Steve Quest v. Nicholas Robert Rekieta

This opinion is nonprecedential except as provided by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
A23-1337

Steve Quest,
Respondent,

vs.

Nicholas Robert Rekieta, et al.,
Appellants.

Filed May 20, 2024
Affirmed
Ede, Judge

Kandiyohi County District Court
File No. 34-CV-23-12

Christopher W. Bowman, Madigan, Dahl & Harlan, P.A., Minneapolis, Minnesota; and

David W. Schneider, Schneider & Madsen, P.C., Willmar, Minnesota (for respondent)

Matt Kezhaya, Kezhaya Law PLC, Minneapolis, Minnesota; and

Marc J. Randazza (pro hac vice), Las Vegas, Nevada (for appellants)

Considered and decided by Larson, Presiding Judge; Reyes, Judge; and Ede, Judge.

NONPRECEDENTIAL OPINION

EDE, Judge

In this interlocutory appeal, appellants seek review of the district court’s order

denying their special motion to dismiss respondent’s tort claims under Colorado’s anti-

SLAPP (Strategic Lawsuit Against Public Participation) law, Colorado Revised Statutes

section 13-20-1101 (2022). Appellants ask this court to reverse and remand, arguing that
the district court erred by concluding that Minnesota law governs, rather than Colorado

law. Because we conclude that the five-factor test applicable to civil tort choice-of-law

disputes favors Minnesota law, we affirm.

FACTS

Appellant Nicholas Robert Rekieta is a Minnesota attorney with an online presence.

Rekieta discusses topical legal issues through pre-recorded videos and video streams,

which he publishes online. Respondent Steve Quest is a Colorado resident who creates,

directs, and publishes videos online.

Quest filed a complaint in Minnesota district court against appellants Rekieta and

Rekieta Law LLC (collectively, Rekieta) for defamation, intentional infliction of emotional

distress, and negligent infliction of emotional distress.

Rekieta filed a special motion to dismiss Quest’s complaint under Colorado’s anti-

SLAPP statute, see Colo. Rev. Stat. § 13-20-1101, which “provides a mechanism to

dismiss nonmeritorious lawsuits infringing on First Amendment rights,” L.S.S. v. S.A.P.,

523 P.3d 1280, 1285 (Colo. App. 2022), cert. denied (Colo. July 17, 2023). Quest opposed

Rekieta’s motion to dismiss, arguing that the district court should apply the law of

Minnesota, not Colorado. In July 2023, the district court denied Rekieta’s motion to

dismiss because it concluded that Minnesota law governs this case.

Citing Jepson v. General Casualty Co. of Wisconsin, 513 N.W.2d 467, 470 (Minn.

1994), the district court applied a five-factor test to resolve the choice-of-law dispute,

considering: (1) predictability of result; (2) maintenance of interstate order;

(3) simplification of the judicial task; (4) advancement of the forum’s governmental

2
interest; and (5) application of the better rule of law. The district court determined that

factors one, three, and four favored applying Minnesota law, and that factor two favored

applying Colorado law. The district court did not analyze factor five, instead choosing to

rely on its analysis of the first four factors based on caselaw holding that district courts

should only apply factor five “when the first four factors do not clearly resolve the choice

of law issue.” Bd. of Regents of Univ. of Minn. v. Royal Ins. Co. of Am., 503 N.W.2d 486,

491 (Minn. App. 1993), aff’d on other grounds, rev’d on other grounds, 517 N.W.2d 888

(Minn. 1994).

Rekieta appeals. 1

DECISION

Whereas Rekieta maintains that Colorado Revised Statutes section 13-20-1101

applies here, Quest insists that the district court did not err by choosing Minnesota law.

“Choice-of-law questions are questions of law and are reviewed de novo.” Schumacher v.

Schumacher, 676 N.W.2d 685, 690 (Minn. App. 2004). As explained below, we conclude

that the district court did not err in deciding to apply Minnesota law.

