Pitman Farms v. Kuehl Poultry LLC

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                


Pitman Farms,                         File No. 19-cv-3040 (ECT/BRT)       

Plaintiff/Counter Defendant,                                         

v.                                                                        
                                    OPINION AND ORDER                
Kuehl Poultry LLC, Rodney Boser,                                          
Dan Schlichting, John Tschida,                                            
Chris Uhlenkamp, and David Welle,                                         

Defendants/Counter Claimants.                                        


Jeffrey  J.  Bouslog,  Natalie  I.  Uhlemann,  and  Archana  Nath,  Fox  Rothschild  LLP, 
Minneapolis, MN; Asher Shepley Anderson, Baker, Manock & Jensen, PC, Fresno, CA, 
for Plaintiff/Counter Defendant Pitman Farms.                             

Jack Y. Perry and Maren M. Forde, Taft Stettinius & Hollister LLP, Minneapolis, MN, for 
Defendants/Counter Claimants Kuehl Poultry LLC, Rodney Boser, Dan Schlichting, John 
Tschida, Chris Uhlenkamp, and David Welle.                                


Minnesota  statutes  and  a  rule  promulgated  by  the  Minnesota  Department  of 
Agriculture establish parent-company liability for a subsidiary’s unmet obligations under 
specific kinds of agricultural contracts.  

, subd. 2; 

; 

.0040.  In other words, when they apply, these authorities override the 
general rule that a parent corporation is not liable merely by virtue of its status as a parent 
for the debts of its subsidiary.                                          
The  primary  issue  in  this  case  is  whether  these  authorities  apply  to  chicken-
production contracts between Defendants, who are Minnesota chicken growers (and who 
will be referred to collectively as “the Growers”), and Simply Essentials, LLC, a chicken 
processor.  If these authorities govern the Growers’ contracts with Simply Essentials, then 
Plaintiff Pitman Farms, a California corporation that is Simply Essentials’ sole member, is 

liable to the Growers for Simply Essentials’ breaches of the contracts.   
Pitman  Farms  brought  this  case  under  the  federal  Declaratory  Judgment  Act, 

, seeking a declaration that the Minnesota agricultural “parent-liability” 
statutes and rule do not govern the Growers’ contracts with Simply Essentials.  Pitman 
Farms argues that the parent-liability authorities do not apply by their own terms, that 

Delaware  law  applies  regardless,  and  that  applying  the  Minnesota  parent-liability 
authorities  to  trigger  its  liability  to  the  Growers  would  violate  the  federal  dormant 
Commerce  Clause  doctrine.    In  a  counterclaim  also  brought  under  the  Declaratory 
Judgment Act, the Growers seek essentially contrary declarations and damages. 
The Parties have filed cross-motions seeking summary judgment on their respective 

declaratory-judgment  claims.    Pitman  Farms  also  has  filed  a  motion  to  exclude  the 
Growers’ expert declaration of Daniel S. Kleinberger, Professor Emeritus at Mitchell 
Hamline School of Law.  Pitman Farms’ motion to exclude Professor Kleinberger’s 
declaration will be granted because the Growers’ reliance on the testimony is procedurally 
improper and because, as the Growers themselves describe it, the declaration offers only 

impermissible legal opinions.  Pitman Farms’ summary-judgment motion will be granted, 
and the Growers’ cross-motion denied, because the Minnesota parent-liability authorities 
by their own terms do not apply to the Growers’ contracts with Simply Essentials. 
                           I                                         
The relevant facts are undisputed.  The Growers grow chickens and provide them 
to processing plants.  See Am. Compl. ¶ 15 [ECF No. 34].  In 2017, the Growers entered 
into “broiler production agreements” with Prairie’s Best Farms, Inc., a Minnesota chicken 

processor.  Nath Decl., Exs. A1–A7 [ECF No. 60-1].  Pitman Farms was not a party to the 
broiler  production  agreements.    See  

    On  November  10,  2017,  Simply  Essentials 
purchased the assets of Prairie’s Best and assumed the broiler production agreements.  

 
Ex. B [ECF No. 60-2].  Simply Essentials is a limited liability company organized under 
Delaware law and maintains its headquarters in California.  Pitman Decl. in Opp’n ¶ 3 

[ECF No. 67].  Pitman Farms was not a party to the asset purchase agreement between 
Simply Essentials and Prairie’s Best.  See Nath Decl., Ex. B.             
Three days after the asset purchase agreement was executed, Pitman Farms became 
the sole member of Simply Essentials.  Pitman Decl. in Supp. ¶ 2 [ECF No. 59].  “Pitman 
Farms’ purchase of Simply Essentials[’] membership interests occurred in Iowa,” and “the 

agreement transferring Simply Essentials[’] membership interests to Pitman Farms . . . is 
governed by Delaware law.”  

  “Pitman Farms’ officers and directors direct, control, and 
coordinate the activities of Simply Essentials [] on behalf of Pitman Farms in its capacity 
as  the  sole  member”  from  Pitman  Farms’  California  headquarters.    Pitman  Decl.  in 
Opp’n ¶ 4.  In January 2018, Pitman Farms registered to do business in Minnesota “to allow 

for the completion of payroll related to” an employee working remotely there.  Pitman 
Decl. in Supp. ¶ 3, Ex. A [ECF No. 59-1].                                 
The  Growers  allege  that  Simply  Essentials  “began  materially  breaching  its 
obligations” under the broiler production agreements “nearly as soon as it assumed” them.  
Mem. Supp. Mot. to Dismiss at 5 [ECF No. 17].  In 2019, Simply Essentials ceased 

operating due to financial difficulties.1  See Nath Decl., Ex. C [ECF No. 60-3].  On June 7, 
2019, Simply Essentials notified the Growers in writing that it would terminate the broiler 
production agreements effective September 5, 2019.  See, e.g., 

 Ex. D [ECF No. 60-4].  
Following termination, the Growers sent notices of default to Simply Essentials, addressed 
to David Pitman, the Secretary of Pitman Farms.  

 Ex. E [ECF No. 60-5]; Pitman Decl. 

in Supp. ¶ 1.  The Growers estimate that they are collectively owed more than $6 million 
as a result of Simply Essentials’ alleged breaches of its obligations under the broiler 
production agreements.  Mem. Supp. Mot. to Dismiss at 6.                  
On December 5, 2019, Pitman Farms commenced this action.  Compl. [ECF No. 1].  
That same day—after Pitman Farms filed this case—the Growers filed a complaint in 

Minnesota  state  district  court,  Morrison  County,  asserting  breach-of-contract  claims 
against Pitman Farms, Prairie’s Best, and Simply Essentials.  Tschida Decl., Ex. A [ECF 
No. 52-1 at 2–59].  Pitman Farms and Simply Essentials filed motions in the state-court 
action to stay that case pending resolution of this case.  ECF Nos. 18-9, 18-11, 29-1 at 
1–21.  The Growers then filed a motion in the state-court action for partial summary 

judgment against Simply Essentials and Pitman Farms, including on the issue of whether 


1    Simply  Essentials  is  now  insolvent,  and  on  March  6,  2020,  an  involuntary 
bankruptcy action was filed against Simply Essentials.  See Nath Decl., Ex. C [ECF No. 
60-3]; ECF No. 29-1 at 199–205.                                           
Pitman Farms is liable under Minnesota law for Simply Essentials’ alleged breaches.  ECF 
No. 29-1 at 110–130.  On March 19, 2020, the Morrison County District Court ordered that 
case stayed “until the related federal court declaratory judgment action is resolved, or until 

further Order of this Court.”  Order Granting Motion to Stay Pending Resolution of Federal 
Court Action ¶ 2, Boser v. Prairie’s Best Farms, Inc., No. 49-cv-19-1751 (Morrison Cnty., 
Minn.).    The  Growers  then  moved  to  dismiss  this  action  for  lack  of  subject-matter 
jurisdiction and for failure to join a required party under Federal Rule of Civil Procedure 
19.  ECF Nos. 15, 35.  Alternatively, they argued that the case should not move forward in 

deference to their state-court suit.  

  The Growers’ motions were denied.  ECF No. 37.  
The Growers subsequently filed their answer and counterclaim.  ECF No. 40. 
                           II                                        
It  makes  sense  to  start  with  Pitman  Farms’  motion  to  exclude  Professor 
Kleinberger’s declaration because a decision on the motion will determine the record on 

which the summary-judgment motions will be adjudicated.  Pitman Farms advances two 
arguments in support of its motion: first, that the Growers failed to disclose Professor 
Kleinberger  in  compliance  with  Fed.  R.  Civ.  P.  26(a)(2),  and  that  exclusion  is  the 
appropriate remedy under Fed. R. Civ. P. 37(c); and second, that the testimony should be 
excluded under the general rule that expert witnesses are forbidden from offering opinions 

that are legal arguments and conclusions.  See generally Pl.’s Mem. Supp. Mot. to Exclude 
[ECF No. 76].                                                             
                           A                                         
The Growers’ reliance on Professor Kleinberger violates Rule 26(a)(2) because it   
contradicts the pretrial scheduling order.  ECF No. 47.  Under Rule 26(a)(2)(D), expert 

disclosures must be made “at the times and in the sequence that the court orders.”  Here, 
that did not happen.  The pretrial scheduling order “incorporates a schedule for early cross-
motions for summary judgment . . . because the parties represent[ed] that they do not 
require any fact discovery to support their [motions.]”  Pretrial Sched. Order at 4 (emphasis 
added); see also 

 (“Counsel also explained why they jointly believed that the early 

cross-motions contemplated would likely resolve the case.”).  Consistent with the Parties’ 
representations, the pretrial scheduling order repeatedly makes plain that discovery would 
occur only if—and then only after—a decision on the summary-judgment motions left the 
case or some part of it unresolved.  

 (“The Court engaged counsel in a discussion 
about  the  need  to  include  a  pretrial  schedule  that  addressed  all  Rule  16  scheduling 

requirements in the event the early cross-motions for summary judgment did not resolve 
the case in its entirety.”); 3 (“The parties agreed to immediately discuss the scope of 
discovery to ensure that relevant information is preserved if any fact discovery is sought 
following the court’s decision on the early cross-motions for summary judgment.”); 5–7 
(establishing disclosure and discovery deadlines based on the date of a decision on the 

summary-judgment motions).  Even then, Pitman Farms and the Growers made clear that 
they “d[id] not anticipate calling any expert witnesses” at all, but that if something changed, 
then each would notify the other of the need for expert discovery after the summary-
judgment decision.  

.  In other words, based on the Parties’ representations, the 
pretrial scheduling order permits discovery only after a decision on the summary-judgment 
motions.  The Growers’ filing of an expert declaration with their opposition brief is at odds 
with this timing and sequence and, therefore, violates Rule 26(a)(2)(D).  

Separately, the Growers’ reliance on Professor Kleinberger violates Rule 26(a)(2) 
because the Growers gave no advance disclosure of Professor Kleinberger’s testimony.  
Rule 26(a)(2) is understood to require the disclosure of expert testimony sufficiently in 
advance of its use so that an opposing party may cross examine the witness or perhaps 
arrange for its own expert witness.  See Smith v. Tenet Healthsystem SL, Inc., 

 (8th Cir. 2006) (quoting Fed. R. Civ. P. 26 advisory committee’s note to 1993 
amendment).  Here, the Growers filed Professor Kleinberger’s declaration with their 
opposition brief.  Under the briefing schedule established in the pretrial scheduling order, 
Order at 4, that left Pitman Farms with no feasible opportunity to cross-examine Professor 
Kleinberger or disclose its own expert without seriously disrupting the summary-judgment 

process proposed by the Parties and adopted in the scheduling order.      
The Growers point out that the pretrial scheduling order does not explicitly forbid 
the submission of expert testimony with, or in opposition to, the summary-judgment 
motions and that their disclosure of Professor Kleinberger did not occur after the expiration 
of any deadline.  Defs.’ Mem. Opp’n Mot. to Exclude at 23 [ECF No. 79].  True enough, 

but why would the scheduling order explicitly forbid the submission of expert testimony 
in connection with the summary-judgment motions when the Parties made it so clear that 
they would not rely on expert testimony in connection with their motions?  In view of the 
Parties’ positions and representations, a statement that expert testimony could not be used 
to support or oppose the motions, or the establishment of any discovery or disclosure 
deadlines ahead of a decision on the motions, would have seemed pointless.  The absence 
of an explicit prohibition or missed deadline, therefore, are not reasons to conclude that the 

Growers’ submission of Professor Kleinberger’s declaration did not violate the pretrial 
scheduling order.  The Growers also argue that, if their disclosure of Professor Kleinberger 
violated the pretrial scheduling order, then so did Pitman Farms’ filing of the factual 
declaration of its corporate secretary, David Pitman.  Id.; see ECF No. 59.  Perhaps.  But 
the Parties never have relied solely on the pleadings to establish the relevant facts, and they 

have filed no joint statement or stipulation describing the undisputed facts.  Even if they 
are few and undisputed, the facts have to come from somewhere.  It might also be different 
if the Growers disputed material parts of Pitman’s testimony or suggested that discovery 
was necessary in response to Pitman’s testimony.  They don’t.  It also bears mentioning 
that the Growers seem to have done the same thing by filing, for example, the declaration 

of John Tschida and the 348 pages of exhibits accompanying it.  ECF No. 52.  Taken to its 
logical conclusion, wouldn’t this argument require the Tschida declaration to be stricken, 
also?  No sensible reason has been identified to justify excluding declarations filed to 
identify the (apparently undisputed) material facts.                      
Under Rule 37(c)(1), “[i]f a party fails to provide information or identify a witness 

as required by Rule 26(a) or (e), the party is not allowed to use that information or witness 
to supply evidence on a motion . . . unless the failure was substantially justified or is 
harmless.”  The Growers have the burden to show that their failure to disclose was 
substantially justified or harmless.  Fu v. Owens, 

, 883–84 (8th Cir. 2010).  
The Eighth Circuit has identified four factors a district court should consider to determine 
whether a Rule 26(a) violation is justified or harmless: “(1) the prejudice or surprise to the 
party against whom the testimony is offered; (2) the ability of the party to cure the 

prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and 
(4) the moving party’s bad faith or willfulness.”  Rodrick v. Wal-Mart Stores E., L.P., 

, 1096–97 (8th Cir. 2012) (cleaned up).                          
Here, the Growers have not shown that their failure was substantially justified or 
harmless.  It is true that trial disruption isn’t an issue.  The Parties do not believe a trial will 

be necessary because the facts are undisputed, the issues are purely legal, and the case is 
ripe for resolution through earlier-than-usual summary-judgment motions.  If all that 
weren’t true, the case is a long way from trial.  Nor is there any reason to think the Growers 
acted in bad faith.  Still, Pitman Farms’ claim of surprise deserves credit in view of the 
Parties’ unqualified representations that they would not require expert testimony or other 

discovery to support or oppose their summary-judgment motions and in view of the pretrial 
scheduling order’s reliance on these representations in putting off all discovery until after 
a decision on the summary-judgment motions.  The better conclusion is that Pitman Farms 
understandably did not see this coming.  Apart from exclusion, Pitman Farms lacks the 
practical ability to cure prejudice.  Delaying the summary-judgment process to give Pitman 

Farms time to identify and disclose its own expert or to depose Professor Kleinberger 
would complicate, delay, and to some extent defeat the purpose of the early summary-
judgment motion process the Parties represented was feasible.  On balance, then, these 
considerations favor excluding Professor Kleinberger’s declaration from consideration 
under Rule 37(c)(1).                                                      
                           B                                         

Professor Kleinberger’s declaration also will be excluded because, as the Growers 
themselves describe the declaration, it offers legal opinions.  Expert testimony regarding 
legal matters is inadmissible.  See S. Pine Helicopters, Inc. v. Phoenix Aviation Managers, 
Inc., 

, 841 (8th Cir. 2003); Williams v. Wal-Mart Stores, Inc., 

 (8th Cir. 1990).  This rule follows necessarily from Federal Rule of Evidence 702.  It 

permits expert testimony if, among other things, “the expert’s scientific, technical, or other 
specialized knowledge will help the trier of fact to understand the evidence or to determine 
a fact in issue[.]”  Fed. R. Evid. 702(a).  In other words, experts testify to aid the fact finder 
in understanding or determining the facts; as a general rule, they do not testify to aid the 
fact finder in understanding or determining the law.                      

