Preview
27-CV-18-19659
Filed in District Court
State of Minnesota
11/15/2019 3:28 PM
STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
CASE TYPE: CONTRACT
Ryan Lazenby, and Court File No. 27-CV-18-19659
Temaca Irrigation LLC, (The Hon. Joseph Klein)
Plaintiffs,
VS. REPLY MEMORANDUM OF LAW IN
SUPPORT OF PLAINTIFFS’ PRETRIAL
MOTION IN LIMINE
Guadalupe Gomez, James Gomez
Temaca Lawn Sprinkler's, Inc. d.b.a.
Temaca Lawn Sprinklers,
Defendants.
INTRODUCTION
Plaintiffs make this Reply t0 Defendants’ Response to Plaintiffs’ Motion in limine.
Defendants’ Response confusingly asks the Court t0 both recognize that they have counterclaims
and t0 allow them t0 file counterclaims. Defendants provide no legal rationale for either request.
Defendants have known that they failed t0 file counterclaims for well over half a year. Despite
this, they have done nothing to properly amend their pleadings. Even now, they cannot be bothered
to make a legal argument in opposition t0 Plaintiffs’ motion. Defendants’ lack of counterclaims
is 0f their own making. Plaintiffs respectfillly request the Court grant its motion limiting the trial
in this matter t0 Plaintiffs’ claims.
ARGUMENT
On November 4, 2019, Defendants filed three documents in opposition to Plaintiffs’
Motion in limine: a notice 0f motion and motion, a two-sentence affidavit from attorney Halper,
and a proposed order. Defendants’ filings are contradictory and unaccompanied by any citations
27-CV-18-19659
Filed in District Court
State of Minnesota
11/15/2019 3:28 PM
to the rules or case law. It is difficult to ascertain exactly what Defendants are asking the Court to
do. Defendants seem to argue both that they already have counterclaims, and they should be
allowed to serve and file counterclaims. Defendants’ filings contain no memorandum of law
giving a rationale for their position. Both the Court and Plaintiffs must guess as to Defendants’
legal theories. This failure to provide a basis for their opposition is reason enough to grant
Plaintiffs’ motion in limine and deny Defendants any relief.
In the Affidavit of Halper, Defendants incorrectly assert that Plaintiffs have consented to
the filing of amended pleadings. Specifically, the affidavit states that “[a]t no time during this
proceeding and prior to filing his affidavit, dated October 25, 2019, did the attorney for Plaintiffs
object to the pleadings set forth as Exhibits A through E.” No exhibits were attached to the
affidavit, so it cannot be determined what purported “pleadings” Defendants are referencing.
As a general matter, Plaintiffs’ have made abundantly clear their opposition to Defendants’
failure to properly amend their pleadings. Plaintiffs’ April 24, 2019 Memorandum of Law
explicitly stated “Defendants currently do not have any counterclaims”. That same Memorandum
made it clear that Plaintiffs never consented to the filing of any amended pleadings. Section III
of the Memorandum went into great detail about the procedural posture of the case, and the
applicable rules if Defendant did ask for leave to amend. Plaintiffs also raised the issue in a March
phone call with the Court and at the May 1, 2019 hearing.
Defendants give no rationale under the Minnesota Rules of Civil Procedure for why they
should be allowed to bring counterclaims, and Plaintiffs will not shadow box with non-existent
arguments. However, because the Court’s deadline for filing of pleadings has long since expired,
Defendants must show both “good cause” for the amendment, and that they acted with “due
diligence” in attempting to seek the amendment. Staffing Specifix, Inc. v. TempWorks Mgmt.
2
27-CV-18-19659
Filed in District Court
State of Minnesota
11/15/2019 3:28 PM
Services, Ina, 896 N.W.2d 115, 127 (Minn. Ct. App. 2017), review granted in part (June 28, 2017),
affd, 9 1 3 N.W.2d 687 (Minn. 2018). Defendants’ response does neither. Defendants have known
Plaintiffs’ position 0n their pleadings since at least March of 2019. Defendants” filings give n0
rationale for Why they waited until the originally scheduled trial date in November of 2019 to
request leave to bring counterclaims. Defendants’ delay is inexplicable and inexcusable.
