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August 2020


A Misstep on §549.191

Why recent federal courts in Minnesota are wrong in refusing to apply Minn. Stat. §549.191 to punitive-damages claims in federal court

By Jeffrey P. Justman, Tom Pryor and Joshua N. Turner

0820-Money-Vortex-400In 1986, the Minnesota Legislature passed an important tort reform law that limited abusive pleading practices like frivolous demands for punitive damages. The statute that accomplishes this goal, Minn. Stat. §549.191, prohibits pleading punitive damages in an initial complaint, and requires a motion for leave to add them later, upon a heightened showing. For over 30 years, federal courts in Minnesota applied the requirements of this statute to cases brought in federal court—just as Minnesota state courts (obviously) applied the statute to punitive-damages requests made in state court.

Remarkably, however, this well-settled rule has come into question in recent years. Beginning in 2017, some judges have held that §549.191 does not apply in federal court and thus that a party seeking punitive damages in federal court need not satisfy the additional requirements the Minnesota Legislature commanded must be applied in state court. The basis for this about-face? A fractured, 4:1:4 Supreme Court decision in a case called Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co.1 But Shady Grove did not even purport to change how to decide whether state laws should apply in federal court under what is known as the Erie doctrine. 

Now there is a growing class of Minnesota cases holding that §549.191 does not apply in federal court; within the last few months, other judges have joined this chorus, such that one court described the “large majority” of Minnesota federal judges as refusing to apply §549.191 in federal court.2 These courts are wrong. Nothing in Shady Grove changed the Erie analysis, which federal courts in Minnesota have faithfully applied for decades. This article explains why federal courts should buck the recent trend and go back to faithfully applying the decades of precedent holding that §549.191 should be applied in federal court. If federal courts in Minnesota continue to read Shady Grove otherwise, the 8th Circuit should take the opportunity to correct them. 

The legal case for applying §549.191

For over 30 years, section 549.191 has applied in federal courts in Minnesota under the Erie doctrine. 

Since 1986, a party seeking punitive damages in Minnesota cannot do so in its initial pleading.3 Instead, only later may that party move to amend the pleading to claim punitive damages, and when she does, she must make out a prima facie case for punitive damages.4 Passed as part of a major tort reform law, §549.191 creates common-sense gatekeeping rules that help prevent frivolous and abusive pleading practices. 

Since §549.191 was enacted, those faced with punitive damages in Minnesota state courts have universally received the protection §549.191 affords. And for nearly 30 years, those faced with punitive damages in Minnesota federal courts enjoyed the same protections. The reason is simple, and hearkens back to a near-century-old line of cases known as the Erie doctrine. 

As most lawyers learn in law school, the Erie doctrine grew out of Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), and holds that “federal courts sitting in diversity apply state substantive law and federal procedural law.”5 Of course, “classif[ying] a law as ‘substantive’ or ‘procedural’ for Erie purposes is sometimes a challenging endeavor,” and the application of the Erie doctrine has thus presented difficulties for the Supreme Court and lower federal courts.6 But the fundamental purposes of the doctrine have remained constant: discouraging “forum-shopping” and ensuring equitable “administration of the laws.”7 Thus for example, the Erie doctrine frowns upon interpretations of state laws that would create incentives for different results between federal and state courts within the same state. 

Erie’s framework requires courts to apply a two-part test. First, courts examine whether a given state law (like §549.191) directly conflicts with any federal law or rule.8 If the state and federal laws may be reconciled, federal courts should apply them both. If they are incompatible, however, the court will apply the federal law or rule so long as it does “not abridge, enlarge or modify any substantive right” created by state law.9 

