Abdiaziz H. Hirsi, 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This opinion will be unpublished and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
A18-1076

Abdiaziz H. Hirsi,
Appellant,

vs.

ARCH Language Network, Inc. d/b/a ARCH Language, et al.,
Respondents.

Filed April 15, 2019
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CV-16-9944

Douglas J. Nill, Douglas J. Nill, PLLC, d/b/a Farmlaw, Minneapo lis, Minnesota (for
appellant)

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

Considered and decided by Larkin, Presiding Judge; Halbrooks, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Respondent ARCH Langu age Network Inc. provides interpreters, p rimarily for
persons receiving health care, and receives payment for these interpretive services through
contracts with health insurers. Appellant Abdiaziz Hirsi entered into a contract with ARCH

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to provide interpreter and billin g services to ARCH. Nine years later, Hirsi sued ARCH
and its owner and chief executiv e officer, respondent Russell H astings, claiming under a
variety of theories that the contract entitled him to half of A RCH’s profits from 2007 to
2015. In a series of decisions, the district court dismissed so me of Hirsi’s claims on the
pleadings, declined to permit Hirsi to amend his complaint a second time, limited discovery
through a special master, awarded summary judgment in favor of AR CH a n d Ha s t i n gs
(collectively, respondents), and denied Hirsi’s posttrial motio ns. In this appeal, Hirsi’s
primary contention is that res pondents committed a fraud on the court. Hirsi also argues
that each of the district court’s orders was erroneous or an abuse of discretion. We affirm.
FACTS
On August 22, 2007, Hirsi and ARCH1 entered into a contract. Hastings signed the
contract on behalf of ARCH. Under the contract, Hirsi became a subvendor of ARCH,
providing interpreters and billing services. The contract provided that Hirsi’s payment rates
would be “based on rates set forth in Schedule A” of the contract. Schedule A was entitled
“Blue Plus Payment Rates,” and it defined rates and stated that the parties “agree to split
remaining revenue at 50% for each party after payment to billing service and interpreter.”
The core of the issues on appeal is whether ARCH’s contract with Hirsi, or an unspecified
subsequent oral contract, gave Hirsi the right to 50% of all of ARCH’s profits since 2007,

1 At the time the contract was signed, ARCH was known as East Af rican Bilingual
Services. For clarity, and despite the anachronism, the company will be referred to at all
times as ARCH.

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regardless of whether Blue Plus was the source of the revenue, and whether, in failing to
pay Hirsi those funds, respondents committed one of several possible torts.
Early Litigation
In May 2016, Hirsi served a complaint on respondents. Hirsi fil ed an amended
complaint in September 2016, asserting 12 counts. 2 Respondents answered and
counterclaimed for breach of contract, tortious interference with contractual relationships,
misappropriation of trade secrets, and abuse of process.
Throughout extensive pretrial litigation, respondents argued th at the only serious
dispute was a breach-of-contract claim by Hirsi and that all ot her claims were frivolous.
On this basis, respondents opposed broad discovery. Hirsi, on t he other hand, demanded
broad discovery and contended that respondents’ opposition to c ertain lines of discovery
was fraudulent and constituted unprofessional conduct by respondents’ counsel.
Orders of January 27, 2017
In the fall of 2016, both partie s filed numerous discovery motions with the district
court. Respondents also moved for partial judgment on the pleadings, seeking dismissal of
counts 4 through 12 of the amended complaint and limitation of counts 1 through 3 to
alleged breaches occurring after May 24, 2010. Hirsi moved for declaratory judgment as
to the meaning of the contract and for dismissal of respondents ’ counterclaims. On

2 1 – declaratory judgment, 2 – breach of contract, 3 – breach o f the implied covenant of
good faith and fair dealing, 4 – breach of fiduciary duty, 5 – constructive and continuing
fraud, 6 – civil conspiracy, 7 – civil conversion, 8 – quantum meruit/unjust enrichment,
9 – equitable accounting, 10 – violation of Minn. Stat. § 181.145, 11 – tortious interference
with prospective economic benefit, 12 – piercing the corporate veil.

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January 27, 2017, the district court filed two orders—one resol ving the dispositive
motions, and the other resolving the discovery-related motions.
In the order on the dispositive motions, the district court granted Hirsi’s motion for
a declaration that the August 2007 contract was valid and that Schedule A of that agreement
provided for sharing of 50% of “remaining revenue.” 3 It denied Hirsi’s motion for a
declaration to the extent that it sought to define the scope of the revenue to be shared, and
denied Hirsi’s motion seeking a declaration that any oral modification of the contract was
precluded by the contract. The district court also dismissed re spondents’ counterclaims
without prejudice. With respect to Hirsi’s amended complaint, the district court dismissed
with prejudice counts 5, 6, 7, 10, and 11—the claims sounding i n tort. It also dismissed
with prejudice count 4—breach of fiduciary duty—but allowed Hir si to move to again
amend his complaint to add a count of breach of fiduciary duty arising from an unspecified
joint-venture agreement entered after the August 2007 contract. However, the district court
conditioned permission to amend on certain requirements, among them that any new
language in the proposed amendments be highlighted and be limit ed to a short and plain
statement of the facts supporting the new claim. The district c ourt denied respondents’
motion to dismiss counts 8 and 9—the claims for equitable relief. It also denied the motion
to dismiss count 12—seeking to p ierce the corporate veil—but bi furcated the claim from

3 The order was later amended to clarify that its judgment—that the parties had entered into
a contract in 2007 and that Sche dule A of that contract provide d for 50/50 sharing of
remaining revenue—was not intended to declare the meaning of th e term “remaining
revenue.”

