STATE OF MINNESOTA IN COURT OF APPEALS A13
- 1989 Todd C. Sharkey Appellant,

vs. City of Shoreview, et al., Respondents, Jerome P. Filla, Respondent, Kari L. Quinn, Respondent, Thomas R. Hughes, et al., Respondents.
Filed September 22 , 2014 Reversed and remanded Klaphake , Judge * Ramsey County District Court File No. 62CV129629 Zorislav R. Leyderman, The Law Office of Zorislav R. Leyderman, Minneapolis, Minnesota (for appellant) Jessica E. Schwie, Matthew C. Tramm, PLLP, Jardine, Logan & O’Br ien, Lake Elmo, Minnesota (for respondents Shoreview, et al.) Bryon G. Ascheman, Chad J. Hintz, Burke & Thomas, P.L.L.P., Arden Hills, Minnesota (for respondent Jerome Filla) Patrick J. Sauter, Mark R. Bradford, Christine E. Hinrichs, Bassford Remele, P. A., Minneapolis, Minnesota (for respondent Kari Quinn)

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.2

Thomas R. Hughes, St. Paul, Minnesota (attorney pro se and for respondent Gregory Holly) Considered and decided by Peterson , Presiding Judge; Schellhas , Judge; and Klaphake , Judge

. S Y L L A B U S
1. A motion to dismiss under Minn. R. Civ. P. 12.02(e) is not a “resp onsive pleading” for purposes of amendment as a matter of course under Minn. R. Civ. P. 15.01.
2. Under Minn. R. Civ. P. 15.01 , a party has an absolute right to amend a pleading once as a matter of course before a responsive pleading has been served

. O P I N I O N
KLAPHAKE , Judge Appellant Todd C. Sharkey appeals the district court’s dismissal of his amended complaint for untimeliness, arguing that he has an absolute right to amend his complaint

as a matt er of cou rse under Minn. R. Civ. P. 15.01 and that the district court did not have discretion to reject his amendment

. He also appeals the dismiss al of his claims against three respondents u nder Minn. R. Civ. P. 12.02(e) , asserting that the district court improper ly determined respondents are entitled to prosecutorial immunity. Lastly, appellant argues that the district court should have liberally construed his complaint as seeking declaratory relief. Because the district court erred by refusing to allow appellan t to amend his complaint once as a matter of course before dismissing his original complaint with prejudice , we reverse and remand for the district court to consider appellant’s amended complaint upon the merits

.3 FACTS In 2006, appellant’s parents applied for a minor subdivision and variance for their property in Shoreview, Minnesota, and their application was denied. Appellant began attending Shoreview City Council meetings to address his discontent with this denial by speaking during a three minute “citizen comment period.” Appellant continued to attend city council meetings and speak during the citizen

- comment period through 2010. Appellant and respondent Jerome P. Filla, Shoreview’s city attorney, attended a

c ity co uncil meeting on May 17, 2010 . At the beginning of the cit izen comment period, appellant “ appro ached the podium very agitated. ” State v. Sharkey , No. A11

- 1108, 2012 WL 1970057, at *2 (Minn. App. June 4, 2012). Respondent Mayor Sandra C. Martin
then addr essed appellant , and appellant became “ boisterous and noisy. ” Id. An exchange between appellant and respondent Martin then took place. Appellant was subsequently removed by Ramsey County sheriffs, transp orted to Ramsey County j ail, detained for two days , and charged with disorderly conduct. Because respondent Fi l la was present at the 2010 meeting, respondent Thomas R. Hughes prosecuted appellant’s criminal case. Respondents Kari L. Quinn and Greg ory Holly also appeared on two separate occasions to pros ecute respondent’s criminal case. The district court convicted appellant on two counts of disorderly conduct. Id. at *1. We reversed his convictions on First Amendment ground s , holding that “the district court improperly relied on protected conduct, and [his] unprotected conduct [was] insufficient to support the convictions.” Id. at *4.4

On November 29, 2012, appellant filed a pro se complaint against respondents , alleging various causes of action. R espondents moved to dismiss appellant’s complaint under Minn. R. Civ. P. 12.02(e) , for failure to state a claim upon which relief can be granted . On May 2, 2013, two weeks before the scheduled motion hearing and before respondents served answers , appellant filed a n amend ed complaint. All respondents
moved to dismiss a ppellant’s amended complaint. After a hearing on respondents’
motio ns to dismiss, t he district court concluded that under Minn. R. Civ. P. 15.01, appellant “failed to timely bring an amended complaint,” and it would not consider the amended complaint on respondents’ rule 12 motions to dismiss

. The court dismissed all
of appell ant’s claims against respondents based on appellant’s original complaint. This appeal followed.
ISSUES
Did the district court err by failing to allow appellant to amend his complaint before granting respondents’ motions to dis m iss?
ANALYSIS Appellant asserts that the district court erred by refusing to consider his amended complaint on respondents’ motions to dismiss, and requests that this court reverse the district court’s dismissal of his complaint and remand with instructions to accept and consider his amended complaint. Minn. R. Civ. P. 15.01 provides that “[a] party may amend a pleading once as a matter of course at any time before a responsive pleading is served . . . . [o]therwise a party may amend a pleading only by leave of court or by written consent of the adverse party.” Generally, we will not rever se a district court ’s5

