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DISTRICT COURT

8T ATE OF MlNNESOT A COUNTY OF RAMSEY

SECOND JUDICIAL DISTRICT CASE TYPE: Breach of Contract Court FiJ.cNol:62-CV-09-1 1374 Judge Dale B. Lindman

Robb Terlwkand Gregory Clemente,

Plaintiffs, VB.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT

Metropolitan Council, Minnesota Department of Administration, Transpo'fl Max. and Fleet SurPlus. Defendants.

The above-entitled matter OlllUe on for hearing before the Honorable Dale B. Lindman,

Judge of District Court, on August 12, 2010, at the R.a.msey County Courthouse, upon the motion of Defendants for sumnwy judgment IUld the cross-motion of Plaintiffs to amend the Complaint to allow for punitive darnaie8 under Minn. Stat. ยง 549.20. Richard S. Bskola, Esq. appl:lII'ed on behalf of Plaintiffs. Jan Gunderson, Esq., appeared on behalf of Defenclant Metropolitan Council. Gregory Huwe, Esq. appeared for Defendant Department of Administration. Transport Max and Fleet Surplus. Subsequent to the hearing, the record was kept open for one week to allow for additional submissions upon the motion of Plaintiffs. Based upon all of the tiles, rec'ords and proceedings herein, and upon the argument of counsel, the Court makes its:

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FINDINGS OF FACT 1.

Tros action was originally filed w1d venued in Hennepin COlUlty. That upon a proper motion of Defendants to change venue. the venue was properly moved to Ramsey County.

n. Defendant Department of Administration, and its Division Fleet SUIJllus. are subject to the Minnesota Data Practices Act, Minn. Stat. ยง 13.01, et. seq.

III.

That Defendant Metropolitan Council, a polidcal subdivision of the State of Minnesota, is subject to the Minnesota Data Practices Act (MGDPA), Minn. Stat. ยง 13.01, et. seq.

rv. Plaintiffs Gregory Clemente and Rob Terhark are residents of the Slate of Minnesota and have made a considerable number of data requests under the Minnesota Data Practices Act (MODPA), Minn. Stat. ยง 13.01, ct. seq.

V. The considerable number of requests made by Plaintiffs to Defendants involve goverrunental data either gathered. colle:cted, received, maintained or disseminated by the

Defendants in this matter within the melaning of Minn. Stat. ยง 13.02, Subd. 7. VI. That during the time period, rehwant to Plaintiffs' complaint, the Plaintiffs operated as small businessmen who dealt in surplus property obtained from government agencies such as Defendants Minnesota Department of Administration and the Metropolitan Council. Surplus ".,1.

merchandise included used vehicles, buses/flectronic scrap ("e-scrap"). Plaintiffs would

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purchase said merchandise from Defendants and seek to resen said merchandise at Ii profit. Plaintiffs had no formal relationship but worked together and participated in these business activities.

vn. In order to operate their business, Plaintiffs made frequent and numerous requests for data to both Defendant Department of Administration .and Defendant Metropolitan Council as vendors of government property. Said fE!quests were straight-forward and direct. Although the number of data requests under the MOD PA by Plaintiffs to both Defendants were numerous, they were not confusing. not onerous and sometimes magnified lIB the product of failures on the partl of Defendant agencies to furnish adequate responses in the first instance, thus requiring repeated exchanges with Defendant agencies' employees.

VIII. From 2005 to 2009, Plaintiffs made data requests for public information to defendant agencies. Said requests were for infomtation related to c-scrap contracts, along with data pertaining to government auctions, accclunting and renovation of the State warehouse~ involved with Defendant Department of AdInini~ltration's Department of Surplus Services, in addition to making various requests of information from Defendant Metropolitan Council.

Requests for auction data

IX

SO'" "'''''

In May of2005, Defendant Clemente contacted Oloria_. an employee of the Department of Administration, seeking. information on the e-scrap contract so that he could

.. M 5"",,,,(.;,1' partlclpate. s. _ Y _ '_ _ refused tl, give him that infunnation and asked him about his identity and the reason for wanting infonnation. Ms. J~"

. ." . . .s actions were intentional,

willful and intended to obstruct Plaintiffs from property obtaining infonnation available to them so that "they" could formulate a bid for the contract bid and market directly to contract users.

