Case Information
UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA
DAVID A. McDOUGALL, individually and
as Trustee for the next-of-kin of decedent No. 20-1499 (JRT/LIB) Cynthia A. McDougall ,
Plaintiff, MEMORANDUM OPINION AND ORDER GRANTING IN v. PART AND DENYING IN PART MOTION TO DISMISS CRC INDUSTRIES, INC., and JOHN DOE COMPANIES 1–10,
Defendants. Tara D. Sutton, Gary L. Wilson, Jason L. DePauw, Philip L. Sieff, and Rashanda C. Bruce, ROBINS KAPLAN LLP , 800 LaSalle Avenue, Suite 2800, Minneapolis, MN 55402, for plaintiff.
Robert J. Gilbertson, David J. Wallace-Jackson, and Virginia R. McCalmont, FORSGREN FISHER MCCALMONT DEMAREA TYSVER LLP , Capella Tower, 225 South Sixth Street, Suite 1750, Minneapolis, MN 55402, for defendant CRC Industries, Inc.
Plaintiff David McDougall brought an action against CRC Industries, Inc. (“CRC”) and John Doe Companies 1–10, related to the death of his wife, Cynthia McDougall, who was killed by a person who inhaled a computer duster product while driving. Defendant CRC is the manufacturer of “CRC Duster,” the product that the driver is alleged to have inhaled prior to the automobile crash that took Ms. McDougall’s life. The John Doe Company Defendants are individuals and entities that may have sold, distributed, manufactured, or marketed CRC Duster, but whose identities are unknown at this time.
Plaintiff’s Complaint contains eight counts, including strict products liability– defective design, manufacturing defect, and failure to warn; negligence; breach of express warranty and implied warranty; public nuisance; and violations of Minnesota statutes, including the Unlawful Trade Practices Act (UTPA), Deceptive Trade Practices Act (DTPA), False Statement in Advertising Act (FSAA), and Unlawful Practices Act (UPA). CRC has filed a Motion to Dismiss for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). Because Plaintiff has not met his pleading burden with respect to his public nuisance and Minnesota DTPA claims, the Court will grant CRC’s Motion and dismiss these claims. However, because Plaintiff has alleged facts to support plausible claims for products liability, negligence, breach of express warranty and implied warranty, and violations of the remaining Minnesota statutes (FSAA, UTPA, and UPA), the Court will deny the Motion with respect to these claims.
BACKGROUND
I. FACTUAL BACKGROUND
A. The Parties and the Crash
On July 22, 2019, Cynthia McDougall was driving on State Highway 172 in Baudette, Minnesota when she was struck and killed in a crash with another vehicle. (Compl. ¶ 7, July 1, 2020, Docket No. 1.) The other vehicle was driven by Kyle Neumiller, who crossed over the center line, drove into oncoming traffic, and struck Ms. McDougall’s car head on. ( Id. ¶¶ 7, 177.) At the time of the collision, Neumiller was allegedly intoxicated due to ingesting gas from a cannister of compressed gas dusting spray manufactured by CRC (“CRC Duster”), and his loss of body functions and inability to maintain control of his vehicle is attributed to his intoxication. ( Id. ¶¶ 6, 172–177.) [1]
Plaintiff David McDougall brings this action in his capacity as Ms. McDougall’s wrongful death Trustee for her next-of-kin and in his personal capacity as her surviving spouse. ( Id. ¶¶ 8–10.)
CRC is a corporation registered, and with a principal place of business, in Pennsylvania, and is a wholly-owned subsidiary of Berwin Industries, LLC. ( Id. ¶ 13.) Plaintiff alleges that CRC is responsible for all aspects of CRC Duster’s life cycle in the chain of commerce, from design, research, manufacturing, production, distribution, labeling, and marketing. ( Id. ¶ 15.) CRC Duster is marketed, sold, and distributed in Minnesota, and other states. ( Id. ¶¶ 14–15.) John Doe Company Defendants 1–10 are individuals and entities that may have sold, distributed, manufactured, or marketed CRC Duster whose identities are unknown at this time, but against which Plaintiff wishes to preserve potential claims. ( Id. ¶ 14.)
