, Meyer & Njus, Minneapolis, MN, for Developers' Diversified Realty Corp. d/b/a/ Paul Bunyan Mall.

ORDER

KYLE, District Judge.

Before the Court are Plaintiffs' Objections to the August 3, 2000 Report and Recommendation of Magistrate Judge Raymond L. Erickson. This Court has conducted the required de novo review of the objected to portions of the Report and Recommendation. That review satisfies the undersigned that Judge Erickson's recommendations are fully supported by the facts and the law. Accordingly, the Report and Recommendation will be adopted.

Upon all the files, records and proceedings herein, IT IS ORDERED:

1. The Objections (Doc. No. 110) are OVERRULED;

2. The Report and Recommendation (Doc. No. 108) is ADOPTED;

3. Forum's Motions to Dismiss (Doc. Nos. 10 and 39) are GRANTED;

4. J & B's Motion to Dismiss (Doc. No. 51) is GRANTED;

5. Petro's Motion to Dismiss (Doc. No. 57) is GRANTED;

6. The Beltrami Defendants' Motion to Dismiss (Doc. No. 59) is GRANTED;

7. The Russell Defendants' Motion to Dismiss (Doc. No. 64) is GRANTED;

8. Johanneson's Motion to Dismiss (Doc. No. 79) is GRANTED;

9. Developers Diversified Realty Corporation's Motion to Dismiss (Doc. No. 82) is GRANTED;

10. The Bemidji Defendant's Motion to Dismiss, or in the alternative, for Summary Judgment (Doc. No. 88) is GRANTED;

11. Superamerica's Motion to Dismiss (see footnote 16 of the Report and Recommendation) is GRANTED;

12. The Injunction, which was issued by the District Court on November 19, 1999, is DISSOLVED; and

13. The Complaint is DISMISSED WITH PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.

ORDER and REPORT AND RECOMMENDATION

ERICKSON, United States Magistrate Judge.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to a special assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(A) and (B), upon the Motions of the various Defendants to Dismiss or, in the alternative, for Summary Judgment.¹

Hearings on the Motions were conducted on February 24, 2000, and on June 29, 2000, respectively, at which time, the Plaintiff, Adam Steele ("Steele"), appeared pro se; the Defendants, Forum Communications Co., and Omar Forberg (collectively referred to as "Forum") appeared by Angie E. Lord, Esq.; the Defendants City of Bemidji, Alex Felix, Phil Shealy, Michael Porter, Jon Hunt, and Robert Tell (collectively referred to as "the Bemidji Defendants") appeared by Jon K. Iverson, Esq.; the Defendants Lynette Russell, Joseph Lueken, Lueken's Food Stores, William Batchelder, Terry Smart, Cenex Corporation, Countryside Restaurant, Blackduck Restaurant, Country Side Restaurant, Maid-Rite Café, Southside Restaurant, Tim Saga, Highway Host Restaurant, and Festival Foods, (collectively referred to as "the Russell Defendants") appeared by Carl C. Drahos, Esq.; the Defendants County of Beltrami, Tim Faver, and David Frank (collectively referred to as "the Beltrami Defendants") appeared by Peter D. Bergstrom, Esq.; the Defendant J & B Foods ("J & B") appeared by Jennifer K. Eggers, Esq.; the Defendant Superamerica of Park Rapids ("Superamerica") appeared by Gregory D. Larson, Esq.; the Defendant Paul Bunyan Mall ("Mall") appeared by Teresa Jones, Esq.; the Defendants Rich Johanneson, and Johanneson's Inc. ("Johanneson") appeared by Bradford J. Roegge, Esq.; the Defendant Petro Pete's ("Petro") appeared by Hassan Saffouri, Esq; and no appearance was made by, or on the behalf of the Plaintiff, Northern Herald Publications ("Northern Herald").

For reasons which follow, we recommend that the Motions of the Defendants be granted, thereby warranting the entry of a final Judgment in favor of each of the Defendants.