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the rest of the trial and stayed all further proceedings pending a determination of ARCH’s
liability.
In the order concerning discovery, the district court directed the parties to meet and
confer about the appointment of a special master, required production of certain discovery
within 14 days (allowing respondents to propose new terms for a protective order if it was
concerned about confidentiality), denied Hirsi’s request for at torney fees and costs, and
granted Hirsi’s motion to amend the scheduling order.
The “Sole Owner” Dispute
The same day the district court filed the two orders, the court held a telephone
conference with the parties. Hirsi revealed that he had learned of an inaccurate answer
provided by respondents in response to a request for admission. The request and answer
were as follows:
REQUEST NO. 28: Admit that the President and sole
owner of ARCH, the individual defendant in this Complaint, is
Mr. Russell Hastings.
RESPONSE: Admitted.
Hirsi said that he had just learned that, from 2007 to 2009, AR CH was not solely owned
by Hastings but had been jointly owned by Hastings and a partne r. He asserted that
respondents’ answer to the admi ssions request was inaccurate be cause the instructions
accompanying the requests had stated that, “[u]nless otherwise specified, these
interrogatories and documents and admissions requests seek info rmation from August 1,
2007 to the present.” In that conference call and thereafter, H irsi’s counsel relied on this

6
“deceit” as a basis to argue for reversing the district court’s order of partial judgment on
the pleadings as well as subsequent orders.
Respondents’ counsel countered that (1) the use of the present tense in request 28
meant that the request had “othe rwise specified” a different ti me period, i.e., the present,
and (2) the information of a former co-owner was irrelevant to the surviving claims. As
further discussed below, the district court concluded, as it did consistently throughout the
remainder of the litigation, that the former partner’s existenc e and any payments made to
him by Hastings were immaterial to the case—that those facts di d not permit Hirsi’s tort
claims to survive dismissal and that respondents’ failure to re veal them immediately was
not a “fraud upon the court.”
Special Master Dispute
In the January 27 telephone confe rence, the district court decl ined to quash
subpoenas served by Hirsi on third parties that sought ARCH’s b ank records and
documents recording the sale of ARCH to Hastings. But the court also said that ARCH
should first produce its records and, if those records were incomplete or insufficient, Hirsi
could address getting a subpoena with the special master. Hirsi thereafter received records
from the subpoenaed third parties. In February 2017, respondents moved the special master
to compel discovery, quash subpoenas, and for discovery sanctio ns. Hirsi opposed
respondents’ motion and filed his own motion to compel.
In March 2017, the special master suspended Hirsi’s outstanding subpoenas pending
a hearing set for April 2017, forbade the use of additional subpoenas, and barred Hirsi from

7
using ARCH’s bank account records in any way. In the meantime, respondents moved for
sanctions against Hirsi’s attorney, and Hirsi moved to disqualify respondents’ attorney.
Following the April hearing, in May 2017, the special master is sued an order
addressing three main issues. First, the special master stated that the district court had
intended that Hirsi’s subpoenas wait until after the special ma ster had the opportunity to
rule on them. Second, the special master stated that, while respondents’ response to request
for admission number 28 had been inaccurate, answering “deny” w ould also have been
inaccurate, and conclude d that the inaccuracy was irrelevant ei t h e r wa y be c a us e i t was
about a matter outside the scope of the case. Finally, the spec ial master quashed all
outstanding subpoenas, ordered Hirsi to return ARCH’s banking r ecords, and ordered
production of other documents by respondents. Both parties appealed to the district court,
which affirmed the special master’s order in September 2017.
Denial of Permission to File a Second Amended Complaint
In March 2017, Hirsi moved the district court for permission to f i l e a s e c o n d
amended complaint, as had been suggested by the district court’ s January 2017 order.
However, the proposed second amended complaint did not comply with the district court’s
instructions. Specifically, it di d not highlight new material, it re-asserted counts that had
been dismissed with prejudice, it contained edits to other sections, and it added other counts
that were not permitted by the January 27 order. The district court held that the motion to
amend was little more than a re-argument of the January 27 order dismissing a number of
Hirsi’s claims. In April 2017, the district court denied permis s i o n t o f i l e t h e s e c o n d
amended complaint.

