This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A13-1967
Marcia Lee Stresemann, d/b/a Affiliated Counseling Center, LLC, Respondent,
vs.
Lucinda Jesson, Commissioner of the Minnesota Department of Human Services, in her individual and official capacity; et al., Appellants.
Filed November 30, 2015 Affirmed in part, reversed in part, and remanded Johnson, Judge
Anoka County District Court File No. 02-CV-13-1154
John M. Degnan, Scott M. Flaherty, Daniel M. White, Briggs and Morgan, P.A., Minneapolis, Minnesota (for respondent)
Lori Swanson, Attorney General, Scott H. Ikeda, Aaron Winter, Assistant Attorneys General, St. Paul, Minnesota (for appellants)
Considered and decided by Rodenberg, Presiding Judge; Johnson, Judge; and
Chutich, Judge.
UNPUBLISHED OPINION
JOHNSON, Judge
This case is before the court of appeals for a second time. In this opinion, we
consider a single question: whether the district court erred by denying a motion to dismiss Marcia Lee Stresemann’s claims of conversion and trespass to chattels against Catherine
Morton-Peters. Morton-Peters argues that the district court erred because she is immune
from liability and from suit on those claims based on the doctrine of official immunity.
We conclude that the allegations in Stresemann’s amended complaint do not clearly
establish that Morton-Peters is entitled to official immunity. Accordingly, we affirm that
part of the district court’s order. We previously concluded that the district court erred by
denying other parts of the motion to dismiss. Therefore, we resolve the appeal by
affirming in part, reversing in part, and remanding for further proceedings.
DECISION
Most of the relevant facts and procedural history are contained in this court’s prior
opinion and in the supreme court’s opinion on further review. See Stresemann v. Jesson,
No. A13-1967, 2014 WL 3800289, at *1-2 (Minn. App. Aug. 4, 2014) (Stresemann I);
Stresemann v. Jesson, 868 N.W.2d 32, 33-34 (Minn. 2015) (Stresemann II). We need not
restate those matters in this opinion.
In our prior opinion, we noted Morton-Peters’s arguments that she is entitled to
both prosecutorial immunity and official immunity with respect to Stresemann’s claims
of conversion and trespass to chattels. Stresemann I, 2014 WL 3800289, at *5-6.
Applying precedential opinions of this court, we concluded that Morton-Peters is entitled
to prosecutorial immunity with respect to those claims. Id. at *5-7. We then stated, “In
light of that conclusion, we need not analyze Morton-Peters’s argument that she is
entitled to official immunity.” Id. at *7. On further review, the supreme court overruled
the opinions of this court on which we had relied and concluded that Morton-Peters is not
2 entitled to prosecutorial immunity. Stresemann II, 868 N.W.2d at 35-36 n.6.
Accordingly, the supreme court reversed and remanded to this court “for consideration of
Morton-Peters’ remaining immunity claims.” Id. at 36. Thus, we now consider whether
the district court erred by denying Morton-Peters’s motion to dismiss Stresemann’s
claims of conversion and trespass to chattels, despite Morton-Peters’s assertion of official
immunity.
The doctrine of official immunity protects public officials from liability for their
performance of discretionary duties, unless they engage in willful or malicious conduct.
Vassallo by Brown v. Majeski, 842 N.W.2d 456, 462 (Minn. 2014). To determine
whether official immunity applies, a court should inquire into the conduct at issue and
determine whether it is discretionary in nature or ministerial in nature. See id.
“Ministerial duties are absolute, certain, and imperative, and involve merely execution of
a specific duty arising from fixed and designated facts,” thereby “leaving nothing to the
discretion of the official.” Kelly v. City of Minneapolis, 598 N.W.2d 657, 664 (Minn.
1999) (quotation omitted). On the other hand, a discretionary duty “requires the exercise
of individual judgment in carrying out the official’s duties.” Kari v. City of Maplewood,
582 N.W.2d 921, 923 (Minn. 1998). If the conduct is ministerial in nature, a court must
determine whether any ministerial duties were violated. Vassallo, 842 N.W.2d at 462. If
the conduct is discretionary in nature, a court must determine whether the defendant’s
conduct was willful or malicious. See id. The terms willful and malicious are
synonymous, and “[m]alice means nothing more than the intentional doing of a wrongful
act without legal justification or excuse, or, otherwise stated, the willful violation of a
3 known right.” Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991) (quotation omitted). In
light of this caselaw, Morton-Peters is entitled to official immunity unless she either
(a) violated a ministerial duty or (b) willfully violated a known right while performing a
discretionary duty. See Vassallo, 842 N.W.2d at 462.