Described broadly, Professor Kleinberger offers two opinions in his declaration.  
His first opinion is that there is no conflict between the Minnesota parent-liability statutes 
and rule, on the one hand, and the liability shield generally afforded members of a limited 
liability company.  Kleinberger Decl. at 9–13 [ECF No. 71].  His second opinion is that 
Minnesota’s  parent-liability  statutes  and  rule  apply  to  subsidiary  limited  liability 

companies.  

 at 13–15.                                                 
The Growers all but admit that these opinions, and other testimony and sub-opinions 
supporting  them,  concern  legal  matters.    The  Growers  acknowledge  that  Professor 
Kleinberger’s declaration is to a great degree “indistinguishable” from the content of a 
treatise he co-authored, Carter C. Bishop and Daniel S. Kleinberger, Limited Liability 
Companies: Tax and Business Law.  As the Growers explain it: “whether in the Declaration 
or his treatise, Professor Kleinberger is stating his opinion on the state of the law, and 

Pitman [Farms] cannot seriously argue for the admissibility of his opinions in one format 
versus another.”  Defs.’ Mem. Opp’n Mot. to Exclude at 15.  The Growers then characterize 
Professor Kleinberger’s Declaration as “simply a much narrower, tailor-made version of 
his prior written opinions [in his treatise] sans the prohibited legal advocacy in this forum.”  

  This is not correct.  No doubt lawyers properly may cite treatises for legal propositions.  

But the prohibition on expert testimony regarding legal matters would accomplish nothing 
if the authors of those treatises were allowed to testify as experts regarding those same 
legal propositions.  Why hire a lawyer to argue a legal point when you can hire an expert 
to give sworn testimony?                                                  
The  Growers  rely  on  Adams  v.  New  England  Scaffolding,  Inc.,  No. 

13-cv-12629-FDS, 

, at *5 (D. Mass. Dec. 22, 2015), for the proposition 
that “there is no blanket prohibition on expert testimony concerning the law.”  Defs.’ Mem. 
Opp’n Mot. to Exclude at 16.  True enough.  As the court acknowledged in Adams, a 
description of the law is sometimes necessary to put an expert’s factual testimony in 
context.  

.  However, the court in Adams also acknowledged that “such testimony 

is routinely admitted without objection—and often without anyone even noticing that the 
testimony includes legal conclusions—[because] the relevant law is not in dispute.”  

.  That is not true here; the Parties’ summary-judgment motions reflect only a dispute 
about the law.  The court in Adams also noted that “one of the most important limitations 
on expert testimony concerning the law is that such testimony has to accurately state the 
law.  An expert cannot simply opine as to his or her view of a disputed point of law, and 
competing experts cannot offer competing legal opinions.”  

.  But that is what the 

Growers seek to do.  The bottom line is that the circumstances justifying the admission of 
law-referencing expert testimony described in Adams and cases like it do not exist here.2 
                          III                                        
That brings us to the Parties’ cross-motions for summary judgment and the familiar 
rules governing their adjudication.  Summary judgment is warranted “if the movant shows 

that there is no genuine dispute as to any material fact and the movant is entitled to 
judgment as a matter of law.”  Fed. R. Civ. P. 56(a).  A dispute over a fact is “material” 
only if its resolution “might affect the outcome of the suit” under the governing substantive 
law.  Anderson v. Liberty Lobby, Inc., 

 (1986).  A dispute over a fact is 
“genuine” only if “the evidence is such that a reasonable jury could return a verdict for the 

nonmoving party.”  

  “The evidence of the non-movant is to be believed, and all 
justifiable inferences are to be drawn in his favor.”  

.  Courts take a slightly 
modified  approach  where,  as  here,  there  are  cross-motions  for  summary  judgment.  
Fjelstad v. State Farm Ins. Co., 

 (D. Minn. 2012).  When 
considering Pitman Farms’ motion, the record must be viewed in the light most favorable 


2    Professor Kleinberger possesses exceptional qualifications and a well-deserved 
reputation as a preeminent scholar and educator.  The exclusion of his declaration here 
results from the Growers’ procedural infractions and their acknowledged reliance on it as 
a source of legal opinions and legal authority.  Professor Kleinberger cannot be faulted for 
that.                                                                     
to the Growers, and when considering the Growers’ motion, the record must be viewed in 
the light most favorable to Pitman Farms.  See 

                        
                           A                                         

It makes practical sense to start by determining whether Minnesota’s parent-liability 
statutes and rule by their own terms govern the Growers’ contracts with Simply Essentials.  
If these statutes do not by their own terms apply, then it would be unnecessary to consider 
Pitman Farms’ arguments that Delaware law should apply instead or that applying the 
statutes to trigger Pitman Farms’ liability to the Growers would violate the federal dormant 

Commerce Clause doctrine.  The statutes and rule are the sole basis for the Growers’ claims 
that Pitman Farms is liable for the amounts Simply Essentials has not paid. 
The  Parties’  claims  concern  three  provisions:  

,  

.0040,  and  

.    Section  17.93,  which  is  entitled  “PARENT 
COMPANY    RESPONSIBILITY   FOR  CONTRACTS    OF   SUBSIDIARIES,”         

provides, in relevant part:                                               
     Subd. 2. Parent company liability.  If an agricultural contractor 
     is  the  subsidiary  of  another  corporation,  partnership,  or 
     association, the parent corporation, partnership, or association 
     is liable to a seller for the amount of any unpaid claim or     
     contract performance claim if the contractor fails to pay or    
     perform according to the terms of the contract.                 
Minn. Stat § 17.93, subd. 2.  Exercising authority conferred by 

 to 
“adopt rules to implement sections 17.90 to 17.98,” the Commissioner of the Minnesota 
Department of Agriculture promulgated Minnesota Rule 1572.0040.  Entitled “PARENT 
COMPANY LIABILITY,” it provides:                                          
     A corporation, partnership, sole proprietorship, or association 
     that through ownership of capital stock, cumulative voting      
     rights, voting trust agreements, or any other plan, agreement,  
     or  device,  owns  more  than  50  percent  of  the  common  or 
     preferred stock entitled to vote for directors of a subsidiary  
     corporation  or  provides  more  than  50  percent  of  the     
     management or control of a subsidiary is liable to a seller of  
     agricultural  commodities  for  any  unpaid  claim  or  contract 
     performance claim of that subsidiary.                           

.0040.    Finally,  there  is  

,  entitled  “PARENT 
COMPANY LIABILITY.”  It provides:                                         
     If  a  wholesale  produce  dealer  is  a  subsidiary  of  another 
     corporation, partnership, or association, the parent corporation, 
     partnership, or association is liable to a seller for the amount of 
     any  unpaid  claim  or  contract  performance  claim  if  the   
     wholesale produce dealer fails to pay or perform according to   
     the terms of the contract and this chapter.                     

                                                    

3    Several months after Pitman Farms commenced this action, and several months 
before  the  Parties  filed  their  summary-judgment  motions,  the  Minnesota  legislature 
amended  section  27.133,  replacing  the  term  “wholesale  produce  dealer”  with  “farm 
products dealer.”  See 2020 Minn. Sess. Law Serv. Ch. 89 (H.F. 4285), art. 1 § 14.  The 
amendments, which were approved by the Governor on May 16, 2020, took effect on 
August 1, 2020.  

.  Although the Parties do not address the issue in 
their briefing, the prior version of section 27.133 still applies.  To apply the amendments 
to this case would be to apply them retroactively.  See In re Petition for Instructions to 
Construe Basic Resol. 876 of Port Auth. of City of St. Paul, 

 (Minn. 
2009) (“A ‘retroactive law’ is one that ‘looks backward or contemplates the past, affecting 
acts or facts that existed before the act came into effect.’” (quoting Black’s Law Dictionary 
1343 (8th ed. 2004)).  Under Minnesota law, statutes do not apply retroactively “unless 
clearly and manifestly so intended by the legislature.”  

.  Nothing in 
the text of the amendments to section 27.133 suggests such an intention.  See, e.g., K.E. v. 
Hoffman, 

 (Minn. Ct. App. 1990) (“[L]anguage applying a statute to 
‘all  cases  pending’  and  establishing  an  immediate  effective  date  overcomes  the 
presumption against retroactive application.”).                           
                           B                                         
Pitman Farms says that these authorities do not by their own terms establish its 
liability for Simply Essentials’ debts under the contracts with the Growers, and it advances 

two  arguments  to  support  this  position.    It  first  argues  that  section  17.93  and  Rule 
1572.0040 apply only when the disputed liability is to a “seller,” and the Growers are not, 
in Pitman Farms’ view, “sellers.”  Pl.’s Mem. Supp. Summ. J. at 30–32 [ECF No. 58]; Pl.’s 
Mem. Opp’n Summ. J. at 23–25 [ECF No. 66].  Second, Pitman Farms argues that the 
parent-liability authorities do not apply when the debtor subsidiary is a limited liability 

company.  Pl.’s Mem. Supp. Summ. J. at 16–23; Pl’s Mem. Opp’n Summ. J. at 14–17.4 
These arguments must be considered under Minnesota’s statutory-interpretation 
framework.  This is a diversity case under 

, ECF No. 37 at 6, so “state 
law governs substantive issues.”  Paine v. Jefferson Nat’l Life Ins. Co., 

 
(8th Cir. 2010) (citation omitted); see also Erie R. Co. v. Tompkins, 

 (1938).  

Under Minnesota law, the object of statutory interpretation “is to ascertain and effectuate 
the intention of the legislature.”  

.  “If the language of a statute is plain 
and unambiguous, it is presumed to manifest legislative intent and we must give it effect.”  
State v. Campbell, 

 (Minn. 2012).  Statutory construction is necessary only 


4    As an alternative to their motion to dismiss under Federal Rule of Civil Procedure 
19, the Growers argued that abstention was appropriate under Railroad Commission of 
Texas v. Pullman Co., 

 (1941).  See ECF No. 17 at 25–26 and ECF No. 28 at 
5–6.  Though certification of questions of law to the Minnesota Supreme Court is available 
here,  

,  subd.  3,  and  though  certification  offers  advantages  over 
Pullman abstention, Lehman Bros. v. Schein, 

 (1974), and “today covers 
territory once dominated by . . . Pullman abstention,” Arizonans for Official English v. 
Arizona, 

 (1997), certification was not requested.        
if a statute is ambiguous.  

  “A statute is ambiguous only if it is subject to more than one 
reasonable interpretation.”  500, LLC v. City of Minneapolis, 

 (Minn. 
2013).  A statute may be ambiguous when one of its operative terms is the subject of 

conflicting dictionary definitions.  State v. Bowen, 

 (Minn. Ct. App. 
2018).  If a statute is ambiguous, the intent of the legislature may be ascertained by referring 
to, among other things:                                                   
     (1) the occasion and necessity for the law;                     
     (2) the circumstances under which it was enacted;               
     (3) the mischief to be remedied;                                
     (4) the object to be attained;                                  
     (5) the former law, if any, including other laws upon the same  
       or similar subjects;                                          
     (6) the consequences of a particular interpretation;            
     (7) the contemporaneous legislative history; and                
     (8) legislative and administrative interpretations of the statute. 

 (1)–(8); Christianson v. Henke, 

 (Minn. 2013).    
                           C                                         
Start with section 17.93 and its related statutes.  Chapter 17 broadly concerns the 
Minnesota Department of Agriculture, and sections 17.90 to 17.98 concern agricultural 
contracts.5  The Parties do not dispute that the Growers are “producers” for purposes of 
these sections.  Under section 17.90, subdivision 4,                      
     “Producer” means a person who produces or causes to be          
     produced an agricultural commodity in a quantity beyond the     
     person’s own family use and:                                    

     (1) is able to transfer title to another; or                    


5    “AGRICULTURAL CONTRACTS” is the heading that introduces sections 17.90 
to 17.98 of the Minnesota Statutes.                                       
     (2) provides management, labor, machinery, facilities, or any   
     other production input for the production of an agricultural    
     commodity.                                                      

There is no dispute that the Growers never actually owned the chickens and could not, 
therefore, “transfer [the chickens’] title to another” under subparagraph (1).  See Nath 
Decl., Exs. A1–A7 at § 3.D.  But there is also no dispute that the Growers “provide[d] 
management, labor, machinery, [or] facilities . . . for the production of” the chickens within 
the meaning of subparagraph (2).                                          
Section 17.93, however, does not use the term “producer.”  It establishes parent-
company liability with respect to contracts between an “agricultural contractor,” on the one 
hand, and a “seller” on the other.  

, subd. 2 (emphasis added).  The term 
“producer”  appears  many  times  throughout  sections  17.90  to  17.98.    See 

, 17.92, 17.941, 17.942, 17.943, 17.944, 17.9441, 17.97, and 17.98.  
By contrast, “seller” appears only in section 17.93 and section 17.90, subdivision 1a (where 

it is merely used to explain that contracts between buyers and “seller[s] of grain” are not 
included in the definition of “[a]gricultural contract”).  No authority or reason has been 
identified to justify the conclusion that section 17.93’s use of “seller” was a mistake. 
The term “seller” is not defined in sections 17.90 to 17.98.  Ordinarily, when a word 
in a statute is not specially defined, a court should “look first to the plain and ordinary 

meaning of the word.”  White Bear Lake Restoration Ass’n ex rel. State v. Minn. Dep’t of 
Nat. Res., 

, 388 (Minn. 2020) (Anderson, J., concurring in part and 
dissenting in part).  As will be discussed in greater detail shortly, however, the several 
possible definitions of “seller” mean that its use in section 17.93 generates ambiguity.  Just 
as important, however “seller” is defined, it cannot mean the same thing as “producer.”  In 
statutory interpretation, “‘when different words are used in the same context, we assume 
that the words have different meanings’ so that every word is given effect.”  State v. 

Thompson, 

, 69 (Minn. 2020) (quoting Dereje v. State, 

 (Minn. 2013)).  For this reason, the Growers’ argument that “seller” must be given the 
same meaning as “producer,” Defs.’ Mem. Supp. Summ. J. at 5–7 [ECF No. 51] and Defs.’ 
Mem. Opp’n Summ. J. at 2 n.2 [ECF No. 69], cannot be accepted.  The dispositive 
questions, then, are whether “seller” in section 17.93 has a broader or narrower meaning 

than “producer,” and if narrower, then whether the Growers are nonetheless “sellers.” 
Rule  1572.0040  clarifies  the  meaning  of  “seller”  and  seems  to  answer  these 
questions.  It limits parent-company liability to contracts between a subsidiary and “a seller 
of agricultural commodities.”  

.0040.  This is narrower than the definition of 
“producer” for purposes of sections 17.90 to 17.98 because it includes only the transfer-of-

title element of that definition from section 17.90, subdivision 4(1) and omits the provision-
of-services element described in section 17.90, subdivision 4(2).  As noted, it is undisputed 
that the Growers do not sell agricultural commodities.                    
Courts ascertaining the Minnesota legislature’s intent do “not defer to an agency’s 
interpretation of unambiguous statutes,” In re Reissuance of NPDES/SDS Permit to U.S. 

Steel Corp., 

, 780 (Minn. Ct. App. 2019); see Marks v. Comm’r of 
Revenue, 

, 326–27 (Minn. 2016), but when a statute is ambiguous, courts 
may consider “administrative interpretations,” 

(8).  The Minnesota 
Supreme Court has repeatedly said that an agency’s interpretation of a statute it administers 
is “entitled to deference.”  Benda v. Girard, 

 (Minn. 1999) (quoting 
George A. Hormel & Co. v. Asper, 

 (Minn. 1988)); see also, e.g., In re 
Excess Surplus Status of Blue Cross and Blue Shield of Minn., 

 (Minn. 

