                            This opinion will be unpublished and
                            may not be cited except as provided by
                            Minn. Stat. § 480A.08, subd. 3 (2014).

                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A15-0911


                                     Kristina Jean Powers,
                                           Appellant,

                                              vs.

                              Superintendent James Freihammer,
                                in his official capacity, et al.,
                                         Respondents.


                                   Filed February 1, 2016
                                          Affirmed
                                      Halbrooks, Judge


                                Wabasha County District Court
                                  File No. 79-CV-14-997

Kristina J. Powers, Wabasha, Minnesota (pro se appellant)

Trevor S. Helmers, Abby M. Novak, Rupp Anderson Squires & Waldspurger, P.A.,
Minneapolis, Minnesota (for respondents)

          Considered and decided by Halbrooks, Presiding Judge; Stauber, Judge; and Reyes,

Judge.

                           UNPUBLISHED OPINION

HALBROOKS, Judge

          Appellant challenges the district court’s dismissal of her data-practices claim. We

affirm.
                                          FACTS

       Appellant Kristina Powers has been before this court in the past.          The facts

underlying the history between Powers and respondents Wabasha-Kellogg Independent

School District No. 811 and the school district superintendent are set forth in our decision

affirming the district court’s grant of a harassment restraining order (HRO), which

prohibited Powers from contacting the superintendent or his family. See Freihammer v.

Powers, No. A09-1562, 2010 WL 2362957, at *1-3 (Minn. App. June 15, 2010).

       Since that decision, Powers has initiated multiple legal actions against respondents.

Powers filed a charge with the Equal Employment Opportunity Commission (EEOC) based

on alleged discrimination by school district employees. The EEOC dismissed the charge

as untimely. Powers filed a retaliation claim against the school district in federal district

court. The federal district court dismissed the case for failure to state a claim on which

relief could be granted.     While the retaliation claim was pending, Powers filed a

42 U.S.C. § 1983 claim against the school district in federal district court for denying her

due-process rights by violating the Minnesota Government Data Practices Act (MGDPA).

The federal district court dismissed that claim with prejudice.

       Powers then sent a letter to the superintendent’s attorney, requesting all data

pertaining to an investigation into alleged wrongdoing by the superintendent from 2008 to

2009 and any complaints or charges made in her name against the school district or its

employees. The school district responded, informing Powers that any data related to the

investigation from late 2008 to early 2009 is “private personnel data” that is protected

under the MGDPA. But it disclosed that there were some “[a]llegations of inappropriate


                                             2
behavior towards staff members” by the superintendent and that the allegations had been

“fully investigated” by the school district and that “no disciplinary action was taken.”

       Powers replied by requesting copies of e-mails authored in her name to the school

board that were sent from 2008 and early 2009 as well as a summary “of any data about

[Powers] or allegedly authored by [Powers] which [the school district has] classified as

confidential.” The school district responded, stating that it could not disclose the files from

the 2008 to 2009 investigation.

       Powers made a third data request for essentially the same information as well as

summaries of that information. The school district advised Powers that it had already

turned over what data it had. The school district also advised Powers that it could not turn

over summaries of private or confidential information as a way of allowing her access to

information that she would otherwise not be able to receive.

       After the school district’s last response, Powers sent the school district a notice-of-

claims letter informing it that she believed that the school district’s refusal to turn over the

documents violated the MGDPA. She then served a complaint alleging, in relevant part,

that respondents violated the MGDPA when they refused to turn over the e-mails authored

in her name and sent to the school board. Respondents responded with a motion to dismiss

on three grounds: (1) collateral estoppel, (2) res judicata, and (3) failure to state a claim on

which relief could be granted. Powers opposed the motion.

       The district court granted the motion to dismiss, ruling that the facts alleged did not

entitle Powers to access the data under any provision of the MGDPA. Accordingly, the

district court determined that Powers failed to state a claim on which relief could be


                                               3
granted. In addition, the district court determined that the doctrines of collateral estoppel

and res judicata barred Powers’s claim and cautioned Powers that the litigation was

frivolous and if she continued to pursue the claim, she could be subject to sanctions. This

appeal follows.

