How to Fight a Frivolous Lawsuit in Minnesota

What counts as a frivolous claim under Minnesota law?

A claim is sanctionable in Minnesota when the attorney or self-represented party presenting it breaks the certification that Rule 11.02 and § 549.211 require, judged by an objective standard. A claim that is weak, or that loses, does not breach the legal and factual parts of that certification if a competent attorney could reasonably believe it was grounded in fact and law, but the certification separately requires that a paper not be presented “for any improper purpose.”

Under Minn. Stat. § 549.211, subd. 2, a person presenting a pleading, written motion, or other paper, “whether by signing, filing, submitting, or later advocating,” certifies that, based on “an inquiry reasonable under the circumstances”:

• it is not being presented “for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation”;
• its legal contentions “are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law”;
• its factual contentions “have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery”; and
• its “denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.”

The words “later advocating” matter. Under them, a party that keeps advocating a paper after the facts turn against it makes the certification again. Each new paper carries the certification too. In Gibson v. Coldwell Banker Burnet, 659 N.W.2d 782 (Minn. App. 2003), a real-estate agent named Davis admitted the facts of a breach of fiduciary duty in her deposition, and her brokerage’s law firm then denied the claim in its answer to the amended complaint. The Court of Appeals held that, “In light of Davis’s deposition testimony,” that denial was not warranted by existing law or on the evidence, and that the district court did not abuse its discretion by concluding the conduct violated Rule 11.02. The test is objective: sanctions “should not be imposed when an attorney has an ‘objectively reasonable basis for pursuing a factual or legal claim or when a competent attorney could form a reasonable belief [that] a pleading is well-grounded’ in fact and law.” The certification applies to any pleading a party presents, so it also reaches a retaliatory counterclaim your company might be tempted to file in response.

How do you get a frivolous lawsuit dismissed in Minnesota?

The main route to dismissing a frivolous claim is an ordinary merits motion: a motion to dismiss or a motion for summary judgment. Narrower tools covered below can also end a claim, including dismissal for unposted security under Gen. R. Prac. 9 and the special motion to dismiss for speech-based claims. Minn. R. Civ. P. 12.02 allows a motion to dismiss for “failure to state a claim upon which relief can be granted,” and Minn. R. Civ. P. 56.01 directs that “The court shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”

A motion to dismiss tests the complaint alone. Rule 12.02 says “A motion making any of these defenses shall be made before pleading if a further pleading is permitted,” so the choice between moving and answering comes in the first weeks after your business is served. A claim that alleges enough to survive the pleadings can still fail at summary judgment, which tests the evidence rather than the allegations.

A sanctions motion runs alongside these motions and does not replace them. The merits motions ask whether the claim can win; the sanctions rule asks whether it had a reasonable basis when it was presented or advocated. I suggest preparing the two together, because the merits motion carries the dismissal and the sanctions motion has to be served while the other side can still withdraw the claim.

How does a Rule 11 sanctions motion work in Minnesota?

A Minnesota sanctions motion is served on the other side first, and it may not be filed with the court unless the challenged paper is still not withdrawn or corrected within the safe-harbor period. Under Minn. Stat. § 549.211, subd. 4, the motion “must be made separately from other motions or requests and describe the specific conduct alleged to violate subdivision 2.”

The waiting period, called the safe harbor, appears in Minn. R. Civ. P. 11.03. The motion “shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged document, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” Section 549.211, subdivision 4, uses nearly the same words. Because the court may set a different period, the current text of both and any scheduling order should be checked before relying on the number.

The sequence runs in four steps:

1. The motion names each challenged paper and the specific statement or claim the movant contends violates the rule.
2. The movant serves it on the other side under the Rules of Civil Procedure without filing it.
3. The movant waits out the safe-harbor period, or any other period the court has set.
4. The movant files the motion only if the challenged paper has not been withdrawn or appropriately corrected.

Two procedural details are worth knowing. First, under § 549.211, subd. 1, the parties in a Minnesota civil action, by their attorneys, “shall attach to and make a part of the pleading, written motions, and papers served on the opposite party or parties a signed acknowledgment stating that the parties acknowledge that sanctions may be imposed under this section.” Second, the statute and the rule are parallel routes: an award under the statute “is without prejudice and an alternative to sanctions that may be asserted under the Rules of Civil Procedure” (§ 549.211, subd. 6). The motions in Gibson and in the 2024 Flatgard case discussed below each cited both.

Why does the timing of a sanctions motion decide whether it succeeds?

