Sep 08 2010 15:17 LAW OFFICE

8T A TE OF MlNNESOT A

COUNTY OF RAMSEY

Robb Terlwkand Gregory Clemente,

Plaintiffs, VB.

Metropolitan Council, Minnesota Department of Administration, Transpo'fl Max. and Fleet SurPlus.

Defendants.

7637813453

DISTRICT COURT

SECOND JUDICIAL DISTRICT CASE TYPE: Breach of Contract

Court FiJ.cNol:62-CV-09-1 1374 Judge Dale B. Lindman

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT

The above-entitled matter OlllUe on for hearing before the Honorable Dale B. Lindman,

Judge of District Court, on August 12, 2010, at the R.a.msey County Courthouse, upon the motion

of Defendants for sumnwy judgment IUld the cross-motion of Plaintiffs to amend the Complaint

to allow for punitive darnaie8 under Minn. Stat. § 549.20.

Richard S. Bskola, Esq. appl:lII'ed on behalf of Plaintiffs. Jan Gunderson, Esq., appeared

on behalf of Defenclant Metropolitan Council. Gregory Huwe, Esq. appeared for Defendant

Department of Administration. Transport Max and Fleet Surplus.

Subsequent to the hearing, the record was kept open for one week to allow for additional

submissions upon the motion of Plaintiffs.

Based upon all of the tiles, rec'ords and proceedings herein, and upon the argument of

counsel, the Court makes its:

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Sep 08 2010 15:17 LAW OFFICE 7637813453

FINDINGS OF FACT

1.

Tros action was originally filed w1d venued in Hennepin COlUlty. That upon a proper

motion of Defendants to change venue. the venue was properly moved to Ramsey County.

n.

Defendant Department of Administration, and its Division Fleet SUIJllus. are subject to

the Minnesota Data Practices Act, Minn. Stat. § 13.01, et. seq.

III.

That Defendant Metropolitan Council, a polidcal subdivision of the State of Minnesota, is

subject to the Minnesota Data Practices Act (MGDPA), Minn. Stat. § 13.01, et. seq.

rv.

Plaintiffs Gregory Clemente and Rob Terhark are residents of the Slate of Minnesota and

have made a considerable number of data requests under the Minnesota Data Practices Act

(MODPA), Minn. Stat. § 13.01, ct. seq.

V.

The considerable number of requests made by Plaintiffs to Defendants involve

goverrunental data either gathered. colle:cted, received, maintained or disseminated by the

Defendants in this matter within the melaning of Minn. Stat. § 13.02, Subd. 7.

VI.

That during the time period, rehwant to Plaintiffs' complaint, the Plaintiffs operated as

small businessmen who dealt in surplus property obtained from government agencies such as

Defendants Minnesota Department of Administration and the Metropolitan Council. Surplus ".,1.

merchandise included used vehicles, buses/flectronic scrap ("e-scrap"). Plaintiffs would

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Sep 08 2010 15:17 LAW OFFICE 7637813453

purchase said merchandise from Defendants and seek to resen said merchandise at Ii profit.

Plaintiffs had no formal relationship but worked together and participated in these business

activities.

vn.

p.3

In order to operate their business, Plaintiffs made frequent and numerous requests for data PIfPI-Ir" -t«- .... {, "I"I

to both Defendant Department of Administration .and Defendant Metropolitan Council as

vendors of government property. Said fE!quests were straight-forward and direct. Although the

number of data requests under the MOD P A by Plaintiffs to both Defendants were numerous, they

were not confusing. not onerous and sometimes magnified lIB the product of failures on the partl

of Defendant agencies to furnish adequate responses in the first instance, thus requiring repeated

exchanges with Defendant agencies' employees.

VIII.

From 2005 to 2009, Plaintiffs made data requests for public information to defendant

agencies. Said requests were for infomtation related to c-scrap contracts, along with data

pertaining to government auctions, accclunting and renovation of the State warehouse~ involved

with Defendant Department of AdInini~ltration's Department of Surplus Services, in addition to

making various requests of information from Defendant Metropolitan Council.

