Bryan Battina has experience representing corporations, business owners, executives, and individuals in a variety of commercial litigation and business disputes, including the following:
Collection and Breach of Contract Disputes
- breach of contract
- bank garnishment
- wage garnishment
- creditor bankruptcy
- student loan guaranty litigation
UCC and Secured Transactions Disputes
- enforcing promissory notes
- confessions of judgment
- UCC security interests
- commercial real estate disputes
Sales Representative Disputes
- breach of contract
- unpaid commissions
- wrongful termination
- violation of Minnesota Termination of Sales Representatives Act
Minority Shareholder and Partnership Litigation
- minority shareholder disputes
- business partnership disputes
- buy-sell agreement enforcement
- shareholder agreement enforcement
- closely-held corporation squeeze-outs, freeze-outs, and oppressive conduct
- shareholder buy-outs, breach of fiduciary duty, and misrepresentation
- officers and directors’ liability
Non-Compete and Trade Secrets Protection
- TRO and injunctive relief cases
- non-compete and non-solicitation enforcement
- employee raiding by competitors
- misappropriation of trade secrets
- protection of confidential information
- breach of employee duty of loyalty
- usurpation of corporate opportunity and self-dealing
- corporate theft of intellectual property
- conversion and civil theft
- Computer Fraud & Abuse Act (CFAA)
Labor & Employment Lawsuits
- breach of employment contract
- unpaid wages, commissions, and bonuses
- employment separation agreements and severance agreements
- EEOC and MDHR Minnesota Department of Human Rights charges
- wrongful termination and unlawful termination litigation
- sex discrimination and sexual harassment
- race, age, national origin, religion, and marital discrimination
- disability discrimination, ADA, reasonable accommodation disputes
- FMLA enforcement
- drug and alcohol testing
- defamation and slander
- breach of privacy
LAWSUITS IN MINNESOTA
With the flurry of lawsuits engulfing our court systems, you or someone you know may become a party to a lawsuit. Lawsuits typically follow a common path. Although the rules and procedures that apply to each case may differ slightly depending on the type of case and jurisdiction, the most common and basic structure of a lawsuit involves initial pleadings, discovery, motions, a pre-trial conference, and in some instances, a trial. Below is a summary of the path a typical lawsuit takes in Minnesota to help prepare businesses and individuals for what the process may entail.
Identifying Your Legal Claims
You must start by deciding whether you have standing to sue and a valid legal claim that can be pursued in court. Standing to sue is whether something affected you personally. This is usually tied to some type of injury. A valid legal claim is one where the grievance can be resolved through legal action. This means you must have suffered a legal wrong that the law can provide you compensation for. Types of legal claims include breach of contract, negligence, medical malpractice, etc. Unless you are familiar with the law, it may be best to consult with a lawyer to help decide what legal claims you may have and if filing a lawsuit is the right decision.
Statute of Limitations
Every state has statute of limitations laws that control how much time you have to bring a claim. Time limits depend on the type of claim you are bringing and the state. It is very important that you are aware of the statute of limitations because if you do not file a claim within the time limits, you will lose the ability to bring your claim. The rules regarding statute of limitations are complex and critical to the case. If you have questions about the statute of limitations, please consult an attorney as soon as possible.
Determining if the Court Has Personal Jurisdiction
Jurisdiction means whether a court has the authority to hear and decide a case. Personal jurisdiction is whether a court has power over the parties involved in the lawsuit. If two people from Minnesota have a dispute in Minnesota and end up in a lawsuit, the Minnesota court would be a better place to settle that dispute than a Wisconsin court. There must be something that ties a person to the state in which they are being sued. Usually, this is where the person lives or works. Personal jurisdiction also applies to corporations. A corporation may be sued where it was incorporated, where it does most of its business, or potentially other places depending on what type of business it is.
Deciding Whether to File in Conciliation Court, State District Court, or Federal Court
It is important to file your case in the correct court, otherwise the case may be removed to another court or the case could be dismissed altogether.
- Conciliation Court: Conciliation court (also known as small claims court) handles civil cases involving monetary claims of $15,000 or less. The procedures in conciliation court are easier to follow, and the filing fee is less than at the district court. An attorney is not required in conciliation court, but it may be in your best interest to consult an attorney to get advice about how the law applies to the facts of your case. Some claims cannot be heard in conciliation court, such as claims about title to real estate or actions against the deceased. See Minnesota Statute 491A.01 Subd. 4 to find out more about which claims are excluded.
- State District Court: Most Minnesota lawsuits are in the Minnesota District Courts. If the case concerns an amount too large for conciliation court and does not meet the requirements for federal court, then it should be filed in the state district court.
