13340224_10209480605038019_6601654577108248746_oUpdate (September 23, 2016)Mysteriously, plaintiff Minnesota Vikings Football Stadium (“MVFS”), having won its lawsuit against Wells Fargo, and the corresponding rights to an injunction and to its attorneys’ fees (claimed to be $655,020.00), has confidentially settled the matter with its erstwhile opponent. And, as part of that settlement, MVFS has withdrawn its claim to its attorneys’ fees. So we will never see Wells Fargo’s response to MVFS’ fee claim nor the Court’s evaluation of it.

Incidentally, I often commute past the usbankstadium (sic) (see photo to the left). The branding of U.S. Bank on the stadium and Wells Fargo immediately across the street are both extremely visible. The >$1 million in combined legal fees were spent on a fight about Wells Fargo’s signage on the roofs of its buildings (only visible from the blimp camera that hovers over football stadiums on game days). How is it possible, in a world in which so many people live in dire circumstances, that corporations can fritter away so much for so little?

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Original post (July 11, 2016)For a battle that took place over a period of six months (late December, 2015 to late June, 2016) about whether or not Wells Fargo could have certain signage near the new Vikings football stadium, the Minnesota Vikings seek $655,020.00 for their attorney’s fees, plus $17,068.21 in costs. Does that sound reasonable to you? Who is to say? How would you know? How would I? How would the U.S. District Court for the District of Minnesota?

That was 2,237 hours of lawyer time, apparently, divided up unequally between six Hinshaw & Culbertson lawyers (senior associate Jessica Magnuson, H&C “capital partner,” Kevin Coan, and newly minted junior associate M. Annie Santos putting in about 2,000 of the 2,237 hours).

It will be interesting to see Wells Fargo’s response. I will go out on a limb and predict that it will NOT include any indication of Wells haircut-33187_640Fargo’s own lawyers’ hours or billing rates. (If one side argues that the other side’s fees are excessive, wouldn’t it be a relevant metric to divulge how much your side’s fees were? I don’t see that very often (if ever) in responses to fee petitions.) I will go out on a thicker limb and also predict that Wells Fargo will not respond by saying, “Looks good to us! They beat us fair and square and, although we respectfully disagree with the outcome, this lean and mean adversary earned every penny claimed!”

And, finally, I won’t hazard a prediction of whether we will have another example of the proverbial “Minnesota hair-cut” (examples here, here, here, and here).  Anyone want to hazard a guess as to how this will play out?

Not me. But while on the subject, I will take the opportunity to raise some questions for general reflection:

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Slimed Person cropped SLIMEReferee Jason T. Hutchison, Judicial Referee, heard this matter on January 28, 2016, February 16, 2016, March 4, 2016, March 11, 2016, March 16, 2016, March 21, 2016, March 28, 2016, March 29, 2016, April 14, 2016, April 18, 2016, April 26, 2016, April 27, 2016, April 29, 2016, May 19, 2016, May 20, 2016, June 1, 2016, June 8, 2016, June 9, 2016, June 13, 2016, June 15, 2016, June 16, 2016, and July 25, 2016.

That is, Referee Hutchinson appears to have presided over TWENTY-TWO hearings in a single housing court proceeding.

The dispute centered on an apartment building located at 3057 14th Avenue South, Minneapolis, Minnesota (“the Property”).

To my mind, reading Referee Hutchison’s order from this past week, the only thing that remains to be decided is this: what is more distasteful: roach, bedbug, or mice infestation (as defined here) or Mr. Stephen Frenz, the owner of the Property? In addition to an award of attorneys’ fees against him, Frenz faces potential punitive damages, administrative repercussions, etc., etc.

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intersection crossroad

The Minnesota Court of Appeals described this week’s decision in Range Development v. Star Tribune:

This case stands at the intersection of common-law defamation, the First Amendment right to free speech, and the parameters of a journalist’s privilege, if any, under the First Amendment. (Opinion at p. 6.)

In other words, this case is where the action is, where the laser scalpel of judicial oversight cuts dangerously close to the nerves of our democracy.

In our misinformation age, the line between protected speech and libelous speech is a hot area of law in the U.S. and worldwide. Critical information occasionally mixed up with confusing and destructive lies bombards us daily, with mind-numbing potential for both leading and misleading.

