Notes & Trends - December 2022

Criminal Law 

• Right to counsel: No right to counsel when interrogation is merely imminent. Appellant was detained as a person of interest in an arson and murder investigation. He was handcuffed and taken to an interview room at the police station. While in the interview room, appellant was not asked any questions but twice asked police, “Where’s my lawyer?” Appellant was eventually taken to jail and held on unrelated assault and robbery charges. The next day, appellant was brought back to the interrogation room. Police told appellant he was not under arrest for the arson and murder, but because he was under arrest for assault and robbery, police wanted to ask him questions about the arson and murder. Appellant was Mirandized, said he understood his rights and would talk to police, and then talked with police for 30 minutes before saying the interview was over and that he wanted a lawyer. Appellant was charged with and ultimately convicted of both arson and second-degree murder. In his postconviction petition, he argues the district court erred by denying his pretrial motion to suppress his statements in the 30-minute interview with police. His petition was denied and the Minnesota Court of Appeals affirmed.

The Supreme Court accepted review to consider whether appellant had a 5th Amendment right to counsel on the night before his interview—the night he asked, “Where’s my lawyer?” The right to counsel attaches when a suspect is both in custody and subjected to interrogation. Appellant was in custody when he asked for a lawyer, but he was not interrogated at that time. The Supreme Court rejects appellant’s request to create a new rule of law, holding instead that suspects cannot invoke their right to counsel when custodial interrogation is merely “imminent.” While the Court recognizes that the U.S. Supreme Court has recognized that interrogation need not be presently underway for a person to validly invoke their right to counsel, the U.S. Supreme Court has not expressly adopted an “imminent interrogation” rule. The Court is not inclined to adopt such a rule on its own, given the “serious practical difficulties” the rule would pose.

The Court does reject the state’s argument that the right to counsel may be invoked only after questioning by police begins. Interrogation in the 5th Amendment context is not limited to formal questioning, but includes actions by law enforcement likely to elicit an incriminating response. Here, appellant was not subjected to any compulsion or coercion the night before his 30-minute interview. On that night the arson and murder were not even mentioned and appellant made no incriminating statements. Therefore, appellant was not subjected to custodial interrogation that night and did not have a right to counsel at that time. His statements the next day, given after a valid Miranda warning and waiver of his rights, were not obtained in violation of Miranda. The court of appeals is affirmed. Charette v. State, A20-1476, 908 N.W.2d 310 (Minn. 10/5/2022).

•  Double jeopardy: Jeopardy attaches for failing to register as a predatory offender upon initial assignment of a corrections agent. Appellant is required to register as a predatory offender and, between 2004 and 2018, was convicted seven times for failing to register. He was assigned a new corrections agent in 2019 and twice refused to sign the required registration paperwork, once in August and once in September. He was charged with one count of failing to register for each refusal. The district court denied appellant’s motion to dismiss on double jeopardy grounds and the court of appeals affirmed.

The Supreme Court considers whether double jeopardy limits the number of times the state may charge a defendant for failing to register. The double jeopardy clause does not serve to impose limitations on the Legislature’s power to define offenses. Once the Legislature has done so, the statutory definition determines the extent of double jeopardy protection. Whether double jeopardy permits the state to simultaneously charge a defendant with numerous violations of the same statutory provision depends on the statute’s “unit of prosecution.” The state cannot repeatedly charge a defendant for the same crime, but violations of the same provision may be charged more than once in a single prosecution if the Legislature “intended the facts underlying each count to make up a separate unit of prosecution.” 

Minn. Stat. §243.166, subdivision 3(a) requires a person to register “with the corrections agent as soon as the agent is assigned.” The Court holds that the Legislature authorized one “unit of prosecution” for each assignment of a corrections officer under subdivision 3(a). Thus, the state may charge defendants one time for each failure to register following the “assignment” of a corrections agent.

Here, appellant’s convictions from 2004 to 2018 did not bar prosecution of the 2019 offenses, because they involved a different corrections agent assignment. However, the August 2019 offense bars prosecution for the September 2019 offense, because it involves the same corrections agent assignment. Thus, the court of appeals did not err when it affirmed the denial of appellant’s motion to dismiss the August 2019 offense, but did err when it affirmed the denial of appellant’s motion to dismiss the September 2019 offense. State v. Larson, A21-0220, 980 N.W.2d 592 (Minn. 10/12/2022).

•  Interference with the privacy of a minor: State must prove defendant knew or had reason to know a person under 18 years of age was present. Appellant was charged with a felony violation of interfering with a minor’s privacy, under Minn. Stat. §609.746, subd. 1(e)(2), based on allegations he used a cell phone to secretly record a 15-year-old in a public bathroom stall. The state conceded it could not prove appellant knew or had reason to know the person was under the age of 18, but the district court found the state was required to prove only appellant’s knowledge of the presence of a person, not the age of the person present. After a stipulated facts trial, appellant was found guilty. The court of appeals affirmed.

Section 609.746, subd. 1(e)(2), makes it a crime to secretly install or use a device to record or photograph a person in a place “where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts,” and the offense becomes a felony if the defendant knew or had reason to know that a minor was present. The Supreme Court concludes that the plain language of section 609.746, subd. 1(e)(2), requires the state to prove a defendant knew or had reason to know a person under the age of 18 was present when they committed the offense.

