Summary
modifying judgment dismissing case with prejudice for lack of jurisdiction to be without prejudice
Summary of this case from Ben E. Keith Co. v. Dining All.Opinion
No. 07-1731.
Submitted: February 13, 2008.
Filed: February 19, 2008.
Appeal from the United States District Court for the District of Minnesota.
Terry Borchardt, Minneapolis, MN, pro se.
Craig R. Anderson, Attorney General's Office, St. Paul, MN, for Appellees.
Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
[UNPUBLISHED]
Terry Borchardt appeals the district court's Federal Rule of Civil Procedure 12(b)(1) dismissal with prejudice of his complaint challenging the garnishment of his wages pursuant to a Notice of Levy issued by the Minnesota Department of Revenue. Upon de novo review, see Cedar Rapids Cellular Tel., L.P. v. Miller, 280 F.3d 874, 878 (8th Cir. 2002), we conclude that dismissal was proper for the reasons stated by the district court. However, we modify the judgment to be without prejudice, see Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999) (Article III prevents federal courts from dismissing case with prejudice where subject matter jurisdiction is lacking), and we affirm the judgment as modified, see 8th Cir. R. 47B.
The Honorable Janie S. Mayeron, United States Magistrate Judge for the District of Minnesota, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c).