Notes & Trends – December 2021



• DWI: Totality of circumstances and rational inferences drawn from them must be examined to determine reasonable, articulable suspicion of intoxication. Appellant was convicted of first-degree DWI and driving with an open bottle of alcohol. He argues the arresting deputy impermissibly expanded the scope of the initial stop of appellant’s truck when the deputy asked him if he had consumed any beer from the open case in his truck. The Supreme Court affirms the Minnesota Court of Appeals’ and district court’s rejections of appellant’s argument, finding the deputy had a reasonable, articulable suspicion of other criminal activity sufficient to expand the scope of the traffic stop. 

Appellant was first pulled over because his truck did not have a front license plate and the back plate was covered in snow. When the deputy cleared snow off the rear plate, he found that the tabs were expired. After approaching appellant, the deputy noticed an open case of beer, with some cans missing, in the back seat of his truck. Upon running the truck’s registration, the deputy found appellant’s license was cancelled as inimical to public safety. Appellant confirmed he was aware of his license status and, after being asked by the deputy, admitted to drinking some cans of beer. Two empty cans of beer were later found near the truck’s passenger seat.

The deputy had a legitimate reason to initially stop appellant’s truck. He was permitted to ask for and search records relating to appellant’s driver’s license and truck registration. The challenged expansion of the stop is the point at which the deputy asked appellant if he had been drinking. He asked this question after observing the case of beer with missing cans and learning appellant’s license was cancelled as inimical to public safety, which the deputy testified he knew was likely to mean appellant was a repeat DWI offender. The Court finds that the combination of these facts established a sufficient reasonable, articulable suspicion that appellant was driving while intoxicated, even in the absence of any noted physical indicia of impairment. State v. Taylor, A20-0245, 2021 WL 4765700 (Minn. 10/13/2021).

Samantha Foertsch
Bruno Law PLL

Stephen Foertsch
Bruno Law PLLC



FLSA claims; jurisdiction defense not waived, case dismissed. A collective action brought under the Fair Labor Standards Act (FLSA) for overtime pay was properly dismissed by U.S. District Court Judge Paul Magnuson. The 8th Circuit, affirming the lower court’s decision, held that the company did not waive a jurisdictional defense to the claims for certification, and correctly threw out claims with no connection to Minnesota, along with finding that the two claimants in the case were not employees but traveling on their work, and therefore, the company was not obligated to pay for pay them for the time they were traveling. Vallone v. CJS Solutions Group, LLC, 9 F.3rd 861 (8th Cir. 08/18/2021).

• FLSA; attorney’s fee issue remanded. An award of $1 in attorney’s fees as part of a wage settlement in a collective action brought under FLSA was vacated and remanded. The 8th Circuit held the that the lower court did not err in rejecting a joint motion by the parties for approval of a settlement, but also that the court improperly calculated the lodestar for attorney’s fees, which warranted vacating the lower court ruling and remanding it for further proceedings before the trial court. Vines v. Welspun Pipes, Inc., 9 F.4th 849 (8th Cir. 08/18/2021). 

• Reinstatement of employee; arbitration award upheld. An arbitrator’s award was upheld on grounds that the arbitrator properly reduced the employee’s discharge or suspension. The 8th Circuit affirmed the lower court decision upholding the arbitration award, on grounds that the arbitrator did not exceed his authority in finding that it was just cause for discipline but not termination. WM Crittenden Operation, LLC v. United Food & Commercial Workers, Local Union 1529, 9 F.4th 732 (8th Cir. 08/16/2021).

• Noncompete provision nixed; employer terminated agreement. A noncompete and nonsolicitation provision of an employment contract was no longer in effect after the employer terminated the agreement in writing. Reversing the lower court decision, the 8th Circuit held that the employer’s termination of the agreement in writing made the noncompete agreement “inoperable” and that the nonsolicitation provision was too broad in prohibiting the employee from accepting unsolicited business from her former clients. Miller v. Honkamp Krueger Financial Services Inc., 9 F.4th 1011 (8th Cir. 08/24/2021). 

• Long-term disability; ERISA claim deniedA claim for long-term disability benefits by an employee under the Employee Retirement Income Security Act (ERISA) was rejected. The 8th Circuit upheld a lower court determination that the plan did not abuse its discretion in interpreting the provisions of the policy or in denying the claim. Harris v. Federal Express Corporation Long Term Disability Plan, 856 Fed. Appx. 637 (8th Cir. 08/20/2021) (per curiam).

• Workers’ compensation; noncompliant opiate treatment not compensable. Treatment of an injured employee with opiate medication that was noncompliant with the long-term opiate treatment protocols promulgated by the Department of Labor and Industry barred compensation under the state’s workers’ compensation system. The Supreme Court held that the employee’s condition did not qualify as a “rare exception” to the treatment parameters developed by the agency. Johnson v. Darchuks Fabrications Inc., 963 N.W.2d 227 (08/18/2021).

• Unemployment compensation; HIPAA violation bars benefits. An employee of a mental health facility who violated the federal HIPAA law concerning privacy of medical records was denied unemployment compensation benefits. Following a decision by an unemployment law judge (ULJ) with the Department of Employment & Economic Development, the court of appeals held that the employee’s accessing of medical records for “personal reasons” constituted disqualifying “misconduct.” Wilson v. Pines Mental Health Center, Inc., 2021 WL 3722082 (Minn. Ct. App. 08/23/2021) (unpublished). 

