• March 18, 2015

Scalpel_smallUpdate (March 18, 2015): Eden Prairie-based Datalink sued Perkins Eastman Architects P.C., a New York company, because, it seems, Perkins Eastman kind of sort of ordered a $700,000+ “NetBackup appliance installation and integration project” (“NBU”) from Datalink, but then got buyer’s remorse and paid nothing for the equipment or related services that Datalink provided.

Datalink sued in late 2013. (Here is the complaint.) Soon Datalink’s motion for summary judgment is going to be argued and decided before U.S. Judge Susan R. Nelson (D. Minn.). Does this case sound like a “no-brainer,” a lay-down, an easy win for Datalink, to you? It does to me.

Your business litigation clients with similar situations will likely ask at the outset: How much is this going to cost me? How long is this going to take? Can you guarantee we’ll win?

And you will disappoint them if you answer, “I don’t know. I don’t know. And, no.” These might be the most truthful answers, if not very comforting or informative. Can’t you do better?

I think you can.

Have a look at the docket sheet in the Datalink case. You can tell your client that the certain duration of civil litigation is unknowable but you can and should keep data as to how long other similar cases seem to go, whether your own client’s cases or those involving other lawyers and other firms. You should be able to give them a fairly limited range. This will give your client some peace of mind as to the time-frame they are probably in for.

Note, incidentally, that the docket sheet in the Datalink case reflects no discovery disputes of any kind through the duration of the case. Congratulations to the clients and their counsel. It appears that the costs of this litigation were held down by reasonable lawyering on both sides. If one can get through cases without silly skirmishes, not only are fees and costs lower, they are more easily estimated.

Finally, though, you will likely have to deliver the news to clients that even an apparently easy or “lay-down” case will have unanticipated expenses and will be expensive. Even in the Datalink case, in which Datalink seeks over $700,000, if Datalink is unable to win award of its attorneys’ fees (it hopes to), it won’t come anywhere near a “dollar for dollar recovery.” I expect Datalink’s fees and costs to date exceed $100,000 and could exceed $200,000.

Regardless of the ultimate outcome (because certainty and litigation are mutually exclusive sets), Datalink should have the solace at least of knowing that its march, to date, seems to have been both methodical and efficient (as efficient as can be, that is).

Update (July 22, 2014): (under the headline: Hale yeah!) If you ask people what the verb “hale” means, you will find very few people know the answer. In a previous post (below), I questioned (tongue-in-cheek) whether it is fair to have courts determine the constitutional limits of personal jurisdiction by inquiring whether a litigant has “a deliberate and substantial connection with Minnesota such that [the litigant] could reasonably anticipate being haled into court here.”

Who anticipates being haled anywhere? No one. Ever. Not these days.

By the way, a synonym for “hale” is “haul.” Who anticipates being physically dragged into court? Again, no one. Ever.

(And, for all of you non-lawyers who have read this far (yes, I mean you, Mom), note that “reasonableness” is a special word for lawyers. The opposite of “reasonably anticipating” is not “unreasonably anticipating” it or “not anticipating” it. The use of the word “reasonable” here changes the analysis from a subjective inquiry (“what did the party actually anticipate?”) to a normative inquiry (“what should a party actually anticipate?”).

And, the truth of it is that parties will always be in doubt in marginal cases. The truth of it is that what a party anticipates has nothing to do with it.

Take, for example, the recent case that Minnesota-based Datalink brought against Perkins Eastman Architects P.C., a New York company and the jurisdiction decision by U.S. District Court Judge Susan R. Nelson (D. Minn.).

“Perkins Eastman is not registered to do business in Minnesota, has no employees in Minnesota, no assets in Minnesota, and no registered agent in Minnesota.” Perkins Eastman did not even enter into the contract originally with Datalink or any other Minnesota company. Datalink bought the North Carolina company with whom Perkins Eastman had entered into the original contract.

How could Perkins Eastman have “reasonably anticipated being haled into a Minnesota court”?

Perkins Eastman directed that the appliances be shipped to Datalink in Minnesota, and then chose to store them in Minnesota. That decision was pregnant with the potential for wide-ranging legal consequences.

(emphasis in original).

Really? Something tells me that this jurisdictional pregnancy here was immaculately conceived. Without a doubt, Perkins Eastman had no idea it was getting screwed, in any event. (A jurisdictional incubus?)

