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

This post is for the small number of civil litigators in Minnesota (and other 8th Circuit States) who do ERISA litigation. This past week, U.S. Mag. Judge Katherine Menendez (D. Minn.) held that the “fiduciary exception” applied to the insurer’s asserted attorney-client privilege in Christoff v. Unum Life Insurance Company. The 8th Circuit has yet to weigh in on the question.

Unum Life Ins. Co. of America relied heavily on Wachtel v. HealthNet, a 2007 decision from the 3rd Circuit. That decision, Judge Menendez noted, has been heavily criticized (citing and quoting Stephan v. Unum, 697 F.3d 917, 931 n.6 (9th Cir. 2012)  (“Every district court that has considered the question since, however, has rejected Wachtel’s approach and held that the fiduciary exemption does apply to insurance companies.”).

The issue is, however, a tough knot to crack.


Minnesota litigators all know the basic rules for calculating deadlines under the Minnesota Rules of Civil Procedure.  For example, we know that weekends and holidays are excluded in calculating deadlines for time periods less than 7 days.  That rule – and other rules governing time calculations – may be changing down the road.

The Minnesota Supreme Court has been considering proposed amendments to the rules of civil procedure.

One proposed amendment to Rule 6 would establish the “day is a day” approach.  When counting days, all days would be counted regardless of the number of days in the period.  So, weekends and holidays would not be excluded in counting days for short periods.

The proposed amendments would make counting backward to calculate deadlines more clear.  If, when counting backward, a deadline would fall on a weekend or holiday, the deadline would be set at the earlier day.

If, when counting forward from an event, a deadline would fall on a weekend or holiday, the deadline would be set at the later day.

And, the proposed amendments would generally adopt a 28-21-14-7 day schedule, as under the federal rules.

So, for example, an answer to a complaint served personally would have to be served within 21 days (not 20 days) as under the current rules.  A reply to a counterclaim in an answer will be due 21 days (not 20 days) from service of the answer.  If, for example, the Court denies a motion to dismiss under Rule 12.01, the responding pleading must be served 14 days (not 10) after service of notice of the court action.


When people are arrested and charged with a crime, their paramount concern is generally their personal freedom and the accused (the smart ones, at least) quickly retain criminal defense lawyers or work with public defenders assigned to them.

But there are often tag-along proceedings that follow criminal prosecutions: forfeitures, which are particularly prominent in the context of drug-related prosecutions (but by no means limited to alleged drug crimes). People lose sight of these tag-along proceedings at their peril.

Forfeiture can apply to money, cars, drugs, drug paraphernalia, guns, etc. And once the government gives notice of its intent to seize an accused’s property, the accused has sixty days to challenge the forfeiture. When that deadline passes, even by one day, no challenge will be heard.

Whether missing the deadline is a criminal defense lawyers’ fault, the clients’ fault, or both can be blamed, is it consistent with one’s sense of a justice system that the 60-day deadline is “jurisdictional,” that there is apparently no relief or remedy if the deadline is not met, no matter how compelling the circumstances?


It is looking like plaintiffs’ class action lawyers may end up empty-handed after nearly four years of litigation against SuperValu based on a data breach of SuperValu’s credit card processing system caused by malicious hackers.

The bottom line: the plaintiffs’ lawyers were apparently unable to find a single customer who can establish that he or she lost money as a result of the massive data breach. And this after the unauthorized and illegal access to cardholders’ “personal identifying information” (that is, their names, account numbers, expiration dates, card verification value (“CVV”) codes, and personal identification numbers (“PINs”)) in more than 1,000 grocery stores.

Although this comes after nearly four years of litigation, the court’s electronic court file has only 24 entries so perhaps there were not thousands of plaintiffs’ lawyers’ uncompensated hours invested in this ultimately worthless lawsuit (assuming the plaintiffs’ lawyers do not succeed on a second trip to the U.S. Court of Appeals for the Eighth Circuit).

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?


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)?


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.


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?


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?