Fredin v. Halberg Criminal Defense
U.S. District Court, District of Minnesota
Fredin v. Halberg Criminal Defense
Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Brock Fredin, Case No. 19-cv-3068 (SRN/HB)
Plaintiff,
ORDER
v.
Halberg Criminal Defense,
Christina Zauhar,
Defendants.
Brock Fredin, 1180 7th Ave., Baldwin, WI 54002, pro se.
Barry O’Neil, Lommen Abdo, PA, 1000 International Centre, 920 Second Avenue S.,
Minneapolis, MN 55402, for Defendants.
SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on the Motion to Dismiss [Doc. No. 11] filed by
Defendants Halberg Criminal Defense (“Halberg”) and Christina Zauhar, and the Motion
for Leave to File an Amended Complaint [Doc. No. 35] filed by Plaintiff Brock Fredin.
For the reasons set forth below, the Court grants Defendants’ motion, and denies Plaintiff’s
motion.
I. BACKGROUND
On December 11, 2019, Fredin filed the Complaint [Doc. No. 1] in this action, based
on claims arising from the legal representation provided by Ms. Zauhar to Fredin in
underlying state court criminal and civil actions. Ms. Zauhar is an attorney at the Halberg
law firm. Fredin asserts claims for legal malpractice/negligence, breach of contract,
charging excessive legal fees, fraud, intentional and negligent misrepresentation, false
imprisonment, intentional infliction of emotional distress, and negligent infliction of
emotional distress. (Compl. ⁋⁋ 2, 75–121.) In an earlier lawsuit, Fredin asserted nearly
the same claims against the same defendants. Fredin v. Halberg Crim. Defense, No. 18-
cv-2514 (SRN/HB) (D. Minn. filed Aug. 27, 2018).1 However, in February 2018, the Court
dismissed the earlier action without prejudice for Fredin’s failure to prosecute.
In lieu of filing an answer in this case, Defendants filed the instant Motion to
Dismiss. They argue that Fredin’s claims arise solely from the attorney-client relationship,
and must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6), due to Fredin’s failure to
comply with Minn. Stat. § 544.42. (Defs.’ Mem. Supp. Mot. to Dismiss [Doc. No. 13] at 5.) Under this statute, a plaintiff in a legal malpractice case must serve an affidavit of expert review with the pleadings.Minn. Stat. § 544.42
, subd. 2(1); Noske v. Friedberg,713 N.W.2d 866, 871
(Minn. Ct. App. 2006). In addition, Defendants argue, Fredin’s
claims alleging fraud and negligent misrepresentation also fail to comply with the
heightened pleading requirements of Fed. R. Civ. P. 9(b). (Defs.’ Mem. Supp. Mot. to
Dismiss at 8–9.)
On February 11, 2020, Fredin moved for an extension of time in which to comply
with the expert affidavit requirement [Doc. No. 17]. On April 15, 2020, Fredin again
moved for an extension of time in which to comply with the requirement [Doc. No. 28].
Defendants opposed both motions [Doc. Nos. 24 & 32]. On May 1, 2020, Magistrate Judge
1 The current pleading adds Fredin’s claims for false imprisonment and negligent and
intentional infliction of emotional distress.
Bowbeer denied both motions for an extension [Doc. No. 34], and on May 12, 2020, she
issued an order [Doc. No. 43], denying Fredin’s request for reconsideration [Doc. No. 40].
Fredin did not file a memorandum in opposition to Defendants’ Motion to Dismiss.
On May 7, 2020, he filed the instant Motion to Amend the Complaint. He argues that
“good cause and justice requires leave to file an amended complaint.” (Pl.’s Mem. Supp.
Mot. to Am. [Doc. No. 36] at 2.) He contends that his proposed amended complaint
survives Defendants’ Rule 12(b)(6) challenge because he attaches an affidavit of expert
review. (Id. at 4.) Fredin asserts that he searched for an expert for some time, and “was
only just recently able to afford an expert review.” (Id. at 6.) He identifies attorney Bruce
Rivers as his expert, and provides an affidavit of expert review [Doc. No. 38] with his
proposed amended pleading.
In opposition, Defendants urge the Court to deny Fredin’s Motion to Amend on
grounds of futility. (Defs.’ Opp’n [Doc. No. 44] at 3.) Again, they assert that Fredin failed
to comply with the expert review statute, requiring the dismissal of his claims. (Id.) Even
if the Court considers the Rivers Affidavit, Defendants argue that it does not satisfy the
requirements of Minn. Stat. § 544.42, subd. 3(1).
