Edgard Mariano, 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This opinion is nonprecedential except as provided by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
A23-0260

Edgard Mariano,
Appellant,

vs.

Raiser, LLC,
Respondent.

Filed December 11, 2023
Affirmed in part, reversed in part, and remanded
Connolly, Judge

Ramsey County District Court
File No. 62-CV-22-5351

Bradley Kirscher, Kirscher Law Firm, PA, Roseville, Minnesota (for appellant)

Susan K. Fitzke, Lehoan (Hahn) T. Pham, Littler Mendelson, P.C., Minneapolis,
Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Segal, Chief Judge; and
Smith, John, Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
On appeal from an order granting respondent’s motion to dismiss, appellant argues
that the district court erred by (1) dismissing all claims against respondent for failure to

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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state a claim, (2) dismissing the complaint for lack of subject matter jurisdiction, and (3)
dismissing all claims with prejudice. Because we conclude that the district court erred in
dismissing appellant’s claims for breach of contract and breach of the implied covenant of
good faith and fair dealing as they relate to respondent’s refusal to arbitrate, we reverse
and remand the district court’s dismissal as to those claims. We affirm the dismissal of the
remaining claims.
FACTS
Appellant Edgard Mariano had been a driver for respondent Raiser, LLC d/b/a/ Uber
for six years before respondent permanently deactivated his driver account in May 2021.
Drivers’ access to respondent’s ride-share technology is governed by a contract known as
the Platform Access Agreement (PAA).1 Upon signing the PAA, drivers are authorized to
use respondent’s technology to pick up people seeking transportation . Respondent may
permanently deactivate a driver account if it determines, in its sole discretion, that a
material breach or violation has occurred . The PAA defines a “material breach or
violation” as “deceptive, fraudulent, unsafe, illegal, or harmful” actions by the driver, or a
violation of the agreement. An arbitration provision governs disputes between individual
drivers and respondent unless the driver chooses to opt out of arbitration. By not opting

1 Appellant disputes the district court’s use of the PAA, a document outside of the
complaint, in the fact section of its decision. However, if a complaint contains a contract-
based claim, “the court may consider the entire written contract when the complaint refers
to the contract and the contract is central to the claims alleged.” Baker v. Best Buy Stores,
LP, 812 N.W.2d 177, 180 ( Minn. App. 2012) (quotation omitted), rev. denied (Minn.
Apr. 25, 2012).

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out, a driver agrees not to participate in or seek to “recover monetary or other relief in
connection with, any . . . class, collective or representative lawsuit.” Appellant did not opt
out of the arbitration provision.
In May 2021, respondent sent a message to appellant informing him that his account
was deactivated due to problematic behavior and safety concerns. After requesting more
information and asking that respondent investigate the complaints in an attempt to
informally negot iate with respondent , appellant initiated arbitration with respondent
pursuant to the arbitration provision in the PAA. Respondent refused to arbitrate.
Appellant filed a complaint against respondent in which he alleged claims of breach
of contract; breach of the implied covenant of good faith and fair dealing ; and deceptive
trade practices, in violation of the Minnesota Deceptive Trade Practices Act (MDTPA),
Minn. Stat. § 325D.44, subd. 1 (2022). He also requested permanent injunctive relief and
damages. Specifically, he alleged that respondent breached the PAA by failing to
investigate the complaints, by “inducing [ appellant] to not further investigate the
allegations against him,” “by failing to identify the alleged safety concerns,” and “by
failing to identify the complaining customers.” With reference to his claim for breach of
contract, appellant alleged that “ [t]he implied covenant of good faith and fair dealing
applies to the [PAA].” Appellant also alleged that respondent engaged in “deceptive,
unfair, and misleading trade practices” when respondent refused to comply with the terms
of the “mandatory arbitration clause in the [PAA]” due to its dispute with the provider for
the alternative dispute resolution, JAMS, over JAMS’ “Employment Arbitration Minimum
Standards” (EMS).
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Appellant requested that the district court issue a permanent injunction to either bar
respondent’s use of the “mandatory arbitration agreements in its contracts with its drivers”
or require that respondent comply with the arbitration clause and “arbitrate a ll future
disputes with its drivers using the JAMS Employment Arbitration Minimum Standards.”
Respondent subsequently moved to dismiss for failure to state a claim and lack of subject
matter jurisdiction under Minn. R. Civ. P. 12.02(e), and 12.02(a), respectively.
On December 29, 2022, the district court granted respondent’s motion to dismiss
for failure to state a claim, concluding that appellant failed to point to any express term in
the PAA that respondent allegedly breached. The district court further deter mined that
appellant did not state a legally viable claim under the MDTPA or properly allege that
respondent breached the implied covenant of good faith and fair dealing. And because
appellant did not opt out of arbitration, therefore waiving his ability to request collective
injunctive relief under the PAA, the district court found that it did not have subject matter
jurisdiction to consider appellant’s request for injunctive relief. Ultimately, the district
court dismissed all of appellant’s claims and his request for injunctive relief with prejudice.
Appellant filed this appeal, challenging the district court’s grant of respondent’s
motion to dismiss for failure to state a claim and lack of subject matter jurisdiction.
DECISION
I. The district court erred in part by granting respondent’s motion to dismiss
for failure to state a claim.