Seriously, I agree with Judge Nelson’s decision. As my original post, below, suggests, I am of the opinion that a readjustment of personal jurisdiction constitutional law in the U.S. is long overdue. Perkins Eastman should be able to be sued in Minnesota not because it should have “reasonably anticipated being haled into court” here. It should be able to be sued in Minnesota in that there is no huge hardship and certainly no offense to “traditional notions of fair play and substantial justice” in requiring a multi-national huge architectural firm based in New York to defend a claim brought against it in Minnesota.

Inconvenient? Maybe. But unfair or unjust? No.

Original Post (March 13, 2013) (under the subject line: Announcing The Weird Word Doctrine (No One Anticipates Being Haled Into Court Because We Do Not Know What That Means): Here’s is my proposal:  if you are a civil litigator with what appears to be losing end of a legal argument involving any legal concept that is expressed in archaic language, include a citation in your brief to this blog post (here is how to cite to blogs) at the end of a string cite critical of that legal position.

The idea is this, when courts are dealing with concepts like “the cy pres doctrine,” “lex loci,” “mutatis mutandis,” and on and on, I suggest (only half-jokingly) that courts should ratchet up the scrutiny of their legal analysis a notch or two.

It is as if you go into the tool shed and have to wipe a few inches of dust off of an implement you are considering using.  That blanket of dust should tell you something.  That sedimentary sign might suggest that the tool is no longer up to the task.

The point is that the law must evolve with time as society changes just like language so when legal principles are still articulated in obscure or obsolete words, this might be a “tell,” a sign, that some tuning or calibration is in order.

Take, for example, the recent decision of Sr. U.S. District Court Judge Richard H. Kyle (D. Minn.) tossing out a breach of contract claim by Owatonna-based Viracon against J&L.  J&L, the New York buyer of $1 million+ of Viracon windows, allegedly failed to pay for them. Viracon sued the company, J&L, in Minnesota.  Judge Kyle ruled, however, that J&L did not have “a deliberate and substantial connection with Minnesota such that J&L could reasonably anticipate being haled into court here.”  Viracon’s case was tossed out for lack of personal jurisdiction over J&L.

What the hale?

Minnesota Litigator and other legal luminaries (the U.S. Court of Appeals for the Eighth Circuit, for example) have noted the irony of a legal doctrine based on what one “can reasonably anticipate” when the court itself is pronouncing the rules that set the expectations.  It is a little circular.  (Son: “Dad, can Sis’ do ______ to me?” Dad: “Well, first, we determine whether you can reasonably anticipate that Sis’ can do ______ to you…”)

Furthermore, today no one knows what being haled means, so of course no one anticipates it these days.  We cannot even imagine it because it is incomprehensible.

Let’s rephrase the idea in some more colloquial speech applied to the Viracon facts:  “If a New York company contacts a Minnesota company and asks that company to manufacture $1 million or more of glass, and has the glass delivered, and then the New York company refuses to pay the Minnesota company for the product, do you think it might occur to the New York company that it might get sued in Minnesota?”

Umm, yeah.  I’d think so. And I’d hope so.

The central question, Judge Kyle’s opinion points out, is whether the defendant “has purposefully availed itself of the privilege of conducting activities in [Minnesota] and should, therefore, reasonably anticipate being haled into court [here].”  As for “purposeful availment,” we are getting close, in my view, to application of the weird word doctrine.  It is not clear to me that I have ever purposefully availed myself of the privilege of conducting activities anywhere.  Seriously?  While it is unclear to me that J&L “purposefully availed itself of the privilege of conducting activities in Minnesota,” it is clear that that the New York company knowingly and intentionally entered into a contract to buy glass from a Minnesota company and allegedly stiffed the Minnesota company.  We’re not talking about some internet interaction where intermediaries (technological, commercial, or legal) between buyer and seller were so complex that buyer did not know where seller was located.

We are no longer in a society in which anyone hales anyone or anything anywhere.  In my opinion, we are no longer in a society where it would offend “traditional notions of fair play and substantial justice” for a New York company to be compelled to defend its actions in Minnesota when it is alleged to have stiffed a Minnesota company of $1 million, as J&L was accused to have done.

The word “hale” goes back to the 13th century.  Back then, the trip from New York to Minnesota took people about a year or so.  Until fairly recently, they had to walk.  For the first hundred years of our country’s existence and well into the middle of the last century, it would surely have been a significant, even overwhelming, burden for a New York company to be required to defend a legal claim in Minnesota.  But that simply is no longer the case.

To conclude, I am of the opinion that U.S. jurisprudence on personal jurisdiction leaves something to be desired and the law needs an update.  This decision in Viracon v. J&L is one reason why.

[Incidentally, here was a previous ML post about Viracon that went better for that company.]

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