handgun-231699_1280Danna Back dated someone on and off for several years who, in judicial opinons, goes by the name of “D.H.”  Back and D.H.’s was a rocky relationship and in 2006 Back moved out of the house that they co-owned and shared.

Then Ms. Back started dating Nick Super who appears to have toxically combined anger management issues with a love of guns.

Super was not fond of D.H. and Back knew that. She knew that Super had threatened D.H. with a gun several times, Super had fired shots at D.H.’s garage, and Back knew that Super was “known to pull his gun out on anybody.”

For reasons best known by herself, at around 3:00 a.m. on January 1, 2007, Back decided to go to D.H.’s house. Guess who she called to give her a ride to D.H.’s house? And guess what happened then?


Arrowsmith's_map_of_the_world_(1812)Personal jurisdiction jurisprudence in the 21st century is something of a pet peeve of mine (most recent post here (linking to still more posts)). To decide whether they can impose jurisdiction over a party, courts analyze whether the party could “reasonably foresee” being “haled” into a court within the jurisdiction. My most recent post on the subject applauds a move in the right direction by the U.S. Court of Appeals for the Eighth Circuit. That is, I believe the rule should be:

When a foreign company knowingly engages in business with, say, a Minnesota company (knowing it is engaging with the company and knowing the company is in Minnesota), for any protracted period of time (a vague term that might not be determinable with precision by courts ever), in the absence of a contractual exclusive forum selection clause identifying a non-Minnesota forum, the foreign company should be charged with knowledge that, if a dispute ever arises with the Minnesota company over their business interactions, the foreign company might have to defend a lawsuit in Minnesota.

Doesn’t that make sense to you?

In contrast, the recent linked decision makes no sense to me.


Attribution: https://goo.gl/phwGst

Attribution: https://goo.gl/phwGst

Update (October 20, 2016): Here is the Shattuck school’s response to the motion for one trial by three plaintiffs, all allegedly sexually abused by the same Shattuck teacher (I discuss plaintiffs’ motion to consolidate in the original post):

From Shattuck’s perspective, the Motion to Consolidate for Trial is a prejudicial attempt to create a montage of a single Plaintiff composed of the testimony of several. If the Motion is granted, cautionary or limiting instructions would have little to no effect as the jury blurs together facts on foreseeability, damages, and other material issues in a way that would significantly prejudice Shattuck and create a composite Plaintiff who does not exist. This is not a class-action. These are three separate cases commenced by three different Plaintiffs, each with unique testimony on his contacts with Seibel and therefore unique claims of liability and damages.

The school argues that allowing the three plaintiffs’ lawsuits to be consolidated for trial would “effectively creat[e] a single Plaintiff whose claims would be virtually impossible to defend.” That seems to me to be an unjustifiable overstatement. I do not believe it is unreasonable or unlikely to expect one jury to be able to separate and distinguish three plaintiffs’ claims. I am predicting a win for the plaintiffs’ motion to consolidate. We’ll see…

Original post (October 12, 2016): I have repeatedly described civil trial as staging a play (most recently, here) with no rehearsals and with some of the actors and stagehands (that is, one’s adversaries) determined to make the production a failure.

The judge always plays a central role, literally and figuratively, in these productions not only in the performance but in the pre-performance staging. A great many of a judge’s decisions on logistics are determined by court rules, the rules of evidence, and other written guides. But there is no way that any set of written rules can apply to the multitude of decisions required to stage a trial.

Some judges receive high praise for their expertise in conducting trials, their perfomance before trials and during them. Other judges are ridiculed or even excoriated by trial lawyers because some fail to fill the vacuum of decision-maker before trial (and/or during trial). They are absent. They dither. They are not in control. They are inexperienced or they just do not care. And, of course, other judges are accused of bias, rightly or wrongly. (These criticisms are under one’s breath or private, of course. One risks repercussions for criticism of judges, both formally and informally.)

U.S. District Court Judge Ann D. Montgomery  (D. Minn.) enjoys broad admiration and respect throughout the Minnesota bar. And she now presides over the pre-trial skirmishing in the Doe v. Shattuck-St. Mary cases…


map-525349_1280Most lay people and many novice litigators do not know what “pleadings” are. I did not know when I started practicing in the year of the first flip phone, the Motorola StarTAC, and 20 years B.T. (before the reign of Emperor Trump the Terrible).

When I started working as a lawyer, the firms where I worked kept “pleadings” in a “pleadings folder” or a “pleadings spindle,” and the law firms included every document connected to a case that included the case caption in these “pleadings files” (complaint, answer, scheduling order, interrogatories, document requests, motions, and so on). Naturally, I assumed these were all pleadings.

