defendant's memorandum


STATE OF MINNESOTA                                                                                                   DISTRICT COURT

COUNTY OF DELETED                                                                               DELETED JUDICIAL DISTRICT

Case Type:  Civil Other/Misc.

Court File No. Deleted





VS.                                                                                          DEFAULT JUDGMENT AND IN SUPPORT







            Plaintiff, Name Deleted, filed a Motion for Judgment by Default in the above-

entitled matter.  His motion should be denied.  Under applicable Minnesota Rules of Civil Procedure, the lawsuit has not been commenced against the Defendant.  In addition, the Complaint cites no statutory or common law cause of action.  The Complaint should be dismissed for failure to state a claim upon which relief can be granted.



            Plaintiff appears to have attempted to initiate this lawsuit by service on Name Deleted College.  Name Deleted College is a public, post-secondary institution and part of Minnesota State College and Universities system (MnSCU).  See Minn Stat. § 136F.10 (2008).  MnSCU is a part of the State of Minnesota.  See generally,  Minn Stat. Ch. 136F (2008).

            Plaintiff served his pro se lawsuit on an employee of Name Deleted College.  Service has not been made on the Office of the Attorney General.


            The complaint asserts a series of disagreements between Plaintiff and Defendant.  The complaint cites no

specific cause of action.  The Complaint alleges a specific amount of damages.


1.      Whether Plaintiff’s motion for default should be denied because he failed to properly effectuate service on Name Deleted College.

2.      Whether Plaintiff’s Complaint should be dismissed for failure to state a claim.




For the State of Minnesota and State agencies, the Minnesota Office of the Attorney General is clearly designated as the person or office upon whom process must be served.  Minn. R. Civ. P. 4.03(d) provides in pertinent part:

Service of summons within the state shall be as follows:

Upon the state by delivering a copy to the attorney general, a deputy attorney general or an assistant attorney general.


Minn. R. Civ. P. 4.03(d) (2008).

The Affidavit of No Answer filed by Plaintiff states in pertinent part:

…the summons and complaint in said action have been duly served on Name Deleted College the defendant therein and said summons and complaint with proof of said service thereof duly filed in the office of the Court Administrator,…


(Exhibit A.)  The Certificate of Service filed by the Plaintiff states in pertinent part that the Office of the Sheriff served the Summons and Complaint upon:

Name Deleted College (President Name Deleted) By personally leaving a copy with Name Deleted (Executive Assistant to the President & Vice President of Finance & Administration) aka authorized agent.



(Exhibit B.)  There is no record that the Summons and Complaint was served on the Attorney General, Deputy Attorney General or an Assistant Attorney General.  The documents filed by the Plaintiff clearly demonstrate that service was only made upon an employee at Name Deleted College.

            Plaintiff’s motion for default should be denied due to Plaintiff’s failure to properly effectuate service under the Minnesota Rules of Civil Procedure.  See Latour v. Minneapolis Community & Technical College, No. C7-00-1649, 2001 WL 185085 (Minn. Ct. App. Feb. 27, 2001) (unpublished opinion reproduced as Exhibit C to this Memorandum).  In the interest of  judicial economy, however, Defendant hereby waives service and responds to the Complaint by moving to dismiss for failure to state a claim.



            A.        Standard for Dismissal.

            This Motion to Dismiss is brought under Minnesota Rules of Civil Procedure 12.02(e).  Defendant asserts that Plaintiff has failed to state a claim upon which relief can be granted.  This Court’s only task in ruling on this Motion is to determine whether Plaintiff has alleged a legally sufficient claim.

            The principles governing review of a motion to dismiss for failure to state a claim are well-established.  Facts alleged in Plaintiff’s Complaint are taken as true for purposes of Defendant’s motion to dismiss, but legal assertions in the Complaint need not be accepted as true.  See, e.g., Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d. 550, 553 (Minn. 2003); See also Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 2944 (1986) (stating that on a motion to dismiss, the court is “not bound to accept as true a legal conclusion couched as a factual allegation”).



            A motion to dismiss under Minn. R. Civ. P. 12.02 for failure to state a claim is properly granted if the complaint “does not state a cognizable claim or cause of action under the substantive law.”  1 David F. Herr & Roger S. Haydock, Minnesota Practice § 12.9, at 310 (4th ed. 2002).  The issue is whether the complaint sets forth a legally sufficient claim for relief, which is a question of law.  Bodah, 663 N.W.2d. at 553.  see also Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1832 (1989) (stating that federal counterpart to Rule 12.02 “authorizes a court to dismiss a claim on the basis of a dispositive issue of law”).

