Brandsrud v. Hespenheide et al

Filing 28

MEMORANDUM OPINION AND ORDER Granting Defendants' Motions to Dismiss 6 , 15 . (Written Opinion) Signed by Judge John R. Tunheim on 2/7/2024. (KKM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
SCOTT BRANDSRUD,
Plaintiff,
v.
DAWN HESPENHEIDE (DOLAN), DONALD
HEDLUND, EDWARD CHRISTIAN,
HENNEPIN COUNTY COURT,

Civil No. 23-1181 (JRT/TNL)

MEMORANDOM OPINION AND ORDER
GRANTING DEFENDANTS’ MOTIONS TO
DISMISS

Defendants.
Scott Brandsrud, 5024 Cliff Rose Drive, Palmdale, CA 93552, pro se Plaintiff.
Mark V. Steffenson and Nicolas L. Hanson, HENNINGSON & SNOXELL LTD,
6900 Wedgwood Road, Suite 200, Maple Grove, MN 55311 and Michael P.
Goodwin, OFFICE OF THE ATTORNEY GENERAL, 445 Minnesota Street, Suite
1200, St. Paul, MN 55402, for Defendants.
Plaintiff Scott Brandsrud has filed numerous claims against Dawn Hespenheide
(Dolan), 1 Donald Hedlund, Edward Christian, and Hennepin County Court (collectively
“Defendants”) relating to Meloy Lee Brandsrud’s (the “Decedent”) Estate. The claims
against Hennepin County Court (“HCC”) must fail as a result of sovereign immunity under
the Eleventh Amendment. In addition, many of Mr. Brandsrud’s remaining claims have
already been or could have been adjudicated previously, and thus are barred under claim

Although Dawn Dolan is her legal name, the Complaint uses her previous name Dawn
Hespenheide and the Court will use that for consistency.
1

preclusion. Furthermore, because Mr. Christian, although not previously named, is in
privity with the other parties, the claims against him are also precluded. Plus, the claims
against Mr. Christian also do not meet the standard required under Federal Rule of Civil
Procedure 12(b)(6). Because all of Mr. Brandsrud’s claims must fail, the Court will grant
Defendants’ Motions to Dismiss and dismiss the Complaint in its entirety with prejudice.
The Court will also place Mr. Brandsrud on the restricted filer list as Judge Paul A.
Magnuson warned in his May 23, 2023 Order in a previous case.
BACKGROUND
Plaintiff Scott Brandsrud brings yet another action relating to the probate
proceedings of Meloy Lee Brandsrud’s Estate (“the Estate”). (See Compl., Apr. 26, 2023,
Docket No. 1.) The Decedent died on November 28, 2020 at Fairview Medical Center
(“Fairview”). (Id. ¶ 35.) He was survived by three nephews, including Scott Brandsrud;
Donald Hedlund, his brother-in-law; and Dawn Hespenheide, Mr. Hedlund’s daughter.
(Compl., Ex. D (“Probate Order”) at 27, 39, Apr. 26, 2023, Docket No. 1-1.) Edward
Christian acted as the Decedent’s estate planning attorney for many years. (Compl. ¶ 7.)
The Decedent suffered an accident on November 19, 2020 which required
hospitalization at Fairview and treatment for a head injury from which he never
recovered. (Compl. ¶¶ 15–17, 34.) Per the Decedent’s Health Care Declaration, Fairview
consulted Mr. Hedlund as the Decedent’s proxy on medical decisions. (Id. ¶¶ 29–30.)
Because he has hearing issues, Mr. Hedlund sought the support of his daughter in fulfilling
his proxy duties. (Id. ¶¶ ii, 21–22.) Together, Mr. Hedlund and Ms. Hespenheide met
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with Fairview physicians and advised on medical decisions based on the physician’s
recommendations, including attaching a ventilator to the Decedent and then removing it
after he acquired ventilator-associated pneumonia. (Id. ¶¶ 22, 29–31, 35.) Shortly after
the ventilator was removed, the Decedent died. (Id. ¶¶ 34–35.)
The Decedent had drafted his first estate planning documents, including a Last Will
and Testament, Heath Care Declaration, and Affidavit of Survivorship, after his wife died
in 2012. (Id. ¶¶ 9, 12; Probate Order at 29.) Decedent drafted a subsequent Will in 2016. 2
(Compl. ¶ 14.) While Decedent was in the hospital, Mr. Christian made Mr. Hedlund and
Ms. Hespenheide aware of the Health Care Declaration, the Will, and the payable on
death accounts. (Id. ¶ 27.)
After the Decedent died, Ms. Hespenheide and Mr. Brandsrud filed separate
petitions with HCC to act as personal representatives of the Decedent’s Estate. (Probate
Order at 27.) Mr. Brandsrud also challenged the validity of the Will. (Id.)
The probate court held a trial to settle the issues. Mr. Christian, Mr. Hedlund, Ms.
Hespenheide, and Mr. Brandsrud all testified during the trial. (See generally Compl.; see
also Probate Order.)

