pinkie_pie_bubble ponyI have a soft spot for Bubble Pony vs. Facepunch, pending in the U.S. District Court (D. Minn.) (Doty, J.) because of the case’s funny name. The case sounds like a level of Super Mario Smash Brothers that I never reached and the case does, in fact, concern computer gaming. I also have blogged about about the case repeatedly because it is a strange case even aside from its funny name.

I note this week that Plaintiffs wish to amend their complaint a second time because the following has come to light in discovery: ________________________.

That is, Plaintiffs have submitted a motion to amend and they have blacked out or “redacted” the basis for their motion.

What is the basis for filing the memorandum under seal? According to the filer, it was filed under seal “pursuant to a court order.” What court order requires that Plaintiff’s unredacted memorandum be filed under seal? The case’s protective order, the filer claims. And does the protective order, in fact, require that the unredacted memorandum be filed under seal? Of course not. That would be impossible because the protective order pre-existed the memorandum. In fact, the referenced order specifically sets out  limitations on what may be filed under seal (Section 9, pp. 3-4).

Presumably Plaintiffs or perhaps Defendants have decided that the referenced completely redacted “chat transcript” quoted in the memorandum of law constitutes “confidential commercial information,” and as such qualifies for filing under a protective order. This seems odd, however. The lawsuit is a public dispute, brought by Plaintiffs to resolve what percentage of profits Plaintiffs are entitled to. Evidence bearing on this key issue, which is publicly discussed at great length in the Plaintiff’s public complaint (see, for example, page 2), is treated as “confidential commercial information” ???

nuclear_fireball1 bomb explosionUpdate (August 26, 2016):  Earlier this year, a jury awarded a $27-million-dollar verdict in the case discussed repeatedly in earlier posts, below — a small-plane-crash personal injury case. The Plaintiff’s verdict recently went down in flames and up in smoke on August 16. The trial court judge, Ramsey County District Court Judge John H. Guthmann awarded judgment as a matter of law to the Defendants. “For three separate reasons, the court concludes that it erred when it failed to sustain [the Defendants’] foundation objections to [Plaintiff’s expert’s] causation opinion and failed to grant the directed-verdict motion.” (1) The expert admitted that he had never before evaluated or tested the kind of fuel pump involved in the plane crash. Judge Guthmann concluded that his testimony lacked “foundational reliability;” (2) Plaintiff’s expert offered no scientifically-reliable explanation for how, if the alleged defects existed from the date of manufacture of the pump, the pump had worked as advertised for 312 hours preceding the crash; and (3) Plaintiff’s expert’s own post-accident testing showed that the plane’s engine could produce sufficient power to fly even with the allegedly defective fuel pump.

The judge also discussed the Plaintiff’s lawyers repeated misconduct at trial in direct violation of court orders. See here at pp. 31-38. So, even if Plaintiff were able to get the first issue reversed in its favor by the Court of Appeals, he would still have to overcome this second substantial hurdle.

Trial lawyers might also be interested in Judge Guthmann’s analysis of supposedly improper “Golden Rule” argument (p. 41-43). The judge found that Plaintiff’s counsel came close to the line but did not cross it. I think I would have found it violated.


haircut-33187_640The City of Minneapolis battled with a plaintiff in a civil rights case, negotiated a settlement and included in the settlement an offer to pay the plaintiff’s lawyer, $49,999. The plaintiff’s lawyer would not agree to accept anything less than $52,088.50.  So they went before U.S. District Court Judge Patrick J. Schiltz (D. Minn.) to resolve their differences.

You might think that Judge Schiltz would award $52,088.50 or $49,999 or some amount in between.

You would be wrong.


Crystal_ball_by_Ron_BodohUpdated post (August 22, 2106): Minnesota Litigator notches another successful prediction in a posted prediction last March in the Storms v. Mathy Construction case discussed below after the break. The Minnesota Supreme Court reversed the intermediate Court of Appeals last week.

