Herr v. Cornhusker Farms et al

Filing 91

ORDER by Magistrate Judge Charles S. Miller, Jr. granting in part and denying in part 39 Motion for Summary Judgment; granting 28 Motion for Leave to File Amended Complaint. (BG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Glenn Herr,
Plaintiff,
vs.
Cornhusker Farms; James Husby,
individually; and Zylstra
Investigations, LLC,
Defendants.

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ORDER GRANTING IN PART AND
DENYING IN PART ZYLSTRA’S
MOTION FOR SUMMARY
JUDGMENT; ORDER GRANTING
LEAVE TO AMEND COMPLAINT
RE PUNITIVE DAMAGES
Case No. 1-15-cv-174

On December 10, 2015, plaintiff Glenn Herr initiated the above action against defendant
Cornhusker Farms (“Cornhusker”), a general partnership between James Husby and Dennis Jones,
both of whom reside in the Aberdeen, South Dakota area. (Doc. Nos. 30, pp. 6-7; 30-3, pp. 4-6).
Also named as defendants are James Husby in his individual capacity and Zylstra Investigations,
LLC. The latter is a one-person private investigation firm owned and operated by Laura Zylstra
Kaiser, a former South Dakota state criminal investigator and a graduate of the University of South
Dakota School of Law. (Doc. No. 41-1, pp. 4-6). For purposes of the discussion that follows,
“Zylstra” will refer either to Kaiser or her investigation firm as the context requires, keeping in mind
that Herr has sued only the latter.
In his complaint, Herr has asserted a number of claims arising out of: (1) Cornhusker
having accused him of stealing a load of its soybeans in 2013 (an accusation Herr claims lacked any
reasonable basis in fact); (2) Cornhusker, with the assistance of Zylstra, attempting to coerce
payment for the soybeans with threats of bringing criminal charges; and (3), when that failed,
Cornhusker, again with the assistance of Zylstra, causing a felony charge of theft to be brought

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against him that ultimately was dismissed for lack of probable cause following a preliminary
hearing. (Doc. No. 1).
Before the court now is Zylstra’s motion for summary judgment seeking dismissal of the
claims brought against it for: (1) negligence; (2) intentional infliction of emotional distress; (3)
abuse of process; and (4) malicious prosecution. In considering this motion, the court’s task is to
determine whether there is a legal basis for the claims and enough evidence to allow them to go
forward. In making these evaluations, the court must at this stage consider the facts in a light most
favorable for Herr, including drawing all appropriate inferences in his favor. E.g., Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Also before the court is Herr’s motion to amend his complaint to request punitive damages.
As discussed later, this motion is governed by N.D.C.C. § 32–03.2–11(1) and similarly requires an
evaluation of the proffered evidence in the light most favorable to Herr.
I.

DISCUSSION OF THE EVIDENCE FAVORABLE FOR HERR
A.

The Cornhusker and Herr soybean operations

Husby and Jones started their farming partnership by renting land in Bowdle South. In
addition to farming this land, Cornhusker also farmed additional acreage in South Dakota and North
Dakota, including the acreage at issue in this case that Cornhusker rented from Lydia Herr in
McIntosh County, North Dakota. This acreage is located approximately 13 miles southwest of
Wishek, which is the closet town. Ashley, the county seat for McIntosh County, is located
approximately 19 miles to the southeast. Cornhusker’s “Wishek acreage” is adjacent to some of the
land that Herr farms in the area with the assistance of his son. (Doc. Nos. 30 pp. 8-9; 30-3, p. 6; 31,
p. 67; 33, p.28; 41-3, p. 4).

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When Husby and Jones first rented the Wishek acreage in 2012, they sought the assistance
of the Herrs to help farm it given its distance from their operation near Bowdle, some 60 miles to
the south, and from Aberdeen where the two partners resided, which is somewhat further away. As
is pertinent here, the Herrs did the spraying and much of the harvesting of Cornhusker’s Wishek
acreage for the 2012 to 2014 farming seasons. Also pertinent here is that Cornhusker and Herr both
grew soybeans as part of their respective farming operations and, during 2013, the Herrs harvested
both acreages. (Doc. Nos. 30, pp. 31 &39; 30-3, pp. 6-9; 41-2, pp. 5-8).
There is evidence that, when Herr harvested Cornhusker’s soybeans, the beans would be
loaded into trucks and transported the same day or the next to one or more elevators in the vicinity,
some of which Cornhusker had pre-existing contracts with for sale of soybeans. The same was not
necessarily true for Herr’s soybeans since he had on-farm storage. (Doc. Nos. 30, p. 12; 41-3, p.
11). Hence, any of beans that Herr might deliver to the elevator may have come either from the
fields as the beans were being harvested or may have come from onsite storage.
B.

The November 2014 call by Husby and Jones accusing Herr of converting a load
of soybeans harvested in 2013

After the 2014 harvest, Husby and Jones had a phone conversation with Herr that November
to discuss the spraying bill that the Herrs had presented to Cornhusker for spraying in 2014 as well
the amount owed by Cornhusker for use of certain of their equipment. During this conversation,
Husby and Jones claimed that Herr had misappropriated a load of Cornhusker’s soybeans the year
prior during the 2013 harvest. More specifically, they claimed that a load of soybeans that Herr had
delivered on October 30, 2013, to the North Central Farmers Elevator in Hague, North Dakota (the
“Hague elevator”) and deposited in his name came from Cornhusker’s soybean acreage and not his
own. (Doc. Nos. 30, pp. 14-15; 32, pp. 23-24, 32-33; 30-3, pp. 8-9; 43; 41-2, p. 7; 43, Herr call
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001).
There is evidence that, for Herr, this accusation of theft in November 2014 of a load of 2013
soybeans - more than a year after the delivery of the load in question and after the intervening 2014
harvest - came out of the blue. Relevant later is that there is some evidence that, during this phone
conversation, Herr may have stated, without the benefit of looking at records and having time to
reflect on the matter, that he completed the harvest of his soybeans on October 27, 2013, before
starting on the same date on the Cornhusker acreage. (Doc. Nos. 30, p. 19; Doc. No. 43, Herr call
001). As discussed later, Herr later told Cornhusker’s investigator prior to any criminal charge
being brought that he had concluded after a review of his records that, while he had finished the bulk
of his soybean harvest prior to starting on Cornhusker’s acreage on October 27, there was one field
that he did not finish until the morning of October 30.
What may be of particular concern to a jury in this case are two points about the timing of
the initial November 2014 phone call. One is the fact that it did not come until after the Herrs had
presented Cornhusker with their bill for 2014 spraying, which Cornhusker disputed and to date has
not paid. The amount of this bill was approximately $15,000, slightly more than the value of
$14,000 that Cornhusker placed on the load of soybeans that it accused Herr of stealing. Second,
despite professing to have believed that Herr had stole a load of its soybeans, Cornhusker not only
did not report the suspected theft to authorities at that time, it continued to employ the Herrs to do
their 2014 spraying and assist with the harvest of the 2014 crop. (Doc. Nos. 30, pp. 47; 32, pp. 2324, 42-43; 30-3, pp.8-9; 43, Herr call 001).

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C.

Cornhusker’s retention of Zylstra and the questionable “evidence” provided by
Husby and Jones

When Herr would not acknowledge that the October 30, 2013 load of beans belonged to
Cornhusker, Husby and Jones retained Zylstra. A jury could conclude from the evidence that
follows that Zylstra was engaged not to conduct an independent investigation as to whether Herr
actually stole the soybeans, but rather to put together in a package the “evidence” that Husby and
Jones believed could be used to pressure Herr with a claim of theft.
Husby and Jones first met with Zylstra at a Perkins restaurant in Aberdeen, South Dakota
on December 1, 2014. During this meeting, Husby and Jones turned over some (but not all) of the
certificates evidencing the deliveries of soybeans that had been harvested from Cornhusker’s acreage
by the Herrs in late October and the beginning of November 2013. The certificates that Husby and
Jones turned over were for deliveries to the Northern Plains Cooperative Elevator at Venturia, North
Dakota (the “Venturia elevator”). Husby and Jones also outlined for Zylstra why these grain
certificates along with other information that they claimed was true demonstrated that the load of
beans that Herr delivered to the Hague elevator on October 30, 2013, came from Cornhusker’s
fields. The “evidence” that appears to have been provided by Husby and Jones to Zylstra was the
following:
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Husby’s assertion that Herr had completed the harvest of his own soybeans on
October 27, 2013, some three days prior to the October 30 load being delivered to
the Hague elevator.