“We review de novo whether a complaint sets forth a legally sufficient claim for
relief.” Walsh v. U.S. Bank, N.A. , 851 N.W.2d 598, 606 (Minn. 2014). Under Minn. R.
5
Civ. P. 12.02(e), a pleading may be dismissed for “failure to state a claim upon which relief
can be granted.” “We accept the facts alleged in the complaint as true and construe all
reasonable inferences in favor of the nonmoving party. ” Walsh, 851 N.W.2d at 606; see
also Engstrom v. Whitebirch, Inc., 931 N.W.2d 786, 790 (Minn. 2019). A claim survives
a motion to dismiss for failure to state a claim “if it is possible on any evidence which
might be prod uced, consistent with the pleader’s theory, to grant the relief demanded.”
Walsh, 851 N.W.2d at 603.
Appellant asserts that the district court erred in dismissing his claims for breach of
contract, breach of the implied covenant of good faith and fair dealing, and violation of the
MDTPA for failure to state a claim, and that the court improperly made findings of fact in
its decision.
A. The district court erred in dismissing appellant’s breach-of-contract claim as it
relates to respondent’s refusal to arbitrate.

Appellant asserts on appeal that the district court failed to make all reasonable
inferences in his favor in reviewing whether the complaint set forth legally sufficient claims
for breach of contract. We conclude that the district court erred in part by dismissing
appellant’s breach of contract claim as it related to arbitration.
A claim “shall contain a short and plain statement of the claim showing that the
pleader is entitled to relief and a demand for judgment for the relief sought.” Minn. R. Civ.
P. 8.01. As a notice -pleading state, Minnesota only requires that pleadings contain
“information sufficient to fairly notify the opposing party of the claim against it .” Walsh,
851 N.W.2d at 605 (quotation omitted). Therefore, “[n]o longer is a pleader required to
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allege facts and every element of a cause of action.” N. States Power Co. v. Franklin, 122
N.W.2d 26, 29 (Minn. 1963). In a sufficiently pleaded breach-of-contract claim, the
promise at issue must “be part of the parties’ bargain.” Lyon Fin. Servs., Inc. v. Ill. Paper
and Copier Co., 848 N.W.2d 539, 543 (Minn. 2014).
The complaint expressly alleged that respondent breached the PAA by: (1) “failing
to investigate the complaints against” appellant; (2) “misleading [appellant], and inducing
[him] to not further investigate the allegations against him, by stating that no further action
would be taken on the prior complaints”; (3) “failing to identify the alleged safety concerns
that led to [appellant’s] termination”; and (4) “failing to identify the complaining customers
that made allegations .” Under the PAA, r espondent has the sole power to terminate any
account without notice, if it determines, in its discretion, that a material breach of violation
of the PAA occurred. Beyond this provision, the contract contains no terms regarding the
investigation of complaints. In fact, the PAA clearly states that respondent has no
obligation to verify riders’ ratings of drivers. The action or inaction appellant claims was
required of respondent must be expressed in the contract. See id. We conclude that the
district court did not err in dismissing these claims.2