IX

SO'" "''''' In May of2005, Defendant Clemente contacted Oloria_. an employee of the

Department of Administration, seeking. information on the e-scrap contract so that he could

. . M 5"",,,,(.;,1' partlclpate. s. _Y_' __ refused tl, give him that infunnation and asked him about his

identity and the reason for wanting infonnation. Ms. J~" ... " ... . s actions were intentional,

willful and intended to obstruct Plaintiffs from property obtaining infonnation available to them

Sep 08 2010 15:17 LAW OFFICE 7637813453 p.4

under the MGDPA The scenario was fe.peated in 2007 as Plaintiff Rob Terhark also requested

g -the same information from Ms. II" , who again responded by asking the same questions:

. d h till -" ." r '. I. ".\eo'" ~.f' J:lU:i.MI "Who are you, what is your identIty an w y do you want s 1.ll0rmation. )., < '"

c~~l .... , 'tl. ............ , v, ...... t-.< 6+-- / .... 1'.,(01),.<1,

x.

The information requested by Pillintiffs both in 2005 and 2007 were not provided by

Defendant Department of Administration employees.

Xl.

Ukewise, with Defendant Metro>politan Council, from 2008 to 2010, Plaintiff Clemente

requested data information showing notices of auctions disseminated and notices of banned

bidders and said governmental data was: not provided by Defendant Metropolitan Council. In

response to Plaintiff Clemente's reques1t fot this information, he was told in July. 2009, that all

such notices had been deleted from the system even though Defendant Minnesota Department of

Administration was able to provide hiltt with copies of notices that were sent to him.

XlI.

Plaintiffs' responses to Defendllillts discovery included additional ex:.amples where their

attempts to obtain public data were: thwarted in violation of the Minnesota Data Practices Act. 1:'", 2lH' .. , pl.t,..f.<o;.c\..-,--, 1,\ I.Y, Jt:" .. l f~~l ~"",~ c,...tl"(. """""":I ~~.,f,.~.s .r Io,t..

dt,.,c;..ki, I-w. \t "I.., I..! <\<0,. /\f.II'A" (>~ c.'-cc ~..: J.lI\"v..l.l Mo • ..A- I t;.. '~I 1'1, _ "", 1 Other than simJ?le denials. Defe:ndants offer nothing in terms of admissible evidence that

conclusively rebuts Plaintiffs' claims and Plaintiffs detailed descriptions of ntunerous instances ~ .. v ... ""- 01' ..... f<o.ll\,/'" O!."~

in which the MODPA has not been followed. A fllCittftll diiSplJte as to whether or not the MODPA \ovjf ~l"

II followed Oft eehaH:'l'lfboth Defendants 1Mifts.

XIV.

Defendant Department of Administration provides a. "chart" which allegedly records

Sep 08 2010 15:17 LAW OFFICE 7637813453 p.5

requests from Plaintiffs, along with the agency's responses. However, Defendant Departtnent of

Administration itself qualifies the credibility of the chart by describing as including only "each

request that can be identified as such by the MDA." It later states in its own Memorandwn that

"as far as it can be determined" the variolus requests and resolutions "are shown on the chart." fhtl .

Defendant Department of Administratio]~ II8l'I $& that any request received prior to May 1,2008

can not be identified "except to the extent that the request is referred to in an email or other

." It is lUldisputed that Plaintiffs made many requests for access to public

government data prior to that time.

xv.

Defendant Department of Administration acknowledges and admits that its employee

asked Plaintiff Terhark for bis identity lind refused his request, in violation of the Minnesota Data

Practices Act. It a4mits that its own data practices compliance official, Jim Schw8.l'tZ, testified at

his deposition that the data practices act had been violated.