Defendants chose not t0 avail themselves of the procedure outlined by the Rules for
amending their pleadings, despite clear warning from the Court. Plaintiffs should not have their
trial further delayed because of Defendants’ failure to follow the rules. Because Defendants never
properly brought counterclaims, Plaintiffs have not sought discovery 0n those counterclaims. The
allowance 0f counterclaims at this late stage would prejudice Plaintiffs and unnecessarily add to
the cost 0f litigation.
Moreover, Defendants still have not identified exactly what counterclaims they believe
they possess. The Halper Affidavit referenced exhibits that she claimed were pleadings, but failed
to attach any actual documents. Defendants’ proposed order contemplates the filings 0f still more
purported pleadings.
CONCLUSION
Defendants have had every opportunity t0 conduct this litigation pursuant t0 the Minnesota
Rules of Civil Procedure. They have declined that opportunity. Accordingly, the Court should
put an end t0 this and recognize that Defendants’ only pleadings in this matter are those filed and
served in December of 2019. Since the Defendants’ December 2018 pleadings contain n0
counterclaims, Defendants should not be allowed t0 assert any counterclaims at trial. The evidence
at trial should therefore be limited to Plaintiffs claims and any legitimate defenses thereto.
27-CV-1 8-1 9659
Filed in District Court
State of Minnesota
11/15/2019 3:28 PM
BURNS & HANSEN P.A.
Dated: November 15, 2019 /s/KirkA. Tisher
Erik F. Hansen (0303410)
Erik@burnshansen.com
Kirk A. Tisher (0397712)
kirk@burnshansen.com
8401 Wayzata Blvd, Suite 300
Minneapolis, MN
55426
Telephone: (952) 564-6262
Facsimile: (952) 564-6263
Attorneysfor Plaintiffs
ACKNOWLEDGEMENT REQUIRED BY MINN. STAT. S 549.211
The undersigned hereby acknowledges that costs, disbursements and reasonable attorney
and Witness fees may be awarded pursuant t0 Minn. Stat. §549.21 1, Subd. 2 t0 the party against
whom the allegations in the pleading are asserted.
BURNS & HANSEN P.A.
Dated: November 15, 20 1 9 /S/KirkA. Tisher
Erik F. Hansen (0303410)
Erik@burnshansen.com
Kirk A. Tisher (0397712)
kirk@bumshansen.com
8401 Wayzata Blvd, Suite 300
Minneapolis, MN
55426
Telephone: (952) 564-6262
Facsimile: (952) 564-6263
Attorneys for Plaintiffs
Preview
27-CV-18-19659 Filed in District Court State of Minnesota 11/15/2019 3:28 PM STATE OF MINNESOTA DISTRICT COURT COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT CASE TYPE: CONTRACT Ryan Lazenby, and Court File No. 27-CV-18-19659 Temaca Irrigation LLC, (The Hon. Joseph Klein) Plaintiffs, VS. REPLY MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ PRETRIAL MOTION IN LIMINE Guadalupe Gomez, James Gomez Temaca Lawn Sprinkler's, Inc. d.b.a. Temaca Lawn Sprinklers, Defendants. INTRODUCTION Plaintiffs make this Reply t0 Defendants’ Response to Plaintiffs’ Motion in limine. Defendants’ Response confusingly asks the Court t0 both recognize that they have counterclaims and t0 allow them t0 file counterclaims. Defendants provide no legal rationale for either request. Defendants have known that they failed t0 file counterclaims for well over half a year. Despite this, they have done nothing to properly amend their pleadings. Even now, they cannot be bothered to make a legal argument in opposition t0 Plaintiffs’ motion. Defendants’ lack of counterclaims is 0f their own making. Plaintiffs respectfillly request the Court grant its motion limiting the trial in this matter t0 Plaintiffs’ claims. ARGUMENT On November 4, 2019, Defendants filed three documents in opposition to Plaintiffs’ Motion in limine: a notice 0f motion and motion, a two-sentence affidavit from attorney Halper, and a proposed order. Defendants’ filings are contradictory and unaccompanied by any citations 27-CV-18-19659 Filed in District Court State of Minnesota 11/15/2019 3:28 PM to the rules or case law. It is difficult to ascertain exactly what Defendants are asking the Court to do. Defendants seem to argue both that they already have counterclaims, and they should be allowed to serve and file counterclaims. Defendants’ filings contain no memorandum of law giving a rationale for their position. Both the Court and Plaintiffs must guess as to Defendants’ legal theories. This failure to provide a basis for their opposition is reason enough to grant Plaintiffs’ motion in limine and deny Defendants any