The point of my original post was that I believed that the trial court reached the right result for the wrong reason, the intermediate court failed to reach the right result with flawed reasoning, and the Minnesota Supreme Court, I predicted, would reach the right result with better reasoning than the trial court did, reversing the Court of Appeals.

We do not know the legal fee arrangement between Plaintiff Storms and its lawyers but, if Storms paid hourly for this, it seems they may have paid dearly for its ultimately unsuccessful $327,064.42 claim. Imagine Storms had started with omniscient lawyers who studied the legal issues and reached the conclusion that the Minnesota Supreme Court eventually reached . Counseled by the “omniscient lawyers,” presumably Storms would have walked away from the lawsuit before even bringing it. Presumably “omniscient lawyers” would be the better lawyers, the best lawyers, in fact. But which lawyers would make more money?


Minnesota Litigator focuses on “news and developments” in Minnesota civil litigation but it tends to be even more focused on the kinds of Minnesota civil litigation that its writers practice. As a result, there is very little focus on family law, intellectual patent litigation, ERISA litigation or other areas of law outside of the zone of danger of the authors’ main areas of practice.

On the other hand, I deviate from time to time and today I note a decision in a recent immigration-related decision: Dahhane v. Stanton et al.. The case concerns a couple who met on-line: Adam Dahhane, in Morocco, and Linda Lorraine Stanton in Mankato, Minnesota. First came love, then came marriage, then came a child in a baby carriage.

As in 42-45% of marriages between American citizens, then came divorce.

Then came Mr. Dahhane’s lawsuit against his ex-wife and ex-mother-in-law based on their sworn promises to be Mr. Dahhane’s “sponsor” as part of the immigration process. To get Mr. Dahhane into the country, Ms. & Ms. Stanton committed to support Mr. Dahhane at 125% of federal poverty guidelines…


SpankingU.S. District Court Judge Patrick J. Schiltz (D. Minn.) must have stunned Derrick Weber of Messerli & Kramer when Mr. Weber sought sanctions against his adversary, Bennett Hartz, along with Hartz’s client, Ms. Bendickson. The Court, in response, came down on Weber like a ton of bricks.

The case involved debt collection by Messerli & Kramer and its alleged agreement by phone to take money from  the bank account of the alleged debtor, Ms. Bendickson. Having allegedly received her authorization by phone, Messerli then withdrew the money by printing out paper checks to itself, endorsing them to itself, and depositing them.

Bendickson’s lawyer, Hartz, questioned the legality of this circuitous financial transaction and Weber, in return, essentially challenged Hartz’s right to question the transaction, threatening Hartz and his client with sanctions. When Hartz asked to hear the recorded telephone conversation, Weber refused and, instead sought sanctions against Hartz and Bendickson.

[I]t is absurd to argue, as Messerli [& Kramer] does, that Bendickson should be sanctioned because she did not immediately dismiss her complaint after Messerli drew her attention to a single, dubious, highly qualified, non‐binding bulletin issued by the CFPB  [that is, supposed legal authority for Messerli’s position]— especially when Messerli unreasonably refused to allow her attorney to listen to the recording that was the linchpin of its defense…if the Court were forced to sanction anyone, the Court would sanction Messerli [& Kramer], not Bendickson…It is probably true, as Messerli [& Kramer] repeatedly points out, that it acted within its rights in refusing to provide the recording to Hartz and in running to court. But the question of what a lawyer has a right to do is not the same as the question of what a lawyer should do. This Court expects that members of its bar will treat each other civilly and make every effort to resolve disputes before inflicting costs on their own clients, their opponents, and the Court. Messerli’s behavior fell well short of this expectation.

(Emphasis added.)


newsboy-146954_1280For more than five years, I have repeatedly chided the Star Tribune for running stories that rely heavily on court documents but failing to link to the documents themselves. Last week they did it again, this time in the context of a $3.5 million award based on sexual-orientation discrimination in favor of Mr. Stephen Habberstad against two small banks, Kimberly Habberstad (his ex-wife), Susan Boschetti, Terry Boschetti, David Dovernberg, Maureen Denges and Phyllis Sieveke.