1
We questioned but ultimately accepted jurisdiction, limiting the scope of this appeal to
the district court’s choice-of-law decision, which we concluded is independently
appealable under the collateral-order doctrine. See Kastner v. Star Trails Ass’n, 646
N.W.2d 235, 240 (Minn. 2002).

3
There is a conflict between Colorado and Minnesota law and either may be
constitutionally applied.

Before turning to the merits of the parties’ choice-of-law arguments, we briefly

address certain preliminary issues to determine whether a choice-of-law analysis is

appropriate.

Our “first consideration is whether the choice of one state’s law over another’s

creates an actual conflict.” Jepson, 513 N.W.2d at 469. Here, the parties do not dispute,

and we agree, that there is an actual conflict between Minnesota and Colorado law. See id.

Both Colorado and Minnesota have anti-SLAPP laws that authorize a district court to

dismiss a lawsuit if certain procedural requirements are met. See Colo. Rev. Stat. § 13-20-

1101; Minn. Stat. § 554.02 (2022). But the Minnesota Supreme Court has held that, as

applied to tort claims at law, Minnesota’s anti-SLAPP statute unconstitutionally infringes

on the state constitutional right to a jury trial. Leiendecker v. Asian Women United of Minn.,

895 N.W.2d 623, 637–38 (Minn. 2017). Thus, if Colorado’s anti-SLAPP statute applies,

Rekieta may have a meritorious special motion to dismiss that could dispose of Quest’s

claims. But no such motion currently exists under Minnesota law. The choice of Colorado’s

law over Minnesota’s therefore creates an actual conflict.

“Next, we must consider whether the law of both states can be constitutionally

applied.” Jepson, 513 N.W.2d at 469–70. “[F]or a State’s substantive law to be selected in

a constitutionally permissible manner, that State must have a significant contact or

significant aggregation of contacts, creating state interests, such that choice of its law is

neither arbitrary nor fundamentally unfair.” Id. (quoting Allstate Ins. Co. v. Hague, 449

4
U.S. 302, 312–13 (1981)). Here, the parties do not dispute that either state’s law may be

selected in a “constitutionally permissible manner” per Jepson, and we conclude that both

Colorado and Minnesota have sufficient contacts with this case to create state interests. See

id.

Minnesota law applies to this matter.

Having concluded that there is a conflict between Colorado and Minnesota law and

that either may be constitutionally applied, we must now resolve the choice-of-law

question. See id. at 470. Although Rekieta suggests we should employ the “most-

significant-relationship” test, 2 the parties ultimately agree—as do we—that the five-factor

2
Citing State v. Castillo-Alvarez, 836 N.W.2d 527, 538 n.6 (Minn. 2013), Rekieta contends
that “Minnesota recognizes and uses the Restatement’s most-significant-relationship
approach to resolve a variety of choice-of-law issues.” See Restatement (Second) of
Conflict of Law § 150 (1971). But Castillo-Alvarez is distinguishable because it analyzes,
in the criminal-law context, the choice-of-law framework for “resolv[ing] issues relating
to the admission of evidence collected in another jurisdiction.” 836 N.W.2d at 537.
Specifically, Castillo-Alvarez considered whether a Minnesota rule mandating the
recording of custodial interrogations required the exclusion of unrecorded, out-of-state
interrogations conducted by out-of-state officers. Id. at 537, 539. And the supreme court
chose the “most-significant-relationship” test in Castillo-Alvarez because, consistent with
prior caselaw considering the admissibility of evidence in criminal trials, the Minnesota
rule has “both a procedural and substantive purpose.” Id. at 539; see also State v. Heaney,
689 N.W.2d 168, 170 (Minn. 2004) (“A conflict of laws concerning the admissibility of
evidence protected by the physician-patient relationship is resolved by applying the two-
prong test set forth in Restatement (Second) of Conflict of Laws § 139 (1971).”). Rekieta
has not identified any civil tort cases employing the most-significant-relationship
approach. Thus, although our following discussion acknowledges some of the
shortcomings of the five-factor Leflar analysis—particularly as to predictability of result—
we nevertheless apply Leflar here, consistent with previous civil tort cases. See Lommen v.
City of East Grand Forks, 522 N.W.2d 148, 150 (Minn. App. 1994), rev. granted (Minn.
Dec. 2, 1994) and appeal dismissed (Minn. Aug. 9, 1995); see also Milkovich v. Saari, 203
N.W.2d 408, 412 (Minn. 1973).