A Star Tribune reporter, Paul McEnroe, wrote an article about Range Development Company of Chisholm, Minnesota (Range). Range owns an assisted living center, Hillcrest Terrace Assisted Living Facility in Chisholm (“Hillcrest”). In January 2013, apparently, a tenant there was found “unresponsive,” urine-soaked, in a messy room in which the carpet was soaked in urine. The ambulance service submitted a government mandated report under the state Vulnerable Adults Act. Before the public release of the report, McEnroe got a copy of the report from a confidential source and published an article about the report online and in print in the Star Tribune. Range strongly suspected two individuals of filing what it claims is a false report.  Range believed these two individuals have vendettas against it.

If the report contained false and damaging statements about Range or its facility, should the reporter be compelled to divulge his source(s) (presumably so that Range can sue that person or persons for defamation)? Should confidentiality be the rule always? Never? Only under certain circumstances? What circumstances?

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400px-Scream_crosathorianImagine intentionally alarming the public with fabricated dangers of a company’s life-saving medical devices in the hope that the company’s share price will fall and you will make massive profits by placing bets on the company’s falling share price.

This is, in fact, what St. Jude Medical has accused “short-seller,” Muddy Waters Consulting (“MW”) of having done in a recently filed lawsuit in the U.S. District Court (D. Minn.) assigned to U.S. District Court Judge Donovan W. Frank. Appalling?

On the other hand, in a democratic society that cherishes free speech, we have to be on guard against large companies, with the power to rain down multi-millions of dollars of legal fees, trying to obliterate critics or silence the bearers of low opinions or bad news.

The recently filed St. Jude case will be an interesting one to follow. St. Jude is represented by some of the best lawyers in the United States. We will see who the defendants are able to line up to fight them.

Will MW bring a motion to dismiss based on our “anti-SLAPP” statute? That is, will defendants argue that they were engaged in constitutionally protected “public participation” and that St. Jude is trying to kill the messenger?

This is serious high-stakes business for St. Jude Medical, which is fighting back both in court and in public relations. Computer forensics expert, Mark Lanterman of Computer Forensic Services  [ed. note/full disclosure: a Minnesota Litigator sponsor] , is reported to have said that there is “not much meat on the bone” of MW’s claims (that MW made through its related entity MedSec).

In an unrelated defamation suit, Mr. Charles M. Bolton recently learned that he could not avoid being a defendant in a defamation lawsuit by claiming that his on-line blog ranting against an ex-girlfriend was constitutionally protected “public participation.

There is no question that we have and must have limits to “free speech.”

St. Jude Medical’s 33-page complaint is a very well written indictment of MW and the people behind it. I see dark clouds ahead over muddy waters. This is just the beginning, of course, of what might be an arduous and very long campaign. Anyone who follows civil litigation knows that initial impressions can prove inaccurate over time.

 

 

Minnesota Litigator - baseball player

Update:  

It’s a time of transition.  The Twins season is winding down.  And the Minnesota Supreme Court is issuing the last of its decisions from the past term.

Two important decisions were just released:  Gams and Cole.  These cases decide how two rules mesh – rule 5.04(a) and rule 60.02.

Rule 5.04(a) was amended in 2013. It now provides that served complaints that are not filed within one year of service are “deemed dismissed” with prejudice.  And rule 60.02 sets out some grounds for vacating judgments, orders and proceedings.

The Gams Court said that rule 60.02 does apply to rule 5.04(a) dismissals.  That is true whether the district court formally dismisses the case, or whether the action is deemed dismissed without any court action.  (The Gams Court suggested that ordering an express dismissal is the better practice.)

Gams also addressed the showing that must be made to warrant rule 60.02 relief.  Rule 60.02 relief depends on four factors – the Finden factors.  They are:  1) a reasonable claim on the merits, 2) a reasonable excuse for a party’s failure to act, 3) due diligence after notice, and, 4) the absence of substantial prejudice to the opponent.

Over the years, there has been much confusion about how the Finden factors apply.  Must all four factors be shown?  Is relief available if two or three factors are shown?  The Gams Court answered these questions.  All four factors must be shown to win relief.

It may be that a strong showing of one of the Finden factors may balance a weaker showing of another factor.  That has been a theme in some of the prior caselaw, but was not expressly addressed in Gams.

The Gams Court did say the Finden factors are not to be applied mechanically but must take into account “the surrounding facts of each specific case.”

The Court said that the district court has broad discretion in deciding rule 60.02 motions, but that discretion is not unlimited.  The Court stressed that the district court’s findings must be sufficiently detailed to enable appellate review.  The Court found that the findings in Gams were not sufficient, and remanded the case for further review.