PIfPI-Ir"

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under the MGDPA The scenario was fe.peated in 2007 as Plaintiff Rob Terhark also requested the same information from Ms. gII"-

,

who again responded by asking the same questions:

. and w hy do you want till s 1.ll0rmation. -" ." "Who are you, what is your identIty c~~l .... ,

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6+-- / .... 1'.,(01),.<1, as per Jim Schwartz

x.

The information requested by Pillintiffs both in 2005 and 2007 were not provided by

To date,

Defendant Department of Administration employees. Xl.

Ukewise, with Defendant Metro>politan Council, from 2008 to 2010, Plaintiff Clemente requested data information showing notices of auctions disseminated and notices of banned winning bidder notification including his own. Met provided only one copy of a notification (Not Greg's) then ignored all requests for additional of the exact same data

bidders and said governmental data was: not provided by Defendant Metropolitan Council. In

Administrations response to the same request was

response to Plaintiff Clemente's reques1t fot this information, he was told in July. 2009, that all

such notices had been deleted from the "sent system even though Defendant Minnesota Department of folder"

two notification copies.

Administration was able to provide hiltt with copies of notices that were sent to him. XlI.

Plaintiffs' responses to Defendllillts discovery included additional ex:.amples where their attempts to obtain public data were: thwarted in violation of the Minnesota Data Practices Act. 1:'", 2lH'.. , pl.t,..f.<o;.c\..-,--, 1,\ I. Y, Jt:" ..l f~~l ~"",~ c,...tl"(. """""":I ~~.,f,.~.s .r Io,t.. dt,.,c;..ki,

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Other than simJ?le denials. Defe:ndants offer nothing in terms of admissible evidence that conclusively rebuts Plaintiffs' claims and Plaintiffs detailed descriptions of ntunerous instances ~ .. v ... ""- 01' ..... f<o.ll\,/'" O!."~

in which the MODPA has not been followed. A fllCittftll diiSplJte as to whether or not the MODPA \ovjf

~l"

II followed Oft eehaH:'l'lfboth Defendants 1Mifts.

XIV. Defendant Department of Administration provides a. "chart" which allegedly records


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requests from Plaintiffs, along with the agency's responses. However, Defendant Departtnent of Administration itself qualifies the credibility of the chart by describing as including only "each request that can be identified as such by the MDA." It later states in its own Memorandwn that "as far as it can be determined" the variolus requests and resolutions "are shown on the chart." fhtl

.

Defendant Department of Administratio]~ II8l'I $& that any request received prior to May 1,2008 can not be identified "except to the extent that the request is referred to in an email or other ." It is lUldisputed that Plaintiffs made many requests for access to public

government data prior to that time.

and that Plaintiffs stated clearly the possibility of a lawsuit if Schwartz did not comply and seek legal advise from the Attorney Generals office. Since there was a possibility of legal action the six year requirements for retention was in place. Additionally, all contract related questions are also to be maintained for six years.

xv.

Defendant Department of Administration acknowledges and admits that its employee asked Plaintiff Terhark for bis identity lind refused his request, in violation of the Minnesota Data Practices Act. It a4mits that its own data practices compliance official, Jim Schw8.l'tZ, testified at his deposition that the data practices act had been violated. 'l-

quo.路.....

XVI.

There are also exists. 8iliral issue of material faot as to damages suffered by Plaintiffs as iii result of Defendants' actions.