5
Leflar choice-of-law analysis applies. 3 See Lommen, 522 N.W.2d at 150 (“To make the

actual choice of law, Minnesota has adopted Professor Robert A. Leflar’s approach.”).

“Leflar identified five choice-influencing considerations: (1) predictability of result,

(2) maintenance of interstate order, (3) simplification of the judicial task, (4) advancement

of the forum’s governmental interest, and (5) application of the better rule of law.” Id. “The

Leflar approach requires courts to critically analyze each case and, ‘to be true to the method

rather than to seek superficial factual analogies between cases.’” Id. (quoting Jepson, 513

N.W.2d at 470). We next analyze each consideration in turn.

1. Predictability of result favors Colorado law.

The first factor “addresses whether the choice of law was predictable before the time

of the transaction or event giving rise to the cause of action.” Schumacher, 676 N.W.2d

at 690 (quotation omitted). The Minnesota Supreme Court has explained that “this factor

acts to preserve the parties’ justified contractual expectations” and “represents the ideal

that litigation on the same facts, regardless of where the litigation occurs, should be decided

the same to avoid forum shopping.” Nodak Mut. Ins. Co. v. Am. Fam. Mut. Ins. Co., 604

N.W.2d 91, 94 (Minn. 2000). “The factor applies primarily to consensual transactions

where the parties desire advance notice of which state law will govern in future disputes.”

Medtronic, Inc. v. Advanced Bionics Corp., 630 N.W.2d 438, 454 (Minn. App. 2001). “It

3
The Leflar approach applies to substantive choice-of-law issues and does not apply to
conflicts of procedure. Fleeger v. Wyeth, 771 N.W.2d 524, 527 (Minn. 2009). If there is a
procedural conflict of law, the law of the forum—here, Minnesota—applies. See id. The
parties do not address whether the Colorado anti-SLAPP statute is substantive or
procedural. And because we conclude that Minnesota law is proper under the Leflar test,
we need not decide whether the Colorado anti-SLAPP statute is substantive or procedural.

6
is intended to protect the justified expectations of the parties to the transaction.” Id.

(quotation omitted). “Predictability is often of little relevance in tort cases because of the

‘unplanned nature’ of accidents.” Kolberg-Pioneer, Inc. v. Belgrade Steel Tank Co., 823

N.W.2d 669, 673 (Minn. App. 2012) (quoting Jepson, 513 N.W.2d at 470), rev. denied

(Minn. Jan. 15, 2013).

In Lommen, despite observing that “[t]ort actions generally do not implicate party

expectations because torts stem from unplanned accidents[,]” we still analyzed

predictability of result in the tort context. 522 N.W.2d at 150. There, a Minnesota police

officer pursued a stolen vehicle across the state line into North Dakota and collided with a

vehicle carrying the appellant, who was injured. See id. at 149. Despite the injury’s

occurrence in North Dakota, we concluded that this factor favored applying Minnesota

immunity law because the officer “had a substantial expectation of on-the-job tort

immunity.” Id. at 150.