The Supreme Court notes that “know” in section 609.746, subd. 1(e)(2), is specifically defined in section 609.02, subd. 9(2), and requires “that the actor believes that the specified fact exists.” Applying this definition to the ordinary meaning of the other words in section 609.746, subd. 1(e)(2), the Court finds that the statute requires that the defendant “know or have reason to know that a minor under the age of 18 (the victim) is present when the offense is committed.” The court of appeals decision and the district court’s pretrial denial of appellant’s motion to dismiss are reversed. State v. Galvan-Contreras, A20-0366, 980 N.W.2d 578 (Minn. 10/12/2022).

•  Sentencing: District court properly denied request for downward durational departure for second-degree intentional murder. Appellant pleaded guilty to second-degree intentional murder for shooting and killing a man after a verbal argument and physical altercation at a mall. Appellant and the victim started arguing after the victim cut in front of appellant in a line. The victim kicked appellant, the two fought and the victim punched appellant, and appellant drew his licensed firearm and shot at the victim 15 times. Appellant walked away, then returned and shot the victim again. The court denied appellant’s motion for a downward durational sentencing departure and sentenced him within the guideline range.

The Minnesota Court of Appeals finds the district court did not abuse its discretion when it denied appellant’s departure request. A downward durational departure is permitted only if there are identifiable, substantial, and compelling circumstances showing the defendant’s conduct was significantly less serious than that typically involved in the commission of the offense. A district court errs in refusing to grant a departure if it fails to consider legitimate and significant reasons for the departure.

Here, appellant argues the district court focused only on weighing a lack of a valid self-defense claim against a genuine display of remorse, and failed to consider that his crime was significantly less serious than typical, because the victim was the aggressor, his actions were consistent with a heat-of-passion killing, and his mental health issues mitigated the seriousness of the offense. Based on appellant’s sentencing pleadings and the district court’s order, the court of appeals is satisfied that the district court did, in fact, consider and reject appellant’s proffered grounds for a departure. The district court’s sentence is affirmed. State v. Musse, A22-0121, 2022 WL 9627205 (Minn. Ct. App. 10/17/2022).

• Restitution: District court in postconviction proceedings may order the refund of restitution paid as part of a sentence for a conviction that is later vacated. Appellant was convicted of coercion (threat to expose a secret or disgrace) and was ordered to pay restitution. In a postconviction proceeding, her conviction and sentence were vacated, but the district court denied appellant’s request for a refund of restitution payments made. The court of appeals affirmed and determined that the Minnesota Incarceration and Exoneration Remedies Act (MIERA) provided the only procedures for appellant to receive a refund of restitution.

In Nelson v. Colorado, 137 S. Ct. 1249, 1252 (2017), the U.S. Supreme Court held that “[w]hen a criminal conviction is invalidated by a reviewing court and no retrial will occur… the State [is] obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction.” The U.S. Supreme Court found Colorado’s Exoneration Act did not comport with the 14th Amendment, because the act imposed “more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated.” Id. at 1258. 

The Minnesota Supreme Court does not decide whether there is a constitutional right to a refund of restitution, finding that the postconviction statute itself permits a district court to order a refund. A convicted person may petition the district court “to vacate and set aside the judgment and to discharge the petitioner or to resentence the petitioner or grant a new trial or correct the sentence or make other disposition as may be appropriate.” Minn. Stat. §590.01, subd. 1 (emphasis added). The Court finds that this language grants a district court the authority to grant a remedy such as the refund of restitution a petitioner paid because of a conviction that is later invalidated. Such a disposition is appropriate, as it returns the parties to the positions they were in before the judgment.

The case is remanded to the district court to determine the proper amount of any refund due to appellant. Byington v. State, A20-1441, 2022 WL 14701093 (Minn. 10/26/2022).

Samantha Foertsch
Bruno Law PLLC

Stephen Foertsch
Bruno Law PLLC

Employment & Labor Law

•  Federal Tort Claim Act; no claim against non-employees. A lawsuit by homeowners whose house was destroyed by a flood soon after they purchased it was not maintainable under the Federal Tort Claims Act. The 8th Circuit Court of Appeals, affirming a lower court ruling, found that the lawsuit could not be maintained because the defendants who were alleged to have concealed the flood zone status of the property were not employees of the federal government, which is a predicate to a claim under the statute. Christopherson v. Bushner, 33 F.4th 495 (8th Cir. 05/02/2022).

• Disability discrimination; testimony allowed, fees upheld. The verdict for an employee for disability discrimination under the American Disabilities Act (ADA) was upheld on appeal over the objection of the employer regarding the testimony of a witness for the plaintiff who was not an expert. The 8th Circuit upheld the trial court’s ruling that the witness could testify as a “treating practitioner,” which did not constitute abuse of discretion, and an award of attorney’s fees also was upheld for the prevailing plaintiff. Gruttemeyer v. Transit Authority, 31 F.4th 368 (8th Cir. 04/14/2022).

• Noncompete claims; injunction reversed. A preliminary injunction pertaining to the alleged breach of a noncompete agreement was reversed on grounds that the claimant was unlikely to prevail on the merits. The 8th Circuit, reversing the judgment of the trial court, held that the trial court abused its discretion in issuing the preliminary injunction on a separate claim of civil conspiracy, which also was not actionable under state law. Progressive Technologies, Inc. v. Chaffin Holdings, 33 F.4th 481 (8th Cir. 05/02/2022).

•  Breach of employment agreement; claim not actionable. A nurse practitioner lost his lawsuit for breach of contract with the hospital that employed him and doctors who worked there was not maintainable. The Minnesota Court of Appeals, affirming a ruling of the Hennepin County District Court, upheld summary judgment dismissing the claimant’s lawsuit for breach of contract, breach of covenant of good faith and fair dealings, defamation, and other allegations on grounds that there was no breach of the employment agreement and that the report submitted by the hospital to the licensing agency was not grounds for an improper purpose. Harper v. Tessmer-Tuck, 2022 WL 3348646 (Minn. Ct. App. 05/02/2022) (unpublished).