2001).  The appropriate degree of deference is less clear, and it shifts somewhat depending 
on the circumstances.  As a general rule, courts will defer to an interpretation that is 
“reasonable” and consistent with the language of the statute, see A.A.A. v. Minn. Dep’t of 
Human Servs., 

, 822–23 (Minn. 2013); U.S. Steel Corp., 937 N.W.2d at 
780, whereas deference is not appropriate when the agency’s interpretation is inconsistent 

with the statute or there are “compelling indications that it is wrong,” Buhs v. State, Dep’t 
of Pub. Welfare, 

 (Minn. 1981) (citation omitted).  Heightened 
deference is warranted when the agency’s interpretation is particularly longstanding or the 
statutory scheme involved is highly technical.  See Marks, 

; In re 
Excelsior Energy Inc., 

 (Minn. Ct. App. 2010); see also Minn. Ctr. 

For Env’t Advocacy v. Minn. Pollution Control Agency, 

 (Minn. 
2002) (deferring to an agency’s “interpretation of whether [a] statutory standard [was] met” 
because the inquiry was “primarily factual” and required “application of the agency’s 
technical knowledge and expertise”).                                      
Judged against these authorities, Rule 1572.0040 deserves heightened deference 

when it comes to interpreting section 17.93.  “Seller” is ambiguous.  It may refer to 
“[s]omeone who sells or contracts to sell goods” or “the transferor of property in a contract 
of sale.”  Black’s Law Dictionary 1634 (11th ed. 2019).  It also may refer to a person who 
sells services.  See Sell and Seller, The American Heritage Dictionary of the English 
Language 1639 (3d ed. 1992).  The rule reflects a reasonable understanding of, and is 
consistent with, the statute.  It differentiates “seller” from “producer.”  Adopting a broad 
definition of “seller” that would include the sale of both commodities and services would 

give “seller” a meaning that very closely resembles, if not matches, the definition of 
“producer” in section 17.90, subdivision 4.  The rule’s narrower definition also dovetails 
with the statute’s definition of “[c]ontractor” (an entity with whom “seller[s]” contract) as 
one who “buys agricultural commodities.”  

, subd. 3.6  Although the 
statutory  and  regulatory  scheme—which  involves  the  liability  of  certain  corporate 

entities—is  not  especially  technical  or  unfamiliar  to  courts,  the  Department  of 
Agriculture’s interpretation is longstanding.  The agency promulgated the rule nearly thirty 
years ago, see 

, 1924 (Mar. 4, 1991), and it does not appear that the 
rule has been challenged or otherwise litigated in the years since.  At the very least, there 
are no “compelling indications” that the agency’s interpretation is wrong.  Buhs, 

  (citation  omitted).    In  view  of  the  heightened  deference  owed  Rule 
1572.0040 and the good reasons for interpreting section 17.93 to share the rule’s reach, 
neither section 17.93 nor the rule govern the Growers’ contracts with Simply Essentials. 



6    The  full  definition  of  “contractor”  is  one  who  either  (a)  “buys  agricultural 
commodities grown or raised in [Minnesota],” or (b) “contracts with a producer to grow or 
raise agricultural commodities in [Minnesota].”  

, subd. 3.  Though a 
“producer” by definition may sell agricultural commodities, 

 subd. 4(1), it is noteworthy 
that the definition of “contractor” does not use the term “producer” to describe this activity.  
It limits use of the term “producer” to describe one who “grow[s] or raise[s] agricultural 
commodities.”  

 subd. 3.  Defining “seller” as one who engages only in the sale of 
commodities is thus consistent with the full definition of “contractor.”  
                           D                                         
Now turn to 

  It appears in a chapter concerning wholesale 
produce dealers.  It establishes parent-company liability with respect to contracts between 

“wholesale produce dealer[s],” on the one hand, and “seller[s]” on the other.  

  For 
purposes of section 27.133, a “[w]holesale produce dealer” includes “a person who buys 
from or contracts with a seller for production or sale of produce in wholesale lots for 
resale[.]”  

 § 27.01, subd. 8(a)(1).  Relevant here, “[p]roduce” includes “poultry and 
poultry products.”  Id., subd. 2(3).  “‘Seller’ means a farmer or wholesale produce dealer, 

whether the person is the owner of the produce or produces it for another person who holds 
title to it.”  Id., subd. 10.  The Parties do not dispute that Simply Essentials is a “wholesale 
produce dealer” and that the Growers are “sellers” for purposes of section 27.133. 
                           1                                         
The statute’s use of “another” creates ambiguity.  To recap, under section 27.133, if 

a wholesale produce dealer “fails to pay or perform according to the terms of [a] contract” 
with a seller, and “[i]f a wholesale produce dealer is a subsidiary of another corporation, 
partnership, or association, [then] the parent corporation, partnership, or association is 
liable to [the] seller for the amount of any unpaid claim” under the contract.  (Emphasis 
added).  Minnesota courts “construe the word ‘another’ according to its common and 

approved usage unless it is defined in statute or has acquired a special meaning.”  State v. 
Stewart,  

  (Minn.  2001)  (citing  

(1)).   This 

7    If the Growers were “sellers” for purposes of section 17.93, then the analysis and 
conclusions in Part D would apply also to section 17.93.                  
principle often leads courts to consult dictionaries.  See id.; see also Associated Bank, N.A. 
v. Comm’r of Revenue, 

 (Minn. 2018).8  Ambiguity arises because the 
definition of “another” has at least two components in tension with each other.  The first is 

that the “other” must be “[d]istinctly different from the first.”  The American Heritage 
Dictionary of the English Language 74 (5th ed. 2011); accord Webster’s Third New 
International Dictionary 89 (1976) (defining “another” to mean “one that is different, 
separate, or in contrast to the first”).  But because the word “another” generally implies 
some connection between the “original” and the “other,” it seems that the two must be “of 

the same kind,” at least to a degree.  Another, Merriam-Webster, https://www.merriam-
webster.com/dictionary/another (last visited Dec. 17, 2020).              
The Parties’ dispute over the meaning of section 27.133 reflects this ambiguity and 
definitional tension.  Pitman Farms says section 27.133’s use of “another” means the 
“subsidiary must be one of those three listed entities.”  Pl.’s Mem. Supp. Summ. J. at 17.  

The Growers, on the other hand, say that “another” means only a different organization 
from the subsidiary.  Defs.’ Mem. Supp. Summ. J. at 26.                   


8    Ambiguity owing to a statute’s usage of “another” is not uncommon.  Compare, 
e.g., United States v. Amri, No. 1:17-cr-50 (LMB), 

, at *11–14 (E.D. 
Va. July 31, 2017) (holding that the phrase “another person” in an obstruction-of-justice 
statute,  

(b)(3),  means  a  person  other  than  the  defendant  and  the 
investigating federal officers) with United States v. Hawkins, 

, 125–26 
(D.D.C. 2016) (finding that the phrase “another person” in the same statute means “‘any 
person’” other than the defendant); see also United States v. Spears, 

, 754–58 
(7th Cir. 2013) (finding the phrase “another person” as used in an identity-theft statute, 
18 U.S.C. § 1028A, to be ambiguous and interpreting the phrase to mean, not “every 
person  other  than  the  defendant,”  but  “a  person  whose  information  has  been 
misappropriated”).                                                        
Pitman Farms has the better argument in view of the statute’s text.  Minnesota courts 
have resolved ambiguity owing to a statute’s use of “another” by focusing on surrounding 
text and related provisions.  For example, in Elsola v. Commissioner of Revenue, the 

Minnesota Tax Court confronted a statute that addressed sums that a taxpayer who was a 
“resident of this state” was liable to pay “to another state or a province or territory of 
Canada.”  No. 3980, 

, at *1 (Minn. Tax Ct. Apr. 9, 1984) (quoting 

(c) (1982)).  The taxpayers argued that the term “another state” meant a 
foreign country.  See 

.  The court rejected this argument and held that “another 

state” referred to “one of the states of the United States other than Minnesota.”  

  This 
conclusion was based primarily on a separate tax provision’s definition of “this state” as 
“the state of Minnesota,” as well as the disputed provision’s reference to a “province or 
territory of Canada,” which invoked “the major subdivisions of Canada” rather than the 
“Canadian national government.”  

  Similarly, in Campbell, the Minnesota Supreme 

Court had to decide whether the phrase “another offense,” which appeared in a provision 
of the Minnesota Sentencing Guidelines, referred only to felony offenses or extended to 
misdemeanors and gross misdemeanors.  

.  Based primarily on the fact 
that the Guidelines as a whole “apply only to felonies,” the court held that “another offense” 
really meant “another felony offense.”  See 

 at 5–6.                   

With these Minnesota cases in mind, the better conclusion is that the phrase “another 
corporation, partnership, or association” in section 27.133 means there is some original 
entity—i.e., the subsidiary—that is also a “corporation, partnership, or association.”  This 
interpretation is consistent with the surrounding text and accepts the limiting connection 
implied by use of the word “another” alongside the three listed entities in a way that is 
consistent with the courts’ approaches in Elsola and Campbell.  Accepting the Growers’ 
interpretation would have the effect of reading section 27.133 to require only that the 

wholesale produce dealer be “a subsidiary of [a] corporation, partnership, or association.”  
In other words, under the Growers’ interpretation, “another” is intended merely as an 
indefinite article and synonym of “a.”  That doesn’t give the legislature enough credit.  
Saying that one organization is a “subsidiary” distinguishes it from a different organization.  
In other words, use of the word “another” merely to differentiate the subsidiary from the 

parent would duplicate work that “subsidiary” does already.  The word “another” is better 
understood to imply that both the parent and subsidiary must be drawn from one of the 
categories listed in section 27.133.                                      
                           2                                         
From this understanding, Pitman Farms next argues that Simply Essentials is not a 

“corporation,  partnership,  or  association”  because  it  is  a  limited  liability  company.  
Therefore, the argument goes, section 27.133 neither governs the Growers’ contracts with 
Simply Essentials nor establishes Pitman Farms’ parent liability for Simply Essentials’ 
unmet obligations under those contracts.  In their opening brief, the Growers acknowledged 
that “limited liability companies are not referenced in any of the” parent-liability statutes, 

including section 27.133.  Defs.’ Mem. Supp. Summ. J. at 27.  This is understandable, the 
Growers  acknowledged,  because  limited  liability  companies  were  not  authorized  in 
Minnesota until 1992, two years after enactment of the parent-liability statutes.  

  The 
Growers argued that section 27.133 should nonetheless be interpreted to apply to limited 
liability companies to effectuate the purpose of the parent-liability statutes.  

 at 27–28.  
In their opposition brief, the Growers argued that “association” as intended in section 
27.133 includes limited liability companies.  Defs.’ Mem. Opp’n Summ. J. at 7–8. 

Though the question is close and difficult, the better answer is that “association” as 
used  in  section  27.133  does  not  include  limited  liability  companies.    Four  primary 
considerations lead to this conclusion: first, that section 27.133 was enacted before the 
creation of limited liability companies in Minnesota but has not been amended since; 
second, that “association” does not seem intended in section 27.133 as a catch-all for every 

form of business organization that might exist; third, that “association” is more commonly 
intended to mean something different from a limited liability company when it is used 
elsewhere in Minnesota statutes; and fourth, that no Minnesota case answers the question.  
It is true that this conclusion appears somewhat at odds with section 27.133’s general 
purpose, but that general purpose cannot be understood without accounting for textual 

limits.                                                                   
When enacted, section 27.133 could not have used “association” to refer to limited 
liability  companies  because  limited  liability  companies  weren’t  yet  a  thing  under 
Minnesota law, and though the Minnesota legislature has since directed that many statutes 
be amended to refer to limited liability companies, it has not amended section 27.133 to do 

that.  The Minnesota legislature did not adopt the Minnesota Limited Liability Company 
Act (“the Act”)—which provided for the first formation and recognition of limited liability 
companies under Minnesota law—until two years after it enacted the parent-liability 
statutes.  See 1992 Minn. Laws ch. 517 (H.F. No. 1910).9  The Act included provisions 
directing that many other statutes be amended to include explicit references to limited 
liability companies, see 

 art. 1, but neither section 27.133 nor any statutes in the chapters 

pertaining  to  agriculture,  Minnesota  Statutes  Chapters  17–43,  were  among  those 
amended.10  Despite the subsequent amendment and inclusion of references to limited 
liability companies in an even greater number of statutes, section 27.133 has not been 
amended to include explicit reference to limited liability companies since its enactment. 
Of  course,  section  27.133’s  amendment  would  have  been  unnecessary  if 

“association” were intended originally to refer to any business organization then or ever 
existing but attributing that expansive meaning to section 27.133 seems implausible.  When 
the Minnesota legislature intends to bring many kinds of business organizations within a 
statute’s reach, it more commonly uses catch-all words and phrases that do not include 
“association.”  For example, Minnesota statutes frequently define “person” by reference to 

a list of specific individuals and entities followed by phrases like “and other business 
organizations” or “and any other legal or commercial entity.”  See, e.g., 

, subd. 7a; 15C.01, subd. 5; 16B.33, subd. 1(i); 52.001, subd. 10; 270C.01, subd. 


9    The Act was originally codified in Chapter 322B of the Minnesota Statutes.  In 2014, 
the Minnesota Revised Uniform Limited Liability Company Act was enacted and codified 
in Chapter 322C, at which time Chapter 322B was repealed.  See 2014 Minn. Laws ch. 157 
(H.F. No. 977).                                                           

10   The amendments provided for in the Act involved a wide range of statutes, including 
those  related  to  corporate  political  contributions,  income  and  excise  tax,  business 
corporations,  cooperatives,  nonprofit  corporations,  professional  corporations,  limited 
partnerships, trade names, and estates in real property.  1992 Minn. Laws ch. 517, art. 1. 
6; 302A.011, subd. 22; 611A.68, subd. 1(d).  Other statutes include similar references.  See, 
e.g., 

 § 181.970, subd. 2(3) (providing employee indemnification provision does not 
apply when covered by other laws “specifically governing indemnification of employees 

of business or nonprofit corporations, limited liability companies, or other legal entities”); 
id. §§ 216B.02, subd. 4, 336B.01, subd. 1, and 325E.025, subd. 1 (defining “[p]ublic 
utility” and “utility” to mean “persons, corporations, or other legal entities . . .”); id. 
§ 317A.681, subd. 1(b) (defining “[o]rganizational document” as it pertains to a domestic 
or foreign limited liability company, a trust, a domestic or foreign corporation, or “any 

other organization”).  Significantly, some statutes use “association” and then a separate 
catch-all  phrase  like  “other  organization”  and  “other  legal  entities,”  meaning  that 
“association” must have a separate meaning, certainly in those statutes.  See, e.g., id. 
§ 501B.35, subd. 4 (defining “[t]rustee” as an “agent of an association, foundation, trustee 
corporation, corporation, or other legal entity”).11  When the Minnesota legislature intends 

“association” to be a catch-all, it includes the word in a phrase indicating that purpose.  See, 
e.g., id. § 514.67(1) (“‘Person’ means and includes any natural person in any individual or 
representative capacity, and any firm, copartnership, corporation, or other association of 
any  nature  or  kind.”)  (emphasis  added);  id.  § 520.01,  subd.  4  (“‘Person’  includes  a 


11   For another example of a statute that takes this approach, see 

-
1501(d) (“If the contractor is the subsidiary of another corporation, partnership, or a 
member of another association or other business entity, the parent corporation, partnership, 
association or other business entity is liable to a producer for the amount of any unpaid 
claim or contract performance claim if the contractor fails to pay or perform according to 
the terms of the contract.”).  This statute also is distinguishable from section 27.133 
because it expressly defines contractor to include limited liability companies.  

 § 16-
1501(a).                                                                  
corporation, partnership, or other association, or two or more persons having a joint or 
common interest.”) (emphasis added); id. § 10A.01, subd. 35a (defining “[s]ecurities” as 
“any stock . . . in any corporation, partnership, trust, or other association”) (emphasis 

added); id. § 268.065, subd. 1 (defining “contractor” and “subcontractor” to “include 
individuals, partnerships, firms, or corporations, or other association of persons engaged 
in the construction industry”) (emphasis added); id. § 317A.161, subd. 13(b) (providing 
that a corporation “may participate with others in a corporation, partnership, limited 
partnership, joint venture, trust, or other association of any kind . . .”) (emphasis added).  

