512px-Potato_and_corn_chowderImagine Grandma thrown into the slammer (or maybe merely fined) for selling her wicked good home-made chowder at her garage sale. Give her one warning and, if she does not repent and mend her ways, then it’s off to Shakopee? Most of us would find this to be grotesque, over-reaching, state intervention into a relatively innocuous interaction. Such informal human interaction should be entirely free from government intrusion.

Some garage sale participants might look at the crock-pot and wonder how long since the contents were refrigerated and at what temperature the chowder is kept at. (And where is sweet old Mormor Linnea getting her “fresh” shellfish?) They might decide to take a pass.

Others might buy a cup and enjoy some wonderful home-cooking.

Still others might get food poisoning and die. Tough quahog. Caveat emptor, am I right? (Mormor Linnea wouldn’t hurt a fly. She can be a little forgetful about the details of good food hygiene. But she’s not evil…)

What if Mormor Linnea were making chowder by the 100-gallon vat and selling it in mason jars out of the back of her truck year-round? Do you think at some point it is appropriate that she might be regulated by the state, that she might be required to get a license from the state to sell the her death potion chowder, that she might have to put up with food inspectors checking out her operation, making sure she carries appropriate insurance, and so forth? At what point do we all welcome and embrace government involvement in our day-to-day interactions?

How about when Mormor Linnea is making more than $5,000/year selling her foodstuffs or when she sells “outside of community events or farmers’ markets”?


Trench WarfareUpdate (May 21, 2015): Almost a year ago to the day, I predicted that Graffiti Entertainment v. Navarre was going to be a long hard slog (see below) and it may very well be. It is clearly on-going but how much longer can this warfare go on? Desertion seems to be a problem in Plaintiff’s army. In one of the stranger sanctions memos I have seen in some time, Defendant Navarre notes that Plaintiff cannot seem to hire a lawyer to prosecute its lawsuit. Plaintiff appears to have identified a convicted felon in Illinois as its lawyer except that the convicted felon is not a member of the Minnesota bar, is not admitted to the United States District Court, and he denies that he intends to appear in the lawsuit. “Defendants now respectfully move this Court to stop this nonsense.

Original post (May 23, 2014): Too often, particularly early in litigation, lawyers paint their clients a rosy picture of shock and awe swift resolution. I have found in my nearly twenty years of practice of civil litigation in Minnesota that I have been quite good at predicting how most cases resolve (dismissal, summary judgment, settlement, trial) and, roughly, for how much money (with an exception here or there, obviously). But I have been far less successful in predicting lawsuits’ durations.

Generally, most cases that I have followed have gone on far longer than necessary. Some cases, however, give every indication from the get-go that they will be grueling and protracted battles. I get that sense from the fairly recently filed lawsuit of Graffiti Entertainment, Inc. v. Navarre Distributions Services, Inc. and Speed Commerce, Inc.


Apitz v HopkinsHopkins buys Lot 3, which has an easement across Apitz’s property, Lot 2, so Hopkins can access the “ROAD.”

Hopkins fences off the easement over Apitz’s property and, essentially, bars Apitz’s access to part of Apitz’s own property (the part over which Hopkins has an easement). (The diagram above is illustrational. I have no idea where the easement goes on the Apitz’s property but presumably it goes along an outside edge and does not split the Apitz property down the middle.)

In my view, that seems not very neighborly of Hopkins but what do I know?


Cases of claimed egregious mismatches between proposed expert testimony, the appropriate subjects to be argued and decided in a lawsuit, and proposed intended expert witnesses are endemic in our legal system.

Of course, you’ve got your quacks — the pretend experts. Excluding them is relatively uncontroversial (although we will not all agree about certain disciplines and whether experts in the disciplines have evidentiary value or are quacks across the board (homeopathy, acupuncturists, hand-writing analysts, say)).

Then you have your “expert judge” or “expert jury” experts — that is, purported experts offered to testify as to the law (that would be the “expert judge”) or, without any truly specialized knowledge, training, or expertise, an expert offered to testify as a fact-finder (the “expert jury”). These are a subtler variant of “quack experts” because they are offered to simply tell the judge or jury what to do.

These are easy cases to exclude proposed experts. But how about, say, a proposed expert in “the conduct of executives in the U.S. medical device or healthcare business vis-à-vis confidential job searching“?


Eggs in CartonCan it box pasta or not?” I asked nearly five years ago. “There has to be a better way,” I suggested about resolving a different commercial dispute back in 2013. More recently, Minnesota Litigator has covered (or maybe I should say “coated”?) “Sugar v. Sugar,” which appeared to be a commercial dispute that boiled down to the simple syrup of defendant regretting and re-negging on its commitment to buy sugar from the Plaintiff at a very high price. (Note to clients: Regret = OK. Re-neg ≠ Ok.)

Apparently when commercial transactions of a certain magnitude — a large magnitude — go wrong, there just is no better way in this day and age: businesses have to call in lawyers to settle up.


Civ-Pro-by-Randy-WickMinnesota Litigator receives increasingly positive feedback and its readership has grown slowly but steadily over the past six years.  But will yet another esoteric post on civil procedure rules cause Minnesota Litigator visits to plummet???

May-Cause-Drowsiness (more…)

Dirty Dog

Copyright Des Colhoun and licensed for reuse under this Creative Commons Licence.

Update (May 14, 2015): The battling Hogenson brothers, as noted below in the original post, have treated Minnesota litigators with legal decisions for some years now. Yet another decision this week reflects their inadvertently generous fraternal strife.