II. DISCUSSION
A. Standard of Review
When evaluating a motion to dismiss under Rule 12(b)(6), the Court assumes the
facts in the pleading to be true and construes all reasonable inferences from those facts in
the light most favorable to the plaintiff. Morton v. Becker, 793 F.2d 185, 187(8th Cir. 1986). The Court, however, need not accept as true wholly conclusory allegations, Hanten v. Sch. Dist. of Riverview Gardens,183 F.3d 799
, 805 (8th Cir. 1999), or legal conclusions that the plaintiff draws from the facts alleged in the complaint. Westcott v. City of Omaha,901 F.2d 1486, 1488
(8th Cir. 1990).
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint “must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Neubauer v. FedEx Corp., 849 F.3d 400, 404(8th Cir. 2017) (quoting Ashcroft v. Iqbal,556 U.S. 662, 678
(2009) and Bell Atlantic Corp. v. Twombly,550 U.S. 544, 570
(2007)). Facial plausibility exists when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,556 U.S. at 678
(citing Twombly,550 U.S. at 556
). While the plausibility standard is “not akin to a probability requirement,” it necessarily requires a complaint to present “more than a sheer possibility that a defendant has acted unlawfully.”Id.
To amend a pleading, other than within a narrow window of time after filing suit or
receiving a responsive pleading, a party may only amend with the opposing party’s written
consent or the court’s leave. Fed. R. Civ. P. 15(a)(2). While leave to amend shall be freely
given when justice so requires, id.,the right to amend is not absolute. Doe v. Cassel,403 F.3d 986, 990
(8th Cir. 2005). A court may deny a party’s request for leave to amend if the proposed amendment would be futile. See Reuter v. Jax Ltd., Inc.,711 F.3d 918, 922
(8th Cir. 2013) (citation omitted) (identifying futility of amendment as one of several bases on which to deny leave to amend). A proposed amendment is futile if the court finds “that the amended complaint could not withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Cornelia I. Croswell GST Trust v. Possis Med., Inc.,519 F.3d 778, 782
(8th Cir. 2008).
Because Defendants contend that Plaintiff’s proposed amendments would be futile,
the Court applies the same standard of review under Rule 12(b)(6) to both motions.
B. Affidavit of Expert Review
As noted in prior rulings of Magistrate Judge Bowbeer in this case, (see May 1,
2020 Order at 2; May 12, 2020 Order at 1–2), when a plaintiff files a legal malpractice or
negligence action against a licensed attorney, and intends to use expert testimony to
establish a prima facie case, the plaintiff must serve an affidavit of expert review, drafted
by an attorney, or, in the case of a pro se plaintiff, the plaintiff must sign the affidavit, and
is held to the same standard as an attorney. Minn. Stat. § 544.42, subd. 2(1).
The affidavit of expert review must state that
(1) the facts of the case have been reviewed by the party’s attorney with an
expert whose qualifications provide a reasonable expectation that the
expert’s opinions could be admissible at trial and that, in the opinion of
this expert, the defendant deviated from the applicable standard of care
and by that action caused injury to the plaintiff;
(2) the expert review required by clause (1) could not reasonably be obtained
before the action was commenced because of the applicable statute of
limitations; or
(3) the parties have agreed to a waiver of the expert review required by clause
(1) or the party has applied for a waiver or modification by the court under
paragraph (c).
Minn. Stat. § 544.42, subd. 3(a).2 Fredin has never claimed that an approaching statute of
limitations deadline caused him to file this action without an expert review affidavit, nor
have the parties agreed to waive the requirement.
In a legal malpractice action, expert testimony is required to establish the
professional standard of care, the breach of that standard, and causation. LaBorde v.
Castleman, No. A05-18-5, 2006 WL 2053158, at *2 (Minn. Ct. App. July 25, 2006) (citing Admiral Merchs. Motor Freight, Inc. v. O’Connor & Hannan,494 N.W.2d 261, 266
(Minn. 1992); Spannaus v. Larkin, Hoffman, Daly, & Lindgren, Ltd.,368 N.W.2d 395, 399
(Minn. Ct. App. 1985); Walton v. Jones,286 N.W.2d 710, 715
(Minn. 1979)). In rare instances, expert testimony may not be necessary if the complained-of conduct “‘can be evaluated adequately by a jury in the absence of expert testimony.’” Kurdyumova v. Robinson, No. A13-1734,2014 WL 1875847
, at *3 (Minn. Ct. App. May 12, 2014) (quoting Hill v. Okay Constr. Co.,252 N.W.2d 107, 116
(Minn. 1977)).
