Raymond L. Semler, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0729

Raymond L. Semler,
Appellant,

vs.

Eastbay Inc.,
Respondent,

Unknown Jane and John Does at the
Minnesota Sex Offender Program Moose Lake,
in their individual and official capacities,
Defendants.

Filed April 5, 2021
Affirmed
Worke, Judge

Ramsey County District Court
File No. 62-CV-18-6453

Raymond L. Semler, Moose Lake, Minnesota (pro se appellant)

Stephanie D. Sarantopoulos, Corey J. Christensen, Littler Mendelson, P.C., Minneapolis,
Minnesota (for respondent)

Considered and decided by Reyes, Pres iding Judge; Worke, Judge; and Gaïtas,
Judge.
NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant argues that the district court erred by dismissing his complaint for failure
to state a claim upon which relief can be granted, asserting that he has claims for violations

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of the Minnesota Consumer Fraud Act (CFA ) and the Minnesota Health Records Act
(MHRA), and breach of contract. We affirm.
FACTS
Appellant Raymond L. Semler is civilly committed as a sexually dangerous person
at the Minnesota Sex Offender Program Moose Lake (MSOP). See In re Civil Commitment
of Semler, No. A06-2213 (Minn. App. Apr. 3, 2007), review denied (Minn. May 30, 2007).
Semler has purchased a plati num membership with respondent Eastbay Inc., a shoe and
clothing company, for $39.99 annually, a benefit of which is rush delivery on purchases.
In 2018, Semler filed a co mplaint against Eastbay and defendants unknown Jane
and John Does at the MSOP in their individu al and official capa cities, alleging that
individuals at the MSOP informed Eastbay that Semler resides at the MSOP, causing
Eastbay to deny him platinum-membership benefits because Eastbay does not do business
with “incarcerated” persons. Semler alleged violations of the CFA, the MHRA, and the
Minnesota Government Data Practices Act (MGDPA).1 Semler also alleged that Eastbay
was in breach of contract.2
Eastbay moved to dismiss pursuant to Minn. R. Civ. P. 12.02. The district court
granted Eastbay’s motion to dismiss, concluding that Semler’s CFA claim failed because
he lacked standing under the private-attorney -general statute for failing to allege a public
benefit, his MHRA claim failed because the statute does not apply to Eastbay, and his

1 Semler raised the MGDPA claim against only the individuals at the MSOP.
2 Semler also pleaded a Fourteenth-Amendment violation, which a federal court dismissed.

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breach-of-contract claim failed because he did not show that he had any rights under the
contract or that Eastbay violated any right. This appeal followed.
DECISION
Semler argues that the district court e rred by dismissing his complaint. A district
court will dismiss a complaint when the plaintiff “fail[s] to state a claim upon which relief
can be granted.” Minn. R. Civ. P. 12.02(e ). “A Rule 12.02(e) motion raises the single
question of whether the complaint states a claim upon which relief can be granted.”
Martens v. Minn. Mining & Mfg. Co. , 616 N.W.2d 732, 739 (M inn. 2000). This court
reviews de novo whether the complaint sets fo rth a legally sufficient claim for relief.
DeRosa v. McKenzie, 936 N.W.2d 342, 346 (Minn. 2019). “We accept the facts alleged in
the complaint as true and cons true all reasonable inferences in favor of the nonmoving
party.” Walsh v. U.S. Bank, 851 N.W.2d 598, 606 (Minn. 2014). This court is not bound,
however, by legal conclusions in a complain t when determining wh ether the complaint
survives a motion to dismiss for failure to state a claim. Hebert v. City of Fifty Lakes, 744
N.W.2d 226, 235 (Minn. 2008).
CFA claim
Semler argues that the district court erre d in concluding that he lacked standing to
assert a CFA claim. The CFA does not provide for a private cause of action. See Wiegand
v. Walser Auto. Grps., Inc., 683 N.W.2d 807, 809 (Minn. 2004). Instead, a plaintiff must
raise a claim in accordance with the requirements of the privat e-attorney-general statute,
Minn. Stat. § 8.31, subd. 3a (2020). See id. But section 8.31 applies “only to those
claimants who demonstrate that their cause of action benefits the public.” Ly v. Nystrom,

