[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…

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.


There are almost no advocates in our country or, for that matter, in any industrialized country on earth today, that do not recognize (1) the great strengths of free market capitalism, on the one hand, and (2) the impossibility of unregulated free market capitalism on the other hand.

Regulation is a given. The ubiquitous and spirited disagreements about regulations are matters of degree: how much regulation is too much? We are the same way about “free speech” — universally embraced but not entirely free and hotly disputed at the outer limits (e.g., “flag-burning”)).

And just as we all have to put up with a lot of sickening speech out of respect for our ideal of “free speech,” we have to put up with relentless scamming out of respect for free market capitalism.

We received a recent mailer whose duplicity appalled us.

Is there really no possible regulation and no realistic recourse against devious and shameless hucksters? Must we allow such things as unavoidable and inseparable aspects of our economic system?


In 1979, Dustin Hoffman and Meryl Streep starred as a divorcing couple in Kramer vs. Kramer, the heart-rending story of a custody battle. The recent Minnesota case of Kremer vs. Kremer, in contrast, is about mere money.

If you are married, think back to those exciting days just before your wedding — the catering crisis averted, the anxiety over whether the crazy relatives (or exes) will show up, the quiet dreamy unreality of the minutes and hours before one of your life’s most momentous events…

Did you have a “destination wedding”? If so, maybe many of those hours were spent stressing out over weather reports, logistics, and coordinating travel schedules and other details?

But if you were Michelle Beth Kremer in March, 2001, I suspect the antenuptial agreement that your fiancé handed to you three days before your destination wedding in the Grand Cayman Islands (several friends and family already en route) was particularly memorable.

Talk about a buzzkill!


David Schlesinger, an employee rights lawyer for the Minneapolis employment powerhouse law firm of Nichols Kaster published a remembrance of his lawyer father this week in MinnPost.

Attention Minnesota Civil Litigators (and those who love them): If you have not read it, go read it.

The punishing expense of civil litigation, the inherent arbitrariness and uncertainty of it (and, thus, the injustices we witness from time to time), the moral ambiguity of it (at times), can be dispiriting for those of us (most of us, I’d say) committed to making a meaningful and positive difference in our work.

In our darker moments, our efforts for our clients might seem mundane or trivial in the grand scheme, or even worse, pointless. Mr. Schlesinger’s article highlights how our work, even if not always glamorous or headline-worthy, can be nothing short of inspiring, heroic, and deeply gratifying.

If you find yourself thinking about objecting to the admission of evidence at trial because it is not “the best evidence,” close your eyes, take three slow long “cleansing” breaths (in for count to 4, hold for 2, out on a count of 6), and think again.

If you find yourself appealing a bad result at trial based on a court’s denial of your “best evidence” objection, be prepared to lose your appeal (or at least that part of it).


Minneapolis Star Tribune File Photo

I never met or knew Larry Leventhal and I am pretty sure we are unrelated. But for my twenty years of practice in civil litigation in Minnesota, I have gotten telephone calls intended for Larry. Once, a judge told me, “You look like your father,” thinking I was Larry Leventhal’s son.

A few times, over the years, I reached out to Mr. Leventhal, hoping to get to know him because I had learned of his long history of activism on behalf of Native Americans and dedication to progressive causes, Unfortunately, I never had the chance to meet Larry. I am sure he had many more important things to do than meeting up with me, a stranger who only shared the same last name, the same profession, and, perhaps, a similar sense of justice.

I note in Mr. Leventhal’s obituary that U.S. District Court Judge Michael J. Davis is quoted as saying, “What we need is 1,000 more Larry Leventhals” and I would think this is all the more pressing in our current political climate.