- Federal Court: Federal courts are courts of limited jurisdiction. This means that a federal court can only hear cases that meet certain requirements. Federal courts can only hear cases where: (1) the United States government is a party to the suit; (2) the case involves a federal question; or (3) there is complete diversity between the plaintiffs and defendants. A federal question means that there needs to be something about the case that ties it to federal law or has a federal element. The diversity requirement means that the plaintiffs and defendants cannot be citizens of the same state and the amount in controversy must exceed $75,000. If your case does not fall under one of these categories, then you cannot bring the case in federal court.
Many cases that can be filed in federal court also can be filed in state district court. To decide which court to file in, a party may look to factors such as the applicable statute of limitations or geographic location of the court. Attorneys use their experience to “forum shop” or decide which court will be most favorable to their client.
Determining the Proper Venue for the Lawsuit
Venue is proper when the selected court provides a convenient location for resolution of the dispute. Most often, the venue will be a county court near where the defendant lives or where the dispute occurred. If your case involves real estate, the venue is proper in the county where the property is located. If you are unsure of where venue is proper for your case, it may be best to consult an attorney.
Initial pleadings are the first documents exchanged between parties to initiate and defend against a lawsuit. The initial pleadings include a civil cover sheet, summons, and complaint from the plaintiff, and an answer, affirmative defenses, and any counterclaims from the defendant.
- Civil Cover Sheet: If the case is a non-family, civil case, then the party filing must provide a civil cover sheet to the court administrator at the time of filing. The civil cover sheet asks for information about your case such as the parties, addresses, and the basis for the case. Usually, this sheet is filled out by an attorney. The Minnesota Judicial Branch provides this Civil Cover Sheet.
- Summons and Complaint: A summons puts the defendant on notice of the lawsuit. The summons is served on the defendant with a complaint and typically requires the defendant to serve an answer to the complaint within twenty days after service. The complaint identifies the parties to the lawsuit, lays out the facts or events giving rise to the dispute, establishes the legal basis for the causes of action (i.e., legal claims such as “breach of contract,” “breach of fiduciary duty,” “defamation,” “negligence,” etc.), and requests relief from the court for such action. In legal terms, service means delivery. Depending on the situation, service may be by person, mail, publication, or electronic means. Court rules require that service is not done by a party to the dispute. See Minnesota General Rules of Practice 355 for the methods of service.
- Answer: After receiving the summons and complaint, the defendant must respond to the complaint through a document called an “answer.” The answer provides an opportunity for the defendant to respond to each of the plaintiff’s allegations by either denying, admitting, or admitting in part and denying in part each allegation made in the complaint. For example, if the complaint alleges that the defendant is the CEO of ABC, Inc., if true, the defendant “admits” the allegation. However, if the plaintiff alleges that the defendant, as CEO of ABC, Inc., breached her fiduciary duties to the corporation, the defendant may need to admit the allegation in part and deny it in part. The defendant will likely admit that she is the CEO, if that is true, but she will deny that she breached her fiduciary duties. After the defendant admits or denies each allegation in the complaint, the defendant will list all “affirmative defenses” to the claims alleged in the complaint.
- Affirmative Defenses: An affirmative defense is a fact or set of facts other than those alleged by the plaintiff which, if proven by the defendant, will defeat or mitigate the legal consequences of the defendant’s otherwise unlawful conduct. For example, if the defendant believes the plaintiff waited too long to bring the claim, the defendant will assert that the lawsuit was not brought within the applicable statute of limitations. Certain affirmative defenses must be asserted in the defendant’s original answer (or, in some cases, included in a motion to dismiss the complaint) or else they will be waived. Therefore, it is important for the defendant to work with their attorney to identify all potential affirmative defenses and include them in the answer.
- Counterclaims: If the defendant believes the plaintiff committed a wrong, the defendant may bring a counterclaim against the plaintiff. The counterclaim acts much like the plaintiff’s complaint in that it sets forth the legal basis for the cause of action and the request for relief from the court. For example, if the plaintiff is a corporation suing a limited liability company for breach of contract, the limited liability company may file a counterclaim that the corporation made fraudulent misrepresentations. There are two types of counterclaims: “compulsory” and “permissive.” A compulsory counterclaim is essentially one that arises out of the same facts, circumstances, and transactions alleged in the plaintiff’s complaint. If the defendant’s counterclaim is compulsory, the defendant must assert the counterclaim in the same lawsuit, or it will be waived. In contrast, a defendant is not required to assert “permissive” counterclaims in the lawsuit and is free to pursue such permissive counterclaims in a different lawsuit at some future time.
