Bench + Bar of Minnesota

Notes & Trends – December 2023

Criminal Law


• Authorized use of force: No duty to retreat when acting in defense of another. Appellant and his stepbrother were socializing in their garage when the victim drove by. Appellant’s stepbrother made a gesture at the victim. Later that evening, the victim entered the garage and was sweating, angry, and breathing heavily. At one point, the victim thought the other two were talking about him and threatened to take appellant’s gun and shoot him. The victim then choked the stepbrother, tackled him, and began either smothering him or choking him again while on top of him. Appellant’s stepbrother was pleading for his life and for appellant to shoot the victim. Appellant fired one round at the victim, who died from the gunshot. Appellant was charged with second-degree intentional and unintentional murder. During his jury trial, the district court instructed the jury that appellant had a duty to retreat or avoid the danger if reasonably possible. Appellant was found guilty of unintentional murder. 

The Minnesota Court of Appeals holds the district court’s duty to retreat instruction was erroneous and was not harmless, entitling appellant to a new trial. The authorized use of force statute, Minn. Stat. §609.06, subd. 1, includes the right to use reasonable force “in resisting or aiding another to resist an offense against the person.” Id. at subd. 1(3). The statute does not explicitly include a duty to retreat before using reasonable force, but case law is clear that such a duty exists in self-defense situations but not in when one is defending their dwelling. The Minnesota Supreme Court has not yet determined whether the duty to retreat applies to the right to defend others. 

The court notes that requiring a duty to retreat in a defense-of-others situation would negate appellant’s statutory right to defend another being threatened with bodily harm. The court cites reasoning from other states, including that the position of the third person with respect the ability to retreat should be the focus, as opposed to the person acting in defense of the third person, and that requiring retreat would prevent the defender from using the reasonable force statutorily permitted. The court holds that there is no duty to retreat when acting in defense of another.

Here, the state argued to the jury that appellant did not retreat, so it cannot be determined whether the jury found appellant guilty because he used unreasonable force or because he failed to retreat. Thus, the district court’s erroneous instruction was not harmless. Reversed and remanded for a new trial. State v. Valdez, A22-1424, 2033 WL 6799150 (Minn. Ct. App. 10/16/2023). 

• Possession by an ineligible person: State is not required to prove defendant knew ammunition was operable. Appellant was arrested for violating a no-alcohol probationary condition. During a search of his person, police found a magazine with seven bullets in appellant’s pant pocket. The magazine was rusty, and the bullets were tarnished. Appellant argued he did not think he was prohibited from possessing the ammunition because he did not believe it to be operable. The district court prohibited the defense from arguing the state was required to prove appellant knew the ammunition was operable. A jury found appellant guilty of being an ineligible person in possession of ammunition. On appeal, appellant argues the district court violated his constitutional right to present a complete defense by erroneously interpreting the mens rea requirement. 

Minn. Stat. §609.165, subd. 1b(a), makes it felony for a person convicted of a crime of violence to, among other things, possess ammunition. The definition of ammunition includes “ammunition components that are not operable as ammunition.” Minn. Stat. §609.02, subd. 17. The ineligible possession statute is silent as to mens rea, but the Supreme Court has previously held that the statute requires the state to prove that a defendant knowingly possessed a firearm and that a defendant may be convicted of possessing a firearm where the firearm is inoperable. The court find this same mens rea requirement applies to possession of ammunition. 

The court rejects appellant’s argument that the mens rea required under section 609.165, subdivision 1b(a), includes both that the state has to prove appellant knowingly possessed ammunition, and that he knew the ammunition was operable. Appellant did not face a strict liability offense, because the state was required to prove he knew he possessed ammunition. The district court did not err in declining to add a second mens rea requirement, and the court declines to add a second requirement, as inserting mens rea into a statute that does not otherwise impose strict liability is generally frowned upon by the courts.

Appellant admitted at trial he knowingly possessed ammunition. This was sufficient to satisfy the mens rea element of MS 609.165, subdivision 1b(a). Appellant’s conviction is affirmed. State v. Lyons, A22-1744, 2023 WL 6965041 (Minn. Ct. App. 10/23/2023). 

Samantha Foertsch
Bruno Law PLLC

Stephen Foertsch
Bruno Law PLLC


Employment & Labor Law


• Firefighter disability; health coverage required. A White Bear Lake firefighter who was injured on duty is entitled to continuing health insurance coverage. Affirming a decision of the Office of Administrative Hearings, the Minnesota Court of Appeals held that the determination of the Public Employees Retirement Association (PERA) that the injured claimant qualified for duty disability coverage under Minn. Stat. §135.01, subd. 41, was a “reasonable” interpretation of the statutory provision. City of White Bear Lake v. Kriegshauser, 2023 WL 5838798 (Minn. Ct. App. 9/11/2023) (unpublished). 

•  Arbitral authority; award upheld. An arbitrator’s decision that a hospital’s use of non-union contract workers violated its collective bargaining agreement with a union was upheld. On remand from the Minnesota Supreme Court, the court of appeals held that the arbitrator’s award “drew its essence” from the contract and rejected the employer’s claim of “inherent managerial rights.” Hennepin Health Systems, Inc. v. AFSCME Minn. Counsel 5, 2023 WL 6967666 (Minn. Ct. App. 10/23/2023) (unpublished).


• DOL weighs overtime proposal. A proposal by the U.S. Department of Labor to expand overtime coverage for white-collar employees is pending before the agency. The measure, initiated under the Fair Labor Standards Act, 29 U.S.C. 820a, 8201. et seq., would increase the standard statutory threshold and the highly compensated employee total annual compensation eligibility entry level for workers who are exempt under the “white collar” provision as well as provide automatic annual adjustments every same year.

Under the proposed rule, the standard five-day pay level would be substantially raised from $684 to $1,059 weekly, which equates with $57,096 annually. This would be an increase of more than 50% from the current rate of $35,868 per hour. The proposal also would extend the total compensation level for high-end employees from $107,432 to $143,988.

The DOL states that the two regulatory changes would result in an additional 3.6 million employees being eligible for 1.5x pay for overtime work. Business groups oppose the proposal on grounds that it will increase costs and lead to higher consumer pricing to absorb these greater expenses.

