Grace, 1918, Photo by Eric Enstrom

A faithful reader directed Minnesota Litigator to a puzzling Minnesota statute passed in 1992 and adopting state-wide zero tolerance for violence. [H/T: AG]

This is one of many odd statutes where one has to wonder what prompted it.

Minnesota’s “zero-tolerance-for-violence” statute is located in Chapter 1 of Minnesota Statutes. Chapter 1 seems to include some important state laws but also some pretty silly ones.

For example, Chapter 1 includes statutes proclaiming our state: bird, fish, gemstone, fruit, grain, soil, mushroom, drink, muffin, butterfly, sport, and photograph (see “Grace,” the image to the left, made our state photograph in a colorized version (copyright protected, apparently) in 2002).

Naturally, our state soil is lester and, yes, there is, of course, a Ballad of Lester Soil. Because what state does not have an official soil honored in a ballad?

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Update (March 7, 2018): There’s protracted litigation and then there is PROTRACTED litigation and the case of Mr. John Drewitz, described below, falls in the ALLCAPS camp.

The duration of this civil lawsuit is particularly unsettling because it is not complex or massive multi-party litigation. Even worse, it probably qualifies as a “zombie case,” which we define as a lawsuit in which there might never have been a genuine factual or legal dispute but the case, nevertheless will not die.

We have previously advocated “sanctions” as a means of reducing the needless expense of zombie cases. Plaintiff advocated for a close cousin of sanctions in the Drewitz case: punitive damages. The trial court denied Plaintiff’s motion to amend to add a claim for punitive damages, suggesting that the motion was untimely. The Court of Appeals affirmed. The Minnesota Supreme Court denied Mr. Drewitz’s petition for further review.

Minnesota courts seem to really hate punitive damages. Courts often seem to deny the motions as premature or untimely. We suspect in the Drewitz case that the trial court’s conclusion boiled down to,”enough is enough.” Adding a claim for punitive damages would have prolonged what was already a ridiculously lengthy dispute, the court pointed out. But such a rationale, if it was the decisive factor, is short-sighted. What is to deter the duplicitous and determined zombie? What message does this send to other litigants who would rather litigate for 10+ years than cut a check (few though they may be)?

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A business called LawGeex is promoting its study that purports to show that their software performed better than real lawyers in the review of several non-disclosure agreements (NDAs).

As we understand the test, “Twenty US-trained lawyers, with decades of legal experience ranging from law firms to
corporations, were asked to issue-spot legal issues in five standard NDAs. They competed against a LawGeex AI system that has been developed for three years and trained on tens of thousands of contracts.”

In other words, engineers “taught” the software to identify “choice-of-law clauses,” “return of company property clauses,” etc. etc. (a total of 30 common NDA clauses) (see Appendix 3 at p. 30) and the software was able to identify these “issues” more reliably and more quickly than the human lawyers.

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Bubble by Don McCrady

Update (March 2, 2018): A man cannot seem to keep his distance from an ex-spouse (and the mother of his daughter), notwithstanding a court’s “no contact” orders.

The district court, undoubtedly aware of the serious threat to the ex-wife by the man’s inability to stay away, noting his “alarming behavior,” extended the “no contact order,” ordering him to stay a mile away from the ex-spouse’s home (rather than 100 feet) for 50 years (rather than 2 years). The ex-husband appealed the temporal and geographic expansion of the court’s order.

The Court of Appeals, in reviewing this decision, referred repeatedly to a “two-mile bubble” (i.e., the diameter of a circle with a one-mile radius).

The statute that the trial court was to follow allows the district court to exclude someone “from a reasonable area surrounding the dwelling or residence.” Who decides what “reasonable” is, the trial court or the court of appeals?

The Court of Appeals, over a dissent from Judge Renee L. Worke, decided that “this extraordinary expansion” was unreasonable. The court seems to have been particularly bothered by the expansion because the ex-wife lives near the center of Minneapolis and, therefore, the order could pose significant transit challenges for the ex-husband. Further, the order would “follow” the ex-wife so, if she moved, she could displace the man from a two-mile diameter circle from wherever she moved to.

We reverse only the portion of the district court’s order that extends the 100-foot radius of exclusion surrounding [the ex-wife’s] home to one mile. We remand with instructions for the district court to reduce the size of the restriction and to define the zone of exclusion around [the ex-wife’s] residence in a manner that both tracks the reasons supporting the extension and that does not unreasonably interfere with [the ex-husband’s] mobility.

We note that the trial judge and the dissenting judge at the court of appeals are women. This could be random coincidence or this could reflect that judges’ gender might correlate between how they  “strike a rational balance between the competing interests at stake: the protected person’s safety and the restricted person’s liberty” in cases like this one?