B. The Product – CRC Duster
CRC Duster is a branded compressed gas dusting spray that is not distinct from other compressed gas dusters, also referred to as “keyboard cleaners,” “compressed air,” or “dust removers.” ( Id. ¶¶ 31–32.) A trigger on the spray canister opens a valve to release a stream of pressurized gas from the spray nozzle, which can remove dust and debris without damaging surface finishes or sensitive components. ( Id. ¶¶ 33, 36–40.) Dust removers typically contain a pressurized volatile, fluorinated hydrocarbon gas called 1,1-difluoroethane (“DFE”), which is used in many consumer products, including deodorants, hairspray, and cleaning products. ( Id . ¶¶ 41–42.)
DFE is a central nervous system depressant, which, when inhaled, can cause psychoactive intoxicating side effects, including euphoria, hallucinations, and delusions. ( Id. ¶¶ 43, 51.) Ingestion of DFE can also cause drowsiness, dizziness, suffocation, loss of consciousness, paralysis, and in some cases, cardiac arrest. ( Id. ¶¶ 43–46.)
DFE has long been associated with substance abuse, in part because products containing DFE are inexpensive and widely available at retail locations. ( Id. ¶¶ 3–4, 30, 52, 63.) Reports of the spontaneous deaths of teenagers who died after inhaling (also known as “huffing”) volatile hydrocarbons first appeared in the 1960s. ( Id. ¶ 53.) Since the 1990s, various governmental agencies, advocacy organizations, and researchers have gathered data and published studies on abuse of inhaled propellants, including dust removers. ( Id. ¶¶ 59–64.) The Complaint cites multiple incidences from 1997 to the present of injury and death associated with dust remover inhalation and huffing while driving. ( Id. ¶¶ 65–129.) A 2010 study in the journal Pediatrics found that, while inhalant abuse of substances like gasoline or paint has been in decline since 1993, propellant abuse, including dust removers, began increasing around 1998 and has continued on an upward trajectory since. ( Id. ¶ 63.)
McDougall alleges that CRC, at all relevant times, has known that people intentionally inhale duster for its intoxicating effects, and do so while driving. ( Id. ¶ 140.) McDougall states that CRC previously advertised that CRC Duster contained a bittering agent (or “bitterant”) to prevent inhalant abuse, although information about the bitterant is no longer included in CRC Duster’s current Safety Data sheet. ( Id. ¶ 145.) McDougall further states that retailers required advertisement of a bittering agent to sell the product, related to concern over inhalant abuse. ( Id. ¶¶ 148–49.)
However, McDougall contends that CRC knew that the bitterant was ineffective as a deterrent—either because it did not uniformly mix with the DFE and remained in the can when the duster was sprayed or because CRC failed to include it in the product as advertised—despite the existence of design specifications and performance standards mandating inclusion of the bitterant. ( Id. ¶¶ 146–56, 203–205.) McDougall also asserts that there were multiple safer, feasible, and affordable alternatives available to CRC related to the duster’s formula and packaging that would have more effectively prevented duster abuse and the injury to Ms. McDougall. ( Id. ¶¶ 183–92.)
McDougall alleges that CRC knew or should have known that people continued to abuse CRC Duster to become intoxicated. ( Id. ¶¶ 157–160.) In particular, McDougall asserts that CRC knew that it was selling duster in quantities that far exceeded the number of sales that would be expected if the product were being used for its intended purpose. ( Id. ¶¶ 157–60.)
McDougall also alleges that CRC revised the product label for CRC duster to remove references to the product’s harmful intoxicating effects and replaced them with a warning stating that “[d]eliberately inhaling this product can lead to death from asphyxiation depending on concentration and duration of exposure.” ( Id. ¶ 137.) McDougall claims that CRC thus provided inadequate warnings regarding the potential harms associated with inhalation of CRC Duster, and provided no warnings related to potential harms to innocent bystanders or related to operation of a motor vehicle ( Id. ¶¶ 142–44.)
II. PROCEDURAL HISTORY
McDougall filed this action against Defendants CRC and John Does 1–10 alleging eight counts: Strict Products Liability—Defective Design (Count 1), Manufacturing Defect (Count 2), and Failure to Warn (Count 3); Negligence (Count 4); Breach of Express Warranty (Count 5) and Implied Warranty (Count 6); and Public Nuisance (Count 8). ( Id. ¶¶ 179–246.) McDougall also brings statutory claims under Minnesota’s Deceptive Trade Practices Act (“DTPA”) (Minn. Stat. § 325D.44) and Private Attorney General Act (“Private AG Act”), Minn. Stat. § 8.31, subd. 3a, for violations of various consumer protection and unlawful trade practices statutes (Count 7). ( Id. ¶¶ 247–55.) McDougall seeks compensatory and punitive damages, ( id. ¶¶ 271–73), and asks for injunctive relief, ( id. at 63–64). CRC has now filed a Motion to Dismiss under Rule 12(b)(6). (Mot. Dismiss, Sept. 2, 2020, Docket No. 17.)