Mr. Christian testified to his experience as an attorney; his

preparation of the Will, including swearing in the Decedent and having two witnesses
present; his meetings with Mr. Hedlund and Ms. Hespenheide; and his preparation of the

The Complaint mentions two wills. Hereafter, the Court will only refer to the 2016 Will
as “the Will” in its analysis.
2

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Renunciation and Nomination forms. (Compl. ¶¶ 63–68; Probate Order at 29–31.) Mr.
Hedlund testified to his interactions with Fairview, his intention to renounce his duty as
personal representative, and his nomination of Ms. Hespenheide for personal
representative. (Compl. ¶¶ 69–70; Probate Order at 31–32.) Ms. Hespenheide testified
to her interactions with Fairview in aiding Mr. Hedlund in fulfilling his proxy duties and
the various problems that have arisen due to a lack of personal representative for the
Estate. (Compl. ¶¶ 71–72; Probate Order at 32–34.) HCC found Mr. Christian’s, Mr.
Hedlund’s, and Ms. Hespenheide’s testimonies to be credible. (Probate Order at 21–32,
34.) HCC also concluded that Mr. Hedlund’s renunciation was valid and appointed Ms.
Hespenheide as the personal representative. (Id. at 40.) Mr. Brandsrud testified that he
would not be able to win in the probate matter and that he would “deal with [Ms.
Hespenheide] in Federal Court.” (Compl. ¶ 74; Probate Order at 34–35.) HCC found Mr.
Brandsrud’s testimony was not credible and that his statements made him appear as a
frivolous litigant. (Probate Order at 35.) Based on all the testimony, HCC concluded that
the Will was valid and ordered it to be formally probated with Ms. Hespenheide acting as
personal representative. (Id. at 40.)
The probate proceedings have resulted in significant additional litigation. These
include an attempt to appeal an HHC order that found Ms. Hespenheide had standing to
petition to be the personal representative, which was denied; an action against Mr.
Hedlund and Ms. Hespenheide alleging fraud in the probate proceedings, which was
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dismissed on claim preclusion grounds; and a subsequent action against Defendants,
which was dismissed for failure to prosecute. Brandsrud v. Hespenheide (“Brandsrud I”),
No. 22-1959, 2023 WL 2025144, at *1, *4 (D. Minn. Feb. 15, 2023); Brandsrud v.
Hespenheide (“Brandsrud II”), No. 23-1047, 2023 WL 3604936, at *1–2 (D. Minn. May 23,
2023). The complaint in Brandsrud II is identical to the Complaint here and names all the
same Defendants. See Brandsrud II, at *1; (see generally Compl.) In Brandsrud II, the court
warned Mr. Brandsrud that if he continued to try to litigate the same issues, he would be
placed on the restricted filer list. Brandsrud II, at *1.
In the current Complaint, Mr. Brandsrud again challenges the probate proceedings
predominately alleging that the Probate Order altered the testimony by Mr. Christian, Mr.
Hedlund, or Ms. Hespenheide, or else failed to quote it properly. (Compl. ¶ 76.) Although
not totally clear from the Complaint, it seems Mr. Brandsrud brings a claim of wrongful
death against Mr. Hedlund, a claim of theft against Ms. Hespenheide, claims of abuse of
process and a due process violation under 42 U.S.C. § 1983 against Mr. Christian, and a
claim of fraud against HCC. (See generally Compl.) All Defendants have moved to dismiss.
(Mot. to Dismiss by Edward Christian, Donald Hedlund, and Dawn Hespenheide, May 26,
2023, Docket No. 6; Mot. to Dismiss by Hennepin County Court, May 30, 2023, Docket No.
15.)

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DISCUSSION
I.

