Timothy J. Keane, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0614

Timothy J. Keane,
Appellant,

vs.

Ronald H. Groth, et al.,
Respondents.

Filed February 25, 2019
Affirmed; motion denied
Bratvold, Judge

Hennepin County District Court
File No. 27-CV-17-15370

Phillip Gainsley, Minneapolis, Minnesota (for appellant)

William L. Davidson, Paul C. Peterson, João C.J.G. de Medeiros, Lind, Jensen, Sullivan &
Peterson, P.A., Minneapolis, Minnesota (for respondents)

Considered and decided by Jesson, Presiding Judge; Halbrooks, Judge; and
Bratvold, Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
This is an appeal from a judgment dismissing appellant’s complaint in response to
a motion to dismiss. Appellant’s complaint alleged one count, defamation, and was based
on statements that respondents made in an answer filed in a different lawsuit. A ppellant
argues that the district court erred by granting respondents’ motion to dismiss because
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(1) absolute privilege is an affirmative defense and not a proper basis for dismissal under
Minn. R. Civ. P. 12.02; and (2) the allegedly defamatory statements were not privileged.
We conclude that the district court did not err in granting respondent s’ motion to dismiss
because absolute privilege appeared from the face of appellant’s complaint. Thus, we
affirm.
FACTS
Appellant-attorney Timothy J. Keane represented Crown Hydro, LLC (Crown) in
transactions related to a proposed hydroelectric facility. Under Keane’s advice and counsel,
Crown entered into a contract with Kathryn Dusenbery, who loaned Crown $250,000. The
transaction was memorialized in a promissory note and a security agreement signed by
Crown and Dusenbery.
Later, Dusenbery sued Crown for breach of contract and other claims . Attorney
Ronald H. Groth and Groth Law Firm, Ltd. (collectively, respondents) represented Crown
in Dusenbery’s lawsuit. Groth prepared and filed an answer to Dusenbery’s complaint on
behalf of Crown. The answer asserted several allegations that are at issue in Keane’s
appeal. For example, the answer stated:
52. At all times material hereto, [Dusenbery], upon information
and belief, had and/or has a romantic relationship with
Keane. . . .

54. By and through their close and romantic relationship,
[Dusenbery] and Keane, in direct violation of Keane’s
fiduciary duty owing to [ Crown] . . . , agreed, conspired,
aided, abetted, and acted in complicity with Keane by a plan
to defraud, intimidate, threaten, and force [Crown] . . . to
sell and turn over control of [ Crown] to Keane and
[Dusenbery] including, without limitation, inducing
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[Crown’s owner] to permit [Dusenbery] to secure financial
leverage over [Crown] . . . .

Dusenbery filed a motion to strike these statements, which the district court granted
because the statements were “immaterial” and “scandalous.” The district court also granted
Dusenbery’s motion for summary judgment and entered judgment in her favor. Crown
appealed. We affirmed on the breach -of-contract claim, but reversed and remanded other
claims. See Dusenbery v. Hawks, 895 N.W.2d 640, 647 (Minn. App. 2017). Additionally,
we concluded that the district court erred in granting Dusenbery’s motion to strike. Id. at
646 n.4.
In a separate action, Keane sued respondents for defamation, alleging that
respondents in the Dusenbery answer published “untrue and defamatory” statements,
which were malicious, unlawful, and “tend[ed] to harm [Keane’s] reputation and to lower
[his] good standing in the estimation of the community.” Keane alleged that the statements
constituted defamation per se. In lieu of filing an answer, respondents moved to dismiss
pursuant to Minn. R. Civ. P. 12.02(e) and argued that Keane’s claims were “barred in their
entirety by absolute privilege and absolute immunity ,” and that Keane’s complaint failed
to state a claim upon which relief may be granted. After a hearing, the district court granted
the motion to dismiss.
Keane asked permission to bring a motion to reconsider, which the district court
granted. Keane moved for reconsideration based solely on a Minnesota Supreme Court
opinion that was released after the rule 12 hearing but before the court’s order. The district
court denied the motion to reconsider in a written order that also stated its decision was
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“not an endorsement of Mr. Groth’s behavior as a lawyer.” The district court directed entry
of judgment for respondents and Keane appealed.
D E C I S I O N
I. The district court did not err by considering respondents’ affirmative defense
of absolute privilege as raised in respondents’ rule 12 motion.