8
In July 2017, Hirsi again moved for permission to file an amend ed complaint, this
time seeking to add a claim for punitive damages. The district court denied this motion on
September 27.
June 26, 2017 Partial Summary Judgment
In February 2017, respondents moved the district court for part ial summary
judgment. In June, the district court granted in part and denied in part respondents’ motion.
It ruled that the plain language of the August 2007 contract li mited the contract’s
applicability to revenue for inte rpretive services provided und er ARCH’s contract with
Blue Plus (as opposed to services related to other health insurers, as claimed by Hirsi), but
denied summary judgment as to the existence of any other contracts with Hirsi arising after
the August 2007 contract, and denied summary judgment as to whe ther the August 2007
contract’s exculpatory clause served to limit Hirsi’s damages.
December 20, 2017 Summary Judgment
On August 28, 2017, respondents filed a motion for summary judg ment on all of
Hirsi’s remaining claims. The same day, Hirsi filed a motion to strike respondents’ answer
to the complaint and for default judgment. Respondents filed a memorandum opposing
Hirsi’s motion to strike and for default judgment on September 15, and, on September 20,
Hirsi filed a reply in support of his motion to strike. Accompanying Hirsi’s reply brief was
the Fourth Declaration of Abdiaziz H. Hirsi. The hearing on the se motions was held on
September 25, 2017, but no transcript of the hearing appears in the record. Two days later,

9
the district court denied Hirsi’s motion to strike respondents’ answer and for default
judgment.4
While respondents’ second summa ry-judgment motion was pending b efore the
district court, Hirsi petitioned this court for writs of mandam us and prohibition, seeking
reversal of the district court’s prior orders in the case and r emoval of the district court
judge. The petition was denied on December 19, 2017. The following day, the district court
ordered summary judgment in favor of respondents on Hirsi’s rem aining claims. On
December 22, judgment was entered on the district court’s order s of January 27, June 26,
and December 20, 2017.
In January 2018, Hirsi filed a motion seeking amended findings of fact and
conclusions of law under Minn. R . Civ. P. 52.02 and vacation of the court’s prior orders
and judgments under Minn. R. Civ. P. 60.02. The district court denied these postjudgment
motions in May 2018.
Hirsi appeals from the judgment and challenges the 2017 orders of January, granting
partial judgment on the pleadings ; April, denying him permissio n to amend; May, by the
special master regarding discovery; June, granting partial summary judgment; September,
denying his motion to strike and for default judgment; Septembe r, affirming the special
master’s discovery order; and December, granting summary judgme nt on the remaining
claims; as well as the May 2018 order denying his postjudgment motions.

4 This September order is the same order that denied the parties ’ appeals from the special
master’s May 16 order and Hirsi’ s request for reconsideration o f previous dispositive
orders, but separate from the order issued the same day denying Hirsi permission to add a
claim for punitive damages to the complaint.

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D E C I S I O N
I. The district court did not err by granting partial judgment on the pleadings.
Hirsi argues that the district court erred by granting partial judgment on the
pleadings in its January 27, 2017 order because (1) respondents’ answer denied allegations
in the complaint and (2) the district court failed to consider his affidavit under former rule
56.06 of the Minnesota Rules of Civil Procedure. Appellate courts review de novo whether
the district court erred in granting judgment on the pleadings. Burt v. Rackner, Inc. , 902
N.W.2d 448, 451 (Minn. 2017).
In its motion under Minn. R. Civ. P. 12.03, respondents argued that Hirsi’s claims
sounding in tort, fiduciary duty, and equity, his claims against Hastings personally, and his
claims dating to before 2010 fa iled to state a claim on which r elief could be granted. The
defense of failure to state a claim upon which relief may be gr anted may be made by a
motion for judgment on the pleadings. Minn. R. Civ. P. 12.08. W hen considering the
defense of failure to state a claim, courts consider “only [the] facts alleged in the complaint,
accepting those facts as true and construing all reasonable inferences in favor of the non-
moving party.” In re Individual 35W Bridge Litig., 806 N.W.2d 820, 826-27 (Minn. 2011).
Hirsi relies on Chilson v. Travelers’ Ins. Co., 230 N.W. 118 (Minn. 1930), and Ryan
v. Lodermeier, 387 N.W.2d 652, 653 (Minn. App. 1986), to argue that judgment on the
pleadings “is never proper when f actual allegations of the comp laint are denied by an
answer.” But Chilson states that judgment on the p leadings is not appropriate when the
answer denies a material fact of the complaint. 230 N.W. at 118 (syllabus by the court) .
And Ryan says, “Only if the pleadings create no fact issues should a mo tion for judgment