For nearly three decades, federal district courts in Minnesota have applied Erie’s two-part test to hold that §549.191 applies to punitive-damages claims in federal court, just like it does to the same claims in state court.10 One of the first and most persuasive district court decisions came from Minnesota’s longest-tenured federal judge, Edward Devitt. In Kuehn v. Shelcore, Inc., Judge Devitt determined that there was no “direct conflict” between section 549.191 and any Federal Rule of Civil Procedure, because all potentially conflicting rules could “peacefully co-exist” with section 549.191, just as the substantially identical Minnesota Rules of Civil Procedure do with section 549.191.11 Further, not applying section 549.191 in federal court would encourage forum-shopping. Judge Devitt persuasively applied the Erie doctrine to conclude that the “accident of diversity of citizenship” would not permit a plaintiff to achieve a result in federal court that would otherwise be unavailable to it in Minnesota state court.12 

The 8th Circuit, while not directly analyzing §549.191 under Erie, has implicitly approved the analysis from Kuehn and the decisions that followed it. In both Gamma-10 Plastics v. American President Lines, Ltd.13 and Bunker v. Meshbesher,14 the 8th Circuit concluded that §549.191 applied in federal court and affirmed lower court decisions that denied leave to amend to add punitive damages claims because the movants in those cases did not satisfy §549.191.15 Bunker, for example, held that the “clear and convincing” standard of proof under §549.191’s sister statute, §549.20, is “implicitly incorporated into the requirement that the movant present a prima facie case of willful indifference” set forth in §549.191.16 Gamma-10 analyzed the “policy considerations” in §549.191—to “prevent frivolous punitive damage claims by allowing a court to determine first if punitive damages are appropriate”—and held that federal courts “may not allow an amendment [to add punitive damages] where the motion and supporting affidavits do not reasonably allow a conclusion that clear and convincing evidence will establish the defendant acted with willful indifference.”17 Neither Bunker nor Gamma-10 expressly cited the “Erie doctrine,” but their analysis implicitly applied it. 

What Bunker and Gamma-10 did implicitly, other federal courts applying analogous statutes from other states have done expressly. That is, §549.191 has analogs in other states, and most federal courts addressing these analog statutes also apply them in federal court under Erie. For example, federal courts in Colorado, Florida, Idaho, and North Dakota have held that statutes materially similar to §549.191 are substantive under Erie, and therefore apply in federal court.18 Only a minority of federal courts have gone the other way.19 To date, there are no published federal appellate decisions from these states that are on point.20 

Only recently have a handful of federal decisions in Minnesota refused to apply §549.191 in state court, and they have done so based on an incorrect reading of Shady Grove. 

Despite the weight of authority supporting the application of §549.191 in federal court, recent Minnesota district court cases have held that Erie precludes the application of §549.191 to punitive-damages requests in federal court.21 According to these cases, §549.191 conflicts with the requirement in Federal Rule of Civil Procedure 15(a) that motions for leave to amend should be “liberally” granted “when justice so requires.”22 These cases have justified their departure from the district’s historical approach to §549.191 by casting Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co.23 as a recent “change” in Erie jurisprudence. They are incorrect.

As mentioned, Shady Grove is a fractured, 4:1:4 decision; it dealt with whether a New York law that altogether prohibited class actions seeking statutory penalties could be applied in federal court. Justice Scalia, writing for four justices, applied the “familiar” two-step framework from the Court’s Erie decisions, asking whether the “federal and state rules can be reconciled” and if they cannot, “whether the Federal Rule runs afoul of §2072(b)[, the Rules Enabling Act].”24 Justice Scalia’s plurality concluded that Rule 23 and the New York law could not be reconciled because Rule 23 created a “categorical rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action,” while the New York law on the other hand categorically prohibited a class action if the plaintiff sought a certain type of remedy, even if all of Rule 23’s criteria were otherwise satisfied.25 

The other two opinions in Shady Grove—Justice Stevens’s concurrence and Justice Ginsburg’s dissent—employed the same framework as Justice Scalia’s opinion but more strongly emphasized a federal court’s responsibility to be sensitive to important state interests and regulatory policies.26 Justice Stevens agreed that New York’s class action statute directly conflicted with Rule 23, whereas Justice Ginsburg would have limited Rule 23 to governing procedural aspects of class litigation while leaving room for New York’s statute to control the size of a class-action monetary award.27 Notably, none of Shady Grove’s three opinions purported to be a sea change in how courts apply the Erie doctrine. Instead, they simply disagreed about how the familiar, two-part test should resolve the interplay between Rule 23 and the New York law. 

