1: Draft Motion to Reconsider & Expert Affidavit for review, then finalize the affidavit and deliver notarized color copy, wet signed in blue ink via high resolution PDF and U.S. Mail.
| STATE OF MINNESOTA
HENNEPIN COUNTY |
DISTRICT COURT
FOURTH JUDICIAL DISTRICT CASE TYPE: CIVIL |
| Biersdorf & Associates, P.A.,PLAINTIFF-COUNTER DEFENDANT
v. La’Mont Knazze, III DEFENDANT-COUNTER PLAINTIFF/JUDGMENT DEBTOR |
Court File No.: 27-CV-21-12267JUDGE KRISTIN A. SIEGESMUND
NOTICE OF MOTION AND MOTION TO WAIVE THE EXPERT-AFFIDAVIT REQUIREMENTS
|
NOTICE OF MOTION AND MOTION
To: The Above-named PLAINTIFF-COUNTER DEFENDANT
PLEASE TAKE NOTICE that on a date and time to be determined by the Court, DEFENDANT-COUNTER PLAINTIFF/JUDGEMENT DEBTOR, La’Mont Knazze, III will move the Court (Judge Kristin A. Siegesmund) to waive the expert-affidavit requirements.
Dated: January 28, 2022 Respectfully submitted:
La’Mont Knazze III, Pro Se
7240 60th Ave. N #7
New Hope, MN 55428
Phone: (952) 217-8004
Email: djrsettlesit@yahoo.com
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT-COUNTER PLAINTIFF’S MOTION TO WAIVE THE EXPERT-AFFIDAVIT REQUIREMENTS
DEFENDANT-COUNTER PLAINTIFF La’Mont Knazze, III (hereinafter “Knazze” or “DEFENDANT-COUNTER PLAINTIFF”) respectfully moves the Court, pursuant to Minn.Stat. § 544.42, subd. 3(c), to waive the expert-affidavit requirements.
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Facts.
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.
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A good cause exists for not requiring the certification.
In the present case a good cause exists for not requiring the certification under Minn.Stat. § 544.42. First, Knazze filed his counterclaim without an affidavit pursuant to Minn.Stat. § 544.42 because he believes that an expert testimony is not necessary in the present case. It is well-settled that the expert-affidavit is not required when “the conduct complained of can be evaluated adequately by a jury in the absence of expert testimony.” Hill v. Okay Constr. Co., 312 Minn. 324, 337, 252 N.W.2d 107, 116 (1977). “[W]hether expert testimony is required depends on the nature of the question to be decided by the trier of fact and on whether technical or specialized knowledge will assist the trier of fact.” Blatz v. Allina Health Sys., 622 N.W.2d 376, 388 (Minn.App.2001).
Second, claims against Biersdorf were asserted in response to the complaint in Defendant Counter Plaintiff’s counterclaim. Knazze had only 21 days pursuant to the Rule 12.01 to file the answer with counterclaim. In this situation it was not possible to find an expert.
Third. The court should consider the fact that Knazze acts pro se. Due to Defendant Counter Plaintiff’s actions Knazze was not able to find a new Attorney because records show withdrawal of DEFENDANT-COUNTER PLAINTIFF’s Attorney, and Knazze has been unable to find an Attorney who has been willing to represent him, serve as an expert witness or provide an affidavit in support of Knazze’s counterclaim. If the Court finds that a submission from an expert is necessary, then in lieu of a personal Attorney, Knazze move’s the Court to permit the results of an investigation of Biersdorf and the Attorneys involved in this matter by the Minnesota Lawyers Professional Responsibility Board Office of Lawyers Professional Responsibility to substitute for an expert affidavit.
Finally, Defendant Counter Plaintiff’s counterclaims require discovery to reveal all communications between Plaintiff-Counter Defendant and Defendant Counter Plaintiff’s former Attorneys regarding Bierdorf’s unpermitted disclosures. The fact is that 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.