Section  27.133  includes  no  like  phrasing,  suggesting  that  its  mere  reference  to 
“association” was not intended as a catch-all.                            
When the term “association” appears alone and without a specific definition—as it 
does in section 27.133—the Minnesota legislature more commonly intends it to mean a 
type of organization different from a limited liability company.  “Association” appears as 

a distinct entity in numerous Minnesota statutes identifying various business organizations.  
For  example,  in  the  1990  statutes  pertaining  to  business  corporations,  the  term 
“[o]rganization” is defined as “a domestic or foreign corporation, partnership, limited 
partnership, joint venture, association, business trust, estate, trust, enterprise, and any other 
legal  or  commercial  entity.”    Minn. Stat.  § 302A.011,  subd.  19  (1990);  see  also  id. 

§ 317A.011, subd. 16 (1990).  When the Act was enacted in 1992, section 302A.011, 
subdivision  19,  was  amended  to  define  “[o]rganization”  as  “a  domestic  or  foreign 
corporation, limited liability company, whether domestic or foreign, partnership, limited 
partnership, joint venture, association, business trust, estate, trust, enterprise, and any other 
legal  or  commercial  entity.”    Minn.  Stat.  § 302A.011,  subd.  19  (1992);12  see  also 
id. § 317A.011, subd. 16 (1992) (amended in the same way).  Other statutes were amended 
at that time in this same way.  See Minn. Stat. § 322A.01(11) (1992) (defining “[p]erson” 

as “a natural person, partnership, limited partnership (domestic or foreign), trust, estate, 
association, limited liability company (whether domestic or foreign), or corporation”); 
id. § 333.18, subd. 2 (1992) (defining “person” as “any individual, firm, partnership, 
corporation, limited liability company, whether domestic or foreign, association, union, or 
other organization”).  In other words, despite the legislature’s inclusion of limited liability 

companies in these definitions, “association” remained separately among the listed entities, 
suggesting an “association” generally is distinct from, and not inclusive of, a limited 
liability  company.    And  Minnesota’s  limited-liability-company  statutes,  both  at  their 
enactment  and  today,  distinguish  limited  liability  companies  from  associations.    See 
Minn. Stat. § 322B.03,  subd.  34  (1992)  (defining  “[o]rganization”  as  “a  domestic  or 

foreign  limited  liability  company,  corporation,  partnership,  limited  partnership,  joint 
venture,  association,  business  trust,  estate,  trust,  enterprise,  and  any  other  legal  or 
commercial  entity”);  id.  § 322C.0102,  subd.  20  (2020)  (defining  “[p]erson”  as  “an 
individual, corporation, business trust, estate, trust, partnership, limited liability company, 
association, joint venture, public corporation, government or governmental subdivision, 

agency,  or  instrumentality,  or  any  other  legal  or  commercial  entity”);  see  also 


12   Section 302A.11, subdivision 19, was amended in 2015, at which time “association” 
was removed from the statute along with several other listed entities.  “Limited liability 
compan[ies]” remained.                                                    
id. § 322C.0102, subd. 12 (2020) (defining a limited liability company as “an entity” 
formed under Chapter 322C, not as “an association”).  In view of these examples, it makes 
better sense to understand “association” in section 27.133 not to refer to or include a limited 

liability company.                                                        
The Growers argue that a specialized definition given “association” elsewhere in 
Minnesota statutes should be attributed to the parent-liability statutes, but that would be 
inappropriate.  Where “association” is specially defined in Minnesota statutes, its meaning 
depends very much on context.  For example, in 1990, “association” was defined at least 

seventeen times in Minnesota statutes (and used more than three hundred times), but only 
two of those definitions were identical.  Sections 10A.01, subdivision 3, and 383B.042, 
subdivision  3,  defined  “[a]ssociation”  as  a  “business,  corporation,  firm,  partnership, 
committee, labor organization, club, or any other group of two or more persons, which 
includes more than an immediate family, acting in concert.”  Minn. Stat. §§ 10A.01, subd. 

3, 383B.042, subd. 3 (1990).13, 14  The Growers argue that this definition encompasses 


13   Section 10A.01, subdivision 6, of the 2020 statutes now defines association as “a 
group of two or more persons, who are not all members of an immediate family, acting in 
concert.”  The definition in section 383B.042, subdivision 3, remains the same. 

14   This definition references entities “of two or more persons.”  Minnesota law did not 
allow for the formation of single-member limited liability companies until 1997.  Compare 
Minn. Stat. § 322B.11 (1992) (requiring limited liability companies to have two or more 
members at the time of formation), with Minn. Stat. § 322B.11 (1997) (requiring a limited 
liability company to have one or more members); see 

.  Although 
this portion of the definition is not significant to ascertaining the legislature’s intent in 
using the term “association” in 1990, as Minnesota law did not then recognize limited 
liability companies of any size, it has not been amended since the advent of the single-
member limited liability company.                                         
limited liability companies and should be imputed to section 27.133 (and to section 17.93).  
Defs.’ Mem. Opp’n Summ. J. at 8.  It is true that sections 10A.01, subdivision 3, and 
383B.042, subdivision 3, were enacted prior to the legislature’s inclusion of “association” 

in  the  parent-liability  statutes.    See  

;  

.  
Regardless, sections 10A.01, subdivision 3, and 383B.042, subdivision 3, do not share a 
common  purpose  or  subject  matter  with  sections  17.93  or  27.133.    See  State  v. 
Thonesavanh, 

 (Minn. 2017); see also Erlenbaugh v. United States, 

 (1972) (“[A] legislative body generally uses a particular word with a 

consistent meaning in a given context.” (emphasis added)).  Section 10A.01 regulates 
ethical practices in government, and section 383B.042 is part of a larger statutory regime 
governing elections in Hennepin County.  It therefore would be inappropriate to attribute 
this definition of “association” to section 27.133.                       
No Minnesota case provides a clear answer one way or the other.  The case that 

comes the closest is Enbridge Energy, Ltd. Partnership v. Dyrdal, No. A08-1863, 

 (Minn. Ct. App. July 28, 2009).  There, the court addressed a Minnesota 
statute, 

, that authorized “[a]ny corporation or association qualified to 
do business in the state of Minnesota engaged in or preparing to engage in the business of 
transporting crude petroleum” to “acquire, for the purpose of such business, easements or 

rights-of-way” and “enjoy the power of eminent domain.”  

.  The court concluded 
that “given the context in which association is used in chapter 117, it would be absurd for 
us to conclude that the legislature intended to exclude certain types of business entities 
from the powers granted by 

.”  

  The court added that “[t]here is no 
indication from the text of the statute that the legislature intended to differentiate or exclude 
businesses  that  transport  crude  petroleum  based  on  how  they  are  organized  or 
incorporated.”  

  Enbridge does not warrant the same result here.  The context is quite 

different.  Enbridge concerned a challenge to a crude oil transporter’s ability to acquire a 
right-of-way easement necessary to installation of a 108-mile underground pipeline.  

.  Regardless, the interpretive challenges raised by the Parties here and addressed in this 
opinion were not addressed in Enbridge.15  Pitman Farms argues that Minnesota Joint 
Underwriting Ass’n v. Star Tribune Media Co., 

 (Minn. 2015), shows that 

the Minnesota Supreme Court generally understands “association” not to include or refer 
to limited liability companies.  See Pl.’s Suppl. Authority [ECF No. 82].  The case does not 
support such a broad reading.  The issue in Joint Underwriting Ass’n was whether an 
involuntary association of insurers created by Minnesota statutes (the Minnesota Joint 
Underwriting Association or “MJUA”) was a “state agency” subject to the Minnesota 

Government Data Practices Act.  

.  The court held that the association of 
insurers was not a state agency:                                          
     MJUA is legally organized as an involuntary association of      
     private insurers.  See Minn. Stat. § 62I.02, subd. 1.  According 
     to the insurance code, an association is an “organized body of  

15   The  Growers  fairly  point  out  that  this  interpretation  would  leave  contracting 
subsidiaries’ owners with an opportunity to game the system by reorganizing as limited 
liability companies.  The Growers imply this would be an absurd outcome.  However, those 
opportunities exist regardless.  For example, the Minnesota Department of Agriculture does 
not understand the parent-liability statutes to apply to every corporation, partnership, or 
association with an ownership interest in a subsidiary—only those that “own[] more than 
50 percent” of the voting shares or “provide[] more than 50 percent of the management or 
control of a subsidiary.”  

.1001, 1572.0040.  Thus, it appears that dilution of 
ownership could already enable parent organizations to avoid parent liability.    
     people  who  have  some  interest  in  common.”   Minn.         
     Stat. § 60A.02,  subd.  1a  (2014).    By  definition,  an      
     “association” is not a legal entity separate from the persons   
     who compose it.  Black’s Law Dictionary 132 (8th ed. 2014).     
     Accordingly, while the MJUA was created by state statute, it    
     is not part of the State; it is an organization consisting of private 
     insurers.                                                       

Id. at 66.  Joint Underwriting Ass’n thus concerned a narrow question different from the 
issues presented here, and though its statement that “an ‘association’ is not a legal entity 
separate from the persons who compose it” may be true generally, it gives little help in 
ascertaining the intended meaning of “association” in the parent-liability statutes.  Finally, 
in Krueger v. Zeman Construction Co., 

 (Minn. 2010), the court held that 
a limited liability company “qualifies as a ‘person’ for purposes of” a provision of the 
Minnesota Human Rights Act defining “person” to include, among other entities, “a 
partnership,  association,  or  corporation[.]”    

.    But  the  court  reached  this 
conclusion with no discussion, much less any analysis that might inform the disposition of 
this case.  See 

                                                       
It is true that the legislature described a liberal policy behind section 27.133 and that 
this interpretation somewhat narrows the statute’s reach.  Chapter 27 includes the following 
statement of public policy:                                               
     The legislature recognizes that perishable agricultural products 
     are important sources of revenue to a large number of citizens  
     of this state engaged in producing, processing, manufacturing,  
     or selling such products and that such products cannot be       
     repossessed in case of default.  It is therefore declared to be the 
     policy of the legislature that certain financial protection be  
     afforded  those  who  are  producers  on  the  farm;  farmer    
     cooperatives  which  are  not  wholesale  produce  dealers  as  
     described  in  section  27.01,  subdivision  8;  and  licensed  
     wholesale  produce  dealers,  including  the  retail  merchant  
     purchasing produce directly from farmers.  The provisions of    
     this  chapter  which  relate  to  perishable  agricultural      
     commodities shall be liberally construed to achieve these ends  
     and shall be administered and enforced with a view to carrying  
     out the above declaration of policy.                            

.  Though first enacted in 1969, this statement accurately describes the 
legislature’s motives behind enacting section 27.133.  In a nutshell, both section 27.133 
(and section 17.93) were enacted following the legislature’s creation of, and receipt of 
reports from a task force recommending economic protections for farmers producing 
agricultural commodities under contract, including parent-company liability.16 

16   In 1988, the Minnesota legislature established the Agricultural Contract Task Force 
“to determine the feasibility of changing existing programs or developing a new program 
to provide economic protection for farmers producing agricultural commodities under 
contract.”  

.  Such economic protection “would be provided when 
businesses have filed bankruptcy and are unable to make payments under the contract or 
are otherwise financially unable to make payments under the contract.”  

  The task force 
included “farmers, canning processors, contract seed businesses, livestock and poultry 
contractors, other agricultural processors, farm organizations, and bonding and financial 
institutions.”  

  The task force prepared two reports for the legislature: an interim report 
in February 1989 and a final report in February 1990.  In its reports, the task force identified 
an  increasing  trend  in  contract  farming  that  “was  not  as  prevalent”  at  the  time  the 
Wholesale Producer Dealers Act (Minn. Stat. Ch. 27) and other agricultural legislation was 
written  as  well  as  a  lack  of  uniformity  to  agricultural  contracting  in  Minnesota.  
Agricultural Contracts Task Force, An Interim Report to the 1989 Legislature 1 (Feb. 1989) 
(“1989 Report”); Agricultural Contracts Task Force, Final Report to the 1990 Legislature 
1 (Feb. 1990) (“1990 Report”).  It also identified “[m]ajor contract problem areas,” 
including non-payment, problems with interpreting contractual rights and responsibilities, 
and problems due to unequal bargaining power.  

  In the interim report, the task force 
noted the “[i]nability of producer[s] to determine [the] financial soundness of contractors” 
and queried whether “parent companies [should] be made responsible for the contracts of 
its subsidiaries.”  1989 Report at 18 (capitalization omitted).  In its final recommendations, 
the task force recommended that “[p]arent companies should be made responsible for the 
unfulfilled contracts of their subsidiaries.”  1990 Report at 3 ¶ 3.  This recommendation 
reflected the task force’s “concern that shell, spin off and subsidiary corporations” resulting 
from “[r]ecent leveraged buyouts and business consolidations might be unable to fulfill 
Nonetheless, section 27.133’s broad policy statement and purpose cannot trump the 
limitations created by its text.  When a statute is ambiguous, its purpose is one of many 
extratextual factors a court “may” consider.  

; see Marks, 

; Ouradnik v. Ouradnik, 

, 303–04 (Minn. Ct. App. 2017), aff’d, 

 (Minn. 2018).  But “no law pursues its purpose at all costs, and . . . textual 
limitations upon a law’s scope are no less a part of its ‘purpose’ than its substantive 
authorizations.”   Rapanos  v.  United  States,  

  (2006)  (plurality 
opinion).  Although the conclusion that limited liability companies do not fall within the 

scope of 

 is arguably inconsistent with that provision’s purpose, the 
statutory text, context, and composition in view of other statutes carry greater weight in 
this case.  Put another way, had the legislature intended section 27.133 to have the broadest 
possible reach implied by its legislative history and section 27.001’s policy statement, it 
would have identified no limits on the type of business organizations susceptible to parent 

liability.    That  didn’t  happen,  and  the  limits  identified  in  section  27.133  cannot  be 
disregarded.17                                                            

contracts with producers because of bankruptcy or insufficient assets.”  

 at 11 ¶ 13.  The 
Minnesota  legislature  subsequently  enacted  two  bills  based  on  the  task  force’s 
recommendations—1990 Minn. Laws ch. 517 (S.F. No. 1779) and 1990 Minn. Laws ch. 
530 (S.F. No. 2037).  The preamble of the former stated, among other things, that it was an 
act “clarifying responsibility of parent companies for affiliates.”  

 
(codified at 

.90–.98 and 514.945).  Likewise, the latter listed “providing 
parent company liability” among its purposes.  

.  The provisions 
concerning parent company liability were codified at sections 17.93 and 27.133 of the 
Minnesota Statutes.  See 1990 Minn. Laws 1320–21, 1382.                   

17   The Growers argue that section 27.133’s title, “Parent Company Liability,” shows 
the legislature intended to include limited liability companies within its reach.  A statute’s 
                           *                                         
The determination that the parent-liability statutes do not by their own terms govern 
the Growers’ contracts with Simply Essentials makes it unnecessary to consider the choice-

of-law  issues  raised  by  the  Parties  or  Pitman  Farms’  argument  under  the  dormant 
Commerce Clause doctrine.                                                 

Based on the foregoing, and all the files, records, and proceedings herein, IT IS 
ORDERED THAT:                                                             

1.   Plaintiff’s Motion to Exclude the August 24, 2020 Kleinberger Declaration 
[ECF No. 74] is GRANTED.                                                  
2.   Plaintiff’s Motion for Summary Judgment [ECF No. 56] is GRANTED. 
3.   Defendants’ Motion for Summary Judgment [ECF No. 49] is DENIED. 
       LET JUDGMENT BE ENTERED ACCORDINGLY.                          

                                                                          
Dated:  December 18, 2020          s/ Eric C. Tostrud                           
                              Eric C. Tostrud                        
                              United States District Court           



title “is properly to be considered in determining legislative intent[.]”  Hovet v. City of 
Bagley, 

, 814–15 (Minn. 1982) (quoting Cleveland v. Rice Cnty., 

, 644 (Minn. 1952)).  As with the statute’s policy statement and purpose, 
however, the statute’s title does not justify an interpretation that overrides the statute’s 
textual limitations and other considerations leading to the conclusion that the parent-
liability statutes do not reach limited liability companies.              