XVI. 'l- quo.· .....

There are also exists. 8iliral issue of material faot as to damages suffered by Plaintiffs

as iii result of Defendants' actions.

XVII.

Plaintiff Clemente provided sworn testimony in his deposition that his business profits

dropped significantly during 2008 and .t009 after Defendants frustrated the operation of his

business through actions such as failure to provide access to public information about matters

relating to the disposition of surplus property. the acquisition and resale ofwhlch was a major

component of the business, Specifi.cally, Plaintiff Clemente testified that his profits were

$20,000,00 to $30,000.00 for said activities from 2002 to 2005, and were $50,000,00 to

Sep 08 2010 15:18 LAW OFFICE 7637813453 p.6

$90,000.00 from 2006 to 200J, '1..1 S''1·~t~ \L(r ....

XVIII.

The delays caused in 2005 and 2007, when the Department of Administration

intentionally demanded Plaintiff's identilties and their reasons for their requests prevented

Plaintiffs from obtaining important infOltmation such as bids submitted by successful and

UllSucc!.:ssful competitors with respect to the e-scrap contracts, and contact information for the

government agencies participating in tru, MDA e-scrap contract. Plaintiffs could not submit their

own bids on new contracts, thereby depliving them the business opportunity available to all c.~~ ....

others, resulting in a significant loss of))tofits, which Plaintiff Clemente testified under oath

would have been at least SSO,OOO.OO per y!.:ar if the contract had been secured. PlaintiffTerhark

credibly testified that he was deprived of the opportunity to join Plaintiff Clemente full time and

share in a portion of the business profits.

XIX.

Prior to July 25, 2007, Plaintiffs had sent requests to Defendant Department of

Administration regarding information about the disposal of electronic scrap materials. After o,,1>y ~ ri<["'Ji"1

numerOUS requests of Jim Schwartz, Pla.intiffs finally indicated that they fIIIq,nested documents

that had not yet been electronically tranumitted during the bid process. Mr. Schwartz then

"shotgunned" Plaintiffs 4,100 pages in lin intentional and obvious attempt to frustrate the efforts

of Plaintiff to obtain information they were entitled to under the MODPA. Mr. Schwartz never

notified Plaintiffs that the documents wlt!re available for pick up.

xx.

In 2009, Plaintiffs reviewed requested data documents at the office of Jim Schwartz of

the Department of Administration. Mr. Schwartz took the documents to his desk after thi~

Sep 08 2010 15:18 LAW OFFICE 7637813453

review and upon return of the docmnent:~ to Plaintiffs, purpos"ly left out docmnents that the

Pla.intiffs had requested. Upon reaching home, Plaintiffs realized that the documents had been

removed. It took nmnerous requests and! visits to Mr. Schwartz' office subsequent to this

J 'I"'L- .f' """ '" incident for the Plaintiffs to obtain .... they were looking for. Mr. Schwartz eventually mailed

some, but not all, of the docmnents to Plaintiffs. The intentional acts of Mr. Schwartz in

removing the documents was willful and intended to frustrate Plaintiffs in their attempts to

obtain data infonnation they were entitled to under MDGP A.

XXI.

On May 19, 2009, Plaintiff Clemente purchased two vehicles at auction from Defendant

Department of Administration/Surplus Services. Neither vehicle was functional and no titles

were included, in "'io!ation of Defendant Department of Administration's policy. Plaintiff

Clemente continually requested copies of docmnents involved in the process of obtaining title

work and Defendant Department of Administration employee, Holly Gustner, refused to provide

said documents.

XXII.

Plaintiff Clemente contacted Alex Curtis\' a data. contact supervisor at Metropolitan

COlUlcil, so he could submit a data requl:st to Metropolitan Council regarding the documents that

Ms. Oustnerrefused to provide. Mr. Curti~ did not respond and ignored the requests of Plaintiff

Clemente regarding these data requests under the MDOPA. This was an intentional act designed

to frustrate and prevent Plaintiffs from o,btaining information they were entitled to under the

MOOPA.

xxm.

