Kirk et al v. City of Duluth, Minnesota et al

Filing 71

ORDER granting 63 Motion for Default Judgment. (Written Opinion) Signed by Chief Judge Patrick J. Schiltz on 11/26/2024. (CLG)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
AARON KIRK and AMY KIRK,

Case No. 23?CV?1758 (PJS/LIB)

Plaintiffs,
v.

ORDER

CITY OF DULUTH; GORDON
RAMSAY, former Chief of the Duluth
Police Department, in his official and
personal capacity; MICHAEL
CEYNOWA, Chief of the Duluth Police
Department, in his official and personal
capacity; JEFFREY KAZEL, supervisor
with the Duluth Police Department, in
his official and personal capacity;
RONALD TINSLEY, STEVEN PRUSE,
and SARA SCHUTTE, officers with the
Duluth Police Department, in their
official and personal capacities; ROBERT
GRYDAHL, former officer with the
Duluth Human Rights Commission, in
his official and personal capacity; CARL
CRAWFORD, officer with the Duluth
Human Rights Commission, in his
official and personal capacity; DUSTIN
JAMES TURCOTTE,
Defendants.

Mark Bradford, BRADFORD, ANDRESEN, NORRIE & CAMAROTTO, for
plaintiffs.
Plaintiffs Aaron and Amy Kirk brought claims against current and former
employees and officials of the City of Duluth, as well as a claim against Dustin Turcotte,

a private individual. All claims against the current and former city employees and
officials have been resolved, leaving only the claim against Turcotte.
This matter is before the Court on the Kirks’ motion for a default judgment
against Turcotte on that claim. On November 12, 2024, the Court held an evidentiary
hearing on the Kirks’ motion and heard testimony from both Aaron and Amy Kirk.
Turcotte did not appear. Based on the following findings of fact and conclusions of law,
the Kirks’ motion is granted, and the Court awards Aaron Kirk $50,000 in damages for
emotional distress.
I. FINDINGS OF FACT
A. The July 10, 2020 Incident
1.

Plaintiffs Aaron Kirk (“Kirk”), who is black, and Amy Kirk, who is white,

are a married couple who reside in Duluth, Minnesota.
2.

On the morning of July 10, 2020, Kirk was driving to his bank in Duluth

when another driver, who turned out to be Turcotte, pulled in behind Kirk. Turcotte
sounded his horn and began yelling racial epithets at Kirk, including calling Kirk a
“nigger.”
3.

Kirk tried to extricate himself from the situation by driving away.

4.

Turcotte, who was driving a truck, followed Kirk for approximately

17 blocks and into a parking lot near Kirk’s bank.

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5.

Kirk pulled into a parking space and Turcotte stopped directly behind

him, blocking Kirk’s vehicle with his truck.
6.

Turcotte got out of his truck, looking very angry. He continued to call

Kirk a “nigger,” threatened to kill Kirk, and rummaged around in his truck until he
found a pair of brass knuckles with which he threatened Kirk.
7.

Kirk felt very afraid and sufficiently threatened that he took a tire iron out

of his car to prepare to defend himself.
8.

A witness confronted Turcotte, who then drove away in his truck.

9.

After Turcotte left, Kirk went into the bank to complete his business.

10.

When Kirk exited the bank, he saw that Turcotte had returned to the

parking lot.
11.

Turcotte’s reappearance made Kirk feel confused, anxious, and paranoid.

12.

As Kirk exited the bank, the police arrived. Turcotte then fled.

13.

After briefly interacting with the police, Kirk left to complete his errands

and return home. Police later came to his house and arrested him, after which Kirk
spent four days in jail.

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B. Kirk’s Damages
14.

In the wake of this incident, Kirk felt—and continues to feel—paranoid

and angry. He talks to his wife often about the incident and also speaks to friends
about it.
15.

Kirk has sporadic nightmares about the incident and sometimes

experiences flashbacks.
16.

Amy Kirk has noticed a difference in her husband since the incident.

Before the incident, Kirk was outgoing. In the immediate aftermath of the incident,
Kirk became withdrawn and depressed. Now, Kirk is angrier, more reserved, less
relaxed, and hypervigilant. Kirk has also become more protective of his children.
17.

In the months following the incident, Kirk attended one counseling

session, but did not find it helpful.
18.

Kirk’s counsel confirmed at the hearing that Kirk is seeking damages only

for emotional distress.
19.