DISCUSSION
I. STANDARD OF REVIEW
In reviewing a motion to dismiss under Rule of Civil Procedure 12(b)(6), the Court
considers all facts alleged in the complaint as true to determine if the complaint states a
“claim to relief that is plausible on its face.”
Braden v. Wal-Mart Stores, Inc.
, 588 F.3d
585, 594 (8 th Cir. 2009) (quoting
Ashcroft v. Iqbal
,
II. NEGLIGENCE & STRICT PRODUCTS LIABILITY CLAIMS
CRC challenges the strict liability and negligence claims (Counts 1–4) on the same grounds: that CRC owed no duty to the McDougalls, and that the Complaint does not plausibly allege that CRC’s conduct was the proximate cause of the injury in this case.
As a federal court sitting in diversity, the Court applies the substantive law of the
state in which it sits.
Fogelbach v. Wal–Mart Stores, Inc.,
A. Negligence & Defective Design
To establish liability based upon negligence, a plaintiff must demonstrate “(1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4) that the breach of the duty of care was a proximate cause of the injury.” Domagala v. Rolland , 805 N.W.2d 14, 22 (Minn. 2011). Because neither party disputes that Ms. McDougall was injured, the Court only addresses duty and proximate causation.
1. Duty Duty is a threshold question, because “in the absence of a legal duty, the negligence claim fails.” Id. (quotation omitted). In the products liability context, the question of foreseeability is essential to establishing a duty: In Minnesota, it is well settled that a manufacturer has a duty to protect users of its products from foreseeable dangers. But if the danger is not foreseeable, there is no duty. In determining whether a danger is foreseeable, courts look at whether the specific danger was objectively reasonable to expect, not simply whether it was within the realm of any conceivable possibility. That which is not objectively reasonable to expect is too remote to create liability on the part of the manufacturer. . . When the issue of foreseeability is clear, the courts, as a matter of law, should decide it. In close cases, the question of foreseeability is for the jury.
Whiteford ex rel. Whiteford v. Yamaha Motor Corp., U.S.A.
,
As a general matter, a person does not owe a duty of care to another if the harm
is caused by a third party’s conduct of a third party.
Fenrich v. The Blake School
, 920
N.W.2d 195, 201 (Minn. 2018). However, an exception exists when the defendant’s own
conduct creates a foreseeable risk of injury to a foreseeable plaintiff.
Smits as Tr. For
Short v. Park Nicollet Health Servs.
, --- N.W.2d at ---,
CRC argues that it owed no duty to the McDougalls, and that its own conduct could be characterized as nonfeasance, at best. Further, it argues that CRC’s own conduct cannot be said to have created a foreseeable risk of injury to a foreseeable plaintiff because CRC’s act of making and selling the duster was far removed from Ms. McDougall’s death, which was caused by the misuse of the duster by a third party.
CRC asks the Court to declare that a duty does not exist and dismiss the Complaint. [2] But McDougall does not merely allege that CRC manufactured a product that someone abused and that the abuse caused an injury. Rather, McDougall alleges extensive facts to support its claims that CRC was aware of the risk to people who would inhale duster (evidenced by the warning label it included on its product), that it was aware of duster abuse and the prevalence of driving while huffing, that it knew a significant portion of its duster sales were to people who intended to abuse the product, and that CRC responded by including a bittering agent in its product, which CRC knew to be ineffective. As such, the Court finds that McDougall has plausibly pleaded that CRC owed a duty to Ms. McDougall.
2. Proximate Causation
In Minnesota, a party’s negligence is the proximate cause of an injury, if “the act
[is] one which the party ought, in the exercise of ordinary care, to have anticipated was
likely to result in injury to others” and the defendant’s “conduct was a substantial factor
in bringing about the injury.”