XVII. Plaintiff Clemente provided sworn testimony in his deposition that his business profits dropped significantly during 2008 and .t009 after Defendants frustrated the operation of his or the bidding vunue

business through actions such as failure to provide access to public information about matters

relating to the disposition of surplus property. the acquisition and resale ofwhlch was a major component of the business, Specifi.cally, Plaintiff Clemente testified that his profits were $20,000,00 to $30,000.00 for said activities from 2002 to 2005, and were $50,000,00 to

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$90,000.00 from 2006 to 200J, '1..1 S''1路~t~ \L(r .... XVIII. The obstructions originating in 2005

The delays caused in 2005 and 2007, when the Department of Administration intentionally demanded Plaintiff's identilties and their reasons for their requests prevented tabulation of all bidding participants

Plaintiffs from obtaining important infOltmation such as bids submitted by successful and UllSucc!.:ssful competitors with respect to the e-scrap contracts, and contact information for the Since Plaintiffs could not formulate any by they have been deprived of the

government agencies participating in tru, MDA e-scrap contract. Plaintiffs could not submit their own bids on new contracts, thereby depliving them the business opportunity available to all c.~~

..

others, resulting in a significant loss of))tofits, which Plaintiff Clemente testified under oath would have been at least SSO,OOO.OO per y!.:ar if the contract had been secured. PlaintiffTerhark credibly testified that he was deprived of the opportunity to join Plaintiff Clemente full time and share in a portion of the business profits. and especially the current contract holder who is the only entity that has all the information **NOT SURE ABOUT THIS**

XIX.

Prior to July 25, 2007, Plaintiffs had sent requests to Defendant Department of Administration regarding information about the disposal of electronic scrap materials. After o,,1>y ~ ri<["'Ji"1

numerOUS requests of Jim Schwartz, Pla.intiffs finally indicated that they fIIIq,nested documents that had not yet been electronically tranumitted during the bid process. Mr. Schwartz then

"shotgunned" Plaintiffs 4,100 pages in lin intentional and obvious attempt to frustrate the efforts of Plaintiff to obtain information they were entitled to under the MODPA. Mr. Schwartz never notified Plaintiffs that the documents wlt!re available for pick up.

xx. In 2009, Plaintiffs reviewed requested data documents at the office of Jim Schwartz of After an agreed price for the information Mr. Schwartz took the Department of Administration. the Mr.information Schwartz the documents histo desk after thi~ to histook desk before giving the docsto back us.


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review and upon return of the docmnent:~ to Plaintiffs, purpos"ly left out docmnents that the Pla.intiffs had requested. Upon reaching home, Plaintiffs realized that the documents had been After more than four visits and one mailing

removed. It took nmnerous requests and! visits to Mr. Schwartz' office subsequent to this

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incident for the Plaintiffs to obtain .... they were looking for. Mr. Schwartz eventually mailed some, but not all, of the docmnents to Plaintiffs. The intentional acts of Mr. Schwartz in were provided

removing the documents was willful and intended to frustrate Plaintiffs in their attempts to obtain data infonnation they were entitled to under MDGP A.

XXI. On May 19, 2009, Plaintiff Clemente purchased two vehicles at auction from Defendant Department of Administration/Surplus Services. Neither vehicle was functional and no titles were included, in "'io!ation of Defendant Department of Administration's policy. Plaintiff titles Clemente continually requested copies of docmnents involved in the process of obtaining title

work and Defendant Department of Administration employee, Holly Gustner, refused to provide said documents.

XXII. Plaintiff Clemente contacted Alex Curtis\' a data. contact supervisor at Metropolitan COlUlcil, so he could submit a data requl:st to Metropolitan Council regarding the documents that Ms. Oustnerrefused to provide. Mr. Curti~ did not respond and ignored the requests of Plaintiff Clemente regarding these data requests under the MDOPA. This was an intentional act designed to frustrate and prevent Plaintiffs from o,btaining information they were entitled to under the MOOPA.

xxm. It is the policy of Defendant Department of Administration/Surplus Services, to aid in the

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replacement of missing titles or other typ'es of ownership documents not provided at the time of sale. In 2009 Plaintiff !laid two buses purchased from a live auction at Fleet Services to two of Upon Clemente's request

his customers. The necessary title documents were not provided by Defendant Department of To resolve the matter,

AdministrationIFleet Services. Plaintiff Clemente requested assistance from an employee of the eo"/'- ." tlo. DVS request of Tim Soby document to resolve Columbia H=ights Department of Motor Vehicles. the The rltquest titling issues was made to Tim Sob)! of Requests from Clements and DVS

Defendant Department of Administration to acquire these documents. Mr. Soby ignored these

requests. This was an intentional act int;mded to frustrate and prevent Plaintiffs from obtaining governmental data they were entitled to l~der the MDOP A. XXIV.