It is the policy of Defendant Department of Administration/Surplus Services, to aid in the

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Sep 08 2010 15:18 LAW OFFICE 7637813453

replacement of missing titles or other typ'es of ownership documents not provided at the time of

sale. In 2009 Plaintiff !laid two buses purchased from a live auction at Fleet Services to two of

his customers. The necessary title documents were not provided by Defendant Department of

AdministrationIFleet Services. Plaintiff Clemente requested assistance from an employee of the eo"/'- ." tlo.

Columbia H=ights Department of Motor Vehicles. The rltquest was made to Tim Sob)! of

Defendant Department of Administration to acquire these documents. Mr. Soby ignored these

requests. This was an intentional act int;mded to frustrate and prevent Plaintiffs from obtaining

governmental data they were entitled to l~der the MDOP A.

XXIV.

On July 1, 2008, there was an au>Ction at Surplus Services. Plaintiffs requested

information on this auction by Tim Soby of Defendant Department of Administration. Mr. Soby

refused to respond to this request and Pliaintiffs were unable to bid at the auction. This was an

intentional act intended to frustrate and l~revent Plaintiffs from obtaining governmental data they

were entitled to under the MOGPA. After the auction, employee Holly Gustner of Defendant c."'-~

Department of Administration reported 1~ Plaintiff Clemente that the server verified that t was

sent an email verification successfully pdor to the sale. Plaintiff Clemente requested from Jim

Schwartz of Defendant Department of Administration the server data and proof of said email

notification. Mr. Schwartz responded to more than five data requests and stated they did not

exist. Ms. Ousmer's systems could not verify transmission of an email notification because the

notification was never sent. Plaintiff Clemente received a response from Defendant Department

of Administration/Surplus Services emp,loyee Shawn Debaun that "it did not matter that I could

not bid because I couldn't afford the vehicles anyway. This actions show a pattern of intentional \"<tN'

acts intended to prevent Plaintiffs from lexercising lis right to bid at IIll open auction and to

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Sep 08 2010 15:18 LAW OFFICE 7637813453

obtain governmental data available to Plaintiffs under the MDGPA.

xxv. \4e,1, .. ~

On February 11,2009, Plaintiff Clemente al'tllled Holly Oustner orChing special

treatment to Greg Davis, an employee of the Univenity of Minnesota. Plaintiff Clemente

requested data M8.~elephone data from Jim Schwartz of Defendant Department of

Administration. Plaintiff Clemente also requested actual phone records of the governmental

phone systems of Ms. Gustner. Mr. Schwartz indicated that OET maintains said data and

advised that I should make the request to OET directly. That said request was made directly to

o ET and they referred Plaintiff Clemente back to Me. Schwartz. The data was not provided.

Eventually it was verbally communicated to Plaintiff Clemente by Mr. Schwartz that Ms.

Oustner had changed her mind and acknowledged having interaction with Mr. Davis. This

scenario caused a six month delay. The actions of Mr. Schwartz and Ms. Gustner were

intentional and were designed to frustrate Plaintiffs and their attempts to obtain governmental

data available to them under the MDGPA.

XXVI.

As an example of the attitudes of Defendanta towards Plaintiffs, Plaintiff Clemente was at

a live auction to which he was invited by Defendant Department of Administration, and while

there he was told he could not bid. Holly Gustner approached him and told him he was not in

good standing. In responding to why hie could not bid, Ms. Oustner advised him ''you asked for

it, you're going to get it."

XXVII.

