• March 29, 2019

Minnesota Litigator’s mandate is “news and commentary about Minnesota civil litigation.” It is therefore unsurprising that Minnesota Litigator rarely discusses governmental seizure of private citizens’ real property in communist countries followed, decades later, by the government’s surrender of property back to private citizens.

This has not yet come up in Minnesota civil litigation.

It is therefore quite a coincidence that it comes up this week for Minnesota Litigator, TWICE: first briefly in the interview with Minnesota real property guru, Kevin Dunlevy (below), and now, in a decision by U.S. District Court Judge Susan R. Nelson (D. Minn), dismissing a case brought by Alexis Veljkovic and Nicholas Dimic concerning land seized from their family by the country formerly known as Yugoslavia, then re-privatized (but apparently not back to the family of Alexis Veljkovic and Nicholas Dimic) based on the doctrine of forum non conveniens (Latin, roughly translated: “not this court’s problem, go away”).

U.S. District Court in the District of Minnesota was not the first U.S. forum where Messrs. Veljkovic and Dimic sought relief against the Radisson for its supposed (inappropriate) appropriation of their family’s property. They first sued in federal court in Illinois.

Plaintiffs’ Illinois lawsuit was dismissed based on the doctrine of forum non conveniens. On appeal to the U.S. Court of Appeals for the Seventh Circuit, however, Judge Richard Posner hinted at the possibility of the plaintiffs’ suing the Radisson on Minnesota instead. He did not have to say it twice. The plaintiffs promptly brought suit in Minnesota.

Too bad for them.

The [Minnesota federal] Court has thoroughly reviewed the [the Illinois federal Court] record and is convinced that Plaintiffs’ foreign non conveniens arguments in the present litigation are essentially identical to the foreign non conveniens arguments they presented to the Northern District of Illinois and the Seventh Circuit. Indeed, not only do Plaintiffs use the same complaint in both cases, but Plaintiffs’ briefing on forum non conveniens before this Court is lifted largely from Plaintiffs’ Seventh Circuit briefing….Although Plaintiffs argue that certain Minnesota-specific convenience issues ‘were not explored in the Chicago litigation,’ Plaintiffs do not endeavor to ‘explore’ any Minnesota-specific issues in their briefing before this Court, other than to assert that the outcome of this case should be different because Radisson is headquartered in Minnesota, not Chicago, and that therefore (unnamed) ‘potential witnesses’ and ‘business plans’ must be located here.

Judge Nelson went on to reconsider the arguments, anyhow, from the unique perspective of a Minnesota federal court and, again, bounced Plaintiffs’ lawsuit. In other words, Judge Posner hinted that Plaintiffs might get the proverbial “second bite at the apple” if they were to sue in Minnesota; they went for it and the apple was just as rotten before a Minnesota federal court as it was in Illinois.

If there is a practice pointer here, it might be that judges sometimes cavalierly float litigation strategies. Sometimes this may be helpful. On the other hand, the judges might be extemporizing, they have no “skin in the game,” and lawyers and their clients might want to think twice before investing the money to go explore what might be a second dead-end.


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