These are not all “pleadings.”

“Pleadings” are “the formal statements of the cause of action or defense.” They are critical to our legal system. They are complaints, answers, counterclaims, cross-claims, third-party claims and responses thereto. They are the metes and bounds, i.e., the boundaries of the litigation, identifying who, exactly, is suing, who is being sued, and for what. The pleadings also include what the defenses to the claims are.

It is tricky for courts to decide when a litigant is allowed to amend a pleading. High stakes might ride on the decision. At times, amendment of a pleading can turn a case upside down, adding months or even years to the case. At other times, denying a litigant the right to amend a pleading can destroy the litigant’s case by foreclosing the chance for the litigant to correct an error, to add a party, a claim, or a defense.

Courts must strike a balance.



Be the first person to name the courthouse and win a $10 gift card. (Put the answer in a comment to this post.) (And, no, this was not a set from the dystopian movie classic, Brazil,  but maybe it could have been.)



Thief Criminal Burgler RobberUpdate (October 14, 2016): The Securities & Exchange Commission (“SEC”) brought suit against Mr. Louks for securities fraud in September 2015. The SEC accuses Mr. Louks of defrauding some 90 “investors” in FiberPoP, a bogus “investment opportunity.” This is a civil action, not a criminal prosecution. Therefore, Mr. Louks is not entitled to the appointment of a public defender as indigent defendants in criminal prosecutions are as a matter of United States constitutional law.

When Mr. Louks was alleged to be collecting money from investors after the SEC sued him (the subject of the earlier post, below), he was ordered by the Court to stop and to submit an affidavit to the Court promising that he had stopped.  Without the benefit of counsel, he crafted an affidavit that was unsatisfactory in the opinion of U.S. Judge Patrick J. Schiltz (D. Minn.). 

This resulted in Mr. Louks be sent to jail for contempt of Judge Schiltz’s order.

Fortunately for Mr. Louks, Judge Schiltz then saw to it that Mr. Louks was appointed a public defender, who helped Mr. Louks with a clearer second amended affidavit. (The explanation for the hand-written page of the affidavit is here.) And Judge Schiltz promptly ordered Mr. Louks’ release from jail and the contempt order purged.

This calls to mind the “Civil Gideon” movement, an effort to establish a right for the poor to be represented in civil litigation, not just criminal cases.

The primary counter-argument against proponents of Civil Gideon, presumably, is that such a right would cause an explosion of civil litigation. It would over-tax and over-burden court systems that already struggle under their current caseloads. But maybe it could be limited to certain kinds of cases? Louks’ situation highlights the fact that the line between civil and criminal law can blur. Being forced to navigate our legal system without a lawyer can lead to devastating hardship in either arena.


Men whipsawing lumber for boat building, Yukon Valley, ca. 1896

Men whipsawing lumber for boat building, Yukon Valley, ca. 1896

I recently posted about an 81-page complaint that U.S. District Court Judge Patrick J. Schiltz (D. Minn.) threw out of court, finding it to have been a violation of Rule 8, the federal rule requiring that complaints be “short” and “plain.

What about a 48-page complaint in a class action? Too long? Too short?

Plaintiffs bring this class action lawsuit individually and on behalf of similarly situated members of the Classes (defined below) against Defendants for their refusal to pay for Harvoni—a medically necessary treatment that can effectively cure the chronic Hepatitis C (“CHC”) of Plaintiffs and members of the Classes. Defendants wrongfully denied coverage for Harvoni based on a desire to decrease costs and increase profits, in breach of the health insurance contracts Defendants entered into with Plaintiffs and members of the Classes and the implied covenant of good faith and fair dealing and, also, in violation of the Consumer Fraud Act, Minn. Stat. § 325F.69, et seq. (the “CFA”) and the Employee Retirement and Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”).


pinkie_pie_bubble ponyUpdated post (October 7, 2016): Plaintiff Bubble Pony tried to amend its complaint a second time and U.S. District Court Judge Franklin L. Noel denied BP’s second motion to amend this week. I discussed the motion below because BP withheld its reasoning for the motion from the public, supposedly out of respect for a court order.

The linked order solves the mystery of BP’s redacted motion. BP wanted the court to see that the vague commitment that Defendant Facepunch made via email (which the Court already held too weak to be construed as a binding contract) was also made in a text message exchange. And guess what? Judge Noel held that 2 x 0 = 0, denying the motion.

This situation underscores a common and fundamental misunderstanding among many people and even some businesses about the nature of contract law under U.S. and state law: it is not enough to have “a writing” — just anything in writing — to make a contract legally enforceable.

