Ferris & Salter, P.C. v. Thomson Reuters Corporation

Filing 12

REPLY MEMORANDUM IN SUPPORT OF 4 DEFENDANT'S MOTION TO DISMISS AND TO ENLARGE ANSWER PERIOD filed by Thomson Reuters Corporation. (Attachments: # 1 LR7.1 Word Count Compliance Certificate). (Koller, Peter) Modified text on 4/18/2012 (MMP).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Ferris & Salter, P.C.,
FILE NO. 0:12-cv-00109-JRT-SER
Plaintiff,
v.

REPLY MEMORANDUM IN
SUPPORT OF DEFENDANT’S
MOTION TO DISMISS AND TO
ENLARGE ANSWER PERIOD1

Thomson Reuters Corporation,
d/b/a West Publishing Corporation,
d/b/a FindLaw,
Defendant.

INTRODUCTION
Plaintiff is trying to turn what should be a breach of contract action into a tort
action by asserting a purported “professional negligence” claim against Defendant. In
dismissing the lawsuit that Plaintiff initially filed against Defendant in Michigan, Judge
Julian Abele Cook, Jr., of the United States District Court for the Eastern District of
Michigan expressly held as follows:
[T]he Court concludes that – under Minnesota or Michigan
law – no professional negligence action will lie against
computer engineers and technicians.
Accordingly, the
Plaintiff’s complaint will be construed as if it had been plead
in contract.
See Ferris & Salter, P.C., v. Thomson Reuters Corp., No. 2:11-cv-12448, slip op. at 5-6

1

Because Plaintiff has indicated that it does not oppose Defendant’s motion to enlarge
the time period for serving an answer until ten days after the Court rules on Defendant’s
motion to dismiss Count I of the Complaint (see Doc. #10), this reply memorandum will
only address the motion to dismiss Count I.
1

(E.D. Mich. Oct. 19, 2011) (copy filed in the present action as Dkt. #7.1) (footnote
omitted). For the reasons set forth in Defendant’s initial memorandum (Dkt. #6) and in
this reply memorandum, this Court should likewise reject Plaintiff’s purported
“professional negligence” claim, leaving Plaintiff to pursue only a breach of contract
claim.
ARGUMENT
A.

Issue Preclusion Bars Plaintiff’s Professional Negligence Count.
Plaintiff agrees that the question of issue preclusion is governed by the five issue

preclusion factors from Robinette v. Jones, 476 F.3d 585, 589 (8th Cir. 2007) that are
listed on page 7 of Defendant’s initial memorandum. See Pltf’s Opp. Mem. (Dkt. #11)
p. 7. Contrary to Plaintiff’s assertions, however, proper application of those factors leads
to the conclusion that Plaintiff cannot properly relitigate Judge Cook’s ruling that
Plaintiff may not pursue a professional negligence action against Defendant.
Plaintiff concedes, as it must, that the first issue preclusion factor is satisfied
because Plaintiff was a party to the action before Judge Cook.
The second and third issue preclusion factors are satisfied because the issue that
Defendant seeks to preclude is the legal viability of Plaintiff’s purported professional
negligence claim, which was plainly litigated before Judge Cook. Indeed, Plaintiff itself
raised that issue before Judge Cook by arguing that the lawsuit Plaintiff commenced in
Michigan was not subject to the forum selection clauses of the parties’ contracts because
Plaintiff was making a professional negligence claim rather than a breach of contract
claim. Dkt. #9-2, pp. 3 and 6. Moreover, Judge Cook expressly ruled on the issue,
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stating unequivocally that “under Minnesota or Michigan law – no professional
negligence action will lie against computer engineers and technicians,” before going on
to construe Plaintiff’s complaint “as if it had been plead in contract.” Dkt. #7.1 at 5-6.2
As for the fourth issue preclusion factor, under the “relaxed” finality requirement
applied by the Eighth Circuit, the fact that Judge Cook dismissed the Michigan action
“without prejudice” does not prevent this Court from giving preclusive effect to Judge
Cook’s legal conclusion that Plaintiff cannot properly pursue a professional negligence
action against Defendant.