The first step in applying the law of official immunity is to identify the conduct at
issue. Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216, 219 (Minn.
1998). In her supplemental brief to this court, Stresemann identifies two types of
allegedly tortious conduct, each of which is essentially a sub-claim of counts 4 and 5:
(1) Morton-Peters’s “inclusion of knowingly or recklessly false factual statements” in her
affidavit in support of an application for a search warrant and (2) her “destruction of . . .
ACC’s records.” Stresemann’s first sub-claim is based on paragraph 54 of the amended
complaint, in which she alleges, “Defendant[s] deprived ACC of [a property] interest by
unlawfully seizing . . . patient charts.” Stresemann’s second sub-claim is based on
paragraph 55 of the amended complaint, in which she alleges, “Defendant[s] deprived
ACC of [a property] interest by losing or destroying . . . patient charts.”
We will separately address each sub-claim. Before doing so, it is important to
note the procedural posture of the case. Morton-Peters asserted official immunity in a
motion to dismiss pursuant to rule 12.02(e) of the Minnesota Rules of Civil Procedure.
The district court may grant such a motion only if a complaint “fail[s] to state a claim
upon which relief can be granted.” Minn. R. Civ. P. 12.02(e). “A claim is sufficient
against a motion to dismiss for failure to state a claim if it is possible on any evidence
which might be produced, consistent with the pleader’s theory, to grant the relief
4 demanded.” Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 603 (Minn. 2014). In
considering a motion to dismiss pursuant to rule 12.02(e), a district court must “consider
only the facts alleged in the complaint, accepting those facts as true and must construe all
reasonable inferences in favor of the nonmoving party.” Finn v.
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A13-1967
Marcia Lee Stresemann, d/b/a Affiliated Counseling Center, LLC, Respondent,
vs.
Lucinda Jesson, Commissioner of the Minnesota Department of Human Services, in her individual and official capacity; et al., Appellants.
Filed November 30, 2015 Affirmed in part, reversed in part, and remanded Johnson, Judge
Anoka County District Court File No. 02-CV-13-1154
John M. Degnan, Scott M. Flaherty, Daniel M. White, Briggs and Morgan, P.A., Minneapolis, Minnesota (for respondent)
Lori Swanson, Attorney General, Scott H. Ikeda, Aaron Winter, Assistant Attorneys General, St. Paul, Minnesota (for appellants)
Considered and decided by Rodenberg, Presiding Judge; Johnson, Judge; and
Chutich, Judge.
UNPUBLISHED OPINION
JOHNSON, Judge
This case is before the court of appeals for a second time. In this opinion, we
consider a single question: whether the district court erred by denying a motion to dismiss Marcia Lee Stresemann’s claims of conversion and trespass to chattels against Catherine
Morton-Peters. Morton-Peters argues that the district court erred because she is immune
from liability and from suit on those claims based on the doctrine of official immunity.
We conclude that the allegations in Stresemann’s amended complaint do not clearly
establish that Morton-Peters is entitled to official immunity. Accordingly, we affirm that
part of the district court’s order. We previously concluded that the district court erred by
denying other parts of the motion to dismiss. Therefore, we resolve the appeal by
affirming in part, reversing in part, and remanding for further proceedings.
DECISION
Most of the relevant facts and procedural history are contained in this court’s prior
opinion and in the supreme court’s opinion on further review. See Stresemann v. Jesson,
No. A13-1967, 2014 WL 3800289, at *1-2 (Minn. App. Aug. 4, 2014) (Stresemann I);
Stresemann v. Jesson, 868 N.W.2d 32, 33-34 (Minn. 2015) (Stresemann II). We need not
restate those matters in this opinion.
In our prior opinion, we noted Morton-Peters’s arguments that she is entitled to
both prosecutorial immunity and official immunity with respect to Stresemann’s claims
of conversion and trespass to chattels. Stresemann I, 2014 WL 3800289, at *5-6.