2 Appellant also asserts that the district court imposed a heightened pleading standard by
finding that appellant failed to (1) point to an express term of the PAA respondent breached
and (2) specifically allege that respondent breached the implied covenant of good faith and
fair dealing. We disagree. The district court cited to Lyon and Walsh, in concluding that
neither claim was sufficiently plead ed. Nothing in the district court ’s order suggests that
the court applied a heightened pleading standard, only that appellant did not give
respondent fair notice about the nature of his claims. Although we ultimately conclude
that the district court did not make all reasonable inferences in appellant’s favor as to some
claims, we do not agree that it imposed a heightened pleading standard in doing so.

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However, under the rule 12.02(e) standard, we agree with appellant that a reasonable
inference could be made that appellant sufficiently plead ed a claim that respondent
breached the PAA by refusing to arbitrate. In several places, t he complaint expressly
alleged that respondent refused to arbitrate. The complaint also states that appellant
commenced arbitration against respondent pursuant to the “mandatory arbitration clause.”
The PAA sets out certain steps drivers must follow to properly commence arbitration. The
complaint states that appellant “commenced arbitration with J AMS pursuant to the terms
of the [PAA].”
Under rule 12.02(e), we conclude that appellant’s claim for breach of the arbitration
clause of the PAA is sufficient under Walsh. See, 851 N.W.2d at 605 (holding that
Minnesota requires “only information sufficient to fairly notify the opposing party of the
claim against it”). Accordingly, the district court erred by failing to make all reasonable
inferences in favor of appellant with respect to a claim for breach of contract through
respondent’s refusal to arbitrate.
B. The district court erred in dismissing appellant’s breach of the implied-covenant-
of-good-faith-and-fair-dealing claim as it relates to respondent’s refusal to
arbitrate.