decision to permit or deny an amendment to pleadings absent a clear abuse of discretion. Johns v. Harborage I, Ltd. , 664 N.W.2d 291, 295 (Minn. 2003). However, the “[c]onstruction and application of the Minnesota Rules of Civil Proc edure is . . . a question of law that we review de novo.” Eclipse Architectural Grp. , Inc. v. Lam , 814 N.W.2d 692, 696 (Minn. 2012).
In dismissing appellant’s amend ed complaint , the district court noted that appellant filed his amended complaint after all respondents filed motions to dismiss, almost six months after the original complaint was served, and that “while more facts are included, the nature of the relief sought by [appellant] is ultimately the same as the original complaint.” The district court reasoned that “Minnesota courts have denied motions to amend complaints when a plaintiff waited months after initial service to amend the complaint.” Appellant argues that he had a right as a matter of course to amend his complaint under r ule 15.01 and t hat the district court had no discretion to reject his amendment.
A ppellant maintains that a motion to dismiss under Minn. R. Civ. P. 12.02(e) is not a “responsive pleading” for purposes of r ule 15.01, and therefore he was not precluded from amendment as a matter of course because respondents had not yet served a responsive pleading . We agree. Although no Minnesota case addresses this issue, Minn. R. Civ. P. 7.01 and 7.02 provide relevant guidance . Under r ule 7.01 , a complaint, an answer, a reply to a co unterclaim, an answer to a cross

- claim, a third

- party complaint,

an d a third

- party answer are all documents that are to be considered pleadings under the
rules

. R ule 7.02 addresses “[m ]otions and [o]ther [p]apers.” By differentiating between6

documents t h at are pleadings and motions, r ules 7.01 and 7.02 indicate that a motion to
dismiss is not a responsive pleading

. Furthermore, courts interpre ting the federal equivalent of r ule 15.01 do not
consider a motion to dismiss to be a responsive pleading. 1 See , e.g. , Foster v. DeLuca , 545 F.3d 582, 584 (7th Cir. 2008) (stating that “[f]or purposes of Rule 15(a), a motion to
dismiss does not cons titute a responsive pleading”); accord Winfrey v. Brewer , 570 F.2d 761, 764 n.4 (8th Cir. 1978). While not controlling , federal cases interpreting the federal
rule s are helpful and instructive in interpreting state rules model ed after the federal rules.
Johnson v. Soo Line R.R. , 463 N.W.2d 894, 899 n.7 (Minn. 1990)

. Because a motion to
dismiss is n ot a responsive pleadin g under r ule 15.01, appellant was not precluded from amending his complaint as a matter of course. Appellant next asserts that his right to amend as a mat ter of course is absolute and the district court did not have the discretion to reject his amended com plaint. We agree. Rule 15.01 clearly differentiates between an amendment made before a responsive pleading is served and a later amendment

. Before a responsive pleading is filed, the rule permits a party to amend a complaint “as a matter of course.” Th is language does not vest the district court with discretion to reject such an amendment. In contrast, after a responsive pleading is filed, a party may amend only by agreement or “by leave of
court.” The unambiguous language of r ule 15 .01 directs that a mendments as a matter of course are meant to be routine and not subject to discretionary judicial review. See

1 Fed. R. Civ. P. 15 was amended in 2009. Fed. R. Civ. P. 15 2009 advisory comm. note. However, the pre

- 2009 version mirrors our curre nt r ule 15. See Fed. R. Civ. P. 15(a)(1) (2008).7

Black’s Law Dictionary 1068 (9th ed. 2009) (defining “matter of course” as “[s]o me thing done as a part of a routine process or procedure”)

. Respondents contend that the district court properly considered the timeliness of appellant’s amendment. However, the case s respondents cite are unpersuasive , as the y address the timeliness of motions for leave to amend a complaint , and not the timeliness
of amendments as a matter of course

. See , e.g. , Sheehan v. St. Peter's Catholic Sch. , 291 Minn. 1, 6, 188 N.W.2d 868, 871 (1971) (addressing a motion for leave to amend a complaint filed two years after the defendant answered); Davis v. Midwest Disc. Sec ., Inc. , 439 N.W.2d 383, 388

- 89 (Minn. App. 1989) (affirming a denial of a motion to amend for untimeliness, prejudice, and as legally deficient, filed a year after a previous
moti on to amend was granted). T he district erred by failing to address appellan t ’ s amended complaint, instead of his original complaint, on respondents’ motions to
dismiss. Respondents City of Shoreview, Martin, and Filla maintain that, because appellant has not specifically appealed the district court’s dismissal of claims against them, he has waived the right to appeal his claims as to each respondent, whether set forth in his complaint or amended complaint. Additionally, respondents Quinn, Hughes, and Holly urge this court to affirm the district court’s dismissal of claims against them based on prosecutorial immunity, which appellant challenges on appeal. However, the approp riate remedy is to re mand for the district court to consider respondents’ motions to dismiss in light of the amended complaint

. Review of whether the district court properly dismissed8

appellant’s claims against respondents is premature until the district court considers appellant’ s amended complaint upon the merits

. D E C I S I O N Under Minn. R. Civ. P. 15.01, appellant had an absolute right to amend his complaint one time as a matter of course before a responsive pleading wa s served

. Respondents’ r ule 1 2.02(e) motions to dismiss are not respon sive pleadings for purposes
of r ule 15 .01 , and because respondents have not filed responsive pleadings, the district
court erred by refusing to allow appellant to amend his complaint once as a matter of

course. We reverse the district court’s dismissal of appellant’s complaint as to all respondents, and remand with instructions to accept appellant’s amended complaint for
consideration upon the merits

. Reversed and remanded.