Minnesota Litigator focuses primarily on news and comments about Minnesota civil litigation but we recently focused on the bigger picture of “dual federalism” and “subject matter jurisdiction.”

Now we look at another important issue: “personal jurisdiction.”

Since 2013, at least, we have argued that “U.S. jurisprudence on personal jurisdiction leaves something to be desired and the law needs an update.”

In a nutshell, the personal jurisdiction test looks at whether a defendant “purposefully availed itself of the privilege of conducting activities in [a particular state] and should, therefore, reasonably anticipate being haled into court therefore…” This analysis is circular, vague, and, in many cases (like this linked one), it seems, arbitrary.

According to our courts’ analyses, the answer to the “purposeful availment” question helps determine whether asserting personal jurisdiction “offends traditional notions of fair play and substantial justice.”

It is hard to articulate a more ambiguous, indefinite, and amorphous standard.

Also, as we argued previously, relying on “traditional notions” seems to be willfully oblivious to dramatic technological changes in our world. Forcing a Florida resident to litigate in Minnesota (or pick any other two states) is for obvious reasons much less onerous, “unfair,” and “offensive” in 2017 than it was in 1800 (or 1925, or even 1970, for that matter).

The question in Bristol-Myers Squibb Co. v. Superior Court is whether a non-California plaintiff can now bring a lawsuit against a non-California defendant in California state court consistent with the limits of the U.S. Constitution on personal jurisdiction.


Mobile Homes, New Ulm, MN (1974)

Congratulations to Minnesota litigators, Valerie Sims, Jeffer Ali, and Nathan Louwagie for their dogged representation of manufactured home residents in an on-going class action against the City of Burnsville.

Dakota County District Court Judge Colleen G. King delivered manufactured home residents and their lawyers a resounding win today (reserving for another day whether the Court will impose sanctions, as well, on Burnsville and/or its lawyers). We link the 45-page decision here but you can read excerpts below.

Perhaps the most stinging criticism Judge King’s opinion: “Burnsville made an intentional decision to establish a proactive code enforcement process because of the number of ‘ethnically diverse’ people moving into the city and that they ‘do not know how to take care of their property’ because it is ‘not in their culture.'”

In Judge King’s opinion, we are left to wonder whom Judge King was quoting in that passage. On further investigation, we learn that the quotes are public (and recorded) statements by Burnsville elected officials in 2012 (Burnsville’s mayor, Elizabeth Kautz, and Mary Sherry, a Burnsville City Council member).

More excerpts after the break…


(Mr. Merissa’s previous Minnesota Litigator post can be found here.)

Just two weeks into his presidency, U.S. Pres. Donald Trump has threatened to send troops to Mexico to take care of their “bad hombres”  and hung up on Prime Minister Malcolm Turnbull of Australia after a heated discussion about refugee policy.

Given this frightening treatment of our closest allies, you can be forgiven for avoiding the news. So if you were on a media diet over the weekend, here is a quick update on the latest developments concerning Trump’s de facto Muslim ban.

On Friday night, in connection with a complaint filed by the State of Washington and joined by the great State of Minnesota, Judge James Robart of the United States District Court for the Western District of Washington in Seattle issued a nationwide temporary restraining order enjoining Trump’s travel ban. Judge Robart held that “the States have met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the Executive Order [which] adversely affects the States’ residents in areas of employment, education, business, family relations and freedom to travel.”

As a practical matter, this means that the college students, Microsoft employees, and other valid visa holders stuck in legal limbo can travel to the United States. On Friday night, there was a conference call with the Customs and Border Patrol Agency in which officials from U.S. airlines were informed that they can once again board travelers who had been barred by last week’s executive order.

In response, on Saturday morning, President Trump tweeted, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”

The Justice Department appealed the ruling late Saturday, saying that the president had the constitutional authority to order the ban and that the court ruling “second-guesses the president’s national security judgment.”