A motion to dismiss under Minn. R. Civ. P. 12.02(e) tests the legal sufficiency of a
plaintiff’s claim for relief. Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553
(Minn. 2003). A complaint must “allege sufficient facts to state a claim.” Noske v.
Friedberg, 670 N.W.2d 740, 742 (Minn. 2003). In assessing a complaint under rule 12, a
district court must consider “the facts alleged in the complaint, accepting those facts as true
and must construe all reasonable inferences in favor of the nonmoving party.” Bodah, 663
N.W.2d at 553. “A claim is sufficient against a motion to dismiss for failure to state a claim
if it is possible on any evidence which might be produced, consistent with the pleader’ s
theory, to grant the relief demanded.” Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 603
(Minn. 2014). Our standard of review is de novo. Bodah, 663 N.W.2d at 553.
Thus, for the purposes of appellate review, we accept Keane’s allegations that
(1) respondents’ statements in Crown’s answer were false, (2) respondents’ statements
were published by being communicated to others besides Keane, and (3) respondents’
statements affected Keane in his profession. 1 It is possible that supporting evidence could

1 We note that Keane’s complaint directly refers to Crown’s answer in Dusenbery’s
lawsuit. In deciding a rule 12 motion, a district court may consider the complaint along
with any documents referred to in the complaint. See Martens v. Minn. Mining & Mfg. Co.,
616 N.W.2d 732, 739 n. 7 (Minn. 2000).
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be produced on these three allegations, therefore, if we construe all reasonable inferences
in favor of Keane, these allegations sufficiently state a claim of defamation. See Bodah,
663 N.W.2d at 553; Walsh, 851 N.W.2d at 603. The district court also determined that
Keane had alleged a prima facie case for defamation. But this does not end our analysis
because the district court granted respondents’ motion to dismiss after determining that
Keane’s complaint alleged facts establishing that respondents’ statements were absolutely
privileged.
The general rule is that defamatory statements published during a judicial
proceeding are absolutely privileged. See Matthis v. Kennedy, 67 N.W.2d 413, 417 (Minn.
1954). Keane argues that the district court erred in granting respondents’ rule 12 motion
because absolute privilege is an affirmative defense that has to be specifically pleaded in
an answer, therefore, it is inappropriate to bar his complaint before respondents ’ answer
has been filed. 2 Keane also argues that a plaintiff is not required to anticipate and plead
facts that are sufficient to overcome an affirmative defense, such as privilege, which has
not yet been asserted.
Keane is correct that absolute privilege is an affirmative defense that must be
asserted in a responsive pleading or it is waived. See Rehn v. Fischley, 557 N.W.2d 328,

2 Keane also argues that whether absolute privilege is “conclusively established” on the
face of his complaint is a new issue that respondents did not argue in the district court.
Keane moved for this court to strike this argument from respondents’ brief. In an order, we
denied Keane’s motion because the district court considered whether an affirmative
defense can be established on the face of the complaint, and there are numerous references
in the record to this argument from both parties.

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332 (Minn. 1997). But what is at issue here is whether a district court may properly dismiss
a complaint when the allegations on the face of the complaint establish an affirmative
defense before the defendant has filed a responsive pleading. We conclude that a motion
to dismiss may be granted before an answer has been filed if an affirmative defense “clearly
and unequivocally appears from the face of the complaint.” See Pederson v. Am. Lutheran
Church, 404 N.W.2d 887, 889 (Minn. App. 1987), review denied (June 30, 1987).
In Pederson, the district court granted the defendant’s motion to dismiss, even
though the defendant had not filed an answer, because the statute of limitations barred the
plaintiff’s claim. Id. at 888. We affirmed after concluding that it was apparent from the
face of the complaint that the statute of limitations had run. Id. at 889. Because the accrual
of plaintiff’s cause of action and the expiration of the limitations period was evident from
the complaint’s allegations, we held that it was reasonable “to require that facts to support
a possible tolling of the limitations period appear on the face of the complaint.” Id. at 889-
90. Because the complaint contained “no facts to toll th[e] running” of the statute, we
concluded that the district court correctly dismissed the complaint even though no answer
had been filed. Id. at 889, 890.3

3 The Eighth Circuit has also recognized that “it may be unusual to uphold an affirmative
defense at the pleading stage, [but] when the defense is established on the face of the
complaint, dismissal is appropriate.” Burlison v. United States, 627 F.2d 119, 122 (8th Cir.
1980) (affirming rule 12 dismissal based on government immunity) ; see also Noble Sys.
Corp. v. Alorica Cent., LLC, 543 F.3d 978, 983 (8th Cir. 2008) (“If an affirmative defense
such as a privilege is apparent on the face of the complaint, . . . that privilege can provide
the basis for dismissal under Rule 12(b)(6).”).