Shady Grove was not viewed as a landmark decision in federal practice or procedure at the time. Not surprisingly, therefore, Minnesota decisions immediately following it continued to apply section 549.191 in federal court.28

But that all changed in 2017, when some judges began to hold that Shady Grove changed the landscape and required that §549.191 not apply in federal court under Erie. Magistrate Judge Noel, for example, seized upon language in Shady Grove and explained that §549.191 and Federal Rule 15 “both address the same subject matter,” i.e. amending a complaint.29 Citing language from both Justice Scalia’s and Justice Stevens’s opinions, Magistrate Judge Noel concluded that Rule 15 “answers the question in dispute,”30 and is “sufficiently broad to control the issue before the court.”31 And he concluded that Rule 15 and §549.191 “conflict because the Minnesota procedural rule would not allow for the amendment absent affidavits establishing prima facie evidence of deliberate disregard for the rights and safety of others, where the federal rule has no such procedural requirement.”32 Other courts have followed Magistrate Judge Noel’s analysis, relying on similar language from Shady Grove.33 Still others, however, have hewed to the decades-old understanding that §549.191 and Rule 15 can peacefully coexist.34 These conflicting decisions have led to “uncertainty in the law governing the pleading of punitive damages in federal cases in this District.”35 

The Minnesota district courts that have characterized Shady Grove as modifying the Erie doctrine, and that refuse to apply §549.191 in federal court—including the “large majority” of recent decisions36 —are wrong. 

Federal courts refusing to apply §549.191 after Shady Grove are wrong. 

The opinions refusing to apply §549.191 to punitive-damages requests in federal court are wrong, for five reasons. 

First, they incorrectly assume that Shady Grove changed the two-part Erie test for determining when a state law may be applied as “substantive” in federal court. All three opinions in Shady Grove, by their own terms, applied the Supreme Court’s long-established Erie analysis, not a new test or standard.37 There has therefore been no change in law that would justify a departure from longstanding precedent in the District of Minnesota. 

Second, these courts incorrectly apply Erie’s “direct conflict” test that Judge Devitt first applied 30 years ago, and that each opinion embraced in Shady Grove. Judge Devitt was right then, and is right today: nothing in Federal Rule of Civil Procedure 8 or 15 directly conflicts with §549.191. 

As to Rule 8, which simply requires a pleading to contain “a short and plain statement of the claim” and “a demand for the relief sought,” section 549.191 allows the pleading of punitive damages but prescribes the manner and timing of pleading them. Nothing in Rule 8 requires the initial pleading to state a claim for punitive damages if punitive damages will be sought. Moreover, §549.191 is not unique among state laws imposing burdens on pleading certain claims. Minnesota Statute §544.42, for example, requires “an affidavit of expert review” before a professional malpractice claim can be pleaded, and both the 8th Circuit and Minnesota district courts apply §544.42’s requirement in federal court.38 The result under Rule 8 should be no different for punitive-damages claims. 

As to Rule 15, which states that amendment shall be allowed when “justice so requires,” §549.191 allows amendment of pleadings to add punitive damages when certain requirements are satisfied; it can peacefully coexist with Rule 15. It takes no leap of imagination to conclude that the Minnesota Legislature found that justice would require amendment only when the requirements of §549.191 are satisfied. Federal Rule 15 governs the amendment of pleadings generally; it does not answer the much narrower and more specific question of what a plaintiff must do to satisfy a motion for leave to amend. Courts should not be too eager to find a direct conflict between state laws and federal rules where none exists, especially in matters involving “important state interests and regulatory policies.”39 Federal Rule 15(a)(2) and section 549.191 can peacefully coexist. 