The other case just decided – Cole – addressed one of the Finden factors in greater detail:  whether there was a “reasonable excuse” for not acting in time.  The defendant in the Cole case had argued that he did have a reasonable excuse justifying relief because of his counsel’s error; the attorney had missed the rule 5.04 deadline because he did not know that the rule amendment applied to pending cases.  The other side argued that ignorance of the law is not enough and does not establish excusable neglect under rule 60.02.  The Cole Court remanded the case, emphasizing that the district court determination must be “fact-intensive,” and “based on all the surrounding circumstances.”

The Court said that there must be some “specific information” showing that the moving party’s position had merit.  Conclusory allegations in moving papers are not enough to show that, the Court said.

The Cole Court said that mistakes of law (as well as mistakes of fact) may provide a basis for rule 60.02 relief.  This way, the client may not suffer for mistakes of the attorney.  But attorneys must beware:  not all mistakes of fact or law will justify rule 60.02 relief.

So, with Gams and Cole, the Minnesota Supreme Court opened the door a bit to rule 60.02 challenges and also closed it a bit.  Rule 60.02 relief is available for 5.04 dismissals.  But all four Finden factors must be shown to obtain relief.  The factors are not to be applied mechanically but must take into account all the surrounding circumstances, on a case by case basis.

Original post:

Minnesota civil litigators all know that amended rule 5.04 – effective June 2013 – says that a served complaint is “deemed dismissed”  with prejudice if not filed within one year.  (That is true unless the parties stipulate to extend the filing period.)

But what does it mean if an action is “deemed dismissed” under the rule?  Can the district court vacate the dismissal under rule 60.02 if the tests under that rule are met?  And how?  Those questions are posed by two appeals heard by the Minnesota Supreme Court earlier this year: Cole v. Wutzke, and Gams v. Houghton

In both cases, the district court threw out the served complaint because the complaint was not filed in time.  And, in each case, the Minnesota Court of Appeals reversed and remanded for consideration of the rule 60.02 factors.    

The two cases have some different procedural backgrounds, and present somewhat different issues.  But, boiled down to the basics, the two appeals taken together present two questions:

  • Whether rule 60.02 applies at all to rule 5.04 dismissals, and
  • Whether, if rule 60.02 applies, an attorney’s failure to comply with rule 5.04 can constitute “excusable neglect” under rule 60.02(a) to justify the vacation of a dismissal.

Some of the arguments made by the parties address: 1) whether or not rule 5.04 creates an expectation of finality, as statutes of limitations do; 2) whether there is a distinction between “ignorance of the law” and misinterpretation or “misapprehension” of it under rule 60.02; and, 3) whether all four of the rule 60.02(a) factors must be shown, or whether a showing of three factors can suffice. 

The Supreme Court heard oral argument on both cases in April 2016. A decision could come at any time. 

 

 

Car Collision

Creative Commons: https://goo.gl/A9aGg3

As we all know too well during this presidential election year, our society is at odds with itself on seemingly countless issues.

U.S. immigration policy could be the most complex and divisive issues that we wrestle with.

The vast majority of us recognize that neither extreme — completely open borders, completely closed borders — is either desirable or remotely realistic. But laying down a principled, persuasive, or even comprehensible middle course seems literally impossible.

And this unbelievably difficult puzzle is even more complicated because we cannot “start fresh.” Whatever we decide to do going forward, if or when we change policy, we cannot simply ignore that we have over 11 million illegal immigrants in the United States right now.

I haven’t told you anything yet that you don’t already know. But questions about how we best address the 11 million+ illegal immigrants already here get even more complicated and baffling the deeper you go.

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Bill Griffith's "Zippy the Pinhead"

Bill Griffith’s “Zippy the Pinhead”

Back-to-back examples this week of sorts of silliness that consume some percentage of the busy lives of U.S. civil litigators….

Harriet Ziefert has written several hundred children’s books. She and her publisher, Blue Apple, believe that a Minneapolis-based book distribution company, Consortium Book Sales and Distribution, L.L.C. (“Consortium”) and/or Consortium’s parent company, Perseus, is infringing on several of Ms. Ziefer’s copyrights.

Blue Apple and Consortium were allegedly parties to a distribution agreement that included an arbitration clause providing for arbitration of disputes in Minneapolis. Blue Apple and Perseus were parties to another agreement called an “agency agreement.” Blue Apple and Ms. Ziefert brought a claim under the arbitration clause of the distribution agreement against Consortium and its owner, Perseus.