On one hand, Lommen suggests that predictability of result would favor Minnesota

law here because Rekieta, as a Minnesota attorney, had a substantial expectation that

Minnesota’s anti-SLAPP law—or rather, lack thereof in this context, given Leiendecker—

would apply to any allegedly tortious comments he made. On the other hand, the supreme

court has emphasized that predictability of result “represents the ideal that litigation on the

same facts, regardless of where the litigation occurs, should be decided the same to avoid

forum shopping.” Nodak, 604 N.W.2d at 94. In discussing forum shopping, the supreme

court has reasoned that “[p]eople who purposefully seek advantages offered by another

state ought not be allowed to avoid the burdens associated with their choice.” Jepson, 513

7
N.W.2d at 471. Because Quest filed suit in Minnesota and Rekieta is a Minnesota resident,

we acknowledge that this case is not one in which the plaintiff’s contacts with the forum

state are extremely attenuated. But, as a Colorado resident, Quest’s decision to file suit

against Rekieta in Minnesota rather than Colorado reflects forum shopping because Quest

is seeking to avoid one of the burdens associated with his Colorado residency: Colorado’s

anti-SLAPP law. Because this flouts the “ideal” that predictability of result is intended to

promote, we conclude that this factor favors application of Colorado law. See Nodak, 604

N.W.2d at 94.

2. Maintenance of interstate order favors Colorado law.

The second factor—maintenance of interstate order—is mainly concerned with

“whether the application of Minnesota law would manifest disrespect for [Colorado’s]

sovereignty or impede the interstate movement of people and goods.” Jepson, 513 N.W.2d

at 471. Courts of different states aim to maintain a “coherent legal system” by “striv[ing]

to sustain, rather than subvert, each other’s interests in areas where their own interests are

less strong.” Id. “[M]aintenance of interstate order is generally satisfied as long as the state

whose laws are purportedly in conflict has sufficient contacts with and interest in the facts

and issues being litigated.” Myers v. Gov’t Emps. Ins. Co., 225 N.W.2d 238, 242 (Minn.

1974). But “[e]vidence of forum shopping or evidence that application of one state’s law

would promote forum shopping, would be an attempt to evade, and would indicate

disrespect for, [Colorado] law.” Schumacher, 676 N.W.2d at 690–91.

Rekieta, relying on Schumacher, argues that this factor favors Colorado law because

failing to apply the Colorado anti-SLAPP statute would “manifest disrespect for

8
Colorado’s public policy.” Quest counters that Minnesota “has ‘sufficient contacts with

and interest in the facts and issues being litigated’ to mitigate any concerns about disruption

of interstate order,” quoting a decision by the United States Court of Appeals for the Eighth

Circuit as persuasive support. 4 See Nesladek v. Ford Motor Co., 46 F.3d 734, 739 (8th Cir.

1995).

In Nesladek, the Eighth Circuit not only analyzed Minnesota’s contacts with the

issues being litigated, but also considered the contacts of the other state. Id. Here, both

Colorado and Minnesota have equal contacts with the suit. Minnesota has a connection to

the suit because Rekieta is a Minnesota resident and his conduct allegedly occurred in

Minnesota. Colorado has a connection to the suit because part of Quest’s alleged injuries—

i.e., damage to his reputation and emotional distress—occurred in Colorado. But because

part of Quest’s injury was realized in a state other than the one where the suit was brought,

we agree with Rekieta that Schumacher is instructive.

Schumacher concerned an Iowa statute that provides immunity to owners of

domesticated animals that injure other people. 676 N.W.2d at 688. In Schumacher, both

the plaintiff and the defendant were Minnesotans. Id. The plaintiff sued his father in

Minnesota district court for an injury the plaintiff suffered in Iowa while working at a horse

show. Id. at 688–89. In analyzing the maintenance of interstate order, we stated that

applying Minnesota law would promote forum shopping because anyone harmed by a

4
“A federal court’s interpretation of Minnesota law is not binding on this court, though it
may have persuasive value.” TCI Bus. Cap., Inc. v. Five Star Am. Die Casting, LLC, 890
N.W.2d 423, 431 (Minn. App. 2017) (citing Moreno v. Crookston Times Printing Co., 610
N.W.2d 321, 330 (Minn. 2000)) (other citations omitted).