STANDARD OF REVIEW
In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the

Court considers all facts alleged in the complaint as true to determine if the complaint
states a “claim to relief that is plausible on its face.” Braden v. Wal-Mart Stores, Inc., 588
F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). At the
motion to dismiss stage, the Court may consider the allegations in the complaint as well
as “those materials that are necessarily embraced by the pleadings.” Schriener v. Quicken
Loans, Inc., 774 F.3d 442, 444 (8th Cir. 2014).
“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. The Court construes the complaint in the light most
favorable to the plaintiff, drawing all inferences in the plaintiff’s favor. Ashley Cnty. v.
Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009). Although the Court accepts the complaint's
factual allegations as true and construes the complaint in a light most favorable to the
plaintiff, it is “not bound to accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). In other words, a complaint
“does not need detailed factual allegations” but must include “more than labels and
conclusions, and a formulaic recitation of the elements” to meet the plausibility standard.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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II.

ANALYSIS
Before reaching the substance of any particular claim in the Complaint, there are

two threshold issues the Court must address. These issues, sovereign immunity and claim
preclusion, will require dismissal if applicable. After discussing these threshold matters,
the Court will address the sufficiency of any remaining claims under Rule 12(b)(6).
A.

Sovereign Immunity

The doctrine of sovereign immunity emanates from the Eleventh Amendment and
prohibits people from suing states and state officials unless the State has waived its
immunity. In re State of N.Y., 256 U.S. 490, 497 (1921); Smith v. Beebe, 123 F. App’x 261,
262 (8th Cir. 2005). The Eighth Circuit has definitively decided that state courts are part
of “the State” and thus are protected by sovereign immunity. Harris v. Mo. Court of
Appeals, W. Dist., 787 F.2d 427, 429 (8th Cir. 1986); Collins v. Dakota Cnty. Dist. Court, 435
F. App’x 581, 581 (8th Cir. 2011). Hence, because HCC is a state district court, it receives
sovereign immunity protection from suit.
While waiver can allow for lawsuits to proceed, Minnesota has not waived
immunity in federal court. See, e.g., DeGidio v. Perpich, 612 F. Supp. 1383, 1389 (D. Minn.
1985). The Minnesota Tort Claims Act waives immunity regarding some tort claims, but
it does not provide an express waiver in federal court. Hussein v. Minn., No. 19-1913,
2019 WL 5693733, at *2 (D. Minn. Nov. 4, 2019). Because HCC is protected by sovereign

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immunity, which it has not waived, the Court will dismiss all claims relating to HCC with
prejudice. 3
B.

Claim Preclusion

The current action is not the first or even the second federal action filed in relation
to the probate proceedings of the Estate. As such, many of the claims are barred under
claim preclusion. Under the doctrine of claim preclusion, “a final judgment on the merits
of an action precludes the parties or their privies from relitigating issues that were or
could have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94 (1980). The law
applied to a claim preclusion analysis is that of the forum that rendered the first
judgment. St. Paul Fire & Marine Ins. Co. v. Compaq Comput. Corp., 539 F.3d 809, 821 (8th
Cir. 2008). Thus, because HCC rendered the first judgment, Minnesota law applies. Under
Minnesota law, the elements of claim preclusion are that: “(1) the earlier claim involved
the same set of factual circumstances; (2) the earlier claim involved the same parties or
their privies; (3) there was a final judgment on the merits; and (4) the estopped party had
a full and fair opportunity to litigate the matter.” Pope v. Fed. Home Loan Mortg. Corp.,
561 F. App’x 569, 571 (8th Cir. 2014) (citing Rucker v. Schmidt, 794 N.W.2d 114, 117 (Minn.
2011)). The preclusive effect impacts not only claims that were actually litigated but also
those that could have been litigated. Hauser v. Mealey, 263 N.W.2d 803, 807 (Minn.

Because the Court will find that HCC is protected from suit under sovereign immunity, it
need not reach HCC’s other arguments raised in its Motion to Dismiss: judicial immunity, issue
preclusion, and Younger abstention.
3

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1978). Often, a court considers whether the estopped party has a full and fair opportunity
based on whether there were procedural limitations, incentives to fully litigate, or
limitations based on the relationship of the parties. Breaker v. Bemidji State Univ., 899
N.W.2d 515, 519 (Minn. Ct. App. 2017) (citing State v. Joseph, 636 N.W.2d 322, 329 (Minn.
2001)).
Here, every claim that Mr. Brandsrud alleges stems from the probate proceedings
of the Estate raising no issue that was not previously available to Mr. Brandsrud, satisfying
prong one.