A sanctions motion has to be served while the other side can still withdraw the offending paper. The Minnesota Court of Appeals has held that a motion that skipped the safe harbor “must be rejected,” and motions first raised after trial or after the appeals have failed even where a court found the conduct sanctionable.

In Gibson, the plaintiffs filed and served their motion on the same day, after the jury’s verdicts, and the district court ordered the law firm and its brokerage client to pay $20,000 each. The Court of Appeals agreed the conduct violated Rule 11 but reversed. It held that the rule “independently requires that a party seeking sanctions serve its motion on the nonmoving party, wait for 21 days, and, if the challenged material has not been withdrawn or corrected by then, file the motion for sanctions in the district court.” Without that procedure, “the motion for sanctions must be rejected.” A post-trial motion fails because the offending party is “unable to withdraw the improper papers or otherwise rectify the situation.” The court noted that the plaintiffs had four months between the amended answer and the verdicts in which to serve a motion.

The Minnesota Supreme Court reached a similar result under the earlier versions of the rule and statute in Kellar v. Von Holtum, 605 N.W.2d 696 (Minn. 2000). A defendant that first gave notice of a sanctions request after all appeals had ended lost its fee award, because such a late motion “does not deter bad faith claims, but simply punishes those with unsuccessful claims.” A co-defendant that had moved for sanctions early in the case kept its award.

Withdrawal has its own standard. In In re Supervised Estate of Flatgard, 14 N.W.3d 305 (Minn. App. 2024), the claimant emailed during the safe-harbor period, “I withdraw the Petition as written to eliminate any potential violation of the Rules,” and promised paperwork after a vacation. The district court found the email equivocal, and the formal withdrawal came after the period ended. The Court of Appeals held “that a district court acts within its discretion to impose sanctions pursuant to rule 11 of the Minnesota Rules of Civil Procedure when a party does not clearly and unequivocally withdraw a frivolous claim within the safe-harbor period.”

I suggest serving the motion as soon as the record shows the claim has no reasonable basis, because delay can turn a sound motion into one the court must reject. Holding a sanctions motion in reserve for the end of the case is one of the litigation tactics that backfire.

What sanctions can a Minnesota court impose for a frivolous claim?

A Minnesota court may order nonmonetary directives, a penalty paid into court, or, on motion and when warranted for effective deterrence, payment of the movant’s reasonable attorney fees and expenses caused by the violation. Under § 549.211, subd. 3, the sanction may fall on “the attorneys, law firms, or parties that have violated subdivision 2 or are responsible for the violation.”

Six rules shape the outcome:

1. Deterrence limit. Under § 549.211, subd. 5, a sanction “must be limited to what is sufficient to deter repetition of the conduct or comparable conduct by others similarly situated,” and a fee award to the movant covers “some or all of the reasonable attorney fees and other expenses incurred as a direct result of the violation.”
2. Represented parties. “Monetary sanctions may not be awarded against a represented party for a violation of subdivision 2, clause (2),” the clause on legal contentions. The statute states that limit for clause (2) only.
3. Law firms. “Absent exceptional circumstances, a law firm is jointly responsible for violations committed by its partners, associates, and employees” (subd. 4).
4. Court-initiated sanctions. A court may act on its own through an order to show cause, but “Monetary sanctions may not be awarded on the court’s initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned” (subd. 5).
5. Written reasons. Under Rule 11.03, “the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.”
6. Discovery excluded. Rule 11.04 provides that “Rules 11.01-.03 do not apply to discovery requests, responses, objections, and motions that are subject to the provisions of Rules 26 through 37,” and § 549.211, subd. 6 excludes the same papers. Those disputes run under Minnesota’s discovery rules.

The 2024 Flatgard decision shows what an award can look like. The district court ordered the claimant to pay $51,297, half of the fees requested, covering the motion to dismiss, a motion to disqualify him from representing himself, and the sanctions motion, and the Court of Appeals affirmed. The district court considered his fixed income, his knowledge as a former attorney, and his continued pursuit of claims already decided against him.

What can a court do about a frivolous litigant?

For a party that meets Rule 9’s definition of a frivolous litigant, which reaches a person who maintains one claim that lacks factual and legal grounding or serves an improper purpose, as well as a repeat filer, Minnesota courts can go beyond a single sanction. Under Minn. Gen. R. Prac. 9.01, a court may enter an order “(a) requiring the furnishing of security by a frivolous litigant who has requested relief in the form of a claim, or (b) imposing preconditions on a frivolous litigant’s service or filing of any new claims, motions or requests.”