Here, the Court finds that specialized knowledge from an expert is required to
determine the professional standard of care applicable to Fredin’s legal
malpractice/negligence claim. Among his allegations, Fredin asserts that his counsel
2 The expert review statute contemplates two affidavits. The first affidavit, which is
the affidavit of expert review, establishes that an expert has reviewed the case and has
concluded that the defendant breached the applicable standard of care, causing injury to
the plaintiff. Fontaine v. Steen, 759 N.W.2d 672, 676(Minn. Ct. App. 2009). The second affidavit, the affidavit of expert identification or expert disclosure, identifies the expert witnesses, and provides the substance of their opinions, and bases for their opinions.Id.
While the first affidavit must be served with the pleadings, the second must be served within 180 days of the commencement of discovery.Minn. Stat. § 544.42
, subd. 2(2). The
first affidavit is at issue here.
breached the standard of care by failing to raise certain constitutional claims, failing to file
certain motions, engaging in off-the-record proceedings and conversations, failing to
consult with Plaintiff about a forensic investigator, and filing motions to withdraw.
(Compl. ⁋⁋ 75–79.) A jury could not reasonably determine if Defendants’ conduct violated
the standard of care without expert testimony, as Fredin’s claims involve a variety of
underlying criminal and civil proceedings, many of the challenged decisions of counsel
require an understanding of the standard of care, and the decisions of counsel implicate
issues of professional judgment and legal strategy. Fredin’s initially unsuccessful attempts
to obtain an expert opinion demonstrate that he also understood expert testimony was
necessary to prove his case. (See Pl.’s Mem. Supp. Mot. to Am. at 6.)
The expert review statute applies not only to claims specifically pleaded as legal
malpractice, but to any other derivative claims that “are based on the same facts as [the]
legal malpractice claims and arise solely out of [the] attorney-client relationship.” Afremov
v. Sulloway & Hollis, P.L.L.C., 922 F. Supp. 2d 800, 815(D. Minn. 2013); see also Pearson v. Oxford Prop. Advisors, LLC, No. A10-1766,2011 WL 1833133
, at *5 (Minn. Ct. App. May 16, 2011) (finding no error in the dismissal of plaintiff’s alternative claims, “[b]ecause allowing a plaintiff to simply list multiple alternative claims without fleshing out the logic or merits of those claims would create a significant loophole inMinn. Stat. § 544.42
.”)
Plaintiff’s claims arise solely out of his attorney-client relationship with Defendants,
and each claim is predicated upon the same set of underlying facts. As an initial matter,
after asserting his legal malpractice/negligence claim in Count 1, Fredin realleges and
incorporates the preceding paragraphs of the Complaint for each of his subsequent claims.
(See Compl. ⁋⁋ 80, 81, 83, 89, 94, 102, 108, 114.)
His breach of contract claim essentially alleges that Zauhar violated the professional
standard of care, (id. ⁋ 67), and therefore requires expert testimony. Jerry’s Enterprises,
Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811, 817(Minn. 2006) (noting that expert testimony is generally necessary to establish the applicable standard of care and to further establish whether the conduct in question deviated from that standard). Accordingly, this claim requires an affidavit of expert review underMinn. Stat. § 544.42
. See Brown-Wilbert, Inc. v. Copeland Buhl & Co., P.L.L.P., No. A07-2462,2008 WL 5396832
, at *4 (Minn. Ct. App. Dec. 30, 2008) (requiring expert testimony to support
breach of contract claim against accountant where the claim was based on a breach arising
out of the accountant-client relationship).
Likewise, Fredin’s allegations that Zauhar engaged in unnecessary and wasteful
billing (Compl. ⁋⁋ 69–74) also assert a breach of the standard of care, and require expert
testimony. Similarly, his claim of intentional and negligent misrepresentation refers to the
“actions and representations Plaintiff described above,” (id. ⁋⁋ 75–79), and relies on the
same allegations as his legal malpractice/negligence claim. It is therefore subject to the
requirements of Minn. Stat. § 544.42. Berman v. Maslon, Edelman, Borman & Brand, LLP, No. A06-351,2006 WL 3734278
, at *3 (Minn. Ct. App. Dec. 19, 2006) (affirming dismissal of misrepresentation claim due to plaintiff’s failure to provide expert affidavit, where misrepresentation claim was directly related to legal malpractice claim for which expert testimony was required). The expert affidavit requirement also applies to Fredin’s fraud claim, in which he alleges that Defendants mishandled client funds and did not effectively communicate about fees. Zirbes v. Meshbesher & Spence, Ltd., No. A16-0352,2016 WL 5345653
, at *4 (Minn. Ct. App. Sept. 26, 2016) (requiring expert testimony to
support fraud claim that was based on allegations of legal malpractice).
