This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Take 5, Delaware Business Trust, et al.,





Lafayette International, Inc., et al.,



Filed September 4, 2007

Affirmed in part, reversed in part, and remanded
Toussaint, Chief Judge


Hennepin County District Court

File No. 27-CV-05-017285


Paul A. Sortland, Sortland Law Office, 120 South Sixth Street, Suite 1510, Minneapolis, MN  55402-1817  (for appellants)


Gregory D. Luce, R. Daniel Rasmus, Christensen, Laue & Rasmus, P.A., 5101 Vernon Avenue South, Suite 400, Minneapolis, MN  55436 (for respondents)


            Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Take 5, Delaware Business Trust, and Walt Foster, its principal, appeal from the district court’s grant of summary judgment to respondents Lafayette International, Inc., The Green Edge, Inc., and Douglas A. Kretchmer, principal of both corporations.  By notice of review, respondents challenge the district court’s denial of their request for rule 11 sanctions.

            Because the district court did not err by concluding that appellants failed to make a prima facie case of malicious prosecution against respondents, we affirm the dismissal of the action for malicious prosecution.  Because respondents failed to comply with the requirements of Minn. R. Civ. P. 11, we affirm the court’s denial of rule 11 sanctions.  Because we conclude that the court erred when it stated that judgments may only be enforced under Minn. Stat. §§ 548.26-.33 (2006) or Minn. Stat. §§ 571.93-932 (2006), we reverse the district court’s dismissal of appellants’ claim for Lafayette’s failure to pay an earlier judgment and remand.


            A motion for judgment on the pleadings will be treated as a motion for summary judgment under Minn. R. Civ. P. 56.03 if matters outside the pleadings are presented.  Minn. R. Civ. P. 12.03.  Summary judgment shall be granted if, based on the pleadings and materials before the court, there is no genuine issue of material fact and either party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.

            A party claiming malicious prosecution must demonstrate that (1) the suit was brought without probable cause and “with no reasonable grounds on which to base a belief that the plaintiff would ultimately prevail on the merits”; (2) the suit was instituted and prosecuted with malicious intent; and (3) the suit was ultimately terminated in favor of the defendant.  Jordan v. Lamb, 392 N.W.2d 607, 609 (Minn. App. 1986) (quotation omitted), review denied (Minn. Oct. 29, 1986). 

            “Probable cause for pursuing a civil action consists of such facts and circumstances as will warrant a cautious, reasonable and prudent person in the honest belief that his action and the means taken in prosecution of it are just, legal and proper.”  First Nat’l Bank of Omaha v. Marquette Nat’l Bank, 482 F. Supp. 514, 523 (D. Minn. 1979), aff’d 636 F.2d 195 (8th Cir. 1980).  The plaintiff is required to have only a “reasonable belief” that probable cause exists in order to avoid a claim of malicious prosecution.  Dunham v. Roer, 708 N.W.2d 552, 569 (Minn. App. 2006), review denied (Minn. Mar. 28, 2006).  Actions for malicious prosecution are “carefully circumscribed” and “not favored in law.”  Lundberg v. Scroggins, 335 N.W. 2d 235, 236 (Minn. 1983).

            Appellants base their claim of malicious prosecution against respondents on a 2001 action, which was tried in Nevada federal district court.  After 11 days of trial, the jury in that action found in favor of appellants.  During the course of the trial, the federal district court twice denied appellants’ motions for a directed verdict under Fed. R. Civ. P. 50(a).  In this action, the district court concluded that appellants failed to make a prima facie case of malicious prosecution because the fact that the directed verdict motions were denied indicated that at least minimal probable cause existed.

            The federal rule, as well as Minn. R. Civ. P. 50.01,[1] states that the court “may,” rather than “shall,” grant judgment as a matter of law.  Appellants argue that because the language is not mandatory, the denial of a rule 50 motion should not be an indication of probable cause.  But when considering a motion under Fed. R. Civ. P. 50(a), the court must

(1) resolve direct factual conflicts in favor of the nonmovant, (2) assume as true all facts supporting the nonmovant which the evidence tended to prove, (3) give the nonmovant the benefit of all reasonable inferences, and (4) deny the motion if the evidence so viewed would allow reasonable jurors to differ as to the conclusions that could be drawn.


Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1080 (8th Cir. 1999) (quotation omitted).  In Porous Media, the Eighth Circuit concluded that the federal district court’s denial of judgment as a matter of law under rule 50(a) “fatally undermine[d] its claims for malicious prosecution.”  Id.  Here, the Nevada court not only denied appellants’ rule 50(a) motions, but the jury deliberated for more than three days, suggesting that the issues were not so easily resolved that the entire lawsuit was a sham. 

            The district court did not err in concluding that appellants’ claim for malicious prosecution failed as a matter of law, because they failed to demonstrate that respondents’ earlier lawsuit was brought without probable cause.

            “In reviewing cases dismissed for failure to state a claim on which relief can be granted, the only question before us is whether the complaint sets forth a legally sufficient claim for relief.  It is immaterial . . . whether or not the plaintiff can prove the facts alleged.”  Elzie v. Comm’r of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980) (quotation omitted).  A claim will be dismissed only if there are no facts consistent with the pleading that would support granting the relief demanded.  Id. (quotation and alterations omitted). 

            The district court stated that the claim of failure to pay a judgment against respondent Lafayette was inadequate because there are only two methods to collect a foreign judgment:  (1) under Minn. Stat. §§ 548.26-.33 (2006), the Uniform Enforcement of Foreign Judgments Act (UEFJA); or (2) under Minn. Stat. §§ 571.93-.932 (2006), the prejudgment garnishment statutes.

            Under the UEFJA, a judgment creditor may obtain full faith and credit for a foreign judgment by filing a certified copy of the judgment in any district court in the state.  Minn. Stat. § 548.27.  This permits the judgment creditor to exercise any available remedies for collecting the judgment.  Id.  But the “right of a judgment creditor to bring an action to enforce a judgment instead of proceeding under sections 548.26 to 548.30 remains unimpaired.”  Minn. Stat. § 548.31.  This provision has not been interpreted by Minnesota courts, but other states have interpreted this section of the UEFJA to preserve the common-law right of a judgment creditor to bring an independent action on the judgment.  See Matson v. Matson, 310 N.W.2d 502, 505 (Minn. 1981); see also Burke v. Iowa Dist. Ct., 546 N.W.2d 582, 583 (Iowa 1996); Seaboard Sur. Co. v. Waterbury, 451 A.2d 291, 294 (Conn. Super. 1982); see generally 13 Uniform Laws Annotated, § 6 at 243-45 (2002). 

            When the words of a statute are free from ambiguity, we will not disregard the letter of the law “under the pretext of pursuing the spirit.”  Minn. Stat. § 645.16 (2006).  The language of Minn. Stat. § 548.31 is not ambiguous:  it preserves the right of a judgment creditor to bring an action to enforce a judgment.  We therefore reverse the district court’s dismissal of appellants’ claim and remand for further proceedings.

            We review the district court’s decision regarding rule 11 sanctions for an abuse of discretion.  Gibson v. Coldwell Banker Burnet, 659 N.W.2d 782, 787 (Minn. App. 2003). 

A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate Rule 11.02.  It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion . . . the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.


Minn. R. Civ. P. 11.03(a)(1).  If the moving party does not comply with these requirements, the motion for sanctions must be rejected.  Gibson, 659 N.W.2d at 789.  This reflects the fundamental purpose of rule 11 sanctions, which is deterrence.  Id. at 790.

            Before rule 11 was revised to require this procedure, the primary duty imposed on a party moving for sanctions was one of notice with specificity. Id. at 788; see also Uselman v. Uselman, 464 N.W.2d 130, 143 (Minn. 1990).  The new language of rule 11.03 made the separate motion for sanctions mandatory.  Dyrdal v. Golden Nuggets, Inc., 672 N.W.2d 578, 588 (Minn. App. 2003), aff’d on other grounds, 689 N.W.2d 779 (Minn. 2004).  The district court did not abuse its discretion by denying respondents’ request for sanctions.

            Affirmed in part, reversed in part, and remanded.

[1] The Minnesota rule was revised to more closely mirror the federal rule, effective January 2, 2006.  See Minn. R. Civ. P. 50 2006 advisory comm. cmt.