Would it be surprising if the balancing of those interests (safety vs. liberty) might change if one tends to identify more with the person seeking safety than the person seeking liberty, or vice-versa? And, if so, is this not a compelling argument for gender balance in our courts and for decision-makers and policy-makers generally?

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U.S. courts often seem reluctant to award attorneys’ fees and, when they do, they often cut the lawyers’ fees claimed — the proverbial haircut, discussed here repeatedly.

But it is exceedingly rare for a trial to include lawyers literally trying to cut their own hair during the trial. Nevertheless, we learned recently that this too has passed — right here in the U.S. District Court for the District of Minnesota. In denying a petition for attorneys’ fees, Chief U.S. District Court Judge John R. Tunheim (D. Minn.) explained, in part:

[C]ounsel placed his own human hair on the projector to demonstrate whether fibers would show on a white background. That tactic may be exceptionable, but it is not exceptional in light of the fact that [opposing counsel] escalated the matter on redirect: there was a notable pause in trial as …counsel tried to locate either [the first lawyer’s] hair or a pair of scissors with which to cut his own hair before settling on the use of a paper clip as a demonstrative.

How can we ignore the irony that a petition for attorneys’ fees was rejected in part because of the lawyer’s attempt to give himself his own haircut at trial?

 

 

 

For years, we have pointed out how many times trial lawyers slip up on pleading diversity jurisdiction in federal courts for limited liability companies.

The citizenship of an LLC is the citizenship of each of its members. It can be difficult to find out who the members are in an LLC, much less find out where they are “citizens.” And if LLC members are, themselves, LLCs, one must figure out the “citizenship” of the members of THAT LLC, etc., etc.

What happens if an LLC member sues the LLC? In that case, there can be no diversity jurisdiction because the plaintiff LLC member is effectively “on each side of the case” and there cannot be the required “complete diversity of citizenship” between the plaintiff and defendant.

This little hitch blew up the federal lawsuit of Little Otters of Love, LLC (“LOL”) against Kailen Rosenberg, Global Love Mergers, Inc. d/b/a Kailen Love and Life Architects, and The Lodge. LOL had tried to argue that it successfully pulled out of membership in The Lodge LLC and, therefore, was not accurately viewed as an LLC member. Sr. U.S. District Court Judge Richard J. Kyle, Sr. (D. Minn.) rejected this argument and, this week, the Eighth Circuit affirmed Judge Kyle’s decision.

Thus, the case may be of interest to Minnesota Litigator readers who are interested in (1) pleading federal diversity jurisdiction, and (2) contract formation under Minnesota.

But, also, aren’t you a little curious about Little Otters of Love?

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

Update (February 22, 2018): It did not take the Judge very long to vacate the order of dismissal in the case described below. It seems not so simple for an Ohio receiver to settle a Minnesota $1.7 million lawsuit for $70,000…

Original post (February 19, 2018): A Minnesota company (we’ll call it MinnCo) sued an Ohio company (we’ll call it OhioCo-1) in Minnesota on a $1.7 million claim.

A separate Ohio company (OhioCo-2) sued MinnCo in Ohio on a $33,000 claim.

MinnCo runs out of money. Lawyers take the Minnesota case against OhioCo-1 on a contingent fee basis.

OhioCo-2 obtains a judgment against MinnCo in Ohio for the $33,000. OhioCo-2 gets a receiver appointed in Ohio, and MinnCo’s Ohio receiver settles the OhioCo-1 claim (that is, the supposedly $1.7 million claim in Minnesota) for $70,000.

In other words, MinnCo’s Ohio-appointed receiver gets OhioCo-2’s judgment paid for and, on top of that, gets his own fees and costs paid but, to do so, he causes MinnCo to walk away from its claim against OhioCo-1 in Minnesota, potentially a $1.7 million asset for $70,000 (a 96% discount) (leaving MinnCo’s Minnesota lawyers with nothing).

Can the Ohio receiver do that? Can a receiver appointed in Ohio for a Minnesota company do that consistent with the fiduciary duties that the receiver owed MinnCo? Can an Ohio-appointed receiver exercise control over a Minnesota lawsuit?

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From our recent interview with Minnesota Supreme Court Justice Anne McKeig, a few things stand out.

First, family means a very great deal to Justice McKeig. We’re tempted to say that family might mean everything to her — not only her own family but all of our families (and, more broadly, our communities).

Second, Minnesotans are extraordinarily fortunate to have Justice McKeig on our state supreme court. She brings dedication, tenacity, integrity, along with her deep personal perspective, informed by an upbringing in rural Northcentral Minnesota in the Native American community. On top of that, we benefit from her expertise in family law, in particular. Justice McKeig embodies the importance of diversity among our judges — diversity not only in life experience but also legal experience.