Rule 9.06 defines a frivolous litigant three ways:

• “A person who, after a claim has been finally determined against the person, repeatedly relitigates or attempts to relitigate” the decided claim or issues against the same parties;
• “A person who in any action or proceeding repeatedly serves or files frivolous motions, pleadings, letters, or other documents, conducts unnecessary discovery, or engages in oral or written tactics that are frivolous or intended to cause delay”; or
• “A person who institutes and maintains a claim that is not well grounded in fact and not warranted by existing law or a good faith argument for the extension, modification or reversal of existing law or that is interposed for any improper purpose.”

The court weighs factors listed in Rule 9.02, including how often the litigant has lost, whether the claim was brought to harass or delay, and whether a lesser sanction would be enough. Under Rule 9.02(c), “An order requiring security shall only be entered with an express determination that there is no reasonable probability that the litigant will prevail on the claim,” and under Rule 9.03, unposted security means the claim “may be dismissed with or without prejudice as to the offending party.” The motion uses the same serve-then-wait step as a Rule 11 motion. Once it is properly filed before trial, “the action or proceeding is stayed and the moving party need not plead or respond to discovery or motions, until 14 days after the motion is denied, or if granted, until 14 days after the required security has been furnished and the moving party given written notice thereof” (Rule 9.04). The rule’s 1999 advisory committee comment, which guides how the rule is read but is not the rule itself, says it is meant for “the most egregious circumstances of abuse of the litigation process.”

How can a Rule 68 offer shift costs onto a weak claim?

A Rule 68 offer puts a price on pressing a weak claim to trial. When a defendant’s offer is not accepted and “the defendant-offeror prevails or the relief awarded to the plaintiff-offeree is less favorable than the offer,” Minn. R. Civ. P. 68.03 provides that “the plaintiff-offeree must pay the defendant-offeror’s costs and disbursements incurred in the defense of the action after service of the offer, and the plaintiff-offeree shall not recover its costs and disbursements incurred after service of the offer.”

Four conditions limit the tool:

1. Express reference. “An offer does not have the consequences provided in Rules 68.02 and 68.03 unless it expressly refers to Rule 68” (Rule 68.01).
2. Costs, not fees. The rule shifts costs and disbursements. Rule 68.03 leaves the plaintiff’s applicable attorney fees unaffected, and Rule 68.04 states, “Nothing in this rule shall be construed to create a right to attorney fees not provided for under the applicable substantive law.”
3. Hardship reduction. The court may reduce the obligations if they “would impose undue hardship or otherwise be inequitable.”
4. Timing. The rule sets a deadline before trial for making an offer and a short period for accepting one; both should be checked in the current rule text before an offer goes out.

An accepted offer leads to entry of judgment or dismissal under Rule 68.02. Under Rule 68.01(c), an offer is a damages-only offer unless it expressly states that it is a total-obligation offer, and “A damages-only offer does not include then-accrued applicable prejudgment interest, costs and disbursements, or applicable attorney fees, all of which shall be added to the amount” stated. I suggest setting the amount at a figure your company would actually pay to end the case, because the plaintiff may accept it.

What fees and costs can a business recover after beating a frivolous claim?

Winning against a frivolous claim does not by itself entitle your company to its attorney fees. In Dunn v. National Beverage Corp., 745 N.W.2d 549 (Minn. 2008), the Minnesota Supreme Court restated the general rule that “attorney fees are not recoverable in litigation unless there is a specific contract permitting or a statute authorizing such recovery.” A sanction under Rule 11 or § 549.211 is one route to fees; a fee clause in the contract sued on, or a fee-shifting statute, is another.

Without any of those, a prevailing defendant can recover:

• Costs. Minn. Stat. § 549.02, subd. 1 allows the defendant “$200” “Upon discontinuance or dismissal or when judgment is rendered in the defendant’s favor on the merits.”
• Disbursements. Minn. Stat. § 549.04, subd. 1 allows the prevailing party “reasonable disbursements paid or incurred, including fees and mileage paid for service of process by the sheriff or by a private person.”

Neither amount arrives on its own: under Minn. R. Civ. P. 54.04(b), “A party seeking to recover costs and disbursements must serve and file a detailed application for taxation of costs and disbursements with the court administrator,” and the rule sets a deadline for that application measured from entry of final judgment.

A fee request has its own paperwork. Under Minn. Gen. R. Prac. 119.01, a request for attorney fees of $1,000 or more “shall be made by motion.” The supporting affidavit under Rule 119.02 must include “A description of each item of work performed, the date upon which it was performed, the amount of time spent on each item of work, the identity of the lawyer or legal assistant performing the work, and the hourly rate sought for the work performed,” among other items. I suggest keeping time entries that tie each task to the challenged claim, because § 549.211, subd. 5, limits a fee sanction to reasonable fees incurred as a direct result of the violation. The broader point, that winning does not automatically reimburse your legal fees, applies here too.