But Sunday morning, the Ninth Circuit rejected an emergency motion filed by the Justice Department for an immediate administrative stay pending full consideration of their appeal, which would have had the effect of restoring Trump’s travel ban.

So take heart. And don’t be afraid to read the newspaper. At least one branch of government is performing as it ought to. Thank you Article III.

Need to contact a Minnesota immigration lawyer? Call Mikael Merissa: (612) 349-5288.

BunniesUpdate (February 7, 2107): The Minnesota Supreme Court heard oral argument today in the case discussed here below last June. Counsel for Bunny’s Bar and Grill faced relentless tough questioning by the Minnesota Supreme Court and I predict that the Minnesota Court of Appeals’ decision (against Bunny’s) will be affirmed.

Original post (June 29, 2016): Who knew there was a Minnesota state law prohibiting employers from forcing employees to share gratuities (otherwise known as tips) that the employees receive on the job? (See Minn. Stat. 177.24, subd. 3.) Not the owners of the beloved St. Louis park establishment, Bunny’s Bar and Grill, apparently.


[Those of you older than 50 will understand the headline and the image to the left. For the nostalgic among you (or the young’uns who have no clue), click to see the linked advertisement from 1976.]

Regular Minnesota Litigator readers (and all experienced Minnesota litigators) are familiar with Rule 5.04 of the Minnesota Rules of Civil Procedure and, most particularly, the 2013 amendment that provides that a lawsuit must be filed with the court within one year of being served on “any party.” Otherwise, the lawsuit is “deemed dismissed with prejudice against all parties.”

Call this the “you snooze, you lose, rule.”

But what if a judge finds that plaintiffs failure to comply with Rule 5.04 was “purely” the fault of their lawyers?

This past week, St. Louis County Chief Judge Sally L. Tarnowski found that Plaintiffs Joel Johnson, Joy Johnson, Lakehead Boat Basin, Inc., and Marine Services, Inc. (collectively “LBB”) lost their multi-million dollar claim against the City of Duluth “purely” due to neglect of their lawyers. Fortunately for Plaintiffs, Judge Tarnowski took the further step of granting Plaintiffs’ Rule 60 motion for relief from judgment.

This, in turn, raises another question: does “relief from judgment” make the malpractice action against LBB’s lawyers “go away” (that is, the lawyers who missed the filing deadline  in Plaintiffs’ case against the City of Duluth)? Time will tell…

Lovis Corinth (an amazing artist you have never heard of)

Update (February 1, 2017): Regular readers might recall a recent post, below, in which Sorin, the plaintiff, submitted an exhibit on its own exhibit list for use at trial, to which St. Jude, the defendant, objected. The trial judge (U.S. Dist. Ct. Chief Judge John R. Tunheim (D. Minn)) agreed with St. Jude that the evidence was irrelevant.

Then St. Jude offered this same evidence at trial and Sorin not only objected to the evidence but, after Sorin lost, it argued that introduction of the evidence tainted the trial and required a new trial.

St. Jude’s forceful (if predictable) response is that the Court committed no error in admitting the evidence and, even if the Court did, this hypothetical error falls far short of the “heavy burden” to require a new trial.

Minnesota Litigator predicts that Sorin will lose its motion for a new trial. The most persuasive part of St. Jude’s response memo is its first line:

After an 11-day trial involving testimony from sixteen witnesses … and the admission of over 190 exhibits, a twelve-member jury unanimously found in favor of Defendant St. Jude Medical S.C., Inc. (“SJM”) on every claim Plaintiff asserted.

Trials, like legislation, and like sausage-making, are messy processes. We need to be vigilant, we need to apply sound guidelines, and we need to dress appropriately, but if we over-do it, we’ll never get anything rendered, passed, resolved, or, for that matter, barbecued.


Minnesota Litigator generally avoids covering stories that other larger news outlets are covering because we do not have the resources to cover such stories like the bigger players. Our “coverage,” therefore, is too often simply echoing what others have written.

