• December 20, 2011

Update #2 (December 20, 2011):  This legal malpractice case foundered on causation and the plaintiffs recovered nothing.  They have now been order to pay over $30,000 of the defendants’ costs (and, of course, had to pay their own costs, as well).  Meanwhile, plaintiffs seek reversal before the U.S. Court of Appeals for the Eighth Circuit.  

Update (June 7, 2011):  U.S. District Court Judge Donovan W. Frank (D. Minn.) awards summary judgment to legal malpractice defendants, finding no causation — in a nutshell, his analysis is: “You cannot lose what was never yours to begin with…”  An appeal seems probable.

Original post (September 7, 2010):  In lengthy, messy litigation previously covered by Minnesota Litigator (here), litigants in a hard-fought multi-forum commercial dispute (centering around the sale of a business and related trademark rights) went toe-to-toe in the negotiation of a consent order with regard to who had what rights and, at least from a distance, one party appears to have sought to narrow the rights that it gave the counter-party in negotiation by transmitting the consent order to the Court under a transmittal letter that characterized those rights more narrowly than the language in the consent order itself.

On the other hand, perhaps it was the cover letter and not the underlying consent order that embodied the parties’ agreement?  Either way, the order was dated March 31, 2001 and it is clear that the U.S. Court of Appeals, even while finding some of the lawyering of the prevailing party was perhaps devious, felt that far too much time had passed for Plaintiff Louis E. Kemp.  “For several reasons,” the Court held that Mr. Kemp fell “far short of the exacting standards for after-the-fact equitable relief.” (He sought relief from judgment under Rule 60(d)(3) of the Federal Rules of Civil Procedure.)

First, the Court noted Kemp’s numerous opportunities to raise the issue earlier and his failure to do so.  Second, the Court rejected a key contention of Kemp’s, that the opposing party not only tricked Kemp but, in fact, perpetrated a fraud on the trial court, the prerequisite to relief under Fed. R. Civ. P. 60(d)(3).  This was a particularly hard case to make when the trial court judge (U.S. Dist. Court Judge John R. Tunheim (D. Minn.) affirmatively contradicted the claim.

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