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                


Pitman Farms,                         File No. 19-cv-3040 (ECT/BRT)       

Plaintiff/Counter Defendant,                                         

v.                                                                        
                                    OPINION AND ORDER                
Kuehl Poultry LLC, Rodney Boser,                                          
Dan Schlichting, John Tschida,                                            
Chris Uhlenkamp, and David Welle,                                         

Defendants/Counter Claimants.                                        


Jeffrey  J.  Bouslog,  Natalie  I.  Uhlemann,  and  Archana  Nath,  Fox  Rothschild  LLP, 
Minneapolis, MN; Asher Shepley Anderson, Baker, Manock & Jensen, PC, Fresno, CA, 
for Plaintiff/Counter Defendant Pitman Farms.                             

Jack Y. Perry and Maren M. Forde, Taft Stettinius & Hollister LLP, Minneapolis, MN, for 
Defendants/Counter Claimants Kuehl Poultry LLC, Rodney Boser, Dan Schlichting, John 
Tschida, Chris Uhlenkamp, and David Welle.                                


Minnesota  statutes  and  a  rule  promulgated  by  the  Minnesota  Department  of 
Agriculture establish parent-company liability for a subsidiary’s unmet obligations under 
specific kinds of agricultural contracts.  

, subd. 2; 

; 

.0040.  In other words, when they apply, these authorities override the 
general rule that a parent corporation is not liable merely by virtue of its status as a parent 
for the debts of its subsidiary.                                          
The  primary  issue  in  this  case  is  whether  these  authorities  apply  to  chicken-
production contracts between Defendants, who are Minnesota chicken growers (and who 
will be referred to collectively as “the Growers”), and Simply Essentials, LLC, a chicken 
processor.  If these authorities govern the Growers’ contracts with Simply Essentials, then 
Plaintiff Pitman Farms, a California corporation that is Simply Essentials’ sole member, is 

liable to the Growers for Simply Essentials’ breaches of the contracts.   
Pitman  Farms  brought  this  case  under  the  federal  Declaratory  Judgment  Act, 

, seeking a declaration that the Minnesota agricultural “parent-liability” 
statutes and rule do not govern the Growers’ contracts with Simply Essentials.  Pitman 
Farms argues that the parent-liability authorities do not apply by their own terms, that 

Delaware  law  applies  regardless,  and  that  applying  the  Minnesota  parent-liability 
authorities  to  trigger  its  liability  to  the  Growers  would  violate  the  federal  dormant 
Commerce  Clause  doctrine.    In  a  counterclaim  also  brought  under  the  Declaratory 
Judgment Act, the Growers seek essentially contrary declarations and damages. 
The Parties have filed cross-motions seeking summary judgment on their respective 

declaratory-judgment  claims.    Pitman  Farms  also  has  filed  a  motion  to  exclude  the 
Growers’ expert declaration of Daniel S. Kleinberger, Professor Emeritus at Mitchell 
Hamline School of Law.  Pitman Farms’ motion to exclude Professor Kleinberger’s 
declaration will be granted because the Growers’ reliance on the testimony is procedurally 
improper and because, as the Growers themselves describe it, the declaration offers only 

impermissible legal opinions.  Pitman Farms’ summary-judgment motion will be granted, 
and the Growers’ cross-motion denied, because the Minnesota parent-liability authorities 
by their own terms do not apply to the Growers’ contracts with Simply Essentials. 
                           I                                         
The relevant facts are undisputed.  The Growers grow chickens and provide them 
to processing plants.  See Am. Compl. ¶ 15 [ECF No. 34].  In 2017, the Growers entered 
into “broiler production agreements” with Prairie’s Best Farms, Inc., a Minnesota chicken 

processor.  Nath Decl., Exs. A1–A7 [ECF No. 60-1].  Pitman Farms was not a party to the 
broiler  production  agreements.    See  

    On  November  10,  2017,  Simply  Essentials 
purchased the assets of Prairie’s Best and assumed the broiler production agreements.  

 
Ex. B [ECF No. 60-2].  Simply Essentials is a limited liability company organized under 
Delaware law and maintains its headquarters in California.  Pitman Decl. in Opp’n ¶ 3 

[ECF No. 67].  Pitman Farms was not a party to the asset purchase agreement between 
Simply Essentials and Prairie’s Best.  See Nath Decl., Ex. B.             
Three days after the asset purchase agreement was executed, Pitman Farms became 
the sole member of Simply Essentials.  Pitman Decl. in Supp. ¶ 2 [ECF No. 59].  “Pitman 
Farms’ purchase of Simply Essentials[’] membership interests occurred in Iowa,” and “the 

agreement transferring Simply Essentials[’] membership interests to Pitman Farms . . . is 
governed by Delaware law.”  

  “Pitman Farms’ officers and directors direct, control, and 
coordinate the activities of Simply Essentials [] on behalf of Pitman Farms in its capacity 
as  the  sole  member”  from  Pitman  Farms’  California  headquarters.    Pitman  Decl.  in 
Opp’n ¶ 4.  In January 2018, Pitman Farms registered to do business in Minnesota “to allow 

for the completion of payroll related to” an employee working remotely there.  Pitman 
Decl. in Supp. ¶ 3, Ex. A [ECF No. 59-1].                                 
The  Growers  allege  that  Simply  Essentials  “began  materially  breaching  its 
obligations” under the broiler production agreements “nearly as soon as it assumed” them.  
Mem. Supp. Mot. to Dismiss at 5 [ECF No. 17].  In 2019, Simply Essentials ceased 

operating due to financial difficulties.1  See Nath Decl., Ex. C [ECF No. 60-3].  On June 7, 
2019, Simply Essentials notified the Growers in writing that it would terminate the broiler 
production agreements effective September 5, 2019.  See, e.g., 

 Ex. D [ECF No. 60-4].  
Following termination, the Growers sent notices of default to Simply Essentials, addressed 
to David Pitman, the Secretary of Pitman Farms.  

 Ex. E [ECF No. 60-5]; Pitman Decl. 

in Supp. ¶ 1.  The Growers estimate that they are collectively owed more than $6 million 
as a result of Simply Essentials’ alleged breaches of its obligations under the broiler 
production agreements.  Mem. Supp. Mot. to Dismiss at 6.                  
On December 5, 2019, Pitman Farms commenced this action.  Compl. [ECF No. 1].  
That same day—after Pitman Farms filed this case—the Growers filed a complaint in 

Minnesota  state  district  court,  Morrison  County,  asserting  breach-of-contract  claims 
against Pitman Farms, Prairie’s Best, and Simply Essentials.  Tschida Decl., Ex. A [ECF 
No. 52-1 at 2–59].  Pitman Farms and Simply Essentials filed motions in the state-court 
action to stay that case pending resolution of this case.  ECF Nos. 18-9, 18-11, 29-1 at 
1–21.  The Growers then filed a motion in the state-court action for partial summary 

judgment against Simply Essentials and Pitman Farms, including on the issue of whether 


1    Simply  Essentials  is  now  insolvent,  and  on  March  6,  2020,  an  involuntary 
bankruptcy action was filed against Simply Essentials.  See Nath Decl., Ex. C [ECF No. 
60-3]; ECF No. 29-1 at 199–205.                                           
Pitman Farms is liable under Minnesota law for Simply Essentials’ alleged breaches.  ECF 
No. 29-1 at 110–130.  On March 19, 2020, the Morrison County District Court ordered that 
case stayed “until the related federal court declaratory judgment action is resolved, or until 

further Order of this Court.”  Order Granting Motion to Stay Pending Resolution of Federal 
Court Action ¶ 2, Boser v. Prairie’s Best Farms, Inc., No. 49-cv-19-1751 (Morrison Cnty., 
Minn.).    The  Growers  then  moved  to  dismiss  this  action  for  lack  of  subject-matter 
jurisdiction and for failure to join a required party under Federal Rule of Civil Procedure 
19.  ECF Nos. 15, 35.  Alternatively, they argued that the case should not move forward in 

deference to their state-court suit.  

  The Growers’ motions were denied.  ECF No. 37.  
The Growers subsequently filed their answer and counterclaim.  ECF No. 40. 
                           II                                        
It  makes  sense  to  start  with  Pitman  Farms’  motion  to  exclude  Professor 
Kleinberger’s declaration because a decision on the motion will determine the record on 

which the summary-judgment motions will be adjudicated.  Pitman Farms advances two 
arguments in support of its motion: first, that the Growers failed to disclose Professor 
Kleinberger  in  compliance  with  Fed.  R.  Civ.  P.  26(a)(2),  and  that  exclusion  is  the 
appropriate remedy under Fed. R. Civ. P. 37(c); and second, that the testimony should be 
excluded under the general rule that expert witnesses are forbidden from offering opinions 

that are legal arguments and conclusions.  See generally Pl.’s Mem. Supp. Mot. to Exclude 
[ECF No. 76].                                                             
                           A                                         
The Growers’ reliance on Professor Kleinberger violates Rule 26(a)(2) because it   
contradicts the pretrial scheduling order.  ECF No. 47.  Under Rule 26(a)(2)(D), expert 

disclosures must be made “at the times and in the sequence that the court orders.”  Here, 
that did not happen.  The pretrial scheduling order “incorporates a schedule for early cross-
motions for summary judgment . . . because the parties represent[ed] that they do not 
require any fact discovery to support their [motions.]”  Pretrial Sched. Order at 4 (emphasis 
added); see also 

 (“Counsel also explained why they jointly believed that the early 

cross-motions contemplated would likely resolve the case.”).  Consistent with the Parties’ 
representations, the pretrial scheduling order repeatedly makes plain that discovery would 
occur only if—and then only after—a decision on the summary-judgment motions left the 
case or some part of it unresolved.  

 (“The Court engaged counsel in a discussion 
about  the  need  to  include  a  pretrial  schedule  that  addressed  all  Rule  16  scheduling 

requirements in the event the early cross-motions for summary judgment did not resolve 
the case in its entirety.”); 3 (“The parties agreed to immediately discuss the scope of 
discovery to ensure that relevant information is preserved if any fact discovery is sought 
following the court’s decision on the early cross-motions for summary judgment.”); 5–7 
(establishing disclosure and discovery deadlines based on the date of a decision on the 

summary-judgment motions).  Even then, Pitman Farms and the Growers made clear that 
they “d[id] not anticipate calling any expert witnesses” at all, but that if something changed, 
then each would notify the other of the need for expert discovery after the summary-
judgment decision.  

.  In other words, based on the Parties’ representations, the 
pretrial scheduling order permits discovery only after a decision on the summary-judgment 
motions.  The Growers’ filing of an expert declaration with their opposition brief is at odds 
with this timing and sequence and, therefore, violates Rule 26(a)(2)(D).  

Separately, the Growers’ reliance on Professor Kleinberger violates Rule 26(a)(2) 
because the Growers gave no advance disclosure of Professor Kleinberger’s testimony.  
Rule 26(a)(2) is understood to require the disclosure of expert testimony sufficiently in 
advance of its use so that an opposing party may cross examine the witness or perhaps 
arrange for its own expert witness.  See Smith v. Tenet Healthsystem SL, Inc., 

 (8th Cir. 2006) (quoting Fed. R. Civ. P. 26 advisory committee’s note to 1993 
amendment).  Here, the Growers filed Professor Kleinberger’s declaration with their 
opposition brief.  Under the briefing schedule established in the pretrial scheduling order, 
Order at 4, that left Pitman Farms with no feasible opportunity to cross-examine Professor 
Kleinberger or disclose its own expert without seriously disrupting the summary-judgment 

process proposed by the Parties and adopted in the scheduling order.      
The Growers point out that the pretrial scheduling order does not explicitly forbid 
the submission of expert testimony with, or in opposition to, the summary-judgment 
motions and that their disclosure of Professor Kleinberger did not occur after the expiration 
of any deadline.  Defs.’ Mem. Opp’n Mot. to Exclude at 23 [ECF No. 79].  True enough, 

but why would the scheduling order explicitly forbid the submission of expert testimony 
in connection with the summary-judgment motions when the Parties made it so clear that 
they would not rely on expert testimony in connection with their motions?  In view of the 
Parties’ positions and representations, a statement that expert testimony could not be used 
to support or oppose the motions, or the establishment of any discovery or disclosure 
deadlines ahead of a decision on the motions, would have seemed pointless.  The absence 
of an explicit prohibition or missed deadline, therefore, are not reasons to conclude that the 

Growers’ submission of Professor Kleinberger’s declaration did not violate the pretrial 
scheduling order.  The Growers also argue that, if their disclosure of Professor Kleinberger 
violated the pretrial scheduling order, then so did Pitman Farms’ filing of the factual 
declaration of its corporate secretary, David Pitman.  Id.; see ECF No. 59.  Perhaps.  But 
the Parties never have relied solely on the pleadings to establish the relevant facts, and they 

have filed no joint statement or stipulation describing the undisputed facts.  Even if they 
are few and undisputed, the facts have to come from somewhere.  It might also be different 
if the Growers disputed material parts of Pitman’s testimony or suggested that discovery 
was necessary in response to Pitman’s testimony.  They don’t.  It also bears mentioning 
that the Growers seem to have done the same thing by filing, for example, the declaration 

of John Tschida and the 348 pages of exhibits accompanying it.  ECF No. 52.  Taken to its 
logical conclusion, wouldn’t this argument require the Tschida declaration to be stricken, 
also?  No sensible reason has been identified to justify excluding declarations filed to 
identify the (apparently undisputed) material facts.                      
Under Rule 37(c)(1), “[i]f a party fails to provide information or identify a witness 

as required by Rule 26(a) or (e), the party is not allowed to use that information or witness 
to supply evidence on a motion . . . unless the failure was substantially justified or is 
harmless.”  The Growers have the burden to show that their failure to disclose was 
substantially justified or harmless.  Fu v. Owens, 

, 883–84 (8th Cir. 2010).  
The Eighth Circuit has identified four factors a district court should consider to determine 
whether a Rule 26(a) violation is justified or harmless: “(1) the prejudice or surprise to the 
party against whom the testimony is offered; (2) the ability of the party to cure the 

prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and 
(4) the moving party’s bad faith or willfulness.”  Rodrick v. Wal-Mart Stores E., L.P., 

, 1096–97 (8th Cir. 2012) (cleaned up).                          
Here, the Growers have not shown that their failure was substantially justified or 
harmless.  It is true that trial disruption isn’t an issue.  The Parties do not believe a trial will 

be necessary because the facts are undisputed, the issues are purely legal, and the case is 
ripe for resolution through earlier-than-usual summary-judgment motions.  If all that 
weren’t true, the case is a long way from trial.  Nor is there any reason to think the Growers 
acted in bad faith.  Still, Pitman Farms’ claim of surprise deserves credit in view of the 
Parties’ unqualified representations that they would not require expert testimony or other 

discovery to support or oppose their summary-judgment motions and in view of the pretrial 
scheduling order’s reliance on these representations in putting off all discovery until after 
a decision on the summary-judgment motions.  The better conclusion is that Pitman Farms 
understandably did not see this coming.  Apart from exclusion, Pitman Farms lacks the 
practical ability to cure prejudice.  Delaying the summary-judgment process to give Pitman 

Farms time to identify and disclose its own expert or to depose Professor Kleinberger 
would complicate, delay, and to some extent defeat the purpose of the early summary-
judgment motion process the Parties represented was feasible.  On balance, then, these 
considerations favor excluding Professor Kleinberger’s declaration from consideration 
under Rule 37(c)(1).                                                      
                           B                                         

Professor Kleinberger’s declaration also will be excluded because, as the Growers 
themselves describe the declaration, it offers legal opinions.  Expert testimony regarding 
legal matters is inadmissible.  See S. Pine Helicopters, Inc. v. Phoenix Aviation Managers, 
Inc., 

, 841 (8th Cir. 2003); Williams v. Wal-Mart Stores, Inc., 

 (8th Cir. 1990).  This rule follows necessarily from Federal Rule of Evidence 702.  It 

permits expert testimony if, among other things, “the expert’s scientific, technical, or other 
specialized knowledge will help the trier of fact to understand the evidence or to determine 
a fact in issue[.]”  Fed. R. Evid. 702(a).  In other words, experts testify to aid the fact finder 
in understanding or determining the facts; as a general rule, they do not testify to aid the 
fact finder in understanding or determining the law.                      