Applying precedential opinions of this court, we concluded that Morton-Peters is entitled
to prosecutorial immunity with respect to those claims. Id. at *5-7. We then stated, “In
light of that conclusion, we need not analyze Morton-Peters’s argument that she is
entitled to official immunity.” Id. at *7. On further review, the supreme court overruled
the opinions of this court on which we had relied and concluded that Morton-Peters is not
2 entitled to prosecutorial immunity. Stresemann II, 868 N.W.2d at 35-36 n.6.
Accordingly, the supreme court reversed and remanded to this court “for consideration of
Morton-Peters’ remaining immunity claims.” Id. at 36. Thus, we now consider whether
the district court erred by denying Morton-Peters’s motion to dismiss Stresemann’s
claims of conversion and trespass to chattels, despite Morton-Peters’s assertion of official
immunity.
The doctrine of official immunity protects public officials from liability for their
performance of discretionary duties, unless they engage in willful or malicious conduct.
Vassallo by Brown v. Majeski, 842 N.W.2d 456, 462 (Minn. 2014). To determine
whether official immunity applies, a court should inquire into the conduct at issue and
determine whether it is discretionary in nature or ministerial in nature. See id.
“Ministerial duties are absolute, certain, and imperative, and involve merely execution of
a specific duty arising from fixed and designated facts,” thereby “leaving nothing to the
discretion of the official.” Kelly v. City of Minneapolis, 598 N.W.2d 657, 664 (Minn.
1999) (quotation omitted). On the other hand, a discretionary duty “requires the exercise
of individual judgment in carrying out the official’s duties.” Kari v. City of Maplewood,
582 N.W.2d 921, 923 (Minn. 1998). If the conduct is ministerial in nature, a court must
determine whether any ministerial duties were violated. Vassallo, 842 N.W.2d at 462. If
the conduct is discretionary in nature, a court must determine whether the defendant’s
conduct was willful or malicious. See id. The terms willful and malicious are
synonymous, and “[m]alice means nothing more than the intentional doing of a wrongful
act without legal justification or excuse, or, otherwise stated, the willful violation of a
3 known right.” Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991) (quotation omitted). In
light of this caselaw, Morton-Peters is entitled to official immunity unless she either
(a) violated a ministerial duty or (b) willfully violated a known right while performing a
discretionary duty. See Vassallo, 842 N.W.2d at 462.
The first step in applying the law of official immunity is to identify the conduct at
issue. Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216, 219 (Minn.
1998). In her supplemental brief to this court, Stresemann identifies two types of
allegedly tortious conduct, each of which is essentially a sub-claim of counts 4 and 5:
(1) Morton-Peters’s “inclusion of knowingly or recklessly false factual statements” in her
affidavit in support of an application for a search warrant and (2) her “destruction of . . .
ACC’s records.” Stresemann’s first sub-claim is based on paragraph 54 of the amended
complaint, in which she alleges, “Defendant[s] deprived ACC of [a property] interest by
unlawfully seizing . . . patient charts.” Stresemann’s second sub-claim is based on
paragraph 55 of the amended complaint, in which she alleges, “Defendant[s] deprived
ACC of [a property] interest by losing or destroying . . . patient charts.”
We will separately address each sub-claim. Before doing so, it is important to
note the procedural posture of the case. Morton-Peters asserted official immunity in a
motion to dismiss pursuant to rule 12.02(e) of the Minnesota Rules of Civil Procedure.
The district court may grant such a motion only if a complaint “fail[s] to state a claim
upon which relief can be granted.” Minn. R. Civ. P. 12.02(e). “A claim is sufficient
against a motion to dismiss for failure to state a claim if it is possible on any evidence
which might be produced, consistent with the pleader’s theory, to grant the relief
4 demanded.” Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 603 (Minn. 2014). In
considering a motion to dismiss pursuant to rule 12.02(e), a district court must “consider
only the facts alleged in the complaint, accepting those facts as true and must construe all
reasonable inferences in favor of the nonmoving party.” Finn v. Alliance Bank, 860
N.W.2d 638, 653 (Minn. 2015) (quotation omitted). In addition, a district court may
consider documents attached to or referenced in the complaint. Northern States Power
Co. v. Metropolitan Council, 684 N.W.2d 485, 490 (Minn. 2004); In re Hennepin Cnty.