See Robinette, 476 F.3d at 589-90 (discussing “relaxed”

standard of finality and enforcing issue preclusion following a dismissal without
prejudice). After expressly concluding that Plaintiff’s lawsuit should be treated “as if it
had been plead in contract” (Dkt. #7.1, p. 6), Judge Cook had no choice but to dismiss the
Michigan action without prejudice, since a dismissal with prejudice would have had the
res judicata effect of precluding a breach of contract claim by Plaintiff. Far from
authorizing Plaintiff to bring a professional negligence lawsuit in Minnesota, Judge Cook
was merely preserving Plaintiff’s ability to bring a breach of contract lawsuit in
Minnesota. Accordingly, there is no reason to treat Judge Cook’s decision as anything

2

The fact that Judge Cook went on to say (in a footnote) that “even if a tort action would
lie, that action – based upon the allegedly severed link to the Plaintiff’s e-mail accounts –
would still ‘aris[e] out of’ the contracts, thus falling within the broad language of the
forum selection clauses,” does not mean that he did not actually decide that Plaintiff
could not bring a professional negligence claim under Minnesota or Michigan law.
Dkt. #7.1, p. 6 n.3. Judge Cook was simply identifying an additional basis for his ruling.
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less than a final decision on the viability of a professional negligence claim against
Defendant under either Minnesota or Michigan law.
Finally, Judge Cook’s ruling regarding the viability of Plaintiff’s purported
professional negligence claim was essential to Judge Cook’s decision to dismiss the
Michigan lawsuit. Having concluded that Plaintiff could not present a viable professional
negligence claim under either Minnesota or Michigan law, Judge Cook rejected
Plaintiff’s primary argument against Defendant’s motion to dismiss or transfer, i.e., that
Plaintiff was making a tort claim that was not subject to the forum selection provisions in
the parties’ contracts. In that regard, Judge Cook expressly stated that he would construe
Plaintiff’s complaint “as if it had been plead in contract.” Dkt. #7.1, p. 6. He then went
on to dismiss the complaint on the basis of the forum selection clauses contained in the
parties’ contracts. Id. at 9.
B.

The “Law of the Case” Doctrine Bars Plaintiff’s Professional Negligence
Count.
As explained in Defendant’s Initial Memorandum, the “law of the case” is a

“discretionary” doctrine that rests upon the principle that “when a court decides upon a
rule of law, that decision should continue to govern the same issues in subsequent stages
in the same case.” Arizona v. California, 460 U.S. 605, 618 (1983). In the context of a
decision that is based upon a matter of law, like Judge Cook’s determination that “no
professional negligence action will lie against computer engineers and technicians,” the
decision should only be reconsidered if “it is clearly erroneous and works manifest
injustice.” Little Earth of the United Tribes, Inc. v. U.S. Dept. of Hous. & Urban Dev.,

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807 F.2d 1433, 1440 (8th Cir. 1986) (citing United States v. Unger, 700 F.2d 445, 450
n.10 (8th Cir.), cert. denied, 464 U.S. 934 (1983)). Because Plaintiff cannot establish that
Judge Cook’s legal conclusion regarding Plaintiff’s purported professional negligence
claim was “clearly erroneous and works manifest in justice,” this Court should apply the
“law of the case” doctrine to bar Plaintiff from seeking reconsideration of Judge Cook’s
ruling.
It does not matter that Judge Cook did not cite any Minnesota tort law in support
of his decision. Judge Cook wisely rejected the inapposite Minnesota decisions that
Plaintiff continues to cite to this Court.

Then, in the absence of any controlling

Minnesota decision, Judge Cook relied on cases from several other jurisdictions to assess
whether a Minnesota court would permit a professional negligence claim arising out of
computer-related services.
It is not as if Judge Cook failed to consider Minnesota law. Rather, Judge Cook
looked to Minnesota law for support for Plaintiff’s professional negligence theory and,
finding none, properly concluded that no such support exists. Furthermore, Plaintiff had
the obligation and the opportunity to submit legal authority for Judge Cook to consider,
but failed to come up with any persuasive authority for the proposition that the courts of

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Minnesota would recognize a professional negligence claim based upon computer-related
services.3
C.