Marshall H. Tanick
Meyer, Njus & Tanick


Environmental Law


•  Minnesota district court stays challenge to Minnesota’s vehicle emissions standards. In August a District of Minnesota court issued an opinion granting a portion of a motion to dismiss arising from a challenge to Minnesota’s vehicle emissions standards for greenhouse gases by staying the case pending resolution of a similar challenge before the D.C. Circuit. 

Plaintiffs, composed of the Cean Fuels Development Coalition, Minnesota Soybean Growers Association, ICM, Inc., Minnesota Service Station & Convenience Store Association, and National Association of Convenience Stores, challenged emissions rules instituted by the Minnesota Pollution Control Agency (MPCA) that govern greenhouse gas emissions for motor vehicles. Plaintiffs asserted that the MPCA’s rules were preempted by two federal statutes: (1) the Clean Air Act (CAA), which requires the Environmental Protection Agency (EPA) to set national vehicle emissions standards; and (2) the Energy Policy and Conservation Act of 1975 (EPCA), which directs the National Highway Traffic Safety Administration to set national fuel-economy standards. 

Under the CAA, states are expressly preempted from creating their own emission standards. However, the state of California is allowed to apply for a waiver of preemption from the EPA because it had its own emissions program in place when Congress enacted the CAA. The CAA allows other states to adopt California’s standards as long as their standards are identical to California’s and provide at minimum two years of lead time to automakers. This exception is often referred to as the “California Waiver.” Minnesota is one of 17 states to adopt some or all of California’s emission standards for vehicles. 

Similar to the CAA, the EPCA contains an express preemption provision, prohibiting any state from adopting or enforcing their own fuel economy standards. However, unlike the CAA, the EPCA does not provide an exception to its express preemption clause for California or states that adopt California’s standards.

In December 2020, the MPCA published proposed rules that incorporated by reference California’s low-emission vehicle (LEV) and zero-emission vehicle (ZEV) standards. These rules were adopted by the agency in July 2021 and are set to take effect on 1/1/2024 for vehicle model year 2025. Plaintiffs sued in March 2023, seeking to enjoin the enforcement of Minnesota’s LEV and ZEV rules. Count I of their complaint alleged that the Minnesota rules are preempted by EPCA, and Count II alleged that the California Waiver is unconstitutional per the equal sovereignty doctrine, and as a result the Minnesota rules are preempted by the CAA.

In response to the two preemption arguments, the MPCA filed a motion to dismiss the complaint with the argument that the plaintiffs’ injuries were not traceable to the Minnesota rules, the injuries were not capable of redress by the district court, and the district court lacked jurisdiction over Count II because Section 307 of the CAA requires that challenges to final EPA actions be filed in a United States Court of Appeals. In the alternative, the defendants moved for the court to stay the case until a similar case before the D.C. Circuit was resolved. 

The court agreed with the MPCA that a stay of proceedings was appropriate for a few reasons: (1) there are comparable constitutional issues and questions of law before the D.C. Circuit in Ohio v. EPA, No. 22-1081 (D.C. Cir. 5/12/2022) and there is potential for the decision from the D.C. Circuit to “narrow and simplify” the issues before the court in this case; (2) the stay of proceedings would conserve judicial resources because the issues would be more extensively briefed by the 35 states participating in Ohio v. EPA; (3) there would be little impact on the length of the case because it is in its early stages, discovery has not started, and a trial date has not been set; (4) any prejudice to plaintiffs is minimal because the federal emissions standards, which also affect plaintiffs, are similarly as stringent as the Minnesota rules at issue in this case, and (5) a temporary stay is unlikely to cause incremental injury to plaintiffs because automakers have already finalized their plans for their model year 2025 vehicles. Clean Fuels Development Coalition v. Kessler, D. Minn. (8/24/2023) Slip Copy 2023, WL 5487498. 

• Minnesota Court of Appeals affirms approval of lake drainage tile project in Stevens and Grant counties. In a case primarily turning on county ordinance interpretation, the Minnesota Court of Appeals affirmed Grant County’s grant of a conditional use permit (CUP) to neighboring Stevens County. The CUP approved a subsurface drainage tile project to control lake water levels and mitigate flooding impacts. 

The proposed project stemmed from concern about the high-water conditions of Silver Lake, which would frequently cause flooding and service interruptions and threatened damage to surrounding farmland. Silver Lake sits in both Stevens and Grant Counties, Minnesota. Stevens County proposed to construct a subsurface tile outlet that would increase the flow of water out of Silver Lake and into a neighboring lake located entirely in Grant County. Stevens County submitted a CUP application, pursuant to the direction of Grant County officials, to the Grant County Board of Commissioners seeking approval of the project. Stevens County’s CUP was approved with myriad conditions. Following the grant of the CUP, Stevens County appealed via a writ of certiorari, contending that (1) it never needed a CUP for the project; (2) the application was not properly reviewed by the Grant County Planning Advisory Commission before approval; and (3) alternatively, conditions on the CUP were unreasonable, arbitrary, and capricious. 

The court rejected Stevens County’s first argument. It reasoned that the project required a CUP because it was classified as a conditional use pursuant to the Grant County Shoreland Management Ordinance. The court found some credence in Stevens County’s position that Grant County was unclear in identifying which ordinance provision necessitated a CUP for the project. However, the court held that multiple provisions of the Grant County ordinance nonetheless required a CUP for the project. 

The court also rejected Stevens County’s second argument that a lack of review by the Grant County Planning Advisory Commission rendered the CUP void. All parties agreed that the commission did not review the CUP application. The court found that a Grant County ordinance provision regarding commission review was directory, which meant that Stevens County needed to show that bypassing commission review resulted in prejudice. Stevens County failed to make this showing, leading the court to conclude that even though the Grant County board “did not follow the process outlined in the ordinance,… the board’s failure to follow this process, which did not prejudice Stevens County, did not invalidate the CUP.”

Finally, the court found that the CUP conditions were reasonable, supported by the record, and related to the project—except for condition two, which required Stevens County to commit to a road construction project. Specifically, condition two required that “[b]oth Stevens and Grant County will coordinate and commit to a road project to be constructed within the 5 year road program…” The court explained that while the purpose of the CUP application was to preserve road use, the application was for a subsurface tile project, not a road project. The court agreed with Stevens County that condition two was unreasonable, arbitrary, and capricious and remanded the case with instructions for the Grant County board to reissue the CUP without condition two. In the Matter of Stevens County for a Conditional Use Permit, No. A23-0159, 2023 WL 5696623 (Minn. Ct. App. 9/5/2023).


