jack-and-the-beanstalk-1473274899vysUpdate (December 2, 2016): This post is unsolicited grandstanding about the just, fair, and proper application of U.S. contract law.

Here’s the deal: there is something fundamentally unfair about the “click-through” contracts that we all experience when we make consumer on-line purchases, sign lengthy rental car contracts, and receive small print, light-gray inked disclaimers on the backs of receipts, plane tickets, and the like. The small print is literally impossible (and I use “literally” in its real sense) for many contracting parties (that is, retail consumers) to read and understand.

As to the “micro contract terms” in the small print, any suggestion that these consumer warnings are contracts in the strict sense (that is, that they involve an offer, acceptance, consideration, mutuality of obligation, competence and capacity) is an illusion. Assuming that consumers read and understand the fine print denies reality; to the extent our law is premised on this assumption, it is indulgent and self-serving fantasy. And the result is that such terms are coercive, since in order, say, to rent a car, the consumer has no choice but to sign the supposed agreement including the micro contract terms that the consumer cannot realistically have read or understood.

On the other hand, it seems far more fair and important to hold so-called “sophisticated parties,” otherwise known as businesses or business people, those who engage in repeated and specialized transactions in the course of their work, to the fine print in their transactions. For one thing, we can and do recognize that these are businesses. Businesses are more often in a position to hire lawyers to look after their interests, and specifically, to vet contracts. Even if their lawyers let them down or if they cannot afford a lawyer, businesses cannot starve to death or be homeless as a result of a bad deal. At worst, they go out of business. Again, they’re businesses, so we should not protect them from market forces. Competitors all have to abide by the same rules. So, to the extent we let businesses off on “the fine print defense,” we are setting up incentives for businesses to ignore contractual terms and penalizing others who agree to abide by the terms.

This is all by way of saying that I will again predict that Plaintiff/Farmer Nielsen will not be allowed to argue in federal court that his soy beans had clean coats. Plaintiff/Farmer Nielsen, I predict, will be held to have agreed to have the decision go to arbitration under the Trade Rules of the National Grain and Feed Association (NGFA)notwithstanding his lawyers’ dogged efforts to keep his case in court


HourglassA recent reminder: U.S. Magistrate Judge Steven E. Rau (D. Minn.) is strict on deadlines. (Here is an earlier post on the topic.)

In the protracted saga of Receiver R.J. Zayed’s litigation against Associated Bank due to its alleged (arguably passive) role in a Ponzi scheme (see previous post, here), the Plaintiff brought a motion to compel after the deadline for fact discovery but before the deadline for “non-dispositive motions.”

While this might seem innocuous to many, it could be fatal for Zayed’s motion.


honoreebadgeI am delighted to share that Minnesota Litigator has again been named an ABA Top 100 law blogfirst time since 2012!

I want to thank our editors (you know who you are!), post contributors, sponsors (listed in the right-side colum), and, most of all, the readers, and, among them, most of all the active readers who give Minnesota Litigator tips, ideas, and constructive feedback.

To date, there have been 1, 947 Minnesota Litigator posts and we’re going strong!


Is it okay for courts to cite legal blogs?

If you don’t yet read Max Kennerly’s Litigation & Trial, you’re welcome.

trench_72dpiCatAndMouseChaseJeorenMoeszUpdate (November 28, 2016): Will this slip’n’slide cat-and-mouse pursuit ever end? Have a look at the linked recently filed 63-page recitation of the judgment debtors’ years of breath-taking feats of deceit and subterfuge. Try to get your head around the number of hours that lawyers spent accumulating the information in that memorandum.

A court system that does not have the power to enforce its decisions has little power. It is a sad fact of our legal system that the high cost of compelling a losing litigants to pay judgments makes many judgments nearly worthless. Could it be that an $8 million+ judgment against a solvent company (operated under different names) is nearly worthless? If so, are our courthouses just a collection of Potemkin villages?

Update (March 29, 2016): No end in sight on a victorious plaintiff’s efforts to collection on a 2013 judgment for more than $8 million. After nearly three years of post-judgment collection efforts, it seems that the judgment debtor might have successfully jammed progress for the time being, at least, filing a bankruptcy petition in New Jersey, halting all further proceedings in the U.S. District Court for the District of Minnesota.