Appellant also alleges that the district court failed to make all reasonable inferences
in his favor in dismissing his alternatively pleaded claim for breach of the implied covenant
of good faith and fair dealing. We Agree.
Under Minn. R. Civ. P. 8.05, p arties may allege breach of the implied covenant in
the alternative, based on the same conduct alleged in their breach -of-contract claim .
Columbia Cas. Co. v. 3M Co. , 814 N.W.2d 33, 38-39 (Minn. App. 2012) , rev. denied
8
(Minn. Mar. 26, 2012). The covenant is included in every contract and requires that “one
party not unjustifiably hinder the other party’s performance of the contract.” In re
Hennepin Cnty. 1986 Recycling Bond Litig., 540 N.W.2d 494, 502 (Minn. 1995) (quotation
omitted). However, the implied covenant “does not extend to actions beyond the scope of
the underlying contract.” Id. at 503.
Appellant did not properly allege breach of the implied covenant of good faith and
fair dealing as to respondent’s failure to investigate complaints. Under the PAA,
respondent had no express or implied duty to investigate complaints. Appellant may not
seek to create new duties under the PAA, only existing express or implied duties. See id.;
see also Minnwest Bank Cent. v. Flagship Props., LLC, 689 N.W.2d 295, 303 (Minn. App.
2004) (concluding that where a party has no contractual duty to perform, plaintiff cannot
sufficiently plead breach of the implied covenant of good faith and fair dealing). As such,
the district court did not err in dismissing appellant’s claim for breach of the implied
covenant of good faith and fair dealing as to respondent’s failure to investigate complaints.
The complaint also appears to assert that respondent breached the implied covenant
of good faith and fair dealing by refusing to arbitrate. In ad dition to alleging that the
covenant applied to the PAA, it alleged that respondent refused to comply with the
mandatory arbitration provisions in the contract because of respondent’s dispute with
JAMS, an alternative dispute resolution provider respondent required appellant to use in
arbitration proceedings . We conclude that these are allegations sufficient to plead that
respondent unjustifiably hindered appellant’s carrying out of the arbitration provision in
the PAA. See Columbia Cas., 814 N.W.2d at 39-40 (holding that pleadings, which describe
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a party’s “rejection of performance for unstated and unsupported reasons ,” are sufficient
to survive a motion to dismiss) (quotation omitted); see also In re Hennepin Cnty., 540
N.W.2d at 50 3 (noting that a breach -of-the-implied-covenant-of-good-faith-and-fair-
dealing claim contains allegations of an unjustifiable hinderance of a party’s performance
of the contract).
Just as we concluded above that appellant sufficiently pleaded a breach-of-contract
claim as to respondent’s failure to arbitrate, we also conclude that appellant sufficiently
pleaded, in the alternative, a breach of the-implied covenant of good faith and fair dealing
as to the same conduct , giving respondent notice of the claims against it . See Columbia
Cas., 814 N.W.2d at 39 (holding that “claims for breach of the implied covenant of good
faith and fair dealing are permissible even if they are based on the same conduct a s . . .
claims for breach of the expr ess terms of the [contract] ”); see also Walsh, 851 N.W.2d at
605 (stating that a complaint need only give sufficient notice to the opposing party of the
claims against it).
Minn. R. Civ. P. 12.02(e) sets a broad standard for pleadings. While there are
logical and structural issues with the complaint, 3 our duty on review is to consider the
overall complaint and determine if any evidence could be produced consistent with
pleader’s theory. Walsh, 851 N.W.2d at 603 . The district court erred in dismissing
appellant’s claim for breach of the implied covenant of good faith and fair dealing as it
relates to respondent’s refusal to arbitrate. However, we note that appellant cannot recover

3 The complaint does not have separate enumerated counts.
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separate damages for breach of contract and breach of the implied covenant as the claims
are based on the same conduct, which is respondent’s refusal to arbitrate. See Colombia
Cas., 814 N.W.2d at 37 (noting that a party pleading alternative claims “cannot recover
damages on both theories for the same conduct”).
C. The district court did not err in dismissing appellant’s claim that respondent
violated the MDTPA.

Appellant also alleged that respondent’s refusal to comply with the terms of the
arbitration provision constitutes a “deceptive, unfair, and misleading trade practice” in
violation of the MDTPA. The district court dismissed this claim on the merits as not legally
viable, because appellant did not allege which provision of the Act respondent violated,
and no provisions were applicable to appellant’s theory. We agree.
Under the MDTPA,
“[a] person engages in a deceptive trade practice when , in the course of business,
vocation or occupation, the person:
(1) passes off goods or services as those of another;

(2) causes likelihood of confusion or of misunderstanding as to the
source, sponsorship, approval, or certification of goods or services;

(3) causes likelihood of confusion or of misunderstanding as to
affiliation, connection, or association with, or certification by,
another;

(4) uses deceptive representations or designations of geographic
origin in connection with goods or services;

(5) represents that goods or services have sponsorshi p, approval,
characteristics, ingredients, uses, benefits, or quantities that they do
not have or that a person has a sponsorship, approval, status,
affiliation, or connection that the person does not have;
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(6) represents that goods are original or new if the y are
deteriorated, altered, reconditioned, reclaimed, used, or secondhand;

(7) represents that goods or services are of a particular standard,
quality, or grade, or that goods are of a particular style or model, if
they are of another;

(8) disparages the goods, services, or business of another by false
or misleading representation of fact;

(9) advertises goods or services with intent not to sell them as
advertised;