Described broadly, Professor Kleinberger offers two opinions in his declaration.  
His first opinion is that there is no conflict between the Minnesota parent-liability statutes 
and rule, on the one hand, and the liability shield generally afforded members of a limited 
liability company.  Kleinberger Decl. at 9–13 [ECF No. 71].  His second opinion is that 
Minnesota’s  parent-liability  statutes  and  rule  apply  to  subsidiary  limited  liability 

companies.  

 at 13–15.                                                 
The Growers all but admit that these opinions, and other testimony and sub-opinions 
supporting  them,  concern  legal  matters.    The  Growers  acknowledge  that  Professor 
Kleinberger’s declaration is to a great degree “indistinguishable” from the content of a 
treatise he co-authored, Carter C. Bishop and Daniel S. Kleinberger, Limited Liability 
Companies: Tax and Business Law.  As the Growers explain it: “whether in the Declaration 
or his treatise, Professor Kleinberger is stating his opinion on the state of the law, and 

Pitman [Farms] cannot seriously argue for the admissibility of his opinions in one format 
versus another.”  Defs.’ Mem. Opp’n Mot. to Exclude at 15.  The Growers then characterize 
Professor Kleinberger’s Declaration as “simply a much narrower, tailor-made version of 
his prior written opinions [in his treatise] sans the prohibited legal advocacy in this forum.”  

  This is not correct.  No doubt lawyers properly may cite treatises for legal propositions.  

But the prohibition on expert testimony regarding legal matters would accomplish nothing 
if the authors of those treatises were allowed to testify as experts regarding those same 
legal propositions.  Why hire a lawyer to argue a legal point when you can hire an expert 
to give sworn testimony?                                                  
The  Growers  rely  on  Adams  v.  New  England  Scaffolding,  Inc.,  No. 

13-cv-12629-FDS, 

, at *5 (D. Mass. Dec. 22, 2015), for the proposition 
that “there is no blanket prohibition on expert testimony concerning the law.”  Defs.’ Mem. 
Opp’n Mot. to Exclude at 16.  True enough.  As the court acknowledged in Adams, a 
description of the law is sometimes necessary to put an expert’s factual testimony in 
context.  

.  However, the court in Adams also acknowledged that “such testimony 

is routinely admitted without objection—and often without anyone even noticing that the 
testimony includes legal conclusions—[because] the relevant law is not in dispute.”  

.  That is not true here; the Parties’ summary-judgment motions reflect only a dispute 
about the law.  The court in Adams also noted that “one of the most important limitations 
on expert testimony concerning the law is that such testimony has to accurately state the 
law.  An expert cannot simply opine as to his or her view of a disputed point of law, and 
competing experts cannot offer competing legal opinions.”  

.  But that is what the 

Growers seek to do.  The bottom line is that the circumstances justifying the admission of 
law-referencing expert testimony described in Adams and cases like it do not exist here.2 
                          III                                        
That brings us to the Parties’ cross-motions for summary judgment and the familiar 
rules governing their adjudication.  Summary judgment is warranted “if the movant shows 

that there is no genuine dispute as to any material fact and the movant is entitled to 
judgment as a matter of law.”  Fed. R. Civ. P. 56(a).  A dispute over a fact is “material” 
only if its resolution “might affect the outcome of the suit” under the governing substantive 
law.  Anderson v. Liberty Lobby, Inc., 

 (1986).  A dispute over a fact is 
“genuine” only if “the evidence is such that a reasonable jury could return a verdict for the 

nonmoving party.”  

  “The evidence of the non-movant is to be believed, and all 
justifiable inferences are to be drawn in his favor.”  

.  Courts take a slightly 
modified  approach  where,  as  here,  there  are  cross-motions  for  summary  judgment.  
Fjelstad v. State Farm Ins. Co., 

 (D. Minn. 2012).  When 
considering Pitman Farms’ motion, the record must be viewed in the light most favorable 


2    Professor Kleinberger possesses exceptional qualifications and a well-deserved 
reputation as a preeminent scholar and educator.  The exclusion of his declaration here 
results from the Growers’ procedural infractions and their acknowledged reliance on it as 
a source of legal opinions and legal authority.  Professor Kleinberger cannot be faulted for 
that.                                                                     
to the Growers, and when considering the Growers’ motion, the record must be viewed in 
the light most favorable to Pitman Farms.  See 

                        
                           A                                         

It makes practical sense to start by determining whether Minnesota’s parent-liability 
statutes and rule by their own terms govern the Growers’ contracts with Simply Essentials.  
If these statutes do not by their own terms apply, then it would be unnecessary to consider 
Pitman Farms’ arguments that Delaware law should apply instead or that applying the 
statutes to trigger Pitman Farms’ liability to the Growers would violate the federal dormant 

Commerce Clause doctrine.  The statutes and rule are the sole basis for the Growers’ claims 
that Pitman Farms is liable for the amounts Simply Essentials has not paid. 
The  Parties’  claims  concern  three  provisions:  

,  

.0040,  and  

.    Section  17.93,  which  is  entitled  “PARENT 
COMPANY    RESPONSIBILITY   FOR  CONTRACTS    OF   SUBSIDIARIES,”         

provides, in relevant part:                                               
     Subd. 2. Parent company liability.  If an agricultural contractor 
     is  the  subsidiary  of  another  corporation,  partnership,  or 
     association, the parent corporation, partnership, or association 
     is liable to a seller for the amount of any unpaid claim or     
     contract performance claim if the contractor fails to pay or    
     perform according to the terms of the contract.                 
Minn. Stat § 17.93, subd. 2.  Exercising authority conferred by 

 to 
“adopt rules to implement sections 17.90 to 17.98,” the Commissioner of the Minnesota 
Department of Agriculture promulgated Minnesota Rule 1572.0040.  Entitled “PARENT 
COMPANY LIABILITY,” it provides:                                          
     A corporation, partnership, sole proprietorship, or association 
     that through ownership of capital stock, cumulative voting      
     rights, voting trust agreements, or any other plan, agreement,  
     or  device,  owns  more  than  50  percent  of  the  common  or 
     preferred stock entitled to vote for directors of a subsidiary  
     corporation  or  provides  more  than  50  percent  of  the     
     management or control of a subsidiary is liable to a seller of  
     agricultural  commodities  for  any  unpaid  claim  or  contract 
     performance claim of that subsidiary.                           

.0040.    Finally,  there  is  

,  entitled  “PARENT 
COMPANY LIABILITY.”  It provides:                                         
     If  a  wholesale  produce  dealer  is  a  subsidiary  of  another 
     corporation, partnership, or association, the parent corporation, 
     partnership, or association is liable to a seller for the amount of 
     any  unpaid  claim  or  contract  performance  claim  if  the   
     wholesale produce dealer fails to pay or perform according to   
     the terms of the contract and this chapter.                     

                                                    

3    Several months after Pitman Farms commenced this action, and several months 
before  the  Parties  filed  their  summary-judgment  motions,  the  Minnesota  legislature 
amended  section  27.133,  replacing  the  term  “wholesale  produce  dealer”  with  “farm 
products dealer.”  See 2020 Minn. Sess. Law Serv. Ch. 89 (H.F. 4285), art. 1 § 14.  The 
amendments, which were approved by the Governor on May 16, 2020, took effect on 
August 1, 2020.  

.  Although the Parties do not address the issue in 
their briefing, the prior version of section 27.133 still applies.  To apply the amendments 
to this case would be to apply them retroactively.  See In re Petition for Instructions to 
Construe Basic Resol. 876 of Port Auth. of City of St. Paul, 

 (Minn. 
2009) (“A ‘retroactive law’ is one that ‘looks backward or contemplates the past, affecting 
acts or facts that existed before the act came into effect.’” (quoting Black’s Law Dictionary 
1343 (8th ed. 2004)).  Under Minnesota law, statutes do not apply retroactively “unless 
clearly and manifestly so intended by the legislature.”  

.  Nothing in 
the text of the amendments to section 27.133 suggests such an intention.  See, e.g., K.E. v. 
Hoffman, 

 (Minn. Ct. App. 1990) (“[L]anguage applying a statute to 
‘all  cases  pending’  and  establishing  an  immediate  effective  date  overcomes  the 
presumption against retroactive application.”).                           
                           B                                         
Pitman Farms says that these authorities do not by their own terms establish its 
liability for Simply Essentials’ debts under the contracts with the Growers, and it advances 

two  arguments  to  support  this  position.    It  first  argues  that  section  17.93  and  Rule 
1572.0040 apply only when the disputed liability is to a “seller,” and the Growers are not, 
in Pitman Farms’ view, “sellers.”  Pl.’s Mem. Supp. Summ. J. at 30–32 [ECF No. 58]; Pl.’s 
Mem. Opp’n Summ. J. at 23–25 [ECF No. 66].  Second, Pitman Farms argues that the 
parent-liability authorities do not apply when the debtor subsidiary is a limited liability 

company.  Pl.’s Mem. Supp. Summ. J. at 16–23; Pl’s Mem. Opp’n Summ. J. at 14–17.4 
These arguments must be considered under Minnesota’s statutory-interpretation 
framework.  This is a diversity case under 

, ECF No. 37 at 6, so “state 
law governs substantive issues.”  Paine v. Jefferson Nat’l Life Ins. Co., 

 
(8th Cir. 2010) (citation omitted); see also Erie R. Co. v. Tompkins, 

 (1938).  

Under Minnesota law, the object of statutory interpretation “is to ascertain and effectuate 
the intention of the legislature.”  

.  “If the language of a statute is plain 
and unambiguous, it is presumed to manifest legislative intent and we must give it effect.”  
State v. Campbell, 

 (Minn. 2012).  Statutory construction is necessary only 


4    As an alternative to their motion to dismiss under Federal Rule of Civil Procedure 
19, the Growers argued that abstention was appropriate under Railroad Commission of 
Texas v. Pullman Co., 

 (1941).  See ECF No. 17 at 25–26 and ECF No. 28 at 
5–6.  Though certification of questions of law to the Minnesota Supreme Court is available 
here,  

,  subd.  3,  and  though  certification  offers  advantages  over 
Pullman abstention, Lehman Bros. v. Schein, 

 (1974), and “today covers 
territory once dominated by . . . Pullman abstention,” Arizonans for Official English v. 
Arizona, 

 (1997), certification was not requested.        
if a statute is ambiguous.  

  “A statute is ambiguous only if it is subject to more than one 
reasonable interpretation.”  500, LLC v. City of Minneapolis, 

 (Minn. 
2013).  A statute may be ambiguous when one of its operative terms is the subject of 

conflicting dictionary definitions.  State v. Bowen, 

 (Minn. Ct. App. 
2018).  If a statute is ambiguous, the intent of the legislature may be ascertained by referring 
to, among other things:                                                   
     (1) the occasion and necessity for the law;                     
     (2) the circumstances under which it was enacted;               
     (3) the mischief to be remedied;                                
     (4) the object to be attained;                                  
     (5) the former law, if any, including other laws upon the same  
       or similar subjects;                                          
     (6) the consequences of a particular interpretation;            
     (7) the contemporaneous legislative history; and                
     (8) legislative and administrative interpretations of the statute. 

 (1)–(8); Christianson v. Henke, 

 (Minn. 2013).    
                           C                                         
Start with section 17.93 and its related statutes.  Chapter 17 broadly concerns the 
Minnesota Department of Agriculture, and sections 17.90 to 17.98 concern agricultural 
contracts.5  The Parties do not dispute that the Growers are “producers” for purposes of 
these sections.  Under section 17.90, subdivision 4,                      
     “Producer” means a person who produces or causes to be          
     produced an agricultural commodity in a quantity beyond the     
     person’s own family use and:                                    

     (1) is able to transfer title to another; or                    


5    “AGRICULTURAL CONTRACTS” is the heading that introduces sections 17.90 
to 17.98 of the Minnesota Statutes.                                       
     (2) provides management, labor, machinery, facilities, or any   
     other production input for the production of an agricultural    
     commodity.                                                      

There is no dispute that the Growers never actually owned the chickens and could not, 
therefore, “transfer [the chickens’] title to another” under subparagraph (1).  See Nath 
Decl., Exs. A1–A7 at § 3.D.  But there is also no dispute that the Growers “provide[d] 
management, labor, machinery, [or] facilities . . . for the production of” the chickens within 
the meaning of subparagraph (2).                                          
Section 17.93, however, does not use the term “producer.”  It establishes parent-
company liability with respect to contracts between an “agricultural contractor,” on the one 
hand, and a “seller” on the other.  

, subd. 2 (emphasis added).  The term 
“producer”  appears  many  times  throughout  sections  17.90  to  17.98.    See 

, 17.92, 17.941, 17.942, 17.943, 17.944, 17.9441, 17.97, and 17.98.  
By contrast, “seller” appears only in section 17.93 and section 17.90, subdivision 1a (where 

it is merely used to explain that contracts between buyers and “seller[s] of grain” are not 
included in the definition of “[a]gricultural contract”).  No authority or reason has been 
identified to justify the conclusion that section 17.93’s use of “seller” was a mistake. 
The term “seller” is not defined in sections 17.90 to 17.98.  Ordinarily, when a word 
in a statute is not specially defined, a court should “look first to the plain and ordinary 

meaning of the word.”  White Bear Lake Restoration Ass’n ex rel. State v. Minn. Dep’t of 
Nat. Res., 

, 388 (Minn. 2020) (Anderson, J., concurring in part and 
dissenting in part).  As will be discussed in greater detail shortly, however, the several 
possible definitions of “seller” mean that its use in section 17.93 generates ambiguity.  Just 
as important, however “seller” is defined, it cannot mean the same thing as “producer.”  In 
statutory interpretation, “‘when different words are used in the same context, we assume 
that the words have different meanings’ so that every word is given effect.”  State v. 

Thompson, 

, 69 (Minn. 2020) (quoting Dereje v. State, 

 (Minn. 2013)).  For this reason, the Growers’ argument that “seller” must be given the 
same meaning as “producer,” Defs.’ Mem. Supp. Summ. J. at 5–7 [ECF No. 51] and Defs.’ 
Mem. Opp’n Summ. J. at 2 n.2 [ECF No. 69], cannot be accepted.  The dispositive 
questions, then, are whether “seller” in section 17.93 has a broader or narrower meaning 

than “producer,” and if narrower, then whether the Growers are nonetheless “sellers.” 
Rule  1572.0040  clarifies  the  meaning  of  “seller”  and  seems  to  answer  these 
questions.  It limits parent-company liability to contracts between a subsidiary and “a seller 
of agricultural commodities.”  

.0040.  This is narrower than the definition of 
“producer” for purposes of sections 17.90 to 17.98 because it includes only the transfer-of-

title element of that definition from section 17.90, subdivision 4(1) and omits the provision-
of-services element described in section 17.90, subdivision 4(2).  As noted, it is undisputed 
that the Growers do not sell agricultural commodities.                    
Courts ascertaining the Minnesota legislature’s intent do “not defer to an agency’s 
interpretation of unambiguous statutes,” In re Reissuance of NPDES/SDS Permit to U.S. 

Steel Corp., 

, 780 (Minn. Ct. App. 2019); see Marks v. Comm’r of 
Revenue, 

, 326–27 (Minn. 2016), but when a statute is ambiguous, courts 
may consider “administrative interpretations,” 

(8).  The Minnesota 
Supreme Court has repeatedly said that an agency’s interpretation of a statute it administers 
is “entitled to deference.”  Benda v. Girard, 

 (Minn. 1999) (quoting 
George A. Hormel & Co. v. Asper, 

 (Minn. 1988)); see also, e.g., In re 
Excess Surplus Status of Blue Cross and Blue Shield of Minn., 

 (Minn. 