•  Duty of loyalty; lack of damages bars claim. A lawsuit by a distributor against two of its former employees who had resigned and begun working with a company’s former sole supplier was not maintainable on grounds of breach of contract, breach of duty of loyalty, and misappropriation of trade secrets. The claims, including breach of loyalty, were not actionable because there was no evidence that the former employer suffered any damages due to the departure of the employees or their work with the former supplier. CH Bus Sales, Inc. v. Guldin, 2022 WL 1751064 (Minn. Ct. App. 05/31/2022) (unpublished).

• Unemployment compensation; ‘misconduct’ cases. An employee with the Minnesota Department of Agriculture who was fired for inappropriate use of his state vehicle and computer, as well as disrespectful communication and behavior and deficient performance, lost his claim for benefits. Affirming the decision of an unemployment law judge (ULJ) with the Department of Employment & Economic Development (DEED), the appellate court ruled that there was substantial evidence supporting the ULJ’s credibility determinations and the factual findings that the employee engaged in “disqualifying misconduct.” Ballman v. Minnesota Dept. of Agriculture, 2022 WL 1751185 (Minn. Ct. App. 05/31/2022) (unpublished).

An applicant for unemployment benefits lost a battle of credibility with her employer and lost her claim for unemployment compensation benefits. Affirming a decision of the ULJ, the appellate court held that the employer’s testimony that the employee may have violated reasonable policies was more credible and, therefore, the employee was disqualified from receiving benefits. Ferdig v. Northwest Minnesota Juvenile Center, 2022 WL 1763619 (Minn. Ct. App. 05/31/2022) (unpublished).

An employee who was fired for being intoxicated at work lost his claim, also on grounds that testimony from the employer’s chief executive officer was more credible than that of the employee. The appellate court ruled that the record substantially supported the ULJ’s findings, rendering the employee ineligible for benefits. Larsen v. First State Bank Southwest, 2022 WL 1615857 (Minn. Ct. App. 05/23/2022) (unpublished).

A technician who was the subject of “ribald” complaints from a client about his performance was denied unemployment benefits. The appellate court held that the employee’s conduct constituted disqualifying “misconduct.” Rosenberger v. South-Town, Inc., 2022 WL 1297610 (Minn. Ct. App. 05/02/2022) (unpublished).

But one employee who was fired for “alleged misconduct” prevailed. Reversing a ULJ determination, the appellate court held that an interaction between an employee and his supervisor did not constitute a serious violation of acceptable norms and, therefore, permitted the employee to receive unemployment benefits. Moss v. Masterson Personnel, Inc., 2022 WL 1298128 (Minn. Ct. App. 05/02/2022) (unpublished).

A doctor’s report that an employee was temporarily unable to do any type of work because of problems with his knee resulted in denial of unemployment benefits because the employee was not actively searching for suitable work, which is required for receipt of benefits. The appellate court upheld that a ULJ’s determination that the employee was not relieved from seeking suitable work because of any executive orders by the governor during the pandemic. Williams v. Schmitty & Sons School Buses, Inc., 2022 WL 1132270 (Minn. Ct. App. 04/18/2022) (unpublished). 

An employee who quit because he was denied a personal loan was denied unemployment benefits. The court of appeals held that the reason the employee quit did not constitute “good cause” attributable to his employer, and, therefore, the employee was not entitled to receive unemployment compensation benefits. Hubbard v. Preferred Concrete Construction, Inc., 2022 WL 1613286 (Minn. Ct. App. 05/23/2022) (unpublished).

Marshall H. Tanick
Meyer, Njus & Tanick


Environmental Law

•  Minnesota Supreme Court affirms Limbo Creek is public water, requires environmental assessment. In late September the Minnesota Supreme Court affirmed a state court of appeals decision that the upper reach of Limbo Creek is a public water under the statutory definition, and therefore requires an environmental assessment worksheet (EAW) prior to a proposed ditch-drainage project.

Minnesota Statutes provide a definition of public water that includes “watercourses with a total drainage area greater than two square miles.” Minn. Stat. §103G.005, subd. 15(a)(9). Limbo Creek, consisting of an upper reach and a lower reach, is a tributary of the Minnesota River located in Renville County, and has a watershed spanning over 9,330 acres (approximately 14.5 square miles). 

In 1979, the Minnesota Legislature passed a law requiring the Department of Natural Resources (DNR) to identify, count, list, and map the waterbodies of the state. In 2005, the water law was amended and currently directs the DNR to “maintain a public waters inventory map” that shows the waters designated as public water during the 1979 inventory process. Minn. Stat. §103G.201(a) (2020).

During the initial 1979 inventory draft, the entire reach of Limbo Creek was recorded as public water on both the inventory list and map. However, in 1985, when the DNR finalized the inventory list and map, the upper reach of Limbo Creek was not included on the inventory list but did appear on the inventory map as a heavy-dashed line which represented both a public water and a public ditch.

In 2016, landowners petitioned Renville County to approve a ditch-drainage project that would transform more than a mile of the upper reach of Limbo Creek. The Minnesota Center for Environmental Advocacy (MCEA) petitioned the county to complete an EAW prior to the ditch project. The county determined that the upper reach of Limbo Creek was not a public water because it was not listed on the 1985 public water inventory list, and therefore denied the EAW petition and approved the ditch-drainage project. The MCEA brought suit in the court of appeals challenging the county’s decision. The court held that the county erred in determining the upper reach of Limbo Creek is not a public water because it is not on the inventory list, rather than applying the statutory definition of public water, and therefore remanded to the county to complete a mandatory EAW, which brings us to this Supreme Court case.