            When ruling on a motion to dismiss, the Court must make assumptions and inferences in favor of Plaintiff and the Court need not determine whether Plaintiff can actually prove his claims.  See Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980) and St. James Capital Corp. v. Pallet Recycling Associates of North America, Inc., 589 N.W.2d. 511, 514 (Minn. Ct. App. 1999).  However, Minnesota courts also recognize that mere conclusions will not survive a motion to dismiss.  Professional Management Associates, inc. v. Coss, 574 N.W.2d. 107, 110 (Minn. Ct. App.), rev. denied (Minn. April 14, 1998) (“Moreover, upon a motion to dismiss, only well-pleaded allegations of fact must be accepted as true; conclusory allegations of fact or law not supported by allegations of specific fact may not be taken as true.”).  In the end, “a complaint failing to state a claim upon which relief can be granted must be dismissed.”  In re Milk Indirect Purchaser Antitrust Litigation, 588 N.W.2d. 772, 775 (Minn. Ct. App. 1999).

B.        Plaintiff’s Lawsuit Is a Direct Challenge to the Professional Educational Judgment Exercised at Name Deleted College and Thus Barred Because Minnesota Does Not Recognize a Cause of Action for Educational Malpractice.


            Plaintiff was a student in the practical nursing program at Name Deleted College.  His

Complaint consists of a litany of disagreements he had with the way in which the program was



administered and the professional judgment exercised by instructors.  Plaintiff cites no specific cause of action or statute anywhere in his Complaint.  Plaintiff simply concludes that because of his disagreements with Name Deleted College’s management of its nursing program, the Court should aware [sic] him $43,519.52 plus court costs.  Peeled to its core, Plaintiff’s lawsuit is a challenge to the academic integrity of the practical nursing program and the professional educational judgment of the faculty and staff at Name Deleted College.  The claim is, therefore, no more than a claim of educational malpractice.

            The Minnesota Court of Appeals clearly held that it will not allow students to attack the quality of the education provided by institutions of higher learning.  Alsides v. Brown Institute, Ltd., 592 N.W.2d 468 (Minn. Ct. App. 1999).  Such claims are known as “educational malpractice” claims.  The Court of Appeals relied on a number of public policy grounds for rejecting  “educational malpractice” claims, including the possibility that such claims would embroil the courts in the day-to-day operation of the institution and its programs.

            Similarly, Courts around the country have rejected attempts by students to sue institutions of higher learning over the quality of the education provided.  See cases cited in Alsides v. Brown Institute, Ltd., 592 N.W.2d at 472 n. 2.  See also Ross v. Creighton University, 957 F.2d 410, 414 n.2 (7th Cir. 1992) and Gally v. Columbia University, 22 F. Supp.2d 199, 207 (S.D.N.Y. 1998).

            Courts have rejected these educational malpractice claims on public policy grounds.  The public policy reasons relied on by the Alsides Court to reject educational malpractice claims are:

(1)               the lack of a satisfactory standard of care by which to evaluate an educator;

(2)               the inherent uncertainties about causation and the nature of damages in light of such intervening factors as a student’s attitude, motivation, temperament, past experience, and home environment;

(3)               the potential for a flood of litigation against schools; and



(4)               the possibility that such claims will embroil the courts into overseeing the day-to-day operations of schools.

Id., 592 N.W.2d at 472.  The Seventh Circuit in Ross, supra, also relied on these four public policy grounds to reject an educational malpractice case.  Ross, 957 F.2d at 414-415.  A brief discussion of each of these public policies will assist the Court in analyzing Plaintiff’s claims.

            (1)        Standard of Care.  Courts have recognized that if a student could sue a college over the quality of the education provided, courts would have to determine an appropriate standard by which to evaluate the educator.  This would not be an easy task.  As the Ross Court stated, theories of  education are not uniform and different but acceptable methods of teaching make it unfeasible to develop a standard of care.  Id., 957 F.2d at 414.  As noted by the Court in Gally, “The bar against educational malpractice claims recognizes that universities are empowered to set their own academic standards and procedures.”  Gally, 22 F. Supp.2d at 207.

            (2)        Inadequate Measure of Damages.  The courts are also reluctant to attempt to determine the extent of damages to a student who alleges his or her education was inadequate.  Intervening factors such as student attitude and motivation make it practically impossible for courts to determine whether the alleged malpractice of the institution caused the damage alleged by the student.