Here is another similar common misunderstanding: just because you did not SIGN a contract that you entered into with another person does not necessarily mean that you will not be held legally bound by a contract or liable under some other theory of liability (such as unjust enrichment, promissory estoppel, or even fraud). “[W]hen an agreement is reduced to writing but is signed by only one of the parties, it is binding on the non-signing party if that party has manifested consent to its terms….What is critical is mutual assent to be bound.” The quote is from a 2002 Tennessee court decision but it expresses a basic principle of contract law. (Having said that, you will likely be on more solid ground if you get a counter-party to sign a contract than you will be if you proceed with an unsigned contract.)


Shumway Hall, Shattuck-St Mary's School, Faribault, Minnesota, photo by Jonathunder

Shumway Hall, Shattuck-St Mary’s School, Faribault, Minnesota, photo by Jonathunder

Update (October 5, 2016): U.S. District Court Judge Ann D. Montgomery (D. Minn.) denied Shattuck-St. Mary School’s motion for summary judgment and its motion to exclude Plaintiff’s expert today. The only “success” that the school might celebrate is that Judge Montgomery agreed with U.S. Mag. Judge Steven E. Rau’s determination that two of the plaintiffs cannot make claims for punitive damages. Judge Montgomery did, however, overrule Judge Rau as to one of the three plaintiffs, who will be allowed to make a claim for punitive damages.

A question with no answer: How can one settle on a dollar amount to compensate for the injury caused by sexual abuse?

An irrelevant side note: Plaintiffs’ expert in the case against Shattuck-St. Mary’s School, arising out a former teachers sexual misconduct is named Prof. Charol Shakeshaft. Prof. Shakeshaft is noted for her studies on sexual abuse of students by school staff. One might suggest this is an example of “nominative determinism,” even if not on the same level as the real-life urologist Dr. Richard Chopp.

Update (July 22, 2016): On the heels of the recent post about the tragic death of Tristan Seehus, I note another lawsuit against a school based on the school’s alleged inaction in the face of alleged harm to students: Doe v. Shattuck-St. Mary’s School, originally discussed here a while ago (see below).

Shattuck-St. Mary’s brought a motion for summary judgment, which was argued earlier this week before U.S. District Court Judge Ann D. Montgomery (D. Minn.) Here is the school’s legal argument in support of its motion. In a nutshell, the school argues that it did not have knowledge of its former teacher, Lynn Seibel’s criminal sexual conduct with Shattuck students, and that the teacher’s conduct was unforeseeable. The school also argues that a statute of limitation bars the claims and that plaintiff suffered no compensable damages. The plaintiffs’ response is, predictably, that the school did have knowledge, or that it should have, that the misconduct was foreseeable, that the statute of limitations does not bar plaintiffs’ claims, and that plaintiffs did suffer recoverable damages. Here is the plaintiffs’ response to Shattuck’s argument. And, finally, here is the school’s reply brief.

It is difficult to predict how this motion will fare although it is safe to say that the legal standard applicable to the movant, that is the school, can be difficult to attain.


Fishing IconUpdate (October 5, 2016): To the list of large Minnesota law firm blogs in the original post, below, you can now add Robins Kaplan! At least, as of today, Robins Kaplan is disseminating an email allowing people like me to “subscribe” to their blog posts. Judging from the fare on the Robins Kaplan site as of today, it looks more like the Michael Reif blog than the Robins Kaplan blog, with seven posts by Mr. Reif and just one from another Robins Kaplan lawyer, David Shemano. But presumably that will change over time.

Putting that aside, based on the significant investments by the large law firms listed in the post below, I think we have to conclude that law blogs are, in fact, good business.

Original post (February 25, 2015): I am frequently asked if Minnesota Litigator results in actual legal work for LEVENTHAL pllc, my law firm. Will blogging get your law firm business?

Judging from what the largest law firms in our state are doing these days, assuming that these sophisticated multi-million dollar businesses do not allocate resources without a profit motive and with due diligence, the answer might well be yes (see Faegre, Fredriksen, Dorsey, Stinson Leonard, Briggs). Legal blogs are worthwhile legal marketing.

On the other hand, many other top Minnesota firms do not have blogs. And also, with respect, many top U.S. law firms waste boat-loads of money on ill-conceived marketing. Couldn’t it be that some law firm blogs successfully bring in work and some don’t? The nature and quality of the blogs must factor in.  Also sometimes it is hard to trace the origin of new business to one’s blog, but couldn’t the benefits, the new cases and clients, come indirectly from, say, lawyer-to-lawyer referrals inspired by law firm blogs?