The Court likewise finds that Fredin’s false imprisonment claim, (Compl. ⁋⁋ 102–
07), alleging that Defendants’ legal representation ultimately led to Fredin’s criminal
sentence and imprisonment, is derived from his legal malpractice/negligence claim.
Therefore, this claim is subject to the requirement for an affidavit of expert review. So too
are Fredin’s claims for the intentional and negligent infliction of emotional distress, (id. ⁋⁋
108–21), which allege emotional harm resulting from Defendants’ allegedly deficient legal
representation. See Albert v. Binsfeld, No. C1-02-632, 2003 WL 139529, at *2 (Minn. Ct.
App. Jan. 21, 2003) (finding all of plaintiff’s claims, including intentional infliction of
emotional distress, were related to his malpractice claim, and were properly dismissed for
his failure to comply with expert review statute).
There is no dispute that Fredin failed to file an affidavit of expert review when he
commenced this action. Nor did he apply for a waiver or modification of the affidavit
requirement at that time under Minn. Stat. § 544.42, subd. 3(c), nor has he shown good cause for an extension underMinn. Stat. § 544.42
, subd. 4(b). See Fontaine v. Steen,759 N.W.2d 672, 677
(Minn. Ct. App. 2009 ) (“to minimize [the] risk [of dismissal with
prejudice], the statute . . . provides that the party bringing the action may apply for a waiver
or modification of the affidavit requirements at the time the action is commenced and that
the district court may determine that ‘good cause exists for not requiring the
certification.’”). Fredin fails to explain why he could not have obtained an affidavit at the
time he filed suit. This is particularly troubling, given that this lawsuit is Fredin’s second
attempt to sue Defendants for legal malpractice, following the dismissal of his first lawsuit
for failure to prosecute. Fredin’s claim that he “was only just recently able to afford an
expert review,” (Pl.’s Mem. Supp. Mot. to Am. at 6), fails to explain why he did not seek
a waiver at the time he filed suit. Rather than explain his failure to do so, Fredin contends
that “[o]n January 23, 2020, Plaintiff found a lawyer willing to complete the affidavit.
Plaintiff provided a retainer check on March 23, 2020 before April deadlines and provided
all information about the relevant case and deadlines in this case. On or near May 6, 2020,
Plaintiff received an expert affidavit of expert review complying with the Legal
Malpractice Statute.” (Id.) But the “April deadlines” to which he refers are not the
applicable deadlines for filing an affidavit of expert review or seeking a waiver. Rather,
as Magistrate Judge Bowbeer recently observed, “Fredin neither acted diligently nor had a
reasonable excuse for not serving the affidavit earlier.” (May 12, 2020 Order at 3.)
As to the applicable penalty for noncompliance with Minn. Stat. § 544.42, the statute states that the failure to file the affidavit “within 60 days after demand for the affidavit results, upon motion, in mandatory dismissal of each cause of action with prejudice as to which expert testimony is necessary to establish a prima facie case.”Minn. Stat. § 544.42
(6)(a); see also Lake Superior Ctr. Auth. v. Hammel, Green & Abrahamson, Inc.,715 N.W.2d 458, 470
(Minn. Ct. App. 2006) (“Minnesota courts have held that failure to strictly satisfy the expert disclosure requirements will result in dismissal of the claim with prejudice.”) (citing Broehm v. Mayo Clinic Rochester,690 N.W.2d 721, 726
(Minn. 2005)). A motion to dismiss is a “demand” for an affidavit of expert review “because it provide[s] adequate notice that an affidavit of expert review [is] required.” Kurdyumova,2014 WL 1875847
, at *4 (citing Brown–Wilbert, Inc. v. Copeland Buhl & Co., P.L.L.P.,732 N.W.2d 209, 215
(Minn. 2007)).
Defendants made their demand on January 21, 2020, by filing the instant Motion to
Dismiss. Fredin did not file an affidavit of expert review within 60 days. As the Court has
found all of Fredin’s claims require an affidavit of expert review, and he failed to comply
with Minn. Stat. § 544.42, his claims must be dismissed with prejudice. Accordingly,
Defendants’ motion is granted. Because the Court rules on the basis of Fredin’s failure to
comply with the expert review statute, it declines to address Defendants’ additional
arguments that Plaintiff’s fraud and misrepresentation claims also fail to meet the pleading
requirements of Rule 9(b).
Because any amendment would be futile, given the failure to comply with the expert
review statute, Plaintiff’s Motion to Amend is denied.
III. ORDER
Based on the submissions and the entire file and proceedings herein, IT IS HEREBY
ORDERED that:
1. Defendants’ Motion to Dismiss [Doc. No. 11] is GRANTED;
2. Plaintiff’s Motion for Leave to File an Amended Complaint [Doc. No. 35] is
DENIED; and
3. This action is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: May 27, 2020 s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Brock Fredin, Case No. 19-cv-3068 (SRN/HB)
Plaintiff,
ORDER
v.