• EPA removes “emergency” affirmative defense provisions from Title V operating permit program regulations. In July the U.S. EPA published a final rule removing the “emergency” affirmative defense provisions from the federal Title V operating permit program regulations. EPA has directed state permitting programs with emergency affirmative defense provisions to submit revisions to their rules consistent with the final rule or request an extension by 8/21/2024.

The Clean Air Act (CAA), codified at 42 U.S.C. 7401 et seq., is the comprehensive federal law that regulates air emissions from stationary and mobile sources and seeks to protect human health and the environment from emissions that pollute ambient, or outdoor, air. 

In 1990, Congress amended the CAA, adding Title V of the Act, set forth at 42 U.S.C. §§7661 to 7661f, which established a national operating permit program for certain stationary sources of air pollution. The first set of regulations, finalized in 1992 and codified at 40 CFR part 70, governed state operating permit programs and directed states to develop and submit to the EPA programs for issuing operating permits for major and certain other stationary sources of air pollution. In 1996, the EPA promulgated a second set of regulations, codified at 40 CFR part 71, which outlined the federal operating permit program. Every source regulated under the Act must have an operating permit, and each permit must contain emissions limitations and standards that set forth how much of which air pollutants a source is allowed to emit. 

The EPA first promulgated the emergency affirmative defense provisions when it finalized its Title V regulations for state operating permit programs in 1992 and in the regulations for the federal operating permit program in 1996. The emergency affirmative defense provisions, located in 40 CFR 70.6(g) and 71.6(g), protected facilities from liability for Title V air permit violations that occurred during emergency situations.

These provisions allowed stationary sources to assert an affirmative defense in enforcement actions brought for noncompliance with technology-based emission limits in their Title V permits by demonstrating, among other things, that any excess emissions occurred because of an “emergency,” as defined in the regulations. EPA defined an emergency as “any situation arising from sudden and reasonably unforeseeable events beyond the control of the source, including acts of God, which situation requires immediate corrective action to restore normal operation, and that causes the source to exceed a technology-based emission limitation under the permit, due to unavoidable increases in emissions attributable to the emergency.” 

The emergency affirmative defense provisions are not required program elements. States have never been obligated to include the §70.6(g) affirmative defense provision in their part 70 operating permit programs. Similarly, although the emergency affirmative defense provision is located within the “Permit Content” section of the part 70 and part 71 regulations, the EPA does not consider the provision to be a required permit term. Thus, the EPA considers the emergency provision to be a discretionary element of both state permitting programs as well as individual operating permits.

The EPA previously proposed repealing the affirmative defense in 2016 but did not finalize the removal. The Biden administration renewed the proposal to repeal the defense in March 2022. In its final rule, the EPA explained that the emergency affirmative defense provisions, which are a discretionary element of both state permitting programs as well as individual operating permits, “are inconsistent with the EPA’s interpretation of the enforcement structure of the [Act] in light of prior court decisions from the U.S. Court of Appeals for the D.C. Circuit.” The EPA also stated that removal of the provisions is consistent with other recent EPA actions involving affirmative defenses and would harmonize the EPA’s treatment of affirmative defenses across different programs under the Act.

According to the EPA, the removal of emergency affirmative defense provisions will not restrict a source’s ability to defend itself in an enforcement action, since sources can instead assert affirmative defenses based on malfunctions, which were not addressed in this final rule.

EPA’s final rule took effect on 8/21/2023. Shortly afterward, on 9/19/2023, SSM Litigation Group, whose members include the American Petroleum Institute, the Corn Refiners Association, and the Council of Industrial Boiler Owners, filed a lawsuit challenging the rule in the U.S. Court of Appeals for the District of Columbia Circuit. “Removal of Title V Emergency Affirmative Defense Provisions from State Operating Permit Programs and Federal Operating Permit Program,” 88 Fed. Reg. 47029 (2023).

• EPA publishes final Section 401 Water Quality Certification Improvement Rule. In late September, the EPA published the final 2023 Clean Water Act Section 401 Water Quality Certification Improvement Rule (2023 rule), to replace and update regulations outlining procedural requirements for water quality certifications under Section 401 of the Clean Water Act (CWA). 40 C.F.R. §121. The 2023 rule replaces a 2020 rule on Section 401 certification, issued by EPA under the Trump administration, which generally narrowed the scope of section 401 certifications. 

Section 401, 33 U.S.C. §1341, requires an applicant for a federal permit of a project that “may result in a discharge” into waters of the United States to first obtain a certification from the state or tribe where the discharge will occur that verifies the proposed discharge will comply with applicable state or tribal water quality requirements. Section 401 also requires the certifying authority to grant or deny the water quality certification within one year or waive its certification rights. Furthermore, Section 401 allows the certifying authority to impose conditions upon the certification of the project necessary to ensure compliance with applicable state/tribal water quality requirements.

The 2023 rule includes several changes from the 2020 rule. For example, the new rule requires an applicant to request a pre-filing meeting with the certifying authority before filing the certification request. In addition, the 2023 rule specifies that certification requests must include a copy of the federal permit application submitted to the agency, or a copy of a draft permit, and any readily available water quality-related materials that informed the development of the application or the draft federal permit. Certifying authorities may also define other necessary elements for a proper request for certification. If the certifying authority does not do so, the 2023 rule lists seven default elements that must be included in the certification request, elements that EPA intended to result in an efficient, predictable, and transparent certification process.

Regarding the scope of review that may be undertaken by the certifying authority, the 2023 rule removes language from the 2020 rule that had limited states’ or tribes’ oversight to “discharges” associated with federally approved projects. In its place, the 2023 rule allows certifying states or tribes to more broadly consider issues related to “water quality-related impacts.” However, the rule clarifies that the certifying authority may only consider the adverse water quality-related impacts from the activity subject to certification that may prevent compliance with the state’s water quality requirements. Thus, certifying authorities cannot deny certification or impose conditions to address impacts from the activity that do not adversely affect water quality, or conditions to protect waters that are not impacted by the activity.