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615 N.W.2d 302, 314 (Minn. 2000) (declin ing to apply the statute to a one-on-one
transaction involving fraudulent misrepresentation).
The district court concluded that Semler ’s claim failed because he complained only
of “one-on-one transactions with Eastbay.” Semler alleged that Eastbay terminated his
platinum membership because he is an “incarcerated” person. Semler sought “damages in
excess of $300,000,” a “lifet ime platinum membership,” 3 and “$2,000 worth of
merchandise.” The complaint and the sought-a fter damages relate solely to Semler.
Semler claimed that his CFA claim would benefit others because it “affects everybody here
at the facility that deals with Eastbay.” But the district c ourt concluded that it could not
assume that others share Semler’s alleged ne gative experience. The district court did not
err by granting Eastbay’s motion to dismiss Semler’s CFA claim.
MHRA claim
Semler next argues that the district court erred in dismissing his MHRA claim. First,
Semler claimed that Eastbay would be in viol ation of the MHRA if the individuals at the
MSOP were found to be in violation of the MHRA, “under [an] umbrella” theory of
liability. But at the time that the district court considered the motion to dismiss, no
individuals at the MSOP had been served , and no action had been commenced against
them. Thus, because Semler asserts that his MHRA claim against Eastbay is contingent on
the liability of individuals at the MSOP, and no determination has been reached regarding

3 Semler conceded that, follo wing commencement of the lawsuit, Eastbay offered him a
lifetime platinum membership and refunded the $39.99 membership fee.

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any wrongdoing on any individual’s part, then, even if Semler has a MHRA claim against
Eastbay, it is premature at this stage and fails.
Second, Semler claims that Eastbay obta ined information regarding his residence
from individuals at the MSOP who violated the MHRA by releasing the information
without consent. Th e MHRA, Minn. Stat. §§ 144.291-.298 (2020), regulates the release
and disclosure of health records. Minn. Stat. § 144.293. Under the MHRA, “A provider,
or a person who receives health records from a provider, may not release a patient’s health
records to a person without . . . consent from the patient or the patient’s legally authorized
representative.” Id., subd. 2(1).
The MHRA defines “[p]rovider” as “any person who furnishes health care services
and is regulated to furnish the services,” a licensed home-care provider, a licensed health-
care facility, and a registered physician’s assi stant. Minn. Stat. § 144.291, subd. 2(i).
“Health record” is defined as information “tha t relates to the past, present, or future
physical or mental health or condition of a patient; the provision of health care to a patient;
or the past, present, or future payment for the provision of health care to a patient.” Id.,
subd. 2(c).
Semler has not alleged that Eastbay is a “provider” or that a “health record” was
released. Semler also has not alleged that Eastbay received a health record from the MSOP
and then released that information. Ther efore, the district c ourt properly dismissed
Semler’s MHRA claim for failing to state a claim upon which relief can be granted.

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Breach-of-contract claim
Semler argues that the district court erred in dismissing his breach-of-contract claim
because the complaint sufficiently pleaded that Eastbay breached the membership-renewal
contract. In setting forth a breach-of-contract claim, Semler must show (1) the formation
of a contract, (2) the plaintiff’s performance of any conditions precedent to its right to
demand performance from the defendant, and (3) the defendant’s breach of the contract.
See Lyon Fin. Servs., Inc. v. Ill. Paper & Copier Co., 848 N.W.2d 539, 543 (Minn. 2014).
The contract at issue provides:
All interpretations of the EASTBAY MEMBERSHIP
terms and conditions shall be at our sole discretion.
We may, at our discretion, cancel, modify, or restrict the
EASTBAY MEMBERSHIP program at any time without prior
notice. Eastbay has the right, in its sole discretion, to modify,
add, or delete any of the MEMBERSHIP terms, conditions, or
benefits, in whole or in part, at any time, with or without notice,
even though such ch anges may reduce (or increase) the value
of a member’s benefit, except where prohibited by law.
Continued use of yo ur MEMBERSHIP priv ileges constitutes
acceptance of any modifications, additions, or deletions.
Our failure to exercise or enforce any right or provision
of these rules shall not constitute a waiver of such right or
provision.

The agreement allows Eastbay to cancel or restrict the membership program at any
time without notice. As the di strict court determined, Semler has not shown that he had
any rights under the contract or that Eastbay violated any such rights. As such, Semler has
failed to state a claim upon which relief can be granted, and the district court properly
dismissed Semler’s breach-of-contract claim.
Affirmed.