Marshall H. Tanick
Meyer, Njus & Tanick



• 9th Circuit Court of Appeals develops broad transportation interpretation under RCRA. On 9/29/2021, the United States Court of Appeals for the 9th Circuit issued its opinion in California River Watch v. City of Vacaville, vacating the district court’s summary judgment in favor of the City of Vacaville and determining triable issues under the Resource Conservation and Recovery Act (RCRA).

The case came before the 9th Circuit after the lower district court issued a summary judgment in favor of the City of Vacaville, with the district court dismissing an imminent endangerment citizen suit brought under RCRA. The 9th Circuit first addressed whether River Watch had forfeited its argument that the hexavalent chromium found in the city’s water supply was a “discarded material” that specifically originated from the Wickes Forest Industries, Inc. wood treatment facility in Elmira, California, thus leaving the city liable for transportation of the contaminated water under RCRA. The city argued that because River Watch did not specifically raise the theory that the hexavalent chromium is a “discarded material” from the Wickes site in district court, River Watch effectively forfeited that argument.

The 9th Circuit found that although River Watch did not argue that the contamination came specifically from the Wickes site, River Watch had consistently argued that there was a possibility that the contamination was anthropogenic—meaning it was caused by humans and not naturally occurring—and could have come from any number of sites, including the Wickes site. River Watch further argued that if any of the contamination found was from an industrial source, then it should be considered a solid waste and subject to RCRA. The 9th Circuit found that River Watch had not forfeited its argument because River Watch had always maintained at some level that the Wickes site was a likely source of the contamination.

The 9th Circuit next addressed whether River Watch had a “cognizable legal theory” that the hexavalent chromium found in Vacaville’s water supply should be considered a “solid waste” and thus subject to RCRA. River Watch argued that the hexavalent chromium was a “solid waste” because it meets the definition of “solid waste” under RCRA as a “discarded material… from industrial, commercial, and agricultural operations.” River Watch established that hexavalent chromium has been commonly used in commercial wood preservation, and it was common practice at wood preservation facilities like the Wickes site to allow wood treated with hexavalent chromium to drip dry, which allowed the contaminant to drip directly into the soil. Further, River Watch, through its expert, argued that large amounts of hexavalent chromium had been dumped directly into the ground at the Wickes site.

The 9th Circuit opined that if River Watch’s expert was to be found credible, the hexavalent chromium found in the city’s water supply would then meet the definition of a “solid waste” under RCRA, which thus meant River Watch had created a triable issue on whether the hexavalent chromium was a “discarded material.”

The 9th Circuit next addressed the issue of whether the city had contributed to the past or present transportation of the hexavalent chromium and therefore would face liability under RCRA. The court found that River Watch’s expert had effectively demonstrated that water containing hexavalent chromium and originating from the Elmira Well Field, located near the Wickes site, had been pumped through the city’s water-distribution system. In taking this to be true, the court found that River Watch had established that the city had transported solid waste through its water-distribution system. 

The court further reasoned that a transporter of solid waste under RCRA doesn’t need to play a role in actually discarding the waste. The court looked to the plain language of RCRA, which applies to any person, including a governmental instrumentality, that contributes to the transportation of any waste. Because it was established that the city could be considered to have transported hexavalent chromium, which was found to be a solid waste, River Watch had established another triable issue.

Finally, the court addressed the city’s “absurdity doctrine” argument, finding that the city had not provided enough evidence that River Watch’s interpretation of RCRA based on its plain meaning would lead to absurd results. The 9th Circuit thus vacated the district court’s summary judgment and remanded for further proceedings.

In his dissent, Circuit Judge Tashima rejected River Watch’s argument based on previous holdings of the court that require a defendant to be actively involved in or have some degree of control over the waste disposal process to be found liable under RCRA. Tashima’s dissent went on to state that the majority’s opinion was an unduly broad interpretation of RCRA, and that the purpose of RCRA was to focus on the entities that cause contamination, not those parties whose products or property may be affected by another’s waste disposal but who have no involvement in the waste disposal process. Tashima argued that extending RCRA to the case at hand was unprecedented and unwarranted. California River Watch v. City of Vacaville, No. 20-16605 (9th Cir. 2021).

• MN Court of Appeals: Water body’s absence from DNR public waters inventory does not establish it is not a public water. The Minnesota Court of Appeals issued an opinion holding that Renville County erred by deciding that because a reach (that is, a segment) of Limbo Creek does not appear on the Minnesota Department of Natural Resources (DNR) Public Waters Inventory (PWI) list, it is not a public water. Relator environmental advocacy groups challenged the county’s decision to not prepare an environmental assessment worksheet (EAW) for a proposed ditch-improvement project. Under Minn. R. 4410.4300, subp. 27(A), an EAW is mandatory when the proposed action will “change or diminish the course, current, or cross-section of one acre or more of any public water.” Renville County, as the responsible governmental unit for the project, decided that the affected reach of Limbo Creek was not a “public water” and that an EAW was not mandatory. The county concluded that the reach of Limbo Creek was not a “public water” because it was not on the DNR’s PWI list. 

