Tips & Traps

Trap: Challenges to Personal Jurisdiction
Defendants who challenge personal jurisdiction over them by the courts in Minnesota generally fail because of the high standard for dismissal under Rule 12.02(b) of the Minnesota Rules of Civil Procedure.  The Minnesota long-arm statutes, Minn. Stat. §543.19 and the so-called “one act” statute, §303.13, have been construed to permit Minnesota courts to exercise extraterritorial personal jurisdiction to the maximum extent allowed under the “minimum contacts” doctrine of the Due Process Clause of the 14th Amendment.  See, e.g., In Re Minnesota Asbestos Litigation, 552 N.W.2d 242 (1996).  But nonresident defendants seeking to avert suit in Minnesota may, alternatively, raise the doctrine of forum non conveniens, which the Minnesota Supreme Court adopted in Johnson v. Chicago, Burlington & Quincy Railroad Co., 243 Minn. 58, 66 N.W.2d 750 (1954).  This tenet permits the court to decline jurisdiction if a case should be more appropriately brought in another forum.  Courts consider a multitude of factors in declining to hear a case, even if subject matter and personal jurisdiction exist.  These include ease of access to evidence, the availability of compulsory process over unwilling witnesses, the costs willing witnesses would incur, the convenience of the parties, and other “public interest” factors.  A case disposed of on forum non conveniens grounds ceases to exist unless the plaintiff pursues the lawsuit in another appropriate forum. 
Marshall H. Tanick
Mansfield Tanick & Cohen, PA, Minneapolis
mtanick@mansfieldtanick.com

Tip: City Ordinance Rulings
When representing a municipality, or a party with a complaint against a municipality, it is important to know that some city ordinance rulings are appealable directly to the Court of Appeals. When a city proceeds under an ordinance, and said ordinance does not provide for district court review of the city’s decision, the Court of Appeals has exclusive certiorari jurisdiction.  City of Minneapolis v. Meldahl, 607 N.W.2d 168, 171 (2000).  The key question is: Does the ordinance provide for district court review?  If it does not, then Mendahl applies. Filing the appeal with the Court of Appeals requires a Petition for Writ of Certiorari, a Writ of Certiorari, a Statement of the Case, and a bond.
Patrick J. Kelly
Kelly & Fawcett, PA
St. Paul
pkelly@kellyandfawcett.com

Tip: Testamentary Capacity
A testator’s testamentary capacity is required for a valid will and is a question of fact determined by the district court. To support its determination that testator had testamentary capacity when he executed his will, a Minnesota district court found that in the days immediately preceding the execution of the will, testator was sober, alert, and oriented.  It also found that when testator executed his will, he (1) was able to intelligently discuss the will and its contents, (2) was not confused, (3) discussed gifts that he had previously given to his adult children, (4) iterated his intent to provide for his spouse and (5) emphasized his desire to take care of his minor children. There was also testimony that shortly before execution of the will the testator was alert and oriented, and that the testator did not exhibit any confusion, memory loss, or mental deficiency. The above facts supported a finding of testamentary capacity.  This was the ruling in Estate of James H. Kayser, Decedent, A04-1910, (Minn. App. 2005) (unpublished).
William Forsberg
Parsinen Kaplan Rosberg & Gotlieb
Minneapolis
wforsberg@parlaw.com

Trap: Trademark
When setting up a client’s company, do not assume that availability of a corporate name at the state level means that the name can be used as a trademark.  If the corporate name is to be used to identify goods or services to consumers it will be considered a trademark.  Therefore, trademark clearance of the name at a local and even federal level is advisable to avoid a costly rebranding effort should a third party issue a cease and desist letter.  A free resource to begin the clearance effort is the registered trademark database of the United States Patent and Trademark Office, found at www.uspto.gov.  A trademark attorney can interpret your search results in more depth.
Christopher J. Schulte
Merchant & Gould
Minneapolis
cschulte@merchant-gould.com

Trap: Health Care Directives
The recent anniversary of the high-profile court battle in Florida to determine whether Terri Schiavo should die or continue to live in a permanent vegetative state reminds us that most if not all of the court proceedings and anguish suffered by her family would have been avoided if she had specified her wishes in Florida’s version of a Health Care Directive.  Minnesota has provided a suggested form of a Health Care Directive under Minn. Stat. §145C.16 and every client should consider these difficult issues when preparing their estate plan.
Christopher J. Burns
Rider Bennett, LLP
Minneapolis
cburns@riderlaw.com