On July 1, 2008, there was an au>Ction at Surplus Services. Plaintiffs requested information on this auction by Tim Soby of Defendant Department of Administration. Mr. Soby Provided incorrect information

refused to respond to this request and Pliaintiffs were unable to bid at the auction. This was an intentional act intended to frustrate and l~revent Plaintiffs from obtaining governmental data they were entitled to under the MOGPA. After the auction, employee Holly Gustner of Defendant c."'-~

Department of Administration reported 1~ Plaintiff Clemente that the server verified that t was notification of sale

sent an email verification successfully pdor to the sale. Plaintiff Clemente requested from Jim Gustner referred to regarding the of sale. Schwartz of Defendant Department of Administration the server data notification and proof of said email

notification. Mr. Schwartz responded to more than five data requests and stated they did not exist. Ms. Ousmer's systems could not verify transmission of an email notification because the notification was never sent. Plaintiff Clemente received a response from Defendant Department of Administration/Surplus Services emp,loyee Shawn Debaun that "it did not matter that I could not bid because I couldn't afford the vehicles anyway. This actions show a pattern of intentional

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acts intended to prevent Plaintiffs from lexercising lis right to bid at IIll open auction and to And at the same time told Lindsey from pogi that the data existed.


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obtain governmental data available to Plaintiffs under the MDGPA.

xxv. \4e,1, ..~ On February 11,2009, Plaintiff Clemente al'tllled Holly Oustner orChing special

treatment to Greg Davis, an employee of the Univenity of Minnesota. Plaintiff Clemente requested data M8.~elephone data from Jim Schwartz of Defendant Department of Administration. Plaintiff Clemente also requested actual phone records of the governmental phone systems of Ms. Gustner. Mr. Schwartz indicated that OET maintains said data and Clemente

advised that I should make the request to OET directly. That said request was made directly to

oET and they referred Plaintiff Clemente back to Me. Schwartz.

The data was not provided.

Eventually it was verbally communicated to Plaintiff Clemente by Mr. Schwartz that Ms. Oustner had changed her mind and acknowledged having interaction with Mr. Davis. This scenario caused a six month delay. The actions of Mr. Schwartz and Ms. Gustner were intentional and were designed to frustrate Plaintiffs and their attempts to obtain governmental Which is the duration phone data is maintained before it is destroyed.

data available to them under the MDGPA.

XXVI. As an example of the attitudes of Defendanta towards Plaintiffs, Plaintiff Clemente was at a live auction to which he was invited by Defendant Department of Administration, and while 2

there he was told he could not bid. Holly Gustner approached him and told him he was not in 4.

1. Holly approached Greg and Greg thanked her for allowing him to bid as Greg had requested. 2. 3. That same month Jim expalined to Greg that only people in good standing get auction notifications so Greg questioned Holly why she sent him a notice. 4.

good standing. In responding to why hie could not bid, Ms. Oustner advised him ''you asked for it, you're going to get it." And could not bid

XXVII.

Jim Schwartz of Defendant Deplartmcnt of Administration has repeatedly denied Plaintiffs repeated requests for copies of auction notifications and notices of banned bidden. His verification and..


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'1. 'i \vVt.1" . . th M~t;l.ion is that Defendant Department c)f Administration/Surplus Services does not ma.lQtalQ e documents. As a contradiction, Holly G\llitner stated. that the data did exist and brought it up on

data

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,

her computer screen on ont: occasion.路 A worker at Senator Larry Pogem,eller's office was advised by Mr. Schwartz that the data did exiiit. These actions by Mr. Schwartz again show an intentional pattern of behavior desi2lled to frustrate and prevent Plaintiffs from obtaining governmental data available to them under the MDGPA.