“Public waters” are all water basins and watercourses that meet the criteria set forth in Minnesota Statutes, Section 103G.005, subd. 15. Public waters are subject to certain unique regulatory requirements that do not apply to nonpublic waters. The DNR maintains extensive Public Water Inventory maps pursuant to Minn. Stat. §103G.201. 

Notwithstanding these inventory maps of public waters, the court held, the question of whether a water body is a “public water” must be based on the statutory definition, which the court found to be “plain and unambiguous.” The court held that “[n]othing in the statutory definition makes qualifying as a ‘public water’ dependent on a water’s inclusion on the DNR’s PWI list or map.” The court went on to conclude that the record lacked substantial evidence supporting the county’s position that the affected reach of Limbo Creek is not a “public water.” Accordingly, the court reversed and remanded to the county for preparation of a mandatory EAW. In re MCEA, No. A20-1592, 2021 Minn. App. LEXIS 276 (Minn. Ct. App. 10/4/2021).


• EPA issues strategic roadmap to tackle PFAS forever chemicals. On October 18, 2021, the U.S. Environmental Protection Agency (EPA) issued the per- and poly-fluoroalkyl substances (PFAS) Strategic Roadmap, detailing the agency’s short- and longer-term commitments, objectives, and goals to address PFAS contamination in the United States. The whole-of-agency integrated approach, set forth by the EPA Council on PFAS—recently established by the current EPA administrator, Michael S. Regan—delegates key actions, and expected deadlines, for EPA’s program offices, focusing on the three central directives, as Regan stated in his introductory note to the Roadmap, “to further the science and research [on PFAS chemicals], to restrict these dangerous chemicals from getting into the environment, and to immediately move to remediate the problem in communities across the country.”

PFAS substances are a family of man-made chemicals that have been manufactured since the 1940s. These chemicals have been used historically in the production of “nonstick” and “waterproof” manufactured goods and are very resistant to degradation, often persisting in the environment for decades. Studies have found that these chemicals can accumulate in our bodies over time and lead to adverse human health effects. The main pathways of exposure for humans are through drinking contaminated groundwater and eating food contaminated by PFAS, such as the accumulation of the chemicals in fish tissue. Concerningly, EPA monitoring data indicates that approximately 100 percent of fish tested in the Great Lakes show the presence of PFAS at varying levels. However, PFAS can also be found in food packaging and commercial household products like nonstick cookware, beauty products, stain-repellent carpets, and firefighting foam.

With some actions already underway, the Strategic Roadmap outlines current and future key actions that each EPA office will take between 2021 and 2024. The following are some of the significant actions for each office:

• The Office of Chemical Safety and Pollution Prevention will publish a national PFAS testing strategy, review existing PFAS, close down abandoned PFAS uses under the Toxic Substances Control Act (TSCA), and finalize new PFAS reporting under TSCA Section 8.

• The Office of Water will undertake nationwide monitoring for PFAS in drinking water and establish national drinking water limits for certain PFAS under the Safe Drinking Water Act (SDWA), restrict PFAS discharges from industrial sources through effluent limitation guidelines, and use the National Pollutant Discharge Elimination System (NPDES) permitting program to reduce PFAS discharges into waterways.

• The Office of Land and Emergency Management will draft a proposed rule to designate certain PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

• The Office of Air and Radiation will devise methods to detect and potentially regulate PFAS air emissions as hazardous air pollutants under the Clean Air Act (CAA).

• The Office of Research and Development will develop additional targeted methods for detecting and measuring specific and unknown PFAS in the environment.

Furthermore, on 10/26/2021, EPA announced it would expand the PFAS Strategic Roadmap to include two new rulemakings under the Resource Conservation and Recovery Act (RCRA). First, EPA will begin to propose listing four major PFAS chemicals as RCRA Hazardous Constituents, subjecting the chemicals to corrective action requirements at hazardous waste facilities. And second, EPA will clarify its regulations of the RCRA Corrective Action Program to require investigation and cleanup of wastes and other emerging contaminants that meet the statutory definition of hazardous waste, which would require PFAS to be cleaned up through RCRA corrective actions.

In the conclusion section of the PFAS Strategic Roadmap, EPA states that the risks posed by PFAS demand that the agency attack the problem from multiple directions, and that EPA will seek to leverage its full range of statutory authorities in order to achieve tangible benefits for human health and the environment. By proposing actions across the foundational environmental statutes, including TSCA, SDWA, CWA, CERCLA, CAA, and RCRA, the Agency is doing just that. PFAS Strategic Roadmap, https://www.epa.gov/system/files/documents/2021-10/pfas-roadmap_final-508.pdf . Note that the state of Minnesota published a PFAS Blueprint, which was described as a “PFAS planning document,” in February 2021. https://www.pca.state.mn.us/sites/default/files/p-gen1-22.pdf

• New leadership at MPCA and EPA Region 5. Katrina Kessler is the new commissioner of the Minnesota Pollution Control Agency (MPCA). Kessler, whom Gov. Walz appointed effective 11/1/2021, replaces former Commissioner Laura Bishop, who resigned in July 2021 in the face of a Republican-controlled state Senate’s threat to deny confirmation of her appointment. Kessler is a familiar face at MPCA. Since 2019, she has served as MPCA’s assistant commissioner for water policy and agriculture. Her prior position was serving as director of the Surface Water and Sewers Division at the City of Minneapolis for three years. Before that, she worked at MPCA for 13 years, holding various positions that included supervisory and management roles within the Environmental Analysis and Outcomes Division. Commissioner Kessler holds a BA degree in environmental science from American University and a Master of Science in environmental engineering from the University of Minnesota. In an introductory video posted to MPCA’s website, Kessler emphasized that the agency, together with partners around the state, has a unique opportunity to “address climate change, advance the mission of the agency, and develop innovative solutions that protect the environment and support new jobs.” See https://www.pca.state.mn.us/featured/katrina-kessler-appointed-commissioner-mpca .