The second prong is satisfied with regard to Mr. Hedlund and Ms.

Hespenheide because they were also parties in the first federal case. Third, the court
already found the probate trial to be a final judgment on the merits. Brandsrud I at *3.
Mr. Brandsrud does not dispute that conclusion here and the Court finds it to be true and
accurate, satisfying prong three.

And fourth, there is no indication that Mr. Brandsrud

did not have a full and fair opportunity to litigate the claims as he simply restates
arguments previously made and casts no doubt on the procedure or the incentives that
he faced. Thus, prong four is satisfied. The only remaining question is whether Mr.
Christian was in privity with the parties to the previous case such that the claims against
him are also precluded.
1.

Privity of Mr. Christian

Claim preclusion applies to the same parties and those in privity with the
previously named parties. Because Mr. Christian was not named in any previous action
that was decided on the merits, claims against him would only be barred under claim
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preclusion if he is in privity with Mr. Hedlund or Ms. Hespenheide. 4 There is no per se
privity definition applicable to all cases. Margo-Kraft Distrib., Inc. v. Minneapolis Gas Co.,
200 N.W.2d 45, 47–48 (Minn. 1972). Instead, it requires a factual analysis of the
circumstances. Id. Privity has been described as including a person “so identified in
interest with another that he represents the same legal right.” McMenomy v. Ryden, 148
N.W.2d 804, 807 (Minn. 1967). Non-exhaustive categories of privity examples include
people who control an action but are not named as parties, those who have an interest
in the action but are adequately represented by a party, and the successors in interest of
people with derivative claims. Rucker, 794 N.W.2d at 118 (citation omitted).
The facts of this case indicate that Mr. Christian is in privity with Mr. Hedlund and
Ms. Hespenheide because his interests were represented by Ms. Hespenheide in the
probate proceedings. Mr. Brandsrud lodges many allegations at Mr. Christian, but none
are distinct from the interests Ms. Hespenheide represented in the probate proceedings.
Two issues discussed in detail were whether any conduct resulted in the wrongful death
of the Decedent and whether the Will was valid. The probate court found that there was
no wrongful conduct that resulted in the death of the Decedent and that the Will was
valid. This conclusion was reached with the help of Mr. Christian’s testimony. Ms.
Hespenheide also shared an interest in that outcome because her involvement was

Mr. Christian was named in the previous federal action, but that case was dismissed
without prejudice for failure to prosecute and thus does not have a preclusive effect.
4

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questioned throughout the proceedings.

Because his interests were adequately

protected, the Court will find Mr. Christian in privity with Mr. Hedlund and Ms.
Hespenheide such that the claims against Mr. Christian will be precluded.
C.

Rule 12(b)(6)

Even if the claims against Mr. Christian are not barred by claim preclusion, they
also fail because they do not state a claim upon which relief can be granted. The only
causes of action in the Complaint that name Mr. Christian are an abuse of process and a
due process violation under 42 U.S.C. § 1983.
1. Abuse of Process
Mr. Brandsrud alleges that Mr. Christian engaged in wrongful conduct in an
attempt to convey the payable on death accounts to Ms. Hespenheide. Under Minnesota
law, abuse of process requires two elements: “(a) the existence of an ulterior purpose,
and (b) the act of using the process to accomplish a result not within the scope of the
proceedings in which it was issued, whether such result might otherwise be lawfully
obtained or not.”

Duerscherl v. Foley, 681 F. Supp. 1364, 1369 (D. Minn. 1987); see

Malcolm v. NPD, Inc., No. 05-960, 2007 WL 1847200, at *6 (D. Minn. June 21, 2007) (citing
Minnesota case law concerning the proper standard). Mr. Brandsrud correctly identifies
the standard for an abuse of process claim; however, he does nothing more than restate
factual information about the proceedings without providing specific allegations of abuse
of process.