ML: I want to start by asking you about your Native American background. Can you elaborate on that part of your identity and how that informs what you do and how you see our legal system?

Justice McKeig: My Native American background has profoundly influenced the way that I look at justice and it has always influenced the role I see for myself in the justice system. My father – Monte “Big Dog” McKeig – was born in Onigum on the Leech Lake Reservation, although he was an enrolled member of the White Earth Nation.

He grew up in Federal Dam in north central Minnesota between Grand Rapids and Bemidji, where my grandfather worked for the railroad.

My grandfather was fluent in Ojibwe and he was a student of the boarding school era. So he was actually sent away to two different boarding schools, I believe it was Morris and Pipestone. And he kept running away and they kept sending him back. He returned home eventually, a young man, and married my grandmother who was Bohemian and who was a school teacher. They had three children, one of them being my dad and his two sisters, my aunts. My father was raised and taught some of the Ojibwe language although my grandfather probably lost some of the language during his time at the boarding schools.

But, more than the native language, both my parents and also their parents passed on strong values: a simple life, hard work, clean living, a sense of self, a sense of community and knowing what your role in the community.

For example, even though my parents had a chance to live here in the Twin Cities and probably would’ve had a better lifestyle as far as money, that wasn’t what my parents wanted. They wanted the closeness you feel on the reservation. Even when I go home now, I feel like my heart, my soul, my everything is in Federal Dam. I wasn’t born there, but that’s where I moved at the age of three to be raised. And there’s a level of comfort, a level of trust, a feeling of belonging. Outside that close circle, there’s a feeling of not belonging. I think many people feel something like that, though maybe in slightly different ways.

My parents taught us and expected us to be good people, to respect the land, and whatever we took from the land was to be used. So, for example, we hunted, but we wasted nothing; we ate all we hunted. And we took care of the land. We did not litter. I remember when the Corps of Engineers built a park in my hometown. My father was very unhappy about that. He was concerned that tourists would come and take the fish and leave their garbage. Maybe that was unfair of him, but the point is that we had a respect for the land and we cared for it. Not everyone does. Indian people live off the land. This impacts your lifestyle.

So I didn’t know how these values were impacting me all those years but I definitely learned right from wrong and I definitely learned that I was to stand up for the underrepresented or the underdog because that’s what my dad would’ve done. And both of my parents were very giving people. I learned from watching them with their generosity and kindness. My dad never turned anyone away that needed help and my mom is the same. I took that with me when I left for college.

Off I went to college, to St. Catherine’s, because my mom had gone there. You could say I was born to go there. There was never any doubt that that was where I would go to college.

From there it was off to law school and, after law school, I was just lucky. I landed in the Hennepin county attorney’s office in the Child Protection Division, but I didn’t know anything about it. That was not a world that I knew about but, after doing the work for a while, I could recognize it. It surrounded me everywhere back home on the reservation. Some of my good friends came from abuse, abusive and neglected homes, and I saw my mom caring for a lot of the kids in the community.

She was Indian Education Director. She would be the one that, if a kid was having trouble at home or crying or pain or suffering from some traumatic event, she was their confidante. She didn’t tell us about any of that. But looking back, I can recognize it now as an adult. Then I was fortunate enough to be asked to work on the Indian child welfare cases in the County Attorney’s office. All of a sudden it came together with my legal education because I was able to work with my community and really learn more about myself. So I worked with many of the elders who represented the different reservations. We have eleven here in the state. And I was able to go out to the reservations.

I was able to go out of state to Pine Ridge and Rosebud. I was welcomed. Part of that is because I was native and so I was welcomed, but also they were very patient with me because I wasn’t a traditionalist. That’s not how I was raised. I was raised with the similar values, but I think of people like Jackie Wilson. She was an urban representative for the White Earth Nation. I think of Katy Turner who was also working with the tribes in court. They really helped me on a personal level, which helped me on a professional level.

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Update (February 14, 2018): In the posts below, we consider the case of Anibal Sanchez vs. Dahlke Trailer Sales. The case embodies violent collision of current U.S. immigration policy. Federal law prohibits the hiring of illegal immigrants. Employers routinely knowingly ignore the law. But when a worker/illegal immigrant invokes employment rights under state law, employers like Dahlke Trailer Sales seek to deny the workers’ state rights, arguing that granting them would cause the employer to violate federal law.

It is a sick joke. It is a mess.