11
on the pleadings be granted.” 387 N.W.2d at 653. Denial of an allegation does not create a
fact issue if the complaint fails to state a claim, because allegations supporting a claim that
f a i l s a s a m a t t e r o f l a w a r e i m m a t e r i a l . R e s p o n d e n t s ’ d e n i a l o f allegations in Hirsi’s
complaint does not make the court’s grant of judgment on the pleadings erroneous.
Hirsi’s only other argument against the January 27 order granting partial judgment
on the pleadings is that the district court erred by failing to consider his rule 56.06 affidavit.
At the time of the mot ion, Minn. R. Civ. P . 56.06 permitted the court to refuse summary
judgment or grant a continuance prior to deciding whether summa ry judgment was
warranted if a party opposing the motion showed, by affidavit, that it was unable to present
facts essential to its opposition to the motion. 5 But summary judgment is different from
dismissal for failure to state a claim. Because a court conside ring a motion to dismiss for
failure to state a claim looks onl y at the allegations in the c omplaint and assumes their
truth, 35W Bridge Litig., 806 N.W.2d at 826-27, the existence of evidence supporting those
allegations is irrelevant to the analysis of a motion for judgment on the pleadings for failure
to state a claim. The district court did not err by declining to consider Hirsi’s affidavit.
II. The district court did not err by denying Hirsi’s request f or permission to serve
and file a second amended complaint.
Hirsi next argues that the district court abused its discretion by denying him leave
to amend his complaint for a second time. See Minn. R. Civ. P. 15.01 (providing that a
party may amend a complaint for a second time only with the consent of the adverse party

5 In the 2018 amendments to the rules of civil procedure, the su bstance of rule 56.06,
though not its exact language, was moved to rule 56.04. Order Promulgating Amendments
to the Rules of Civil Procedure, No. ADM04-8001 (Minn. Mar. 13, 2018).

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or leave of court). Whether to permit amendment is generally a matter for district court’s
discretion; we review for abuse of that discretion. McCullough & Sons, Inc. v. City of
Vadnais Heights, 905 N.W.2d 878, 883 (Minn. App. 2017). However, if the distri ct court
denies permission to amend because the proposed amendment would be futile, we review
the underlying legal ruling de novo. See U.S. Bank Nat’l A ss’n v. RBP Realty, LLC , 888
N.W.2d 699, 705 (Minn. App. 2016) (“If a district court denies a motion to amend on the
ground of futility, our review of t he district court’s ruling m ay turn on whether it was
correct in an underlying legal ruling.” (quotation omitted)), review denied (Minn. Apr. 18,
2017).
The district court’s order denying leave to amend was based pri marily on Hirsi’s
failure to comply with the cour t’s express conditions for allow ing amendment. In one of
its January 27, 2017 orders, the district court dismissed Hirsi ’s claim alleging breach of
fiduciary duty because the plain language of the August 2007 co ntract did not create a
fiduciary relationship. But the court also granted Hirsi permission to move for amendment
in order to add a new claim for breach of fiduciary duty based on the theory that the parties
created a joint venture at some point after the August 2007 contract. However, because of
pleading problems with the then-existing amended complaint, the court required that the
proposed second amended complaint (1) identify amendments throu gh highlighting,
(2) not amend existing language but only add a new claim for breach of fiduciary duty, and
(3) support the new claim with a short and plain statement of f acts and not include
“extraneous legal analysis, argum ent, commentary, anticipated d i s c o v e r y i s s u e s a n d
disputes, or case citations.” The district court explicitly warned that failure to comply could

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result in the district court denying permission to amend. When Hirsi’s amended complaint
violated all three of the district court’s requirements, the di strict court denied permission
to amend the complaint. The court indicated that the decision w as, in part, a sanction for
Hirsi’s failure to comply with any of the court’s instructions but also stated that Hirsi’s
failure to comply with the instr uctions increased the burden on respondents by making it
more difficult for respondents to determine what the allegations were.
Hirsi contends that the denial w as an abuse of discretion becau se prejudice to the
opposing party is the most important factor deciding whether to allow a party to amend a
complaint. He argues that there was no prejudice because the di strict court, on the same
day it denied the motion to amend, also set trial a year out.
Hirsi is correct that prejudice is a critical factor in decidin g whether to permit
amendment. See, e.g. , Fabio v. Bellomo , 504 N.W.2d 758, 761 (Minn. 1993)
(“[A]mendments should be freely granted, except where to do so would result in prejudice
to the other party.”). But it is not the only factor. A distric t court “has wide discretion to
grant or deny an amendment, and its action will not be reversed absent a clear abuse of
discretion.” Id. This court has affirmed a district court’s refusal to permit amendment based
on a party’s failure to appear at a hearing regarding its motio n to amend even though the
district court did not consider whether the opposing party woul d be prejudiced. R.B.
Thompson, Jr. Lumber Co. v. Windsor Dev. Corp. , 383 N.W.2d 357, 362 (Minn. App.
1986), review denied (Minn. May 22, 1986).
Here, the district court considered prejudice, noting that Hirs i’s failure to identify
the changes to the complaint and his re-assertion of counts that had already been dismissed