9
domesticated animal in Iowa owned by a non-Iowa resident could evade the immunity by

suing in the owner’s home state. Id. at 691. We therefore concluded that the maintenance

of interstate order favored the application of Iowa’s immunity statute. Id. We reasoned that,

“[b]y passing the immunity statute, Iowa ha[d] stated its public policy interest in

encouraging participation in agricultural activities” and that “[a]pplying Minnesota’s law

in the face of such an economic and public policy would indicate disrespect for Iowa law.”

Id.

In this case, the Colorado anti-SLAPP statute was enacted to “encourage and

safeguard the constitutional rights of persons to petition, speak freely, associate freely, and

otherwise participate in government to the maximum extent permitted by law and, at the

same time, to protect the rights of persons to file meritorious lawsuits for demonstrable

injury.” Rosenblum v. Budd, 538 P.3d 354, 362 (Colo. App. 2023) (quoting Colo. Rev.

Stat. § 13-20-1101(1)(b)), cert. denied, No. 23SC685, 2024 WL 1144424 (Colo. Mar. 11,

2024). Colorado has therefore expressed an interest in encouraging the exercise of free-

speech rights and empowering courts to dismiss nonmeritorious lawsuits infringing on such

rights. See L.S.S., 523 P.3d at 1285. Applying Minnesota law in the face of such a public

policy would manifest disrespect for Colorado law. See Schumacher, 676 N.W.2d at 691.

And, as discussed above, applying Minnesota law under these circumstances could

promote forum shopping by incentivizing plaintiffs from states with anti-SLAPP statutes

to file lawsuits in Minnesota. Thus, we conclude that maintenance of interstate order favors

application of Colorado law.

10
 3. Simplification of the judicial task favors Minnesota law.

The third factor—simplification of the judicial task—“is often considered

insignificant because courts can as easily apply another state’s law as their own.”

Medtronic, Inc., 630 N.W.2d at 455. But “the judicial task is ‘obviously’ simplified when

a ‘Minnesota court applies Minnesota law.’” Id. (quoting Gimmestad v. Gimmestad, 451

N.W.2d 662, 666 (Minn. App. 1990)).

The Colorado anti-SLAPP statute at issue creates a “two-step process for

considering a special motion to dismiss.” Rosenblum, 538 P.3d at 362. “First, the defendant

filing the special motion to dismiss must make a threshold showing that the anti-SLAPP

statute applies.” Id. “Second, if a defendant can establish that the claim falls within the

anti-SLAPP statute’s scope, the burden shifts to the plaintiff to demonstrate a reasonable

likelihood that the plaintiff will prevail on the claim.” Id. (quotation omitted).

There is a disagreement between two divisions of the Colorado Court of Appeals on

how to evaluate a plaintiff’s likelihood of prevailing at the second step of this process. The

First Division has held that courts “neither simply accept the truth of the allegations nor

make an ultimate determination of their truth.” Salazar v. Pub. Tr. Inst., 522 P.3d 242, 248

(Colo. App. 2022), reh’g denied, (Colo. App. Oct. 13, 2022). Instead, courts assess whether

“the allegations and defenses are such that it is reasonably likely that a jury would find for

the plaintiff.” Id. By contrast, the Fifth Division has instead held that “the court does not

weigh evidence or resolve conflicting factual claims but simply accepts the plaintiff’s

evidence as true, and evaluates the defendant’s showing only to determine if it defeats the

plaintiff’s claim as a matter of law.” L.S.S., 523 P.3d at 1286 (quotations omitted).

11
 “[D]ivisions of the Colorado Court of Appeals act independently based on their

understanding of the law[,]” meaning that “divisions of the Colorado Court of Appeals are

free to decide an issue before them in a way that conflicts with an earlier decision by

another division on the same issue.” Coomer v. Make Your Life Epic LLC, 659 F. Supp. 3d

1189, 1198 n.3 (D. Colo. 2023) (Make Your Life Epic LLC I), appeal dismissed, 98 F.4th

1320 (10th Cir. 2024) (Make Your Life Epic LLC II). “Therefore, even though Salazar was

issued before L.S.S. . . . , it does not control . . . .” Id. The Colorado Supreme Court has yet

to resolve this jurisprudential split. See id. at 1198 (citing Salazar, L.S.S., and other cases,

observing that, “[p]erhaps also due to the thin caselaw on the anti-SLAPP statute, divisions

of the Colorado Court of Appeals apparently disagree on how to treat Plaintiff’s factual

allegations for purposes of the Special Motion[,]” and stating that “[t]he Colorado Supreme

Court has not yet resolved this split among divisions of the Colorado Court of Appeals”).