Update (March 21, 2016): The excruciating and protracted siege of Manley Toys, which Minnesota Litigator has reconned for years, continues…. Now shadowy entities, purportedly not the judgment defendant itself but somehow related to it, have appeared, seeking to “intervene,” slow down, or halt the already slow-grinding progress of the wheels of justice. U.S. District Court Judge Janie S. Mayeron (D. Minn.) will have none of it.

Judge Mayeron’s recent denial of a motion to intervene by Jun Tai Co. Ltd. and Winning Industrial Ltd. (emphasis on the “limited” and emphatic irony on the “winning”) is pointed:

[T]he movants wholly failed to provide the Court with any facts as to who they are, what they do (e.g., do they even sell or distribute Manley toys in the United States), what their interest in the sanctions motion is, what their relationship to Manley is, or how the outcome of the sanctions motion would affect them. Significantly, their motion was unsupported by any declaration or affidavits that would permit the Court to evaluate their contention that intervention was warranted. In fact, even their conclusory statements that they have a common ownership with Manley, but are separate legal entities, was without any evidentiary support….Counsel then explained that the reason no supporting affidavits or declarations were filed was that the motion had to be brought hurriedly and there was no time for counsel to obtain a declaration or affidavits from the movants in support of their motion. The Court placed no credence in this explanation.

I confess to vacillating between sympathy and disdain for the defenseless defense lawyers, forced to stand before the Court unarmed with either law or facts on their side. I guess it’s not child’s play but someone’s got to do it….


"A Tough Knot to Crack" (photo by Jay Fanelli)

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

While many people are enjoying their Thanksgiving holiday break, a few of you are reading this post. You are the die-hards. I bet that you’re lawyers who love your work. Should you be admired or pitied? Who’s to say? Hats off to you, as far as I am concerned, and enjoy a puzzler:

In a recently filed complaint in U.S. District Court (D. Minn.)(Ericksen, J.), the plaintiff LLC sues defendant LLC and, for subject matter jurisdiction, plaintiff invokes federal question jurisdiction due to claims under the federal trade secrets statute, supplemental jurisdiction over several state law claims, and, in addition diversity jurisdiction.

But, as with almost every complaint (it sometimes seems) involving an LLC claiming diversity jurisdiction in federal court, the Plaintiff failed to plead diversity jurisdiction correctly.

Under these circumstances, where the claimed diversity jurisdiction is not the sole basis for the court’s subject matter jurisdiction, will the Court, sua sponte, order that this issue be addressed?

(See answer: here.)




Charlie Chaplin in Modern Times

Charlie Chaplin in Modern Times

In a  recent post about the infrequency of civil trials in the United States, I asked whether this infrequency is a good or a bad thing. I then answered my own question, suggesting that we need to draw a distinction between “no trial” because of negotiated settlements (very often a good thing) and “no trial” due to overwhelming expense or the insurmountable hurdles our system sometimes places in the way of meritorious claims (a very bad thing).

I again illustrate this post with a picture from Charlie Chaplin in Modern Times because one might see the problem as being the mechanization of our justice system. Thus, instead of treating legal claims as coming from people invoking their legal rights, courts seem to consider them as just case files, numbers, statistics, to be processed and disposed of as quickly and cheaply as possible.

An excellent and experienced civil trial lawyer brought two recent examples in Hennepin County District court to my attention. They highlight the risk that meritorious cases are being thrown out of court on “summary judgment.” In both cases, defendants were awarded summary judgment by the trial court judge. The defense wins were appealed, then reversed, and then the cases were remanded for trial. After remand, the plaintiffs won jury verdicts in both cases. One of the cases even had a plaintiff pro se appellant, previously covered on Minnesota Litigator (here).


arrows-221459_1280Update (11/21/2016): As predicted, below. One of my less impressive predictions, imio (“in my immodest opinion”). 

Update (January 7, 2016): Immediately below nearly a month ago, I wondered, “And will the fool’s errand go still further with an appeal?” We now know the answer as of today: Yes.