14
would make it harder for respondents to determine what, exactly , Hirsi was contending.
But even if the district court had not considered prejudice, we would affirm. Denial of leave
to amend is a matter for the district court’s discretion, and it was within the district court’s
discretion to deny leave to amend as a sanction for Hirsi’s procedural failings. See id.
III. The special master did not err by limiting Hirsi’s use of rule 45 subpoenas.
Hirsi next objects to the special master’s order that required Hirsi to seek approval
before serving further subpoenas under Minn. R. Civ. P. 45. He does not say whether this
was an error or an abuse of discretion but instead describes himself as “acutely aggrieved”
by that portion of the order. In fact, Hirsi’s entire argument against the special master’s
order lacks legal citation. Hirsi instead uses the special mast er’s order as a springboard to
contend that he should have been permitted to continue arguing his tort claims, which had
already been dismissed by the time the special master issued hi s order. Hirsi has waived
his challenge to the special master’s order by failing to support it. See Poeschel v. Comm’r
of Pub. Safety, 871 N.W.2d 39, 47 (Minn. App. 2015) (“An assignment of error in a brief
based on ‘mere assertion’ and not supported by argument or auth ority is waived unless
prejudicial error is obvious on mere inspection.”).
Even if the argument was not waived, we would affirm. An order of a special master,
when affirmed by a district court, is reviewed under the same standard as if the court itself
had issued the order. See State by Humphrey v. Philip Morris Inc., 606 N.W.2d 676, 685,
691 (Minn. App. 2000) (applying th e abuse-of-discretion standar d to the district court’s
adoption of the special maste r’s privilege determination), review denied (Minn. Apr. 25,
2000). Parties or attorneys serving subpoenas are required to “ take reasonable steps to

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avoid imposing undue burden or expense on a person subject to that subpoena.” Minn. R.
Civ. P. 45.03(a). Courts have authority to enforce that duty an d impose appropriate
sanctions if it is violated. Id.
Here, the special master’s order s tated that Hirsi’s attorney h ad proceeded with
subpoenas to third parties despite the district court’s instruction that he wait until after the
special master had the opportunity to make a ruling. It also st ated that the subpoenas
seeking information to prove up Hirsi’s tort claims were beyond the scope of discovery.
While caselaw does not define the phrase “undue burden” in the context of subpoenas, any
burden imposed by a subpoena seeking evidence to bolster an alr eady-dismissed claim is
“undue.” Thus, the special maste r’s discovery order was justifi ed under Minn. R. Civ. P.
45.03(a) and was not an abuse of discretion.
IV. The district court did not e rr by granting summary judgment as to the scope
of the August 2007 contract.
Hirsi argues that the district c ourt erred by ruling that the A ugust 2007 contract
unambiguously applied only to revenue from services provided by Hirsi under ARCH’s
contract with Blue Plus.6
On appeal from a grant of summary judgment, this court asks “wh ether there are
any genuine issues of material fact” and “whether the district court erred in its application
of the law.” Guercio v. Prod. Automation Corp., 664 N.W.2d 379, 383 (Minn. App. 2003).
Those questions are reviewed de novo. Stringer v. Minn. Vikings Football Club, LLC, 705

6 This ruling did not dispose of Hirsi’s remaining claims because the court denied summary
judgment as to the existence or scope of any subsequent contrac ts between ARCH and
Hirsi.

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N.W.2d 746, 754 (Minn. 2005). “A contract is ambiguous if, based upon its language alone,
it is reasonably susceptible of more than one interpretation.” Art Goebel, Inc. v. N.
Suburban Agencies, Inc. , 567 N.W.2d 511, 515 (Minn. 1997). Whether a contract is
ambiguous is a question of law to be determined by the court. Denelsbeck v. Wells Fargo
& Co., 666 N.W.2d 339, 346 (Minn. 2003).
Hirsi makes three arguments for why the district court erred. H is first argument is
that, based on the language of the contract, the contract is ei ther ambiguous or
unambiguously means the opposite of what the court ruled it to mean. In support of this
argument, Hirsi makes three subarguments. He first points to th e term stating, “Payment
rates will be made based on rates set forth in Schedule A attac hed herein.” He argues that
the use of “based on” means that the “Blue Plus” revenue, as sh own in Schedule A, is
merely an example, and that it does not mean that the contract only applied to payments
f r o m B l u e P l u s . H e n e x t p o i n t s t o a p a r a g r a p h r e l a t i n g t o d a t a accuracy stating that
“[ARCH] is retrieving and processing data from other sources, such as, but not limited to,
Health Partners, United Health G roup, Medica, Preferred One, UC ARE, BCBS, and any
other hosted computer systems, on the behalf of [Hirsi] and makes no warranties as to the
accuracy of the data.” He argues that this list of other data providers shows that the contract
is intended to cover interpretive services under ARCH’s contracts with other insurers, and
not only under contracts with Blue Plus. Finally, Hirsi asserts that the contract is not limited
to Blue Plus revenue because the main part of the contract—that is, excluding the attached
schedules—does not mention any such limitation.