1986 Recycling Bond Litig., 540 N.W.2d 494, 497 (Minn. 1995). This court applies a de
novo standard of review to a district court’s ruling on a motion to dismiss pursuant to rule
12.02(e). Sipe v. STS Mfg., Inc., 834 N.W.2d 683, 686 (Minn. 2013).
The law concerning a motion to dismiss for failure to state a claim is not
hospitable to the doctrine of official immunity. “[A] defendant relying upon an immunity
bears the burden of proving he or she fits within the scope of the immunity.” Rehn v.
Fischley, 557 N.W.2d 328, 333 (Minn. 1997). In Minnesota, a defendant who seeks the
protection of official immunity usually seeks to satisfy the burden of proof by asserting
official immunity in a motion for summary judgment. See, e.g., Vassallo, 842 N.W.2d at
462; Thompson v. City of Minneapolis, 707 N.W.2d 669, 673 (Minn. 2006); Mumm v.
Mornson, 708 N.W.2d 475, 480-81 (Minn. 2006); Anderson v. Anoka Hennepin Indep.
Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004); Briggs v. Rasicot, 867 N.W.2d 217,
220 (Minn. App. 2015), review denied (Minn. Sept. 15, 2015); Shariss v. City of
Bloomington, 852 N.W.2d 278, 280 (Minn. App. 2014). Indeed, we are unaware of any
precedential opinion of a Minnesota appellate court in a case in which a defendant
5 asserted official immunity in a motion to dismiss pursuant to rule 12.02(e). One federal
circuit court of appeals has observed that a “more stringent standard” applies to an
assertion of immunity raised in a motion to dismiss such that “the plaintiff is entitled to
all reasonable inferences from the facts alleged, not only those that support his claim, but
also those that defeat the immunity defense.” McKenna v. Wright, 386 F.3d 432, 436 (2d
Cir. 2004). Another federal circuit court has observed that plaintiffs are not required to
plead facts that may defeat immunity. Jacobs v. City of Chicago, 215 F.3d 758, 765 n.3
(7th Cir. 2000). Yet another federal circuit court has stated that an assertion of immunity
may be vindicated on a motion to dismiss only if the applicability of the immunity is
“clearly established by the allegations within the complaint.” Pani v. Empire Blue Cross
Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998).
With this procedural framework in mind, we turn to the two sub-claims alleged in
counts 4 and 5 of the amended complaint. Stresemann’s first sub-claim concerns
Morton-Peters’s allegedly false statements in her affidavit seeking a search warrant.1
Morton-Peters contends that the district court erred because her conduct in applying for
the search warrant was discretionary. In contrast, Stresemann contends that Morton-
Peters had a ministerial duty to not include false statements in the search-warrant
1 The factual basis of the first sub-claim is essentially the same as the factual basis of Stresemann’s section 1983 claim. With respect to the section 1983 claim, appellants argued both that Stresemann had failed to state a claim for relief and that the doctrine of qualified immunity applies. See Stresemann I, 2014 WL 3800289, at *2 n.1. In our prior opinion, we resolved the section 1983 claim on the ground that Stresemann failed to plead facts that state a claim for relief. Id. at *3-5. But Morton-Peters has not argued that Stresemann did not plead viable claims of conversion and trespass to chattels. Thus, we assume without deciding that Stresemann has adequately pleaded prima facie cases of conversion and trespass to chattels.
6 affidavit. Stresemann contends that the ministerial duty arises from a statute that requires
an affiant to set forth “facts tending to establish the grounds of the application, or
probable cause for believing that they exist.” See Minn. Stat. § 626.10 (2014). She
contends, “It is axiomatic that testifying truthfully under oath is ministerial.”