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Husby’s claim that a widespread precipitation event blanketed the area with an inch
or more of rain that began on the evening of October 28, 2013, and continued for
most of the next day. According to Husby, this precipitation event caused the
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moisture levels of the first load of soybeans harvested after the 28th and 29th to have
a higher moisture content than the soybeans harvested on October 27-28 from
Cornhusker’s fields and, since the load delivered by Herr to the Hague elevator on
October 30 had the same moisture content as the loads that were delivered from
Cornhusker’s fields on October 28, that load must have come from its fields.1
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Husby’s claim that a semi-truck full of soybeans that Cornhusker’s hired hand, Miles
Grein, claimed to have remembered seeing parked at the Herr farmstead at about
noon on October 28, 2013, was likely the load of beans that Herr delivered to the
Hague Elevator two days later.2

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Husby’s suspicion that Herr may have committed other acts of theft of its harvested
crop including a load of 2012 corn and maybe more soybeans harvested in early
November 2013 after the load in question. Also, because of the number of weeds in
some of their fields, he suspected that the Herrs may have been shorting Cornhusker
on the amount of chemical being applied when they sprayed.

(Doc. Nos. 30, pp. 13-27; 31, pp. 94-122; 30-3, pp.9-10; 41-1; 43, Herr Calls 001 & 004).
For all of these things, Husby and Jones had no firsthand knowledge because neither of them
were around when any of the alleged events took place. (Doc. Nos. 30, pp. 13-27; 31, pp. 87-88;

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When Husby made the claim that the October 30 load must have come from Cornhusker’s fields because
its moisture content was not consistent with the alleged large intervening precipitation event, he ignored the very real
possibility that the October 30 load may have come from Herr’s storage since there is evidence that Herr at times blended
his harvested soybeans with soybeans in storage to control the moisture content of the delivered soybeans. (Doc. No.
43, Grein call). As discussed more fully later, Herr later determined after putting his records together that the October
30 load came from the harvest a field that he had started combining on October 27 but did not complete until the morning
of October 30.
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October 28, 2013 was a Monday. Husby offered no explanation for why the Herrs would leave a load of
soybeans in their truck until October 30, particularly given his claims about the weather.

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30-3). As for Grein, Cornhusker’s hired hand, his firsthand knowledge was also limited. The Herrs
started combining the field of Cornhusker soybeans in question on October 27. Grein, who also was
from South Dakota, did not arrive with his semi to help haul the harvested Cornhusker soybeans
until the 28th. Grein worked that day hauling several loads of soybeans as the Herrs completed the
harvest of the field in question and returned to South Dakota that evening. Hence, his firsthand
knowledge was limited to what he saw on the 28th. In addition, as discussed later, he had his own
personal issues with Herr. (Doc. Nos. 30, pp. 13-27; 43, Grein call).
For reasons discussed in more detail later, a jury could conclude from the evidence now
before the court that there was no reasonable basis in fact for what Husby and Jones told Zylstra
(and Husby later repeated to the court) and that their theory for why the October 30 load of soybeans
belonged to them was offered in reckless disregard of the truth if not with a purposeful intent to
deceive. As will be discussed later, state district court Judge Narum ultimately concluded that
Cornhusker’s “evidence” that Herr had stolen the October 30 load of beans lacked probable cause.
D.

Evidence that Cornhusker did not turn over to Zylstra or to law enforcement

In addition to the problems with the “evidence” supplied by Husby and Jones, it now appears
clear that they did not turn over to Zylstra or later to law enforcement authorities certain information
that they had in their possession that a jury could conclude was damning to their claim that Herr had
stolen the October 30 load of soybeans. More particularly what appears not to have been turned
over is two sets of information.
The first set was: (1) all of Cornhusker’s elevator certificates for loads of soybeans that were
hauled and deposited in Cornhusker’s name for what was harvested on October 27 and 28; (2)
information identifying the particular field of Cornhusker beans that had been harvested on the 27th

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and 28th and the number of planted acres of soybeans in that field; and (3) the information that
Cornhusker possessed with respect to what yields were being achieved from that field. The
relevance of this kind of information is readily apparent. If the total pounds of soybeans for all of
the loads that were hauled and deposited in Cornhusker’s name roughly matched what was expected
based on the number of planted acres and the apparent yield, then there would likely not have been
a missing load of soybeans for the acreage harvested on October 27-28.
While Husby and Jones did turn over to Zylstra three of the delivery tickets for soybeans
harvested from its acreage on those two dates - one ticket for a load delivered by Herr on the
morning of the 28th for soybeans harvested the day prior and two tickets for loads delivered by
Grein on the 28th - all of which were delivered to the Venturia elevator, it did not turn over to
Zylstra, the BCI, or McIntosh law enforcement authorities the delivery ticket for the last load of the
day that was delivered by Grein to an elevator in Wishek (“Wishek elevator”). During the
preliminary hearing, Herr’s attorney presented evidence that, with this last load of soybeans, it
appeared that all of Cornhusker’s harvested soybeans had been accounted for and that, if the October
30 load was added to that, this would have resulted in a yield substantially in excess of what the
evidence showed the soybeans had been running. Judge Narum found his evidence to be
compelling. (Doc. Nos. 30, pp.17-25; 31, pp. 50,-51, 89-92; 41-1, pp. 15-17).
The second set of information that Cornhusker had available to it that was not turned over
to Zylstra, or anyone else, is what it had itself had sworn to under oath as having been the amounts
of soybeans harvested from the field in question on October 27-28. There is evidence which
suggests that, when this information is also compared to the total amounts of soybeans that were
delivered and deposited in its name, including the amount of the load for the ticket it had not

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disclosed, that all of the soybeans that possibly could have come from Cornhusker’s acreage on the
27th and the 28th were delivered to elevators and deposited in Cornhuskers’s name. (Doc. Nos. 36;
36-1). This evidence only came to light when Herr was able to obtain discovery with respect to
Cornhusker’s crop insurance records and is in addition to that which was considered by Judge
Narum.3
E.

Zylstra’s “investigation”

Following the initial meeting with Husby and Jones, Zylstra proceeded to make contact with
the Sheriff of McIntosh County to inform her of the theft investigation and get the lowdown on Herr.
Zylstra then conducted telephone interviews with Grein, Cornhusker’s hired hand, and the owner
of the land that Cornhusker was renting. The purpose of these interviews appears to have been to
document what Husby and Jones claimed would be the evidence that would support their theory for
why the October 30 load of beans belonged to Cornhusker. Zylstra also called the elevators in
Hague and Venturia but obtained no more records, prepared a spreadsheet summarizing the grain
certificates issued by the elevators, and did internet research on the weather for Wishek for the time
period in question.
The internet research that Zylstra performed and sent to Cornhusker with rest of the above
information has not been made a part of the record here. However, as discussed in more detail later,
information was presented at the preliminary hearing that had been gathered from the National
Oceanic & Atmospheric Administration (“NOAA”) and a North Dakota NDAWN reporting site that

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While these two sets of information were not turned over to Zylstra, there is no evidence that she even
thought about comparing the number of pounds of soybeans that had been delivered and deposited in Cornhusker’s name
to the number of soybean acres harvested on the 28th-29th and what Cornhusker’s records and other evidence suggested
was the yield off that field. Hence, it not clear that had she been presented with the certificate for the load of beans
delivered by Grein to the Wishek elevator and Cornhusker’s crop insurance records she would have done anything
different.

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belies Husby’s statements to Zylstra and others (including to the state court when he swore out the
criminal complaint) about the intensity and widespread nature of precipitation that he claimed
blanketed the area in question on October 28-29 and that was critical to his theory for why the
October 30 load of soybeans had to have come from Cornhusker’s fields. Also, when BCI Agent
Kelly conducted similar weather research, the results he obtained were similar to the information
presented at the preliminary hearing, which did not support Husby’s weather claims. Based on the
information currently before the court, a jury could conclude that Zylstra, who held herself out to
be a trained and experienced investigator, would have reviewed the same sources and discovered
that what Husby had claimed his research showed with respect to the weather was at best
questionable if not outright wrong. Further, the jury could be concerned about the fact that, when
Zylstra turned over information to the McIntosh State’s Attorney, she did not include her weather
research, or, even if she had not kept a copy, at least included a statement about what that research
showed and did not show.
F.

Further contact by Cornhusker with McIntosh law enforcement and a plan to
pressure Herr into paying for the October 30 load of soybeans

In addition to Zylstra making contact with the McIntosh County Sheriff, there is evidence
that Cornhusker did the same and this led to a discussion with the Sheriff about Cornhusker holding
off on pursuing formal charges to see if it could convince (or as the jury might conclude
impermissibly coerce and pressure) Herr into paying up. (Doc. No. 43, Herr call 001 at ~ 00:01:00
& ~ 00:40:00). Further, there is evidence that, to this end, Cornhusker and Zylstra developed a
strategy for exerting maximum pressure on Herr to pay, which was to have Zylstra call Herr on the
morning of April 7, 2015, to communicate the following: (1) things were not looking good for him
based on Zylstra’s “investigation” and her professional experience as a criminal investigator; (2) that
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both Zylstra and Cornhusker had already been in contact with the Sheriff’s office, leaving the subtle
impression that McIntosh law enforcement was ready to proceed on the criminal front; and (3) that
he would have until 2:00 p.m. that day to commit to paying for the beans in question or criminal
charges would be sought and likely would follow. (Doc. No. 43, Herr calls 001-006, numerous
statements). This is also consistent with Husby purportedly having told BCI Agent Kelly that the
purpose of retaining Zylstra was to “see if they can get [Herr] to crack.” (Docket No. 30-4 p. 4)
(quoting an interview between Husby and Troy Kelly on June 3, 2015).
G.