Third, as these courts interpret Shady Grove, it would silently overrule many other of the Supreme Court’s Erie decisions, without so much as a word acknowledging that sea change. The decisions holding that §549.191 cannot apply in federal court reach that conclusion by using the “does it answer the same question” test from Justice Scalia’s opinion in Shady Grove. They reason that because §549.191 purportedly “answers the same question” as Rule 15, it cannot apply in federal court. But almost every rule would answer a question implicated by a related state statute or law, including some that the Supreme Court has long concluded do not conflict with related state rules. Courts must not give such a literal reading to Justice Scalia’s test, lest it implicitly overrule some of the Supreme Court’s most longstanding Erie cases.

As but one example, consider the Supreme Court’s opinion in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 555 (1949), a preeminent Erie opinion authored by Justice Jackson that is still good law. Cohen considered whether a New Jersey statute that imposed heightened pleading requirements for shareholder derivative cases could be applied in federal court. Even though then Rule 23 (now Rule 23.1) “deal[t] with plaintiff’s right to maintain such an action in federal court”—and thus under a literal reading of Justice Scalia’s test, would have “answered the question in dispute”—the Supreme Court held there was no “conflict with the statute in question” such that both Rule 23 and the statute “all may be observed by a federal court.” 337 U.S. at 556. If the recent Minnesota decisions were correct in how broadly to interpret Justice Scalia’s “does the rule answer the question in dispute” test, then Shady Grove’s plurality opinion would have implicitly overruled Cohen and years of other longstanding precedent, without a word. Shady Grove should not be interpreted in that way.40

Fourth, these courts ignore the disparate results created by finding a “direct conflict” between §549.191 and Federal Rules 8 and 15, when there is no conflict between §549.191 and the identical language of the Minnesota Rules of Civil Procedure. Like its federal counterpart, Minnesota Rule 8.01 also requires a pleading to contain “a short and plain statement of the claim” and “a demand for the relief sought.” Minnesota Rule of Civil Procedure 15.01 also requires the court to permit amendments “when justice so requires.” Minnesota courts have never struggled to enforce these liberal pleading and amendment standards and §549.191’s requirements. Neither should federal courts. 

Finally, these courts ignore the obvious implications of refusing to apply section 549.191 in federal court: forum-shopping and inequitable administration of the laws. Many years ago, Judge Devitt recognized that applying §549.191 advances the twin aims of the Erie doctrine: discouragement of forum-shopping and avoidance of inequitable administration of the laws.41 Holding plaintiffs to the same requirements in both federal and state court means that there is no tactical advantage to choosing one forum over the other where punitive damages are concerned. Plaintiffs will be unable to game the system by filing frivolous claims for punitive relief in federal court, knowing that they cannot evade Minnesota’s common-sense limitations on such practices. Applying section 549.191 in federal court also means that plaintiffs will be unable to obtain a different result in federal court than they otherwise would be able to reach in state court. Erie has long sought to eliminate the possibility of “[un]equal administration of justice in coordinate state and federal courts sitting side by side.”42 The only way of achieving that result is to continue the longstanding practice of applying §549.191 in federal court. By contrast, if the “large majority” of recent Minnesota decisions continues not to apply §549.191 in federal court, we can only expect savvy plaintiffs to file frivolous punitive-damages claims in federal court, hoping those claims will exert undue pressure on defendants to settle. 

Conclusion

Shady Grove did not reflect a sea change in the Erie doctrine, but recent federal courts refusing to apply §549.191 in federal court have incorrectly concluded otherwise. Federal district courts in Minnesota should continue to follow the long-established precedent rather than the new outliers.43 To the extent that federal courts in Minnesota continue the recent trend of not applying §549.191 in federal court, the 8th Circuit should take up an appropriate case and correct them.  