Judge Cook Correctly Held that Plaintiff May Not Pursue a Professional
Negligence Action Against Defendant.
Notwithstanding Plaintiff’s vigorous protests to the contrary, there is substantial

support for Judge Cook’s conclusion that Minnesota would not authorize a professional
negligence claim against a provider of computer-related services like the website design
and hosting services that Defendant provided to Plaintiff. While no Minnesota court has
ruled on the issue, there is no reason to believe that Minnesota courts would not adopt the
virtually undisputed majority rule that computer consultants and service providers may
not properly be sued for professional negligence.

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Plaintiff wrongly contends that Judge Cook’s clear statement that Minnesota law does
not permit a professional negligence action against a computer engineer or technician is
not the “law of the case” because, according to Plaintiff, Judge Cook “specifically ruled
that Minnesota tort law did not apply to his decision.” Dkt. #11, p. 10. Plaintiff has
mischaracterized Judge Cook’s decision. Judge Cook actually held that a purported
statement of Minnesota law from the Piper Jaffray case on which Plaintiff relied before
Judge Cook and on which Plaintiff still relies in opposition to the present motion was
“inapplicable to this controversy.” Dkt. #7.1, pp. 3-4. Only after first reaching that
conclusion did Judge Cook go on to further question Plaintiff’s reliance on Piper Jaffray,
noting that Minnesota law would have no application if, as Plaintiff argued, “this
controversy were a tort action that is wholly independent of the parties’ contracts.” Id. at
4-5. The fact that Judge Cook pointed out that, from a choice of law perspective,
Plaintiff’s reliance on Piper Jaffray was inconsistent with Plaintiff’s argument that its
claims against Defendant were independent of the parties’ contracts does not mean that
Judge Cook failed to consider Minnesota law at all. On the contrary, Judge Cook’s
statements show that he duly considered Plaintiff’s inconsistent and unsupported
arguments regarding Minnesota law and rejected all of them.
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1.

Judge Cook’s Rejection of Plaintiff’s Purported Professional Negligence
Claim Has Ample Legal Support.

There is substantial legal support for refusing to permit professional negligence
claims arising out of computer-related services. See, e.g., Racine County v. Oracular
Milwaukee, Inc., 767 N.W.2d 280, 286 (Wis. Ct. App. 2009), aff’d on other grounds, 781
N.W.2d 88 (Wis. 2010); Donald Dean & Sons, Inc. v. Xonitek Sys. Corp., 656 F.Supp.2d
314, 324 n.21 (N.D.N.Y. 2009); Rapidigm, Inc. v. ATM Mgmt. Servs., Inc., No. GD0217261, 2003 WL 23146480 (Pa. Com. Pl. July 10, 2003); Atkins Nutritionals, Inc. v.
Ernst & Young LLP, 754 N.Y.S.2d 320, 322 (N.Y. App. Div. 2003); Richard A.
Rosenblatt & Co. v. Davidge Data Sys. Corp., 743 N.Y.S.2d 471, 472 (N.Y. App. Div.
2002); Heidtman Steel Prods., Inc. v. Compuware Corp., No. 3:97CV7389, 2000 WL
621144, at *14 (N.D. Ohio Feb. 15, 2000) (applying Michigan law); UOP v. Andersen
Consulting, 1997 WL 219820, *5-6 (Conn. Super. Ct. 1997) (applying Illinois law);
Arthur D. Little Int’l Inc. v. Dooyang Corp., 928 F. Supp. 1189, 1202-03 (D. Mass.
1996); Columbus McKinnon Corp. v. China Semiconductor Co., 867 F. Supp. 1173,
1182-83 (W.D.N.Y. 1994); RKB Enterprises Inc. v. Ernst & Young, 582 N.Y.S.2d 814,
816 (N.Y. App. Div. 1992); Hosp. Computer Sys., Inc. v. Staten Island Hosp., 788 F.

