Franklin Avenue Holdings, LLC v. County of Benton, 05-CV-19-736

CourtTax Court of Minnesota
Writing for the CourtJane N. Bowman, Judge.
PartiesFranklin Avenue Holdings, LLC, Petitioner, v. County of Benton, Respondent.
Decision Date15 March 2021
Docket Number05-CV-19-736

Franklin Avenue Holdings, LLC, Petitioner,

County of Benton, Respondent.

No. 05-CV-19-736

Tax Court of Minnesota, Regular Division, Benton County

March 15, 2021

This matter came before the Honorable Jane N. Bowman, Judge of the Minnesota Tax Court, on respondent's motions to compel discovery, request for attorney fees, or in the alternative, motion to dismiss.

Christopher A. Stafford and Thomas R. Wilhelmy, Fredrikson & Byron, P.A., represent petitioner Franklin Avenue Holdings, LLC.

Michelle L. Meyer, Assistant County Attorney, represents respondent Benton County.


This matter concerns the value of real estate for taxes payable in 2019. Benton County moves for an order to compel discovery, seeks attorney fees, or in the alternative, moves for dismissal. Franklin Avenue Holdings, LLC (Franklin Avenue) agrees it owes discovery responses, but otherwise opposes the motions. Based upon all of the files, records and proceedings herein, the court now makes the following:


1. The County's motion to compel discovery is granted.

a. By prior ruling from the bench, Franklin Avenue had until December 31, 2020, to respond to Benton County's First Set of Interrogatories and Requests for the Production of Documents and Things.[1]

b. Benton County had until December 31, 2020, to submit a request for fees and expenses associated with this motion.[2]

c. Franklin Avenue had until January 14, 2021, to submit any response to the County's request for fees and expenses.[3]

2. Benton County's motion for attorney fees associated with bringing its motion to compel is granted. Franklin Avenue shall pay to Benton County its reasonable attorney fees, totaling $1, 500.

3. The County's motion to dismiss for failure to respond to discovery is denied as moot.



Jane N. Bowman, Judge.

I. Background

On September 11, 2020, Benton County served its First Set of Interrogatories and Requests for Production of Documents and Things.[4] With no response, the County followed up by email on October 16, 2020.[5] Still with no response, the County sent Franklin Avenue a letter via U.S. Mail noting its lack of discovery responses.[6] As of November 13, 2020, Benton County had not received any responses or communication from Franklin Avenue concerning the outstanding discovery.[7] With its motions, the County asked this court for an order compelling responses and requested expenses, including attorney fees, or alternatively, dismissal.[8]

In response, Franklin Avenue candidly acknowledged the County is entitled to discovery responses, and stipulated to an order compelling discovery by December 31, 2020.[9] Franklin Avenue, however, opposed the request for fees and expenses, as well as the County's motion to dismiss.[10] Counsel explained Franklin Avenue had recently informed counsel that its email and data manager was the victim of a November 24, 2020 ransomware attack, implying the ransomware attack prevented Franklin Avenue from responding to the County's discovery requests.[11]

In reply, Benton County noted that while a ransomware attack is unfortunate, it should not have prevented responding to discovery that was due approximately one month before the attack, nor should it haven prevented counsel from addressing the outstanding discovery with the County until it filed its December 10, 2020 responsive motion.[12]

At the hearing, this court ordered Franklin Avenue to respond to the County's discovery by December 31, 2020.[13] The court also gave the County until December 31, 2020, to submit an affidavit of fees and expenses, and Franklin Avenue until January 14, 2021, to submit any opposition to the County's expense request.[14]

By the deadline, Benton County filed an expense affidavit attesting to six hours of attorney time spent on the motion, totaling $1, 500.[15] In response, Franklin Avenue did not dispute the time or rate spent on the motions as unreasonable, and presented a copy of its Responses to Respondent's First Set of Interrogatories and Requests for Production of Documents and Things.[16]Franklin Avenue's discovery responses confirmed certain-but not all-data were inaccessible due to a ransomware attack, but did not state when the attack occurred.[17] Franklin Avenue continued to oppose the County's request for fees, arguing the ransomware attack-which was outside of Franklin Avenue's control-justified its failure to respond.[18]

II. Benton County's Motion to Compel and...

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