Current U.S. immigration policy seems hopelessly conflicted. Everyone agrees that the U.S. must have an immigration policy. Very few people advocate for totally open borders or for totally closed borders but there is no consensus on a rational middle-ground. We seem split down the middle and paralyzed in conflict. Don’t take it from us. Take it from Minneapolis immigration lawyer, Sandra Feist:

Our immigration laws have become atrophied due to gridlock in Congress and the inability to update even uncontroversial portions of the Immigration and Nationality Act to meet the current economic and humanitarian realities. The last time Congress addressed immigration law in a comprehensive way was 1990 – before the internet existed, before the tech boom of the 90’s, and before 9/11.
Immigration reform was not as controversial in 1990, nor in 1986 under President Reagan who created the penalties for knowingly hiring undocumented workers and simultaneously created an amnesty program. If we are to get past the current gridlock, Congress needs to realize that immigration law has been in the past and should again become a bipartisan issue, and that xenophobia has no place in proactive, constructive immigration reform designed to meet the needs of our country.
To bring our immigration laws up to the present, Congress needs to enhance laws that protect foreign workers, increase access to the American labor force for non-professional, but essential foreign workers, address the needs of the business sectors reliant on high-skilled professionals, and update the existing framework to address the massive pool of law-abiding, contributing members of our communities and places of employment who are undocumented with no options to rectify their situation.
For another perspective from another Minneapolis immigration lawyer, consider Mikael Merissa’s insights:

The elephant in the room when we discuss immigration law is black—as in the growth of non-white immigration to the United States and the discomfort that it causes certain segments of the white American population.

Like other parts of our history, the issue of race once again paralyzes us.  In addition, like other parts of our civil lives we do not want to talk about race.  Instead, we talk around it trying to appease the racists in our midst.  We say we need immigration reform for the sake of social security solvency; we talk of needing high skilled workers, or needing foreign investment.  We talk about low birth countries like Japan and Italy and their low economic growth countries. We talk about our aging population and the need to replace workers.  We talk about law and order and about walls.

We used to talk about family unification.  We used to talk about the shining city on the hill, the huddled masses seeing to be free.  The reason we do not talk about the basic humanity and decency of the immigrants is because they no longer look European, the names of their hometowns sound foreign, and their faces look foreign.

Our immigration laws have become increasingly draconian as a result—in the name of security.  The easy parallel in our jurisprudence is comparing it to the drug sentencing of crack and cocaine.

George W. Bush, when he took a crack at immigration reform talked about people coming out of the shadows.  Cases like Dahlke shows what happens when we insist that people remain in the dark.

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

The Sanchez v. Dahlke case has again highlighted just how fouled up the situation is. Mr. Sanchez wishes to go to trial in his lawsuit that has gone up to the Minnesota Supreme Court and back down to the trial court in Anoka County but he is afraid to show up at trial because, apparently, appearing in court is known to present a high risk of apprehension and deportation. (See court filings here and here.) Mr. Sanchez seeks to appear remotely via live video from a remote (and presumably undisclosed) location.

In other words, our legal system affords rights to undocumented workers but they face a serious threat of deportation if they seek to vindicate their rights.

Ms. Feist has proposed what she calls “an easy solution to the problem of undocumented workers.” We do not have the expertise to agree or disagree with Ms. Feist’s proposed solution but there is a widespread consensus that the current situation is hard, if not impossible, to defend.

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Pacific Union v. Dingman is a generic example of “brain raid” litigation that we have covered several times. What makes this case different is the alleged breadth of the exodus. This was not a small number of employees. It appears to have been an entire region of Pacific Union’s mortgage lending business de-camping and pitching their tents under the flag of Cardinal, a direct competitor of Pacific Union (see here at pages 25-26).

 

 

Whenever we see such cases (and we see them frequently), we ask ourselves, “What were they thinking?” (meaning the departing employees and the “raiding company”). Were they advised by lawyers?

If so, the alleged transfer of five gigabytes of data by a departing employee to his personal account seems difficult to understand (see p. 14). The complaint, more broadly, suggests a breath-taking mass departure which, if not handled skillfully, will end badly for the departing employees and their new employer.

We recently posted about a smaller scale brain raid, St. Jude v. Heath. Now, there was a case where it is clear that the departing employee and the competing business were very careful to do the right thing, and careful to do it by the book. Even so, unfortunately for Mr. Heath and Boston Scientific, this did not eliminate the risk of protracted litigation although we predict that Heath and BS will ultimately prevail.

If you or your company are considering a brain raid yourself, or if you are considering quitting and joining a competitor of your employer, you might want to call LEVENTHAL pllc, 612-234-7349, for a free 1/2 hour consultation and advice. It can be far cheaper to deal with the legal ramifications on the front end than it is to postpone the reckoning and have protracted litigation as part of the aftermath.