On the one hand, I suppose I can understand the Star Tribune’s decision. The court’s “Findings of Fact, Conclusions of Law, and Order for Judgment” is a 92-page document. It is a realistic assumption that very few Star Tribune readers will read it at all and fewer still in its entirety.

On the other hand, the Star Tribune journalist wrote that the judge “meticulously separated fact from fiction” in his ruling but she failed to link to the judge’s decision so readers could judge the judge’s meticulousness for themselves. In this way, the journalist, presumably unwittingly, improperly biased readers as to the accuracy of the judge’s decision. The journalist, in effect, appears to have sided with the judge’s opinion that “Stephen Habberstad was terminated because he is gay.” This, of course, could be quite hurtful and unfair to the defendants if, as a matter of fact, the decision is wrong.

To be fair and clear, the Star Tribune story did quote a defense lawyer saying, “We couldn’t agree more with Mr. Habberstad that you shouldn’t discriminate against anyone because they’re gay or any other reason. And [the defendants] didn’t….” In my view, the article as a whole, without giving readers the opportunity to read the decision for themselves, did a disservice to the defendants. At least in this reader’s opinion of the court’s opinion, the underlying story was far more complicated.


GunslingerUpdate (August 12, 2016): Although Susan Humiston, the new director at the Minnesota Board of Professional Responsibility, seems to be making great strides at speeding up the system, it remains concerning that the discipline of Mr. James C. Duchon took as long as it did (see below and the linked petition of discipline).

What is even more stunning is that Mr. Duchon, a suspended lawyer with a publicly accessible discipline record, was able to use the internet to attract several clients as you will note in the attached petition.

The internet is our 21st century analog to the Wild West, a vast ungoverned expanse in which rogues, charlatans, and scammers creep in and out of our virtual communities to fleece vulnerable people.

Without infringing every person’s constitutionally protected freedom of speech, can Minnesota lawyers and those who work with them (legislators, judges, bar associations, or others) do anything eradicate schemers who attract Minnesota clients with slick websites that tout non-existent legal expertise?

Less egregious but more pervasive and arguably more impactful than suspended lawyers luring unwitting clients, we have lawyers with little or no expertise in anything other than SEO (search engine optimization) taking business away from qualified but less tech-savvy lawyers.



Legal Mal Insurance SnippetInitially, I left question 4(d) blank because the answers for 4(a) through (c) were answered no. But the computer system would not let me leave 4(d) blank. It forced me to answer even though the question presupposes a “yes” to a previous response…

You would not think that professional malpractice insurer would be so sloppy in generating these forms? ANSWER: YES or NO.



Cloud_to_ground_lightning_strikes_south-west_of_Wagga_WaggaNorthern States Power (“NSP”) has an easement to run power lines over property owned by Chanhassen residents, Jarvis Jones and Laura Kaplan (“Jones/Kaplan”). In October 2014, NSP asked for permission to come onto the Jones/Kaplan property to prune an oak tree to clear it from a powerline, a right that NSP held as part of its easement.

Jones/Kaplan objected. Following the objection, NSP had additional survey work performed after which NSP concluded that it, in fact, did have the right to trim the tree. And, after the additional work, NSP concluded that it had to take down the whole tree, rather than just pruning it.

Jones/Kaplan took NSP to court, in essence arguing that NSP decided to chop down the whole tree as “pay-back” for Jones/Kaplan’s resistance to NSP’s initial request to come on the property to prune the tree. Before the district court, NSP argued and persuaded the district court that its decision to chop down the tree was reasonable – that it was based on legitimate safety concerns. As we all know, trees and power-lines do not play well together.

But the district court did not address whether NSP’s actual motive was “pay-back” for the property owners’ costly tree-hugging objections to the original pruning plan.