            (3)        Potential Flood of Litigation.  The Ross Court commented that there are so many students in schools that the potential for a flood of litigation if educational malpractice claims were allowed is a legitimate concern.  Sound public policy would suggest that courts reject educational malpractice cases that might discourage public institutions from accepting all students who seek to enroll in the college.

            (4)        Interference with Academic Freedom.  The Ross Court recognized that educational malpractice suits would be particularly troublesome in the college setting because



such actions would affect academic freedom and autonomy.  Ross, 957 F.2d at 415.  The United States Supreme Court has recognized that judicial intervention of any kind in the academic context must be undertaken only with the greatest reluctance.  Regents of University of Michigan v. Ewing, 474 U.S. 214, 226, 106 S. Ct. 507, 514 (1985) (Courts are unsuited “to evaluate the substance of the multitude of academic decisions that are made daily by faculty members of public educational institutions.”)  Another court said, “The courts have uniformly refused, based on public policy considerations, to enter the classroom to determine claims based upon educational malpractice.”  Paladino v. Aldelphi University, 89 A.d.2d 85, 454 N.Y.S.2d 868, 870 (N.Y.App.Div 1982).

            Here, Plaintiff’s complaint consists of a series of disagreements with instructors and complaints regarding scheduling and evaluations.  As such, Plaintiff’s lawsuit would involve this court in the “comprehensive review of a myriad of educational and pedagogical factors, as well as administrative policies” expressly barred by Alsides.  Alsides, 592 N.W.2d. at 473.

            Plaintiff’s Complaint refers to certain of Defendant’s policies regarding the Practical Nursing Program.  Although the specific allegations are not always clear, it appears that Plaintiff is alleging that Defendant did not act in a manner consistent with the policies.  These allegations may indicate a breach of contract claim.  The courts do not allow these kind of claims, regardless of whether they are couched as educational malpractice or breach of contract.  As the Alsides court said, “Claims by students, whether styled as breach of contract, fraud, or misrepresentation, that attack the general quality of education provided are claims for educational malpractice and are not actionable.”  592 N.W.2d. at 476.  The Connecticut Supreme Court, in Gupta v. new [sic] Britain General Hospital, 687 A.2d 111 (Conn. 1996), recognized that a breach of contract allegation will not save an educational malpractice claims [sic], saying, “The jurisprudential



considerations that shed doubt on the viability of the tort of educational malpractice also inform our analysis of a contract claim based on inadequate educational services.”  (Italics original).

            Courts recognize that the basic relationship between a student and an educational institution is contractual in nature.  Alsides, 592 N.W.2d. at 472.  However, the courts will not rigidly apply contract law to the student situation.  Minnesota Courts have uniformly held that student handbooks, policies, etc., do not form a unilateral contract with a student.  See Rollins v. Cardinal Stritch University, 626 N.W.2d 464, 470 (Minn. Ct. App. 2001) (refusing to find that a student handbook created a contract between the school and its students and stating that “Minnesota courts are generally reluctant to find contractual obligations between students and their schools based upon student handbooks”); Zellman v. Independent Sch. Dist. No. 2758, 594 N.W.2d 216, 219 (Minn. Ct. App. 1999) (student handbook not a unilateral contract); Ross v. University of Minnesota, 439 N.W.2d 28, 34 (Minn. Ct. App. 1989) (holding that university’s procedures did not constitute a unilateral contract with psychiatry resident); Abbario v. Hamline Univ. Sch. Of Law, 258 N.W.2d 108, 113-114 (Minn. 1977) (rejecting a student’s argument that the school breached a contractual obligation allegedly created by a student handbook when it failed to offer him a tutorial seminar after he received failing grades).

            Because Plaintiff’s lawsuit is a direct challenge only to the professional educational judgment of the Defendant, it purports to state a cause of action for educational malpractice that is not recognized in Minnesota.  Accordingly, Plaintiff’s Complaint should be dismissed.




            If any claim can be discerned from Plaintiff’s Complaint, it is a claim for educational malpractice and must be dismissed.  Defendant Name Deleted College respectfully requests that the Court issue an order dismissing with prejudice Plaintiff’s complaint in its entirety for failure to state a claim.


Dated:  Deleted, 2008

Respectfully submitted,


Attorney General

State of Minnesota





Signature Deleted

Name Deleted

Assistant Attorney General

Attorney Reg. No. Deleted


1200Bremer Tower, Suite 1200

445 Minnesota Street

St. Paul, MN 55101-2130

(651) 296-3301 (Voice)

(651) 296-1410 (TTY)