Regarding the statute’s requirement that a certification must be granted “within a reasonable period of time (which shall not exceed one year),” the 2023 rule allows the certifying authority to collaborate with the federal agency to establish categorical reasonable periods of time for certification requests. If the state and agency cannot reach an agreement, the length of a “reasonable period of time” will default to six months.

Once a certifying authority issues its decision, the 2023 rule limits federal review of the decision to determining whether the certifying authority conformed with public notice procedures and acted within a reasonable period of time. 

The final 2023 rule became effective on 11/27/2023. 2023 Clean Water Act Section 401 Water Quality Certification Improvement Rule, 88 Fed. Reg. 66558 (9/27/2023).

Jeremy P. Greenhouse, Cody Bauer, Ryan Cox (not pictured), Vanessa Johnson, and Molly Leise – Fredrikson & Byron P.A.; Jake Beckstrom – Vermont Law School 2015


Family Law


•  Even in the absence of a motion to dismiss, a court must dismiss a grandparent’s petition for visitation if the grandparent cannot establish the factors for visitation under Minn. Stat. §257C.08. After Ronald Smith’s (grandfather) daughter died, the daughter’s husband, Brian, remarried to Katherine, and Katherine adopted Brian’s children. In 2020, grandfather filed for grandparent visitation under Minn. Stat. §257C.08, subd. 1 with Brian and Katherine’s children. The district court denied grandfather’s petition for visitation, determining that awarding visitation with the children would interfere with the parent-child relationship. Four months later, grandfather moved for grandparent visitation under Minn. Stat. §257C.08, subd. 1 for a second time. The district court again denied grandfather’s petition. Grandfather then moved a third time for grandparent visitation under Minn. Stat. §257C.08, subd. 1. Grandfather served discovery related to his motion. The parents moved for a protective order prohibiting grandfather from taking depositions and moved to quash grandfather’s subpoenas. Grandfather moved to compel discovery and enforce his subpoenas. The district court dismissed grandfather’s petition for visitation and denied grandfather’s motion to compel and enforce subpoenas since there was no longer a pending action.

On review, the Minnesota Court of Appeals affirmed, holding that the district court must dismiss a grandparent’s petition for visitation if the grandparent cannot establish the factors for visitation under Minn. Stat. §257C.08. The court of appeals analyzed the language of Minn. Stat. § 257C.08, subd. 8(b) and found that the statute used mandatory language and did not require a motion. Accordingly, the court of appeals refused to read a requirement for a motion into the language of subdivision 8(b). Since the district court found that grandfather did not establish the factors for visitation under Minn. Stat. §257C.08, subd. 1, the court of appeals affirmed the district court’s dismissal of the grandfather’s petition under subdivision 8(b). Because the district court dismissed the petition, the court of appeals held that the district court did not abuse its discretion in denying grandfather’s motion for discovery since no claims or defenses remained in the case. Smith v. Kessen, ___ N.W.2d ___, A23-0151, 2023 WL 6545267 (Minn. Ct. App. 10/9/2023).

• Minn. R. Civ. App. P. 103.01, sub. 1 does not require service of a notice of appeal on a guardian ad litem who was discharged after the district court issued the order. In 2017, Javonda Jones and Andrew Alexander had a child named K.J. In 2020, K.J.’s paternal great aunt and uncle, the Blakeys, filed an ex parte petition for temporary third-party custody of K.J, which the district court granted. The Blakeys then filed for permanent third-party custody of K.J. Alexander and his parents intervened in the case. The district court appointed a guardian ad litem, ordering that the guardian ad litem “shall” be a party for six months, but that the appointment order could be extended. After a hearing, the district court granted Jones sole legal and physical custody of K.J. In 2021, the referee approved a stipulation between Jones and Alexander for the two of them to share joint and physical custody. After an evidentiary hearing, the district court dismissed the Blakeys’ petition for third-party custody and later discharged the guardian ad litem. The Blakeys filed an appeal of their dismissal of their custody petition in January 2022. In September 2022, the Blakeys served the guardian ad litem program and the guardian ad litem formerly assigned to the case with a notice of appeal. The Alexanders moved to dismiss the appeal on the ground that they failed to timely serve the guardian ad litem with notice of appeal within the 60-day appeal period. The court of appeals dismissed the Blakeys’ appeal, holding that the guardian ad litem was a party to the case because her appointment was mandatory. The court of appeals concluded that the guardian ad litem was an adverse party, so the appealing party was required to serve the guardian ad litem to maintain jurisdiction.

On review, the Minnesota Supreme Court reversed. The Supreme Court first held that after the district court ordered the dismissal of the guardian ad litem, the guardian ad litem no longer was a party to the matter. The Supreme Court reasoned that since the guardian ad litem had fulfilled the duties and obligations assigned by the court and the district court did not preserve any rights or duties to participate in the litigation, the guardian ad litem no longer had a right to control the proceedings or make a defense and thus was no longer a party. Then, the Supreme Court held that Minn. R. Civ. App. P. 103.01, subd. 1 only requires service of the notice on parties that remain in the action on appeal. Accordingly, the Supreme Court held that the Blakeys were not required to serve the notice of appeal on the discharged guardian ad litem.

Two justices dissented, noting that guardians ad litem fulfill an integral role in our court systems—protecting children’s best interests and speaking to the court on behalf of children. The dissent distinguished between a discharge of the guardian ad litem’s duty to continue investigating and providing reports on the child’s best interests, and a discharge of the guardian ad litem as a party to the case. Blakey v. Jones, ___ N.W.2d ___, A22-0098, 2023 WL 7173545 (Minn. 11/1/2023).

M Boulette
Taft Stettinius & Hollister LLP

Laura Kvasnicka
Taft Stettinius & Hollister LLP


Federal Practice


• Waiver of right to arbitration; inconsistent actions. Where the plaintiff filed a complaint seeking a preliminary injunction, permanent injunction, and declaratory relief; lost its motion for a preliminary injunction; participated in mediation and discovery proceedings and only filed a demand for arbitration and sought to stay all proceedings pending arbitration; the district court denied the motion to stay; and the plaintiff appealed, the 8th Circuit found that even if the claims were arbitrable, the right to arbitration was waived when the plaintiff sought permanent injunctive relief and did not seek to arbitrate its claims as soon as its motion for a preliminary injunction was denied. Breadeaux’s Pisa, LLC v. Breckman Bros,, Ltd., 83 F.4th 1113 (8th Cir. 2023). 