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The district court did not err in interpreting the plain langua ge of the contract. As
Hirsi notes, the contract does say that “[p]ayment rates will b e based on rates set forth in
Schedule A attached herein.” The phrase “based on,” read in iso lation, could have the
meaning Hirsi ascribes to it. But we read contracts as a whole, with an eye toward
harmonizing all their clauses. Nat’l City Bank v. Engler, 777 N.W.2d 762, 765 (Minn. App.
2010), review denied (Minn. Apr. 20, 2010). Schedule A lists only “Blue Plus Paymen t
Rates.” If Schedule A were merel y an example of rates, it would be unnecessary for it to
say “Blue Plus.” Hirsi’s interpretation would read that language out of the contract, a result
that is not favored. See Chergosky v. Crosstown Bell, Inc. , 463 N.W.2d 522, 526 (Minn.
1990) (“[Appellate courts] attempt to avoid an interpretation o f the contract that would
render a provision meaningless.”). Given the specificity of Sch edule A, it does not make
sense to interpret “based on” to mean that the specificity is p urposeless, and it does make
sense for “based on” to simply be a way of referring the reader to Schedule A.
The data-accuracy clause, which refers to other insurers, does not compel a different
result. That clause says that ARCH “is retrieving and processing” data from other sources
“such as” those insurers. The in clusion of the phrase “such as” indicates that they are
merely examples of insurers that could provide data. The clause is thus phrased
hypothetically and does not say anything about whether those in surers are actually
providing data. And it does not mean that the contract’s compen sation provisions, which
are specific to Blue Plus, apply to those insurers.

18
Hirsi’s final language-based contention, that this court should not rely on Schedule
A but should look only to the body of the contract, also fails. The contract defines the
entirety of the agreement to include its addenda; Schedule A is part of the contract.
Hirsi’s second argument is that the district court ignored extrinsic evidence that he
asserts shows its interpretation of the contract was incorrect. If the language of a contract
is unambiguous, extrinsic evidence is inadmissible to guide interpretation of that document.
See Am. Bank of St. Paul v. Coating Specialties, Inc., 787 N.W.2d 202, 205 (Minn. App.
2010) (forbidding the use of extrinsic evidence to alter unambi guous contract language),
review denied (Minn. Oct. 27, 2010). Thus, Hirs i’s asserted evidence cannot be used to
show that the contract was ambiguous.
Finally, Hirsi argues that, beca use respondents stated that the meaning of the
contract was “hotly contested,” the meaning must be a jury issu e. But Hirsi’s contention
that the district court violated “Minnesota Supreme Court precedent”—which he does not
identify—is contrary to actual precedent. “A contract’s terms a re not ambiguous simply
because the parties’ interpretations differ.” Staffing Specifix, Inc. v. TempWorks
Management Svcs., Inc. , 913 N.W.2d 687, 692 (Minn. 2018) (citing Denelsbeck, 666
N.W.2d at 347). The mere fact of a dispute over the meaning of this contract does not make
its terms ambiguous.
The district court did not err in granting summary judgment det ermining that the
contract applied only to Blue Plus revenue.

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V. The district court did not err by refusing to strike respond ents’ pleadings or
by refusing to allow Hirsi to am end his complaint to add a clai m for punitive
damages.
Hirsi next contends that the district court erred in its September 2017 order both by
refusing to strike respondents’ a nswer and grant default judgme nt in his favor and by
refusing to allow him to amend his complaint to add a claim for punitive damages.
A. Striking Pleadings
An order striking pleadings or rendering default judgment is a permissible discovery
sanction against a party who “fails to obey an order to provide or permit discovery.” Minn.
R. Civ. P. 37.02(b)(3). District courts have broad discretion o ver motions to dismiss on
procedural grounds, and their decisions will not be reversed absent abuse of that discretion.
Jadwin v. City of Dayton , 379 N.W.2d 194, 196 (Minn. App. 1985). However, dismissal
on procedural grounds is a serious sanction and is generally di sfavored. See Enright v.
Lehmann, 724 N.W.2d 546, 551 (Minn. App. 2006) (“[S]triking pleadings is substantial
and should not be levied lightly . . . .”), rev’d on other grounds , 735 N.W.2d 326 (Minn.
2007). To show that it is warranted, a movant must show some pr ejudice resulting from
the opposing party’s conduct. Jadwin, 379 N.W.2d at 197.
Hirsi argues that the district c ourt abused its discretion in r efusing to strike
respondents’ pleadings. Specifically, he contends that he was prejudiced at the judgment-
on-the-pleadings stage by respondents’ false answer to the request for admission, and that
the dismissal of his tort claims based on that false answer entitles him to default judgment
on the other claims. But the tort claims were dismissed for fai lure to state a claim, not on
summary judgment, so evidence related to them is irrelevant. See Martens v. Minn. Mining