Halberg Criminal Defense,
Christina Zauhar,
Defendants.
Brock Fredin, 1180 7th Ave., Baldwin, WI 54002, pro se.
Barry O’Neil, Lommen Abdo, PA, 1000 International Centre, 920 Second Avenue S.,
Minneapolis, MN 55402, for Defendants.
SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on the Motion to Dismiss [Doc. No. 11] filed by
Defendants Halberg Criminal Defense (“Halberg”) and Christina Zauhar, and the Motion
for Leave to File an Amended Complaint [Doc. No. 35] filed by Plaintiff Brock Fredin.
For the reasons set forth below, the Court grants Defendants’ motion, and denies Plaintiff’s
motion.
I. BACKGROUND
On December 11, 2019, Fredin filed the Complaint [Doc. No. 1] in this action, based
on claims arising from the legal representation provided by Ms. Zauhar to Fredin in
underlying state court criminal and civil actions. Ms. Zauhar is an attorney at the Halberg
law firm. Fredin asserts claims for legal malpractice/negligence, breach of contract,
charging excessive legal fees, fraud, intentional and negligent misrepresentation, false
imprisonment, intentional infliction of emotional distress, and negligent infliction of
emotional distress. (Compl. ⁋⁋ 2, 75–121.) In an earlier lawsuit, Fredin asserted nearly
the same claims against the same defendants. Fredin v. Halberg Crim. Defense, No. 18-
cv-2514 (SRN/HB) (D. Minn. filed Aug. 27, 2018).1 However, in February 2018, the Court
dismissed the earlier action without prejudice for Fredin’s failure to prosecute.
In lieu of filing an answer in this case, Defendants filed the instant Motion to
Dismiss. They argue that Fredin’s claims arise solely from the attorney-client relationship,
and must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6), due to Fredin’s failure to
comply with Minn. Stat. § 544.42. (Defs.’ Mem. Supp. Mot. to Dismiss [Doc. No. 13] at 5.) Under this statute, a plaintiff in a legal malpractice case must serve an affidavit of expert review with the pleadings.Minn. Stat. § 544.42
, subd. 2(1); Noske v. Friedberg,713 N.W.2d 866, 871
(Minn. Ct. App. 2006). In addition, Defendants argue, Fredin’s
claims alleging fraud and negligent misrepresentation also fail to comply with the
heightened pleading requirements of Fed. R. Civ. P. 9(b). (Defs.’ Mem. Supp. Mot. to
Dismiss at 8–9.)
On February 11, 2020, Fredin moved for an extension of time in which to comply
with the expert affidavit requirement [Doc. No. 17]. On April 15, 2020, Fredin again
moved for an extension of time in which to comply with the requirement [Doc. No. 28].
Defendants opposed both motions [Doc. Nos. 24 & 32]. On May 1, 2020, Magistrate Judge
1 The current pleading adds Fredin’s claims for false imprisonment and negligent and
intentional infliction of emotional distress.
Bowbeer denied both motions for an extension [Doc. No. 34], and on May 12, 2020, she
issued an order [Doc. No. 43], denying Fredin’s request for reconsideration [Doc. No. 40].
Fredin did not file a memorandum in opposition to Defendants’ Motion to Dismiss.
On May 7, 2020, he filed the instant Motion to Amend the Complaint. He argues that
“good cause and justice requires leave to file an amended complaint.” (Pl.’s Mem. Supp.
Mot. to Am. [Doc. No. 36] at 2.) He contends that his proposed amended complaint
survives Defendants’ Rule 12(b)(6) challenge because he attaches an affidavit of expert
review. (Id. at 4.) Fredin asserts that he searched for an expert for some time, and “was
only just recently able to afford an expert review.” (Id. at 6.) He identifies attorney Bruce
Rivers as his expert, and provides an affidavit of expert review [Doc. No. 38] with his
proposed amended pleading.
In opposition, Defendants urge the Court to deny Fredin’s Motion to Amend on
grounds of futility. (Defs.’ Opp’n [Doc. No. 44] at 3.) Again, they assert that Fredin failed
to comply with the expert review statute, requiring the dismissal of his claims. (Id.) Even
if the Court considers the Rivers Affidavit, Defendants argue that it does not satisfy the
requirements of Minn. Stat. § 544.42, subd. 3(1).