The Supreme Court noted that the narrow dispute in this case is the question as to what classification of waters should control whether the upper reach is or is not public water. On the one hand, MCEA argues that the statutory definition of public waters under §103G.005 subd. 15 controls, and on the other hand, the county argues that the public water inventory list is the controlling factor.

In its analysis, the Supreme Court agrees with the county that the upper reach of Limbo Creek does not appear on the inventory list, but the Court points to the fact that the upper reach of Limbo Creek does appear on the inventory map. The Court then details the Renville County inventory map showing the upper reach of Limbo Creek as a heavy-dashed line which represents a watercourse that is a protected public water as well as a public ditch. Therefore, the Supreme Court held that the appeals court did not err when relying on the statutory definition of public waters in §103G.005 subd. 15, and not on whether the water body was included on the inventory list, when determining whether the upper reach of Limbo Creek is a public water. As such, the proposed ditch-drainage project that would alter the public water requires an EAW.

Finally, the Supreme Court noted that this case only answered the narrow question regarding Limbo Creek, and not the broader question of whether the inventory or the statutory definition should control classification of public water statewide, stating that “[i]t is the duty of the Legislature to clarify the relationship between the inventory in the statutory definition of public waters.” Matter of: Petition of MCEA for commencement of an environmental assessment worksheet, No. A20–1592, 2022 WL 4488498 (N.W.2d 9/28/2022).

•  Minnesota Court of Appeals rejects tort claims against Water Gremlin. On 9/19/2022, the Minnesota Court of Appeals issued an opinion affirming the district court’s summary judgment dismissal of a White Bear Township resident’s negligence and statutory nuisance claims against Water Gremlin, a manufacturer of lead and metal products. In 2018, the Minnesota Pollution Control Agency (MPCA) imposed penalties upon Water Gremlin for exceeding the company’s air-permit emissions limit for trichloroethylene (TCE), a hazardous air pollutant. As a result of the enforcement action, Water Gremlin, in early 2019, shut down its operations that used TCE and committed to permanently discontinuing the use of TCE. The resident’s house was located within the “area of concern” on a map MPCA prepared in 2019 for local TCE exposure from Water Gremlin; on MPCA’s 2020 updated map, the resident’s home was no longer in the TCE area of concern. The resident sued Water Gremlin claiming negligence, statutory nuisance pursuant to Minn. Stat. §561.01 (2020), and two other causes of action. Water Gremlin moved to dismiss and for summary judgment on all four claims.

The court of appeals held that Water Gremlin had demonstrated that no genuine issue of material fact existed showing that TCE contaminated the resident’s property, and that the resident had produced no evidence that his property was contaminated by TCE. The “area of concern” maps were not evidence of actual harm, the court noted, especially given the undisputed fact that TCE does not stay in the air at a location very long or build up because TCE breaks down in a matter of days to weeks. The court also rejected the resident’s arguments that stigma-caused property-value diminution is a recognized injury in tort. Accordingly, the resident could not establish an injury for purposes of negligence.

As for statutory nuisance, the court held that the resident’s claim was missing a critical element, wrongful conduct (“absent wrongful conduct there can be no nuisance”), because, as discussed previously, the court found that to the extent TCE was airborne over Sharot’s property, it quickly dissipated. Even if there were wrongful conduct, the court continued, no reasonable factfinder would be able to conclude that the resident’s discomfort was reasonable or that an interference with his use and enjoyment occurred, because the record contained no evidence that it is connected to existing contamination. Sharot v. Water Gremlin Company, 2022 WL 4295381 (unpublished) (Minn. Ct. App. 2022).

Jeremy P. Greenhouse
The Environmental Law Group

Jake Beckstrom 
Vermont Law School, 2015

Vanessa Johnson 
Fredrikson & Byron P.A. 

Erik Ordahl 
Barna, Guzy & Steffen

Federal Practice

• Dismissal of states’ action affirmed lack of standing. The 8th Circuit affirmed the dismissal of a challenge by 13 states to an Executive Order by President Biden related to climate change, agreeing with the district court that the states’ challenge to “interim estimates” was “highly attenuated” and not sufficiently “concrete,” and that the states had failed to establish that their alleged injuries were caused by the estimates. Missouri v. Biden, ___ F.4th ___ (8th Cir. 2022). 

•  Fed. R. Civ. P. 59(e); L.R. 7.1; motion for relief from judgment distinguished from motion for reconsideration. Where the plaintiff brought a motion for relief from judgment pursuant to Fed. R. Civ. P. 59(e), and defendants argued that plaintiff’s motion was actually a motion for reconsideration that had been filed without leave of court and because the plaintiff had not engaged in the required meet and confer process before filing its motion, Judge Davis determined that because the plaintiff was seeking a substantive change in a judgment, the motion was governed by Rule 59(e) and leave of court was not required prior to filing. P Park Mgmt. v. Paisley Park Facility, LLC, 2022 WL 14882465 (D. Minn. 10/26/2022). 

