Terry Borchardt v. State of Minnesota

264 F. App'x 542

• Court: Court of Appeals for the Eighth Circuit
• Decided: February 19, 2008
• Docket: 07-1731
• Status: Unpublished

Opinion

PER CURIAM.

Terry Borchardt appeals the district court’s 1 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.

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).