XXVIII. As another example of how Plaintiffs have been treated as compared to other members of the public, in the Fall of 2009, Plaintiffs Terhark and Clemente, along with two other persons,

attended a live auction at Defendant Surplus Services. An employee of Defendant Department of Administration saw Plaintiffs and apPl'OaChed the table IWd monitored the interaction with the registration person,nel. Plaintiffs Terhllrk and third person, Dave Spano, were both told that a social security number was required to bid because they were paying by check. Another bidder, Pete Hedman, approached the table without Plaintiffs present, designated he was paying by Pete Hedman received a bid card without providing HIS SSN.

check, and was provided a bidder card without providing a social security number. These actions again demonstrate a pattern where Defendants have purposely Singled out Plaintiffs and treated them differently so as to intentionally interfere with and frustrate them and their rights to obtain governmental information and data under the MDGPA.

XXIX. On February 24, 2009, an aide from Senator Larry Pogemfieller's office made a request on Plaintiffs' behalf for the policy relating to reinstatement of banned bidders from Defendant Department of Administration. It was reported to Plaintiff by said aide that no reinstatement policy existed after her consultation with Jim Schwartz. Duringtbe deposition of HoUy Gustner,


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employee of Defendant Department of Administration, she went into great deal about the unwritten reinstatement policy that had been in existence since before she was an employee, and and when Greg was ejected.

therefore, such infOITilation contradicted the written banned policy.

xxx. On January 15, 2009, Chris Gran of Defendant Metropolitan Council faxed Plaintiffs the network data he had received from Trannport Max on the same day regarding information showing that II, server was down during a December 10, 2008 auction. The data showed that the server WaB down for more than twice the amount of time that Defendant Metropolitan Council had maintained. Chris Gran stated in answering Defendant Metropolitan Council interrogatories that the server data has not ever been in the poS5ellsion of Defendant Metropolitan Council. This contradiction shows willful indifference and intentional acts designed to keep governmental data from Plaintiffs and from bidding on itet1lls at an auction, giving Plaintiffs' competitors an NOTE THAT I THINK ITS IMPORTANT TO WEAVE INTO THIS THAT THEY EVENTUALLY OFFERED THE BUS AND I ACCEPTED THEN THEY UNOFFERED. OFFER-ACCEPTANCE-UNOFFER=BROKEN CONTRACT.. CORRECT?

advantage on said bidding.

XXXI.

Defendant Transport Max is an independent company which handles auctions for Defe~t

Metropolitan Council. At an auction held on December 10, a server problem existed. It.Il.

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Plaintiff Clemente withdrew all bids pl:ior to acceptance and later made a request for winning to verify no bids had been awarded

bidder notifications. Said data requl:!lt was ignored by both Defendants Metropolitan Council and Transport Max. This is an intentional act designed to prevent Plaintiffs !tom 0 btaining information they are entitled to under the MGDPA. XXXlt.

And also an intention act to provide reason for exclusion from future auctions because the un-awarded bus that Clemente agreed to purchase was never awarded then used as a justification for banning him.

XXXII necessary? Defendant Metropolitan Council IS conducts live and on-line auctions to dispose of various

municipal vehicles from its fleet.


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XXXlll. Defendant Metropolitan Council C,ontra.cted with Defendant Transport Max. to conduct on-line vehicle auctions, one ofwhlch Wf~S held on December 10,2008. Said auction was scheduled to conclude at noon on said date. At approximately 11 :10 a.m. on said datcl, the server

outail.C occurred. Plaintiff Clemente testIfied that said outage lasted a.pproximately 35-45 m.inutes and the computers were operable with only ten minutes left of the auction. Plaintiff Clemente was not able to properly submit bids for the vehicles due to the server outage, as he was usinlol several computer and multiple screens to submit multiple bids for multiple vehicles. ,." ...... +0 ... 1.. l."

