Preview
30-CV-17-351
Filed in Tenth Judicial District Court
10/23/2017 3:11 PM
Isanti County, MN
STATE OF MINNESOTA DISTRICT COURT
COUNTY OF ISANTI TENTH JUDICIAL DISTRICT
CASE TYPE: 14, Other Civil
City of Cambridge, Court File No.: 30-CV-17-351
Plaintiff,
MEMORANDUM IN
vs. SUPPORT OF CITY’S
MOTION TO AMEND
Roger Cottrell, Jennifer Cottrell, and COMPLAINT
TKO Properties, LLP,
Defendants.
INTRODUCTION
On June 15, 2017, Plaintiff the City of Cambridge (“City”) commenced a lawsuit
against Roger Cottrell, Jennifer Cottrell, and TKO Properties, LLP, alleging Roger and
Jennifer Cottrell had violated the City’s Zoning Ordinance by residing at a commercial
property located at 509 Main Street North within the City. Since service of the Summons
and Complaint, the City has discovered additional ongoing and continuous zoning
violations. In the interest of judicial economy, the City seeks to amend its Complaint to
address all of the zoning violations in one proceeding.
LEGAL STANDARD
Rule 15.01 of the Minnesota Rules of Civil Procedure permits a party to amend a
pleading once as a matter of course prior to a responsive pleading. After a responsive
pleading, permission to amend a complaint must be granted by the Court. Permission for
leave to amend “should be liberally granted, except where it would result in prejudice to
30-CV-17-351
Filed in Tenth Judicial District Court
10/23/2017 3:11 PM
Isanti County, MN
the other party.” Staffing Specifix, Inc. v. TempWorks Mgmt. Servs., Inc., 896 N.W.2d
115, 126 (Minn. App. 2017) (citing Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.
1993).
PROCEDURAL POSTURE
By Summons and Complaint delivered via personal service on June 15, 2017, the
City commenced this action against Roger and Jennifer Cottrell. Ex. A. The City
attempted to serve TKO Properties, LLC at the street address on the contract for deed.
The person responding at that address did not know who TKO Properties was, or who
could accept service on its behalf. Vieira Aff. ¶3. The City then commenced the action
against TKO Properties by service through the Minnesota Secretary of State. Ex. B.
On June 19, 2017, Counsel for the City received correspondence from the Cottrells
stating that they moved into an apartment located at 1185 Main Street South, Apt. #213
in the City. Ex. C. This correspondence included a copy of a lease for that apartment
commencing April 1, 1017. Id. Although this communication does not formally comply
with the requirements of Minnesota Rules of Civil Procedure 8.05 or 10.01, the City
brings this motion on the presumption the correspondence is an “Answer” within the
terms of the Rules.
Subsequent to the filing of this action, the City has been made aware of two
additional zoning violations at the Property. By letter dated August 2, 2017, the City
notified Roger Cottrell that the Property was in violation of the City’s Zoning Ordinance
because he had not submitted a parking plan. Ex. D. By letter dated October 2, 2017, the
City notified Mr. Cottrell that the Property was in violation of the City’s Zoning
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30-CV-17-351
Filed in Tenth Judicial District Court
10/23/2017 3:11 PM
Isanti County, MN
Ordinance because he had erected a temporary sign without complying with the
Ordinance. Ex. E. Upon information and belief, neither of these violations has been
remedied. Vieira Aff. ¶8.
ARGUMENT
Leave to amend is granted liberally, unless there will be prejudice to the other
party. Staffing Specifix, 896 N.W.2d at 126; see also Hoeft v. Hennepin County, 754
N.W.2d 717 (Minn. App. 2008). In this case, there will be no prejudice to Defendants.
Leave to amend has been sought prior to the commencement of discovery (Vieira Aff. ¶
9) and prior to the motion deadline on December 18, 2017 (see Scheduling Order filed
Aug. 24, 2017). This is not a case in which the City has waited until the eve of trial to
seek amendment in which Defendants may claim they would be prejudiced by delay. See
Metag v. K-Mart Corp., 385 N.W.2d 864, 866 (Minn. App. 1986) (finding prejudice
where plaintiff sought to amend complaint four years after commencing action and six
months after pretrial conference). If Defendants believe they will be prejudiced by the
amendment, Defendants have the burden of showing prejudice. Raspler v. Seng, 11
N.W.2d 440, 441 (Minn. 1943).
Specifically, a party may supplement pleadings to include actions that occurred
after the commencement of an action. Minn. R. Civ. P. 15.04. The label of
“supplemental” or “amended” pleading is not determinative of the outcome of the
motion. Dale v. Pushor, 75 N.W.2d 595, 601 (Minn. 1956). Here, amending the
Complaint serves both Defendants and the Court by preventing Defendants from needing
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30-CV-17-351
Filed in Tenth Judicial District Court
10/23/2017 3:11 PM
Isanti County, MN
to defend against simultaneous related actions and serves judicial economy by preventing
the Court from needing to consider and rule on simultaneous related actions.
CONCLUSION
For the reasons identified above, the City respectfully requests permission to serve
and file its Amended Complaint attached to the Affidavit of Elizabeth Vieira as Exhibit
G.
RUPP, ANDERSON, SQUIRES &
WALDSPURGER, P.A.