•  Denial of motion to amend scheduling order affirmed. Distinguishing his previous diligence analysis in Portz v. St. Cloud State Univ. (2017 WL 3332220 (D. Minn. 8/4/2017)), Judge Tunheim affirmed an order by Magistrate Judge Thorson that had denied defendants’ motion to amend the scheduling order to allow them to assert an additional affirmative defense, finding that Magistrate Judge Thorson’s determination that defendants were not diligent was not clearly erroneous. Taqueria El Primo LLC v. Illinois Farmers Ins. Co., 2022 WL 14004844 (D. Minn. 10/24/2022). 

•  Fed. R. Civ. P. 12(f); motion to strike class allegations denied. Rejecting defendants’ argument that plaintiffs had proposed a “fail-safe” class, Judge Brasel denied a motion to strike plaintiffs’ class allegations, finding that the motion was “premature.” Adams v. U.S. Bancorp, ___ F. Supp. 3d ___ (D. Minn. 2022). 

• Motion for expedited handling of motion denied. Magistrate Judge Wright denied plaintiffs’ motion for expedited handling of their motion to obtain warrant application materials, declining “to expedite a Motion to Compel when there is no apparent reason it could not have been filed earlier.” Lindell v. United States, 2022 WL 5250138 (D. Minn. 10/6/2022). 

•  Standing; action seeking access to warrant materials dismissed. Chief Judge Schiltz dismissed an action that challenged district practices related to the sealing of certain search warrant materials, finding that the Reporters Committee’s alleged “interest in observing and understanding the work of the federal trial courts” was “exactly the kind of generalized, abstract interest in the proper application of the law that the Supreme Court repeatedly held does not suffice to establish injury-in-fact.” In re: Amended Application of the Reporters Committee for Freedom of the Press to Unseal Certain Surveillance Orders and Related Materials, 2022 WL 6701785 (10/11/2022). 

• Fed. R. Civ. P. 45(d)(2)(B)(i)-(ii); subpoena; cost-shifting; order affirmed. In August 2022, this column noted an order by Magistrate Judge Docherty that required the plaintiffs to bear a portion of the costs of a non-party’s document production. 

Judge Tostrud recently rejected the non-party’s appeal from the portion of Magistrate Judge’s Order that argued that cost-shifting is “mandatory,” finding that the costs were not so “significant” as to make Magistrate Judge Docherty’s order “clearly erroneous or contrary to law.” Rochester Drug. Co-op. v. Mylan Inc., 2022 WL 1598377 (D. Minn. 5/20/2022), aff’d, 2022 WL 8032746 (D. Minn. 10/14/2022). 

• Motion for temporary restraining order denied. Rejecting the defendant’s request that he abstain in light of a pending administrative appeal, Judge Tunheim nevertheless denied the plaintiff’s motion for a temporary restraining order, finding that three of the four TRO factors favored the defendant. Partners in Nutrition v. Minnesota Dept. of Education, 2022 WL 5114461 (D. Minn. 10/4/2022). 

• Submission of exhibits; court not obligated to “scour” record. Granting defendants’ motion for summary judgment in a copyright action, Judge Frank criticized the plaintiff for submitting approximately 3,800 pages of exhibits in her opposition to the motion, while citing to only a few hundred pages of those exhibits. Judge Frank stated that “[t]he Court will not do counsel’s work for them and scour the remaining thousands of pages of documents in search of additional evidence of discrimination.” Cooley ex rel. N.O.C. v. Target Corp., 2022 WL 4540091 (D. Minn. 9/28/2022). 

•  Fed. R. Civ. P. 12(b)(6); fraudulent joinder; motion to remand denied. Where the plaintiff commenced an MHRA action in the Minnesota courts, the defendant removed on the basis of diversity jurisdiction, the plaintiff amended his complaint to add a non-diverse defendant and then moved to remand, and the non-diverse defendant moved to dismiss, Judge Montgomery dismissed the allegations against the non-diverse defendant pursuant to Fed. R. Civ. P. 12(b)(6) and denied the motion to remand. Garrett v. Boston Scientific Corp., 2022 WL 4803121 (D. Minn. 10/3/2022). 

• 28 U.S.C. §1332(a); amount in controversy; motion to remand granted. Where one defendant removed an interpleader action on the basis of diversity jurisdiction but failed to specify the amount in controversy, and a document attached to the complaint set the amount in controversy at $65,843.80, Judge Tunheim rejected the removing defendant’s argument that taxes and fees would make the overall amount in controversy greater than $75,000 and remanded the action to the Minnesota courts. Edward Jones Trust Co. v. Knapp, 2022 WL 4465919 (D. Minn. 9/26/2022). 

•  28 U.S.C. §1404(a); motion to transfer non-resident’s claim denied. Where a plaintiff who resides in Hudson, Wisconsin filed his action in the Minnesota courts and the defendant removed the action and then sought to have the action transferred to its headquarters in the Eastern District of Michigan or the Western District of Wisconsin, Judge Tunheim acknowledged that the plaintiff’s choice of forum was entitled to “less deference” because the plaintiff did not reside in the district, but nevertheless denied the motion to transfer where the plaintiff resided very close to the Twin Cities, and none of the other factors “strongly” favored transfer. Rock v. Rathsburg Assoc., Inc., 2022 WL 4450418 (D. Minn. 9/23/2022). 

•  Treating healthcare providers; non-expert testimony properly admitted. Denying defendants’ motion for a new trial, Judge Nelson found that the non-expert testimony of the plaintiff’s treating healthcare providers did not constitute undisclosed expert testimony, and that defendants also failed to establish that any possible error in the admission of that testimony would have resulted in a different outcome at trial. Jacobson v. County of Chisago, 2022 WL 15776699 (D. Minn. 10/28/2022). 

