The petition for review of Minnesota Sands and the response on behalf of Winona County are classic examples of lawyering where each side’s arguments seem quite persuasive but they are impossible to reconcile. (The Minnesota Supreme Court recently granted the petition for review.)

Minnesota Sands argues that it bought certain lease rights in Winona county to mine silicon sand for use in fracking, a controversial means of mining for oil, and Winona imposed a rule saying that silicon sand mined in Winona could only be for “local use,” not for use in fracking and not, Minnesota Sands suggests, not for out-of-state use.

If there were so, it would appear to pose an obvious threat to what is known as “the dormant commerce clause” (the idea that the U.S. Constitution’s Commerce Clause giving the federal government the task of regulating interstate commerce implicitly bars states from regulating interstate commerce (or discriminating in interstate commerce)).

But have a look at Winona county’s opposition to Minnesota Sands’ petition for review and you will see an entirely different (and, we would suggest, inconsistent) argument. There is no mention of any prohibition of sales to out-of-state buyers. The ordinance, Winona argues, simply restricts “industrial mineral operations, while continuing to allow construction mineral operations.” In other words, the challenged regulation “does not favor in-state economic interests over out-of-state economic interests because no entity, whether in-state or out-of-state, is permitted to mine industrial minerals.”

The “tell,” the signal, of who’s right might be in the wiggle words in Minnesota Sands’ opening salvo, “Winona County banned, in effect, all mining, processing, and transportation of minerals to be used outside its ‘local’ area when it passed a zoning ordinance amendment in November 2016. The legislation wiped out almost all mineral rights within its borders.” The underlined words negate the arguments being made. Winona County did not ban mining of minerals to be used outside its local area. The legislation did not wipe out all mineral rights within its borders.

Nevertheless, it is clear that the County’s zoning ordinance amendment hurt Minnesota Sands badly and disappointed its commercial expectations. It remains to be seen whether the action rises to the level of a “taking” entitling Minnesota Sands compensation as a matter of constitutional law.

Maybe every few years, we should disinter our “Pleading Federal Diversity for Limited Liability Companies (LLCs)” string of posts.

In these posts, which go back some years now, Minnesota lawyers get chided because they forgot (or never knew) how to plead federal jurisdiction when basing their jurisdictional claims on the diversity of citizenship of LLCs.

Here we go again.

The kicker in this most recent case is that the Plaintiff LLC allegedly does not know who its own members are. (“Cypress Creek confessed that even it is unable to identify all of its own sub‐members.)

How are the defendants supposed to know an adversary’s LLC members’ citizenship for purposes of pleading federal jurisdiction?

The courts answer: “Not our problem,” and the litigants are banished back into the state court underworld from which they came. (Happy Halloween)



Let’s say, hypothetically, that you’ve been working on the railroad. All the livelong day. You’ve been working on the railroad, just to pass the time away. In Minnesota.

First, that’s just sad. “Working on the railroad to pass the time away?” That’s hard work. You might consider something less arduous and safer if passing the time is your modest goal (reading?).

Also, hypothetically, if you are injured and you sue your railroad employer and you win your lawsuit, do you think you should get the federal post-judgment interest rate applied to your money damages or the Minnesota post-judgment interest rate?

And do you care?


The goal and idea of diversity has been getting a lot of attention in our society for decades now but, unfortunately, it gets more lip service than many of us would like. Though we rarely openly admit it, many in our community do not value diversity. Indeed, they feel threatened by it, which is a sad paradox because one of the greatest threats we face is our society’s fear and resistance to diversity and inclusion.

We recently had the pleasure of interviewing Mr. Inti Martinez-Alemán, a young Minnesota lawyer originally from Tegucigalpa, Honduras. Inti embodies the tremendous strength and promise of diversity and inclusion in our society.

Read the interview, below. See for yourself.

Inti, a third generation lawyer (Honduran trained, U.S. trained, licensed in Minnesota and New York), brings unsurpassed breadth of experience and promise to our community. He has left behind a country that struggles with terrible violence and corruption and he brings hard-earned insights and experience that most of us will never have to encounter. (Incidentally, Inti’s journey is reminiscent of another Minnesota Litigator profile from another part of the world, Rachhana Srey.)

And this profile is timely. Inti notes in our interview that Hispanic National Bar Association, in which he is active, will host (with other hosts) the “Su Negocio” (“Your Business”) program in Minneapolis coming up on November 7.

ML: Tell our readers what is the bread and butter of your legal practice?