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More specifically, Mr. Brandsrud makes conclusory allegations about Mr.
Christian’s alleged ulterior motive, suggesting it was to “obtain the payable on death
accounts for [Ms. Hespenheide].” (Compl. ¶ 130.) Further, Mr. Brandsrud claims that Mr.
Christian used his knowledge of the probate proceedings to wrongfully induce HCC to
appoint Ms. Hespenheide as personal representative. Even if everything is taken as true
and viewed in the light most favorable to Mr. Brandsrud, he did not plead sufficient facts
to sustain an abuse of process claim. At best, he alleged that Mr. Christian acted within
the bounds of his duties as an attorney, and the probate court found that information
useful. As such, the Court will find that Mr. Brandsrud’s abuse of process claim fails to
state a claim upon which relief can be granted.
2. 42 U.S.C. § 1983
The 42. U.S.C. § 1983 claim also fails under Rule 12(b)(6) because Mr. Brandsrud
has not shown that Mr. Christian is a state actor or state agent. 42. U.S.C. § 1983 provides
remedies for constitutional violations “under color of any statute, ordinance, regulation,
custom, or usage, of any State.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 924 (1982)
(citation omitted).

42. U.S.C. § 1983 imparts liability only on state actors. Carlson v.

Roetzel & Andress, 552 F.3d 648, 650 (8th Cir. 2008) (citation omitted). Private parties
have been found liable as state actors when they have been found to act jointly or in
conspiracy with state authorities. Id. at 651.
Mr. Christian is a private citizen and was a private citizen throughout his
interactions with the Defendants and the Decedent. While Mr. Brandsrud claims that Mr.
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Christian “caused [HCC] to subject [Mr. Brandsrud] to deprivation of his payable on death
accounts without due process of the Uniform Probate Code,” there is no evidence of a
due process violation. (Compl. at 41.) Nor is there evidence that Mr. Christian acted in
concert with the state. Instead, Mr. Brandsrud merely asserts that Mr. Christian’s
allegedly deceitful testimony motivated HCC to reach its outcome. Even if HCC made its
decision based on Mr. Christian’s testimony, this accusation is insufficient to confer state
action on Mr. Christian. Because Mr. Christian is not a state actor or a state agent, § 1983
does not apply. As such, the Court will dismiss the § 1983 claim against Mr. Christian.
III.

RESTRICTED FILER LIST
In his May 23, 2023 Order, Judge Magnuson warned Mr. Brandsrud about being

placed on the restricted filer list. Brandsrud II, at *1. Courts have authority to control
matters pending before them and while there is a right to access the courts, that does not
extend to frivolous actions or those with malicious intentions. In re Tyler, 839 F.2d 1290,
1292 (8th Cir. 1988) (citation omitted). To protect defendants from this type of litigation,
courts may reasonably restrict a litigant’s ability to file future suits relating to the same
conduct. Id. at 1293 (citing Phillips v. Carey, 638 F.2d 207, 209 (10th Cir. 1981)). In his
previous order, Judge Magnuson indicated that Mr. Brandsrud should be placed on the
restricted filer list but cited the District of Minnesota’s policy to warn an individual before
placing him on this list. See Brandsrud II, at *1. Because Mr. Brandsrud was warned of
this possibility and he still filed a Complaint that is identical to a prior action, the Court

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will place Mr. Brandsrud on the restricted filer list, which will require him to seek court
permission to file any additional lawsuits relating to the probate proceedings.
CONCLUSION
Mr. Brandsrud brings this repetitive action regarding certain probate proceedings
against four defendants: Mr. Hedlund, Ms. Hespenheide, Mr. Christian, and HCC. HCC is
protected by Eleventh Amendment sovereign immunity. Claims against Mr. Hedlund and
Ms. Hespenheide are barred by claim preclusion. Mr. Christian is in privity with the
previously named parties so claims against him are barred as well. Even without the
protection of claim preclusion, the claims against Mr. Christian fail to state a claim upon
which relief can be granted. Because none of the claims Mr. Brandsrud alleges in his
Complaint can survive a motion to dismiss, the Court will grant the Defendants’ Motions
to Dismiss and dismiss the Complaint with prejudice. As Mr. Brandsrud has been warned
by the court previously, he will be placed on the restricted filer list requiring court
approval to file any additional claims relating to the probate proceedings.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED:
1. Defendants Hedlund, Hespenheide, and Christian’s Motion to Dismiss [Docket
No. 6] is GRANTED.
2. Defendant Hennepin County Court’s Motion to Dismiss [Docket No. 15] is
GRANTED.
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3. Plaintiff’s Complaint [Docket No. 1] is DISMISSED with prejudice.
4. Plaintiff is placed on the restricted filer list.
LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: February 7, 2024
at Minneapolis, Minnesota.

JOHN R. TUNHEIM
United States District Judge

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