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STATE OF MINNESOTA HENNEPIN COUNTY |
DISTRICT COURT FOURTH JUDICIAL DISTRICT CASE TYPE: CIVIL |
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PERSONA,, PLAINTIFF-COUNTER DEFENDANT v. PERSONA, DEFENDANT-COUNTER PLAINTIFF/JUDGMENT DEBTOR |
Court File No.: ____________ JUDGE PERSONA, NOTICE OF MOTION AND MOTION TO RECONSIDER |
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NOTICE OF MOTION AND MOTION
To the above named PLAINTIFF-COUNTER DEFENDANT:
You are notified that on a date and time to be determined by the Court, Defendant-Counter Plaintiff, pro se, will bring on for hearing her Motion to Reconsider Order for the reasons stated in the following Motion.
Dated: ENTER DATE Respectfully submitted:
_________________PERSONA,ADDRESS
Email: ______________
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT-COUNTER PLAINTIFF’S MOTION FOR RECONSIDERATION
COMES NOW Defendant-Counter Plaintiff, PERSONA, (hereinafter “Knazze”), pro se, pursuant to Minn. Gen. R. Prac. 115.11, and in support thereof would most respectfully show unto the Court the following, to-wit:
On October 11, 2021 PLAINTIFF-COUNTER DEFENDANT/JUDGEMENT CREDITOR (hereinafter “Biersdorf” or “PLAINTIFF-COUNTER DEFENDANT”) filed the present complaint for renewal of judgment and attorney fees.
Knazze responded by filing his answer with counterclaims for breach of fiduciary duty,
legal malpractice, tortious interference with prospective contractual relations, defamation and negligence.
On November 9, 2021 Knazze filed the answer to counterclaims. In its answer Biersdorf did not assert a defense regarding the expert-affidavit requirements.
On December 23, 2021 PLAINTIFF-COUNTER DEFENDANT sent a notice requesting an affidavit pursuant to Minn.Stat. § 544.42.
Knazze then filed a Motion to waive the expert affidavit requirement. In the Motion, Knazze argued that a good cause existed for not requiring certification. For instance, the conduct complained of could be evaluated adequately by a jury in the absence of expert testimony. It was also not possible for Knazze to find an expert within the tight schedule. Further, Knazze has not been able to find another attorney to give the expert evidence, on time. Lastly, Knazze argued that there was a need to conclude the discovery process, which will reveal all communication between Knazze’s former attorney and Biersdorf. Knazze also asserted that excusable neglect existed in the matter such that if the court does not waive the requirement for expert affidavit, the Court should extend the deadline.
On February 23, 2022, this Court entered an order on Knazze’s Motion and Biersdorf Motion to compel compliance with a third party subpoena. In the said Order, the Court denied Knazze’s Motion. The Court further Ordered that Knazze must file an expert affidavit within sixty days from the date of issue of the Order.
ARGUMENTS
Defendant-Counter Plaintiff would show that the Court erred in denying Knazze’s Motion for a waiver of the expert-affidavit requirement.
- Biersdorf’s conduct can be evaluated by a jury; expert disclosure is therefore not necessary
Expert testimony is required to establish issues of legal malpractice, unless the conduct can be evaluated by a jury in the absence of expert testimony. Wartnick v. Moss Barnett, 490 N.W.2d 108, 116 (Minn. 1992). Thus, whether a plaintiff is required to make an expert disclosure is something that must be determined on a case-by-case basis for each element of the prima facie case of malpractice. For instance, the determination of proximate cause is normally a question of fact for the jury. See Wartnick. 90 N.W.2d at 115. According to the Supreme Court of Minnesota in Hill v. Okay Construction Co. Inc., 312 Minn. at 337, 252 N.W.2d at 116, instead of relying on a general rule, the Court can analyze whether the facts needed to establish but-for causation are within an area of common knowledge and lay comprehension such that they can be adequately evaluated by a jury in the absence of an expert. Further there is no requirement for expert testimony on the other elements of a prima facie case of legal malpractice. The Court may conclude that a genuine issue of material fact exists even in the absence of expert testimony on causation. Admiral Merchants Motor Freight, Inc. v. O’Connor & Hannan, 494 N.W.2d 261, 267 (Minn.1992).
In the instant action, Knazze avers that the jury can determine the conduct of the Plaintiff-Counter Defendant. Per Wartnick. the jury is able to determine the issue of probable cause of Biersdorf’s actions and/or inactions. Further, the facts leading to Defendant-Counter plaintiff’s allegations are within the common knowledge of reasonable persons.
- The discovery process will provide pertinent evidence to support Knazze’s counterclaims
When bringing a legal malpractice claim, a plaintiff must present evidence of the applicable standard of care and that the standard was breached. Wartnick v. Moss Barnett, 490 N.W.2d 108, 116 (Minn. 1992).
According to Minn. Stat. § 544.42(3)(c), ood cause includes, but is not limited to the requirement for an expert affidavit may be waived upon a showing that the action requires discovery to provide a reasonable basis for the expert’s opinion.
In the instant action, Knazze’s counterclaims require discovery to reveal all communications between Plaintiff-Counter Defendant and Defendant Counter Plaintiff’s former Attorneys regarding Bierdorf’s unpermitted disclosures. Notably, Defendant Counter Plaintiff’s former attorney decided to cancel representation after conversations with Plaintiff- Counter Defendant. These facts can be demonstrated only after conducting discovery. For this reason, Knazze asserts that discovery will reveal pertinent evidence that will show Bierdorf’s blameworthy conduct.
WHEREFORE, PREMISES CONSIDERED, Defendant-Counter Plaintiff prays that this Court reconsiders its Order entered February 23, 2022. Defendant-Counter Plaintiff also requests this Court to issue any other Order it deems just.
Dated: ENTER DATE Respectfully submitted:
_________________PERSONA,ADDRESS
Email:________________
CERTIFICATE OF SERVICE
I, PERSONA, do hereby certify that I have this day mailed, U.S. Mail, postage prepaid, a true and correct copy of the above and foregoing to Biersdorf & Associates, P.A at the following address;
PERSONA,
ADDRESS
Dated: ENTER DATE
_________________PERSONA,ADDRESS
Email: ______________
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