Inti Martinez-Alemán: The bread and butter of my legal practice is anything related to assets, businesses and jobs for Latinos. So any Latino or Latina who has been cheated by someone who is more savvy, more knowledgeable, or more of a trickster. So it could be their landlord, it could be their employer, could be a business partner. That’s my bread and butter. It’s pretty broad: civil, business, and employment litigation. If there is something that is an area of law that I don’t feel comfortable with, I either refer it out or co-counsel with someone.

ML: So it sounds like the vast majority of your clients are people rather than businesses. Is that right?

Inti Martinez-Alemán:  I’d say about 70 percent are individuals. And then 30 percent are businesses.


When you lend someone $193,000, you probably should know who the borrower is, right?

When you sign something in return for a receipt of a $193,000 loan, you should probably know whether you may be personally responsible for the debt, right?

Believe it or not, as obvious as these two questions are, people find themselves in situations where the lender and the borrower cannot agree on who the borrower was — that is, who assumed the obligation to repay the loan. This becomes rather important information when the borrower defaults on the loan…

In the case of Jennifer Peters and Juniper Ventures v. Nathaniel “Nate” Armstrong, there is uncertainty as to whether Nate borrowed money or merely signed two promissory notes on behalf of two limited liability companies, who are responsible for repaying the notes.



Julie Andrews Still Photo From The Sound of Music

Update (October 22, 2018): Long-time Minnesota Litigator readers will remember our TAAFOMFT series (which stands for “These are a few of my favorite things,” a sarcastic preface to posts about things we hate).

One of our favorite things (not) which we know we share with an enormous number of civil litigators, judges, and parties to civil litigation in the United States and beyond is e-discovery.

Party A gets into a dispute Party B and, because of the complexity and volume of ESI (electronically stored information), the two find themselves (or, more accurately, their money) sucked into an all consuming vortex so that “the dispute” pales in destructiveness when compared with the meta-disputes over ESI. (The disgust increases exponentially, of course, when it involves multiple parties and non-parties.)

And who pays for that? This is the subject of our earlier post, below.

Is there any recourse when the tail starts wagging the dog, when litigation costs due to ESI demands are blown out of proportion by one side (particularly in a case (or for a defense) that is eventually deemed to have been without merit)?

Fortunately for LEVENTHAL pllc and its clients, who tend to be small businesses and individuals represented by at least one reasonable lawyer (most of the time), ESI generally plays a very small part of their expenses. The lawyers tend to appreciate and respect the notion of “proportionality.”

But even relatively small litigants represented by reasonable lawyers might find themselves sucked into the all-consuming vortex. What then?


(The Scarlet Letter)

What are lawyers to do when disgruntled ex-clients make false claims against their lawyers online for all the world to see (for all time as far as we know)?

Are lawyers to bear the brunt of false accusations under an ethical obligation of silence owed to their ex-client defamers?

We previously covered the pending proposal for amendment of Minnesota’s ethical rules to tweak the balance between our society’s interest in protecting the near-sacred confidentiality that we respect between lawyers and their clients and lawyers’ interests in protecting their reputations (a.k.a., their livelihoods).

Linked here, William Wernz, a star in the constellation of Minnesota ethics experts for decades, weighs in.

Most of us now agree that ESM, or “electronic social media,” is, unfortunately, a world-wide cesspool of information, misinformation, distortion, and propaganda.

There is always the option of suing former clients for defamation, of course. But compare the costs of simply replying to an online comment along these lines: “The ex-client urged us to undertake the strategy he now complains of against our advice. We regret we did not obtain the results that we and the client had hoped for”) or another far more common situation (“The ex-client says Our Distinguished Law Firm ripped her off company by charging her company over $500,000 for the company’s litigation but we stated our hourly fees up-front, we made the uncertainties and risks of litigation clear from the start, and we gave a budget estimate (which was higher than what we charged). Further, we presented the company for over three years in hard-fought litigation.”

Let’s put aside whether lawyers or law firms would want to respond in these ways to these false complaints of incompetence and thievery. (A great many (probably most) would not.) (This linked extraordinary (NSFW) online response to alleged online defamation (not involving lawyers, btw) seems to have exponentially increased the damages sought to be remedied.)

Let’s put aside that lawyers would need to be extremely careful that their public responses not pose any threat to the outcome of ex-clients’ still-pending matters. Should such comments be considered breaches of the lawyers’ ethical obligations?


Update (October 19, 2018): Minnesota Litigator seems to be on a bit of a dry spell on correct predictions and was way off as to the plaintiff’s motion to amend her complaint to add a claim for punitive damages in the case described below against Carleton College. In our defense, the Court (where there was contrary precedent) applied a far more permissive legal standard to the motion than we had anticipated. 