I wish the best of luck to appellant and his lawyers at the distinguished law firm of Anthony Ostlund Baer & Louwagie even while I put their chances of winning on appeal near zero. If their appeal is successful, I will have to eat crow for having called the attack on the AAA a “fool’s errand” but it will be with a smile on my face in light of my serious misgivings about arbitration as a general matter.

Update (December 9, 2015): Chalk up a successful prediction of Minnesota Litigator (see below and linked order). Owens’ quixotic attack on the American Arbitration Association failed quite quickly and decisively. (Who, I wonder, footed the bill for that doomed misadventure? And will the fool’s errand go still further with an appeal?)

Update (November 18, 2015): The American Arbitration Association’s reply brief is linked here. It has been a while since I have inched out on a limb and predicted how a motion or a case will go. I am feeling bold. I predict the AAA will win and, in doing so, will reinforce my deep reservations about arbitration as a desirable dispute resolution process in most legal disputes.

Update (November 10, 2015): I challenge anyone to read the attached memorandum and to contest that Mr. Timothy Owens was dealt a disturbing and, in fact, shocking injustice. (On the other hand, other allegations about Mr. Owens might lower one’s sympathy for him a notch or two.)

Unfortunately for Mr. Owens, there is some ambiguity as to whether the AAA (who removed one of three arbitrators, post-award under opaque circumstances (described below)) can and should be held liable or whether Hennepin County Judge Thomas Sipkins (who vacated the arbitration award due to the removal of the arbitrator) was responsible.

And, in the latter case, maybe the correct route to justice was via appeal of Judge Sipkins decision, which Mr. Owens successfully sought and then, for reasons unknown, dropped (perhaps a variant of the “settle and sue” model at work?).

Original post (August 25, 2015)“The problem with arbitration is that it is arbitrary…,” Minnesota Litigator has repeatedly quoted a senior seasoned trial lawyer as having said years ago.

Complain all you’d like about our state and federal court systems but the process is sanitized by sun-light (by which I mean that it is public, it is more subject to public scrutiny). And the judges do not charge the litigants by the hour. And there are fairly comprehensive rules of procedure and evidence that have been developed and refined over literally hundreds of years (and courts generally apply them in more or less uniform fashions while, with arbitrators, who knows (and there is no recourse if rules are not followed)?).


Poker ChipsI recently posted about a weak employment case in which the plaintiff, Mr. Schaefer, unsuccessfully argued that the horse-play at work, which included kicking and hitting fellow employees in the groin, constituted “sexual abuse,” warranting a longer statute of limitation (six years) than Minnesotans get for the intentional tort of battery (two years).

Only a week later Mr. Schaefer’s lawyer, Adrianna Shannon, knocked the ball out of the park for other clients of her firm, Curtis Anthony and Pro Logistics.

Anthony sold his business to Qwinstar. Qwinstar sued Anthony, claiming that he had misrepresented what he was selling. Sr. U.S. District Court Judge Richard H. Kyle, Sr. (D. Minn.) awarded summary judgment to Anthony and Pro Logistics on their counterclaim to the tune of $800,000 plus atttorneys’ fees (yet to be determined).

The variety of experience in the job of a civil litigator can be a great thing. While dramatic reversals of fortune can be traumatic and losses can be humiliating, almost all trial lawyers have several on-going unrelated cases at any one time so, over time, a disappointment in one case is likely to be balanced by a win in another. Congratulations to §hannon Law this time around at least!


Minnesota Litigator - Stacks_of_moneyUpdate (November 16, 2016): Unlike the Minnesota Supreme Court’s decision discussed below, drawing a sharp distinction between “discovery depositions” and “depositions to preserve trial testimony,” the linked decision in the Sorin v. St. Jude lawsuit (discussed previously here) makes clear that “there is no difference between discovery depositions and deposition for use at trial” as far as the federal court for the District of Minnesota is concerned (Decision at p. 6). “Accordingly, if a party wishes to take a deposition prior to trial, standard discovery rules apply, including compliance with the pretrial scheduling order.”

This is great news for lawyers with time on their hands and unfortunate news for clients because the rule drives up the expense of discovery. The rule forces parties to take depositions that otherwise could be made contingent on later developments in a lawsuit (like postponing depositions until after a decision on summary judgment).