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Here, we conclude that the district court correctly determined that absolute privilege
barred Keane’s defamation claim based solely on Keane’s complaint, which alleges that
respondents defamed him in “an answer” filed in response “to a commercial transaction
complaint” in “a court of public record.” Keane’s complaint also states that respondents
asserted that Keane was in a “romantic relationship” with Dusenbery , “breach[ed] . . . his
fiduciary duties to his clients,” and that these statements were “published assertions” that
were “untrue and defam atory.” Moreover, Keane’s complaint alleges that respondents’
statements “affected [him] in his business, trade, profession, office or calling, and
therefor[e] constitute defamation per se.” Taken together, the allegations in Keane’s
complaint assert a claim of defamation for statements that respondents made in a judicial
proceeding. Therefore, it was appropriate for the district court to test the sufficiency of
Keane’s complaint by considering whether his defamation claim overcame the general rule
that defamatory statements published during a judicial proceeding are absolutely
privileged. See Matthis, 67 N.W.2d at 417.
Keane argues that his complaint sufficiently pleaded allegations in avoidance of the
affirmative defense of privilege, pointing to paragraph 11 of his complaint, which alleges
that “[p]ublic policy and the administration of justice would not be served in affording
defendants the narrow limits of absolute privilege afforded in litigation.” But paragraph 11
goes to the merits—whether absolute privilege bars his claim—and not whether the district
court erred in considering respondents’ affirmative defense of absolute privilege. We
conclude that the district court properly considered respondents’ affirmative defense
8
because Keane’s complaint, on its face, alleged facts sufficient to establish absolute
privilege as a defense to his defamation claim.
II. The district court did not err in dismissing Keane’s complaint because
respondents’ statements were absolutely privileged.

Absolute privilege bars a defamation claim if (1) an attorney makes a defamatory
statement (2) “during the course and as part of a judicial proceeding,” and (3) the statement
has “some relation” to the proceeding. See Matthis, 67 N.W.2d at 419 (quoting Restatement
(First) of Torts § 586 (1938)); see also Expose v. Thad Wilderson & Assocs., P.A., 889
N.W.2d 279, 286 (Minn. 2016) (noting that the absolute-privilege doctrine generally
applies when the three Matthis requirements are met). Absolute privilege precludes
recovery in defamation “even for intentionally false statements, coupled with malice.”
Matthis, 67 N.W.2d at 416. This court reviews de novo whether a district court has erred
in granting a motion to dismiss. See Bodah, 663 N.W.2d at 553.
Here, Keane concedes the first two Matthis requirements: respondents’ defamatory
statements were made by an attorney during the course of a judicial proceeding. Keane
challenges the district court’s dismissal for two reasons. First, he argues that the third
Matthis requirement—the relevance of the comments to the legal action—is not met
because respondents’ defamatory statements were not relevant to Dusenbery’s lawsuit.
Second, Keane contends that applying absolute privilege to protect respondents’ statements
does not advance the administration of justice. We consider the arguments in turn.
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A. The third Matthis requirement—“some relation” to the judicial proceeding
In determining the third Matthis requirement, the “all-important question” is
whether the statement has “reference to and relation to the subject matter of the action.”
Matthis, 67 N.W.2d at 418. The privilege “embraces anything that may possibly be
pertinent.” Id. at 420. “In determining what is . . . related to the subject under inquiry, much
latitude must be allowed to the discretion of those who are entrusted with the conduct of a
cause in court.” Id. If there is a “relat[ion] in any manner, then all doubt must be resolved
in favor of the defendant under the absolute -privilege rule.” Id. In short, “relevance is
defined broadly.” Mahoney & Hagberg v. Newgard, 729 N.W.2d 302, 308 (Minn. 2007).
Matthis is instructive because the supreme court considered the relevancy of
defendant’s statement that the plaintiff was as an “adulteress”; the alleged defamation
occurred during a court hearing in a guardianship dispute where the defendant acted as
counsel on his own behalf. Matthis, 67 N.W.2d at 415-16, 420. The supreme court affirmed
judgment for the defendant even though the court stated that the defamatory comment “may
well have been unwise” and may have violated “the rule of courtesy and decorum” that is
expected in a judicial proceeding. Id. at 420. Nevertheless, the court concluded that the
comment was relevant because the guardianship dispute involved the legality of plaintiff’s
marriage to the ward, and the plaintiff’s reputation was not “so foreign to the issue” that it
could not be pertinent. Id. In other words, the statement fell within the realm of “anything
that may possibly be pertinent.” Id. at 418.
With Matthis in mind, we consider whether respondents’ statements were
sufficiently related and relevant to Dusenbery’s lawsuit to satisfy the third Matthis
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requirement. Keane was Crown’s attorney when it entered into a loan contract with
Dusenbery. If, as alleged in Crown’s answer to Dusenbery’s complaint, Dusenbery was in
a romantic relationship with Keane, this fact may support Crown’s claim that it was
“fraudulently induced into . . . borrowing and accepting funds from [Dusenbery].” Because
respondents’ def amatory statements about Keane “may possibly be pertinent,” we
conclude that the third Matthis requirement is satisfied. Id.
Keane also contends that there is a question of fact on the relevance requirement
because the district court in Dusenbery’s lawsuit struck Crown’s allegations about
Dusenbery and Keane as “immaterial” and stated that the “allegations do not provide a
viable affirmative defense.” We are not persuaded. On appeal, this court reversed the
district court’s decision to strike the disputed allegations from Crown’s answer. In fact, our
opinion concluded that we did not agree that the disputed allegations in Crown’s complaint
“are irrelevant.” Dusenbery, 895 N.W.2d at 646 n.4.
B. Administration of justice
Keane argues that respondents must satisfy a fourth requirement before absolute
privilege applies, which is that the defamatory statements must be “protected in the interest
of the administration of justice” and that the district court erred “in not applying the fourth
factor.”4 The district court specifically considered the public policy concerns that support

