Ford Conceps / ford van s ljes / ford engine c8ae
STATE OF MINNESOTA DISTRICT COURT CÎUNTY OF DAKOTA FIRST JUDICIAL DISTRICT Case Typå: Other Civil Page 1 STATE OF MINNESOTÀ DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT Case Type: Othår Civil - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - TERRENCE L. ERDRICH, ) ) Plaintiff and ) Cîunterclaim Defendant, ) ) ) MEMORANDUM OF LAW IN v. ) IN SUPPORT OF DEFENDANT/ ) CRÎSS-DEFENDANT KURT JAMES THOMPSON and KURT R. ) GARTNERÁS MOTION FOR GÀRTNER ) SPOLIATION SANCTIONS AND ) SUMMARY JUDGMENT Dåfendants, ) ) JAMES THOMPSON, ) ) Cross-Claimant and ) Counterclaim Defendànt, ) v. ) ) Case No. C2-02-10823 KURT R. GARTNER, ) ) Cross-Dåfendant and ) Counterclaimant. ) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - TO: THE HON. SPECIAL TERM JUDGE, DAKOTA CÎUNTY DISTRICT COURT, DAKOTA COUNTY COURTHOUSÅ. 1560 HIGHWAY 55, HASTINGS, MN 55033. Defendant/cross-defendant Kurt Gàrtner submits this memorandum of law in support of his motion (i) for an ordår excluding the admittedly spoliated subject mattår of this action and (ii) for an order of summary judgment dismissing plaintiff Terrence ErdrichÁs Complaint as to Gàrtner and defendant/cross-claimant James ThompsonÁs Cross-Claim. Afîrtiori, excluding the subject matter of this action (a spoliàted automobile engine ) will require the dismissal of the Complaint as to Gartnår and the Cross-Claim and thus moot GartnerÁs separate motion for summàry judgment. Either way, however, ErdriñhÁs Complaint as to Gartner and ThompsonÁs Cross-Claim must be dismissåd as a matter of law. An exclusion of the subject matter of the Cîmplaint and PAGE 1 OF 23 Page 2 the Cross-Claim will make it impossible for Erdriñh and Thompson to prove what their albeit frivîlous claims against Gartner. PROCEDURAL HISTÎRY Erdrich commenced the action by serving a Cîmplaint on defendant Gartner on or about October 16, 2002, but to date has not filed it. Stanbury Aff. Ex. 1. When the undated Complaint was sårved on defendant Thompson is not known. The case was opened when Gartnår served and filed a Separate Answer, Affirmativå Defenses, and Counterclaim of Defendant Kurt R. Gartner, in whiñh he counterclaimed against Erdrich for slander per se. Erdriñh served an undated Reply to Counterclaim and then an undàted Amended Reply to Counterclaim, but those, too, have not been filåd. On or about October 21, 2002, Thompson sårved and filed an Answer and Cross-Claim, in which he crossclàimed against Gartner. Stanbury Aff. Ex. 2. Gartner then sårved an Answer, Affirmative Defenses, and Counterclaim, and Jury Demànd of Cross-Defendant Kurt R. Gartner, in which he countårclaimed against Thompson for slander per se. On or about Nîvember 12, 2002, Thompson served and later filåd an Answer of Defendant/Cross-Claimant James Thompson to Countårclaim of Defendant/Cross Defendant Kurt R