SpankingUpdate (September 22, 2017): The signature style of U.S. District Court Judge Patrick J. Schiltz is the antithesis of the lawyer appearing before him as plaintiff’s counsel in Naca v. Macalester.

Judge Schiltz is often short and to the point. And he was this week in chastising Plaintiff’s counsel, Mr. Peter Nickitas. Judge Schiltz rejected Mr. Nickitas’ appeal of the Magistrate Judge’s order rejecting his motion to amend the complaint to add claims against Brian Rosenberg, Macalester’s President.

In this case and in several other cases before the Court, Naca’s counsel has regularly violated the Federal Rules of Civil Procedure and the local rules of this District. The Court will no longer tolerate such violations.”

Judge Schiltz rejected Plaintiff Naca’s motion because Mr. Nickitas had serially defied court rules and also, even if he’d followed them, the proposed amendment lacked merit. The proposed claim against Pres. Rosenberg would not have survived a motion to dismiss.

Meanwhile, this sorry battle rages on.

The case reminds us of a 2011 post (under the headline, “It’s a messy job but someone has to do it”) in which we said

Many of us can boast of ties to class-mates on distinguished courts or with inspiring national practices (and a few of us have the skills and good fortune to attain those lofty heights), but, by and large, most of the nation’s lawyers are dealing with somewhat less glamorous disputes — the blood, guts, and other bodily fluids of real life.


Photograph by Maura Teague

It is a shame when a justice system behaves unjustly.

In Minnesota, when a client is sued in state court and removes the case to federal court, the client is obligated to pay a “filing fee” to the state court for the simple filing of a one-page Notice of Filing of Removal in the state court (at least in Hennepin County). (Federal law requires the filing of this “Notice of Filing” to the state court.)

Imagine getting a bill when you RSVP “no” to a wedding.

Your submission in case 27-CV-17-XXX, ABC vs XYZ has been rejected.

Reason(s) for Rejection: Our records show that you have not paid the initial filing fee. Plese resubmit your document with the fee of $299.00.

Comment: Our records show that you have not paid the initial filing fee. Please resubmit your document with the fee of $299.00.

Envelope Number: xxxxxxx
Filing Code : Notice of Removal to Federal Court
Filing Description: Notice of Filing of Removal
Date Submitted: 9/12/2017

Lawyers typically pass these costs on to their clients, of course, and, for many clients a $299 court filing fee (plus an added $5 fee to use the e-filing system (which we are required to use)) is a drop in the bucket.

This is too often how fortunes are made — by opportunistic “nickle and diming.” One might even say that these ubiquitous little surcharges, fees, or spiffs, are inherent in any market system. (For example, you get a new car and have to pay some grossly inflated amount for the floor mats, etc.)

But it is a problem when our courts play by these marketplace rules because (1) they are a monopoly; (2) they are supposed to exist to provide Minnesotans with the “just, speedy, inexpensive determination of every action.

Rule 1 of our civil court system continues:

It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues.

It is impossible to square charging $304 for the one-time filing of a required one-page notice with these stated goals and responsibilities.

Among civil litigators, the variety of legal practice is staggering. It is hard to believe that we think of ourselves as having the same job. In fact, we most certainly do not.

Many lawyers at Messerli & Kramer do debt collection work (like Josh Hasko in the case discussed in this post), for example. These litigators spend relatively little time on prejudgment litigation. After all, their adversaries, almost by definition have no money so they are not up for a fight. Furthermore, the cases often boil down to, “Defendant borrowed money. Defendant failed to repay.” There’s not a lot to fight about in most of these case.

But getting a judgment for their clients is really a prologue to the performance that takes up most of their days.

We came across an order, issued this week, from U.S. District Court Judge Donovan W. Frank (D. Minn.) issuing a warrant for the arrest of debtors for their contempt of court orders to return commercial trailers to the financing company who put up the money for purchase of them.

The order is interesting in that it shows the due process that our courts give dead-beats. Here is one of two previous orders apparently ignored by the debtors. There is a lengthy procedure in place in which debtors are given every opportunity to defend the claims against them. If and when the axe falls, the defendants will be hard-pressed to object to the proceeding. On the other hand, it is refreshing to see that the debt collector also getting due process. Judge Frank has given defendants ample time but, on the other hand, he has kept the action moving forward.

CatAndMouseChaseJeorenMoeszUpdate (September 11, 2017): Mr. Hansmeier’s public defender’s efforts to dismiss the 18-count indictment against Mr. Hansmeier were unsuccessful (denial of motion, last week, linked here).

Few, if any, will feel sympathy for Mr. Hansmeier who, essentially, uploaded pornography onto the internet, made it accessible for download at no cost, and then used the court system to find out who took him up on his porn bargain, to threaten them with exposure and six-figure copyright infringement liability.

In response to threats, red-faced downloaders paid about $4,000 each to make this embarrassment go away.