II. DISCUSSION
A. Standard of Review
When evaluating a motion to dismiss under Rule 12(b)(6), the Court assumes the
facts in the pleading to be true and construes all reasonable inferences from those facts in
the light most favorable to the plaintiff. Morton v. Becker, 793 F.2d 185, 187(8th Cir. 1986). The Court, however, need not accept as true wholly conclusory allegations, Hanten v. Sch. Dist. of Riverview Gardens,183 F.3d 799
, 805 (8th Cir. 1999), or legal conclusions that the plaintiff draws from the facts alleged in the complaint. Westcott v. City of Omaha,901 F.2d 1486, 1488
(8th Cir. 1990).
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint “must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Neubauer v. FedEx Corp., 849 F.3d 400, 404(8th Cir. 2017) (quoting Ashcroft v. Iqbal,556 U.S. 662, 678
(2009) and Bell Atlantic Corp. v. Twombly,550 U.S. 544, 570
(2007)). Facial plausibility exists when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,556 U.S. at 678
(citing Twombly,550 U.S. at 556
). While the plausibility standard is “not akin to a probability requirement,” it necessarily requires a complaint to present “more than a sheer possibility that a defendant has acted unlawfully.”Id.
To amend a pleading, other than within a narrow window of time after filing suit or
receiving a responsive pleading, a party may only amend with the opposing party’s written
consent or the court’s leave. Fed. R. Civ. P. 15(a)(2). While leave to amend shall be freely
given when justice so requires, id.,the right to amend is not absolute. Doe v. Cassel,403 F.3d 986, 990
(8th Cir. 2005). A court may deny a party’s request for leave to amend if the proposed amendment would be futile. See Reuter v. Jax Ltd., Inc.,711 F.3d 918, 922
(8th Cir. 2013) (citation omitted) (identifying futility of amendment as one of several bases on which to deny leave to amend). A proposed amendment is futile if the court finds “that the amended complaint could not withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Cornelia I. Croswell GST Trust v. Possis Med., Inc.,519 F.3d 778, 782
(8th Cir. 2008).
Because Defendants contend that Plaintiff’s proposed amendments would be futile,
the Court applies the same standard of review under Rule 12(b)(6) to both motions.
B. Affidavit of Expert Review
As noted in prior rulings of Magistrate Judge Bowbeer in this case, (see May 1,
2020 Order at 2; May 12, 2020 Order at 1–2), when a plaintiff files a legal malpractice or
negligence action against a licensed attorney, and intends to use expert testimony to
establish a prima facie case, the plaintiff must serve an affidavit of expert review, drafted
by an attorney, or, in the case of a pro se plaintiff, the plaintiff must sign the affidavit, and
is held to the same standard as an attorney. Minn. Stat. § 544.42, subd. 2(1).
The affidavit of expert review must state that
(1) the facts of the case have been reviewed by the party’s attorney with an
expert whose qualifications provide a reasonable expectation that the
expert’s opinions could be admissible at trial and that, in the opinion of
this expert, the defendant deviated from the applicable standard of care
and by that action caused injury to the plaintiff;
(2) the expert review required by clause (1) could not reasonably be obtained
before the action was commenced because of the applicable statute of
limitations; or
(3) the parties have agreed to a waiver of the expert review required by clause
(1) or the party has applied for a waiver or modification by the court under
paragraph (c).
Minn. Stat. § 544.42, subd. 3(a).2 Fredin has never claimed that an approaching statute of
limitations deadline caused him to file this action without an expert review affidavit, nor
have the parties agreed to waive the requirement.
In a legal malpractice action, expert testimony is required to establish the
professional standard of care, the breach of that standard, and causation. LaBorde v.
Castleman, No. A05-18-5, 2006 WL 2053158, at *2 (Minn. Ct. App. July 25, 2006) (citing Admiral Merchs. Motor Freight, Inc. v. O’Connor & Hannan,494 N.W.2d 261, 266
(Minn. 1992); Spannaus v. Larkin, Hoffman, Daly, & Lindgren, Ltd.,368 N.W.2d 395, 399
(Minn. Ct. App. 1985); Walton v. Jones,286 N.W.2d 710, 715
(Minn. 1979)). In rare instances, expert testimony may not be necessary if the complained-of conduct “‘can be evaluated adequately by a jury in the absence of expert testimony.’” Kurdyumova v. Robinson, No. A13-1734,2014 WL 1875847
, at *3 (Minn. Ct. App. May 12, 2014) (quoting Hill v. Okay Constr. Co.,252 N.W.2d 107, 116
(Minn. 1977)).