Meanwhile, on 10/12/2021, President Biden appointed Debra Shore as the new Regional Administrator for U.S. Environmental Protection Agency (EPA) Region 5, which includes Minnesota, Illinois, Indiana, Michigan, Ohio, Wisconsin, and 35 tribes. In a press release, EPA described Shore—who, prior to her appointment, was an elected member of the Board of Commissioners of the Metropolitan Water Reclamation District of Greater Chicago—as “a strong advocate for cleaning up the Chicago waterways and for resource recovery, including the reuse of treated water and the generation of renewable energy.” See https://www.epa.gov/newsreleases/epa-announces-appointment-debra-shore-regional-administrator-epa-region-5 .

Jeremy P. Greenhouse
The Environmental Law Group, Ltd.
Jake Beckstrom
Vermont Law School, 2015
Erik Ordahl Barna, Guzy & Steffen



• Denial of motion for leave to amend denied; “functional equivalent” of amended complaint. Affirming a district court’s dismissal of a securities fraud action and its denial of a motion for leave to amend a complaint on the merits, the 8th Circuit declined to decide whether new allegations in an attachment to a brief submitted in opposition to a motion to dismiss constituted the “functional equivalent” of a proposed amended complaint. City of Plantation Police Officers Pension Fund v. Meredith Corp., ___ F.4th ___ (8th Cir. 2021). 

• 28 U.S.C. §1442(a)(1); federal officer defense; some remands reversed. The 8th Circuit affirmed in part and reversed in part a series of decisions by Chief Judge Tunheim that rejected 3M’s removal of claims arising out of its sale of earplugs based on the federal contractor defense, and had remanded those claims, finding that claims arising out of commercial sale of the earplugs were properly remanded, but that claims raised by plaintiffs who obtained their earplugs in the course of their work for defense contractors were properly removed. Graves v. 3M Co., ___ F.4th ___ (8th Cir. 2021). 

• Denial of preliminary injunction affirmed; delay; irreparable harm. Affirming a district court’s denial of a motion for temporary restraining order and preliminary injunction, the 8th Circuit agreed with the district court that the plaintiffs’ one-year delay in seeking injunctive relief “refuted their allegations of irreparable harm.” Adventist Health Sys./Sunbelt, Inc. v. United States Dept. of HHS, ___ F.4th ___ (8th Cir. 2021). 

• Improper and untimely discovery; no prejudice; abuse of discretion. Affirming in part and reversing in part Chief Judge Tunheim’s decision following a bench trial in a Title IX case, the 8th Circuit found the admission of a property inspection that did not comply with Fed. R. Civ. P. 34 and that was conducted after the close of discovery to be “troubling,” but found no abuse of discretion where the defendant “failed to show that it was prejudiced by the admission.” Portz v. St. Cloud State Univ., ___ F.4th ___ (8th Cir. 2021). 

• Attorney-client privilege; communications between nonlawyers. Applying both federal and Minnesota privilege law, and agreeing with the defendant that “a corporate communication need not include an attorney to be protected by the attorney-client privilege,” Magistrate Judge Wright nevertheless rejected the defendant’s claim of attorney-client privilege for a series of emails, finding that none of the disputed emails was sent “for the purpose of securing legal advice” or otherwise met the requirements of the so-called Diversified test (Diversified Indus. v. Meredith, 572 F.2d 596 (8th Cir. 1977)). Sadare v. Bosch Automotive Servs. Sols. Inc., 2021 WL 4317432 (D. Minn. 9/23/2021). 

• Fed. R. Civ. P. 30(b)(6); motion to compel designation and preparation of witnesses denied. Magistrate Judge Brisbois denied a motion to compel the designation and preparation of Fed. R. Civ. P. 30(b)(6) witnesses to testify regarding “all facts supporting” certain assertions as well as plaintiff’s interpretation of multiple agreements, determining that a request for testimony regarding the agreements was “overly broad,” failed to “describe with reasonable particularity the matter for examination” and “improperly [sought] lay testimony regarding legal conclusions,” and that a request for testimony that would require a party to “marshal all of its factual proof” was overbroad and also raised concerns regarding the work product doctrine. Fairview Health Servs. v. Quest Software Inc., 2021 WL 5087564 (D. Minn. 9/24/2021). 

• Motion for leave to amend granted; “mere” versus “undue” delay; rejoining of previously dismissed defendants. Drawing a distinction between “mere” and “undue” delay, Magistrate Judge Docherty granted the plaintiffs’ motion for leave to file a first amended consolidated class action complaint, rejecting defendants’ argument that the plaintiffs had “unduly” delayed their motion to amend, which was brought on the last permissible day under the scheduling order, but instead found “mere” delay and the absence of any prejudice to the defendants. 