relief. In the Affidavit of Halper, Defendants incorrectly assert that Plaintiffs have consented to the filing of amended pleadings. Specifically, the affidavit states that “[a]t no time during this proceeding and prior to filing his affidavit, dated October 25, 2019, did the attorney for Plaintiffs object to the pleadings set forth as Exhibits A through E.” No exhibits were attached to the affidavit, so it cannot be determined what purported “pleadings” Defendants are referencing. As a general matter, Plaintiffs’ have made abundantly clear their opposition to Defendants’ failure to properly amend their pleadings. Plaintiffs’ April 24, 2019 Memorandum of Law explicitly stated “Defendants currently do not have any counterclaims”. That same Memorandum made it clear that Plaintiffs never consented to the filing of any amended pleadings. Section III of the Memorandum went into great detail about the procedural posture of the case, and the applicable rules if Defendant did ask for leave to amend. Plaintiffs also raised the issue in a March phone call with the Court and at the May 1, 2019 hearing. Defendants give no rationale under the Minnesota Rules of Civil Procedure for why they should be allowed to bring counterclaims, and Plaintiffs will not shadow box with non-existent arguments. However, because the Court’s deadline for filing of pleadings has long since expired, Defendants must show both “good cause” for the amendment, and that they acted with “due diligence” in attempting to seek the amendment. Staffing Specifix, Inc. v. TempWorks Mgmt. 2 27-CV-18-19659 Filed in District Court State of Minnesota 11/15/2019 3:28 PM Services, Ina, 896 N.W.2d 115, 127 (Minn. Ct. App. 2017), review granted in part (June 28, 2017), affd, 9 1 3 N.W.2d 687 (Minn. 2018). Defendants’ response does neither. Defendants have known Plaintiffs’ position 0n their pleadings since at least March of 2019. Defendants” filings give n0 rationale for Why they waited until the originally scheduled trial date in November of 2019 to request leave to bring counterclaims. Defendants’ delay is inexplicable and inexcusable. Defendants chose not t0 avail themselves of the procedure outlined by the Rules for amending their pleadings, despite clear warning from the Court. Plaintiffs should not have their trial further delayed because of Defendants’ failure to follow the rules. Because Defendants never properly brought counterclaims, Plaintiffs have not sought discovery 0n those counterclaims. The allowance 0f counterclaims at this late stage would prejudice Plaintiffs and unnecessarily add to the cost 0f litigation. Moreover, Defendants still have not identified exactly what counterclaims they believe they possess. The Halper Affidavit referenced exhibits that she claimed were pleadings, but failed to attach any actual documents. Defendants’ proposed order contemplates the filings 0f still more purported pleadings. CONCLUSION Defendants have had every opportunity t0 conduct this litigation pursuant t0 the Minnesota Rules of Civil Procedure. They have declined that opportunity. Accordingly, the Court should put an end t0 this and recognize that Defendants’ only pleadings in this matter are those filed and served in December of 2019. Since the Defendants’ December 2018 pleadings contain n0 counterclaims, Defendants should not be allowed t0 assert any counterclaims at trial. The evidence at trial should therefore be limited to Plaintiffs claims and any legitimate defenses thereto. 27-CV-1 8-1 9659 Filed in District Court State of Minnesota 11/15/2019 3:28 PM BURNS & HANSEN P.A. Dated: November 15, 2019 /s/KirkA. Tisher Erik F. Hansen (0303410) Erik@burnshansen.com Kirk A. Tisher (0397712) kirk@burnshansen.com 8401 Wayzata Blvd, Suite 300 Minneapolis, MN 55426 Telephone: (952) 564-6262 Facsimile: (952) 564-6263 Attorneysfor Plaintiffs ACKNOWLEDGEMENT REQUIRED BY MINN. STAT. S 549.211 The undersigned hereby acknowledges that costs, disbursements and reasonable attorney and Witness fees may be awarded pursuant t0 Minn. Stat. §549.21 1, Subd. 2 t0 the party against whom the allegations in the pleading are asserted. BURNS & HANSEN P.A. Dated: November 15, 20 1 9 /S/KirkA. Tisher Erik F. Hansen (0303410) Erik@burnshansen.com Kirk A. Tisher (0397712) kirk@bumshansen.com 8401 Wayzata Blvd, Suite 300 Minneapolis, MN 55426 Telephone: (952) 564-6262 Facsimile: (952) 564-6263 Attorneys for Plaintiffs