Here, the Court finds that specialized knowledge from an expert is required to
determine the professional standard of care applicable to Fredin’s legal
malpractice/negligence claim. Among his allegations, Fredin asserts that his counsel
2 The expert review statute contemplates two affidavits. The first affidavit, which is
the affidavit of expert review, establishes that an expert has reviewed the case and has
concluded that the defendant breached the applicable standard of care, causing injury to
the plaintiff. Fontaine v. Steen, 759 N.W.2d 672, 676(Minn. Ct. App. 2009). The second affidavit, the affidavit of expert identification or expert disclosure, identifies the expert witnesses, and provides the substance of their opinions, and bases for their opinions.Id.
While the first affidavit must be served with the pleadings, the second must be served within 180 days of the commencement of discovery.Minn. Stat. § 544.42
, subd. 2(2). The
first affidavit is at issue here.
breached the standard of care by failing to raise certain constitutional claims, failing to file
certain motions, engaging in off-the-record proceedings and conversations, failing to
consult with Plaintiff about a forensic investigator, and filing motions to withdraw.
(Compl. ⁋⁋ 75–79.) A jury could not reasonably determine if Defendants’ conduct violated
the standard of care without expert testimony, as Fredin’s claims involve a variety of
underlying criminal and civil proceedings, many of the challenged decisions of counsel
require an understanding of the standard of care, and the decisions of counsel implicate
issues of professional judgment and legal strategy. Fredin’s initially unsuccessful attempts
to obtain an expert opinion demonstrate that he also understood expert testimony was
necessary to prove his case. (See Pl.’s Mem. Supp. Mot. to Am. at 6.)
The expert review statute applies not only to claims specifically pleaded as legal
malpractice, but to any other derivative claims that “are based on the same facts as [the]
legal malpractice claims and arise solely out of [the] attorney-client relationship.” Afremov
v. Sulloway & Hollis, P.L.L.C., 922 F. Supp. 2d 800, 815(D. Minn. 2013); see also Pearson v. Oxford Prop. Advisors, LLC, No. A10-1766,2011 WL 1833133
, at *5 (Minn. Ct. App. May 16, 2011) (finding no error in the dismissal of plaintiff’s alternative claims, “[b]ecause allowing a plaintiff to simply list multiple alternative claims without fleshing out the logic or merits of those claims would create a significant loophole inMinn. Stat. § 544.42
.”)
Plaintiff’s claims arise solely out of his attorney-client relationship with Defendants,
and each claim is predicated upon the same set of underlying facts. As an initial matter,
after asserting his legal malpractice/negligence claim in Count 1, Fredin realleges and
incorporates the preceding paragraphs of the Complaint for each of his subsequent claims.
(See Compl. ⁋⁋ 80, 81, 83, 89, 94, 102, 108, 114.)
His breach of contract claim essentially alleges that Zauhar violated the professional
standard of care, (id. ⁋ 67), and therefore requires expert testimony. Jerry’s Enterprises,
Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811, 817(Minn. 2006) (noting that expert testimony is generally necessary to establish the applicable standard of care and to further establish whether the conduct in question deviated from that standard). Accordingly, this claim requires an affidavit of expert review underMinn. Stat. § 544.42
. See Brown-Wilbert, Inc. v. Copeland Buhl & Co., P.L.L.P., No. A07-2462,2008 WL 5396832
, at *4 (Minn. Ct. App. Dec. 30, 2008) (requiring expert testimony to support
breach of contract claim against accountant where the claim was based on a breach arising
out of the accountant-client relationship).
Likewise, Fredin’s allegations that Zauhar engaged in unnecessary and wasteful
billing (Compl. ⁋⁋ 69–74) also assert a breach of the standard of care, and require expert
testimony. Similarly, his claim of intentional and negligent misrepresentation refers to the
“actions and representations Plaintiff described above,” (id. ⁋⁋ 75–79), and relies on the
same allegations as his legal malpractice/negligence claim. It is therefore subject to the
requirements of Minn. Stat. § 544.42. Berman v. Maslon, Edelman, Borman & Brand, LLP, No. A06-351,2006 WL 3734278
, at *3 (Minn. Ct. App. Dec. 19, 2006) (affirming dismissal of misrepresentation claim due to plaintiff’s failure to provide expert affidavit, where misrepresentation claim was directly related to legal malpractice claim for which expert testimony was required). The expert affidavit requirement also applies to Fredin’s fraud claim, in which he alleges that Defendants mishandled client funds and did not effectively communicate about fees. Zirbes v. Meshbesher & Spence, Ltd., No. A16-0352,2016 WL 5345653
, at *4 (Minn. Ct. App. Sept. 26, 2016) (requiring expert testimony to
support fraud claim that was based on allegations of legal malpractice).
The Court likewise finds that Fredin’s false imprisonment claim, (Compl. ⁋⁋ 102–
07), alleging that Defendants’ legal representation ultimately led to Fredin’s criminal
sentence and imprisonment, is derived from his legal malpractice/negligence claim.