Magistrate Judge Docherty also granted plaintiffs’ request to rejoin five defendants that were previously dismissed with prejudice, rejecting defendants’ argument that the request was governed by a “more restrictive standard” than Fed. R. Civ. P. 15’s “liberal amendment standard.” In re: EpiPen Direct Purchaser Litig., 2021 WL 4892231 (D. Minn. 10/20/2021). 

• Fed. R. Civ. P. 45(f); transfer of motion to quash; dispositive or non-dispositive. Granting a Fed. R. Civ. P. 45(f) motion to transfer a motion to quash a subpoena to the Western District of Texas, where the underlying FLSA action was pending, Magistrate Judge Wright determined that the motion was nondispositive, while acknowledging that the issue was “not entirely settled.” De Leon v. Northern Natural Gas Co., 2021 WL 4452874 (9/29/2021). 

• 28 U.S.C. §1782; appeal from magistrate judge’s order; standard of review. Affirming Magistrate Judge Thorson’s quashing of portions of a subpoena issued pursuant to 28 U.S.C. §1782, Chief Judge Tunheim acknowledged the absence of controlling authority on the standard of review, determined that “most” courts have held that such orders are nondispositive, and reviewed the order for clear error. In Re Application of Plowiecki, 2021 WL 4973762 (D. Minn. 10/26/2021). 

• Motion to remand; amended notice of removal. Where the defendants’ notice of removal failed to properly identify the citizenship of each of the members of a limited liability corporation, the plaintiff moved to remand, and the defendants then filed an amended notice of removal, Judge Magnuson denied the motion to remand, finding that the amended notice “cured any deficiency” in the removal. Hmong College Prep. Academy v. Woodstock Capital, LLC, 2021 WL 4690978 (D. Minn. 10/7/2021). 

• Fed. R. Civ. P. 20; motion to sever granted. Applying the 8th Circuit’s two-part test governing severance of claims, and finding that claims by two sets of plaintiffs were “similar but not the same,” Magistrate Judge Docherty also found that the claims did not “arise from a single transaction or occurrence,” and granted defendants’ motion to sever without needing to determine whether the claims involved “common questions of fact or law.” Bergman v. Johnson & Johnson, 2021 WL 5028417 (D. Minn. 10/29/2021). 

• Removal; remand; jurisdictional discovery denied. Where actions were removed on the basis of diversity jurisdiction, Judge Schiltz “discovered that he lacked sufficient information” to ascertain whether the parties were diverse and ordered the parties to file affidavits identifying their citizenship, one party admitted that it was unable to determine its own citizenship, and Judge Schiltz ordered one defendant to show cause why the cases should not be remanded, that defendant’s motion for leave to conduct jurisdictional discovery was denied where the defendant could only offer “speculation” that discovery might alter the result. In Re Trust Established Under the Pooling & Serv. Agreement Relating to the Wachovia Bank Com. Mortgage Trust Com. Mortgage Pass-Through Certs., Series 2007-C30, 2021 WL 4551598 (D. Minn. 10/5/2021). 

• Motion to compel; both counsel criticized. Granting in part and denying in part plaintiffs’ motion to compel in an FCRA case, Magistrate Judge Docherty offered “words of caution” for both counsel, chastising plaintiffs’ counsel for casting “aspersions” on the defendant, and criticizing defendant’s counsel for discovery responses that included “boilerplate” objections, as well as its outright refusal to search for certain categories of responsive documents. Lynch v. Experian Info. Sols., Inc., 2021 WL 5106006 (D. Minn. 11/3/2021). 

• Joint motion for continued sealing denied. Magistrate Judge Wright denied the parties’ joint motion for continued sealing of Judge Nelson’s order on a motion for partial summary judgment, finding that the presumption favoring public access to judicial records when the documents relate to a motion for summary judgment applied. Am. Dairy Queen Corp. v. W.B. Mason Co., 2021 WL 4526158 (D. Minn. 10/4/2021). 

•  Sanctions; Fed. R. Civ. P. 11; 28 U.S.C. §1927. Despite finding that the defendant’s Rule 11 motion was “both procedurally and substantively deficient,” Judge Wright found that plaintiff counsel had engaged in “bad faith efforts to prolong this litigation” and engaged in a litany of improper conduct; imposed sanctions in an amount to be determined pursuant to 28 U.S.C. §1927; and ordered that the plaintiff’s counsel were to be “jointly and severally liable for any award of attorneys’ fees.” Niazi Licensing Corp. v. St. Jude Med. S.C., 2021 WL 4947712 (D. Minn. 10/25/2021). 

