Plaintiff Janice Hustvet sued Allina Health System because Allina terminated Hustvet from her job as an Independent Living Specialist (an “ILS”). Allina fired Ms. Hustvet because she refused to get vaccinated against rubella, which was a requirement imposed by Allina for ILS’s who work with immunocompromised people.

It appears that Ms. Hustvet was concerned about taking the MMR (measles, mumps, rubella) vaccine  because of various allergies she has although it seems that no doctor could be found to substantiate any of Ms. Hustvet’s concerns about the vaccine.

Hustvet sued Allina for “discrimination, unlawful inquiry, and retaliation claims” and she lost her case on summary judgment. (Congratulations to the lawyers at Felhaber Larson for the win.)


OW! This is one ugly order.

The parties in this case have morphed the rules-driven process of a lawsuit into an unrecognizable kerfuffle fueled by mutual distrust and a paucity of reasonable compromise. The merits of the underlying dispute appear lost to the ether, while the parties struggle as if over a global conflagration on issues that well may not change the trajectory of either parties’ probabilities of ultimately prevailing and bringing this long-running litigation to a merciful close. The parties should not be recompensed for the consequences of such actions.


Update (August 21, 2017): In this lengthy string of posts below, now spanning four years, we have lamented a often repeated phenomenon: business disputes where there are no actual disputes as to the facts and no actual disputes as to the law.

We wrote:

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.

We discuss cases where one side says a machine it bought does not work; the other side says it does. All agree that, if it works, plaintiff loses. If it does not work, defendant loses.

In LEI Packaging v. Emery Silfurtun, et al., the egg carton moulding machine evidently did not work. But it took the plaintiff years and, undoubtedly six-figure legal fees, to finally get a judgment.

We hereby coin the term, “Zombie cases,” for such silly and expensive non-disputes. What we mean is that these cases are the proverbial walking dead. There is no genuine live dispute but the lawsuit lives on.

Zombie cases enrich lawyers, clog the legal system, and cause Americans to lose faith in our legal system.

“Are you telling me,” many angry clients have said to many lawyers,”I may have to pay you $X,000 dollars to get the obviously liable defendant to pay me the $Y,000 dollars he owes me? And $X,000 may exceed $Y,000? And so you’re suggesting that I take a settlement offer of 50% of $Y,000 when the obviously liable defendant owes me twice that????”


Recurring Minnesota Litigator character, Peter Nickitas, originally received his moniker, “Extreme Caution,” from Avvo, the on-line legal services scam “marketplace”, but Avvo has changed its format.

Avvo no longer provides this warning for Mr. Nickitas. Avvo does, however, still refer to Mr. Nickitas’ four separate suspensions from the practice of law (two in Minnesota and two in Wisconsin). (These might be “doubles.” It is possible that the two states disciplined him reciprocally. In other words, four suspensions may have arisen from two violations.) Could it be that judges, courts, and ethics boards tire of disciplining particular lawyers after a while?

Mr. Troy Scheffler is a former debt collector who has filed many lawsuits against debt collectors in this district alleging violations of the Fair Debt Collection Practice Act (FDCPA). Represented by Mr. Nickitas, Mr. Scheffler brought an FDCPA class action against the Gurstel Law Firm (formerly Gurstel Chargo).

Notwithstanding “Scheffler’s argument made during the hearing on this matter [(presumably argued by his lawyer, Mr. Nickitas)] that Gurstel ‘subliminally commanded’ him to call the number provided by putting it in bold type,” you will not be surprised to read that Sr. U.S. District Court Judge David S. Doty (D. Minn.) threw Scheffler’s case  out on summary judgment.

Judge Doty held that Scheffler’s telephone call to the Gurstel firm “was an unsubtle and ultimately unsuccessful attempt to provoke [a Gurstel employee] into committing an FDCPA violation.” Sound sanctionable to you?

Trying to set up a debt collector, trying to trick the debt collector into violating the law, and, when unsuccessful, suing the debt collector anyhow? A legal theory along the lines of original sin? Maybe the legal theory is that trying to collect a debt, by itself, should trigger liability?


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

Update (August 16, 2017): It is not every day that one sees both sides appealing a Minnesota Court of Appeals decision, each agreeing that the Court of Appeals got it wrong on the same issue. We have it in the SB&T v. LHD&L case, discussed below. (See here, here, and here.)

This is sweet vindication of our post below critical of the Minnesota Court of Appeal’s SB&T decision.

Update (May 19, 2017): This week’s published Minnesota Court of Appeals decision, Security Bank & Trust Co. (“SB&T”) v. Larkin, Hoffman, Daly & Lindgren, Ltd. (“LHD&L”) is yet another thread in Minnesota’s knotty jurisprudence on the appropriate accrual date of a legal malpractice case.