• Denial of “ultimate relief” via preliminary injunction denied. In an appeal arising out of the seizure of Mike Lindell’s cell phone relating to the January 6 investigation, the 8th Circuit affirmed Judge Tostrud’s denial of Lindell’s request for a preliminary injunction that would have required the return of the phone, finding that he was not entitled to obtain the “ultimate relief” he sought under the guise of a preliminary injunction. Lindell v. United States, 82 F.4th 614 (8th Cir. 2023). 

• FDCPA; reduced award of attorney’s fees. Affording “substantial deference” to Judge Wright’s finding that requested attorneys’ fees were excessive, the 8th Circuit affirmed an order that had reduced a request for an award of attorney’s fees following an early settlement of an FDCPA action, and described as “absurd” the appellant’s argument that ascertaining the “reasonable” fees in this case by reference to fees awarded in similar FDCPA cases ran afoul of the lodestar method. Beckler v. Rent Recovery Sols., LLC, 83 F.4th 693 (8th Cir. 2023). 

• Limited depositions of attorneys permitted. In a case arising out of the murder of a child who had been the subject of a CHIPS proceeding, Magistrate Judge Docherty denied the defendants’ motion to preclude the deposition of an assistant Dakota County attorney, but limited the scope of the deposition and indicated that he would “preside over the deposition and… rule on any objections in real time.” Hart ex. rel. Hart v. Cnty. of Dakota, 2023 WL 5899127 (D. Minn. 9/11/2023). 

Magistrate Judge Foster denied a third-party law firm’s motion for a protective order to prevent the deposition of one of its attorneys who had conducted an investigation relating to an employment discrimination case, finding that the Shelton standard (Shelton v. Am. Motors Corp., 805 F.3d 1323 (8th Cir. 1996)) did not apply where the attorney was not litigation counsel, the attorney’s investigation was not work product, and the defendants had waived any privilege by disclosing the attorney’s report and relying on the report as part of their defense, but found that the privilege had not been waived regarding the “legal opinions” the attorney provided to the defendants. Thomas v. Marshall Pub. Schs., ___ F. Supp. 3d ___ (D. Minn. 2023). 

• Order requiring foreign defendant to be deposed in Minneapolis affirmed. Applying a “very deferential” standard of review, Judge Tunheim affirmed an order by Magistrate Judge Leung that required the designees of the German corporate defendant to appear for their depositions in Minneapolis, also finding that the Hague Convention was “not the exclusive and mandatory procedure for obtaining foreign discovery.” Hazelden Betty Ford Found. v. My Way Betty Ford Klinik GmbH, 2023 WL 6318164 (D. Minn. 9/28/2023). 

n Fed. R. Civ. P. 62.1; no indicative ruling absent motion. Where the defendants filed a letter request for leave to file a motion for reconsideration of an order denying their motion to compel arbitration, and then filed a notice of appeal from that order, Judge Frank found that he lacked jurisdiction over the letter request because of the pending appeal, and that no motion was pending that might allow him to make an indicative ruling under Fed. R. Civ. P. 62.1. Famuyide v. Chipotle Mexican Grill, Inc., 2023 WL 6513558 (D. Minn. 10/5/2023). 

• First-filed doctrine; stay issued pending resolution of pending action. Where the defendant in this case had commenced an action in the Kentucky courts that was removed to the Eastern District of Kentucky, and the defendant in the Kentucky case subsequently commenced an action in Hennepin County that was removed to the District of Minnesota, Judge Wright, relying on the first-filed doctrine, granted the Minnesota defendant’s motion to stay the Minnesota action pending resolution of the Kentucky action, finding that a stay was “a legally sound way” to defer to the Eastern District of Kentucky “without abdicating” her “responsibility to the parties.” Midwest Eng’g Components, Inc. v. Bonfiglioli USA, Inc., 2023 WL 6163970 (D. Minn. 9/21/2023). 

• Fed. R. Civ. P. 26(a)(1); failure to identify persons with knowledge was “harmless.” Granting in part and denying in part defendants’ motions for summary judgment, Judge Wright found that the plaintiffs’ failure to identify certain witnesses in their Fed. R. Civ. P. 26(a)(1) disclosures was “harmless” where the witnesses and “the information they provided” was “partially disclosed” in discovery and in a related lawsuit. Goyette v. City of Minneapolis, 2023 WL 6279370 (D. Minn. 9/26/2023). 

• Attorney’s fees; hourly rates. While reducing the overall request for fees, Judge Tostrud found that an hourly rate of $600 in an FDCPA action was “reasonable” for a local attorney with 27 years of experience. Kelly v. United Payment Ctr. Inc., 2023 WL 6285184 (D. Minn. 9/27/2023). 

While approving a $500 per hour rate for an associate with seven years of experience at a large firm, Judge Tunheim found that the law firm partner’s hourly rate of $880 (recently increased from $740 an hour) was “slightly unreasonable” and awarded fees at the “original” $740 per hour rate. Brands Int’l Corp. v. Reach Cos., 2023 WL 6391830 (D. Minn. 10/2/2023). 

•  Fed. R. Civ. P. 11; motion for sanctions denied; request for attorney’s fees also denied. Judge Menendez denied a motion for sanctions under Fed. R. Civ. P. 11, finding that no sanctionable conduct arose out of a “straightforward disagreement” between counsel. While describing the movant’s conduct as “troubling,” Judge Menendez also denied a request that the movant be required to pay fees and expenses related to opposing the motion pursuant to Fed. R. Civ. P. 11(c)(2). Am. Family Mut. Ins. Co. v. Pecron, LLC, 2023 WL 6389116 (D. Minn. 10/2/2023). 

• Fed. R. Civ. P. 8(a)(2); group pleading doctrine. Judge Tostrud found that pro se plaintiffs’ amended complaint, which included 32 counts, 234 pages, and 1,113 paragraphs and lumped together claims against all 41 defendants, violated Fed. R. Civ. P. 8(a)(2). Dorosh v. Minn. Dep’t of Human Servs., 2023 WL 6279374 (D. Minn. 9/26/2023). 