As stated above, a motion to dismiss pursuant to rule 12.02(e) on the basis of
official immunity may be granted only if the applicability of official immunity is clearly
established by the allegations in the complaint. See Walsh, 851 N.W.2d at 603; see also
Pani, 152 F.3d at 75. Stresemann’s amended complaint does not make clear that Morton-
Peters is entitled to official immunity with respect to the first sub-claim alleged in counts
4 and 5. The amended complaint alleges that Morton-Peters “unlawfully seiz[ed] . . .
patient charts.” The amended complaint does not allege facts that allow a conclusive
determination as to whether Morton-Peters was performing a discretionary duty or a
ministerial duty when she engaged in the alleged tortious conduct. Because the factual
record is yet to be developed, many relevant facts are yet to be determined, such as
whether any policies governed Morton-Peters’s conduct when seeking a search warrant
and, if so, what steps she took or did not take to comply with those policies. In the
absence of evidence on key facts such as those, a court cannot conclude that Stresemann
“would be entitled to no relief under any state of facts which could be proved in support
of the claim.” Walsh, 851 N.W.2d at 601-02. Thus, at this stage of litigation, we cannot
say that Morton-Peters is entitled to official immunity with respect to the first sub-claim
alleged in counts 4 and 5.
7 Stresemann’s second sub-claim concerns Morton-Peters’s alleged loss or
destruction of ACC records. Morton-Peters contends that the district court erred because
her conduct in handling and maintaining the evidence seized from ACC was
discretionary. In contrast, Stresemann contends that Morton-Peters violated a ministerial
duty to not lose or destroy the seized evidence. Stresemann contends that the ministerial
duty arises from a statute providing that property seized pursuant to a search warrant
“shall be safely kept.” See Minn. Stat. § 626.04(a) (2014). Stresemann’s amended
complaint refers to an affidavit in which Morton-Peters states that Stresemann requested
the return of seventeen client files and that three files were found and returned but that
“MFCU does not possess the remaining fourteen client files.” Based on that part of the
affidavit, the amended complaint alleges, “Upon information and belief, the . . . fourteen
patient files were lost or destroyed by” Morton-Peters.
Again, a motion to dismiss pursuant to rule 12.02(e) on the basis of official
immunity may be granted only if the applicability of official immunity is clearly
established by the allegations in the complaint. See Walsh, 851 N.W.2d at 603; see also
Pani, 152 F.3d at 75. Stresemann’s amended complaint does not make clear that Morton-
Peters is entitled to official immunity with respect to the second sub-claim alleged in
counts 4 and 5. The amended complaint alleges that Morton-Peters lost or destroyed
Stresemann’s property. The amended complaint does not allege facts that allow a
conclusive determination as to whether Morton-Peters was performing a discretionary
duty or a ministerial duty. Because the factual record is yet to be developed, many
relevant facts are yet to be determined, such as whether any policies governed Morton-
8 Peters’s conduct when seeking a search warrant; if so, what steps she took or did not take
to comply with those policies; whether documents actually were lost or destroyed; and, if
so, how documents were lost or destroyed. In the absence of evidence on key facts such
as those, a court cannot conclude that Stresemann “would be entitled to no relief under
any state of facts which could be proved in support of the claim.” Walsh, 851 N.W.2d at
601-02. Thus, at this stage of litigation, we cannot say that Morton-Peters is entitled to
official immunity with respect to the second sub-claim alleged in counts 4 and 5.
In sum, the district court did not err by denying the motion to dismiss
Stresemann’s claims of conversion and trespass to chattels against Morton-Peters. The
allegations in Stresemann’s amended complaint do not clearly establish that Morton-
Peters is entitled to official immunity on those claims. We note, however, that the
allegations in Stresemann’s amended complaint, by themselves, likely would be
insufficient to defeat a motion for summary judgment. See DLH, Inc. v. Russ, 566
N.W.2d 60, 71 (Minn. 1997) (stating that “party resisting summary judgment must do
more than rest on mere averments”); see also Butler v. San Diego Dist. Attorney’s Office,
370 F.3d 956, 963-64 (9th Cir. 2004) (explaining that, when defendant produces evidence
supporting existence of immunity, “the district court is not required (or even allowed) to
assume that the challenged factual allegations in the plaintiff’s complaint are true”).
9 Therefore, we affirm the district court’s denial of Morton-Peters’s motion to
dismiss Stresemann’s claims of conversion and trespass to chattels, we reverse the district
court’s denial of appellants’ motion to dismiss certain other claims for the reasons stated
in our prior opinion, and we remand for further proceedings.
Affirmed in part, reversed in part, and remanded.