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& Mfg. Co. , 616 N.W.2d 732, 739 (Minn. 2000) (holding that, with respect to a motion
based on failure to state a claim, “it is immaterial whether or not the plaintiff can prove the
facts alleged”). The dismissal was based solely on the sufficie ncy of the allegations in
Hirsi’s complaint and not on wh ether he could introduce evidenc e to substantiate those
allegations. Thus, even if respondents’ answer was false, Hirsi cannot show that the answer
was relevant to the litigation, m uch less demonstrate any preju dice from the answer. The
district court did not abuse its discretion in refusing to stri ke respondents’ pleadings and
grant default judgment.
B. Amendment of the Compla int for Punitive Damages
Appellate courts review a district court’s decision about whether to allow a party to
amend its pleadings for an abuse of discretion. McCullough & Sons, 905 N.W.2d at 883. It
is proper to deny a motion to amend a complaint when the new cl aim would not survive
summary judgment. Bebo v. Delander, 632 N.W.2d 732, 740 (Minn. App. 2001), review
denied (Minn. Oct. 16, 2001). However, if the district court denies p ermission to amend
because the proposed amendment wo uld be futile, we review the u nderlying legal ruling
de novo. See U.S. Bank, 888 N.W.2d at 705. Punitive damages are ordinarily prohibited in
breach-of-contract claims; they ma y be recovered only where the breach also constitutes
an independent tort or is accompanied by an independent tort. Lickteig v. Alderson, Ondov,
Leonard & Sween, P.A. , 556 N.W.2d 557, 561 (Minn. 1996); Olson v. Rugloski , 277
N.W.2d 385, 388 (Minn. 1979).
The district court denied Hirsi’s motion to amend because the amendment would be
futile: the proposed second amended complaint failed to establish an independent tort that

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would allow punitive damages. Hir si does not argue that his pro posed second amended
complaint’s new claim for punitive damages actually alleged an independent tort. Instead,
he argues that the independent tort entitling Hirsi to punitive damages is “[respondents’]
fraud upon Hirsi and the court during this litigation.” But the caselaw that he cites does not
indicate that fraud on the court during litigation entitles a party to punitive damages for the
conduct underlying the litigation. Those cases merely repeat the principle that defeated his
punitive-damages claim in the f irst place: punitive damages are not allowed without an
independent tort. See Minn.-Iowa Television Co. v. Watonwan TV Improvement Ass’n, 294
N.W.2d 297, 309 (Minn. 1980) (hol ding that “conscious and delib erate breach” is not an
independent tort); Olson, 277 N.W.2d at 388 (holding that refusal to pay an amount owed
under an insurance contract was not fraud justifying an award o f punitive damages).
Further, fraud on the court is not an independent cause of acti on; it is a justification for
vacating a judgment even after ordinary deadlines for vacating the judgment have passed.
See Maranda v. Maranda, 449 N.W.2d 158, 164-65 (Minn. 1989) (discussing fraud on the
court). Thus, because Hirsi fa iled to allege an independent tor t, his proposed amendment
to add a claim for punitive damages was futile, and the district court did not err in refusing
to permit the amendment.
V I . T h e d i s t r i c t c o u r t d i d n o t e r r b y g r a n t i n g s u m m a r y j u d g m e n t i n f a v o r o f
respondents on Hirsi’s remaining claims.
On appeal from a grant of summary judgment, this court asks “wh ether there are
any genuine issues of material fact” and “whether the district court erred in its application
of the law.” Guercio, 664 N.W.2d at 383. Those questions are reviewed de novo. Stringer,

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705 N.W.2d at 754. In its December 2017 order, the district cou rt granted summary
judgment in favor of respondents on Hirsi’s remaining claims. S pecifically, the district
court held that there was no genuine issue of material fact tha t (1) ARCH did not breach
the August 2007 contract, (2) no new contract was formed promis ing Hirsi a sharing of
ARCH’s revenue from sources other than Blue Plus, (3) Hirsi was not entitled to equitable
relief, (4) Hirsi was not entitled to an equitable accounting, (5) ARCH did not breach the
covenant of good faith and fair d ealing, and (6) there was no n eed to pierce the corporate
veil because there was no judgment against ARCH.
Hirsi makes two main arguments for reversal. First, he again at tacks the district
court’s June 2017 order for partial summary judgment, contending that his written contract
with ARCH extends to more than just Blue Plus revenue. We rejec ted this contention
above. Second, he argues that the district court erred by declining to consider Hirsi’s Fourth
Declaration as untimely and self-serving. He argues that the affidavit was timely and that
a self-serving affidavit may be used to oppose a motion for summary judgment. However,
Hirsi focuses solely on those procedural matters; he does not identify any material fact that
is genuinely in dispute. We nevertheless address Hirsi’s argument.
A. Timeliness
On August 28, respondents filed a motion for summary judgment. The same day,
Hirsi filed a motion to strike respondents’ answer and to grant default judgment. On
September 15, respondents filed a memorandum opposing Hirsi’s motion to strike and for
default judgment. On September 20—three business days before th e hearing—Hirsi filed
a 62-page reply to respondents’ opposition to Hirsi’s motion to strike. That reply