Josh Jacobson
Law Office of Josh Jacobson 



• Migrant protection protocols (MPP) (“Remain in Mexico”): The saga continues. As previously reported in the October issue of Bench & Bar, U.S. District Court Judge Matthew Kacsmaryk, Northern District of Texas, issued a nationwide injunction on 8/13/2021 (staying implementation of Department of Homeland Security Secretary Alejandro Mayorkas’ 6/1/2021 Memorandum terminating migrant protection protocols), ordering the Biden administration to reinstate the preceding administration’s MPP program in good faith. According to Judge Kacsmaryk, the Biden administration’s termination of MPP violated the Administrative Procedure Act (APA) (5 U.S.C. §706(2)(A) because DHS ignored certain key factors while providing arbitrary reasons for rescinding MPP and, at the same time, failing to consider the effect of its termination on compliance with 8 U.S.C. §1225. The decision was stayed for seven days, allowing the Biden administration to seek emergency relief at the appellate level. Texas, et al. v. Biden, et al., No. 2:21-cv-00067-Z (N.D. Tex. 8/13/2021). https://www.govinfo.gov/content/pkg/USCOURTS-txnd-2_21-cv-00067/pdf/USCOURTS-txnd-2_21-cv-00067-0.pdf

On 8/19/2021, the 5th Circuit Court of Appeals declined to grant the government’s request for a stay of Judge Kacsmaryk’s order pending appeal. Texas, et al. v. Biden, et al., No. 21-10806 (5th Circuit, 8/19/2021). https://www.ca5.uscourts.gov/opinions/pub/21/21-10806-CV0.pdf

On 8/24/2021, the U.S. Supreme Court denied the Biden administration’s request for a stay of Judge Kacsmaryk’s order pending completion of appellate proceedings on the matter. Biden, et al. v. Texas, et al., 594 U.S. ___ (2021). https://www.supremecourt.gov/orders/courtorders/082421zr_2d9g.pdf

On 9/15/2021, the Biden administration filed its first MPP compliance report with the district court, outlining steps it was taking to re-implement the protocols: discussions with the government of Mexico to accept individuals returned from the United States, given the latter’s “sovereign right to admit or reject the entry of foreigners into its territory”; rebuilding infrastructure and reorganizing resources and personnel along the southwest border (under the eye of an interagency task force); developing immigration court dockets to schedule hearings for individuals in MPP; planning to operationalize MPP given changed conditions, including ongoing risks presented by covid-19 and the Biden administration’s “obligation to implement the Center for Disease Control and Prevention’s (CDC) Title 42 Order, which temporarily prohibits the introduction into the United States of certain noncitizens traveling from Canada or Mexico into the United States.” https://storage.courtlistener.com/recap/gov.uscourts.txnd.346680/gov.uscourts.txnd.346680.105.0_2.pdf

On 10/14/2021, the Biden administration filed its first supplemental MPP compliance report with the district court, describing substantial progress in re-implementing MPP:  discussions with the government of Mexico; work toward finalizing the operational plans required to re-implement MPP; work with the Department of Justice and other interagency partners to ensure the immigration courts were prepared to hear the cases of those subject to MPP; and work on contracts to rebuild the Immigration Hearing Facilities in Laredo and Brownsville, Texas. The October report also disclosed that the administration was prepared to re-implement MPP by mid-November, contingent on Mexico’s agreement to accept returns under MPP at that time. As the report noted, however, “As a sovereign nation, Mexico can deny the entry of all individuals who do not have status in Mexico… Mexico has made clear that it has concerns about aspects of how MPP was previously implemented, and that without certain improvements to the program, it will not decide to accept MPP enrollees.” https://storage.courtlistener.com/recap/gov.uscourts.txnd.346680/gov.uscourts.txnd.346680.111.0_5.pdf

On 10/29/2021, the Department of Homeland Security (DHS) issued a memorandum announcing its termination of MPP after finding the costs of MPP outweighed the benefits of continuing the program. DHS also noted it would continue to comply with the district court’s order until such time as is practicable, after a final judicial decision to vacate the injunction has been made. According to DHS Secretary Alejandro Mayorkas, “MPP is neither the best, nor the preferred, strategy for achieving either of these goals [securing our borders and offering protection to those fleeing persecution and torture]… Importantly, the effective management of migratory flows requires that we work with our regional partners to address the root causes that drive migrants to leave their countries and to tackle this challenge before it arrives at our border.” https://www.dhs.gov/sites/default/files/publications/21_1029_mpp-termination-memo.pdf

On 11/2/2021, in view of DHS Secretary Mayorkas’s 10/29/2021 memorandum terminating MPP (while addressing, at the same time, Judge Kacsmaryk’s issues with his initial 6/1/2021 memorandum), the administration asked the 5th Circuit Court of Appeals (where the case is currently pending) to vacate the injunction. A decision is imminent. https://www.courthousenews.com/biden-administration-makes-case-for-end-of-trump-immigration-program/

• No particular social group here. The 8th Circuit Court of Appeals upheld the Board of Immigration Appeals’ denial of the petitioner’s applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT), finding her proposed particular social group—families unaffiliated with any gangs who refuse to provide any support to transnational criminal gangs in Guatemala—lacked particularity and social distinction. The court found, additionally, that, even if the petitioner’s social group was cognizable, there was substantial evidence supporting the board’s determination that she failed to develop the required nexus between any persecution (or fear of persecution) and her membership in the group (or, for that matter, another proposed social group—the indigenous tribal group of K’iche), given her repeated testimony that the aggressors targeted her to extort money. Similarly, the petitioner failed either to establish her eligibility for withholding of removal or to exhaust her CAT claim. Osorio Tino v. Garland, No. 20-3508, slip op. (8th Circuit, 9/20/2021). https://ecf.ca8.uscourts.gov/opndir/21/09/203508P.pdf