• Fed. R. Civ. P. 15(b)(1); post-trial motion to amend answer granted. Judge Frank granted the defendant’s post-trial motion to amend its answer to assert a statute of limitations defense, finding that the plaintiffs would not be prejudiced by the amendment where the defendant had previously asserted a laches defense and had given notice that it would rely on a limitations defense. Wilson v. Corning, Inc., 2023 WL 6218160 (D. Minn. 9/25/2023). 

•  D. Minn. L.R. 7.1(c); requirement that documents be filed “simultaneously.” As part of an order canceling a motion hearing, and while acknowledging that “some Judges may follow a practice that differs from the Local Rules,” Judge Menendez emphasized the need for litigants to comply with D. Minn. L.R. 7.1(c)(1) and file all motion documents “simultaneously.” Clifford v. Fast Track Transfer, Inc., 2023 WL 5759281 (D. Minn. 9/6/2023). 

Josh Jacobson
Law Office of Josh Jacobson

Immigration  Law


• No “pattern or practice” of harm against lesbian, gay, bisexual, and transgender (LGBT) Guatemalans found. In November the 8th Circuit Court of Appeals upheld the denial of the petitioner’s application for asylum, finding his claim of past persecution (“repeated sexual harassment by classmates and coworkers over more than 10 years”) deficient and finding he had not established a well-founded fear of persecution given his failure to show a “pattern or practice” of harm against lesbian, gay, bisexual, and transgender (LGBT) Guatemalans rising to the level of persecution. Finally, the petitioner failed to show the Guatemalan government is unwilling or unable to protect him. Juarez-Vicente v. Garland, No. 22-3318, slip op. (8th Circuit, 11/7/2023).

• Guatemalan children who witness gang crime” not a cognizable particular social group for asylum or withholding of removal purposes. The 8th Circuit Court of Appeals upheld the denial of the petitioner’s request for asylum and withholding of removal. It concurred with the Board of Immigration Appeals’ (BIA) determination that the Guatemalan petitioner was not a member of a cognizable particular social group. His proposed social group—Guatemalan children who witness gang crime—lacked both particularity and social distinction. The term “children” is “vague and amorphous.” Furthermore, the court observes while citing Ngugi v. Lynch, 826 F.3d 1132, 1138 (8th Cir. 2016), “merely having seen or experienced crime” is an insufficient basis for establishing membership in a particular social group. Pacheco-Mota v. Garland, No. 22-3651, slip op. (8th Circuit, 10/18/2023).

• Petitioner failed to show “exceptional and extremely unusual hardship” with new evidence of emotional and mental health issues. On 8/30/2023, the 8th Circuit Court of Appeals upheld the denial of the petitioner’s motion to reopen his case involving an application for cancellation of removal, finding the Board of Immigration Appeals (BIA) rationally determined that his newly submitted evidence of emotional and mental health issues failed to show “exceptional and extremely unusual hardship.” “The evidence demonstrated neither that the health issues were severe nor that treatment would be unavailable in Mexico.” Trejo-Gamez v. Garland, No. 21-3329, slip op. (8th Circuit, 8/30/2023).

• No CAT relief for former child soldier with claim he’d be tortured if returned to South Sudan. On 8/25/2023, the 8th Circuit Court of Appeals upheld the denial of the petitioner’s request for relief under the Convention Against Torture (CAT). It found the Board of Immigration Appeals (BIA) did not err when it concluded the petitioner, a former child soldier with serious mental health issues arising from his horrific childhood, failed to show it was more likely than not that the South Sudanese government would torture him upon his return. The BIA’s conclusion that the petitioner’s generalized country conditions evidence did not show his status as a former child soldier would create a particularized likelihood of future torture by the government of South Sudan was found to be without error. According to the court, the petitioner’s evidence did not show he would be incarcerated and tortured on account of his specific mental health symptoms. Deng v. Garland, No. 22-3621, slip op. (8th Circuit, 8/25/2023).

• Petitioner convicted of aggravated identity theft found removable under INA §237(a)(2)(A)(iii). In August the 8th Circuit Court of Appeals affirmed the Board of Immigration Appeals’ (BIA) finding of removability under INA §237(a)(2)(A)(iii) for the South African petitioner, who had been convicted of aggravated identity theft predicated on wire fraud for participating in an identity theft scheme defrauding the California Employment Development Department of approximately $475,000. The court found no error in the agency’s denial of the petitioner’s request for withholding of removal given that she was found to have committed a “particularly serious crime,” thus making her ineligible for that form of relief. Nor was any error found in the denial of Convention Against Torture (CAT) relief given the inadequate evidence submitted by the petitioner in support of her CAT claim. Robbertse v. Garland, No. 22-1739, slip op. (8th Circuit, 8/21/2023).


• Additional H-2B visas to be made available in FY2024. In November the Department of Homeland Security (DHS), in consultation with the Department of Labor (DOL), announced its intention to make an additional 64,716 H-2B temporary nonagricultural worker visas available for Fiscal Year (FY) 2024. According to DHS, “[t]he supplemental visa allocation [beyond the congressionally mandated 66,000 H-2B visas made available each year] will help address the need for seasonal or other temporary workers in areas where too few U.S. workers are available, helping contribute to the American economy. The H-2B visa expansion advances the Biden Administration’s pledge, under the Los Angeles Declaration for Migration and Protection, to expand lawful pathways as an alternative to irregular migration.” Of those 64,716 H-2B supplemental visas, 20,000 will be made available to workers from Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras. Further details will be published in the Federal Register. U.S. Department of Homeland Security, News Release (11/3/2023).

On 11/8/2023, the Department of Homeland Security (DHS), in consultation with the Department of Labor (DOL), announced the countries eligible to participate in the H-2A and H-2B visa programs for the coming year. U.S. Department of Homeland Security, News Release (11/8/2023).

