Fiorito v. United States

Background

Michael Fiorito filed four motions. He asked the court to hold the case in abeyance, or pause it, for 30 days because he had returned to federal custody. He also filed two requests for judicial notice of case law concerning whether he could proceed without paying court fees. The case had been removed from state court, and Fiorito had not applied for that status in this case.

The case had been dismissed in July 2023 because Fiorito had not obtained an expert affidavit required by Minnesota Statute § 145.682. Fiorito appealed. At the United States’ request, the Eighth Circuit sent the case back to the district court to consider whether a recent Minnesota Supreme Court decision affected the continued use of that requirement in federal court.

Motion to strike the defense

The United States had not invoked § 145.682 again as a basis for dismissal after the case returned, but it preserved noncompliance with that statute as an affirmative defense in its answer. Fiorito asked the court to declare that Minnesota’s certificate-of-merit requirement did not apply. The court treated that request as a motion under Federal Rule of Civil Procedure 12(f) to strike the affirmative defense.

The court explained that a Rule 12(f) motion to strike should be granted only when no legal or factual questions exist and the defense could not succeed under any circumstances. The court also noted that such motions are generally disfavored.

The court held that whether § 145.682 must be applied in federal court is a question of federal law, not Minnesota law. Therefore, the Minnesota Supreme Court’s description of the requirement as “purely procedural” did not control the federal-court analysis. The court cited Eighth Circuit decisions that treated the requirement, or an analogous requirement, as substantive for deciding whether federal courts must apply it.

Because the United States had only pleaded the defense and had not yet invoked it after remand, the court’s task was not to predict whether the defense would ultimately succeed. The question was whether it was certain that the defense could not succeed. The court concluded that it could not make that determination and denied Fiorito’s motion to strike.

Other motions and disposition

The court denied Fiorito’s motion for a stay because he had not adequately explained why a stay was necessary, no deadlines were imminent, and the court found no reason to think he would be prejudiced without one. It denied both judicial-notice motions because the cited arguments and cases were not relevant to the lawsuit’s current procedural posture.

The court therefore ordered that the motion to strike, the motion for a stay, and both motions to take judicial notice were all DENIED. The court also reminded Fiorito about the local meet-and-confer requirement and warned that violating it could support denial of a future motion.