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memorandum was accompanied by the Fourth Declaration of Abdiaziz H. Hirsi, which the
district court declined to consider as untimely.
Under Minn. R. Gen. Prac. 115.03(b), a response to a dispositive motion, including
supplementary affidavits and exhibits, must be served and filed at least nine days prior to
the hearing. Hirsi contended at the hearing that his August 28 motion to strike and for
default judgment was also a response to respondents’ motion for summary judgment. But
Hirsi’s Fourth Declaration did not accompany Hirsi’s August 28 filing, it accompanied his
September 20 filing. Since the hearing was scheduled for Septem ber 25, Hirsi’s Fourth
Declaration was filed less than nine days prior to the hearing. It was also not filed and
served together with the purported response. Further, the filing that it did accompany was
labeled a reply brief, replying t o respondents’ response to Hir si’s motion to strike.
Introduction of new factual alle gations opposing some other mot ion is not permitted in a
reply. See Minn. R. Gen. Prac. 115.03(c) (stating that a reply must be limited to new legal
or factual matters raised by a response).
Before this court, Hirsi contends that he was permitted to comb ine into a single
memorandum (1) a second response to respondents’ motion for summary judgment, (2) his
reply supporting his motion to strike, and (3) a response to re spondents’ motion for
sanctions. His argument appears to be that, when he did so, the Fourth Declaration was
made timely because it accompanie d a timely reply brief. This a rgument could succeed
only if combining timely and untimely filings made all of the c ombined filings and their
supporting affidavits timely. Hirsi does not cite law to suppor t any part of this argument,

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and it is contradicted by Minn. R . Gen. Prac. 115.03. Hirsi’s F ourth Declaration was not
timely filed in response to respondents’ motion for summary judgment.
B. Self-serving
Hirsi also argues that Minnesota law does not recognize the rejection of an affidavit
as self-serving. In support of t his argument, he cites only to Hoover v. Norwest Private
Mortg. Banking , 632 N.W.2d 534, 541 n.4 ( Minn. 2001). He summarizes Hoover’s
footnote as stating that “affidavits filed after deposition testimony are never rejected unless
it is completely contradictory; affidavits that explain deposit ion testimony or clarify the
evidence are always accepted.” This is a mischaracterization. Hoover actually states:
“Although affidavits that contradict earlier deposition testimony generally may not be used
to create a genuine issue of fact, there are exceptions to this rule.” Hoover, 632 N.W.2d at
541 n.4 (emphasis added). The exception discussed by Hoover is for affidavits that clarify
deposition testimony when the deposition “reveals confusion or mistake.” Id.
The district court here held that Hirsi’s Fourth Affidavit was not only self-serving—
as testimony and affidavits from a party might be—but that it w as contradictory to his
deposition testimony, in which he had repeatedly stated that he did not recall any specific
conversations modifying the Augus t 2007 contract. The district court found that Hirsi
expressed neither confusion nor m istake in his deposition and t hat he had specifically
testified that he did not recall any incidents such as those he described in his Fourth
Declaration.

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The district court did not err in refusing to consider Hirsi’s Fourth Affidavit.
Because Hirsi did not and does not identify any genuine dispute of material fact, the district
court did not err by granting summary judgment in favor of respondents.
VII. The district court did not abuse its discretion by refusin g to amend its findings
of fact and conclusions of law under Minn. R. Civ. P. 52.02 or by refusing to
vacate the judgment under Minn. R. Civ. P. 60.02.
Finally, Hirsi argues that the district court’s May 10 order, d enying his motion to
amend its findings of fact and conclusions of law under Minn. R. Civ. P. 52.02 or to vacate
its judgment under Minn. R. Civ. P. 60.02, was an “abuse of discretion and manifest error.”
We review a district court’s denial of a motion for new or amended findings and its refusal
to vacate judgment for abuse of discretion. In re Guardianship of Guaman , 879 N.W.2d
668, 672 (Minn. App. 2016); Zaffke v. Wallestad, 642 N.W.2d 757, 759 (Minn. App. 2002).
Hirsi does not describe the standards for evaluating a district court’s exercise of discretion
over posttrial motions, or even c ite the rules on which his arg ument relies. Instead, he
simply asserts that the court ignored fraud, ignored the plain language of the contract, and
affirmed its prior decisions. Hi rsi’s argument for why vacation was required is the same
argument that he has been raising since January of 2017—that respondents’ answer to the
request for admission constituted a fraud on the court and requ ired a total reset of the
proceedings. Because the district court did not err in its previous decisions, it did not abuse
its discretion by refusing to amend its findings or vacate its judgment.
Affirmed.