Jim Schwartz of Defendant Deplartmcnt of Administration has repeatedly denied

Plaintiffs repeated requests for copies of auction notifications and notices of banned bidden. His

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Sep 08 2010 15:18 LAW OFFICE 7637813453

'1. 'i \vVt.1" . . th M~t;l.ion is that Defendant Department c)f Administration/Surplus Services does not ma.lQtalQ e

documents. As a contradiction, Holly G\llitner stated. that the data did exist and brought it up on .... ,,'e. j)1.t.~ ....... ., ...... .1 , ,

her computer screen on ont: occasion.· A worker at Senator Larry Pogem,eller's office was

advised by Mr. Schwartz that the data did exiiit. These actions by Mr. Schwartz again show an

intentional pattern of behavior desi2lled to frustrate and prevent Plaintiffs from obtaining

governmental data available to them under the MDGP A.

XXVIII.

p. 10

As another example of how Plaintiffs have been treated as compared to other members of

the public, in the Fall of 2009, Plaintiffs Terhark and Clemente, along with two other persons,

attended a live auction at Defendant Surplus Services. An employee of Defendant Department of

Administration saw Plaintiffs and apPl'OaChed the table IWd monitored the interaction with the

registration person,nel. Plaintiffs Terhllrk and third person, Dave Spano, were both told that a

social security number was required to bid because they were paying by check. Another bidder,

Pete Hedman, approached the table without Plaintiffs present, designated he was paying by

check, and was provided a bidder card without providing a social security number. These actions

again demonstrate a pattern where Defendants have purposely Singled out Plaintiffs and treated

them differently so as to intentionally interfere with and frustrate them and their rights to obtain

governmental information and data under the MDGPA.

XXIX.

On February 24, 2009, an aide from Senator Larry Pogemfieller's office made a request

on Plaintiffs' behalf for the policy relating to reinstatement of banned bidders from Defendant

Department of Administration. It was reported to Plaintiff by said aide that no reinstatement

policy existed after her consultation with Jim Schwartz. Duringtbe deposition of HoUy Gustner,

Sep 08 2010 15:18 LAW OFFICE 7637813453

employee of Defendant Department of Administration, she went into great deal about the

unwritten reinstatement policy that had been in existence since before she was an employee, and

therefore, such infOITilation contradicted the written banned policy.

xxx.

On January 15, 2009, Chris Gran of Defendant Metropolitan Council faxed Plaintiffs the

network data he had received from Trannport Max on the same day regarding information

showing that II, server was down during a December 10, 2008 auction. The data showed that the

server WaB down for more than twice the amount of time that Defendant Metropolitan Council

had maintained. Chris Gran stated in answering Defendant Metropolitan Council interrogatories

that the server data has not ever been in the poS5ellsion of Defendant Metropolitan Council. This

contradiction shows willful indifference and intentional acts designed to keep governmental data

from Plaintiffs and from bidding on itet1lls at an auction, giving Plaintiffs' competitors an

advantage on said bidding.

XXXI.

Defendant Transport Max is an independent company which handles auctions for

Defe~t Metropolitan Council. At an auction held on December 10, a server problem existed.

p. 11

It.Il. .\.. 1W..!.f ~h.. ,-.\ Plaintiff Clemente withdrew all bids pl:ior to acceptance and later made a request for winning

bidder notifications. Said data requl:!lt was ignored by both Defendants Metropolitan Council

and Transport Max. This is an intentional act designed to prevent Plaintiffs !tom 0 btaining

information they are entitled to under the MGDPA.

XXXlt.

Defendant Metropolitan Council conducts live and on-line auctions to dispose of various

municipal vehicles from its fleet.

Sep 08 2010 15:18 LAW OFFICE 7637813453 p. 12

XXXlll.

Defendant Metropolitan Council C,ontra.cted with Defendant Transport Max. to conduct

on-line vehicle auctions, one ofwhlch Wf~S held on December 10,2008. Said auction was

scheduled to conclude at noon on said date. At approximately 11 :10 a.m. on said datcl, the server

outail.C

occurred. Plaintiff Clemente testIfied that said outage lasted a.pproximately 35-45

m.inutes and the computers were operable with only ten minutes left of the auction. Plaintiff

Clemente was not able to properly submit bids for the vehicles due to the server outage, as he

was usinlol several computer and multiple screens to submit multiple bids for multiple vehicles. ,." ...... +0 ... 1.. l." d.,. :! t.