•  28 U.S.C. §1292(b); request to certify for interlocutory appeal denied. Judge Wright denied defendants’ request that she certify an award of partial summary judgment to the plaintiff for interlocutory appeal pursuant to 28 U.S.C. §1292(b), finding that defendants met none of the three elements necessary to support their request. Target Corp. v. ACE Am. Ins. Co., 2022 WL 4592094 (D. Minn. 9/30/2022). 

• L.R. 5.6; motion for continued sealing granted. Where the parties disagreed as to whether certain documents should remain sealed, Magistrate Judge Leung granted the plaintiff’s motion to continue the sealing of “highly sensitive… competitive material.” Taylor Corp. v. Georgia-Pacific Consumer Prods. LP, 2022 WL 4533797 (D. Minn. 9/28/2022). 

Josh Jacobson
Law Office of Josh Jacobson 


Immigration Law

•  DACA: The saga continues. As noted in the October 2022 edition of Bench & Bar of Minnesota, the Department of Homeland Security (DHS) published its final rule on 8/30/2022 implementing its proposed rule (with some amendments) seeking to establish regulations to “preserve and fortify” the Deferred Action for Childhood Arrivals (DACA) program. The rule was scheduled to go into effect on 10/31/2022. On 10/14/2022, U.S. District Court Judge Andrew Hanen (Southern District of Texas), following a remand by the 5th Circuit Court of Appeals to review the final rule, issued an order partially blocking the regulations from going into effect while allowing USCIS to continue accepting and adjudicating DACA renewal applications filed by those DACA recipients with DACA status on or before the court’s 7/16/2021 permanent injunction. Given ongoing litigation, USCIS may nonetheless accept initial DACA applications but not process them. State of Texas, et al. v. United States, et al., No. 1:18-CV-00068 (S.D. Tex. 10/14/2022). https://www.nilc.org/wp-content/uploads/2022/11/2022.10.14-Order-J.-Hanen.pdf 


• Designation of Ethiopia for TPS. On 10/21/2022, the Department of Homeland Security (DHS) announced its designation of Ethiopia for temporary protected status (TPS) for 18 months. According to Secretary of Homeland Security Alejandro N. Mayorkas, “Ethiopian nationals currently residing in the U.S. who cannot safely return due to conflict-related violence and a humanitarian crisis involving severe food shortages, flooding, drought, and displacement, will be able to remain and work in the United States until conditions in their home country improve.” Eligibility for TPS under the designation requires continuous residence in the United States since 10/20/2022. The designation will go into effect once the notice is published in the Federal Register. U.S. Department of Home Security, News Release (10/21/2022). https://www.dhs.gov/news/2022/10/21/dhs-designates-ethiopia-temporary-protected-status-18-months 

• DHS announces new parole process for certain Venezuelans. On 10/19/2022, the Department of Homeland Security (DHS) published notice of a new parole process for certain Venezuelans who agree to enter the United States by air at an interior port of entry (POE) rather than a land port of entry while arranging for someone in the United States to provide them with housing and other support as needed. Such individuals must: 1) be outside the United States; 2) be a national of Venezuela or a non-Venezuelan immediate family member of and traveling with a Venezuelan principal beneficiary; 3) have a U.S.-based supporter who filed an Affidavit of Support (Form I–134) on their behalf and has been vetted and confirmed by USCIS; 4) possess a passport valid for international travel; 5) provide for their own commercial travel to an air POE and final U.S. destination; 6) undergo and pass required national security and public safety vetting; 7) comply with all additional requirements, including vaccination requirements and other public health guidelines; and 8) demonstrate that a grant of parole is warranted based on significant public benefit or urgent humanitarian reasons and that a favorable exercise of discretion is otherwise merited.

DHS emphasized that, after 10/19/2022, “Venezuelans who do not avail themselves of this process, and instead enter the United States without authorization between POEs, will be subject to expulsion or removal.” Likewise, “those who enter irregularly into the United States, Mexico, or Panama will also be found ineligible for a discretionary grant of parole under this process.” The program is fashioned, in part, on the Uniting for Ukraine parole process that was implemented following Russia’s invasion of Ukraine. DHS began accepting online applications for the process on 10/18/2022. 87 Fed. Reg. 63507-17 (2022). https://www.govinfo.gov/content/pkg/FR-2022-10-19/pdf/2022-22739.pdf

• H-2B cap supplemented with additional visas. On 10/12/2022, the Department of Homeland Security (DHS), in consultation with the Department of Labor (DOL), announced it will soon issue a regulation adding 64,716 H-2B temporary nonagricultural worker visas for fiscal year 2023 (commencing 10/1/2022), to the existing 66,000 H-2B visas normally allotted each fiscal year. At the same time, DHS and DOL are working on strengthening protections for U.S. and foreign workers—“ensuring that employers first seek out and recruit American workers for the jobs to be filled, as the visa program requires, and that foreign workers hired are not exploited by unscrupulous employers”—by way of the recently created H-2B Worker Protection Taskforce. 

This H-2B supplement will include 20,000 visas allocated to Haiti, Honduras, Guatemala, and El Salvador, with the remaining 44,716 visas made available to those returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years.