Lubbers v. Anderson
,
sufficient facts to support its claim that this particular injury was foreseeable to CRC and that CRC’s actions—particularly related to the ineffective bitterant and product design— were substantial factors in the injury. Accordingly, the Court finds that McDougall has met his pleading burden as to the negligence and design defect claims.
B. Manufacturing Defect
McDougall may pursue his manufacturing defect claims under a theory of
negligence, as above, or under a theory of strict liability.
Bilotta v. Kelley Co.
, 346 N.W.2d
616, 622 (Minn. 1984). “If a dangerous manufacturing flaw existed and resulted from
negligence, a plaintiff could in theory recover in negligence; if a dangerous flaw existed
but did
not
result from negligence, a plaintiff could recover in strict liability.”
Kapps v.
Biosense Webster, Inc.
, 813 F. Supp. 2d 1128, 1147 (D. Minn. 2011). Under either
negligence or strict liability theories, the “crux of the claim is that the product, as provided
to the public, was defective because the manufacturing, assembly, inspection, packaging
or testing processes failed to turn out the product intended by the defendant
manufacturer.”
Johnson v. Zimmer, Inc.
, No. 02-1328,
To recover on a strict liability claim, “the plaintiff must establish (1) that the
defendant's product was in a defective condition unreasonably dangerous for its intended
use, (2) that the defect existed when the product left the defendant's control, and (3) that
the defect was the proximate cause of the injury sustained.”
Bilotta,
McDougall has plausibly alleged that when the duster left CRC’s control, it was defective because it either did not contain bitterant, or that the bitterant was included but did not function as intended, rendering the product unreasonably dangerous. As above, the Court finds that McDougall’s pleadings sufficiently support his claim that the duster Neumiller used was defective and that his inhalation of the duster was reasonably foreseeable to CRC.
CRC contends that McDougall’s strict liability claims fail because CRC’s actions
were not the proximate cause of injury. However, McDougall alleges that the defect
enabled CRC duster to be inhaled, and thereby proximately caused the injuries. The
question of whether a product is defective—like the question of proximate cause—is
“generally a question of fact; only where reasonable minds cannot differ does the
question become one of law.”
Thompson v. Hirano Tecseed Co.,
C. Failure to Warn
Under Minnesota law, suppliers generally have a “duty to warn end users of a
dangerous product if it is reasonably foreseeable that an injury could occur in its use.”
Gray v. Badger Mining Corp.,
676 N.W.2d 268, 274 (Minn. 2004). The duty to warn
consists of two duties: “(1) The duty to give adequate instructions for safe use; and (2)
the duty to warn of dangers inherent in improper usage.”
Glorvigen
,
Here, neither party disputes that CRC has a duty to warn that the duster is harmful if inhaled. The dispute is focused on the adequacy of the warning: in particular, whether the risk of harm to bystanders or the loss of control of a vehicle as a result of duster inhalation are foreseeable enough that CRC has a duty to warn. Although a warning label on a can of Duster could not be expected to legally warn innocent bystanders of the danger, McDougall alleges that the warning on CDC Duster does not meet the second or third prongs of legal adequacy either.
CRC argues that it has no duty to warn about the potential hazards of driving after
inhaling duster because its existing warning—that inhalation could lead to death by
asphyxiation—renders an additional warning about driving too obvious to require
inclusion.
Citing Mix v. MTD Prods., Inc.
,
McDougall has adequately pleaded that CRC knew, or should have known, that its product was being misused in a way that made the risk of injury to a bystander and the risk of operating a vehicle foreseeable.
III. WARRANTY CLAIMS
A. Breach of Express Warranty
An express warranty is created by “[a]ny affirmation of fact or promise made by
the seller to the buyer which relates to the goods and becomes part of the basis of the
bargain” or “[a]ny description of the goods which is made part of the basis of the bargain.”
Minn. Stat. § 336.2–313(1)(a), (b). “To establish a warranty claim the plaintiff must
basically prove: the existence of a warranty, a breach, and a causal link between the
breach and the alleged harm.”
Peterson v. Bendix Home Sys., Inc.,
McDougall alleges that CRC made express warranties that CRC was committed to preventing inhalant abuse and that its duster contained a bittering agent to prevent inhalant abuse. McDougall contends that these warranties were made because certain retailers would not sell the product without such an advertisement and that CRC breached this warranty by failing to include effective inhalation deterrents. To the extent that these warranties induced retailers to sell the product, McDougall alleges that the breach made the product easily available and ultimately caused the injury.