Therefore, this claim is subject to the requirement for an affidavit of expert review. So too
are Fredin’s claims for the intentional and negligent infliction of emotional distress, (id. ⁋⁋
108–21), which allege emotional harm resulting from Defendants’ allegedly deficient legal
representation. See Albert v. Binsfeld, No. C1-02-632, 2003 WL 139529, at *2 (Minn. Ct.
App. Jan. 21, 2003) (finding all of plaintiff’s claims, including intentional infliction of
emotional distress, were related to his malpractice claim, and were properly dismissed for
his failure to comply with expert review statute).
There is no dispute that Fredin failed to file an affidavit of expert review when he
commenced this action. Nor did he apply for a waiver or modification of the affidavit
requirement at that time under Minn. Stat. § 544.42, subd. 3(c), nor has he shown good cause for an extension underMinn. Stat. § 544.42
, subd. 4(b). See Fontaine v. Steen,759 N.W.2d 672, 677
(Minn. Ct. App. 2009 ) (“to minimize [the] risk [of dismissal with
prejudice], the statute . . . provides that the party bringing the action may apply for a waiver
or modification of the affidavit requirements at the time the action is commenced and that
the district court may determine that ‘good cause exists for not requiring the
certification.’”). Fredin fails to explain why he could not have obtained an affidavit at the
time he filed suit. This is particularly troubling, given that this lawsuit is Fredin’s second
attempt to sue Defendants for legal malpractice, following the dismissal of his first lawsuit
for failure to prosecute. Fredin’s claim that he “was only just recently able to afford an
expert review,” (Pl.’s Mem. Supp. Mot. to Am. at 6), fails to explain why he did not seek
a waiver at the time he filed suit. Rather than explain his failure to do so, Fredin contends
that “[o]n January 23, 2020, Plaintiff found a lawyer willing to complete the affidavit.
Plaintiff provided a retainer check on March 23, 2020 before April deadlines and provided
all information about the relevant case and deadlines in this case. On or near May 6, 2020,
Plaintiff received an expert affidavit of expert review complying with the Legal
Malpractice Statute.” (Id.) But the “April deadlines” to which he refers are not the
applicable deadlines for filing an affidavit of expert review or seeking a waiver. Rather,
as Magistrate Judge Bowbeer recently observed, “Fredin neither acted diligently nor had a
reasonable excuse for not serving the affidavit earlier.” (May 12, 2020 Order at 3.)
As to the applicable penalty for noncompliance with Minn. Stat. § 544.42, the statute states that the failure to file the affidavit “within 60 days after demand for the affidavit results, upon motion, in mandatory dismissal of each cause of action with prejudice as to which expert testimony is necessary to establish a prima facie case.”Minn. Stat. § 544.42
(6)(a); see also Lake Superior Ctr. Auth. v. Hammel, Green & Abrahamson, Inc.,715 N.W.2d 458, 470
(Minn. Ct. App. 2006) (“Minnesota courts have held that failure to strictly satisfy the expert disclosure requirements will result in dismissal of the claim with prejudice.”) (citing Broehm v. Mayo Clinic Rochester,690 N.W.2d 721, 726
(Minn. 2005)). A motion to dismiss is a “demand” for an affidavit of expert review “because it provide[s] adequate notice that an affidavit of expert review [is] required.” Kurdyumova,2014 WL 1875847
, at *4 (citing Brown–Wilbert, Inc. v. Copeland Buhl & Co., P.L.L.P.,732 N.W.2d 209, 215
(Minn. 2007)).
Defendants made their demand on January 21, 2020, by filing the instant Motion to
Dismiss. Fredin did not file an affidavit of expert review within 60 days. As the Court has
found all of Fredin’s claims require an affidavit of expert review, and he failed to comply
with Minn. Stat. § 544.42, his claims must be dismissed with prejudice. Accordingly,
Defendants’ motion is granted. Because the Court rules on the basis of Fredin’s failure to
comply with the expert review statute, it declines to address Defendants’ additional
arguments that Plaintiff’s fraud and misrepresentation claims also fail to meet the pleading
requirements of Rule 9(b).
Because any amendment would be futile, given the failure to comply with the expert
review statute, Plaintiff’s Motion to Amend is denied.
III. ORDER
Based on the submissions and the entire file and proceedings herein, IT IS HEREBY
ORDERED that:
1. Defendants’ Motion to Dismiss [Doc. No. 11] is GRANTED;
2. Plaintiff’s Motion for Leave to File an Amended Complaint [Doc. No. 35] is
DENIED; and
3. This action is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: May 27, 2020 s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge Reference
- Status
- Unknown