Zylstra’s April 7, 2015 phone conversations with Herr

Zylstra called Herr on April 7, 2015, and that call resulted in five more calls that same day.4
During the six phone calls, Zylstra did convey Cornhusker’s theat that it would proceed with
criminal charges if Herr did not commit to paying up by 2:00 p.m., which was later extended to later
in the day when Zylstra’s phone discussions with Herr became drawn out. Zylstra did indicate to
Herr that, based on her investigation and prior law enforcement experience, things did not look good
for him. Zylstra also emphasized that both she and Cornhusker had already been in contact with the
Sheriff and implied that the Sheriff was on board and ready to proceed with charges. (Doc. No. 43,
Herr calls 001-006, numerous statements). More particularly with respect to the latter, Zylstra at
one point stated:
[Husby] has talked to the Sheriff, I have talked to the Sheriff and its all lined up, its
basically a phone call away . . . .
(Doc. No. 43, Herr call 001 at ~ 00:56:30). At another point she talked about “calling off the sheriff
and putting it [the criminal process] on the backburner . . . . ” (Id. at ~ 1:22) (italics added). Then,

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Zylstra recorded each of the phone calls. There is no indication from the record here that she made Herr
aware of this fact or that he was otherwise aware the calls were being recorded. While not unlawful, a jury might take
a dim view of Zylstra not telling Herr in advance that she was recording the calls given the circumstances.

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a little later, she stated that Husby “feels confident in talking with the Sheriff and having the
documentation that he has” that a charge of theft would prevail. (Id. at ~ 01:45:30).
In addition, Zylstra made other statements to Herr during the course of the conversations on
April 7 that a jury might also conclude were impermissibly threatening and coercive, particularly
in the context in which they were delivered. These included:
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Zylstra telling Herr that the mere bringing of the criminal charge would irretrievably
damage his reputation, even if he later proved his innocence, including stating that
once a criminal charge is brought:
then you are going to be arrested, then you are going to be booked in,
then you are going to have it all over the newspaper - the whole
world is going to know. And, there is no stopping it. A lot of times
people will remember that you were arrested; people don’t ever
remember the outcome of the case. People don’t get that. It is pretty
hard to take that back - innocent or not. That stigma stays with a
person.
(Id. at ~ 01:39:20) (interjections by Herr omitted).5

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Zylstra multiple times emphasizing the severity of the criminal charge and that he
may be facing jail time. For example, at one point she stated that the theft of the
soybeans in question would be a Class B felony punishable by imprisonment for up
to 10 years, a fine of up to $20,000 fine, or both - a “serious deal.” (Id. at ~
00:47:25). Also, at another point she stated that Husby’s position was that “you take
this offer [Husby’s offer to forgo seeking criminal charges if Herr agreed to pay up]
or pay the money [as result of being found guilty] and be looking at felony time.”
(Doc. No 43, Herr call 004 at ~ 00:04:25) (emphasis added).

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With this statement, Cornhusker and Zylstra may have a difficult time explaining to the jury why Herr’s
reputation has not been damaged if Herr is able to prove liability.

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C

Repeatedly emphasizing to Herr that he would facing an arrest if criminal charges
went forward. For example, in addition to the statement set forth above, Zylstra
stated at another point during the first conversation that if “charges will come out,
a warrant of for your arrest will come out and then you have to prove your innocent
[sic] in court.” (Doc. No. 42, Herr call 001 at 01:38:20). Then later she stated in
another call that Husby’s position was that it was “not going to be so good a situation
for you if he goes forward though the court system and deal with the arrest and all
that stuff.” (Doc. No. 43, Herr call 004 at ~ 00:18:00).

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Zylstra telling Herr that, if things were not resolved that day, there likely would more
than just the one load of beans involved, that everything would be gone through
going back to 2012, and that he might very well have to face multiple felony charges
as a result. At one point during the first call, she stated:
His [Husby’s] intent if it goes to the Sheriff’s office, if it gets to that point,
he wants everything to be combed through going all the way back to 2012,
going through corn, going through beans, going through everything . . . .

(Doc. No. 43, Herr call 001 at ~ 00:29:30). Then, after Herr asking whether Husby
was claiming there were other thefts. She responded: “That is what he is saying.”
(Id. at ~ 00:30:31). This was followed shortly by:
Next step would be is to have subpoenas issued to all of the grain elevators
-- you know -- anywhere grain or beans -- anywhere it could have been -subpoenas back to 2012 . . . .

(Id. at ~ 00:31:30). Then a little later:
I wouldn’t -- I wouldn’t be calling to talk with you here if I did not
think there was an issue. * * * * I would have backed out of the
investigation if I did not think there is something here. * * * * And
you know I have seen it -- and um I am not accusing you here -- but
what I have seen in law enforcement if there is an issue as far as a
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theft, that it is not one time. * * * * But if it happened once, it
probably happened twice.
(Id. at ~ 00:46:00). And still later, if the criminal process goes forward:
I mean a Class B felony. And possibly multiple. I mean that that’s the
thing. It won’t be just this one issue looked at. If there’s other
discrepancies - you know . . . .

(Id. at ~ 01:40:20). Finally, in the fourth call after Herr complained that what was
going on amounted to extortion, Zylstra stated in response:
And, well, he [Husby] feels there this isn’t the one time, there is the October
30th, he feels there is another issue on November 4, and he thinks in going
back there is going to be other issues.

(Doc. No. 43, Herr call 004 at ~ 00:17:36).
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Telling Herr he would have no civil recourse if he was wrongly charged because
Husby would be protected by the fact that the prosecutor will have brought the
charge and the prosecutor, in turn, would have immunity. (Id. Herr call 001 at ~
01:41:20).

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Finally, during the last phone call on June 7 after Herr stated he could not agree to
what Husby was proposing and that it felt like extortion, Zylstra stating the
following:
Well I will go forward then with information that we have talked about
today and just share that with the Sheriff and it doesn’t look good. * * * *
As far as all the evidence and where we are at, it does not look good for
you.

(Doc. No. 43, Herr call 006 at ~ 00:01:40) (emphasis added). And then after Herr
again stated he believed this to be extortion on the part of “you guys” [meaning
Cornhusker and Zylstra] and that he could not agree, Zylstra stated in one last
attempt:
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Ok, he [Husby] just wanted to pass on that he will be meeting with the
Sheriff tomorrow then.

(Id. at ~ 00:02:50).
H.

Subsequent communications with McIntosh County law enforcement

Notwithstanding the repeated assertions by Herr during the April 7 phone calls that his
paperwork would prove his innocence and his begging that at least Zylstra meet with him to discuss
that information, Husby and Jones both went to the courthouse in Ashley the next day and met for
a couple of hours with the Sheriff and the State’s Attorney. There Husby presented a handwritten
statement of Cornhusker’s theory for why the October 30 load of soybeans belonged to it. Husby
and Jones also turned over the copies of the elevator certificates that they claimed supported their
theory of theft of the October 30 load of soybeans but did not include the elevator certificate for the
last load of soybeans that was delivered and deposited in Cornhusker’s name by Grein on October
28, which was at the Ashley elevator. (Doc. Nos. 30, pp. 23-25; 33).
Also the next day, Zylstra prepared a written summary of her first two-hour telephone
conversation with Herr on April 7. And, just as she stated to Herr that she would do if the matter
was not settled , she forwarded that report to the State’s Attorney along with copies of the recordings
she had made of the telephone calls. (Doc. No. 41-1p. 20). Notably, she did not forward to the
State’s Attorney her weather research or a summary of that research.
Zylstra takes the position that there was nothing that she did that was a material factor in the
bringing of the criminal charge against Herr. There is, however, substantial evidence upon which
a jury could conclude otherwise.
First, in the written summary of the first conversation, Zylstra highlighted a number of points
in italics. A jury could conclude based on what she highlighted that her purpose for doing so was

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to emphasize for Cornhusker and McIntosh law enforcement what she considered to be indicia of
Herr’s guilt and implicitly that she supported the bringing of a criminal charge.
Second, one of the pieces of “evidence” that Husby offered in his ex parte testimony in
support of the complaint and that he and Zylstra repeated during the preliminary hearing was Herr’s
offer during the April 7 conversations with Zylstra to forgo payment of the spraying bill in order to
settle matters. When Husby continued to demand payment for the soybeans, Herr then offered to
pay for the soybeans if Cornhusker would at the same time pay the spraying bill, which, essentially,
was the same thing since the spraying bill was roughly equal to what Husby was claiming the load
of soybeans was worth. A jury could conclude that Cornhusker and Zylstra “manufactured,” so to
speak, this allegedly inculpatory evidence by the pressure they exerted on Herr - particularly
Zylstra’s statements during the April 7 telephone calls that a jury might very well conclude were
oppressive and beyond the pale in the context in which they were made.
Third, the jury could conclude that Zylstra’s preparation of a summary of only the first
conversation - italicized passages and all - coupled with the failure to explicitly caution the recipient
of the tapes that all of them needed to be listened to, if she was not going to summarize the
remaining conversations, resulted in materially incomplete information being conveyed to Judge
Narum when he approved the initial complaint. This is particularly true for what was presented and
not presented to Judge Narum with respect to what Herr had stated as to the date on which he had
finished harvesting his own soybeans. This point will be addressed in more detail later.
Finally, in forwarding to the State’s Attorney evidence that Husby and Zylstra considered
damning, a jury could also be troubled by her failure to have provided the State’s Attorney with a
summary of what she found or more likely did not find with respect to weather for the reasons
expressed earlier.
16

I.