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Supp. 1351, 1361 (D. N.J. 1992) (applying New York law); see also Raymond T.
Nimmer, The Law of Computer Technology § 9:30 (3d ed. 2008).4
The foregoing legal authorities recite a number of reasons for prohibiting
professional negligence claims against parties who provide computer-related services.
For example, the Wisconsin court in Racine County described some of those reasons as
follows:
From our own experience, we know that many computer
skills are learned “hands on” and not during long and
intensive training. We also know that the state of Wisconsin
does not license computer consultants. We are not aware of
any enforceable code of ethics governing computer
consultants. Moreover, allowing Racine County to pursue
contract remedies promotes the very different purposes of tort
law and contract law described by our supreme court in
Mackenzie v. Miller Brewing Co., 2001 WI 23, ¶¶ 27-28, 241
Wis.2d 700, 623 N.W.2d 739.
767 N.W.2d at 289. The federal district court judge in Columbus McKinnon similarly
explained that “[t]o lift the theory of malpractice from its narrow origin of personal,
professional services to a lay patient or client and apply it to the law of commercial
contracts would obfuscate the necessary boundaries of these two areas of law.” 867 F.
Supp. at 1182-83.
4

Plaintiff tries to falsely diminish the number of decisions in which courts from other
states have rejected professional negligence claims against providers of computer-related
services. Indeed, Plaintiff goes so far as to say that four decisions cited by Defendant and
Judge Cook “appear to be the sum total supporting Defendant’s conclusion.” Dkt. #11,
p. 13. In making that statement, Plaintiff completely disregards two other decisions that
Defendant cited in its initial memorandum, as well as the many above-cited decisions and
authorities that Plaintiff would have necessarily uncovered had it bothered to research the
point. Moreover, Plaintiff fails to meaningfully discuss any of the six decisions cited in
Defendant’s initial memorandum in which courts rejected professional negligence claims
against providers of computer-related services.
8

In his above-cited treatise, Professor Nimmer asserts that malpractice claims
against providers of even the most sophisticated computer-related services should not be
allowed because of the absence of any recognized standards that govern practitioners:
Most practitioners in computer consulting, design, and
programming do not fit a model that creates malpractice
liability. These businesses and “professional” parties clearly
engage in complex and technically sophisticated activities.
Computer programmers commonly define themselves as
“professionals.” Yet, despite the complexity of the work,
computer programming and consultation lack the indicia
associated with professional status for purposes of imposing
higher standards of reasonable care. While programming
requires significant skill and effective consultation requires
substantial business and technical knowledge, the ability to
practice either calling is not restricted or regulated at present
by state licensing laws.... Unlike traditional professions,
while practitioner associations exist, there is no substantial
self-regulation or standardization of training within the
programming or consulting professions.
Nimmer, supra at 9-11.
Along those same lines, the federal district court judge in the Hospital Computer
Systems case noted:
Professionals may be sued for malpractice because the higher
standards for care imposed on them by their profession and
by state licensing requirements engenders trust in them by
clients that is not the norm of the marketplace. When no such
higher code of ethics binds a person, such trust is
unwarranted. Hence, no duties independent of those created
by contract or under ordinary tort principles are imposed on
them.
788 F. Supp. at 1361.

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2.

There Is No Legal Support in Minnesota for Allowing Computer Service
Providers to be Sued for Professional Negligence.
a.

Piper Jaffray is an insurance case that has no application here.

The linchpin of Plaintiff’s dubious argument that Minnesota law permits a
professional negligence claim against Defendant continues to be a quotation from Piper
Jaffray Cos. v. Nat. Union Fire Ins. Co. of Pittsburgh, Pa., 967 F. Supp. 1148, 1156 (D.
Minn. 1997). As Judge Cook correctly noted, however, the fact that the issue in Piper
Jaffray was the proper interpretation of a professional services exclusion in an insurance
policy means that the definition of “professional services” that Plaintiff quotes from that
decision has no application to the present case. Dkt. #7.1, pp. 3-4. Indeed, in setting
forth that definition, the Piper Jaffray court expressly included the phrase “within the
meaning of an insurance exclusion,” to highlight the limited scope of the definition. 967
F. Supp. at 1156 (emphasis added).
As noted in Defendant’s initial memorandum, Plaintiff omitted the phrase “within
the meaning of an insurance exclusion” both times that Plaintiff quoted Piper Jaffray in
opposition to Defendant’s motion to dismiss or transfer the Michigan case. Having been
exposed in that regard, Plaintiff now includes the limiting language in his opposition
memorandum.