- Important Deadlines: The defendant ordinarily must respond to the complaint within twenty days, or the plaintiff may ask the court to award a default judgment against the defendant. See Minnesota Rules of Civil Procedure 12.01. If the defendant fails to respond to the complaint, it is as if the defendant admits the allegations in the complaint and the plaintiff will normally receive a judgment for the money damages or other relief requested in the complaint. Under some circumstances, the defendant can bring a motion to vacate a default judgment. Because the court will not always agree to vacate a default judgment, the safest course of action is for the defendant to answer the complaint within the twenty-day deadline.
After the parties exchange initial pleadings, the discovery process begins. The discovery process allows the parties to gather facts and evidence to support their claims and defenses. The length of discovery depends on the type of case and the court, but typically takes about six to nine months in the typical case. Throughout this period, the parties are expected to exchange information related to the lawsuit. Discovery typically includes the following:
- Initial Disclosures: Initial disclosure is a requirement that the parties make available to each other certain information without first receiving a discovery request. The parties must provide the name, and if known, the address and telephone number, of each individual likely to have discoverable information, along with a listing of the subjects known by each person. The parties must also disclose a copy of all documents, electronically stored information, or tangible things that the parties have in their possession, which each party may use to support its claims or defenses. A party must make the initial disclosures at or within 60 days after the original due date when an answer is required. See Minnesota Rule of Civil Procedure 26.
- Discovery Plan: A discovery conference between the parties and the filing of a discovery plan – both standard requirements under the federal rules for many years – will now be mandated under Minnesota’s state rules as of July 1, 2013. Counsel of record and all unrepresented parties must hold a discovery conference within 30 days from the initial due date for the answer. A written discovery plan must be filed with the court within 14 days of the discovery conference. A discovery plan must state the parties’ views and proposals on: what changes should be made in the timing, form, or requirement for disclosures, the subjects on which discovery may be needed, when discovery should be completed, and other related issues. See Minnesota Rule of Civil Procedure 26.06 and the Federal Rule of Civil Procedure 26(f), depending on whether the case is in Minnesota state court or federal court.
- Confidentiality Stipulation and Protective Order: Often, the parties agree to a stipulated protective order at the beginning of the discovery process to protect against disclosure of proprietary or confidential information to the public. These are a necessity if either party is concerned about protecting trade secrets from competitors or the general public. The purpose of a protective order is simply to provide procedures that will protect confidential information. See Minnesota Rule of Civil Procedure 26.03.
- Request for Production: A common way to gather information in discovery is through a request for the production of documents, electronically stored information, tangible items, or entry onto land. For a request for the production of documents, one party may request any documents that pertain to the matter of the lawsuit. The other party must provide the requested documents unless they are protected by privilege. For production of tangible things, one party may request to inspect something in the other party’s control such as a party’s laptop computer, work computer, cell phone, and other electronic devices. In certain cases, one party may need to inspect the other party’s property such as an accident site, vehicle, or equipment involved in an accident. See Minnesota Rule of Civil Procedure 34.
- Interrogatories: In addition to requesting documents, parties often utilize written questions called interrogatories to gather information about the case. Interrogatories consist of a set of written questions that the other party must answer under oath and in writing.
- Request for Admissions: Parties may serve a request for admissions on the other party asking that party to admit to the truth of certain facts. Requests for admissions are used to narrow the issues in controversy and expedite the trial. If the receiving party admits the request, or fails to answer the request within the applicable deadline, the request will be deemed “admitted” at trial.
- Depositions: Another common method of exchanging information is through a deposition. Depositions usually take place after the parties have exchanged answers to the request for production of documents and interrogatories. During a deposition, the attorney for the party requesting the deposition can ask questions of a party or witness, under oath, in front of a court reporter. Later, the court reporter will prepare a verbatim transcript of all the questions and answers during the deposition. A deposition can last all day and is often one of the most important events during the lawsuit. Testimony given during a deposition can be used for various purposes, such as seeking summary judgment (asking the court to enter judgment for or against a particular party without even having a trial) or to impeach the witness at trial.
Regardless of the method of discovery, the general purpose of discovery is to obtain any information that may be pertinent and useful proving or defending the lawsuit.
Duty to Preserve Evidence
There is a duty to preserve evidence pending litigation. This duty begins as soon as a party may reasonably anticipate litigation, which may depend on the facts of the case. It may be wise to send your opposing party a litigation hold letter to put them on notice to preserve materials for litigation. If a party fails to preserve evidence, it could have significant, negative effects. This failure is known as spoliation. Every state has some form of tort action for spoliation of evidence. If a court determines evidence was not preserved in bad faith, it could impose sanctions, give harmful jury instruction, dismiss claims or defenses, or grant the other party summary judgment.