2001).  The appropriate degree of deference is less clear, and it shifts somewhat depending 
on the circumstances.  As a general rule, courts will defer to an interpretation that is 
“reasonable” and consistent with the language of the statute, see A.A.A. v. Minn. Dep’t of 
Human Servs., 

, 822–23 (Minn. 2013); U.S. Steel Corp., 937 N.W.2d at 
780, whereas deference is not appropriate when the agency’s interpretation is inconsistent 

with the statute or there are “compelling indications that it is wrong,” Buhs v. State, Dep’t 
of Pub. Welfare, 

 (Minn. 1981) (citation omitted).  Heightened 
deference is warranted when the agency’s interpretation is particularly longstanding or the 
statutory scheme involved is highly technical.  See Marks, 

; In re 
Excelsior Energy Inc., 

 (Minn. Ct. App. 2010); see also Minn. Ctr. 

For Env’t Advocacy v. Minn. Pollution Control Agency, 

 (Minn. 
2002) (deferring to an agency’s “interpretation of whether [a] statutory standard [was] met” 
because the inquiry was “primarily factual” and required “application of the agency’s 
technical knowledge and expertise”).                                      
Judged against these authorities, Rule 1572.0040 deserves heightened deference 

when it comes to interpreting section 17.93.  “Seller” is ambiguous.  It may refer to 
“[s]omeone who sells or contracts to sell goods” or “the transferor of property in a contract 
of sale.”  Black’s Law Dictionary 1634 (11th ed. 2019).  It also may refer to a person who 
sells services.  See Sell and Seller, The American Heritage Dictionary of the English 
Language 1639 (3d ed. 1992).  The rule reflects a reasonable understanding of, and is 
consistent with, the statute.  It differentiates “seller” from “producer.”  Adopting a broad 
definition of “seller” that would include the sale of both commodities and services would 

give “seller” a meaning that very closely resembles, if not matches, the definition of 
“producer” in section 17.90, subdivision 4.  The rule’s narrower definition also dovetails 
with the statute’s definition of “[c]ontractor” (an entity with whom “seller[s]” contract) as 
one who “buys agricultural commodities.”  

, subd. 3.6  Although the 
statutory  and  regulatory  scheme—which  involves  the  liability  of  certain  corporate 

entities—is  not  especially  technical  or  unfamiliar  to  courts,  the  Department  of 
Agriculture’s interpretation is longstanding.  The agency promulgated the rule nearly thirty 
years ago, see 

, 1924 (Mar. 4, 1991), and it does not appear that the 
rule has been challenged or otherwise litigated in the years since.  At the very least, there 
are no “compelling indications” that the agency’s interpretation is wrong.  Buhs, 

  (citation  omitted).    In  view  of  the  heightened  deference  owed  Rule 
1572.0040 and the good reasons for interpreting section 17.93 to share the rule’s reach, 
neither section 17.93 nor the rule govern the Growers’ contracts with Simply Essentials. 



6    The  full  definition  of  “contractor”  is  one  who  either  (a)  “buys  agricultural 
commodities grown or raised in [Minnesota],” or (b) “contracts with a producer to grow or 
raise agricultural commodities in [Minnesota].”  

, subd. 3.  Though a 
“producer” by definition may sell agricultural commodities, 

 subd. 4(1), it is noteworthy 
that the definition of “contractor” does not use the term “producer” to describe this activity.  
It limits use of the term “producer” to describe one who “grow[s] or raise[s] agricultural 
commodities.”  

 subd. 3.  Defining “seller” as one who engages only in the sale of 
commodities is thus consistent with the full definition of “contractor.”  
                           D                                         
Now turn to 

  It appears in a chapter concerning wholesale 
produce dealers.  It establishes parent-company liability with respect to contracts between 

“wholesale produce dealer[s],” on the one hand, and “seller[s]” on the other.  

  For 
purposes of section 27.133, a “[w]holesale produce dealer” includes “a person who buys 
from or contracts with a seller for production or sale of produce in wholesale lots for 
resale[.]”  

 § 27.01, subd. 8(a)(1).  Relevant here, “[p]roduce” includes “poultry and 
poultry products.”  Id., subd. 2(3).  “‘Seller’ means a farmer or wholesale produce dealer, 

whether the person is the owner of the produce or produces it for another person who holds 
title to it.”  Id., subd. 10.  The Parties do not dispute that Simply Essentials is a “wholesale 
produce dealer” and that the Growers are “sellers” for purposes of section 27.133. 
                           1                                         
The statute’s use of “another” creates ambiguity.  To recap, under section 27.133, if 

a wholesale produce dealer “fails to pay or perform according to the terms of [a] contract” 
with a seller, and “[i]f a wholesale produce dealer is a subsidiary of another corporation, 
partnership, or association, [then] the parent corporation, partnership, or association is 
liable to [the] seller for the amount of any unpaid claim” under the contract.  (Emphasis 
added).  Minnesota courts “construe the word ‘another’ according to its common and 

approved usage unless it is defined in statute or has acquired a special meaning.”  State v. 
Stewart,  

  (Minn.  2001)  (citing  

(1)).   This 

7    If the Growers were “sellers” for purposes of section 17.93, then the analysis and 
conclusions in Part D would apply also to section 17.93.                  
principle often leads courts to consult dictionaries.  See id.; see also Associated Bank, N.A. 
v. Comm’r of Revenue, 

 (Minn. 2018).8  Ambiguity arises because the 
definition of “another” has at least two components in tension with each other.  The first is 

that the “other” must be “[d]istinctly different from the first.”  The American Heritage 
Dictionary of the English Language 74 (5th ed. 2011); accord Webster’s Third New 
International Dictionary 89 (1976) (defining “another” to mean “one that is different, 
separate, or in contrast to the first”).  But because the word “another” generally implies 
some connection between the “original” and the “other,” it seems that the two must be “of 

the same kind,” at least to a degree.  Another, Merriam-Webster, https://www.merriam-
webster.com/dictionary/another (last visited Dec. 17, 2020).              
The Parties’ dispute over the meaning of section 27.133 reflects this ambiguity and 
definitional tension.  Pitman Farms says section 27.133’s use of “another” means the 
“subsidiary must be one of those three listed entities.”  Pl.’s Mem. Supp. Summ. J. at 17.  

The Growers, on the other hand, say that “another” means only a different organization 
from the subsidiary.  Defs.’ Mem. Supp. Summ. J. at 26.                   


8    Ambiguity owing to a statute’s usage of “another” is not uncommon.  Compare, 
e.g., United States v. Amri, No. 1:17-cr-50 (LMB), 

, at *11–14 (E.D. 
Va. July 31, 2017) (holding that the phrase “another person” in an obstruction-of-justice 
statute,  

(b)(3),  means  a  person  other  than  the  defendant  and  the 
investigating federal officers) with United States v. Hawkins, 

, 125–26 
(D.D.C. 2016) (finding that the phrase “another person” in the same statute means “‘any 
person’” other than the defendant); see also United States v. Spears, 

, 754–58 
(7th Cir. 2013) (finding the phrase “another person” as used in an identity-theft statute, 
18 U.S.C. § 1028A, to be ambiguous and interpreting the phrase to mean, not “every 
person  other  than  the  defendant,”  but  “a  person  whose  information  has  been 
misappropriated”).                                                        
Pitman Farms has the better argument in view of the statute’s text.  Minnesota courts 
have resolved ambiguity owing to a statute’s use of “another” by focusing on surrounding 
text and related provisions.  For example, in Elsola v. Commissioner of Revenue, the 

Minnesota Tax Court confronted a statute that addressed sums that a taxpayer who was a 
“resident of this state” was liable to pay “to another state or a province or territory of 
Canada.”  No. 3980, 

, at *1 (Minn. Tax Ct. Apr. 9, 1984) (quoting 

(c) (1982)).  The taxpayers argued that the term “another state” meant a 
foreign country.  See 

.  The court rejected this argument and held that “another 

state” referred to “one of the states of the United States other than Minnesota.”  

  This 
conclusion was based primarily on a separate tax provision’s definition of “this state” as 
“the state of Minnesota,” as well as the disputed provision’s reference to a “province or 
territory of Canada,” which invoked “the major subdivisions of Canada” rather than the 
“Canadian national government.”  

  Similarly, in Campbell, the Minnesota Supreme 

Court had to decide whether the phrase “another offense,” which appeared in a provision 
of the Minnesota Sentencing Guidelines, referred only to felony offenses or extended to 
misdemeanors and gross misdemeanors.  

.  Based primarily on the fact 
that the Guidelines as a whole “apply only to felonies,” the court held that “another offense” 
really meant “another felony offense.”  See 

 at 5–6.                   

With these Minnesota cases in mind, the better conclusion is that the phrase “another 
corporation, partnership, or association” in section 27.133 means there is some original 
entity—i.e., the subsidiary—that is also a “corporation, partnership, or association.”  This 
interpretation is consistent with the surrounding text and accepts the limiting connection 
implied by use of the word “another” alongside the three listed entities in a way that is 
consistent with the courts’ approaches in Elsola and Campbell.  Accepting the Growers’ 
interpretation would have the effect of reading section 27.133 to require only that the 

wholesale produce dealer be “a subsidiary of [a] corporation, partnership, or association.”  
In other words, under the Growers’ interpretation, “another” is intended merely as an 
indefinite article and synonym of “a.”  That doesn’t give the legislature enough credit.  
Saying that one organization is a “subsidiary” distinguishes it from a different organization.  
In other words, use of the word “another” merely to differentiate the subsidiary from the 

parent would duplicate work that “subsidiary” does already.  The word “another” is better 
understood to imply that both the parent and subsidiary must be drawn from one of the 
categories listed in section 27.133.                                      
                           2                                         
From this understanding, Pitman Farms next argues that Simply Essentials is not a 

“corporation,  partnership,  or  association”  because  it  is  a  limited  liability  company.  
Therefore, the argument goes, section 27.133 neither governs the Growers’ contracts with 
Simply Essentials nor establishes Pitman Farms’ parent liability for Simply Essentials’ 
unmet obligations under those contracts.  In their opening brief, the Growers acknowledged 
that “limited liability companies are not referenced in any of the” parent-liability statutes, 

including section 27.133.  Defs.’ Mem. Supp. Summ. J. at 27.  This is understandable, the 
Growers  acknowledged,  because  limited  liability  companies  were  not  authorized  in 
Minnesota until 1992, two years after enactment of the parent-liability statutes.  

  The 
Growers argued that section 27.133 should nonetheless be interpreted to apply to limited 
liability companies to effectuate the purpose of the parent-liability statutes.  

 at 27–28.  
In their opposition brief, the Growers argued that “association” as intended in section 
27.133 includes limited liability companies.  Defs.’ Mem. Opp’n Summ. J. at 7–8. 

Though the question is close and difficult, the better answer is that “association” as 
used  in  section  27.133  does  not  include  limited  liability  companies.    Four  primary 
considerations lead to this conclusion: first, that section 27.133 was enacted before the 
creation of limited liability companies in Minnesota but has not been amended since; 
second, that “association” does not seem intended in section 27.133 as a catch-all for every 

form of business organization that might exist; third, that “association” is more commonly 
intended to mean something different from a limited liability company when it is used 
elsewhere in Minnesota statutes; and fourth, that no Minnesota case answers the question.  
It is true that this conclusion appears somewhat at odds with section 27.133’s general 
purpose, but that general purpose cannot be understood without accounting for textual 

limits.                                                                   
When enacted, section 27.133 could not have used “association” to refer to limited 
liability  companies  because  limited  liability  companies  weren’t  yet  a  thing  under 
Minnesota law, and though the Minnesota legislature has since directed that many statutes 
be amended to refer to limited liability companies, it has not amended section 27.133 to do 

that.  The Minnesota legislature did not adopt the Minnesota Limited Liability Company 
Act (“the Act”)—which provided for the first formation and recognition of limited liability 
companies under Minnesota law—until two years after it enacted the parent-liability 
statutes.  See 1992 Minn. Laws ch. 517 (H.F. No. 1910).9  The Act included provisions 
directing that many other statutes be amended to include explicit references to limited 
liability companies, see 

 art. 1, but neither section 27.133 nor any statutes in the chapters 

pertaining  to  agriculture,  Minnesota  Statutes  Chapters  17–43,  were  among  those 
amended.10  Despite the subsequent amendment and inclusion of references to limited 
liability companies in an even greater number of statutes, section 27.133 has not been 
amended to include explicit reference to limited liability companies since its enactment. 
Of  course,  section  27.133’s  amendment  would  have  been  unnecessary  if 

“association” were intended originally to refer to any business organization then or ever 
existing but attributing that expansive meaning to section 27.133 seems implausible.  When 
the Minnesota legislature intends to bring many kinds of business organizations within a 
statute’s reach, it more commonly uses catch-all words and phrases that do not include 
“association.”  For example, Minnesota statutes frequently define “person” by reference to 

a list of specific individuals and entities followed by phrases like “and other business 
organizations” or “and any other legal or commercial entity.”  See, e.g., 

, subd. 7a; 15C.01, subd. 5; 16B.33, subd. 1(i); 52.001, subd. 10; 270C.01, subd. 


9    The Act was originally codified in Chapter 322B of the Minnesota Statutes.  In 2014, 
the Minnesota Revised Uniform Limited Liability Company Act was enacted and codified 
in Chapter 322C, at which time Chapter 322B was repealed.  See 2014 Minn. Laws ch. 157 
(H.F. No. 977).                                                           

10   The amendments provided for in the Act involved a wide range of statutes, including 
those  related  to  corporate  political  contributions,  income  and  excise  tax,  business 
corporations,  cooperatives,  nonprofit  corporations,  professional  corporations,  limited 
partnerships, trade names, and estates in real property.  1992 Minn. Laws ch. 517, art. 1. 
6; 302A.011, subd. 22; 611A.68, subd. 1(d).  Other statutes include similar references.  See, 
e.g., 

 § 181.970, subd. 2(3) (providing employee indemnification provision does not 
apply when covered by other laws “specifically governing indemnification of employees 

of business or nonprofit corporations, limited liability companies, or other legal entities”); 
id. §§ 216B.02, subd. 4, 336B.01, subd. 1, and 325E.025, subd. 1 (defining “[p]ublic 
utility” and “utility” to mean “persons, corporations, or other legal entities . . .”); id. 
§ 317A.681, subd. 1(b) (defining “[o]rganizational document” as it pertains to a domestic 
or foreign limited liability company, a trust, a domestic or foreign corporation, or “any 

other organization”).  Significantly, some statutes use “association” and then a separate 
catch-all  phrase  like  “other  organization”  and  “other  legal  entities,”  meaning  that 
“association” must have a separate meaning, certainly in those statutes.  See, e.g., id. 
§ 501B.35, subd. 4 (defining “[t]rustee” as an “agent of an association, foundation, trustee 
corporation, corporation, or other legal entity”).11  When the Minnesota legislature intends 

“association” to be a catch-all, it includes the word in a phrase indicating that purpose.  See, 
e.g., id. § 514.67(1) (“‘Person’ means and includes any natural person in any individual or 
representative capacity, and any firm, copartnership, corporation, or other association of 
any  nature  or  kind.”)  (emphasis  added);  id.  § 520.01,  subd.  4  (“‘Person’  includes  a 


11   For another example of a statute that takes this approach, see 

-
1501(d) (“If the contractor is the subsidiary of another corporation, partnership, or a 
member of another association or other business entity, the parent corporation, partnership, 
association or other business entity is liable to a producer for the amount of any unpaid 
claim or contract performance claim if the contractor fails to pay or perform according to 
the terms of the contract.”).  This statute also is distinguishable from section 27.133 
because it expressly defines contractor to include limited liability companies.  

 § 16-
1501(a).                                                                  
corporation, partnership, or other association, or two or more persons having a joint or 
common interest.”) (emphasis added); id. § 10A.01, subd. 35a (defining “[s]ecurities” as 
“any stock . . . in any corporation, partnership, trust, or other association”) (emphasis 

added); id. § 268.065, subd. 1 (defining “contractor” and “subcontractor” to “include 
individuals, partnerships, firms, or corporations, or other association of persons engaged 
in the construction industry”) (emphasis added); id. § 317A.161, subd. 13(b) (providing 
that a corporation “may participate with others in a corporation, partnership, limited 
partnership, joint venture, trust, or other association of any kind . . .”) (emphasis added).  