The BCI investigation

In late May 2015, the McIntosh Sheriff requested that the BCI look into this matter. The
investigation was assigned to BCI Agent Troy Kelly. After reviewing documents that Husby had
provided to McIntosh law enforcement, the first thing that Agent Kelly did was to contact Husby
to confirm that he still stood by what he had stated in the handwritten statement he had provided to
the Sheriff and the State’s Attorney, which, essentially, was a summary of what Husby had earlier
conveyed to Zylstra. (Doc. Nos. 31, p. 15; 33).
Agent Kelly also obtained elevator records from the Hague elevator, the one used by Herr
for the delivery of the October 30 load. He did not get any records from the Venturia elevator for
Cornhusker’s loads, since those had already been provided by Husby to the Sheriff and the State’s
Attorney, and he did not obtain any records from the Wishek elevator because Husby did not advise
that part of their soybeans harvested on October 28, 2013, had been delivered to that elevator. (Id.
at 19-21, 49-53).
Agent Kelly next conducted interviews of Grein, Cornhusker’s hired hand, and Herr. In
addition, he conducted internet research with respect to the weather but did not document it. (Id.
at 31-39, 43-47). As will discussed later, the results of Agent Kelly’s internet research did not
support Husby’s claims with respect to the weather. Also, while it may be that the BCI investigation
was a factor (but likely not the exclusive one) in the State’s Attorney’s decision to support the
prosecution, it appears not to have been a factor in Judge Narum’s decision initially to allow the
criminal process to proceed since Agent Kelly did not prepare an affidavit or present testimony in
support of the complaint.
J.

Husby swearing out of the criminal complaint for theft and the court’s initial
determination of probable cause based on testimony from Husby

17

On July 23, 2015, Husby swore out a complaint charging Herr with the offense of theft of
property of a value in excess of $10,0000, which is a Class B felony under North Dakota law. (Doc.
No. 4). Initially, the only evidence that was proffered in support of the complaint was a very short
and conclusory affidavit completed by Husby. (Id.). When Judge Narum determined that to be
insufficient, testimony was given by Husby in support of the complaint during an ex parte
proceeding. (Doc. No. 41-3). No other testimony, either oral or by affidavit, was given. In short,
the court relied only upon what Husby presented in concluding at that point there was probable
cause for the commencement of the criminal process. (Id.).6
K.

The preliminary hearing and the dismissal of the theft charge for lack of
probable cause

A preliminary hearing was held on November 2, 2015. The State called as witnesses BCI
Agent Kelly, Zylstra, and Husby. Herr’s attorney called his Herr’s son to testify. Also, Herr’s
attorney introduced weather data that a jury could conclude in this case rendered Husby’s claims
about the weather and what he contended was its consequences unreliable. Further, Herr’s attorney
introduced acreage and yield information for the Cornhusker field that was harvested on October
27-28 together with the evidence of the total quantity of beans that had been harvested from that
field and deposited in Cornhusker’s name, including the previously undisclosed grain certificate for
the load of soybeans that Grein had hauled on October 28 and deposited at the Wishek elevator.
At the conclusion of the hearing, Judge Narum concluded there was not enough evidence to
support a finding of probable cause to allow the charge of theft of the October 30 load of soybeans
to go forward. And, while this was all that Judge Narum needed to decide in order to dismiss the
charge, he went on to observe that, insofar as he was concerned, Herr had proved by at least a

6

It is not clear why the complaint was sworn out by Husby and not BCI Agent Kelly or the Sheriff.

18

preponderance of the evidence that the October 30 load of soybeans belonged to him and not
Cornhusker. Further, Judge Narum agreed with Herr’s counsel that Cornhusker’s actions raised
legitimate concerns about whether it had committed criminal coercion.7 More particularly, the court
stated:
In this particular case, when this matter was initially ex parte submitted , I sent it
back and I said there isn’t enough evidence here to support the allegation.
****
After I sent the case back to the prosecutor I took testimony, which has been
subsequently provided to the defendant, and yet that again is on an ex parte basis. And while
I believe at that point this case as a criminal matter was razor thin, I found that there was
probable cause to support the complaint.
Now , having had t he opportunity to take in the evidence with the defendant having
his right to cross examine today and also with the defendant having his opportunities to
submit evidence, I think that, as I pointed out to the prosecutor during his closing argument,
it appears to me that we have all of the Cornhusker grain accounted for. And
notwithstanding, and the defendant has no burden to submit any evidence whatsoever, I think
Defendant’s Exhibit 29 and Defendant's Exhibit 32, if I were sitting here today in a civil
proceeding , I would find that this defendant has met his burden of preponderance the
opposite way. Now that's not the burden before me today. The burden is to determine
whether or not the prosecution has established probable cause to believe that theft, as alleged
in the complaint, has been committed by this defendant. And I frankly agree in part with
what Mr. Myerchin has said, this case is a rare case and I leave no criticism for the
investigators. There ' s - - they sent forth to the prosecutor and to law enforcement what they
had.
I think the conversation we had today about Mr. Herr in negotiating and that can be
considered by me to be evidence of a guilty mind. In this case I think, after a long pause,
we're another harvest into a farmer's life, he is in the situation where he's being accused of
a very serious crime and he's negotiating essentially blind. He's being threatened, and I think
the statute that you cited regarding criminal coercion, I think that's a legitimate concern.
That is crossing my mind as I'm hearing the testimony is they're saying; you pay me this
much by this time or I'm going to the authorities and you're going to go to jail. And whether
those were the exact words or not I don't know and I'll never know, but I am not going to sit
here and consider that as evidence of a guilty mind when in all other aspects of the evidence
that I have received over a great deal of testimony today don't amount to probable cause.
Notwithstanding what the defendant himself submitted without the obligation to submit
evidence again.
7

While Judge Narum stated he did not include the investigators in making that assessment, it does not appear
he had before him the full scope of the statements that Zylstra had made to Herr as set forth in the tapes of the six phone
conversations.

19

So I find absolutely there is not probable cause to support the complaint in this case.
The matter is dismissed.

(Doc. No. 32, pp. 55-56).
As discussed later, Zylstra places particular reliance upon the fact that Judge Narum initially
concluded there was probable cause for the complaint. In terms of this case, there is evidence from
which a jury could conclude that Judge Narum was simply wrong when he found there was
probable cause initially. Also a jury could conclude that the initial finding of probable cause was
based in substantial part that upon: (1) testimony given by Husby that was rendered unreliable based
on information that he and/or Zylstra possessed and failed to disclose; (2) testimony for which there
was no good faith basis in fact if not outright purposefully deceptive; and (3) evidence that was
generated in part by the pressure exerted upon Herr by Husby with Zylstra’s assistance.8 These
points will be addressed more fully in what follows next.
L.

What the jury could conclude were the problems with what Cornhusker was
claiming and why there was not probable cause
.
1.

Husby’s testimony that Herr’s October 30 load of beans must have come
from Cornhusker’s acreage because of the weather

In his ex parte testimony in support of the criminal complaint, Husby claimed that the
precipitation event that hit the area in question was “all night [the 28th] and I think next day event.”
He testified he had “went back through NOAA and got kind of the amounts and there was roughly
an inch of precipitation across the area.” (Doc. No. 41-3, p. 12). Then, at the preliminary hearing
in response to questions by the State’s Attorney, Husby testified that on the evening of October 28,
he observed on the radar a large weather system that blanketed the area. (Doc. No. 31 at p. 84). He

8

While the court here makes reference to the jury, it has not yet resolved whether the jury will make the
determination based on instructions from the court as to what constitutes probable cause or whether the court will make
the determination after submitting special interrogatories to the jury with respect to contested factual issues.

20

claimed he had personally researched the amounts of precipitation and then, without any supporting
documents, testified as follows:
Q:

Do you know how much rain or snow Wishek got?

A:

Between the area an inch to two.

Q:

Of snow.

A:

Yes. Rain a lot of it came in rain, but there was, yeah, sleet and stuff like that.

Q:

You don't know how many -- do you know how many inches of moisture, actual
moisture rain or liquid --

A:

From what I found with NOAH [sic] with their observations and stuff in the Ashley
area, there was around an inch and northwest - -

Q:

Where did you get that information from?

A.

I called the NOAH [sic] service.

Q:

Did you get anything in writing on that?