(10) advertises goods or services with intent not to supply
reasonably expectable public demand, unless t he advertisement
discloses a limitation of quantity;

(11) makes false or misleading statements of fact concerning the
reasons for, existence of, or amounts of price reductions;

(12) in attempting to collect delinquent accounts, implies or
suggests that health care services will be withheld in an emergency
situation;

(13) engages in (i) unfair methods of competition, or (ii) unfair or
unconscionable acts or practices; or

(14) engages in any other conduct which similarly creates a
likelihood of confusion or of misunderstanding.
Minn. Stat. § 325D.44, subd. 1.
Appellant asserts that the allegations in the complaint sufficiently plead ed a
violation of the MDTPA’s fifth enumerated factor. See Minn. Stat. § 325D.44, subd. 1(5).
Appellant cites Baker v. Sunbelt Bu s. Brokers, No. A07-0514, 2008 WL 66860 8 (Minn.
App. Mar. 11, 2008) to support his position. First, Baker is nonprecedential. See Minn. R.
Civ. App. P. § 136.01, subd. 1(c) (“Nonprecedential opinions . . . are not binding authority
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except as law of the case, res judicata or collateral estoppel . . .”). Second, Baker held that
to establish a claim under subdivision 1(5), a plaintiff must allege that the defendant
“represented that its services have characteristic or benefits that they do not have.” Baker,
2008 WL 668608, at *6 (quotation omitted). In Baker, the allegation that a broker service
“falsely stated that Sunbelt would rep resent his interest” was sufficient for this court to
conclude that Baker set forth a legally sufficient claim that the broker service violated
Minn. Stat. § 325D.44, subd. 1(5). Id. at *7.
Here, the complaint alleged that respondent’s “refusal to comply with the terms of
the mandatory arbitration clause ” because of their dispute with JAMS “is a deceptive,
unfair, and misleading trade practice.” However, nowhere in the complaint d id appellant
suggest that respondent represented the arbitration provision in the contract as a “benefit”
or “characteristic” of a good or service respondent carries, and it would be unreasonable to
infer otherwise.4 We conclude that the complaint does not state a legally viable claim under
the MDTPA.
D. The district court did not commit reversible error in using the header “Findings
of Fact.”
Appellant challenges the district court’s use of “Findings of Fact” as a header in its
order. A district court does not make findings of fact in an order granting a motion to
dismiss under Minn. R. Civ. P. 12.02(e). Minn. R. Civ. P. 52.01.

4 We are aware of no case where this court has expanded the scope of the MDTPA to
include dispute resolution clauses as a benefit or characteristic of a good or service,
particularly where the plaintiff is the service provider that uses the technology of the
defendant to provide that service.
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Although the district court used the caption “Findings of Fact,” which can cause
confusion in a rule 12 posture, the relevant question is whether the district court failed to
accept the facts alleged in the complaint as true. See Walsh, 851 N.W.2d at 606. Appellant
asserts that by using the header “Findings of Fact,” the district court inherently failed to
accept as true the allegations in the complaint and failed to make all reasonable inferences
in appellant’s favor. We are not persuaded. The district court’s order merely reflect s a
summary of the factual allegations asserted in the complaint and makes no findin gs
concerning disputed facts. 5 Notwithstanding that the PAA was attached to respondent’s
declaration, t he district court also permissibly relied on the PAA in stating the fact s,
because the PAA was referenced in the complaint. 6 See Baker, 812 N.W.2d at 180 (“In
deciding a motion to dismiss, the court may consider the entire written contract when the
complaint refers to the contract and the contract is central to the claims alleged.” (quotation
omitted)).