University of Minnesota law Prof. Painter’s lawsuit against Pres. Trump is such a story. Since the Star Tribune makes a general habit of not linking to court filings, however, we provide a link to it here.

For Strib coverage of the story, go here.

The following is a guest-post by Mikael Merissa:

“When someone shows you who they are, believe them the first time.”

– Maya Angelou

Consistent with his campaign promise to ban Muslims from entering the United States until we “can figure out what’s going on,” President Trump issued an executive order on Friday temporarily banning refugees and immigrants from seven Muslim-majority countries -Syria, Iraq, Iran, Libya, Sudan, Yemen and Somalia. No matter that those countries have not produced a single person linked to terrorism in the United States according the Cato Institute, or that Saudi Arabia (home to 15 of the 19 September 11 hijackers) was not included, perhaps because of Trump’s business interests there. And never mind that no class of immigrants on Earth are more stringently vetted than refugees. Or that Trump’s action will likely inspire generations of terrorists. A promise is a promise.

But in addition to being bad policy, the order is illegal. The Immigration and Nationality Act of 1965 banned all discrimination against immigrants on the basis of national origin. Trump’s executive order has also resulted in the violation of the Fourteenth Amendment’s guarantee of due process and equal protection. On Saturday night, U.S. District Court Judge Ann Donnelly ruled in favor of a habeas corpus petition filed by the American Civil Liberties Union on behalf of two Iraqi men who were detained at John F. Kennedy International Airport on Friday after Trump signed his order. Judge Donnelly held that absent a “stay of removal, there will be substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject to the January 27, 2017 Executive Order.” Three courts have since issued orders similar rulings.

But in the meantime, real people have been hurt by this malicious and ill-conceived order. 109 people were reportedly detained when their flights touched down in the United States, including an eighteen-month-old and an Iraqi translator who risked his life to help American soldiers during the war in Iraq.

Until all of this shakes out, this Minnesota immigration lawyer has three pieces of advice for Legal Permanent Residents (LPRs), commonly known as green-card holders:

(1) Adjust your status to that of U.S. citizen. Don’t wait, apply today.

(2) Cancel any plans to travel outside the United States.

(3) Don’t commit any crimes! If you’ve had a few too many (which is understandable in these times) call a taxi (or an Uber, or another ride-sharing service).

For green-card holders and U.S. citizens alike, we can do the following:


Making products to kill human beings involves some complicated issues.

First, humans can be clever and hard to kill.

Second, as a general rule, we humans are not supposed to kill one another.

The first challenge is a technical challenge.

The second challenge is a legal, moral, and political challenge.

The recently filed complaint of Orbital ATK v. Heckler & Koch GmbH (in U.S. District Court for the District of Minnesota) seems to grapple with both challenges.


Many of us think that when litigants win an award of money in court, they actually get the money. All of the money.

Most understand that the government does not just cut a check to a winning plaintiff against a losing defendant and then chase the defendant  for reimbursement (though that’s an interesting idea and we wonder if such a system exists anywhere on earth).

Many might imagine that, after a plaintiff wins an award of money, the judge orders the defendant(s) to pay the plaintiff. Many imagine that “the justice system,” plays an active and on-going role in getting defendants to pay up on judgments against them.

Not so. In our justice system, if the defendants are uncooperative, it is the plaintiffs and not the court system who have to spearhead “collection efforts.” These efforts can take months or years. These efforts can cost a lot money and sometimes more than the amount of the judgments themselves. These efforts are sometimes futile dead ends. As we have lamented before, our justice system more often than not falls far short of making meritorious plaintiffs whole.

If it takes years and tens of thousands of dollars to collect on debts, then our legal system is, of course, useless to help citizens collect relatively small debts.

Fortunately for “judgment creditors,” however, the Minnesota Supreme Court issued a ruling this week that will give them a tiny boost in their recovery efforts.