4 Keane cites to Mahoney & Hagberg v. Newgard to support his contention that there is a
fourth requirement for absolute privilege. 729 N.W.2d at 306. But Mahoney only explicitly
lists the three Matthis requirements. Id. Mahoney also states that courts consider
“competing policy interests” in applying absolute privilege, but not as a definitive fourth
requirement. Id. at 309. We acknowledge that a few unpublished opinions of this court
explicitly list four requirements. But unpublished opinions are not binding legal precedent.
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extending absolute privilege to defamatory statements made in judicial proceedings and
stated that it had to consider whether “the administration of justice requires complete
immunity.” The district court also stated that absolute privilege is “a policy decision” to
protect defamatory statements m ade in legal proceedings and has been applied to
statements “even more egregious than this.”
Respondents argue that the administration-of-justice requirement applies only when
a defamation claim may extend absolute privilege to a new context. Respondents also
contend that Keane’s defamation claim is not a new context, nor does it require an
extension of the law, therefore, absolute privilege applies. In Expose, the Minnesota
Supreme Court held that absolute privilege did not apply to protect defamatory statements
made to prosecutor s and investigators before trial. Expose , 889 N.W.2d at 287. In doing
so, the supreme court stated that it would apply absolute privilege “only when the
administration of justice requires complete immunity from being called to account for
language used.” Id. at 286 (quotation omitted). The supreme court also stated that it would
determine whether there are “competing policy interests that would counsel against
application of the privilege.” Id.
Assuming, without deciding, that the administration-of -justice requirement applies
here, we proceed to consider Keane’s argument that public policy concerns explain why
his case is different. First, Keane argues that respondents’ defamatory statements were