II. Factual and Procedural History

This action involves the Plaintiffs' claim, that the Defendants conspired to deprive them of their First Amendment Rights, by denying them the means to publish, or otherwise distribute, the Northern Herald newspaper. On November 19, 1999,² Steele, and his newspaper company, Northern Herald, filed the original Complaint in this matter, which asserted claims against approximately thirty named parties, and "other unnamed persons and entities." In their Complaint, Steele and Northern allege that "[t]his case deals with the outright prohibition, by the Defendant, the CITY OF BEMIDJI, acting through its City Attorney, ALAN FELIX, of the distribution, by Plaintiffs, of a newspaper in Bemidji, in violation of the rights of the Plaintiff." Amended Complaint, at ¶ 1.

Further, according to the Plaintiffs' Complaint, this action also arises from an alleged concerted effort, by individuals and businesses, within the City of Bemidji, to disrupt the distribution of the Northern Herald, either by refusing to sell the paper, or by refusing to allow Steele to distribute it, at certain locations. In addition, Steele alleges that he has been denied service in restaurants, bars, and other locations, has had his newspapers stolen, and has been generally vilified within the community. This "anti-Steele" campaign, assertedly, is the result of Steele's publication, in the Northern Herald, of an article that was "sharply critical of one Richard Morton (deceased), who was the owner of a saloon in Bemidji which had been identified as `a police hang-out'".³

Premised upon these allegations, the Plaintiffs have asserted several causes of action in their Complaint, including claims of: (1) failing to prevent a conspiracy, in violation of Title 42 U.S.C. § 1986; (2) harassing Steele's First Amendment rights; (3) conspiring to interfere with Steele's civil rights, in violation of Title 42 U.S.C. § 1985; (4) depriving Steele of his civil rights, in violation of § 1983; and (5) maliciously interfering with a business advantage. Id. As such, Steele seeks injunctive relief, as well as damages in the amount of $600 billion. Id., at p. 21-22.

III. Discussion

At the outset, we address a threshold flaw in any claim asserted by the Northern Herald. Throughout the course of this litigation, Steele has purported to represent the interests of the Northern Herald, in which he is, apparently, the largest shareholder, as well as representing himself. As we expressed, at the time of our initial Pretrial Conference and, thereafter, throughout the subsequent stages of this litigation, under the controlling precedent of this, and other Circuits, a corporation may not be represented pro se. See, Minute Order of February 24, 2000, at 5, citing Simitar Entertainment, Inc. v. Silva Entertainment, 44 F.Supp.2d 986, 990 (D.Minn.1999), citing, in turn, Ackra Direct Marketing Corp. v. Fingerhut Corp., 86 F.3d 852, 857 (8th Cir.1996) (explaining that corporation was technically in default from the date that its counsel was permitted to withdraw without substitution); see also, United States v. Van Stelton, 988 F.2d 70, 70 (8th Cir.1993); Eagle Associates v. Bank of Montreal, 926 F.2d 1305, 1308 (2nd Cir.1991).

Further, it is also firmly established that a layperson may not represent a corporation in judicial proceedings, as a corporation may only appear by legal counsel. See, Minute Order of February 24, 2000, citing Simitar Entertainment, Inc. v. Silva Entertainment, supra at 990, citing, in turn, Mendenhall v. Goldsmith, 59 F.3d 685, 687 n. 1 (7th Cir.1995) (dismissing appeal filed by layperson on behalf of corporation); In re America West Airlines, 40 F.3d 1058, 1059 (9th Cir.1994) ("Corporations and other unincorporated associations must appear in Court through an attorney."). Even sole shareholders of corporations are prohibited from representing such corporations pro se. See, Cheung v. Youth Orchestra Foundation of Buffalo, Inc., 906 F.2d 59, 61 (2nd Cir. 1990); Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1385 (11th Cir.1985); In re K.M.A., Inc., 652 F.2d 398, 399 (5th Cir.1981); Capital Group, Inc. v. Gaston & Snow, 768 F.Supp. 264, 265 (E.D.Wis.1991).

As we stated in our Minute Order:

In response, Steele has cited to two cases from foreign jurisdictions, which stand for the proposition that, where the interests of the pro se litigant, and a closely-held corporation, are virtually synonymous, it is permissible for an agent of the corporation to represent the corporate entity before the Court. In the first of the cases cited by Steele, In re Matter of Holliday's Tax Services, Inc., 417 F.Supp. 182 (E.D.N.Y.1976), a principal in the corporation was allowed to appear for that corporation where each was bankrupt, and neither could afford a...