Plaintiff continues to ignore the import of that limiting language,

however, and continues to rely upon Piper Jaffray as if that decision established a rule of
law in Minnesota that would prevent Minnesota courts from embracing the various
decisions from other jurisdiction that have refused to permit professional negligence
claims against parties who provide computer-related services.

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Despite Plaintiff’s efforts to expand the holding of Piper Jaffray, that case is
plainly about insurance coverage, not about the boundaries of tort liability. For this
reason, the language that Plaintiff quotes from Piper Jaffray does not in any way suggest
that a Minnesota court would permit providers of computer-related services to be sued as
professionals. Simply stated, the definition of “professional services” for purposes of
interpreting the language of an insurance policy has no effect on whether or not a party
who provides computer-related services can be sued for professional negligence.
In fact, many of the states whose laws have been held in the above-cited cases to
prohibit tort actions for computer malpractice have separately endorsed the same basic
definition of “professional services” for purposes of interpreting the provisions of an
insurance policy as the court in Piper Jaffray applied. See Chapman ex rel. Chapman v.
Mutual Serv. Cas. Ins. Co., 35 F. Supp. 2d 693, 698 (E.D. Wis. 1999); Harad v. Aetna
Cas. & Sur. Co., 839 F.2d 979, 984 (3d Cir. 1988) (applying Pennsylvania law); St. Paul
Fire & Marine v. Quintana, 419 N.W.2d 60, 62 (Mich. Ct. App. 1988); Hartford Cas.
Ins. Co. v. Shehata, 427 F. Supp. 336, 337 (N.D. Ill. 1977) (applying Illinois law); Roe v.
Federal Ins. Co., 587 N.E.2d 214, 217-18 (Mass. 1992).5 Thus, far from distinguishing
Minnesota law from that of the states that do not permit professional negligence claims
5

The definition that the Piper Jaffray court applied comes from a Minnesota Court of
Appeals decision that adopted the definition set forth by the Nebraska Supreme Court in
Marx v. Hartford Accident & Indem. Co., 157 N.W.2d 870, 871-72 (Neb. 1968). See
Piper Jaffray, 967 F. Supp. at 1156 (citing Ministers Life v. St. Paul Fire & Marine Ins.
Co., 483 N.W.2d 88, 91 (Minn. Ct. App. 1992)). All but one of the above-cited cases
directly cite Marx. Furthermore, the only case that does not, cites a case that contains a
definition that can be traced straight back to Marx. See Chapman, 35 F. Supp. 2d at 698,
citing Shelley v. Moir, 405 N.W.2d 737, 739 n.2 (Wis. Ct. App. 1987), citing Bank of
Cal. N.A. v. Opie, 663 F.2d 977, 981 (9th Cir. 1981), citing Marx, 157 N.W.2d at 871-72.
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against providers of computer-related services, the language that Plaintiff quotes from
Piper Jaffray is consistent with the law of those states and, if anything, provides a reason
to believe that Minnesota would join those states in refusing to allow professional
negligence lawsuits in the context of computer-related services.
b.

Plaintiff has cited no other Minnesota case that supports its
professional negligence theory.