A:

I wrote it down on some paper and stuff of my own and they just -- they gave me
some of their local spotters that they have gave me their totals and stuff through
that.

(Id. at p. 85). Then, upon cross-examination, he further testified:
Q:

Okay. Now you’re telling us -- you testified here earlier that this -- you called
NOAH [sic] and they confirmed that the Ashley area got an inch, inch and half of
precipitation.

A.

Mm-hmm.

(Id. at p. 101).
Based on the current record, the jury could conclude not only that there was no evidence to
support Husby’s claim of a large precipitation event that blanketed the area, but also that some of
what he claimed, including that he had checked with NOAA, was simply made up or, at the very
least, testified to about in reckless disregard of the truth, given its apparent inaccuracy. Notably,
the actual documentary evidence from NOAA for Ashley for the period of October 28-29, which
21

was introduced during the preliminary hearing, shows that it received only 1/100th (0.01) of an inch
of rain and a ½ inch of snow (and, of course, the moisture content of snow is far less than rain) far less than what he claimed Ashley had received based on his purported checking. (Doc. No. 33,
p. 14). In addition to that, there is the evidence from the Wishek observation station that is part of
North Dakota’s NDAWN system. It is located approximately four miles west of Wishek and is the
closest weather observation point to the area in question. The documentary evidence from that
station reported no precipitation on the 28th and 29th. (Id. at 22-23; Doc. No. 32, pp. 2-3).
The evidence from the actual weather records was further bolstered by the testimony given
during the preliminary hearing by BCI Agent Kelly when he was subject to cross-examination. He
testified as follows:
BY MR. MYERCHIN:
Q:

Now in looking through your case file, I didn't see any weather reports in your case
file.

A:

No, sir.

Q:

And you, in fact, you never verified that there was this claim of a large storm
system. Correct?

A:

I did some research on the internet through various sites. Depending on which
weather station or report you got from, none of them were consistent; some showed
no precipitation, some showed some precipitation, some showed minuscule
amounts of precipitation. I assume, I'm obviously not a weather forecaster or a
meteorologist, but I would suppose specific to that area could fluctuate, you know,
10- 15 miles from wherever their records are obtaining that data. So it was tough to
say; some showed that there was precipitation in the area, some showed there was
none.

Q:

And yet you didn't go and secure Ashley NOAH weather records.

A:

I did not maintain any records from any of the sites that I searched.

(Doc. No. 31, at p. 52).
The significance of all of this becomes readily apparent when one considers an exhibit

22

presented at the preliminary hearing showing the location of NDAWN’s Wishek observation point
relative to (1) Cornhusker’s soybean acreage, and (2) Herr’s “gumbo fields.” (Doc. No. 33, p. 28).

In the diagram, the Cornhusker soybean acreage is located next to the block that is labeled “Glenn
Herr,” which depicts a part of his farm. The acreage that Herr tried to explain to Zylstra during the
April 7 phone calls as being the source of the October 30 soybean load in question is what has been
labeled as Herr’s “gumbo fields.” Herr’s son testified during the preliminary hearing that, while he
and his father had started combining this acreage on October 27, they did not complete it until early
on the morning of October 30 while the ground was still somewhat firm from the cold conditions
of the night before and that the October 30 load that Cornhusker claimed they stole came from that
acreage. (Doc. No. 32, pp. 8-15, 26-27, 141). Not only are the gumbo fields several miles distance
23

from Cornhusker’s acreage but they are also closer to the NDAWN Wishek reporting station that
reported no precipitation on October 28-29. (Id. at 5-7; Doc. No. 33, p. 28).
While there is evidence that Cornhusker’s soybean acreage did get some precipitation on the
evening of the 28th and there was some delay in the completion of the harvest of those fields, it is
perfectly consistent with the varying intensity and uneven nature of the reported precipitation that
Herr’s gumbo fields got little or no precipitation, which is what the Herrs have claimed Further,
given the lack (or lesser amount) of precipitation, differing terrain and ground conditions, and a day
to dry, it would be sheer to speculation to conclude that the moisture content of the October 30 load
would have had to have been higher if it had been combined that morning from Herr’s gumbo fields
and that the soybeans could only have come from Cornhusker’s acreage harvested on the 28th.9
Further, this putting aside whether Husby has the necessary credentials to render an opinion with
respect to what the moisture content would have had to have been as well as the necessary
foundation information given all of the factors that might come into play.
2.

Husby’s testimony that Herr finished the harvesting of his beans on
October 27

Husby was also asked by the State’s Attorney during his ex parte testimony in support of the
complaint when Herr finished the harvest of his soybeans. More specifically, the line of questioning
went as follows:
Q:
Also you had - - you had read the investigator’s report concerning her interview with
Glenn Herr.
A.

Yes.

Q.

And in that report he admitted that he was done with his crop on the 27th. Right?

9

It appears the moisture content delivered to the Hague elevator on October 30 had approximately the same
moisture content as soybeans the Herrs stated they harvested from the gumbo fields on the 27th. (Doc. No. 32, pp. 2223).

24

A.

Yes.

(Doc. No. 41-3, p.11).
The problem with this testimony is that a jury could readily conclude it was at best reckless
if not out right purposefully deceptive. In order to understand why requires some additional context.
As noted earlier, there is some evidence that Herr may have expressed a belief during the November
2014 phone call with Husby and Jones that he may have completed the harvesting of his soybeans
on October 27, 2013. However, there is also evidence that he had been caught cold by the phone
call from Husby and Jones and did not have his records in front of him when he made that statement.
With that, Zylstra’s report did not state that Herr admitted that he completed the harvest of
his soybean acreage on October 27. What the report actually stated was the following:
I also told him that I was aware he told Cornhusker he was done combining on the 27th of
October to which Glenn responded “yeah.” Glenn went on to say that he looks forward and
not backward but admitted “it could be, maybe I did say that.” Glenn said in the meantime,
after he talked to Cornhusker last fall, then he created a timeline and prepared a folder
containing all of his tickets. Glenn said he wouldn’t know when he was done combining
without looking in his file, therefore he couldn’t say if the 27th was correct or not. I told

him that was fine.
(Doc. No. 30-1, p.2) (italics in original).
Moreover, a jury could conclude that even this summary was not accurate in terms of what
Herr said to Zylstra when all of what he told her on April 7 is considered. When Zylstra first called
Herr on April 7, 2015, the tapes reflect that Herr was again caught cold and did not have his file in
front of him during the first conversation when Herr purportedly stated what Zylstra set forth in the
above summary. After the first conversation, however, Herr had the opportunity to retrieve his file,
review his records, and consult with his son. In later calls on April 7, Herr told Zylstra more than
once that his records reflected that they did not complete the harvest of their soybeans until October
30. (Doc. No. 43, Herr call 002 at ~ 00:13:36; 003 at ~ 00:04:35). In fact, during the second call,
25

Herr explained in detail that, on the morning of October 30 while the ground was still somewhat
firm from the cold overnight temperatures, he and his son completed the soybean harvest from the
last of his fields and that this was the source of the beans that he delivered on that day to the Hague
Elevator. (Id.).
The fact that Herr had made these statement was not communicated to Judge Narum when
Husby swore out the criminal complaint. Rather, based on Husby’s testimony, Judge Narum was
left with the impression that Herr had unequivocally admitted he had completed the harvest of his
soybean acreage on the 27th.
A jury could conclude this misrepresentation of Herr’s position was not only Husby’s fault
but also Zylstra’s as well. While Zylstra forwarded to Husby and the State’s Attorney recordings
of all of her conversations with Herr, she (1) prepared and forwarded a written summary of only the
first call, and (2) did not explicitly alert either Husby or the State’s Attorney that they needed to
listen to the rest of the calls because what was written in the summary of the first call did not fully
reflect what Herr had actually had to say about this and other matters. Further, in her written
summary, Zylstra put in italics what Herr had purportedly stated to her about what he might have
stated during the November 2014 call knowing full well that Herr said more than that after he had
reviewed his records. A jury could reasonably conclude from this that Zylstra was not simply
reporting facts as she had gathered them but rather had become a cheerleader for the bringing of
criminal charges and was disingenuous in the manner in which she presented the results of her
“investigation.”
In summary, a jury could conclude there never was any real basis in fact for Husby’s claim

26

that Herr had completed his soybean harvest on October 27.10 Also, short of that, a jury could
conclude that Husby recklessly (if not intentionally) caused Judge Narum to be misled to the extent
that he was left with the impression there was no dispute about this issue, and that Zylstra’s conduct
contributed to that.
3.