Whether CRC’s warranties were part of the basis of the bargain that Kyle Neumiller made in purchasing the CRC Duster or the basis of the bargain the retailers made in agreeing to buy and sell CRC’s product, if Ms. McDougall was reasonably expected to be affected by the warranties, then the warranty extends to Ms. McDougall as well. As above, the question comes down to whether it was reasonable to expect (in other words, foreseeable) that the duster would be (mis)used and result in injury to third parties like Ms. McDougall. And, as above, the Court finds that McDougall has plausibly alleged that inhalation abuse was a reasonable expectation such that CRC’s warranty regarding the bitterant would extend to “any person . . . affected by the goods and who is injured by the breach of the warranty.” Minn. Stat. § 336.2-318.
B. Breach of Implied Warranty
The standard for prevailing on an implied warranty claim is the same as for an express warranty: a plaintiff must prove (1) the existence of a warranty, (2) a breach, and (3) a causal link between the breach and harm. Masepohl v. Am. Tobacco Co. , 974 F. Supp. 1245, 1253 (D. Minn. 1997). Under Minnesota law, “strict products liability has effectively preempted implied warranty claims where personal injury is involved.” In re Levaquin Prods. Liab. Litig., 752 F. Supp. 2d 1071, 1079 (D. Minn. 2010) (quotation omitted). However, at the pleadings stage, a plaintiff may be entitled to develop breach of implied warranty claims in the alternative to strict liability claims. Fed. R. Civ. P. 8; see also Lloyd F. Smith Co. v. Den-Tal-Ex , 491 N.W.2d 11, 17 (Minn. 1992). Because McDougall has pleaded facts to support his warranty claims, the Court will allow McDougall to develop his implied warranty claims as an alternative to his products liability claims.
IV. STATUORY CLAIMS
A. Minnesota’s Private Attorney General Act and Consumer Protection Claims McDougall also brings statutory claims arising under the UTPA (Minn. Stat. § 325D.13), FSAA (Minn. Stat. § 325F.67), UPA (Minn. Stat. § 325F.69), and DTPA (Minn. Stat. § 325D.44). McDougall brings the UTPA, FSAA, and UPA claims pursuant to Minnesota’s Private Attorney General Act (Minn. Stat. § 8.31, subd. 3a). The DTPA includes a private right of action and does not require plaintiffs to bring claims under the Private Attorney General Act. The DTPA claims are addressed separately below.
To avail themself of the Private Attorney General Act, a claimant must demonstrate
that his “cause of action benefits the public,”
Ly v. Nystrom
,
1. Public Benefit
“To determine whether a lawsuit is brought for the public benefit the Court must
examine not only the form of the alleged misrepresentation, but also the relief sought by
the plaintiff.”
Zutz v. Case Corp.
, No. 02-1776,
CRC contends that this action is a products liability case focused on recovering damages for personal injuries, and therefore does not establish a public benefit. [4] However, McDougall requests both equitable and monetary relief, and should McDougall ultimately prevail on his claims, it is possible that this lawsuit may lead to changes that have a distinct public benefit by deterring duster abuse. See, e.g. , In re Levaquin , 752 F. Supp. 2d at 1078. The Court accordingly finds that the pleadings and form of relief McDougall seeks are consistent with a public benefit.
2. Causal Nexus At the motion to dismiss stage, “it is not necessary to plead individual consumer reliance on the defendant’s wrongful conduct to state a claim for damages under [the Private Attorney General Act] and the substantive misrepresentation in sales statutes.” Grp. Health Plan , 621 N.W. 2d at 13. However, there must be some “causal nexus” between the alleged damages and the defendant’s wrongful conduct. Id. at 14–15. Proof of individual consumers’ reliance is not required to demonstrate a causal nexus, “where the plaintiffs’ damages are alleged to be caused by a lengthy course of prohibited conduct that affected a large number of consumers,” but “may be established by other direct or circumstantial evidence.” Id. at 14.
McDougall alleges that CRC misrepresented the inhalation deterrent measures in its duster product to appeal widely to retailers and consumers, that the wide availability of the product in retail outlets as a result of the misrepresentations facilitated abuse, and that the abuse caused the injury. The Court finds that this is a plausible nexus and that McDougall has met his burden as to the claims brought under the Minnesota AG Act.