                                      DECISION

                                              I.

       Powers argues that the district court erred in dismissing her MGDPA claim under

Minn. R. Civ. P. 12.02(e). She challenges the district court’s ruling that the complaint does

not set forth a legally sufficient claim that respondents had violated Minn. Stat. § 13.39,

subd. 2(b) (2014), or Minn. Stat. § 13.43, subd. 2(d) (2014).

       “We review de novo whether a complaint sets forth a legally sufficient claim for

relief.” Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 606 (Minn. 2014). On review of a

district court’s grant of a motion to dismiss under rule 12.02(e), “we consider only the facts

alleged in the complaint, accepting those facts as true.” Sipe v. STS Mfg., Inc., 834 N.W.2d

683, 686 (Minn. 2013) (quotation omitted). A claim is sufficient to survive a motion to

dismiss “if it is possible on any evidence which might be produced, consistent with the

pleader’s theory, to grant the relief demanded.” N. States Power Co. v. Franklin, 265 Minn.

391, 395, 122 N.W.2d 26, 29 (1963); see also Bahr v. Capella Univ., 788 N.W.2d 76, 80

(Minn. 2010). We also review de novo the district court’s interpretation of the MGDPA.

See Helmberger v. Johnson Controls, Inc., 839 N.W.2d 527, 531 (Minn. 2013).

       The MGDPA seeks “to balance the rights of individuals (data subjects) to protect

personal information from indiscriminate disclosure with the right of the public to know


                                              4
what the government is doing.” Demers v. City of Minneapolis, 468 N.W.2d 71, 72 (Minn.

1991). The act “establishes a presumption that government data are public and are

accessible by the public for both inspection and copying unless there is federal law, a state

statute, or a temporary classification of data that provides that certain data are not public.”

Minn. Stat. § 13.01, subd. 3 (2014); see also Minn. Stat. § 13.03, subd. 1 (2014) (stating

that government data “collected, created, received, maintained or disseminated by a

government entity” is public unless otherwise classified). “‘Not public data’ are any

government data classified by [law] as confidential, private, nonpublic, or protected

nonpublic.” Minn. Stat. § 13.02, subd. 8a (2014).

       Relevant to this dispute, the MGDPA classifies as “not public data” any “data

collected by a government entity as part of an investigation undertaken for the purpose of

the commencement or defense of a pending civil legal action.” Minn. Stat. § 13.39, subd.

2(a) (2014); see also Minn. Stat. § 13.02, subd. 8a. An exception to this classification is

that “[a] complainant has access to a statement provided by the complainant to a

government entity,” even if the data is otherwise inaccessible under section 13.39,

subdivision 2(a). Minn. Stat. § 13.39, subd. 2(b). Similarly, section 13.43, subdivision

2(d) allows a “complainant . . . access to a statement provided by the complainant to a

government entity in connection with a complaint or charge against an employee.”

       On appeal, Powers concedes that the e-mails would generally be classified as not

public, but argues that she is entitled to access under Minn. Stat. §§ 13.39, subd. 2(b), .43,

subd. 2(d). We understand her argument to be that because the school district viewed her

as the sender of the e-mails, for purposes of the MGDPA, she is the “complainant” and


                                              5
each e-mail is “a statement provided by the complainant.” But our review presumes the

truth of the facts alleged in the complaint, and this argument cannot be reconciled with the

facts alleged.

       The theory of Powers’s complaint is that she did not send the e-mails—the e-mails

were sent by an unknown person who impersonated Powers, and respondents’ refusal to

release the data hampered her efforts to clear her name. Throughout her complaint, Powers

consistently denies being the author of the e-mails or having filed any complaint against

the superintendent. The complaint alleges, “[Powers] had deliberately never filed a formal

complaint of any sort against [the superintendent] . . . .” It also alleges that “she does not

even know for certain what the [e-mails] contain.” Further, it alleges “that [Powers] is the

victim of identity theft/impersonation” and that respondents “deprived [Powers] of the

ability to obtain the school board emails and investigate who impersonated her, to hold

them legally responsible, and to clear her name.” In sum, the complaint alleges that Powers

is not the sender of the e-mails that she seeks to access.