JEFF JUSTMAN is a partner at Faegre Drinker. He is a Chambers-recognized appellate litigator, representing clients in appellate courts throughout the country. He also defends public companies, and their officers and directors, in securities litigation. 

TOM PRYOR is an associate and member of Faegre Drinker’s business litigation practice in Minneapolis. He represents clients on a range of matters, including resolving complex litigation disputes, navigating administrative proceedings and pursuing appeals. 

JOSH TURNER is a litigator at Faegre Drinker, practicing in courts across the country at both the trial and appellate level. He works with clients on a variety of matters, from commercial and transactional disputes to mass tort defense. 



Notes

1 559 U.S. 393 (2010).

2 E.g., The Orange Rabbit, Inc. v. Franchoice, Inc., 2020 WL 2191947, at 3 (D. Minn. 5/6/2020) (citing cases).

3 See Minn. Stat. §549.191.

4 Id.

5 Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 416 (1996).

6 Id.

7 Hanna v. Plumer, 380 U.S. 460, 468 (1965).

8 See Burlington N. R. Co. v. Woods, 480 U.S. 1, 4–5 (1987) (explaining that the court must first “determine whether, when fairly construed, the scope of a Federal Rule… is sufficiently broad to cause a direct collision with the state law or, implicitly, to control the issue before the court, thereby leaving no room for the operation of that law” (internal quotation marks and citation omitted)).

9 28 U.S.C. §2072(b); see also Hanna, 380 U.S. at 463–65. 

10 A representative sample of such cases includes: Bhatia v. 3M Co., 323 F. Supp. 3d 1082, 1103 (D. Minn. 2018) (Frank, J.); Target Corp. v. LCH Pavement Consultants, 960 F. Supp. 2d 999, 1010 (D. Minn. 2013) (Keyes, J.), aff’d, 2013 WL 12320416 (D. Minn. 10/30/2013); Freeland v. Fin. Recovery Servs., Inc., 790 F. Supp. 2d 991, 994 (D. Minn. 2011) (Leung, J.); Healey v. I-Flow, LLC, 853 F. Supp. 2d 868, 87273 (D. Minn. 2012) (applying §549.191 in federal court prevents a plaintiff from “brandishing” a claim for punitive damages “as a tool for promoting an advantageous settlement”); Berczyk v. Emerson Tool Co., 291 F. Supp. 2d 1004, 1008 (D. Minn. 2003); Hern v. Bankers Life Cas. Co., 133 F. Supp. 2d 1130, 1134-35 (D. Minn. 2001); Olson v. Snap Prods., Inc., 29 F. Supp. 2d 1027, 1034 (D. Minn. 1998); Ulrich v. City of Crosby, 848 F. Supp. 861, 866 & n.5 (D. Minn. 1994)  (applying §549.191 addresses the “need under the precepts of Federalism, to prevent forum shopping”); Sec. Sav. Bank v. Green Tree Acceptance, Inc., 739 F. Supp. 1342 (D. Minn. 1990); Zeeland Indus., Inc. v. de Zeeuw, 706 F. Supp. 702, 705 (D. Minn. 1989) (MacLaughlin, J.) (“the failure of courts to apply Minn. Stat. §549.191 in federal diversity actions has the potential to significantly influence choice of forum,” and thus applying it in federal court).

11 Kuehn v. Shelcore, Inc., 686 F. Supp. 233, 234 (D. Minn. 1988).

12 See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); see also Kuehn, 686 F. Supp. at 234 (holding that the substantial variation in tactical choices “must be eliminated by applying Section 549.191 in this federal diversity action”).

13 32 F.3d 1244, 1254-55 (8th Cir. 1994).

14 147 F.3d 691, 696 (8th Cir. 1998).

15 A third 8th Circuit decision agreed in dicta that section 549.191 applies in federal court. See Popp Telecom, Inc. v. Am. Sharecom Inc., 361 F.3d 482, 491 n.10 (8th Cir. 2004).