None of the other Minnesota decisions cited by Plaintiff support Plaintiff’s
contention that providers of computer-related services are subject to being sued for
professional negligence.
The City of Eveleth case involved an engineer who provided services in
connection with the design and installation of a water treatment facility. City of Eveleth
v. Ruble, 302 Minn. 249, 225 N.W.2d 521 (1974). That the engineer was a professional
does not appear to have been disputed. Rather, the arguments seem to have centered on
whether, in light of the professional nature of the engineer’s services, expert testimony
was required to prove various parts of the plaintiff’s case. 302 Minn. at 254-64, 225
N.W.2d at 525-30.
There was likewise no issue in the City of Mounds View case as to the ability of
the plaintiff to assert professional negligence claims against the defendant architects.
City of Mounds View v. Walijarvi, 263 N.W.2d 420, 422-23 (Minn. 1978). Indeed, the
case recites a long history of courts treating architects as professionals. Id. at 423-24.
The issue in the case was whether or not providers of professional services could be sued
for breach of warranty as well as for professional negligence. Id. at 424-25. The

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Minnesota Supreme Court refused to permit the breach of warranty claims to proceed.
Id. at 425.6
The issue in the Waldor Pump case was whether or not an engineer owed a
professional duty of care to a subcontractor who relied upon the engineer’s plans.
Waldor Pump & Equip. Co. v. Orr-Schelen-Mayeron & Assocs., Inc., 386 N.W.2d 375,
376-77 (Minn. Ct. App. 1986). Again, as in City of Eveleth and City of Mounds View, no
one bothered to try to argue that the engineer in Waldor Pump was not a professional. As
such, the case fails to provide any precedential or persuasive authority for Plaintiff’s
contention that, having contracted to provide website design and hosting services,
Defendant can be sued for professional negligence in addition to breach of contract.
Simply referring to Defendant’s personnel as “computer engineers” does not make those
individuals the equivalent of a civil engineer like the defendant in Waldor Pump.7

6

Plaintiff quotes the City of Mounds View case at length on page 16 of its opposition
memorandum, but fails to tell this Court that the “rule” that the Minnesota Supreme
Court was explaining in the quoted passage was not the rule permitting negligence claims
against professionals, but rather the rule prohibiting breach of warranty claims against
professionals. Since Plaintiff has not asserted any breach of warranty claims in the
present action, the language that Plaintiff has quoted has no relevance here.
7

Calling someone an “engineer” does not make them a “professional.” Moreover, as
explained at pages 7-8 above, there are a number of reasons why providers of the types of
computer-related services that Defendant provided to Plaintiff should not be treated like
engineers and architects for purposes of tort liability. Among other things, unlike
architects and civil engineers, providers of computer-related services lack extensive
standardized education and training, lack state licensing requirements, lack a recognized
code of ethics, and lack statutory continuing education requirements. In addition,
providers of computer-related services do not exercise the recurring discretionary
judgment that is associated with the various professional groups against whom
professional negligence claims are allowed.
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c.

Minnesota statutes do not support Plaintiff’s professional
negligence theory.

Significantly, Minnesota statutes that govern the licensing and continuing
education requirements of professionals and that establish rules applicable to negligence
claims against professionals all fail to mention providers of computer-related services.
See, e.g., Minn. Stat. § 326.01, et seq. (setting forth various initial and continuing
licensing requirements for engineers, architects, surveyors and landscape architects);
Minn. Stat. § 326A.01, et seq. (same for accountants); Minn. Stat. § 544.42 (defining
“professional” to mean “a licensed attorney or an architect, certified public accountant,
engineer, surveyor or landscape architect licensed or certified under Chapter 326 or
326A” and establishing rules governing negligence claims against such professionals);
Minn. Stat. § 145.682 (setting forth rules governing negligence claims against “a
physician, surgeon, dentist or other healthcare professional”).

The fact that the

Minnesota Legislature has chosen not to treat providers of computer-related services as
“professionals” is yet another reason not to permit such providers to be sued on a
professional negligence theory.
3.

The Three Non-Minnesota Decisions that Plaintiff has Cited Do Not
Support Plaintiff’s Contention that Computer Service Providers Can Be
Sued for Professional Negligence.