During the lawsuit, either party may file one of a variety of motions. A motion is a request made to the court to obtain a ruling on a specific issue. A motion may be either dispositive or non-dispositive. Minnesota General Rules of Practice 115.01(a) explains that dispositive motions are motions which seek to dispose of all or part of the claims and non-dispositive motions are all other motions that will not affect the claim from moving forward through the litigation process, but rather seek the court’s decision-making authority. For example, a summary judgment motion is a dispositive motion because, if granted, the claim will not continue forward in litigation; whereas, a motion for a protective order, if granted, will not affect the claim from moving forward. Some of the most common types of motions include the following:
- Motion for Temporary Restraining Order or Temporary Injunction: A temporary restraining order (“TRO”) is a short, pre-trial restriction. These are common in cases involving threats of violence, but are also used in a business context if someone is violating a non-compete agreement or has wrongfully taken something from your business. A TRO or injunction may be granted if it clearly appears from specific facts that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party can be heard in opposition. The court will look to the chance of success on the merits and whether the public interest favors granting the injunction. There are also tactical reasons to file a preliminary injunction or TRO that go beyond just getting the order. An attorney can help you decide if a TRO is appropriate for your case. See Minnesota Rules of Civil Procedure 65.
- Motion to Dismiss: A motion to dismiss is a formal request for a court to dismiss a case. A party may bring this motion for a variety of reasons such as settlement between parties, voluntary withdrawal of the complaint, or procedural issues such as failure to state a claim or lack of jurisdiction. This is usually filed by the defendant right after the plaintiff files a complaint. See Minnesota Rules of Civil Procedure 12
- Motion to Compel: A motion to compel is a request that the court order either the opposing party or a third party to do something. These are often used during discovery to force one party to turn over answers to interrogatories or other documents. Failure to follow a motion to compel may result in sanctions by the court or other penalties. See Minnesota Rules of Civil Procedure 37.
- Motion for Summary Judgment: A motion for summary judgment is one of the most common dispositive motions and it should be taken seriously. If the court grants a motion for summary judgment no further litigation will take place on the claim. These motions can be brought by either party, but are usually brought by defendant. In a motion for summary judgment, the court must decide that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Either party may bring a motion for summary judgment and typically the motion is brought after most of the discovery has been concluded. See Minnesota Rules of Civil Procedure 56.03.
Most motions may be filed at any time prior to the issuance of a scheduling order for trial; however, once a scheduling order is issued, the court will establish specific motion-filing deadlines. The Minnesota Rules of Civil Procedure and Minnesota General Rules of Practice dictate which documents need to be served (delivered) on the party and filed with the court in connection with various types of motions. The Federal Rules of Civil Procedure include similar requirements, which are explained in further detail in the Local Rules for the District of Minnesota.
Alternate Dispute Resolution (ADR)
Parties often participate in some form of Alternative Dispute Resolution (“ADR”) to try to settle a dispute because when successful, it can be more time efficient and cost effective than pursuing litigation all the way through trial. The Minnesota Rules of Civil Procedure require the parties to participate in ADR in most cases filed in the state courts. ADR is not mandatory in federal court although it is strongly encouraged. Most of Minnesota civil lawsuits are settled or resolved using ADR. The most common types of ADR are summarized below:
- Settlement Negotiations: The most common form of ADR is party-to-party settlement negotiations. This is when the two parties and their attorneys meet to discuss potential settlement options. Usually this involves the defendant agreeing to compensate the plaintiff for some of their claims.
- Mediation: Sometimes the parties cannot agree on a settlement and a neutral third party is needed to facilitate settlement negotiations between the parties. Mediation is conducted by a neutral third party called a mediator (often a retired judge or practicing attorney with experience in the type of case being litigated). The mediator facilitates discussions between the parties in hopes of reaching a settlement. The mediator will communicate with the parties together, separately, or both, and provides insights into the concerns and proposals of both parties. The goal of mediation is to reach a settlement of the dispute without trying the matter in court. If the parties reach a settlement, the essential terms of the settlement are usually typed up at the end of the mediation and signed by the parties, and their attorneys usually prepare formal settlement documents to carry out the terms of settlement shortly after the mediation. If the parties do not reach a settlement through mediation, the litigation process continues.
- Arbitration: Arbitration is a private determination of a dispute by a neutral arbitrator or panel of arbitrators, often chosen by the parties. It functions similarly to a court hearing, where both parties present their claims, defenses, and evidence to a decision maker, but there are significant advantages to arbitration. It is often less expensive and time-consuming than going to court, but the decision is still binding and enforceable. Arbitration is also generally non-public and can be made confidential if privacy is important to the parties.