B. Minnesota Deceptive Trade Practices Act
Minnesota’s DTPA includes a private cause of action for injunctive relief for “[a]
person likely to be damaged by a deceptive trade practice of another[.]” Minn. Stat. §
325D.45, subd. 1. To claim injunctive relief under the DTPA, a plaintiff must demonstrate
that he himself faces risk of future harm.
Damon v. Groteboer
,
McDougall contends that he and Ms. McDougall’s other decedents “will likely continue suffering mental and emotional anguish well into the future knowing that CRC’s conduct and concealment will result in more deaths and injuries as a result of people abusing CRC Duster until it is abated with the injunctive relief that Mr. McDougall seeks.” (Mem. Opp. at 52, Sept. 23, 2020, Docket No. 24.) However, the purpose of injunctive relief under the MDTPA is to prevent future misconduct by a defendant to the plaintiff, and not to remedy lingering effects of a past harm. Accordingly, the Court will grant CRC’s Motion as to the MDTPA claim in Count 7.
V. PUBLIC NUISANCE
Public nuisance claims have traditionally been the purview of the state; private
parties may initiate a public nuisance suit only “where the plaintiff has suffered some
special or peculiar damage not common to the general public.”
Viebahn v. Bd. Of Comm’rs
of Crow Wing Cty.
, 104 N.W. 1089, 1091 (Minn. 1905)). McDougall relies on
Doe 1 v.
Archdiocese of St. Paul
, in which the state trial court allowed plaintiff’s public nuisance
claims related to clergy sexual abuse to survive a motion to dismiss. No. 62-cv-13-4075,
CONCLUSION In sum, the Court finds that McDougall has met his pleading burden to survive CRC’s Motion to Dismiss on all claims except those deriving from the Minnesota Deceptive Trade Practices Act and the public nuisance doctrine.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that Defendant CRC Industries, Inc.’s Motion to Dismiss [Docket No. 17] is GRANTED in part and DENIED in part, as follows:
1. Counts 1–3: Strict Products Liability (Defective Design, Manufacturing Defect, and Failure to Warn) — the Motion to Dismiss is DENIED ; 2. Count 4: Negligence — the Motion to Dismiss is DENIED ; 3. Counts 5 & 6: Breach of Express and Implied Warranty — the Motion to Dismiss is DENIED ;
4. Count 7:
a. The Motion to Dismiss is GRANTED as to the Minnesota Deceptive Trade Practices Act (Minn. Stat. § 325D.44) and claims arising under the Minnesota Deceptive Trade Practices Act are DISMISSED with prejudice; b. The Motion to Dismiss is DENIED as to the claims arising under the Minnesota AG Act (Minn. Stat. § 8.31, subd. 3a). Unfair Trade Practices Act (Minn. Stat. § 325D.13), False Statement in Advertising Act (Minn. Stat. § 325F.67), and Unlawful Practices Act (Minn. Stat. § 325F.69); 5. Count 8: Public Nuisance — The Motion to Dismiss is GRANTED , and Count 8 is DISMISSED with prejudice .
DATED: March 3, 2021 _____ ____ at Minneapolis, Minnesota. JOHN R. TUNHEIM
Chief Judge United States District Court
Notes
[1] On April 1, 2020, Neumiller was convicted in Minnesota State Court of Criminal Vehicular Homicide and is currently serving a 72-month sentence at a Minnesota correctional facility. (Decl. of Eric C. Ernstene ¶ 2, Ex. A, Sept. 2, 2020, Docket No. 20-1.)
[2] The Minnesota Court of Appeals recently addressed a set of facts very similar to the instant
case—a bystander was hit and grievously injured by someone who was using a 3M Duster as an
inhalant while driving.
Diehl v. 3M Company
, No. A19-0354,
[3]
See also ADT Sec. Servs., Inc. v. Swenson, ex rel. Estate of Lee
,
[4] CRC cites four cases in support of its position:
Pecarina v. Tokai Corp
., No. 01-1655, 2002 WL
1023153, at *5 (D. Minn. May 20, 2002),
Wehner v. Linvatech Corp.
, No. 06-1709, 2008 WL
495525, at *3–4 (D. Minn. Feb. 20, 2008),
Zutz
,