Due to the outage Plaintiff Clemente WIlli unable to reboot all of his screens. This caused

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Plaintiff Clemente to lose the opportunity to bid on certain vehicles. Upon conclusion of the also

auction, Plaintiff Clemente requested t1IAt the auction be negated so he could have a fair and proper opportunity to bid. Defendants Metropolitan Council and Transport Max refused to Prior to conclusion of the auction Clemente believed based on policy and practice that the bids would be canceled and the auction rebid.

neflate the auction and accepted the bids. that were 75% lower than prior or subsequent bids.

XXXIV. When said server outages occurred in the past, the auctions were negated by Defendants "l. ... t

9~1..~

Metropolitan Council and Transport t-Jlax. It is clear that the policy ~ pUllaence established by snid Defendants was that all such auctions would be negated and reheld. This policy was verified by PlaintiffClementcl through confirml~tion from Senator Pogl.lm;eller's office. "I.-l, 'T~ ilol" lI.. .. ~~, ~ ~ll..,.. N,..,...... (M-\V,,> ~l u-I.I.I .... ~ . (

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Platntiff Clemente has also belen refused the right to bid on auctions held by Defendants Metropolitan Council and Transport Max. Plaintiff Clemente has been wrongfully excluded from said auctions. He did not oI.NIiy Violate auction tc:lrtns. Defendants Metropolitan Council and Transport

Max have ignored Plaintiffs' requests to participate in said auctions since February


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of2009. Plaintiff Clemente was not ootified until July 25,2010, that he had violated auction

terms, XXXVI. Once Defendant Metropolitan Council undertakes its choice to utilize public auctions to t" . <., â&#x20AC;˘. ,,\~ dispose of surplus vehicles, it must do i~ even and fir way so as to allow all members of the public equal opportunity to bid, This has not occurred with the Defendants' treatment of Met since 2009 and Greg

Plaintiffs. Plaintiff's have been rei'wied the opportunity to bid by Defendant Department of

Administration since February of 2009. Plaintiffs were wrongfully excluded from said auctions II,. l?a.. t and have been misled as to the reinstatement policy.

Add?? Clemente has not been allowed to bid with met or admin.

XXXVII, Defendant Department of Administration, through its employees, has misled Plaintiffs as to auction times and has been prevented Plaintiffs from properly bidding in auctions. Plaintiffs have been singled out and treated differently than other members of the public. Plaintiff

Clemente was sold a vehicle with a bad engine in violation of Defendant Department of Administration's written policy against same. but was not allowed to take advantage of the unwritten policy to exchange vehicles Ithat were inoperable in spite of the fact that Defendant

Department of Administration had allowed others to make such exchanges in the recent :past. XXXVIII. In January of 2009, Plaintiff Clemente was denied the right to bid on VCRs as he was misled by employees of Defendant Department of Administration as to how said items would be disposed of and was deprived the right to purchase said VCRs. fl-..M. CL-'t.t \...y 1"',. . e,jI... -Io.t -t-f\< I-'\.~ (,.."(,, rr/L-I- foo fll V(II , ....1.,,<., XXXIX

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With respect to said auctions, Defendant Department of Administration did not follow its we have this above?

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own policies to sell vehicles with propel' titles.

XLIX. I'll(

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Plaintiff Clemente also presented evidence as to his damages. Based on his experience, he should have been able to bid on at least 20 buses on the December 10, 2008 auction, and in ,,1.14· (t..... Lt~ o.f "" h·1 IM'b .k ... -!ic. f'\",~. J..-.. I the: past hW!l averaged a profit of at least $2,500.00 per bus. Plaintiff Clemente also presented tI ~M fA ...... l.!rr "'I

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credible evidence based on past history ;and experience ~ damagesfor not being allowed to bid at other auctions.

