• September 24, 2014
"Alice in Wonderland". Licensed under Public domain via Wikimedia Commons - http://commons.wikimedia.org/wiki/File:Alice_in_Wonderland.jpg#mediaviewer/File:Alice_in_Wonderland.jpg

“Alice in Wonderland”. Licensed under Public domain via Wikimedia Commons

Todd Sharkey does not like the officials of the City of Shoreview who rejected his application for a variance, it seems, and the lack of fond feelings might be mutual.

But what I find informative and interesting about his win at the Minnesota Court of Appeals reversing the trial court’s dismissal of his lawsuit is neither his underlying claim nor the defendants’ defenses. What I find informative and interesting is how his case came to be before the Court of Appeals.

Defendants brought a motion to dismiss. In response, Sharkey sought to amend his complaint. The trial court refused to let him amend his complaint finding that he could not amend his pleading since defendants had brought a motion to dismiss.

The question on appeal: is a “motion” a “responsive pleading” such that Sharkey could not amend his complaint “as of right” after defendants filed their motion? Minn. R. Civ. Proc. 15.01.

According to the Minnesota Court of Appeals decision, “No Minnesota case addresses this issue…”

I am a little surprised that there is no case law on this but, on the other hand, we all have to appreciate that there are an infinite number of issues that are so obvious that we should not be surprised that no court has addressed them. (Issue: “Could a criminal defendant’s lewd gesture to law enforcement in response to being given her Miranda rights be reasonably interpreted to be a waiver of her Sixth Amendment right to legal counsel?”)

So, yeah, no, a motion to dismiss is not a “responsive pleading.” The key word is PLEADING. The rules of civil procedure define pleading. Minn. R. Civ. P. 7(a). For good measure the rules separately cover “motions and other papers.” Minn. R. Civ. P. 7(b).

And the fact that a Minnesota trial court held otherwise is the kind of error that it is difficult for civil litigators to foresee or predict.

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