Husby’s recounting of what his hired hand claims to have seen on
October 28

Husby also claimed during his ex parte testimony that Cornhusker’s hired hand, Miles Grein,
had seen a truckload full of beans parked in Herr’s yard around noon on the 28th. According to
Husby, Grein claimed that, even though Herr advised him that those soybeans were his, Grein
believed otherwise since the beans were in the truck that Herr had used to haul a load of Cornhusker
soybeans that were delivered on the morning of the 28th and deposited in Cornhusker’s name.
Husby claimed that the truckload of beans that Grein claims to have seen parked in Herr’s yard on
the 28th must have come from Cornhusker’s acreage (although Grein had no firsthand knowledge
of that even assuming he saw this truck on that date and that it was full of soybeans) and was the
load that was eventually delivered by Herr on October 30 to the Hague elevator. (Doc. No. 41-3,
pp. 9-11).
Here, there is sufficient evidence from which a jury could conclude, as Judge Narum
concluded, that this evidence was too speculative to support a finding of probable cause because
the more direct evidence (that Cornhusker had in its possession and failed to disclose) supported a
conclusion that there were no missing soybeans, much less that the October 30 load of beans was
10

There is also evidence that Husby could not in good faith have relied upon Grein for his assertion that Herr
had completed the harvest of his beans by October 27. Grein was not out there on the 27th or the 30th. (Doc. No. 43,
Grein call). Further, there is no evidence that he personally inspected all of Herr’s soybean acreage when he was there
on the 28th - particularly the gumbo fields located several miles away from the Cornhusker acreage. Finally, Grein told
Zylstra during his interview that he was not sure when Herr finished the harvesting of his soybeans. (Doc. No. 43, Grein
interview at ~ 00:16:40, ~ 00:45:00).

27

the load purportedly seen by Grein in Herr’s yard on the 28th, if he even saw such a load on that
date.

Also, apart from this, a jury could conclude after listening to the recording of Grein’s

interview that he simply is not a reliable witness due to his apparent difficulty in recalling certain
events and the uncertainty he expressed at times as to what actually had taken place. In fact, BCI
Agent Kelly noted during his preliminary hearing testimony that, at least initially, Grein appeared
to have been similarly confused. (Doc No. 32, pp. 39, 52-57). In addition, there is evidence that
Grein had an axe to grind with Herr. (Doc. No. 43, Grein call). For these reasons alone, a jury could
conclude that Husby and Grein’s joint animus of Herr led to their stacking one bit of speculation and
surmise upon another and that Grein’s professed recollection was at best simply confabulation.
4.

Herr’s purported admission of guilt

Another point that Husby offered during his ex parte testimony in support of the complaint
was that Herr had offered to forgo collection on his 2014 spaying bill in exchange for Cornhusker
not pursing criminal charges. While Husby at one point did state that Herr had claimed he was
innocent of any theft, he clearly implied that the offer to forgo receipt of payment on the spraying
bill was evidence that Herr was guilty, i.e. a truly innocent person would not have done this. (Doc.
No. 42-3, pp. 10-11). Judge Narum concluded at the end of the preliminary hearing after similar
testimony was given that this was insufficient to move the needle towards a finding of probable
cause. As set forth above, he concluded that a person in Herr’s situation could come to the
conclusion that, even though innocent, it was better to simply put matters behind him.
Further, there are at least two additional reasons why the jury might reach the same
conclusion here. The first is what Herr explained to Zylstra during one or more of the April 7 phone
conversations which was that he did not believe he was giving up much by forgoing the spraying
bill since Cornhusker was refusing to pay it and his attorney had advised he could spend more than
28

what it was worth in attorney’s fees in getting a judgment, not to mention trying to enforce it in
South Dakota. The second reason is Zylstra’s statements to Herr that his reputation would forever
be damaged by the mere bringing of the criminal charge, even if he was able to later prove he was
innocent. That is, the jury might conclude that forgoing a contested spraying bill might be a small
price to pay not to have to go through the criminal process and endanger one’s reputation. Notable
also is the fact Judge Narum was not aware of Herr’s explanations for why he offered to forgo the
spraying bill or the degree of pressure that Cornhusker and Zylstra had placed upon Herr when he
allowed the complaint to go forward following Husby’s ex parte testimony.
II.

ZYLSTRA’S MOTION FOR SUMMARY JUDGMENT
Zylstra argues it is entitled to summary judgment as to each of Herr’s causes of action as a

matter of law. Herr disagrees and argues summary judgment is inappropriate because disputed
issues of material fact exist as to issues contained within each of his causes of action.
A.

Negligence

Zylstra argues it is entitled to summary judgment as to Herr’s negligence claim because
Zylstra did not owe any duty to Herr. Herr argues summary judgment is inappropriate because
Zylstra had a duty to uphold the code of ethics governing the conduct of private investigators in
North Dakota. Thus, as presented in the current motion, the court must decide whether Zylstra owed
any duty to Herr in conducting its investigation.
The court has not found, nor have the parties cited, a North Dakota Supreme Court decision
on whether a private investigator owes a third-party investigatee a duty to conduct a competent
investigation under North Dakota law.11 The North Dakota Supreme Court has said: “‘Duty is

11

The parties have not suggested the law of some state other than North Dakota applies to this action.

29

essentially a question of whether the relationship between the actor and the injured person gives rise
to any legal obligation on the actor's part for the benefit of the injured person.’. . . Whether the
relation between two parties is such that it gives rise to a duty is a question of law for the court to
decide.” Azure v. Belcourt Public School Dist., 2004 ND 128, ¶ 10, 681 N.W.2d 816 (quoting 57A
Am. Jur. 2d. Negligence § 89 (1989 & Supp. 2002)).
Herr bases his argument about a duty existing between Zylstra and himself on the code of
ethics for private investigators. The North Dakota Private Investigation and Security Board has the
power to “regulat[e] persons providing private investigative and security services” within North
Dakota. N.D.C.C. § 43-30-04. Within that province, the “board may either refuse to renew,
suspend, revoke, or place on probationary status any licensee, or issue a letter or reprimand for . .
.: (8) Unprofessional conduct . . . .” N.D. Admin. Code § 93-02-03-05(8). The administrative code
defines “unprofessional conduct” as including a violation of the code of ethics promulgated at N.D.
Admin. Code § 93-02-03-05.1. This code of ethics, speaking broadly, requires private investigators
to conduct themselves with professionalism and to deal justly with all persons.
The court is not convinced this code of ethics creates a duty between a private investigator
and the persons whom they investigate. In other contexts, the North Dakota Supreme Court has not
allowed an aggrieved party to use a professional code of conduct as a basis for establishing civil
liability. Nesvig v. Nesvig, 2004 ND 37, ¶ 23, 676 N.W.2d 73 (stating the N.D. R. Prof. Conduct
“are designed to provide guidance to lawyers and a structure for regulating conduct through
disciplinary agencies, and they are not intended to be a basis for civil liability.”). This is so because
professional codes of conduct are only intended to regulate professions through professionally
accepted standards. See id.; Schatz v. Rosenberg, 943 F.2d 485, 492 (4th Cir. 1991) (stating “ethical
rules were intended by their drafters to regulate the conduct of the profession, not to create
30

actionable duties in favor of third parties”); Bickel v. Mackie, 447 F. Supp. 1376, 1383 (N.D. Iowa
1978) aff’d 590 F.2d 341 (8th Cir. 1983) (stating an attorney’s violation of the rules of professional
conduct “is not tantamount to a tortious act, particularly with regard to liability to a non-client.”).
Simply because a professional’s conduct may constitute grounds for professional discipline, cf. In
re Disciplinary Action Against McKechnie, 2003 ND 22, ¶ 16, 656 N.W.2d 661 (stating “the rules
of professional conduct set a minimum level of conduct with the consequence of disciplinary action
. . . .”), does not mean civil liability necessarily follows. Nesvig, at ¶ 23.
The court concludes such principles are applicable here. The regulatory framework codified
at N.D.C.C. ch. 43-30 and N.D. Admin. Code tit. 93 governs the conduct of private investigators,
a violation of which would provide grounds for professional discipline. Nothing within this
framework, however, suggests these regulations impose a legal duty on private investigators that
might give rise to civil liability. Nesvig, at ¶ 23; see also 26B C.J.S. Detectives § 10 (stating private
investigators “have a duty to provide their services only to those with whom they have agreed to
provide such services and to intended third-party beneficiaries to that agreement.”). If the court
were to find N.D. Admin. Code § 93-02-03-05.1 creates a duty on the part of a private investigator,
it would, in essence, allow privatized enforcement of ethical rules better left for the appropriate
disciplinary body---here, the North Dakota Board of Private Investigators. The court concludes
Zylstra did not owe Herr a duty to uphold the code of ethics in conducting its investigation.
B.

