Terry Borchardt v. State of Minnesota

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1731
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Terry Borchardt, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
State of Minnesota; Minnesota * District of Minnesota.
Department of Revenue; Acting *
through agents James Lee and Jerry * [UNPUBLISHED]
McClure, *
*
Appellees. *
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Submitted: February 13, 2008
Filed: February 19, 2008
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Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
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PER CURIAM.
Terry Borchardt appeals the district court’s1 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,
1
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).
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.
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