Minnesota Litigator has discussed the mushy Minnesota law of unjust enrichment before.

In the latest Hogenson kerfuffle the Hennepin County District Court and the Minnesota Court of Appeals again are out of sync as to what the doctrine really stands for. It is not enough when someone stumbles on a windfall benefit and the benefit came at the expense of someone else. This does not state a claim for unjust enrichment because stumbling upon something is not “illegal” or “unlawful.”

It probably did not hurt Diversified Water Diversion’s appeal that Brother Arthur Hogenson (who was the beneficiary of the lower court’s unjust enrichment decision) had apparently fraudulently created promissory notes to reflect his loan to Diversified and submitted “not legitimate” evidence at trial.

“Equity does not comfort those who come to it with unclean hands” is one way of saying it. “A dirty dog will not have justice by the court” is another.


GlaasairRGUpdate (May 13, 2015): In the case covered below, Plaintiff has steered clear of sanctions but his lawsuit brought in U.S. District Court (D. Minn.) for alleged witness tampering relating to an expert witness in a case pending in Ramsey County has now crashed and burned shortly after take-off.

Update (April 13, 2015): When you move for sanctions in civil litigation, there is a risk of blow-back. That is, you might think that you are calling the court’s attention to unacceptable conduct but the court might conclude that your own conduct, in bringing the motion, was improper, unacceptable, and sanctionable.

In the case described below, I don’t think the sanctions movant, Lycoming, has very much to worry about. I feel less certain about plaintiff, his allegations of “witness tampering,” Lycoming’s alleged role, and whether the allegations meet the relatively low bar set by Rule 11 of the Federal Rules of Civil Procedure. (Here are Lycoming’s reply brief in support of its motion for sanctions and Plaintiff’s “last word” on the subject.)

Update (February 24, 2015): In the tussle described below, a defensive tactic by Plaintiff to Defendants’ motions to dismiss failed this past week.

Original post (February 6, 2015): The litigation of Kedrowski v. Valters Aviation, Lycoming Engines, et al. involves a plane crash in which Plaintiff Mark Kedrowski suffered severe injuries when his Glasair Super IIS RG mdel aircraft crashed in September, 2010 near Lake Elmo Airport.

Plaintiff brought his lawsuit in Ramsey County District Court and it is before Ramsey County District Court Judge John H. Guthmann. The fight has been intense, it seems, with motions for sanctions, motions to compel, and several allegations of improper conduct in this case and in other cases involving the same defendants elsewhere.

Plaintiff’s view is that there was something defective about a fuel pump that caused his terrible accident. I have not reviewed the case file in detail but I would speculate that the defense is that the plane performed fine and the crash was due to pilot error. This would be a standard small plane crash legal battle. (Normally in these cases, I get the sense that a great deal rides on the findings of the NTSB, which appear to support the defense in this case.)


pinkie_pie_bubble ponyRegular readers of Minnesota Litigator know that I write about a wide variety of state and federal civil litigation in Minnesota but certain cases seem to catch my attention for longer periods of time. I cover some cases repeatedly over the lives of the lawsuits. Some might call it perseveration (highly repetitive idiosyncratic behavior usually caused by brain injury or other organic disorder). Other, more charitable readers (thanks again, MOM!), might counter-argue that I am simply homing in on particularly interesting Minnesota cases and following them. They’re dry to many but intense drama to a few thousand law nerds.

I recently stumbled across the caption of Bubble Pony v. Facepunch. I saw that the case includes a 108-page first amended complaint. I got that “here-we-go-back-down-the rabbit-hole again” feeling…

Whether this oddly-captioned dispute over rights to money generated by an on-line “internet survival game called RUST” becomes another valuable resource for Minnesota Litigator commentary on Minnesota civil litigation remains to be seen but it looks like it could be promising.


May 11, 2015 Update: Special Master and retired Hennepin County District Court judge, Robert Lynn, has answered the question in the headline:


The issue presented is whether communications between a non-client third party representing an individual client and counsel can ever be protected by the attorney-client privilege or the work product doctrine so as to protect Nelson’s communications with counsel in this case… Plaintiff argues there is no legal authority for the proposition that an individual seeking legal advice can delegate to a friend the responsibility of communicating to counsel and then have those communications protected by the attorney-client privilege. Were this a casual request of a friend, as portrayed by Plaintiff, the undersigned would heartedly agree [sic], however those are not the facts as presented.

Relying heavily on the analysis in In re Bieter, 16 F. 3d 929 (8th Cir. 1994) and the in camera review (“in chambers,” without the other side getting a peek) of a notebook of allegedly privileged documents, Judge Lynn found that, in the case over which he presides as special master, a best friend, Nelson, was “the functional equivalent” of Nielsen’s employee and therefore Nelson’s functioning as a conduit between Nielsen and Nielsen’s lawyers did not waive the attorney client privilege between Nielsen and his lawyers.

The ruling is not all that surprising in that courts are generally extremely deferential to the attorney-client privilege. In the Bohnen v. Nielsen case, though, it might have seemed a bit more complicated because Plaintiff alleges malicious prosecution, abuse of process and so on. If the communications between the conduit and counsel buttressed these allegations, can instructions to proceed along such lines be privileged, even if they were deemed to have been from the the client to the lawyer?  SNK Corp. of America v. Atlus DreamEntertainment Co. Ltd., 188 F.R.D. 556, 573 (N.D.Cal. 1999) (discussing privilege waiver in the context of a claim for malicious prosecution). (more…)