Dated: October 23, 2017 By:__s/Elizabeth J. Vieira__________
Jay T. Squires, Atty. No. 204699
Elizabeth J. Vieira, Atty. No. 392521
333 South Seventh Street, Suite 2800
Minneapolis, MN 55402
(612) 436-4300
jay.squires@raswlaw.com
liz.vieira@raswlaw.com
ATTORNEYS FOR PLAINTIFF
RASW: 96889
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Preview
30-CV-17-351 Filed in Tenth Judicial District Court 10/23/2017 3:11 PM Isanti County, MN STATE OF MINNESOTA DISTRICT COURT COUNTY OF ISANTI TENTH JUDICIAL DISTRICT CASE TYPE: 14, Other Civil City of Cambridge, Court File No.: 30-CV-17-351 Plaintiff, MEMORANDUM IN vs. SUPPORT OF CITY’S MOTION TO AMEND Roger Cottrell, Jennifer Cottrell, and COMPLAINT TKO Properties, LLP, Defendants. INTRODUCTION On June 15, 2017, Plaintiff the City of Cambridge (“City”) commenced a lawsuit against Roger Cottrell, Jennifer Cottrell, and TKO Properties, LLP, alleging Roger and Jennifer Cottrell had violated the City’s Zoning Ordinance by residing at a commercial property located at 509 Main Street North within the City. Since service of the Summons and Complaint, the City has discovered additional ongoing and continuous zoning violations. In the interest of judicial economy, the City seeks to amend its Complaint to address all of the zoning violations in one proceeding. LEGAL STANDARD Rule 15.01 of the Minnesota Rules of Civil Procedure permits a party to amend a pleading once as a matter of course prior to a responsive pleading. After a responsive pleading, permission to amend a complaint must be granted by the Court. Permission for leave to amend “should be liberally granted, except where it would result in prejudice to 30-CV-17-351 Filed in Tenth Judicial District Court 10/23/2017 3:11 PM Isanti County, MN the other party.” Staffing Specifix, Inc. v. TempWorks Mgmt. Servs., Inc., 896 N.W.2d 115, 126 (Minn. App. 2017) (citing Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). PROCEDURAL POSTURE By Summons and Complaint delivered via personal service on June 15, 2017, the City commenced this action against Roger and Jennifer Cottrell. Ex. A. The City attempted to serve TKO Properties, LLC at the street address on the contract for deed. The person responding at that address did not know who TKO Properties was, or who could accept service on its behalf. Vieira Aff. ¶3. The City then commenced the action against TKO Properties by service through the Minnesota Secretary of State. Ex. B. On June 19, 2017, Counsel for the City received correspondence from the Cottrells stating that they moved into an apartment located at 1185 Main Street South, Apt. #213 in the City. Ex. C. This correspondence included a copy of a lease for that apartment commencing April 1, 1017. Id. Although this communication does not formally comply with the requirements of Minnesota Rules of Civil Procedure 8.05 or 10.01, the City brings this motion on the presumption the correspondence is an “Answer” within the terms of the Rules. Subsequent to the filing of this action, the City has been made aware of two additional zoning violations at the Property. By letter dated August 2, 2017, the City notified Roger Cottrell that the Property was in violation of the City’s Zoning Ordinance because he had not submitted a parking plan. Ex. D. By letter dated October 2, 2017, the City notified Mr. Cottrell that the Property was in violation of the City’s Zoning 2 30-CV-17-351 Filed in Tenth Judicial District Court 10/23/2017 3:11 PM Isanti County, MN Ordinance because he had erected a temporary sign without complying with the Ordinance. Ex. E. Upon information and belief, neither of these violations has been remedied. Vieira Aff. ¶8. ARGUMENT Leave to amend is granted liberally, unless there will be prejudice to the other party. Staffing Specifix, 896 N.W.2d at 126; see also Hoeft v. Hennepin County, 754 N.W.2d 717 (Minn. App. 2008). In this case, there will be no prejudice to Defendants. Leave to amend has been sought prior to the commencement of discovery (Vieira Aff. ¶ 9) and prior to the motion deadline on December 18, 2017 (see Scheduling Order filed Aug. 24, 2017). This is not a case in which the City has waited until the eve of trial to seek amendment in which Defendants may claim they would be prejudiced by delay. See Metag v. K-Mart Corp., 385 N.W.2d 864, 866 (Minn. App. 1986) (finding prejudice where plaintiff sought to amend complaint four years after commencing action and six months after pretrial conference). If Defendants believe they will be prejudiced by the amendment, Defendants have the burden of showing prejudice. Raspler v. Seng, 11 N.W.2d 440, 441 (Minn. 1943). Specifically, a party may supplement pleadings to include actions that occurred after the commencement of an action. Minn. R. Civ. P. 15.04. The label of “supplemental” or “amended” pleading is not determinative of the outcome of the motion. Dale v. Pushor, 75 N.W.2d 595, 601 (Minn. 1956). Here, amending the Complaint serves both Defendants and the Court by preventing Defendants from needing 3 30-CV-17-351 Filed in Tenth Judicial District Court 10/23/2017 3:11 PM Isanti County, MN to defend against simultaneous related actions and serves judicial economy by preventing the Court from needing to consider and rule on simultaneous related actions. CONCLUSION For the reasons identified above, the City respectfully requests permission to serve and file its Amended Complaint attached to the Affidavit of Elizabeth Vieira as Exhibit G. RUPP, ANDERSON, SQUIRES & WALDSPURGER, P.A. Dated: October 23, 2017 By:__s/Elizabeth J. Vieira__________ Jay T. Squires, Atty. No. 204699 Elizabeth J. Vieira, Atty. No. 392521 333 South Seventh Street, Suite 2800 Minneapolis, MN 55402 (612) 436-4300 jay.squires@raswlaw.com liz.vieira@raswlaw.com ATTORNEYS FOR PLAINTIFF RASW: 96889 4