Section  27.133  includes  no  like  phrasing,  suggesting  that  its  mere  reference  to 
“association” was not intended as a catch-all.                            
When the term “association” appears alone and without a specific definition—as it 
does in section 27.133—the Minnesota legislature more commonly intends it to mean a 
type of organization different from a limited liability company.  “Association” appears as 

a distinct entity in numerous Minnesota statutes identifying various business organizations.  
For  example,  in  the  1990  statutes  pertaining  to  business  corporations,  the  term 
“[o]rganization” is defined as “a domestic or foreign corporation, partnership, limited 
partnership, joint venture, association, business trust, estate, trust, enterprise, and any other 
legal  or  commercial  entity.”    Minn. Stat.  § 302A.011,  subd.  19  (1990);  see  also  id. 

§ 317A.011, subd. 16 (1990).  When the Act was enacted in 1992, section 302A.011, 
subdivision  19,  was  amended  to  define  “[o]rganization”  as  “a  domestic  or  foreign 
corporation, limited liability company, whether domestic or foreign, partnership, limited 
partnership, joint venture, association, business trust, estate, trust, enterprise, and any other 
legal  or  commercial  entity.”    Minn.  Stat.  § 302A.011,  subd.  19  (1992);12  see  also 
id. § 317A.011, subd. 16 (1992) (amended in the same way).  Other statutes were amended 
at that time in this same way.  See Minn. Stat. § 322A.01(11) (1992) (defining “[p]erson” 

as “a natural person, partnership, limited partnership (domestic or foreign), trust, estate, 
association, limited liability company (whether domestic or foreign), or corporation”); 
id. § 333.18, subd. 2 (1992) (defining “person” as “any individual, firm, partnership, 
corporation, limited liability company, whether domestic or foreign, association, union, or 
other organization”).  In other words, despite the legislature’s inclusion of limited liability 

companies in these definitions, “association” remained separately among the listed entities, 
suggesting an “association” generally is distinct from, and not inclusive of, a limited 
liability  company.    And  Minnesota’s  limited-liability-company  statutes,  both  at  their 
enactment  and  today,  distinguish  limited  liability  companies  from  associations.    See 
Minn. Stat. § 322B.03,  subd.  34  (1992)  (defining  “[o]rganization”  as  “a  domestic  or 

foreign  limited  liability  company,  corporation,  partnership,  limited  partnership,  joint 
venture,  association,  business  trust,  estate,  trust,  enterprise,  and  any  other  legal  or 
commercial  entity”);  id.  § 322C.0102,  subd.  20  (2020)  (defining  “[p]erson”  as  “an 
individual, corporation, business trust, estate, trust, partnership, limited liability company, 
association, joint venture, public corporation, government or governmental subdivision, 

agency,  or  instrumentality,  or  any  other  legal  or  commercial  entity”);  see  also 


12   Section 302A.11, subdivision 19, was amended in 2015, at which time “association” 
was removed from the statute along with several other listed entities.  “Limited liability 
compan[ies]” remained.                                                    
id. § 322C.0102, subd. 12 (2020) (defining a limited liability company as “an entity” 
formed under Chapter 322C, not as “an association”).  In view of these examples, it makes 
better sense to understand “association” in section 27.133 not to refer to or include a limited 

liability company.                                                        
The Growers argue that a specialized definition given “association” elsewhere in 
Minnesota statutes should be attributed to the parent-liability statutes, but that would be 
inappropriate.  Where “association” is specially defined in Minnesota statutes, its meaning 
depends very much on context.  For example, in 1990, “association” was defined at least 

seventeen times in Minnesota statutes (and used more than three hundred times), but only 
two of those definitions were identical.  Sections 10A.01, subdivision 3, and 383B.042, 
subdivision  3,  defined  “[a]ssociation”  as  a  “business,  corporation,  firm,  partnership, 
committee, labor organization, club, or any other group of two or more persons, which 
includes more than an immediate family, acting in concert.”  Minn. Stat. §§ 10A.01, subd. 

3, 383B.042, subd. 3 (1990).13, 14  The Growers argue that this definition encompasses 


13   Section 10A.01, subdivision 6, of the 2020 statutes now defines association as “a 
group of two or more persons, who are not all members of an immediate family, acting in 
concert.”  The definition in section 383B.042, subdivision 3, remains the same. 

14   This definition references entities “of two or more persons.”  Minnesota law did not 
allow for the formation of single-member limited liability companies until 1997.  Compare 
Minn. Stat. § 322B.11 (1992) (requiring limited liability companies to have two or more 
members at the time of formation), with Minn. Stat. § 322B.11 (1997) (requiring a limited 
liability company to have one or more members); see 

.  Although 
this portion of the definition is not significant to ascertaining the legislature’s intent in 
using the term “association” in 1990, as Minnesota law did not then recognize limited 
liability companies of any size, it has not been amended since the advent of the single-
member limited liability company.                                         
limited liability companies and should be imputed to section 27.133 (and to section 17.93).  
Defs.’ Mem. Opp’n Summ. J. at 8.  It is true that sections 10A.01, subdivision 3, and 
383B.042, subdivision 3, were enacted prior to the legislature’s inclusion of “association” 

in  the  parent-liability  statutes.    See  

;  

.  
Regardless, sections 10A.01, subdivision 3, and 383B.042, subdivision 3, do not share a 
common  purpose  or  subject  matter  with  sections  17.93  or  27.133.    See  State  v. 
Thonesavanh, 

 (Minn. 2017); see also Erlenbaugh v. United States, 

 (1972) (“[A] legislative body generally uses a particular word with a 

consistent meaning in a given context.” (emphasis added)).  Section 10A.01 regulates 
ethical practices in government, and section 383B.042 is part of a larger statutory regime 
governing elections in Hennepin County.  It therefore would be inappropriate to attribute 
this definition of “association” to section 27.133.                       
No Minnesota case provides a clear answer one way or the other.  The case that 

comes the closest is Enbridge Energy, Ltd. Partnership v. Dyrdal, No. A08-1863, 

 (Minn. Ct. App. July 28, 2009).  There, the court addressed a Minnesota 
statute, 

, that authorized “[a]ny corporation or association qualified to 
do business in the state of Minnesota engaged in or preparing to engage in the business of 
transporting crude petroleum” to “acquire, for the purpose of such business, easements or 

rights-of-way” and “enjoy the power of eminent domain.”  

.  The court concluded 
that “given the context in which association is used in chapter 117, it would be absurd for 
us to conclude that the legislature intended to exclude certain types of business entities 
from the powers granted by 

.”  

  The court added that “[t]here is no 
indication from the text of the statute that the legislature intended to differentiate or exclude 
businesses  that  transport  crude  petroleum  based  on  how  they  are  organized  or 
incorporated.”  

  Enbridge does not warrant the same result here.  The context is quite 

different.  Enbridge concerned a challenge to a crude oil transporter’s ability to acquire a 
right-of-way easement necessary to installation of a 108-mile underground pipeline.  

.  Regardless, the interpretive challenges raised by the Parties here and addressed in this 
opinion were not addressed in Enbridge.15  Pitman Farms argues that Minnesota Joint 
Underwriting Ass’n v. Star Tribune Media Co., 

 (Minn. 2015), shows that 

the Minnesota Supreme Court generally understands “association” not to include or refer 
to limited liability companies.  See Pl.’s Suppl. Authority [ECF No. 82].  The case does not 
support such a broad reading.  The issue in Joint Underwriting Ass’n was whether an 
involuntary association of insurers created by Minnesota statutes (the Minnesota Joint 
Underwriting Association or “MJUA”) was a “state agency” subject to the Minnesota 

Government Data Practices Act.  

.  The court held that the association of 
insurers was not a state agency:                                          
     MJUA is legally organized as an involuntary association of      
     private insurers.  See Minn. Stat. § 62I.02, subd. 1.  According 
     to the insurance code, an association is an “organized body of  

15   The  Growers  fairly  point  out  that  this  interpretation  would  leave  contracting 
subsidiaries’ owners with an opportunity to game the system by reorganizing as limited 
liability companies.  The Growers imply this would be an absurd outcome.  However, those 
opportunities exist regardless.  For example, the Minnesota Department of Agriculture does 
not understand the parent-liability statutes to apply to every corporation, partnership, or 
association with an ownership interest in a subsidiary—only those that “own[] more than 
50 percent” of the voting shares or “provide[] more than 50 percent of the management or 
control of a subsidiary.”  

.1001, 1572.0040.  Thus, it appears that dilution of 
ownership could already enable parent organizations to avoid parent liability.    
     people  who  have  some  interest  in  common.”   Minn.         
     Stat. § 60A.02,  subd.  1a  (2014).    By  definition,  an      
     “association” is not a legal entity separate from the persons   
     who compose it.  Black’s Law Dictionary 132 (8th ed. 2014).     
     Accordingly, while the MJUA was created by state statute, it    
     is not part of the State; it is an organization consisting of private 
     insurers.                                                       

Id. at 66.  Joint Underwriting Ass’n thus concerned a narrow question different from the 
issues presented here, and though its statement that “an ‘association’ is not a legal entity 
separate from the persons who compose it” may be true generally, it gives little help in 
ascertaining the intended meaning of “association” in the parent-liability statutes.  Finally, 
in Krueger v. Zeman Construction Co., 

 (Minn. 2010), the court held that 
a limited liability company “qualifies as a ‘person’ for purposes of” a provision of the 
Minnesota Human Rights Act defining “person” to include, among other entities, “a 
partnership,  association,  or  corporation[.]”    

.    But  the  court  reached  this 
conclusion with no discussion, much less any analysis that might inform the disposition of 
this case.  See 

                                                       
It is true that the legislature described a liberal policy behind section 27.133 and that 
this interpretation somewhat narrows the statute’s reach.  Chapter 27 includes the following 
statement of public policy:                                               
     The legislature recognizes that perishable agricultural products 
     are important sources of revenue to a large number of citizens  
     of this state engaged in producing, processing, manufacturing,  
     or selling such products and that such products cannot be       
     repossessed in case of default.  It is therefore declared to be the 
     policy of the legislature that certain financial protection be  
     afforded  those  who  are  producers  on  the  farm;  farmer    
     cooperatives  which  are  not  wholesale  produce  dealers  as  
     described  in  section  27.01,  subdivision  8;  and  licensed  
     wholesale  produce  dealers,  including  the  retail  merchant  
     purchasing produce directly from farmers.  The provisions of    
     this  chapter  which  relate  to  perishable  agricultural      
     commodities shall be liberally construed to achieve these ends  
     and shall be administered and enforced with a view to carrying  
     out the above declaration of policy.                            

.  Though first enacted in 1969, this statement accurately describes the 
legislature’s motives behind enacting section 27.133.  In a nutshell, both section 27.133 
(and section 17.93) were enacted following the legislature’s creation of, and receipt of 
reports from a task force recommending economic protections for farmers producing 
agricultural commodities under contract, including parent-company liability.16 

16   In 1988, the Minnesota legislature established the Agricultural Contract Task Force 
“to determine the feasibility of changing existing programs or developing a new program 
to provide economic protection for farmers producing agricultural commodities under 
contract.”  

.  Such economic protection “would be provided when 
businesses have filed bankruptcy and are unable to make payments under the contract or 
are otherwise financially unable to make payments under the contract.”  

  The task force 
included “farmers, canning processors, contract seed businesses, livestock and poultry 
contractors, other agricultural processors, farm organizations, and bonding and financial 
institutions.”  

  The task force prepared two reports for the legislature: an interim report 
in February 1989 and a final report in February 1990.  In its reports, the task force identified 
an  increasing  trend  in  contract  farming  that  “was  not  as  prevalent”  at  the  time  the 
Wholesale Producer Dealers Act (Minn. Stat. Ch. 27) and other agricultural legislation was 
written  as  well  as  a  lack  of  uniformity  to  agricultural  contracting  in  Minnesota.  
Agricultural Contracts Task Force, An Interim Report to the 1989 Legislature 1 (Feb. 1989) 
(“1989 Report”); Agricultural Contracts Task Force, Final Report to the 1990 Legislature 
1 (Feb. 1990) (“1990 Report”).  It also identified “[m]ajor contract problem areas,” 
including non-payment, problems with interpreting contractual rights and responsibilities, 
and problems due to unequal bargaining power.  

  In the interim report, the task force 
noted the “[i]nability of producer[s] to determine [the] financial soundness of contractors” 
and queried whether “parent companies [should] be made responsible for the contracts of 
its subsidiaries.”  1989 Report at 18 (capitalization omitted).  In its final recommendations, 
the task force recommended that “[p]arent companies should be made responsible for the 
unfulfilled contracts of their subsidiaries.”  1990 Report at 3 ¶ 3.  This recommendation 
reflected the task force’s “concern that shell, spin off and subsidiary corporations” resulting 
from “[r]ecent leveraged buyouts and business consolidations might be unable to fulfill 
Nonetheless, section 27.133’s broad policy statement and purpose cannot trump the 
limitations created by its text.  When a statute is ambiguous, its purpose is one of many 
extratextual factors a court “may” consider.  

; see Marks, 

; Ouradnik v. Ouradnik, 

, 303–04 (Minn. Ct. App. 2017), aff’d, 

 (Minn. 2018).  But “no law pursues its purpose at all costs, and . . . textual 
limitations upon a law’s scope are no less a part of its ‘purpose’ than its substantive 
authorizations.”   Rapanos  v.  United  States,  

  (2006)  (plurality 
opinion).  Although the conclusion that limited liability companies do not fall within the 

scope of 

 is arguably inconsistent with that provision’s purpose, the 
statutory text, context, and composition in view of other statutes carry greater weight in 
this case.  Put another way, had the legislature intended section 27.133 to have the broadest 
possible reach implied by its legislative history and section 27.001’s policy statement, it 
would have identified no limits on the type of business organizations susceptible to parent 

liability.    That  didn’t  happen,  and  the  limits  identified  in  section  27.133  cannot  be 
disregarded.17                                                            

contracts with producers because of bankruptcy or insufficient assets.”  

 at 11 ¶ 13.  The 
Minnesota  legislature  subsequently  enacted  two  bills  based  on  the  task  force’s 
recommendations—1990 Minn. Laws ch. 517 (S.F. No. 1779) and 1990 Minn. Laws ch. 
530 (S.F. No. 2037).  The preamble of the former stated, among other things, that it was an 
act “clarifying responsibility of parent companies for affiliates.”  

 
(codified at 

.90–.98 and 514.945).  Likewise, the latter listed “providing 
parent company liability” among its purposes.  

.  The provisions 
concerning parent company liability were codified at sections 17.93 and 27.133 of the 
Minnesota Statutes.  See 1990 Minn. Laws 1320–21, 1382.                   

17   The Growers argue that section 27.133’s title, “Parent Company Liability,” shows 
the legislature intended to include limited liability companies within its reach.  A statute’s 
                           *                                         
The determination that the parent-liability statutes do not by their own terms govern 
the Growers’ contracts with Simply Essentials makes it unnecessary to consider the choice-

of-law  issues  raised  by  the  Parties  or  Pitman  Farms’  argument  under  the  dormant 
Commerce Clause doctrine.                                                 

Based on the foregoing, and all the files, records, and proceedings herein, IT IS 
ORDERED THAT:                                                             

1.   Plaintiff’s Motion to Exclude the August 24, 2020 Kleinberger Declaration 
[ECF No. 74] is GRANTED.                                                  
2.   Plaintiff’s Motion for Summary Judgment [ECF No. 56] is GRANTED. 
3.   Defendants’ Motion for Summary Judgment [ECF No. 49] is DENIED. 
       LET JUDGMENT BE ENTERED ACCORDINGLY.                          

                                                                          
Dated:  December 18, 2020          s/ Eric C. Tostrud                           
                              Eric C. Tostrud                        
                              United States District Court           



title “is properly to be considered in determining legislative intent[.]”  Hovet v. City of 
Bagley, 

, 814–15 (Minn. 1982) (quoting Cleveland v. Rice Cnty., 

, 644 (Minn. 1952)).  As with the statute’s policy statement and purpose, 
however, the statute’s title does not justify an interpretation that overrides the statute’s 
textual limitations and other considerations leading to the conclusion that the parent-
liability statutes do not reach limited liability companies.