Accordingly, La’Mont Knazze III moves the Court to find that a good cause exists for not requiring the certification under Minn.Stat. § 544.42.
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If the court does not waive the certification under Minn.Stat. § 544.42, it should extend the deadline for filing the affidavit because excusable neglect exists in the present case.
In Lake Superior Ctr. Auth. v. Hammel, Green & Abrahamson, Inc., 715 N.W.2d 458, 471 (Minn. Ct. App. 2006) the Court concluded that the time limits imposed by Minn.Stat. § 544.42 are procedural and can therefore be extended, even after the time limits expire, upon a showing of excusable neglect pursuant to Minn. R. Civ. P. 6.02.
This Court has previously applied the following standard for excusable neglect in a rule 6.02 case:
Excusable neglect is found when there is a reasonable defense on the merits, a reasonable excuse for the failure to answer, the party acted with due diligence after notice of the entry of judgment, and no substantial prejudice results to other parties. Parker v. O’Phelan, 414 N.W.2d 534, 537 (Minn.Ct.App.), aff’d, 428 N.W.2d 361 (Minn.1988).
In Moen v. Mikhail, 447 N.W.2d 462, 465 (Minn. Ct. App. 1989), rev’d, 454 N.W.2d 422 (Minn. 1990) the court held:
We do not feel that Moen should be denied the right to pursue his claim on technical grounds, particularly where no prejudice to respondents has been shown. See Guillaume & Associates v. Don–John Co., 336 N.W.2d 262 (Minn.1983). We conclude therefore, that it was an abuse of discretion for the trial court not to find excusable neglect under the circumstances of this case.
There is no prejudice to the opposing party that exists in the present case. Pro se Knazze immediately filed the present motion after receiving a demand from the Plaintiff-Counter Defendant for an expert witness and affidavit and following a meet and confer with Biersdorf on December 29th, 2021 via email (SEE EXHIBIT A). A reasonable excuse is present because:
- Knazze acts pro se;
- Knazze had only 21 days to file the counterclaim, therefore he did not have enough time to secure an affidavit;
- Knazze believes that the conduct of PLAINTIFF-COUNTER DEFENDANT can be evaluated adequately by a jury in the absence of expert testimony
Accordingly, if the court does not waive the certification under Minn.Stat. § 544.42, it should extend the time for serving affidavits because excusable neglect exists in this case.
CONCLUSION
For the reasons identified above, Knazze requests that the Court grant his motion to waive the expert-affidavit requirements. Alternatively, if the court does not waive the certification under Minn.Stat. § 544.42, Knazze should be allowed to serve the affidavit required under subdivision 2, clause (1), within 90 days upon receipt of the results of an investigation of Biersdorf by the Minnesota Lawyers Professional Responsibility Board Office of Lawyers Professional Responsibility, and the affidavit required under subdivision 2, clause (2), within 90 days after the conclusion of the agency’s findings.
Dated: January 28, 2022 Respectfully submitted:
La’Mont Knazze III, Pro Se
7240 60th Ave. N #7
New Hope, MN 55428
Phone: (952) 217-8004
Email: djrsettlesit@yahoo.com
CERTIFICATE OF SERVICE
I hereby certify that I served the foregoing Defendant-Counter Plaintiff’s notice of motion and motion to waive the expert-affidavit requirements with supporting affidavit via U.S. and/or electronic mail on counsel listed on the below Service List.
Respectfully submitted:
La’Mont Knazze III, Pro Se
7240 60th Ave. N #7
New Hope, MN 55428
Phone: (952) 217-8004
Acknowledged this 29th day of December, 2021
By:
Notary Public
SERVICE LIST
Biersdorf & Associates, P.A.
Ryan R. Simatic
Attorney #392462
150 S 5th St, Suite 3100
Minneapolis, MN 55402
Tel. (612) 339-7242
Email: info@condemnation-law.com
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