Intentional Infliction of Emotional Distress

Zylstra argues it is entitled to summary judgment as to Herr’s intentional infliction of
emotional distress claim because its conduct cannot, even under a construction most favorable to
Herr, be considered extreme or outrageous. Herr argues summary judgment is inappropriate because
issues of material fact exist as to whether Zylstra’s conduct can be considered extreme or
31

outrageous.
The North Dakota Supreme Court most recently outlined the tort of intentional infliction of
emotional distress in Hysjulien v. Hill Top Home of Comfort, Inc., 2013 ND 38, 827 N.W.2d 533:
In Muchow v. Lindblad, 435 N.W.2d 918, 923–25 (N.D.1989), this Court recognized a cause
of action for the intentional infliction of emotional distress under Restatement (Second) of
Torts § 46 (1965), requiring proof of “(1) extreme and outrageous conduct that is (2)
intentional or reckless and that causes (3) severe emotional distress.” “The ‘extreme and
outrageous' threshold is narrowly limited to conduct that exceeds ‘all possible bounds of
decency’ and which would arouse resentment against the actor and lead to an exclamation
of “ ‘outrageous' ” by an average member of the community.” Hougum v. Valley Memorial
Homes, 1998 ND 24, ¶ 26, 574 N.W.2d 812. In G.K.T. v. T.L.T., 2011 ND 115, ¶ 17, 798
N.W.2d 872, this Court reiterated that “Muchow and its progeny repeatedly emphasize the
strenuously high, ‘all possible bounds of decency’ standard.”Hysjulien, at ¶ 40.

With respect to the extreme or outrageous conduct prong, the court further observed:
Whether the alleged actions meet the threshold of extreme and outrageous conduct is a
question of law to be decided by the court. Dahlberg v. Lutheran Soc. Servs., 2001 ND 73,
¶ 21, 625 N.W.2d 241. Thus, “[t]he court must initially decide whether a defendant's conduct
reasonably may be regarded as ‘extreme and outrageous.’ ” Hougum, 1998 ND 24, ¶ 26, 574
N.W.2d 812. However, “[i]f reasonable persons could differ, a plaintiff is entitled to have
the trier-of-fact decide whether the conduct is sufficiently extreme and outrageous to result
in liability.” Dahlberg, at ¶ 21.

Hysjulien, at ¶ 41. Elaborating further, the court has said:
The cases thus far decided have found liability only where the defendant's conduct has been
extreme and outrageous. It has not been enough that the defendant has acted with an intent
which is tortious or even criminal, or that he has intended to inflict emotional distress, or
even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which
would entitle the plaintiff to punitive damages for another tort. Liability has been found only
where the conduct has been so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Generally, the case is one in which the recitation of the
facts to an average member of the community would arouse his resentment against the actor,
and lead him to exclaim, ‘Outrageous!’
The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities. The rough edges of our society are still in need of a good
deal of filing down, and in the meantime plaintiffs must necessarily be expected and required
to be hardened to a certain amount of rough language, and to occasional acts that are
definitely inconsiderate and unkind. There is no occasion for the law to intervene in every
case where some one's feelings are hurt.

Dahlberg, at ¶ 20 (quoting Restatement (Second) Torts § 46 cmt. d).
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As presented in his briefing, Herr bases his intentional infliction of emotional distress claim
on his multiple conversations with Zylstra, during which Herr alleges Zylstra engaged in “acts of
coercion, extortion, and bullying” that extended “beyond the bounds of decency . . . .” (Docket No.
63 p. 15). Herr alleges this conduct was all the more egregious because of Laura Zylstra’s past
experiences as a special investigator and her legal training.
Viewing the evidence most favorably to Herr, Zylstra’s conduct does not as a matter of law
constitute the “extreme” or “outrageous” conduct required to support a claim for intentional
infliction of emotional distress claim. Cf. Dahlberg, at ¶ 20 (stating “mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities” do not necessarily rise to the level of
extreme or outrageous conduct). The North Dakota Supreme Court has concluded investigations
conducted far more egregiously than that at issue here have not risen to the level necessary to
maintain a claim for intentional infliction of emotional distress. See Muchow, 435 N.W.2d 924-25.
On this record, no reasonable person could conclude Zylstra’s conduct was “extreme” or
“outrageous.” Based on the foregoing, the court GRANTS Zylstra’s motion for summary judgment
as to Herr’s claim for intentional infliction of emotional distress.
C.

Abuse of Process

The North Dakota Supreme Court recently outlined the tort for abuse of process as follows:
An “[a]buse of process occurs when a person uses a legal process, whether criminal or civil,
against another primarily to accomplish a purpose for which it is not designed.” The two
essential elements of an abuse-of-process claim are: (1) an ulterior purpose; and (2) a willful
act in the use of the process not proper in the regular conduct of the proceeding. In cases
involving abuse-of-process claims, our decisions require some overt act akin to extortion or
attempting to obtain a collateral advantage beyond the issuance of the formal use of process.

Riemers v. Hill, 2016 ND 137, ¶ 22, 881 N.W.2d 624 (quoting Jordet v. Jordet, 2015 ND 76, ¶ 20,
861 N.W.2d 147). While some jurisdictions take the position that only conduct engaged in after the

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process is issued is actionable,12 that is not the law in North Dakota. The North Dakota Supreme
Court has adopted Dean Prosser’s view that conduct prior to the criminal process being issued can
give rise to a claim for abuse of process. Riemers, at ¶ 23; Stoner v. Nash Finch, Inc., 446 N.W.2d
747, 752 (N.D. 1989) (“Stoner’); see Prosser and Keeton, The Law of Torts § 121, p. 898 (5th ed.
1984) (“Prosser and Keeton”). Also, what is not an element for the tort of abuse of process is
showing lack of probable cause. Consequently, even if it should ultimately be concluded that there
was probable cause for the criminal complaint signed by Husby and that Herr’s malicious
prosecution claim fails for this reason, that is not a defense to the claim of abuse of process. See id.
Zylstra’s primary argument for why Herr has no claim of abuse of process is her contention
that merely informing Herr that Cornhusker would proceed with criminal charges if he did not make
amends does not constitute abuse of process. This is because the criminal laws exist not only to
punish the guilty but also to provide, when appropriate, restitution to victims. Therefore, according
to Zylstra, telling Herr that criminal charges might be sought if payment was not made is using the
process to accomplish a purpose for which it was designed. Consequently, according to Zylstra,
there can be no liability for abuse of process, even if her motives for making the communications
she did were less than pure.
While these arguments may have some force in jurisdictions where the definition of abuse
of process is narrower, it is an abuse of process in North Dakota to use the threat or club of the
criminal process in manner that amounts to a form of extortion; that is, “it is what is done in the
course of negotiation, rather than the issuance or any formal use of the process itself, which
constitutes the tort.” E.g., Reimers, at ¶ 23 (quoting prior North Dakota cases); Stoner, 446 N.W.2d
12

See, e.g., South Arkansas Petroleum Co. v. Schlesser, 36 S.W.3d 317, 323-24 (Ark. 2001); Miessner v. All
Dakota Ins. Associates, Inc., 515 N.W.2d 198, 204-05 (S.D. 1994); Packard v. Central Maine Power Co., 477 A.2d 264,
267-68 (Me. 1984).

34

at 751(quoting Prosser and Keeton at § 121, p.898); see also Mullins v. Sanders, 54 S.E.2d 116 (Va.
1949) (it is an abuse of the criminal process to use it as “means of oppression” and “whip” to force
payment of an indebtedness).
In this case, there are disputed issues of material fact as to whether Zylstra’s communications
with Herr constituted impermissible coercion given the circumstances and the manner in which the
communications were made. This includes the evidence discussed earlier of: the short deadline
given to Herr to respond; the repeated mentioning of the sheriff being aware of the situation; the
communication that, from Zylstra’s perspective as a trained criminal investigator, things looked bad
for Herr; the conveying of the seriousness of the potential criminal penalties; the threat of criminal
charges extending beyond a charge for the alleged theft of the beans; and the mentioning of the
embarrassment that Herr would suffer and the lasting damage to his reputation, even if he was to
later prove his innocence.
Moreover, even under a narrower definition of abuse of process, there is evidence that a jury
could conclude that Cornhusker’s primary purpose for threatening criminal prosecution was to avoid
the consequences of the 2014 spraying bill and that Zylstra knowingly assisted in that effort. Also,
there were the threats that the criminal process would be used to reexamine all of the dealings
between Cornhusker and Herr with the possibility of additional felony charges if payment was not
made for the October 30 load of soybeans.
D.

Malicious Prosecution

As described by the North Dakota Supreme Court, the elements of malicious prosecution are:
“(1) Institution of a criminal proceeding by the defendant against the plaintiff; (2) Termination of
the criminal proceeding in favor of the accused; (3) Absence of probable cause for the criminal
proceeding; and (4) Malice.” Kummer v. City of Fargo, 516 N.W.2d 294, 298 (N.D. 1994). Zylstra
35

argues it is entitled to summary judgment as to Herr’s malicious prosecution claim because: (1) it
did not institute criminal proceedings against Herr; (2) the court found probable cause existed to
support the prosecution; and (3) Zylstra did not act maliciously. Herr argues summary judgment is
inappropriate because Zylstra either misapplies/misinterprets the law and/or there are disputed issues
of material fact as to this claim precluding summary judgment.
1.