5 Both parties rely on a nonprecedential case, Rabbe v. Farmers State Bank of Trimont ,
which affirmed the district court’s dismissal under 12.02(e) that contained the header
“Findings of Fact ,” noting that “despite the caption, the district court made no findings
concerning disputed facts.” No. A19-1353, 2020 WL 2312931 , at *5, n.3 (Minn. App.
May 11, 2020), rev. denied (Minn. July 23, 2020).
6 Respondent attached the PAA to a declaration it filed with its memorandum in support of
its motion to dismiss. Appellant lists the district court’s failure to strike respondent’s
declaration as an issue on appeal. However, no motion to strike the declaration exists in
the record. We decline to decide issues that appellant failed to raise in the district court.
See Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts
generally must consider only the issues that the record shows were presented to and
considered by the district court in deciding the matter before it.)
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II. The district court did not err in dismissing appellant’s complaint for lack
of subject matter jurisdiction as it related to injunctive relief.

Appellant challenges the district court’s grant of respondent’s motion to dismiss for
lack of subject matter jurisdiction as i t related to injunctive relief. Because appellant
waived his right to bring an action for collective injunctive relief, the district court did not
err.
Whether the district court has subject matter jurisdiction is a question of law, which
this court reviews de novo. Daniel v. City of Minneapolis , 923 N.W.2d 637, 644 (Minn.
2019). “Subject matter jurisdiction is the court’s authority to hear the type of dispute at
issue and to grant the type of relief sought.” Musta v. Mendota Heights Dental C tr., 965
N.W.2d 312, 317 (Minn. 2021) (quotation omitted). “[R]egardless of the type of
proceeding involved, a justiciable controversy must exist in order for a litigant’s claim to
be properly before the court.” State v. Colsch, 284 N.W.2d 839, 841 (Minn. 1979). Where
a party lacks standing, “a court does not have jurisdiction to hear the matter.” Citizens for
a Balanced City v. Plymouth Congregational Church , 672 N.W.2d 13, 18 (Minn. App.
2003).
In addition to damages, appellant requests a permanent inj unction against
respondent to either (1) preclude respondent from “including a mandatory arbitration
agreement in its contracts with its drivers,” or (2) require respondent “to comply with the
mandatory arbitration agreement and arbitrate all future disput es with its drivers” using
JAMS’ EMS. The PAA’s arbitration provision bars appellant from participating in or
seeking relief through class, collective, or representative actions.
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Appellant has neither a justiciable controversy nor standing to allow a court to grant
collective injunctive relief. The complaint identifies no concrete assertions of right in the
PAA (or other legal sources) allow ing appellant to request this type of injunction; in fact,
the PAA disallows such requests. Appellant waived the r ight to request collective
injunctive relief by not opting out of the arbitration provision ; therefore, appellant lacked
standing to bring this request for relief, and the district court did not have authority to hear
it. See Musta, 965 N.W.2d at 317 (stating that a court must have the authority to grant the
type of relief sought to have subject -matter jurisdiction). We conclude that the district
court did not err in dismissing appellant’s request for “collective injunctive relief” for lack
of subject matter jurisdiction.
III. The district court did not abuse its discretion by dismissing some of
appellant’s claims with prejudice.

This court reviews the district court’s dismissal of a ll claims with prejudice under
the abuse of discretion standard. Minn. Humane Soc’y. v. Minn. Federated Human Soc’ys.,
611 N.W.2d 587, 590 (Minn. App. 2000) . Dismissal with prejudice on the merits is
appropriate where a complaint fails to state a claim upon which relief can be granted.
Martens v. Minn. Mining & Mfg. Co. , 616 N.W.2d 732, 748 (Minn. 2000) (holding that
where the district court granted a motion to dismiss for failure to state a claim on the merits,
the “complaint should be dismissed with prejudice”).
The district court did not abuse its discretion in dismissing appellant’s claims related
to respondent’s alleged failure to investigate complaints and under the MDTPA, as those
determinations were made on the merits . Additionally, the court was barred from
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considering appellant’s request for permanent injunctive relief on behalf of all drivers, so
it did not abuse its discretion in dismissing appellant’s request for such relief with
prejudice.
Affirmed in part, reversed in part, and remanded.