The H-2B visa system is a program allowing employers to temporarily hire noncitizens to perform nonagricultural labor or services in the United States. Key aspects of the program include the following: 1) the employment must be temporary in nature, such as a one-time occurrence, seasonal need, or intermittent need; 2) employers must certify that there are insufficient numbers of U.S. workers who are able, willing, qualified, and available to perform the temporary work for which they seek a prospective foreign worker; and 3) employers must certify that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. Department of Homeland Security, News Release (10/12/2022). https://www.dhs.gov/news/2022/10/12/dhs-supplement-h-2b-cap-nearly-65000-additional-visas-fiscal-year-2023 

• Final rule amending H-2A regulations published. On 10/12/2022, the Department of Labor (DOL) published its final rule amending the regulations devoted to the certification of agricultural labor or services performed by temporary foreign national workers in the H–2A nonimmigrant visa program as well as enforcement of employers’ contractual obligations to those nonimmigrant workers. These changes will, according to the DOL, “strengthen protections for workers, modernize and simplify the H-2A application and temporary labor certification process, and ease regulatory burdens on employers.” At the same time, the changes will remain consistent with the department’s responsibility to certify there are insufficient able, willing, and qualified workers to fill employers’ job opportunities and the employment of H-2A workers will not adversely affect the wages and working conditions of workers similarly employed in the United States. The rule will go into effect on 11/14/2022. 87 Fed. Reg. 61660-831 (2022). https://www.govinfo.gov/content/pkg/FR-2022-10-12/pdf/2022-20506.pdf 

• Extension and redesignation of Burma for TPS. On 9/27/2022, the Department of Homeland Security (DHS) published notice of its extension of the designation of Burma (Myanmar) for TPS for 18 months, from 11/26/2022 through 5/25/2024, for those who currently hold that status and continue to meet the eligibility requirements. The period for reregistration runs from 9/27/2022 through 11/26/2022. In addition, DHS redesignated the country for TPS given the “ongoing violence and the resulting displacement in Burma [which] have caused major vulnerabilities related to 1) shelter; 2) food security and nutrition; 3) water, sanitation and hygiene (WASH); 4) health; and 5) education.” Eligibility requirements for those filing for the first time under the redesignation include, among others, continuous residence in the United States since 9/25/2022 and continuous physical presence in the United States since 11/26/2022, the effective date of the redesignation of Burma for TPS. The period for first-time registration runs from 9/27/2022 through 5/25/2024. 87 Fed. Reg. 58515-24 (2022). https://

R. Mark Frey
Frey Law Office


Intellectual Property

• Patent: Voluntary dismissal of safe harbor claim in declaratory action. Judge Frank recently granted plaintiff Corning Inc.’s motion to dismiss Count Ten of its complaint. Corning filed a declaratory judgment action against Wilson Wolf Manufacturing Corporation and John Wilson seeking adjudication of questions of patent infringement and invalidity related to it and its customers. In Count Ten of its suit, Corning sought a declaration that the safe harbor defense immunized Corning’s customers from Wilson Wolf’s claims of patent infringement. Corning moved to voluntarily dismiss Count Ten of its amended complaint. 

Under Federal Rule of Civil Procedure 41, after the opposing party serves either an answer or a motion for summary judgment, an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. A court is not required to dismiss a claim upon request. Instead, courts take a variety of factors into account, including whether the party has presented a proper explanation for its desire to dismiss, whether a dismissal would result in a waste of judicial time and effort, and whether a dismissal will prejudice the defendants. In Count Ten, Corning sought a declaration that Corning’s customers and end-users of its HYPERStack product did not infringe defendants’ patents because the alleged infringing conduct was exempted under the FDA “safe harbor” created by 35 U.S.C. § 271(e)(1). Corning stated that it asserted the safe harbor defense because the defense had been raised in two of the three lawsuits against Corning’s customers, but that in view of the discovery in the instant case, the application of the “safe harbor” defense turned on facts that were unique to each customer. 

Thus, Corning argued that the “safe harbor” defense was best litigated (if necessary) in the context of each of the customer lawsuits. Defendants did not oppose the dismissal but argued that due to the prejudice and waste caused by litigating Count Ten, the dismissal should be with prejudice. Upon review, the court found that voluntary dismissal of Count Ten without prejudice was warranted, but the court reserved the right to have Corning reimburse defendants for costs and fees directly related to the litigation of Count Ten in the action should circumstances warrant. Corning Inc. v. Wilson Wolf Mfg. Corp., No. 20-700 (DWF/TNL), 2022 U.S. Dist. LEXIS 201042 (D. Minn. 11/4/2022).

Joe Dubis
Merchant & Gould


Real Property

• Removing a bridge was not a taking. The Minnesota Court of Appeals affirmed a district court’s dismissal of appellants’ inverse-condemnation claim because it upheld the district court’s determination that the property owners retained reasonably convenient and suitable access to their property following the township’s decision to remove a bridge. In Matter of Kuk, the property owners argued that they lost reasonably convenient and suitable access to their property because (1) they only have access via a southern easement rather than a public road; (2) the southern easement does not accommodate regular vehicles and would require extra winter maintenance; and (3) accessing the homestead site from the southern easement requires traversing a ravine and steep hillside. The property owners further argued that even if the southern easement provides reasonably convenient and suitable access to the southern portion of the property, it does not provide reasonably convenient and suitable access to the homestead site. 

The court found that the evidence sustains the district court’s findings that the property owners maintain reasonably convenient and suitable access. The southern easement provides ingress and egress to a nearby street. The court noted that even before the property owners recorded the southern easement, previous owners accessed the property from the south and that the southern easement has been the property’s primary access. Further, the southern easement continued to provide suitable access to the property for agricultural purposes. With respect to the bridge, the court added that the property owners suspected in 1995 that the bridge had limited capacity and could not be relied on to provide permanent access. The property owners secured the southern easement because they anticipated problems with the bridge, and have always used the southern easement, rather than the bridge, to access the property to farm. The court discerned no clear error in the district court’s determination that the property owners maintain reasonably convenient and suitable access, and as such, concluded as a matter of law that the township’s removal of the bridge did not constitute a taking. Matter of Kuk, No. A22-0180, 2022 WL 4682932 (Minn. Ct. App. 10/3/2022). 