This seems straightforward, doesn’t it? Either Consortium and Perseus infringed Ms. Ziefert’s copyrights or they did not, right? And the parties agreed to resolve the dispute through arbitration, right?

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Bill Griffith's "Zippy the Pinhead"

Bill Griffith’s “Zippy the Pinhead”

I once faced a situation in which a judge ruled that adversaries had to go to trial to determine when Party A’s building, which was built partially on Party B’s land by a predecessor owner, constituted a “permanent” trespass or a “continuing” trespass. The judge believed that the distinction was important for determining the application of the statute of limitation.

None of the lawyers involved in the dispute understood how this question could be answered by a trial. I jokingly suggested we call the building to testify.

The week before the scheduled trial, the lawyers jointly asked if we could discuss with the judge what the judge imagined we would be doing at trial. What evidence did the court need? What witnesses would testify? The judge refused to discuss the upcoming trial. The parties ultimately negotiated a compromise to avoid a proceeding that made no sense to anyone involved in the dispute other than the judge.

Few people outside of our business appreciate or understand how absurd the lives of civil litigators can be at times. I was reminded of this by the most recent fracas in Unitherm v. Hormel, a case that has been the subject of several posts over the past year or two. As trial approaches, the parties seem to dispute whether this is a fight about how to cook bacon or about an oven or about nothing at all….

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What is discoverable and relevant in U.S. civil litigation surprises many people who do not have experience in U.S. civil litigation. Most Americans do not appreciate how deeply our law allows adversaries to dig into the other side’s papers, emails, text messages, diaries, journals, post-it notes, doodle sketchbooks and hard drives. Foreigners are often even more shocked, if not incredulous.

At the same time that our system allows deep dives into lives of litigants, our law carves out nearly sacred protection for the civil litigator’s playbook. We get broad access into underlying evidence in a lawsuit, but not the lawyer layer. Evidence generated in the litigation itself — the thoughts and strategies of the lawyers, their communications with their clients — is extremely protected from discovery in our state and federal legal systems.

Questioning whether this extraordinary protection is fair or whether it makes sense would represent a full frontal attack on the U.S. adversarial justice system itself. I am way too stupid? smart? cowardly? busy? pragmatic to wage that battle. But even accepting this high-level of protection from civil discovery as a given, there are still  difficult questions that lawyers and courts need to answer. What, exactly, is “attorney work product”?

A recent decision of U.S. District Court Judge Susan R. Nelson (D. Minn.) sheds some light.

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Photo by Doug Wheller

Photo by Doug Wheller

Welcome to Options Residential…People Deserve the Opportunity to Fully Experience Life.

Many of us have experienced a nightmare of being paralyzed, immobilized, and mistreated — from mere teasing and threats to, in the worst instances, pursuit, abuse, or torture. The combination of powerlessness, apprehension and pain is horrifying. Consider Poe’s “The Pit and the Pendulum.”  Some researchers suggest that such dreams might be caused by a subliminal awareness, in our somnolent brains, that we cannot move. Our sleeping bodies are, in effect, paralyzed. Luckily, for most of us, the ghastly familiarity of these fleeting terrors gives way to a flood of relief when we wake up, orient ourselves in our cozy beds, shudder, and sink comfortably back into some other dreamworld.

Michael Sorenson lived the nightmare. He will not wake up from it.

Having suffered a traumatic brain injury during a motorcycle accident, unable to care for himself, confined to a wheelchair in a residential adult foster care facility, Mr. Sorenson found himself placed with a mentally ill woman (“M.R.”) with a history of physical aggression. In May and early June, 2013, M.R.’s several brutal physical attacks on Mr. Sorenson culminated in her dumping a pot of boiling water on Mr. Sorenson, resulting in terrible burns over 35% of his body.

To my mind, the strongest factor in Hennepin County District Court Judge Susan Robiner’s grant of Mr. Sorenson’s motion to amend his complaint to add a punitive damages claim against the defendant, Options Residential, Inc., is that, after M.R.’s late May attacks on Mr. Sorenson, an Options staff member resigned because he “knew there was going to be some confrontation between M.R. and [Sorenson] sooner or later” and he didn’t want to be there when it occurred. The staff member testified that he had raised his concern with two higher levels of supervisors and nothing was done.

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