• Travel ban lifted and vaccination requirement for noncitizen nonimmigrants. On 10/25/2021, President Biden issued a proclamation (Proclamation 10294: Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic) stating that, as of 11/8/2021, the United States will move away from country-by-country restrictions and adopt an air travel policy that relies primarily on vaccination to advance the safe resumption of international air travel to the United States. The proclamation governs the entry of noncitizen nonimmigrants into the United States, suspending the entry of unvaccinated noncitizen nonimmigrants except in limited circumstances. 86 Fed. Register, 59603-08 (10/28/2021). https://www.govinfo.gov/content/pkg/FR-2021-10-28/pdf/2021-23645.pdf

• Department of State guidance on covid vaccination requirement for immigrant visa applicants. On 10/26/2021, the Department of State (DOS) posted a notice, per Center for Disease Control and Prevention (CDC) Technical Instructions for panel physicians, that requires all immigrant visa applicants to receive a full covid-19 vaccine series as part of their medical exam prior to being issued a visa. This requirement applies to all medical exams completed on or after 10/1/2021. Lower age limits for the vaccine will depend on the formulation available to applicants in their country. https://travel.state.gov/content/travel/en/News/Intercountry-Adoption-News/adoption-notice--updates-to-medical-exam-requirements--including.html

R. Mark Frey
Frey Law Office



• Copyright: Statutory damages claim entitled to right to jury trial while claims for disgorgement are equitable and not entitled to right to jury trial. Judge Nelson recently limited plaintiff National Presto Industries, Inc.’s claims for a jury trial to its copyright infringement claim seeking statutory damages. Presto sued U.S. Merchants Financial Group, Inc., alleging 11 counts and seeking declaratory and injunctive relief. Presto sought statutory damages under the Copyright Act and disgorgement of profits under all other claims. The court previously granted U.S. Merchants’ motion for summary judgment on Presto’s trade dress, copyright infringement of instruction manuals, tortious inference, and unfair trade practices claims. The court then ordered the parties to submit briefing on whether Presto held a right to a jury trial for the surviving claims. Presto contended that it had a right to trial by jury on all remaining claims, arguing that the demands for U.S. Merchants’ profits were a “proxy” for damages. U.S. Merchants conceded that Presto had a right to trial by jury for the copyright infringement claim that sought statutory damages but argued that Presto was not entitled to a jury trial on all other claims. 

A right to trial by jury flows either from a statute or from the 7th Amendment to the United States Constitution. Neither party alleged that the Copyright Act, the Lanham Act, or the various state statutes invoked in the complaint created a jury-trial right. Thus, the question before the court was whether the 7th Amendment entitled Presto to a right to a jury trial on the remaining claims. The court found Presto was entitled to a right to trial by jury for the copyright infringement claim seeking statutory damages under controlling Supreme Court precedent. The court further found that Presto was not entitled to a jury trial on the remaining claims because disgorgement of profits was an equitable remedy, and that Presto’s claim for disgorgement was not a “proxy” for damages. Nat’l Presto Indus., Inc., v. U.S. Merchants Fin. Grp., Inc., d/b/a Greenmade, No. 18-cv-03321, 2021 WL 5083934 (D. Minn. 11/2/2021).

• Patents: Attorneys jointly and severally liable for attorneys’ fees award for prolonging litigation in bad faith. Judge Wright recently sanctioned plaintiff Niazi Licensing Corporation’s counsel for misrepresenting the record, disregarding deadlines, and advancing meritless arguments following claim construction. Niazi sued St. Jude Medical S.C., Inc. for infringement of United States Patent No. 6,638,268. Following the court’s 2019 claim construction order, the court granted St. Jude’s motion for summary judgment of non-infringement. St. Jude then moved for attorneys’ fees and costs under Federal Rule Civil Procedure 11, 35 U.S.C. §285, and 28 U.S.C. §1297, arguing that Niazi knew or should have known that its patent infringement claims lacked merit. The court found St. Jude failed to comply with Rule 11’s separate motion requirement and that St. Jude did not establish that Niazi lacked a reasonable, good-faith basis to infer that infringement had occurred. With respect to St. Jude seeking attorneys’ fees pursuant to 35 U.S.C. §285 exceptional-case finding, St. Jude failed to establish that Niazi engaged in objectively unreasonable or bad-faith litigation conduct before the court issued its 10/21/2019 claim construction order. St. Jude, however, proved Niazi maintained the lawsuit after the claim construction order despite a lack of evidence of direct or indirect infringement. The court found Niazi’s bad-faith efforts to prolong the litigation after the claim construction order rendered the case “exceptional.” Accordingly, the court granted St. Jude’s motion for reasonable attorneys’ fees and costs incurred after the claim construction order. Finally, because Niazi’s attorneys misrepresented the record and advanced objectively meritless arguments, the court found the attorneys jointly and severally liable for the fees and costs incurred after October 2019 pursuant to 28 U.S.C. §1927. Niazi Licensing Corporation v. St. Jude Medical S.C., Inc., No. 17-cv-5096, 2021 WL 4947712 (D. Minn. 10/25/2021).