• DHS notices extending and redesignating TPS. Venezuela: On 10/3/2023, the U.S. Department of Homeland Security (DHS) announced the extension of the designation of Venezuela for temporary protected status (TPS) for 18 months from 3/11/2024 through 9/10/2025. Those wishing to extend their TPS must re-register during the 60-day period running from 1/10/2024 through 3/10/2024. The secretary also redesignated Venezuela for TPS for an 18-month period, allowing Venezuelans to apply who have continuously resided in the United States since 7/31/2023 and have been continuously physically present in the United States since 10/3/2023. The registration period for these new applicants, under the redesignation, runs from 10/3/2023 through 4/2/2025. 88 Fed. Reg. 68130-39 (2023).

Afghanistan: On 9/25/2023, the U.S. Department of Homeland Security (DHS) announced the extension of the designation of Afghanistan for temporary protected status (TPS) for 18 months from 11/21/2023 through 5/20/2025. Those wishing to extend their TPS must re-register during the 60-day period running from 9/25/2023 through 11/24/2023. The secretary also redesignated Afghanistan for TPS for an 18-month period, allowing Afghan nationals to apply who have continuously resided in the United States since 9/20/2023 and have been continuously physically present in the United States since 11/21/2023. The registration period for these new applicants, under the redesignation, runs from 9/25/2023 through 5/20/2025. 88 Fed. Reg. 65728-37 (2023).

R. Mark Frey
Frey Law Office

Intellectual Property


• Trademark: Statutory damages for infringement limited to claims of counterfeit marks. Judge Schiltz recently denied in part a claim for statutory damages when entering a default judgment. Plaintiff Misfit Coffee Company, LLC sued Defendant Tony Donatell for breach of contract related to a prior settlement agreement and for trademark infringement and cybersquatting related to the use of the domain name <>. The parties stipulated to a permanent injunction, but Donatell did not respond to the complaint or amended complaint. Default was entered by the clerk of court. Seeking a default judgment, Misfit sought statutory damages on its infringement claim pursuant to 15 U.S.C. §1117(c), which states in relevant part: “In a case involving the use of a counterfeit mark (as defined in section 1116(d) of this title) in connection with the sale, offering for sale, or distribution of goods or services, the plaintiff may elect, at any time before final judgment is rendered by the trial court, to recover, instead of actual damages and profits under subsection (a), an award of statutory damages for any such use in connection with the sale, offering for sale, or distribution of goods or services…” Misfit also sought statutory damages on its cybersquatting claim pursuant to Section 1127(d), which awards statutory damages for violations of Section 1125(d)(1). The court rejected the claim for statutory damages on Misfit’s infringement claims, finding Misfit’s infringement claims were not under the necessary statutes to qualify for statutory damages. Misfit alleged trademark infringement under 15 U.S.C. §1114. Section 1117(c) applies only to use of a counterfeit mark as defined by Section 1127. Misfit’s complaint did not allege claims under Section 1127 or even contain the word “counterfeit.” Misfit, however, was permitted to recover statutory damages under Section 1117(d) based on its cybersquatting claim under Section 1125(d). Misfit Coffee Co., LLC v. Donatell, No. 23-cv-0252 (PJS/JFD), 2023 U.S. Dist. LEXIS 187554 (D. Minn. 10/19/2023).

• Patent: Claim construction ruling forecloses infringement claim. Judge Frank recently granted declaratory judgment to plaintiff Corning, Inc.’s motion for partial summary judgment of noninfringement. Corning sued defendants Wilson Wolf Manufacturing Corporation and John R. Wilson seeking a declaration that the use of Corning’s HYPERStack cell-culture device by its customers does not infringe the patents-in-suit, that the patents-in-suit are invalid, and that Wilson Wolf tortiously interfered with Corning’s existing and prospective customers. The court previously entered a claim construction on the contested terms “media height” and “scaffolds.” Wilson Wolf moved for reconsideration, and Corning moved for partial summary judgment of noninfringement. Corning argued that under the court’s claim constructions, Wilson Wolf could not provide evidence to establish that the use of Corning’s HYPERStack device by Corning’s customers infringed the patents-in-suit. Wilson Wolf conceded that it could not establish infringement under the current constructions. The court concluded that there was no genuine issue of material fact that Corning’s HYPERStack device did not infringe the patents-in-suit. Corning, Inc. v. Wilson Wolf Mfg. Corp., No. 20-700 (DWF/TNL), 2023 U.S. Dist. LEXIS 189507 (D. Minn. 10/23/2023).

Joe Dubis
Merchant & Gould

Probate & Trust Law


• Authority to remove trustee is subject to fiduciary standard. A husband and wife were co-trustees of a trust. On the wife’s death, the trust named the couple’s two sons as successor trustees. The trust required that, after the wife’s death, there always be one independent trustee. The independent trustee was to be appointed by the couple’s sons within 60 days of the wife’s death. Ultimately, the husband petitioned to remove the sons as trustees in order to replace them with “a hand-selected independent trustee.” The husband argued that the trust specifically gave him the power to remove any trustee. The district court denied the petition. In affirming, the court of appeals determined that even if a power is conferred upon a trustee, “he cannot properly exercise the power if it constitutes a violation of any of his duties to the beneficiary.” The court of appeals then agreed that the husband did not have authority to select an independent trustee and affirmed the district court’s decision to award attorneys’ fees against the husband for his bad faith. Matter of Trust Agreement of Genevieve M. Rossow, No. A23-0473, 2023 WL 7293812 (Minn. Ct. App. 11/6/2023).

Jessica L. Kometz
Bassford Remele


State Appellate Practice


• Notable decisions: A discharged guardian ad litem is not a “party” on whom a notice of appeal must be served to perfect an appeal of the denial of a custody petition. The Supreme Court reversed the court of appeals’ dismissal of an appeal for the failure to serve a former party to the underlying litigation with a notice of appeal within the notice period. The matter arose from a third-party custody petition, in which the district court appointed a guardian ad litem. The district court denied the petition in November 2021, and discharged the guardian ad litem a month later. The petitioners filed a timely appeal in January 2022, but did not serve the guardian ad litem with a notice of appeal until September—well beyond the 60-day notice period prescribed in Minn. R. Civ. App. P. 104.01. The court of appeals dismissed the appeal for the failure to serve the notice on the guardian ad litem, which it determined to be an “adverse party or parties” pursuant to Minn. R. Civ. App. P. 103.01. The Supreme Court disagreed, concluding that the district court’s wholesale discharge of the guardian ad litem subsequent to the order being appealed removed the guardian ad litem as a “party” with an ongoing interest in the litigation at the time of the appeal. Because the guardian ad litem “had no further rights or duties” in the litigation, it “was no longer a party to the litigation after discharge.” The Supreme Court therefore reversed the court of appeals and reinstated the appeal. Justice McKeig dissented, joined by Justice Moore, on the grounds that the unique role a guardian ad litem plays as the advocate for the best interests of the child in a custody proceeding, combined with the subject of the appeal centering on the guardian ad litem’s recommendations, rendered the guardian ad litem a necessary and adverse party to the appeal. Blakey v. Jones, A22-0098 (Minn. 11/1/2023).