Due to the outage Plaintiff Clemente WIlli unable to reboot all of his screens. This caused Ile~'#li./. "~lr

Plaintiff Clemente to lose the opportunity to bid on certain vehicles. Upon conclusion of the

auction, Plaintiff Clemente requested t1IAt the auction be negated so he could have a fair and

proper opportunity to bid. Defendants Metropolitan Council and Transport Max refused to

neflate the auction and accepted the bids.

XXXIV.

When said server outages occurred in the past, the auctions were negated by Defendants "l. ... t 9~1..~

Metropolitan Council and Transport t-Jlax. It is clear that the policy ~ pUllaence established by

snid Defendants was that all such auctions would be negated and reheld. This policy was verified

by PlaintiffClementcl through confirml~tion from Senator Pogl.lm;eller's office. £t ~.!..'::> k~ ...... G..", "I.-l, 'T~ ilol" lI.. .. ~~, ~ ~ll..,.. N,..,...... (M-\V,,> ~l u-I.I.I .... ~ . (

'", XXXV. ,J ~ """ '" ~I"") hJ tc... ...... ", hoy l~fII"'

. . . A', , Platntiff Clemente has also belen refused the right to bid on auctions held by Defendants

Metropolitan Council and Transport Max. Plaintiff Clemente has been wrongfully excluded

from said auctions. He did not oI.NIiy Violate auction tc:lrtns. Defendants Metropolitan Council

and Transport Max have ignored Plaintiffs' requests to participate in said auctions since February

Sep 08 2010 15:19 LAW OFFICE 7637813453 p. 13

of2009. Plaintiff Clemente was not ootified until July 25,2010, that he had violated auction

terms,

XXXVI.

Once Defendant Metropolitan Council undertakes its choice to utilize public auctions to t" .. <., •. ,,\~

dispose of surplus vehicles, it must do i~ even and fir way so as to allow all members of the

public equal opportunity to bid, This has not occurred with the Defendants' treatment of

Plaintiffs. Plaintiff's have been rei'wied the opportunity to bid by Defendant Department of

Administration since February of 2009. Plaintiffs were wrongfully excluded from said auctions II,. l?a .. t

and have been misled as to the reinstatement policy.

XXXVII,

Defendant Department of Administration, through its employees, has misled Plaintiffs as

to auction times and has been prevented Plaintiffs from properly bidding in auctions. Plaintiffs

have been singled out and treated differently than other members of the public. Plaintiff

Clemente was sold a vehicle with a bad engine in violation of Defendant Department of

Administration's written policy against same. but was not allowed to take advantage of the

unwritten policy to exchange vehicles Ithat were inoperable in spite of the fact that Defendant

Department of Administration had allowed others to make such exchanges in the recent :past.

XXXVIII.

In January of 2009, Plaintiff Clemente was denied the right to bid on VCRs as he was

misled by employees of Defendant Department of Administration as to how said items would be

disposed of and was deprived the right to purchase said VCRs. fl-..M. CL-'t.t \...y f ... l..L J~,,>-1"', ... e,jI... -Io.t -t-f\< I-'\.~ (,.."(,, rr/L-I- foo fll V(II , .... 1.,,<.,

XXXIX

With respect to said auctions, Defendant Department of Administration did not follow its

~~""

Sep 08 2010 15:18 LAW OFFICE 7637813453 p. 14

own policies to sell vehicles with propel' titles.

XLIX. I'll( C....t"~

Plaintiff Clemente also presented evidence as to his damages. Based on his experience,

he should have been able to bid on at least 20 buses on the December 1 0, 2008 auction, and in ,,1.14· (t... .. Lt~ o.f "" h·1 IM'b .k ... -!ic. f'\",~. J..-.. I

the: past hW!l averaged a profit of at least $2,500.00 per bus. Plaintiff Clemente also presented tI ~M fA ...... l.!rr

"'I MW"," • credible evidence based on past history ;and experience ~ damagesfor not being allowed to

bid at other auctions.