Mr. Gordon Savoie got allegedly bad estate planning help from LHD&L in 2009. The papers drawn up by LHD&L failed to include a provision for a generation-skipping trust or other mechanism to avoid a  generation-skipping tax. This lapse is alleged to have been legal malpractice.

Mr. Savoie died, SB&T became the personal representative and successor trustee to the estate, and, SB&T alleged that LHD&L’s negligence caused the estate a tax burden of $1.654 million.

So, the question before the court was when did the claim accrue? When LHD&L did the allegedly negligent work? When Savoie paid for it? When Mr. Savoie died? When the tax was imposed? When Mr. Savoie suffered “some damage” (or did he?)? When the trust suffered “some damage” (or did it?)? And when did Mr. Savoie suffer “some damages? When did the trust?


Writs of certiorari are an important part of the appellate toolbox.

Writs of certiorari are their own kind of appeal, and they are not well understood by Minnesota litigators.  Certiorari matters are not like the usual civil case that starts in the district court and then proceeds to the appellate courts.  These matters instead start in front of a government official or body (like a state agency or a political subdivision) and then proceed directly to the Court of Appeals or, in the case of workers’ compensation and tax court appeal matters, directly to the Supreme Court.

There are three main kinds of certiorari appeals:

  • Chapter 14 “contested case” appeals,
  • Chapter 606 matters, and
  • Appeals from other matters which proceed by writ of certiorari under the Minnesota appellate rules (including appeals from unemployment compensation decisions, workers’ compensation decisions, and tax court decisions).

Chapter 14 and Chapter 606 matters are of greatest interest to me.

Chapter 14 provides for “contested cases.”   It says that certain kinds of challenges to state decisions are “contested cases” under sections 14.57 – 14.62.  These cases are heard by an administrative hearing officer from the Office of Administrative Hearings.  The hearing officer makes a final decision in the matter, or, more commonly, for some kinds of matters, a recommendation to a state department or agency official who makes the final agency decision.  The kinds of matters that proceed under Chapter 14 range from the simple to the very complex.  Matters that proceed under Chapter 14 include disputes about fair campaign practices, data practices, utility regulation, rights to special education services, regulated health care facilities and many kinds of state licensing matters.

Chapter 606 of the Minnesota Statutes makes some other kinds of government decisions appealable via certiorari.  Matters that are appealable under Chapter 606 are certain government decisions that are not appealable under Chapter 14 or other statutes.  These include appeals from certain political subdivision decisions (which are not subject to Chapter 14, since that chapter only addresses state agency decisions), and state agency decisions that do not require contested case hearings and therefore are not subject to Chapter 14.  To be appealable under Chapter 606, the government decision challenged must be “quasi-judicial,” and not “quasi-legislative.”  Many cases define the distinction, but broadly speaking, a quasi-judicial decision is one that applies a defined standard to facts found by the decision-maker, and not decisions that make policy.  Generally, a quasi-judicial decision applies to a limited number of people, and not to the public generally.  The kinds of Chapter 606 matters that may be appealed via certiorari, too, are very wide-ranging.  A few examples:  a city order requiring the destruction of a dog, a city decision designating buildings for historic preservation, and the denial of a police officer’s claim for health benefits under a state program.

A few things make certiorari appeals different.

First, they are initiated differently.  You have to first submit a petition for a writ of certiorari to the clerk of appellate courts.  Assuming your ducks are all in a row, the clerk issues a writ, which must then be served and filed along with the usual appellate documents like a statement of the case.

Second, the timelines are different.  Some certiorari matters must be initiated within 30 days, rather than 60 days.  A certiorari appeal will not be timely if the petition is not filed and the writ issued by the time to appeal.  This means that you must leave time to submit the petition and have the clerk issue the writ before the time to appeal runs.  Because of this, appeals by certiorari should never be left for the last minute.

Third, the standard of review is different.  The legislature entrusts certain decisions to state agencies and political subdivisions.  The appellate courts give those decisions the benefit of the doubt.  You need to understand the standards of review and how to address them to prevail in certiorari appeals.

Writs of certiorari present some opportunities and pose some pitfalls.  You need to understand both to use certiorari effectively.  Watch for more from me on this topic.

Sam Orbovich and I will be presenting on writs of certiorari at a MinnCLE webinar on Thursday, August 17, 2017, from noon to 1:00 pm.  Join us to learn more about certiorari appeals.




When out-of-state companies hire out-of-state lawyers with billing rates far beyond what lawyers cost in Minnesota and they seek an award of attorneys’ fees for winning a lawsuit (under a statute that provides for award of attorneys’ fees), our courts often punish them.