16 147 F.3d at 696 (citing Swanlund v. Shimano Indus. Corp., 459 N.W.2d 151, 154 (Minn. App. 1990)).

17 32 F.3d at 1255 (citation omitted).

18 See, e.g., Jones v. Krautheim, 208 F. Supp. 2d 1173, 1174-80 (D. Colo. 2002) (surveying cases and concluding that Colorado Statute §13–64–302.5(3) should be applied in federal court); Wilson v. Edenfield, 968 F. Supp. 681, 683-84 (M.D. Fla. 1997) (Florida Statute § 768.72 is “substantive and can therefore be applied to federal court in federal actions”); Windsor v. Guarantee Trust Life Ins. Co., 684 F. Supp. 630, 633 (D. Idaho 1988) (Idaho statute §6-1604(2) “is substantive in nature and therefore controlling in federal court in a diversity case”); Ruiz v. Quiktrip Corp., 826 F. Supp. 1284, 1285 n.1 (D. Kan. 1993) (Kansas Statute § 60-3702 “is substantive in nature and thus governs in diversity cases in Kansas”); McHugh v. Jacobs, 450 F. Supp. 2d 1019, 1021 (D.N.D. 2006) (N.D. Cent. Code §32–03.2–11(1) “provides a substantive right and, therefore, applies to this federal court action”). 

19 See, e.g., Metcalf v. Beverly Health and Rehab. Servs., 32 F. Supp. 2d 1307, 1307-08 & n.1 (N.D. Fla. 1999) (not applying Florida Statute §768.72); Belkow v. Celotex Corp., 722 F. Supp. 1547, 1551 (N.D. Ill. 1989) (interpreting Ill. Rev. Stat. ch. 110, §2–604.1 as procedural and not applying it); Pruett v. Erickson Air-Crane Co., 183 F.R.D. 248, 250-252 (D. Or. 1998) (reading the Federal Rules of Civil Procedure as “sufficiently broad” enough “to cause a direct collision with” Or. Rev. Stat. §18.535 and thus not applying it).

20 There are at least two federal appellate courts outside the 8th Circuit to have addressed this issue in unpublished or otherwise vacated opinions. In Cohen v. Office Depot, Inc., 184 F.3d 1292 (11th Cir. 1999), vacated in part on other grounds, 204 F.3d 1069 (11th Cir. 2000), the 11th Circuit held that Florida Statute §768.72, which prohibits the pleading of punitive damages in an initial complaint, did not apply in federal courts because it conflicted with Federal Rule of Civil Procedure 8(a)(3). In Native American Services, Inc. v. Givens, 213 F.3d 642 (9th Cir. 2000) (unpublished table opinion), however, the 9th Circuit affirmed an order denying leave to amend under Idaho Code §6-1604(2), because it found “no fault” with the determination that a party had failed to comply with §6-1604(2). Judge Devitt noted that this Idaho statute is “virtually identical” to Minn. Stat. §549.191. Kuehn, 686 F. Supp. at 235.  

21 See, e.g., In re Bair Hugger Forced Air Warming Devices Prod. Liab. Litig., 2017 WL 5187832, at *4 (D. Minn. 7/27/2017) (hereinafter “Bair Hugger”); Selective Ins. Co. of S.C. v. Sela, 353 F. Supp. 3d 847, 859 (D. Minn. 2018) (analyzing the analogous requirements for pleading bad-faith denial of insurance benefits under Minn. Stat. §604.18).

22 See Fed. R. Civ. P. 15(a)(2) (noting that the “court should freely give leave [to amend] when justice so requires”).

23 Supra note 1.

24 559 U.S. at 398, 410. 