None of the three non-Minnesota cases that Plaintiff cites in its opposition
memorandum provides a sound reason for concluding that Plaintiff should be allowed to
pursue a professional negligence claim against Defendant. See Diversified Graphics,
LTD. v. Groves, 868 F.2d 293 (8th Cir. 1988); Martin v. Indiana Michigan Power Co.,

14

383 F.3d 574 (6th Cir. 2004); Data Processing Servs., Inc. v. L.H. Smith Oil Corp., 492
N.E.2d 314 (Ind. Ct. App. 1986).
In Diversified Graphics, the plaintiff was permitted to assert tort claims under
Missouri law against a professional accounting firm that allegedly acted in a negligent
manner in providing “management advisory services” that involved computer consulting.
As the court in a subsequent case pointed out, however, the Diversified Graphics case
turned on the fact that it involved a claim against Ernst & Whinney, an accounting firm.
Hosp. Computer Sys., 788 F. Supp. at 1361 n.5. Indeed, the court in Diversified Graphics
concluded that the evidence established that the accounting firm failed to fulfill its duty
under the Management Advisory Services Practice Standards adopted by the American
Institute of Certified Public Accountants. 868 F.2d at 296-97. Because, in the words of
the court in Hospital Computer, “[a]ccountants are universally recognized as
‘professionals’ who are held to a higher standard of care,” the Diversified Graphics case
is “inapposite” in a case (like this one) that does not involve an accounting firm or the
breach of any published professional standards. 788 F. Supp. at 1361 n.5.
In Martin, the issue was whether or not a particular employee was exempt from
the overtime requirements of the Fair Labor Standards Act (the “FLSA”). 381 F.3d at
578. The case has absolutely nothing to do with tort liability. Even so, it is worth noting
that Plaintiff omits the part of the FLSA’s definition of “computer professional” that
requires that the employee’s primary duty “includes work requiring the consistent
exercise of discretion and judgment.” See Martin, 381 F.3d at 579 (quoting 29 C.F.R.
§§ 541.3(a)(4), 541.3(e)) (emphasis added). Presumably, Plaintiff recognizes that the
15

work involved in designing and hosting a simple website and directing email traffic to
particular mailboxes does not involve “the consistent exercise of discretion and
judgment.” As the Sixth Circuit recognized in Martin, not all computer jobs are “highly
complex and require exceptional expertise.” Id. at 580.
Finally, like each of the other cases on which Plaintiff relies, the Data Processing
Services case can be readily distinguished from the present case and does not support
adoption of a rule that would permit providers of computer-related services to be sued for
professional negligence. The central issue in that case was whether the U.C.C. applied to
the parties’ transaction. 492 N.E.2d at 317-19. In that regard, the case discusses whether
the transaction was a “sale of goods” or a “sale of services.” Id. The court ultimately
concluded that the transaction, which was for custom computer programming work at a
time (1979-81) when then the world of computing was far more mysterious and imposing
than it is today, was for the sale of services, so the U.C.C. did not apply. Id. at 318.8 The
court nevertheless affirmed an award of “damages for a breach of contract,” concluding
that there was an implied contractual promise by the computer programmer to possess
“the reasonable skill and ability to do the job for which it contracted.” Id. at 319-20 and
322 (emphasis added). The case does not discuss or recognize any right to assert a
professional negligence claim.
8

The fact that the Data Processing case arose at a time when the world of computing was
completely different provides another reason for disregarding that case. Whereas
programmers at the time of the underlying transaction in Data Processing would have
had to write computer code to create the software necessary to provide the services that
were the subject of that transaction, no one at Findlaw had to write any code or do any
actual “programming” to design and host Plaintiff’s website and to direct the flow of
Plaintiff’s emails.
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CONCLUSION
For all of the reasons set forth above and in Defendant’s initial memorandum, the
Court should dismiss Plaintiff’s purported “professional negligence” claims (i.e., Count I
of the Complaint), pursuant to Fed. R. Civ. P. 12(b)(6).
Respectfully submitted,
MOSS & BARNETT
A Professional Association
Dated: April 18, 2012

By:

s/Peter A. Koller
Peter A. Koller (#150459)
John K. Rossman (#244831)
4800 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402
Telephone: [phone]
kollerp@ moss-barnett.com
[e-mail]
Attorneys for Defendant

1995032v2

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