We will watch with interest whether Carleton objects to U.S. Mag. Judge Hildy Bowbeer’s ruling and seeks reversal by U.S. District Court Judge Eric C. Tostrud (D. Minn.).

Update (September 17, 2018 (later that same day)): As if timed to go with our post below, St. Olaf College has been sued today by a student accused of improper sexual conduct (rape)

Update (September 17, 2018): For several years now, we have recognized the incredibly difficult position that colleges and universities find themselves in with the #MeToo era.

Consider the gale force winds butteting these institutions during their high wire acts, balancing between truth, falsity, credibility, and provability, the interests, feelings, and futures of accusers and accused, victims and perpetrators, guilty and innocent, not to speak of the institutions’ many and varied communities and stakeholders.

No net.

The case described below involves Carleton College, my alma mater, and I will readily cop to bias. I have always held the college in high regard and I still do. This one’s close to home and, therefore, it should come as no surprise that I take the college’s side as to the motion for punitive damages against the school, recently brought against the school. But still.

Punitive damages are extremely difficult to get under Minnesota law. (We discuss this here and here.)

Honestly, to suggest that the alleged acts and omissions of Carleton rise to the level of warranting punitive damages seems to me to be outrageous.

Here is Carleton’s response to plaintiff’s motion of punitive damages. In reading both memoranda and, in particular, pages 4-5 in the plaintiff’s memo listing the plaintiff’s “indictable offenses” (that is, the factual bases alleged to warrant punitive damages), the almost impossible demands put on colleges in the cross-fire cries out.

This is not intended to trivialize the important issues raised nor the vital duties and responsibilities that all higher educational institutions owe to their students and the broader community. They must do all they reasonably can to provide a safe environment to all. But the plaintiff’s claims against Carleton don’t meet the criteria to establish a “prima facie” case of “clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others.”


Update (October 15, 2018): Lawyers know that something as seemingly simple as measuring a six-year period of time can be an enormous challenge. Six years, starting when?

The thread of posts below highlight that this issue has bedeviled Minnesota litigants and courts in the context of legal malpractice for more than 12 years now (since Antone v. Mirviss).

And we are still wrestling with this incredibly simple but also maddeningly complex question of when to start the six-year clock.

Recently, the Minnesota Supreme Court agreed to accept a petition for review in Hansen v. U.S. Bank, not a legal malpractice case but, closely related, a claim for breach of fiduciary duty.

To start the six-year timer, our courts are supposed to apply two distinct concepts, the “some damage” rule and the “point of no return” rule. But, in many cases, these two different rules point to two different start-times and, sometimes, sharply different start-times.

The facts of Hansen v. U.S. Bank are straight-forward and appear to highlight the problem: Mr. Robert Hansen and his brother entered into a deal to sell property to a buyer, CFP. Between the purchase agreement in 2009 and the closing in 2010, Mr. Robert Hansen died, and U.S. Bank took his place in the transaction as the personal representative of his estate.

Part of the terms of the sale provided that there should have been “due diligence” by an independent CPA to certify the buyer’s financial forecasts (since the sale would entail payments to the sellers made over time). U.S. Bank allegedly failed to ensure that this term was met.

If you’re still reading this admittedly dry reading, you know where this is going.


Facepalm (Caïn by Henri Vidal, Tuileries Garden, Paris, 1896. )

A January 11, 2017 explosion at a truck manufacturing facility in (appropriately named) Dodge Center, Minnesota caused many serious injuries.

It is alleged that a company, Swagelok, failed to properly design, manufacture, test, and inspect a hose assembly, which is alleged to have caused the devastating explosion

(See the complaint here. The complaint, by the way, is impressive advocacy in its thoroughness. Credit goes to plaintiff’s counsel at Pritzker Hageman. Warning: it contains graphic images of terrible injuries. ).

This week, U.S. Magistrate Judge Katherine M. Menendez (D. Minn.) ordered that Swagelok could not “conduct independent destructive testing of critical evidence without the input, involvement, or observation of any party.”

The frustrating aspect of Judge Menendez’s order is that she does not identify what possible justification Swagelok articulated to justify its proposed secret destructive testing.

Is this otherwise known as a proposal to conduct court-approved secret evidence destruction? How not? How did anyone think that would fly?

The court refers to letter briefs from both sides in its order but these letter briefs do not appear to have been filed in the case so they are not publicly available. So we have to speculate.