       Because our review presumes the truth of the allegations in the complaint, we cannot

conclude that Powers is a complainant seeking access to a statement that she provided to

the school district. Thus, the complaint fails to set forth a legally sufficient claim that

respondents violated Minn. Stat. §§ 13.39, subd. 2(b), .43, subd. 2(d), by withholding the




                                              6
e-mails. We conclude that the district court properly dismissed Powers’s MGDPA claim

for failure to state a claim.1

                                             II.

       Powers argues that the district court erred by failing to address her motion to amend

her complaint under Minn. R. Civ. P. 15.01. “Generally, we will not reverse a district

court’s decision to permit or deny an amendment to pleadings absent a clear abuse of

discretion.” Sharkey v. City of Shoreview, 853 N.W.2d 832, 834 (Minn. App. 2014).

       Under rule 15.01, “A party may amend a pleading once as a matter of course at any

time before a responsive pleading is served.” A rule 12.02(e) motion to dismiss is not a

responsive pleading for the purposes of this rule. Sharkey, 853 N.W.2d at 835.

       After respondents filed their motion to dismiss, Powers filed a document captioned

in part, “notice of motion and motion for leave to amend her complaint.” In this “notice of

motion and motion,” Powers stated that “if necessary and appropriate,” she would bring a

motion to amend her complaint at or after the hearing on respondents’ motion to dismiss.

               [Powers] will, if necessary and appropriate, bring a Motion for
               Leave to Amend her Complaint and to file a Motion to Compel
               Discovery pursuant to Minn. Stat. § 13.03, Subd. 6, before the
               Court. . . . [Powers] will proceed with this Motion at the
               hearing if [respondents] make definitive and affirmative
               statements regarding the existence of the school board emails
               and/or acknowledge [the superintendent’s] June 2, 2009,
               testimony that [Powers] filed a document entitled “grievance”
               within [the school district] in October 2007. Additionally,
               [Powers] will proceed with this Motion if [respondents] still


1
  Because we affirm the district court’s decision on the merits of the rule 12.02(e) motion,
we need not reach the district court’s determination that this claim was also barred by
res judicata and collateral estoppel.

                                             7
              claim that [Powers] failed to properly plead an allegation in
              Paragraph 72 of her Complaint.

                    Said motion will be based on the arguments set forth in
              [Powers’s] Responsive Memorandum of Law in Opposition to
              Defendant’s Motion to Dismiss pursuant to Minn. R. Civ. Pro.
              12.02(e) . . . .

       In her memorandum in opposition to the motion to dismiss, Powers requested that

the district court “require [respondents] to make a definitive ‘yes’ or ‘no’ statement as to

the existence of the emails, and, if necessary, grant [Powers] leave to amend to include new

information and an action to compel discovery.” She also requested that the district court

“require [respondents] to make a definitive statement regarding [the superintendent’s]

testimony about [Powers’s] ‘grievance,’ and, if necessary, grant [Powers] leave to amend

her complaint.” Finally, she requested that she be allowed to amend her complaint if the

district court found it necessary in order for her to respond to the contention that she did

not provide sufficient factual support.

       In response to Powers’s motion, respondents acknowledged Powers’s right under

rule 15.01 to amend her complaint once as a matter of course. Thereafter, Powers took no

further action on her motion. We conclude that Powers did not file a proper motion to

amend under rule 15.01. Rather, she filed a conditional request to amend as an attempt to

obtain discovery, in particular admissions, from the school district. We conclude that the

district court acted within its discretion in its handling of this improper motion.

                                             III.