The Court finds that $50,000 will fairly and adequately compensate Kirk

for the emotional distress that he has experienced and is reasonably certain to
experience in the future as a result of the incident with Turcotte.
Putting a dollar amount on emotional damages is always difficult. That said, in
this case, there are a number of aggravating factors. Turcotte’s conduct was sustained

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as well as highly threatening and aggressive. He followed Kirk for 17 blocks, trapped
Kirk in a parking lot, made explicit threats to kill Kirk, and displayed a weapon. After
initially leaving the scene, Turcotte returned. Kirk reasonably feared for his life.
Turcotte’s conduct was also extremely demeaning. He repeatedly called Kirk a
vile racial epithet and, given Turcotte’s language, there is no doubt that Turcotte
targeted Kirk because of Kirk’s race. The Court found Kirk to be a credible witness and,
in particular, found Kirk’s testimony as to the effect of such language to be compelling.
At the same time, Kirk sought counseling only once. In addition, it is difficult to
separate the emotional distress that Kirk experienced as a result of his arrest and
confinement (for which he cannot recover from Turcotte) from the distress that Kirk
experienced as a result of his direct interaction with Turcotte.1 Having considered all of
the relevant factors, the Court concludes that $50,000 would fairly and adequately
compensate Kirk for the damages attributable to Turcotte.
C. Turcotte’s Default
20.

Turcotte was personally served with the summons and complaint in this

action on June 20, 2023. ECF No. 28.

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Kirk testified that it was Turcotte who called the police. The source of Kirk’s
knowledge on this point is unclear, however. Moreover, even if Turcotte did call the
police, the police did not have to arrest or confine Kirk. That was the decision of the
police, not Turcotte. In short, the Court finds that the harm caused by Kirk’s arrest and
confinement is too attenuated to be attributed to Turcotte.
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21.

On December 8, 2023, in compliance with an order from Magistrate Judge

Leo Brisbois, plaintiffs’ counsel sent a letter to Turcotte at Turcotte’s last known
address, informing Turcotte that he was required to file a responsive pleading or seek
an extension of time in which to do so. ECF Nos. 30, 37.
22.

Plaintiffs’ counsel later sent copies of the Kirks’ motion for a default

judgment, notice of hearing on the motion, and associated papers to Turcotte’s last
known address and to a different address located on the internet. ECF No. 66 ¶¶ 1–2.
Plaintiffs’ counsel also mailed a letter to both addresses notifying Turcotte that a motion
for a default judgment was scheduled to be heard on November 12, 2024, at 8:30 am in
the undersigned’s courtroom. ECF No. 66 ¶ 3 & Exs. 1–2.
23.

Despite being personally served and otherwise notified multiple times of

the pendency of this action and the hearing on plaintiffs’ motion for a default judgment,
Turcotte has never filed a responsive pleading, nor has he appeared in this action either
personally or through counsel.
24.

The Clerk of Court entered a default against Turcotte on January 5, 2024.

ECF No. 38.
25.

Based on Aaron Kirk’s testimony, it is clear that Turcotte is not a minor or

incompetent person. See Fed. R. Civ. P. 55(b)(2) (“A default judgment may be entered

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against a minor or incompetent person only if represented by a general guardian,
conservator, or other like fiduciary who has appeared.”).
26.

Turcotte is not in military service. ECF No. 69; see 50 U.S.C. § 3931

(providing military servicemembers certain procedural protections from default
judgments).
II. CONCLUSIONS OF LAW
1.

Plaintiffs bring a claim against Turcotte under Minn. Stat. § 611A.79.

Section 611A.79 permits “[a] person who is damaged by a bias offense” to recover the
greater of $500 or “actual general and special damages, including damages for
emotional distress” from the person who committed the offense. Id. subd. 2.
2.

A “bias offense” is “conduct that would constitute a crime and was

committed because of the victim’s or another’s actual or perceived race, color,” or other
protected characteristic. Id. subd. 1.
3.

Turcotte’s conduct toward Kirk on July 10, 2020—in particular, his verbal

threat to kill Kirk while preventing Kirk from escaping, his display of brass knuckles,
and his calling Kirk racial epithets—constituted a criminal assault under Minn. Stat.
§ 609.2231, subd. 4. That provision makes it a misdemeanor to “assault[] another in
whole or in substantial part because of the victim’s or another’s actual or perceived
race, color,” or other protected characteristic. See also Minn. Stat. § 609.02, subd. 10

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(defining “assault” to include “an act done with intent to cause fear in another of
immediate bodily harm or death”).
4.

Turcotte therefore committed a “bias offense” against Kirk within the

meaning of § 611A.79. As a result, Kirk is entitled to recover damages for his emotional
distress.
5.

Plaintiffs have complied with all of the procedural prerequisites for

obtaining a default judgment against Turcotte. See Fed. R. Civ. P. 55(b).
6.

As the Court has concluded that $50,000 will fairly and adequately

compensate Kirk for the emotional distress caused by Turcotte’s bias offense, the Court
awards Kirk $50,000 and directs that a default judgment in that amount be entered
against Turcotte.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
1.

Plaintiffs’ motion for default judgment [ECF No. 63] is GRANTED.

2.

Plaintiff Aaron Kirk shall recover $50,000 from defendant Dustin James
Turcotte.

3.

Plaintiffs’ counsel shall serve a copy of this order and corresponding
judgment to Turcotte at Turcotte’s last known mailing address.

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LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: November 26, 2024

s/Patrick J. Schiltz
Patrick J. Schiltz, Chief Judge
United States District Court

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