• Clear and definite terms required to expressly abrogate the doctrine of equitable conversion. A handwritten representation in a purchase agreement failed to expressly abrogate the doctrine of equitable conversion, and thus the appellant had no legal right to unilaterally burden a property with an easement after the execution of a purchase agreement. In Howard, Sun Trust Financial, LLC argued that the plain language of handwritten representations added to the purchase agreement are sufficient to show that the parties intended to abrogate the doctrine of equitable conversion and allow Sun Trust to convey an easement to Gulf Holdings after the purchase agreement had been executed. The court, however, determined the handwritten language to be too vague and indefinite to have any meaning at all. The representation added to the purchase agreement that the sale was “[s]ubject to telecommunications easement lease rights thereafter to Gulf Holdings LLC and its assigns” was found to lack any of the terms necessary to validly show an intent of the parties to abrogate the doctrine of equitable conversion. The language of the agreement shows no intent by the parties to allow Sun Trust to convey a new nearly 100-year easement to Gulf Holdings without involving the buyers. The representation failed to include any details describing how long the easement would be burdening the property and failed to provide any clarity on the scope of the easement or how the property would be burdened. Further, the easement did not exist when the purchase agreement was drafted. The court held that those are material details that one would include in any representation that purported to abrogate the rights of a buyer following the execution of a purchase agreement and that no amount of extrinsic evidence could rectify the omission of those material details. Thus, the representation added to the purchase agreement was too vague, indefinite, and uncertain to interpret and was therefore void and unenforceable. 

The court held that because no other language in the purchase agreement expressly abrogates the doctrine of equitable conversion, Sun Trust had no legal right to unilaterally burden the property with an easement after the execution of the purchase agreement and affirmed the district court’s grant of summary judgment to the buyers on their quiet-title claim. The court also reversed the dismissal of the buyers’ slander-of-title claim and remanded it to the district court for further analysis. Howard v. Sun Trust Fin. LLC, No. A21-1634, 2022 WL 6272038 (Minn. Ct. App. 10/10/2022). 

Mike Pfau
DeWitt LLP

Tax Law

• Addition to bankruptcy law constrains tax court in issuing automatic stays. A taxpayer had a petition pending in tax court. The taxpayer then filed a chapter 11 bankruptcy petition, which automatically stayed the tax court proceeding pursuant to 11 U.S.C. §362(a)(8). The bankruptcy court issued an order confirming the taxpayers’ Chapter 11 plan, and the taxpayers then moved to lift the stay. The tax court held that although such an order might have previously been granted under case law, a change to the bankruptcy code limited the tax court’s prior holding. In particular, the tax court reasoned that the additional statutory language clearly provided that debt is not discharged until “(i) the bankruptcy court grants a discharge on completion of all payments under the plan or (ii) a bankruptcy court grants a discharge before that time after notice and a hearing.” In this case, since neither of those events had occurred, the tax court determined it did not have discretion to lift the automatic stay. Cochran v. Comm’r, No. 21002-16, 2022 WL 6957390 (T.C. 10/12/2022).

• Refund not binding on IRS. In a memorandum opinion, the tax court reminded individual taxpayers that tax refunds are not final determinations that preclude subsequent adjustments. A married couple was assessed a deficiency relating to their advanced premium tax credits (APTC). The APTC has proved challenging to taxpayers, in part because the advance nature of the credit combines with taxpayers’ changing financial circumstances throughout the year. As the court explains, “At year end a taxpayer who received an APTC must reconcile the amount of the APTC already received with the entitlement amount.… If the APTC is greater than the entitlement amount, the taxpayer owes the Government the excess APTC, which will be reflected as an increase in tax.” In this dispute, the taxpayers received more in premium than amounts to which they were ultimately entitled. To compound the taxpayers’ confusion, their refund was first frozen; then, after supplying additional requested information, the taxpayers received the refund. Later, however, the taxpayers were audited, and a deficiency was assessed. The taxpayers made a preclusion argument, which the court rejected based on long settled case law. “A refund is not binding on the Commissioner in the absence of a closing agreement, valid compromise, or final adjudication…. It is well settled that the granting of a refund does not preclude the Commissioner from issuing a notice of deficiency merely because he accepted a taxpayer’s return and issued a refund.” Manzolillo v. Comm’r, T.C.M. (RIA) 2022-107 (T.C. 2022) (internal citations omitted).

• Testimony given under oath and subject to cross-examination amounts to “newly discovered evidence” in an innocent spouse case. Judge Holmes issues a bench opinion following a trial in which a taxpayer sought innocent spouse relief. The opinion explained that the court is “to look only at the administrative record, with two exceptions; and those two exceptions are for evidence that is newly discovered or evidence that was previously unavailable.” The court considered the taxpayer’s testimony as fitting into one of those exceptions for the purposes of the instant case. The court cautioned, however, that the court was “not deciding this for all cases in the future. I am assuming that I can look at the evidence that took the form of her testimony. So I will look at both the administrative record in this case and at the testimony of [the petitioning spouse].” Bacigalupi v. Comm’r, No. 20480-21, 2022 WL 15427141 (T.C. 10/27/2022).

Morgan Holcomb
Mitchell Hamline School of Law

Brandy Johnson
Mitchell Hamline School of Law