Joe Dubis
Merchant & Gould




• The necessity of convincing evidence to withhold a residential tenant’s security deposit. Without convincing evidence to support the reason for withholding the entire security deposit, the amount landlords are entitled to withhold will be limited. In the recent case Evans v. Niklas, after terminating a tenancy, a tenant sought the return of her security deposit, which had been withheld to pay for a lock replacement and cleaning costs. The tenant and her roommate paid $1,350 for a security deposit, including a pet deposit. The tenant made a spare key for her boyfriend without the prior authorization of either the landlord or her roommate. The landlord alleged the roommates left the apartment in poor condition, that there was pet damage, and that he needed to replace the lock, and as such, withheld the entire security deposit. One tenant took the landlord to conciliation court to recover the security deposit and the court determined the landlord properly withheld a portion of the security deposit for the lock replacement expense and minor cleaning, but the tenant was awarded the remainder of the security deposit, totaling $675. 

The landlord removed the case to district court, where he presented 163 photos and ten videos to support his allegations regarding the damage to the apartment, plus cleaning bills to evidence his expense, but the addresses of the companies were redacted. Despite evidence that replacing the locks cost $330, the district court found that $200 was reasonable. Additionally, the court held that $100 was a reasonable amount for pet-related cleaning services, as opposed to the $450 claimed by the landlord, because any cleaning beyond the pet-related damage was for “normal wear and tear,” the costs of which cannot be withheld from the security deposit. 

The court of appeals affirmed. The court noted that under Minn. Stat. §504B.178, subd. 3(c), the landlord has the burden of proving, by a preponderance of the evidence, the reason for withholding the security deposit. The court noted that the landlord referred to the cost of $330 to replace the locks in a letter to the tenants as “[m]iscellaneous fix-ups and replace locks.” The district court used “[m]iscellaneous fix-ups” to justify its finding that replacing the locks cost under $330. With respect to the cleaning costs for pet-related damage, the court discussed the district court’s determination that $450 was excessive based on the photos presented by the landlord and its refusal to rely on the document showing he had been billed for “[e]mergency pet cleaning.” The court of appeals deferred to the district court’s determination of credibility since the vendor’s name and address were redacted from the documents. The landlord then made additional incidental arguments, which the court addressed briefly, but none provided any grounds for relief. Evans v. Niklas, No. A21-0083, ___N.W.2d ___, 2021 WL 4824568 (Minn. Ct. App. 10/18/2021). 

• Challenging a city council resolution to abate the nuisance. To constitute a nuisance, a condition must materially and substantially interfere with the enjoyment of life or property. In North Mankato City Council, a property owner filed a certiorari appeal challenging the city council’s vote to pass a nuisance resolution that ordered the property owner to abate the nuisance. After a public hearing, the city council found that the property contained a rank growth of vegetation that unreasonably annoys a considerable number of members of the public, was unsightly, and was a public health concern. The threshold issue was whether the court had proper jurisdiction. The court noted it may review quasi-judicial administrative decisions by certiorari and found that the city council’s action was quasi-judicial and thus, jurisdiction was proper. 

Turning to the merits of the case, the court then reversed the city council’s resolution because it was found to be unsupported by the record. The court noted the standard for nuisance as an interference with the comfortable enjoyment of life or property that is material and substantial. The court found that the record did provide some support that the vegetation on the property was growing profusely or with excessive vigor, but that it did not support a finding that the growth of vegetation may have harmed public health. Moreover, the court noted that the neighbors’ primary complaints about the property involved its appearance and that the property could not be considered a nuisance based primarily on its appearance. 

Finally, the court found that the record could not support the conclusion that a considerable number of members of the public were annoyed. Out of all the community members who submitted comments or spoke at the hearing, only two expressed displeasure with the property. The community developer testified that the city had received multiple complaints over the years, but no evidence of the substance or the time frame of the complaints was offered. Ultimately, the court reversed the resolution to abate the nuisance as unsupported by the record. In re North Mankato City Council, No. A21-0143, ___N.W.2d.___, 2021 WL 4517273 (Minn. Ct. App. 10/4/2021). 

Mike Pfau
DeWitt LLP




• Court dismisses petition for failure to comply with mandatory disclosure rule. Petitioners Forsons Investments LLC and Graham Building LLC filed petitions contesting the 2020 property assessments for each respective property. The properties were income-producing as of 1/2/2020. The county filed a motion to dismiss, asserting that petitioners failed to timely provide the appropriate income and expense information for the subject properties as required by Minn. Stat. §278.05, subd. 6 (2021), also called the “mandatory disclosure rule.” The county supported its motion with an affidavit from commercial appraiser Thomas Reineke, stating that the county sent a courtesy letter to petitioner’s counsel noting its obligation to provide the required information. Petitioner’s counsel responded and requested a two-month extension. The county countered with a one-week extension. Petitioners did not provide the information within the time frame. 

When a petitioner files a petition contesting the valuation of an income-producing property, they must provide to the county assessor financial statements for the current and prior year of the assessment date, a rent roll listing the tenant’s name and lease details, lease agreements, net rentable square footage of buildings on the property, and anticipated income and expenses for the subsequent year. Failure to disclose this information in a timely manner may result in a dismissal. Minn. Stat. §278.05, subd. 6(a), 6(b). 

The county proved that petitioners failed to timely comply with the mandatory disclosure rule and dismissed the petitions. Forsons Investments LLC and Graham Building LLC, v. Olmsted Co., 2021 WL 5141800 (MN Tax Court 11/2/2021).

Morgan Holcomb
Mitchell Hamline School of Law

Sheena Denny
Mitchell Hamline School of Law