• Notable petitions granted: RLUIPA dispute over septic tanks headed to the Minnesota Supreme Court. The Minnesota Supreme Court accepted review of a long-running dispute over the religious rights of the Swartzentruber Amish and Fillmore County’s regulations requiring the use of a septic tank to dispose of “gray water” (water discharged after dishwashing or other non-toilet-related uses). The case previously reached the US Supreme Court, which remanded the matter for proceedings consistent with the strict scrutiny analysis articulated in Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1881 (2021). On remand, the district court determined that Fillmore County met its burden to prove the septic-tank requirement was narrowly tailored to further a compelling state interest. The court of appeals reversed, finding that while the septic-tank requirement furthers a compelling state interest specific to appellants, RLUIPA precludes the government from enforcing the challenged regulations. Fillmore County successfully petitioned for review of that decision. Issues granted: (1) Whether the court of appeals failed to apply the “clearly erroneous” standard of review to the district court’s findings of fact and erred by substituting its own judgment. (2) Whether the court of appeals incorrectly interpreted the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) and Fulton v. Philadelphia, 141 S. Ct. 1868 (2021) when it concluded that there is not a compelling public health interest in treating harmful contaminants in respondents’ gray water. (3) Whether the court of appeals erred in concluding that the SSTS ordinance provides a mechanism of individualized exemptions and failed to defer to the district court’s determination that no such exceptions exist. (4) Whether the court of appeals erred by imposing a new evidentiary standard in cases involving strict scrutiny review that contradicts federal jurisprudence. (5) Whether the court of appeals erred by substituting its judgment for the trier of fact’s under a “clearly erroneous” standard of review. 

• Notable petitions denied: Summary judgment of negligence claims warranted for county, city, and school district in wrongful death action. The Minnesota Supreme Court declined to review the court of appeals’ rare reversal of a district court’s order denying summary judgment. In July 2023, the court of appeals determined that dismissal of negligence claims resulting from a car-bicycle collision against Dakota County, the City of Eagan, and Independent School District 196 was required by the evidence. The court determined that because the decedent was struck and killed by a vehicle driven by a nonparty driver, plaintiff was required to establish either (1) that a special relationship between the parties existed or (2) that the city or school district’s “own conduct” or “misfeasance” rendered the accident foreseeable. The panel determined that neither the city nor the school district engaged in misfeasance and therefore they were entitled to summary judgment. The panel further determined that the county was immune from negligence claims regarding the setting or reduction of the speed limits on county roads. The court found that the “county official or officials tasked with speed-limit decisions engaged in discretionary decision-making without evidence of malice, entitling the county to immunity.” Vitek as Tr. for Vitek v. City of Eagan, No. A22-1536, (Minn. Ct. App. 7/3/2023), rev. denied (10/17/2023).


• Notable precedential decision: District court abused its discretion by compelling discovery of privileged information. In the context of a defamation action arising from the publicity surrounding competing domestic assault allegations involving former Minnesota Vikings running back Dalvin Cook, the court of appeals granted a writ of prohibition precluding enforcement of a district court order to compel discovery of information protected by the attorney-client privilege and the work-product doctrine. In doing so, the court determined that the disclosure of a complete and final complaint to a journalist prior to its service or filing did not constitute a waiver of either the attorney-client privilege or work-product doctrine protecting the process by which that final complaint was prepared. The court further determined that the district court abused its discretion by compelling counsel to disclose information regarding the factual bases of the allegations which was not publicly available as well as the substance of confidential communications regarding litigation strategy, counsel’s mental impressions, or counsel’s legal analysis of the allegations made in the complaint. In re Daniel Cragg, A23-0309 (Minn. App. 11/6/2023).

• Notable nonprecedential decision: A trustee is subject to a fiduciary duty of care in all actions related to the administration of the trust, and the bad-faith breach of that duty is sufficient grounds to hold the trustee personally liable for attorneys’ fees. A father and his two sons were made co-trustees of their wife and mother’s trust upon her death. The trust document also required the sons or a court to appoint an independent trustee, and provided that her “spouse shall have power to remove any trustee.” The district court determined that the father, as a trustee, could not exercise the power to appoint an independent trustee and could not unilaterally remove his sons as trustees. The court of appeals affirmed, determining that the father was subject to the fiduciary duties of a trustee in exercising all powers he was granted under the trust document. The court also affirmed the district court’s subsequent award of attorney’s fees to the sons, which rendered the father personally liable (as opposed to awarding fees from the body of the trust). In doing so, the court observed that a trustee may be held personally liable for attorneys’ fees upon a finding that the trustee acted in bad faith pursuant to Minn. Stat. §549.14. In re Trust Agreement of Genevieve M. Rossow, A23-0473 (Minn. App. 11/6/2023).

• Notable orders: Choice-of-law decision immediately appealable under collateral order doctrine. The court of appeals determined that jurisdiction was proper over an appeal from an order determining that Minnesota law instead of Colorado law applied to defamation and infliction of emotional distress claims, specifically declining to apply Colorado’s anti-SLAPP statute, Colo. Rev. Stat. §13-20-1101. The court determined that the collateral order doctrine applied because the district court’s choice-of-law decision conclusively determined whether Minnesota or Colorado law should apply regarding anti-SLAPP statutes, that its decision was unreviewable on appeal from final judgment, and that the protection offered by Colorado law “would be lost if an order denying a special motion to dismiss were only reviewable in an appeal from a final judgment on the merits.” Quest v. Nicholas Robert Rekieta et al., A23-1337, (Minn. App. 10/11/2023). 

Pat O’Neill
Larson King, LLP

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