Institution of criminal proceeding

“Institution of criminal proceedings for the tort of malicious prosecution involves taking
some active part in instigating or encouraging the prosecution, as by advising or assisting another
person to begin the proceeding, or taking any active part in directing or aiding the conduct of the
case.” Larson v. Baer, 418 N.W.2d 282, 287 (N.D. 1988). A party is not regarded as having
instituted a criminal proceeding by “merely stat[ing] to the authorities what he believes to be true
and leaves the decision to prosecute entirely to the uncontrolled discretion of the officer . . . .” Id.
Under the independent investigation rule, “when the prosecuting authority acts upon an independent
investigation of his own, instead of on the information supplied by the party making the complaint,
the latter has not caused the prosecution and cannot be held liable in an action for malicious
prosecution.” Id. This requires the plaintiff alleging malicious prosecution to “establish that the
defendant was a proximate cause of plaintiff’s prosecution.” Id. Whether the defendant’s actions
rise to this level is a question of fact. Id.
Zylstra claims that it can have no liability for malicious prosecution because, according to
it, the decision on whether to prosecute Herr was made by the McIntosh State’s Attorney, along with
possibly input from the Sheriff, and only after BCI had conducted an independent investigation. The
problem with this, however, is that the criminal complaint was signed by Husby (albeit with the
endorsement of the State’s Attorney), the affidavit in support of the complaint was Husby’s, and the
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only evidence offered in support of the complaint when Judge Narum found the affidavit to be
insufficient was Husby’s ex parte testimony; the BCI had no direct involvement in any of that.
While a jury might conclude, just as Zylstra claims, that she did nothing more than turn over to
Husby and the State’s Attorney her work product, there is more than enough evidence from which
a jury could conclude that her involvement went beyond that and what Zylstra included in her
reports or failed to include with respect to the points discussed earlier was material to some of the
testimony that Husby gave during the ex parte proceeding as well upon the State’s Attorney’s
decision to endorse the complaint that Husby signed. See Larson, 418 N.W.2d at 288 (concluding
“[w]hether Henke's investigation and State's Attorney Orvik's decision to prosecute were
independent of Baer's influence, and whether Baer was a proximate cause of the Brunnemeyers'
prosecutions, are questions of fact to be decided by the fact finder.”).
2.

Existence of probable cause

Zylstra next argues summary judgment is appropriate because Judge Narum initially found
probable cause existed to support the criminal complaint based upon Husby’s ex parte testimony.
Putting aside the fact that Judge Narum later came to the contrary conclusion at the end of the
preliminary hearing, a finding of probable cause by Judge Narum would not provide an absolute
defense in any event. In Richmond v. Haney, 480 N.W.2d 751 (N.D. 1992) (“Richmond”), the
North Dakota Supreme Court stated the following:
When there has been a prior judicial determination of probable cause, such a finding
usually constitutes prima facie evidence of probable cause in a subsequent malicious
prosecution suit. See Weisenberger v. Mueller, 89 N.W.2d 559, 564 (N.D.1958); see also
Watkins v. Spring Creek Colony, 188 Mont. 467, 614 P.2d 508, 510 (1980); 54 C.J.S.,
Malicious Prosecution, section 32 (1987). Generally, to defeat such a determination, the acts
or omissions of the defendant must have tainted the proceeding or the evidence considered
in the proceeding. See generally Wigger v. McKee, 809 P.2d 999, 1005 (Colo.App.1990).

Id. at 755; see also Rhodes v. Smithers, 939 F. Supp. 1256, 1273 (S.D.W.Va.1995) (a person can

37

be held liable for malicious prosecution if he or she “fail[s] to disclose exculpatory evidence to
prosecutors, make[s] false or misleading reports to the prosecutor, omit[s] material information from
the reports, or otherwise interfere[s] with the prosecutor's ability to exercise independent
judgment.”) (citing cases), aff'd, 91 F.3d 132, 1996 WL 420471 (4th Cir.1996); Dick v. Watonwan
County, 562 F. Supp. 1083, 1100 (D. Minn. 1983), reversed on other grounds, 738 F.2d 939 (8th Cir.
1984) (judge’s determination of probable cause that was the product of affidavits containing glaring
misstatements and unverified information did not break the chain of causation and provide insulation
from liability);
Here, as outlined earlier, there is sufficient evidence from which a conclusion could be drawn
that the failure of Husby and Zylstra to bring to the forefront information they had in their
possession as well as Husby giving misleading, if not outright false testimony, “tainted the
proceeding or the evidence considered in the proceeding” and resulted in Judge Narum erroneously
concluding that probable cause existed based on Husby’s ex parte testimony. Finally, as outlined
earlier, there is sufficient evidence from which a jury could conclude that probable cause was
lacking independent of any determination by Judge Narum.
3.

Malice

Zylstra finally argues it is entitled to summary judgment because Herr has not provided any
evidence establishing Zylstra acted with malice. In Kummer v. City of Fargo, 516 N.W.2d 294
(N.D. 1994), the North Dakota Supreme Court defined “malice” for purposes of a malicious
prosecution action as follows:
“Malice” is defined as “ ‘a primary purpose other than that of bringing an offender
to justice.’ ” Richmond, supra, 480 N.W.2d at 755 (quoting Prosser & Keeton, supra,
at 871). Thus, “malice” for purposes of a malicious prosecution action is essentially
synonymous with the element of “ulterior purpose” in abuse of process. See Prosser
& Keeton, supra, at 898 (“the two torts have the common element of an improper
38

purpose in the use of legal process”).
Id. at 298. While malice can be shown by evidence of “actual malevolence or corrupt design,” that
is not essential. Kolka v. Jones, 71 N.W. 588, 562 (N.D. 1897). Also, in some cases, “malice may
be inferred by a jury from want of probable cause.” Id.
Here, there is sufficient evidence from which a jury could conclude that certain of Zylstra’s
questionable acts and omissions as discussed above were undertaken not for the primary purpose
of “bringing an offender to justice,” but rather to satisfy the demands of her client for whatever
personal gain that may have been for her, either with respect to this matter or in attracting future
business. And, while that alone might not be enough to establish malice for a person in Zylstra’s
situation, it would be enough under North Dakota law if at the same time she acted recklessly and
in a callous disregard of whether or there was existed probably cause to support a criminal charge
against Herr. See Richmond, 480 N.W.2d at 755 n.4; cf. Kummer, 516 N.W.2d at 298 (stating that
without more the use of “[o]verzealous police techniques” by a law enforcement officer would not
be enough to constitute malice). In this case, a jury could (but would not be required to) conclude
that Zylstra acted recklessly and in wanton disregard of Herr’s right not to be subject to criminal
process lacking in probable cause.
III.

HERR’S MOTION TO AMEND TO REQUEST PUNITIVE DAMAGES
N.D.C.C. § 32–03.2–11(1) governs the pleading of a request for punitive damages in North

Dakota cases. This court has previously construed this statute as providing substantive rights and
has applied it in diversity cases when punitive damages are sought for state law claims. E.g.,
Atkinson v. McLaughlin, No. 1:03–cv–091, 2007 WL 557024, at *7 (D.N.D. Feb. 15, 2007) (citing
other cases) (“Atkinson ”).
In this case, Herr has made out a prima facie case as to each defendant for abuse of process
39

and malicious prosecution - intentional torts that often provide the basis for an award of punitive
damages. Restatement (First) of Torts § 908 cmt. c (stating “in torts which, like malicious
prosecution, require a particular anti-social state of mind, the improper motive of the tortfeasor is
both a necessary element in the cause of action and a reason for awarding punitive damages.”).
After careful review, the court concludes the evidence outlined above is sufficient to support a
finding by a preponderance of the evidence of one or more of the elements of oppression, fraud, or
malice required for an award of punitive damages under North Dakota law if the jury chooses to
believe that evidence and not believe other evidence. This satisfies § 32–03.2–11(1)'s requirements
as previously applied by this court. E.g., Atkinson, 2007 WL 557024 at *8 (holding plaintiff was
required under § 32–03.2–11(1) to demonstrate “that there is a factual basis for a claim of punitive
damages and whether there is sufficient evidence to support a finding by the trier of fact that a
preponderance of the evidence proves oppression, fraud, or actual malice” and plaintiff was not
required to prove his or her claim because “[t]o require so would usurp the fact-finding province of
the trier of fact”); Olson v. Ford Motor Co., Civ. No. A4–04–102, 2005 WL 3271945, at **2–3
(D.N.D. Nov. 29, 2005) (same); see also Mosley v. Alpha Oil and Gas Services, Inc., 962 F. Supp.
2d 1090, 1105 (D.N.D. 2013).
IV.

CONCLUSION
Based on the forgoing, the court:
1.

GRANTS IN PART Zylstra’s motion for summary judgment (Doc. No. 39) as to
Herr’s claims for negligence and intentional infliction of emotional distress against
Zylstra. Those claims are DISMISSED.

2.

The court DENIES IN PART Zylstra’s motion for summary judgment with respect
to Herr’s abuse of process and malicious prosecution claims. Those claims are not
40

dismissed.
3.

The court GRANTS Herr’s motion to amend his complaint (Doc. No. 28) to include
a request for punitive damages. Herr shall file and serve the proposed amended
complaint within 10 days.

IT IS SO ORDERED.
Dated this 27th day of March, 2017.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

41