L.

Prior to, and in accordance with their plan to bid on e-scrap contracts, Plaintiffs had

engaged in and developed a business pllm which involved utilizing the e-scrap contract for a ~ rl.,.., ,~,\wl.4 ~'l"<"" .... ,1. 1- ~ l p,.!...., ",-,I, '\ ~ .,.. ........ .-.. t ... _ ,., ~ <f·rt .... ~~~l

business enterprise. Furthermore, there has been no history or e.ffort of any auditing on behalf of

Defendant Department of Administratic1n to monitor its bidding criteria. Plaintiffs hav!:

presented credible evidence to outline their business plan and to establish what damages they

would be entitled to based on the refusal of Defendants to provide them with the necessary

information under the MDGPA regarding said e-scrap conuact.

LI.

Of particular importance is the failure of Defendant Department of Administration to

provide the bid tabulation history to Plaintiffs, which is a direct violation of the MDOP A.

Failure of Defendants to provide said bid tabulations is crucial to Plaintiffs' business plan and

said violation establishes liability on thl! part of Defendant Department of Administration.

LII.

The actions of Defendants in delltying Plaintiffs access to auctions is ministerial in nature.

Defendants Metropolitan Council and Department of Administration have established numerous (J ( ~''''I '1"

Sep 08 2010 15:18 LAW OFFICE 7637813453 p. 15

~I...... f ...... U.t...~ policies by t8ir bo~tten and unwritten past actions. The ~ence involving auctions was

that if a Server went down. the auction would be canceled. It is a ministerial function to follow

that policy and procedure. Defendants JDepartment of Administration and Metropolitan Council,

by failing to follow their own policies and procedures, are no~ .. £t~~~Onary actions. Defendant

Metropolitan Council cannot be said to be utilizing discretionary function when it violated its

past precedent and policy by failing to negate the December 10, 2008 auction. It based its ."., I, Qqft'l''-'.

decision on incorrect information which makes its actions more alll.?8 i !tlS,

COls:gLUSIONS OF LAW

1, ~nuine issues of material fact '~xist with respect to Count I of Plaintiffs' Complaint.

2, Genuine issues of material fact '~xist with respect to Count II of Plaintiffs' Complaint.

3. Genuine issues of material fact i,exist with respect to Count III of Plaintiffs' Complaint. Lt Itl \..". I'l....i<{'1't ew· "" f I\tI ,L, '-\I '-'piN> .... ". rt (..~ r,~ 100:. q I'>tolc-I. 5' With respect to all counts ofPlslintiifs' Complaint, genuine issues exist with respect to

other damages that have been suffered ~ Plaintiffs and what are the amount of said

damages.

~. Defendants are not entitled to statutory or common law immunity with respect to Counts

I, II and III of Plaintiffs' Compi:aint.

--po Defendants are not entitled to statutory immunity under the Minnesota Data. Practices

Act, Minn. Stat. § 13 .08, Subd. :l. -1:A " ... ,1.. .... ,

The Plaintiffs have established J~rima facie evidence that Defendants' actions were

intentional and show deliberate disregard for the rigbts and safety of Plaintiffs, and

therefore Plaintiffs are hereby granted to leave to amend their Complaint to allow for

punitive damages against Defendants under Minn. Stat. § 549.20 and 549.191,

__ Sep 08 2010 15:19 LAW OFFICE 7637813453 p. 16

QRDER

IT IS HEREBY ORDERED that

1. Defendants' motion for summary judgment is hereby DENIED.

2. Plaintiffs are granted leave to amend their Complaint to allow for punitive damages

against Defendants under Mitro. Stat. § 549.20 and 549.191.