When can you sue back for malicious prosecution or abuse of process?

Minnesota recognizes two claims a business can bring over a baseless lawsuit, each with its own elements. Malicious prosecution requires that the earlier case end in your favor; abuse of process requires a misuse of the court’s process for a purpose outside the case. Because either claim rests on what the other side did in a court case, it can fall within Minnesota’s UPEPA, which applies to a cause of action against a person based on the person’s “communication in a legislative, executive, judicial, administrative, or other governmental proceeding” (Minn. Stat. § 554.08) and requires fees “to the moving party if the moving party prevails on the motion” (§ 554.16).

In Kellar v. VonHoltum, 568 N.W.2d 186 (Minn. App. 1997), the Court of Appeals listed the elements:

• Abuse of process: “the existence of an ulterior purpose and the act of using the process to accomplish a result not within the scope of the proceedings in which it was issued, whether such result might otherwise be lawfully obtained or not.”
• Malicious prosecution: “(1) the action was brought without probable cause or reasonable belief that the plaintiff would ultimately prevail on the merits; (2) the action must be instituted and prosecuted with malicious intent; and (3) the action must terminate in favor of the defendant.”

In Kellar, both claims failed on summary judgment because they rested on a competitor bank’s request for an administrative hearing that a statute expressly allowed. The court said, “Respondents’ exercise of a statutorily given right cannot, we believe, form the basis for liability in a tort action.” The same litigation later produced the 2000 Kellar sanctions decision discussed above. Because the third element requires that the earlier action has ended in your favor, a malicious prosecution claim depends on how the first case ends.

How do the rules change in federal court or for a speech-based claim?

In federal court, Federal Rule of Civil Procedure 11 works like the Minnesota rule. A separate statute, 28 U.S.C. § 1927, provides that an attorney who “multiplies the proceedings in any case unreasonably and vexatiously” may be required by the court to pay personally the excess costs, expenses, and fees that conduct caused. For lawsuits aimed at speech, Minnesota’s Uniform Public Expression Protection Act (UPEPA) adds a special motion with mandatory fees for a winning movant.

Fed. R. Civ. P. 11 uses the same certification, separate motion, and safe harbor, and it bars a monetary sanction “against a represented party for violating Rule 11(b)(2).” Under 28 U.S.C. § 1927, an attorney “who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”

UPEPA covers claims based on, among other things, a person’s “exercise of the right of freedom of speech or of the press, the right to assemble or petition, or the right of association, guaranteed by the United States Constitution or the Minnesota Constitution on a matter of public concern” (Minn. Stat. § 554.08). It excludes several kinds of claims, including a claim against a seller that “arises out of a communication related to the person’s sale or lease of the goods or services” (paragraph (c), clause (3)). Under paragraph (d), though, the act applies to a claim under that exclusion, or under clause (8) or (11) of paragraph (c), when the claim is “a legal action against a person related to the communication, gathering, receiving, posting, or processing of consumer opinions or commentary, evaluations of consumer complaints, or reviews or ratings of businesses.” Such a claim must still meet the coverage test quoted at the start of this paragraph. When the act applies, § 554.09 allows “a special motion for expedited relief to dismiss the cause of action or part of the cause of action,” with a deadline measured from service of the pleading. Under § 554.16, the court “shall award court costs, reasonable attorney fees, and reasonable litigation expenses related to the motion” to a moving party that prevails, and to the responding party only if “the motion was frivolous or filed solely with intent to delay the proceeding.” More on the act appears in my page on Minnesota’s anti-SLAPP statute.

Where to Start When a Frivolous Claim Arrives

A frivolous claim is defeated through the merits motions, or in narrower situations through Rule 9 security or a UPEPA special motion, and sanctioned, if at all, through a separate motion served while the other side can still back down. The order of work follows from the rules above: identify the specific statements that lack a legal or factual basis, prepare the dismissal or summary judgment motion, and serve any sanctions motion early, then let the safe-harbor period run. Recovery beyond statutory costs and disbursements requires a sanction, a contract, or a statute, so the fee clause in any contract at issue deserves a read at the start.

For more on how these disputes unfold, see my overview of Minnesota business litigation. If you would like me to analyze a claim your company considers baseless and tell you whether a dismissal motion or a sanctions motion fits it, email [email protected] with the complaint and a brief description of why you believe it lacks support.