“You coulda/shoulda hired Minnesota lawyers,”.

Arguably, this is protectionism for Minnesota litigators — a government-sponsored nudge to “buy local.” On the other hand, if ABC Corp. pays $1,300 for something it can buy for $500, is it right for it to seek the higher amount for reimbursement? Lest we forget, this money comes from the state government coffers.


William Shakespeare, Romeo & Juliet, Act III, Sc. 1.

Plaintiff Maria Ramirez-Cruz sued her former employer, Defendant Chipotle. Whether or not she was scheduled for work on particular days was relevant to the case.

Defendant Chipotle “initially withheld” scheduling information from its employee shift scheduling (via its computerized MenuLink system) “because it was inaccurate.”

Also, incidentally, the evidence on Chipotle’s MenuLink system was unfavorable to Chipotle. The information (or misinformation?) on MenuLink contradicted Chipotle’s assertion that Ms. Ramirez-Cruz was scheduled for work during a particular 3-day period.

U.S. Magistrate Judge Kate M. Menendez (D. Minn.) found that Chipotle’s lawyer’s behavior left “much to be desired” but did not meet the high bar required to impose sanctions. In reviewing Judge Menendez’s denial of the motion for sanctions, U.S. District Court Judge Ann D. Montgomery (D. Minn.) explained

[A]lthough “Chipotle’s approach to the discovery obligations imposed by the Federal Rules of Civil Procedure was not substantially justified, and ordinarily . . . would warrant the imposition of sanctions,” Judge Menendez concluded that sanctions were inappropriate under Federal Rule of Civil Procedure 37(c)(1) because counsel to Ramirez-Cruz were also culpable in unnecessarily multiplying litigation.

This is in the nature of an “unclean hands” equitable resolution (“A dirty dog will not have justice by the court“).

One might think of Judge Menendez’s denial of the motion for sanctions against Lawyer A as the imposition of a cross sanction on Lawyer B, also known as killing two birds with one stone.

Drawing of Anger, made possible by Creative Commons,

We’ve covered the issue of fiery florid rhetoric and the distaste that courts generally have for it (“The Persuasive Force of Dispassionate Passion”).

The sequence of drafts of our own legal argument sometimes go like this:

Draft #1: In suggesting that XYZ case supports their position, opposing counsel and his nauseatingly deceitful client brazenly flout court rules, insult Your Honor’s intelligence, and, with staggering impudence, drag our justice system through the mud.

Draft #2: Opposing counsel and his less than honest client misrepresent the holding in XYZ case — a cynical (if obvious) effort to avoid their legal obligations.

Draft #3: Defendant’s (or Plaintiff’s) citation of XYZ Case is unpersuasive for these reasons….

Notice the subtle differences in tone in the three drafts? Unfortunately, we don’t always have time to edit out the over-the-top counter-productive drama from earlier drafts. We regret that when it happens.

Separately, we have also discussed “e-disgustery™” in previous posts to express our dislike of the excessive focus on “electronic discovery” in a lot of civil litigation.

These two themes often come together as they appear to have done in a pending FMLA lawsuit, Nekich v. Wisconsin Central (D. Minn.).

Civil litigators need to know that judges, in general, dislike both e-discovery disputes and hyperbolic outrage. Combine these two ingredients with great care (if at all).


Shadrach's whistleUpdate (August 9, 2017): A significant win for Minnesota whistle-blowers this week! An employee who confronts his boss about his boss’ illegal conduct and, as a result, is fired may be considered a whistle-blower under Minnesota law. In light of a recent amendment to the statute, the “good faith” requirement for a whistle-blower does not mean that the whistle-blowing was intended to “expose illegality.”

Congratulations to Plaintiff Mr. Friedlander and his team of lawyers from Halunen Law, Nichols Kaster, and Apollo Law LLC.

Original post (December 2, 2016): This week, U.S. District Court Judge Susan R. Nelson (D. Minn.) certified a legal question to the Minnesota Supreme Court, a relatively rare process used by federal courts to get direction from the highest state court as to issues of state law.

At issue in Friedlander v. Edwards Lifescience is the question of whether an employee confronting his boss about the boss’ own intentional wrong-doing constitutes protected conduct under the Minnesota Whistleblower Act (“MWA”).

How is it “blowing the whistle” to report wrongful conduct directly to the wrong-doer? What good does that do?

On the other hand, let’s say, hypothetically, that Mr. Friedlander was fired solely due to his confronting his boss about his boss’ unlawful conduct. Shouldn’t Minnesota citizens get protection from this?