- Settlement Conference: In Minnesota federal court, a magistrate judge is assigned to handle many of the day-to-day procedural issues in the case (e.g., discovery disputes) while the district court judge will resolve all dispositive motions and preside over the trial. The magistrate judge often volunteers to conduct a settlement conference between the parties, which shares many of the characteristics of a private mediation in state court. The main difference is that the settlement conference occurs before the magistrate (rather than a privately selected mediator picked by the parties) and the process is free (whereas a private mediator will usually charge a fee).
Before trial, the judge holds a pretrial conference. A pretrial conference typically occurs about a month before the trial. The conference provides one last chance for the court to narrow the issues and attempt to resolve the case. The judge will often encourage the parties to settle their case during the pretrial conference. If the parties still cannot reach a settlement, a trial is necessary. The conference will then shift to the parties and judge discussing issues concerning witnesses, exhibits, jury instructions (in a jury trial), verdict forms, and general trial procedures.
There are two types of trial: a jury trial and a bench trial. At a jury trial, a “jury of one’s peers” makes the final decision concerning the outcome of the case, renders a verdict for or against the plaintiff on each claim, and typically determines the amount of damages (if any) the plaintiff is entitled to recover (if the plaintiff is seeking money damages). In a bench trial, no jury is present and the judge makes the final ruling on the facts of the case and whether judgment should be entered in favor of the plaintiff (or defendant) on each claim.
The parties are entitled to a jury trial for certain types of claims (e.g., breach of contract). By agreement, however, the parties may waive the right to a jury trial and request a bench trial instead. Other types of claims can only be heard by the judge in a bench trial and the parties are not entitled to request a jury. You should talk to your attorney about whether you are entitled to a jury trial and whether it would be advantageous to waive the right to a jury trial.
During a jury trial, the process begins by providing both parties the opportunity to question the potential jurors to determine if jurors have biases that would affect their ability to be impartial. In the case of a jury trial, once a jury is chosen, the judge gives the rules and instructions that govern the case.
In both a jury trial and a bench trial, the plaintiff gives an opening statement, which is followed by the defendant’s opening statement. Next, the plaintiff begins calling witnesses and introducing evidence to prove its claims. After the plaintiff’s attorney questions each witness, the defendant’s attorney has an opportunity to cross-examine the witness. The plaintiff has the burden of proof to convince a jury by a preponderance of the evidence (i.e., “more likely than not”) that it has proven the elements of its claims. Once the plaintiff is done calling witnesses and presenting evidence, it is the defendant’s turn to call witnesses and the plaintiff’s attorney will have a chance to cross-examine each witness for the defense. After the defendant is done presenting evidence and questioning witnesses, each party gives closing arguments. In the case of a jury trial, the judge will then give jury instructions and the jury will deliberate until they reach a verdict. Often, the jury is provided with a “special verdict form” containing a detailed set of questions to be answered regarding each claim in the lawsuit. The judge will interpret the special verdict form to determine whether to enter judgment in favor of the plaintiff or defendant on each claim, after applying the applicable law.
A final judgment or order must be reached by the trial court for the case to be appealable. Appeals must be made within certain time limits prescribed by statute or the rules of the appellate court. If an appeal is not brought in time, you will lose the opportunity to bring an appeal. Appellate courts are very different than trial courts: you cannot bring new facts, witnesses, or arguments. Most appellate courts do not look at whether the judge or decision-maker at the trial court correctly determined the facts of the case, but rather whether the judge or decision-maker correctly applied the law. Even if you are unhappy with a trial court decision, it may not always be wise to bring an appeal. If you lose on an appeal, you may be required to pay the opposing party’s costs. There is no absolute right of appeal for all decisions made by a lower court or agency. However, most states have statutes or case law that establishes a right to appeal in certain cases such as serious criminal offenses. An attorney can help you decide if bringing an appeal is the right decision.
Hiring an Attorney
Litigation can be stressful, expensive, and lawsuits can take a year or longer before going to trial. Although individuals (not corporations, limited liability companies, and other legal entities) may represent themselves in court without an attorney, failure to understand these procedural rules can greatly reduce their chance of success. If you are involved in a lawsuit and would like an experienced attorney to represent you and navigate the legal process, please contact Bryan R. Battina of Trepanier MacGillis Battina P.A. at 612.455.0505.
For each litigation matter, Bryan carefully considers the amount in controversy and business objectives that need to be achieved before developing a litigation plan for your individual case.