25 Id. at 398.

26 Id. at 422 (Stevens, J., concurring); id. at 437 (Ginsburg, J., dissenting).

27 Id. at 446.

28 Bhatia v. 3M Co., 323 F. Supp. 3d 1082, 1103 (D. Minn. 2018) (Frank, J.); Target Corp. v. LCH Pavement Consultants, 960 F. Supp. 2d 999, 1010 (D. Minn. 2013) (Keyes, J.), aff’d, 2013 WL 12320416 (D. Minn. 10/30/2013); Freeland v. Fin. Recovery Servs., Inc., 790 F. Supp. 2d 991, 994 (D. Minn. 2011) (Leung, J.); Healey v. I-Flow, LLC, 853 F. Supp. 2d 868, 87273 (D. Minn. 2012) (applying §549.191 in federal court prevents a plaintiff from “brandishing” a claim for punitive damages “as a tool for promoting an advantageous settlement”);

29 In re Bair Hugger Forced Air Warming Devices Prod. Liab. Litig., No. MDL152666JNEFLN, 2017 WL 5187832, at *3–4 (D. Minn. 7/27/2017).

30 Id. (quoting Shady Grove, 559 U.S. at 393 (Scalia, J.)).

31 Id. (quoting Shady Grove, 559 U.S. at 421 (Stevens, J.)).

32 Id. at 4.

33 See, e.g., Rogers v. Mentor Corp., No. 12-CV-2602 (SRN/SER), 2018 WL 2215519, at *6 (D. Minn. 5/15/2018) (Rau, Mag. J.), aff’d sub nom. Urbieta v. Mentor Corp., No. CV 13-1927 ADM/LIB, 2018 WL 3475484 (D. Minn. 7/19/2018) (Montgomery, J.); Shank v. Carleton Coll., No. 16-CV-1154 (PJS/HB), 2018 WL 4961472, at *4 (D. Minn. 10/15/2018) (Bowbeer, Mag. J.), aff’d, 329 F.R.D. 610 (D. Minn. 2019).    

34 Order Dated 3/8/2018, Inline Packaging, LLC v. Graphic Packaging Int’l, LLC, No. 15-cv-3183 (ADM/LIB) (D. Minn.) [Doc. No. 534] (Brisbois, Mag. J.)

35 Benner v. Saint Paul Public Schools, I.S.D. #625, 407 F. Supp. 3d 819, 825 (D. Minn. 2019). 

36 Supra note 2.

37 There is some debate regarding whether Justice Scalia’s plurality or Justice Stevens’s concurrence controls. Under the Marks doctrine, most federal courts have found that Justice Stevens’s concurrence controls. See Davenport v. Charter Commc’ns, LLC, 35 F. Supp. 3d 1040, 1050 (E.D. Mo. 2014) (collecting cases and quoting McKinney v. Bayer Corp., 744 F. Supp. 2d 733, 747 (N.D. Ohio 2010), for the proposition that “Justice Stevens’ opinion is the narrowest and, thus, controlling opinion”). 

38 Sandhu v. Kanzler, 932 F.3d 1107, 1116 (8th Cir. 2019) (“Glow’s failure to comply with Minn. Stat. §544.42. mandates dismissal of this claim.”); Afremov v. Sulloway & Hollis, P.L.L.C., 922 F. Supp. 2d 800, 817 (D. Minn. 2013) (Schiltz, J.) (“Afremov’s failure to comply with §544.42 means that all of Afremov’s claims against Harrington and Lonergan must be dismissed.”).

39 Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 428 n.7 (1996).

40 See Fargo Women’s Health Center v. Schafer, 18 F.3d 526, 539 (8th Cir. 1994) (refusing to interpret one Supreme Court decision “as having overruled sub silentio longstanding Supreme Court precedent”).

41 Kuehn, 686 F. Supp. at 235; see also Hanna v. Plumer, 380 U.S. 460, 468 (1965).      

42 Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941).

43 See, e.g., Rilley v. MoneyMutual, LLC, 2018 WL 6920764, at *5-*7 (D. Minn. 12/13/2018).


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