See Minn. Stat. § 480A.08, subd. 3(c) (2018) (stating that “[u]npublished opinions of the
court of appeals are not precedential”).
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particularly “vicious attacks.” Second, he argues that he should be allowed to proceed with
his complaint because he was not a party to Dusenbery’s lawsuit and had no opportunity
to address respondents’ defamatory statement in that forum. We are not persuaded that
Keane’s arguments “counsel against application of the privilege.” Id.
First, Keane relies by analogy on an attorney-discipline proceeding to demonstrate
that the law does not tolerate vicious personal attacks by an attorney . In re MacDonald
involved an attorney who, among other things, wrote disparaging letters about a judge to
the board of judicial s tandards. 906 N.W.2d 238, 243 (Minn. 2018). The attorney argued
that the First Amendment protected her from discipline for what she viewed as legitimate
criticisms of a judge. Id. at 246. But the supreme court disagreed, stating that attorneys “are
subject to a modified version of the constitutional standard for defamation claims,” which
is what a reasonable attorney would do under the same or similar circumstances. Id.
Applying this standard, the court decided to discipline the attorney. Id. at 250.
Here, Keane argues that this court should apply the standard used in MacDonald to
respondents’ statements and determine that no reasonable attorney would make the
defamatory statements that respondents did in Crown’s answer, therefore, the
administration of justice does not favor protecting respondents from Keane’s defamation
claim. But MacDonald was an attorney-discipline proceeding. It was not a civil defamation
case against an attorney for making defamatory statements in a legal proceeding. The two
proceedings serve different interests.
When an attorney makes statements in a legal proceeding on behalf of a client,
absolute privilege protects the attorney from defamation claims because he is “in character”
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as the pleader in the case. Matthis, 67 N.W.2d at 417. The supreme court has held that the
administration of justice requires that attorneys should not fear retaliation “for language
used” in the course of vigorously representing a client in judicial proceedings. See id. On
the other hand, in attorney-discipline proceedings, the attorney’s alleged wrong is “against
society as a whole.” In re Graham, 453 N.W.2d 313, 322 (Minn. 1990) (quoting In re
Terry, 394 N.E.2d 94, 95 (Ind. 1979)). As a result, “[t]he societal interests protected by
[defamation and professional disciplinary] law are not identical.” Id. (quoting Terry, 394
N.E.2d at 95). We conclude that the supreme court’s analysis of the First Amendment issue
in MacDonald provides no guidance or analogy to the application of absolute privilege in
this case.
Second, we address Keane ’s argument that he was not a party to Dusenbery’s
lawsuit and “has been unable to defend his reputation in a judicial setting.” From th is,
Keane reasons that his defamation claim should be allowed to proceed so he has a forum
to counter respondents’ statements. But Keane does not point to an y special exception in
the caselaw for defamatory statements against non-parties. And indeed, his situation is not
unique.
In Hammer v. Forde, the plaintiff alleged that the defendant was liable for
defamatory statements made in a complaint in a previous lawsuit . 145 N.W. 810, 811
(Minn. 1914). The plaintiff was not a party to the previous lawsuit. Id. Yet the defendant
referred to the plaintiff by name in the complaint, alleging that the plaintiff acted “with
personal malice” and injured his property. Id. Hammer affirmed the district court’s decision
to sustain a demurrer to the plaintiff’s complaint based on privilege. Id. The supreme court
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reasoned that “[i]t is not important that the one claimed to have been libeled was not a party
to the suit provided some fair legal basis may be suggested for the materiality of the
allegations concerning him.” Id.5
Reading Hammer together with Matthis, the “fair legal basis” would be whether the
alleged defamatory statement is “relevant” to the legal dispute. See Matthis, 67 N.W.2d at
418. Long-standing Minnesota precedent has recognized that the administration of justice
is promoted by applying absolute privilege to defamatory statements made during judicial
proceedings so long as the Matthis requirements are satisfied. See id. at 419; see also
Expose, 889 N.W.2d at 286; Mahoney , 729 N.W.2d at 308. And, as we have already
discussed, respondents’ defamatory statements meet the Matthis requirements.
Our decision to affirm the district court does not mean we condone Groth’s
statements or his decision to make them during the course of judicial proceedings. We take
this opportunity to echo the sentiments of the district court:
Quite understandably, Mr. Keane argues these statements
contaminated his enviable reputation in the law community, of
which he asserts he has been a part for 32 years, achieving
recognition in professional excellence in both skill and ethics
as well as national distinction by one of the most highly

5After oral argument, respondents’ moved for this court to take judicial notice of district
court records from Mahoney & Hagberg v. Newgard for the purpose of demonstrating that
absolute privilege applied when an affiant made defamatory statements against a non-party
in a legal proceeding. 729 N.W.2d at 302. In light of our analysis of Hammer, which
involved defamatory statements against a non-party, we do not need to consider
respondents’ request that we take judicial notice of the records in Mahoney. Cf. Drewitz v.
Motorwerks, Inc., 728 N.W.2d 231, 233 n.2 (Minn. 2007) (denying motion to str ike as
moot when appellate court did not rely on contested documents in reaching decision).
Accordingly, we deny respondents’ motion.

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regarded lawyer rating services. There is no excuse for Mr.
Keane being put in a position to defend his reputation. There is
no doubt that the statements related to Mr. Keane asserted in
the collections action are embarrassing and unprofessional.

But our sympathy for Keane does not affect or alter the application of Minnesota law to his
defamation claim. We note, as did the district court, that other avenues may be available to
Keane.
We conclude the district court did not err in dismissing Keane’s complaint and we
affirm the judgment in favor of respondents.
Affirmed; motion denied.