L. Prior to, and in accordance with their plan to bid on e-scrap contracts, Plaintiffs had engaged in and developed a business pllm which involved utilizing the e-scrap contract for a ~ rl.,.., ,~,\wl.4 ~'l"<"" .... ,1. 1- ~ l p,.!...., ",-,I, '\ ~ .,.. ........ .-.. t ... _ ,., ~ <f·rt.... business enterprise. Furthermore, there has been no history or e.ffort of any auditing on behalf of

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Defendant Department of Administratic1n to monitor its bidding criteria. Plaintiffs hav!: presented credible evidence to outline their business plan and to establish what damages they would be entitled to based on the refusal of Defendants to provide them with the necessary information under the MDGPA regarding said e-scrap conuact.

LI. Of particular importance is the failure of Defendant Department of Administration to provide the bid tabulation history to Plaintiffs, which is a direct violation of the MDOPA. Failure of Defendants to provide said bid tabulations is crucial to Plaintiffs' business plan and said violation establishes liability on thl! part of Defendant Department of Administration.

LII. The actions of Defendants in delltying Plaintiffs access to auctions is ministerial in nature. Defendants Metropolitan Council and Department of Administration have established numerous (J ~''''I (

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DO YOU WANT TO ADD THE FACT THAT SOME OF THE MISTRIAL TASKS THAT THEY MANUALLY MODIFIED IN HIER COMPUTER SOFTWARE WERE ACTS SO MINISTRIAL THAT AN UNATTENDED COMPUTER COULD PERFORM THE TASK THAT THEY CHOSE TO CHANGE.. AUCTION NOTIFCIATIONS, PAYMENT DURATIONS (DEC 2008 SALE ADMIN) TO SCREW US. ~I...... U.t...~

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policies by t8ir bo~tten and unwritten past actions. The ~ence involving auctions was that if a Server went down. the auction would be canceled. It is a ministerial function to follow The policy is to provide titles, the policy is to assist in replacement of missing docs, the policy in to exchange vehciles, the policy in not to sell in disrepair, ect.

that policy and procedure. Defendants JDepartment of Administration and Metropolitan Council, by failing to follow their own policies and procedures, are Met and Admin Metropolitan

no~ ..£t~~~Onary actions.

Defendant

Council cannot be said to be utilizing discretionary function when it violated its ,replace titles, exchange vehicles, ect

past precedent and policy by failing to negate the December 10, 2008 auction. It based its Thier decisions regarding auctions and reactions to decision on incorrect information which Plantiffs requests that were the cause of the policy modufications

. " . , I, Qqft'l''-'.

makes its actions more alll.?8 i !tlS,

COls:gLUSIONS OF LAW

1,

~nuine

2,

Genuine issues of material fact

3.

Genuine issues of material fact i,exist with respect to Count III of Plaintiffs' Complaint. Itl \..". I'l....i<{'1't ew· "" f I\tI ,L, '-\I '-'piN> ....". rt (..~ r,~ 100:. q I'>tolc-I. With respect to all counts ofPlslintiifs' Complaint, genuine issues exist with respect to

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issues of material fact '~xist with respect to Count I of Plaintiffs' Complaint. '~xist

with respect to Count II of Plaintiffs' Complaint.

other damages that have been suffered ~ Plaintiffs and what are the amount of said

damages.

~.

Defendants are not entitled to statutory or common law immunity with respect to Counts

I, II and III of Plaintiffs' Compi:aint.

--po

Defendants are not entitled to statutory immunity under the Minnesota Data. Practices Act, Minn. Stat. §13 .08, Subd. :l. -1:A " ... ,1......,

The Plaintiffs have established J~rima facie evidence that Defendants' actions were intentional and show deliberate disregard for the rigbts and safety of Plaintiffs, and therefore Plaintiffs are hereby granted to leave to amend their Complaint to allow for punitive damages against Defendants under Minn. Stat. § 549.20 and 549.191,


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QRDER

IT IS HEREBY ORDERED that 1.

Defendants' motion for summary judgment is hereby DENIED.

2.

Plaintiffs are granted leave to amend their Complaint to allow for punitive damages against Defendants under Mitro. Stat. ยง 549.20 and 549.191.

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