Mr. Hansmeier’s scheme netted millions of dollars until courts started to catch on, asking Mr. Hansmeier to explain the claims in greater detail, at which time, Mr. Hansmeier gave courts misleading information about who was behind a wide variety of related entities, concealing that they were all, essentially, Mr. Hansmeier and his colleague, Mr. Steele.


“A Tough Knot to Crack” (photo by Jay Fanelli)

According to lawyers for Chippewa Valley Ethanol Company (“CVEC”),

In Minnesota, for the last half century, contracting parties understood that one way to make a contract last for a reasonable time, and thereafter become terminable at will, was to make the duration of the contract ‘indefinite.’

CVEC cites an old case standing for the proposition that “the general rule [is] that a contract having no definite duration, expressed or which may be implied, is terminable by either party at will upon reasonable notice to the other.”

Notice the little puzzle nestled in there: “a contract having no definite duration expressed is terminable by either party.” If a contract expressly provides that it is of indefinite duration, is that a contract “having no definite duration expressed”? The contract definitely addresses the issue of duration but it does not include any fixed term (any duration, that is).

Frankly, the law of indefinite duration contracts is in disarray,” the lawyers for CVEC conceded in their petition to the Minnesota Supreme Court for review of the Court of Appeals decision that they lost.


Minnesota Litigator has received reader feedback that Minnesota Litigator predictions are particularly fun reading.

This is likely because lawyers are generally, typically, and frustratingly circumspect and equivocal. Socially and informally, their answers to legal questions often seem to be “good question!,” “maybe so…,” “it depends,” “hard to say,” “I’d need to know more to have an opinion,” etc. So we suppose readers enjoy that we sometimes make unequivocal (if, sometimes incorrect) predictions.

And, in all modesty, we have done staggerlingly well in the prediction department with far more successful predictions than unsuccessful ones.

But there is one area where we give ourselves a failing grade: predicting “the next big wave” of civil litigation.


Every year since 1894, as we head into coming school year, the United States of America has celebrated American workers.

These days, there are persistent, ubiquitous, and dire warnings that their days are numbered.

It seems that our jobs are less threatened by low wage off-shore workers, so feared over the past 30-40 years, than they are threatened by computer scientists and programs that they create to do away with the need for people — with their pesky family demands, illnesses, and other human failings — for countless jobs from astronauts to truck drivers.

Lawyers are far from immune from the threat of obsolescence. If you want to fight a parking ticket in the U.K. for example, from now on, you will probably go to this website before you will call a U.K. solicitor. And worldwide, you will probably take care of many legal matters via similar applications (forming companies, drafting wills, negotiating contracts, etc.).

So, take Labor Day off! Celebrate a day off and celebrate that you have a job (assuming you are one of the lucky ones). In years to come, the bitter irony is that many of us will not have the luxury of a job nor the treat of a day off.

Denny Hecker, a car dealership mogul turned convicted criminal (who might be back on the streets any day now), left a lot of people owed money.

Our government has several procedures for recovering money on behalf of creditors. One way is through bankruptcy. In criminal proceedings, another way is through orders for restitution.

As between the two, which one “trumps” the other?

The bankruptcy trustee in the Hecker bankruptcy seems to think the bankruptcy proceeding “trumps” a state’s restitution system…


ContortionistUpdate August 30, 2017: We recognize the futility of our efforts but another “unpublished” Minnesota Court of Appeals decision issued this week (as they do every week in ever-growing numbers, it seems). And, again, in our view, it highlights a misuse of this “non-precedential” status and is a disservice to Minnesotan legal consumers (Minnesota lawyers and their clients).

CorVascular Diagnostics is a Minnesota limited liability company (LLC) and a plaintiff in a lawsuit against one of the LLC members, Michael Talcott (and others).

The issue on appeal was whether Mr. Talcott was entitled to have the LLC pay his attorneys’ fees under Minn. Stat. § 322B.699.

Hennepin County District Court Judge Susan Robiner decided against Mr. Talcott. The Minnesota Court of Appeals, in an opinion by Judge Francis Connolly, reversed Judge Robiner’s decision.


Update (August 28, 2017): Hypothetical: A Co. contracts to sell B Inc. lumber. A knew of B’s plan to chop this wood and sell it as firewood after the transaction. However, the contract only references price and quantity, not suitability as firewood. The lumber sold is “green” (unsuitable as firewood for 2 years) and B feels that A deceived B.

It might be difficult to prove fraud or intentional deceit. A could argue that it was unaware that B wanted to chop and sell the firewood right away. Or A could argue that B should have specified “fire-ready” if it required it.

Could B Inc. attack A Co. from a different angle with a claim of breach of the covenant of good faith and fair dealing? Could B argue, in effect, that A knew B was buying the lumber for firewood and had an implicit duty to disclose that the lumber sold was unsuitable for firewood for two years?