       Powers argues that the district court violated rule 2.9(C) of the Code of Judicial

Conduct and that this violation requires us to reverse and remand based on the supreme


                                              8
court’s analysis in State v. Dorsey, 701 N.W.2d 238 (Minn. 2005). Rule 2.9(C) states, “A

judge shall not investigate facts in a matter independently, and shall consider only the

evidence presented and any facts that may properly be judicially noticed.” Powers

contends that the district court violated rule 2.9(C) by taking judicial notice of the 2009

HRO court record without providing notice to the parties.

       At the outset, we note that Powers provides no support or analysis for her contention

that a violation of this rule necessitates reversal in a civil case. In Dorsey, the defendant

relied on Minn. R. Crim. P. 26.03, subd. 13(3) (now subd. 14(3)), which states that “[a]

judge must not preside at a trial or other proceeding if disqualified under the Code of

Judicial Conduct.” Further, the supreme court ultimately reversed and remanded in Dorsey

based on the criminal defendant’s Sixth Amendment right to an impartial judge and fact-

finder. Dorsey, 701 N.W.2d at 253. Neither basis for reversal in Dorsey applies here.

       In addition, the nature of the investigation in Dorsey is distinguishable. In Dorsey¸

the district court independently investigated the date of death of an individual in order to

decide the veracity of a witness’s testimony during a bench trial. Id. at 243-44. The district

court then, acting as the finder of fact, decided that the witness was not credible in part

because her testimony was inconsistent with the information the district court had

independently discovered. Id. at 244-45. Here, the alleged violation is that the district

court took judicial notice of prior litigation between Powers and the superintendent, which

Powers referenced and relied on in her own complaint.

       Moreover, even if rule 2.9(C) of the Code of Judicial Conduct provided a

mechanism to reverse, the district court here did not violate it. Powers argues that the


                                              9
district court violated rule 2.9(C) when it took judicial notice of the 2009 HRO record. But

it is well settled that, when deciding a motion to dismiss, a district court may “consider

matters outside the pleadings if the pleadings refer to or rely on the outside matters.” 2 In

re Individual 35W Bridge Litig., 787 N.W.2d 643, 647 (Minn. App. 2010), aff’d, 806

N.W.2d 820 (Minn. 2011). Powers referred to and relied on the 2009 HRO record

extensively in her complaint; thus the district court properly considered that record.

Further, because respondents moved to dismiss based on collateral estoppel and

res judicata based in part on decisions made in the 2009 HRO proceeding, the district court

was required to consider whether the facts and issues raised in this litigation were the same.

See State v. Lemmer, 736 N.W.2d 650, 659 (Minn. 2007); Hauschildt v. Beckingham, 686

N.W.2d 829, 840 (Minn. 2004). The district court could not make this ruling without

reference to the 2009 HRO proceeding.

       Finally, Powers’s reliance on the 2009 HRO record, as well as the motion to dismiss,

provided notice to Powers of which portions of the record the district court would need to

reference. See In re Welfare of D.J.N., 568 N.W.2d 170, 175 (Minn. App. 1997) (“[An

affected party] is entitled to notice that identifies the portions of the record that the court

will consider in determining adjudicative facts in the case.”). We therefore conclude that

the district court properly took judicial notice of the 2009 HRO proceeding.




2
  We also note that the district court’s consideration of materials referenced or relied on in
the complaint does not convert a motion to dismiss to one for summary judgment. N. States
Power Co. v. Minn. Metro. Council, 684 N.W.2d 485, 490 (Minn. 2004).

                                              10
       Powers argues in the alternative that the district court was biased because it did not

consider her arguments from her response to respondents’ motion to dismiss. We are not

persuaded. Adverse rulings are not a basis for imputing judicial bias. Ag Servs. of Am.,

Inc. v. Schroeder, 693 N.W.2d 227, 236-37 (Minn. App. 2005). The record indicates that

the district court demonstrated great patience in thoroughly addressing issues that had been

raised before it in multiple ways. The district court considered all of Powers’s arguments

but was not persuaded by them. There is no evidence of judicial bias in this record.

       Affirmed.




                                             11