But see Coomer v. Trump for President, Inc., No. 22CA0843, 2024 WL 1560462, at *12

(Colo. App. Apr. 11, 2024) (Fourth Division opining that Salazar and L.S.S. are not

inconsistent because, “while we do not necessarily accept the plaintiff’s allegations as true,

we do accept as true the plaintiff’s evidence”).

As a result of the foregoing, requiring the district court here to apply the Colorado

anti-SLAPP statute—assuming without deciding that Rekieta can make a threshold

showing at the first step that the anti-SLAPP statute applies—would leave the district court

without clear guidelines for its analysis of the second step: Quest’s likelihood of prevailing.

Simply put, the split in Colorado Court of Appeals authority complicates the judicial task.

Unlike the morass presented by Colorado law, the judicial task for the district court “is

12
obviously simplified . . . [by] appl[ying] Minnesota law.” Medtronic, Inc., 630 N.W.2d

at 455 (quotation omitted). We therefore conclude that this factor favors applying

Minnesota law.

4. Advancement of the forum’s governmental interest favors Minnesota law.

The fourth factor considers which state’s law would most effectively advance a

“significant interest” of Minnesota. Jepson, 513 N.W. 2d at 472. “This factor assures that

Minnesota courts are not called upon to apply rules of law inconsistent with Minnesota’s

concept of fairness and equity.” Medtronic, Inc., 630 N.W.2d at 455 (quotation omitted).

In Leiendecker, the Minnesota Supreme Court held that Minnesota’s anti-SLAPP

statute was unconstitutional because it “instruct[ed] district courts to usurp the role of the

jury by making pretrial factual findings that c[ould] . . . result in the complete dismissal of

the underlying action.” 895 N.W.2d at 635. The supreme court explained that clauses 2

and 3 of Minnesota Statutes section 554.02, subdivision 2, violated a responding party’s

constitutional right to a civil jury trial because the clauses “transfer the jury’s fact-finding

role to the district court” and “require the responding party to meet a higher burden of proof

before trial (clear and convincing evidence) than it would have to meet at trial

(preponderance of the evidence).” Id. at 636. Thus, “a court assessing a claim under Minn.

Stat. § 554.02 [was required to] ‘make a finding’ based on evidence, rather than assuming

that the allegations are true.” Id.

The supreme court’s analysis in Leiendecker focused on an individual’s right to a

civil jury trial under article I, section 4 of the Minnesota Constitution. Id. at 634–36. And,

in the seven years since the supreme court struck down Minnesota’s anti-SLAPP statute in

13
Leiendecker, the legislature has not amended Minnesota Statutes section 554.02 to address

its constitutional infirmity. 5 Cf. W. Union Tel. Co. v. Spaeth, 44 N.W.2d 440, 441 (Minn.

1950) (“The judicial construction of a statute, so long as it is unreversed, is as much a part

thereof as if it had been written into it originally.” (quotation omitted)). Minnesota has

therefore made clear that its interest in protecting a litigant’s right to a civil jury trial

prevails over its interest in maintaining an anti-SLAPP statute, as applied to tort claims at

law. Colorado, on the other hand, does not provide a right to a civil jury trial under its state

constitution. Scholz v. Metro. Pathologists, P.C., 851 P.2d 901, 906 (Colo. 1993) (“the

Colorado Constitution does not guarantee a jury trial in civil cases as a matter of right”).

Rekieta contends that Colorado’s anti-SLAPP statute does not violate Minnesota’s

right to a civil jury trial because, under Colorado law, “an anti-SLAPP motion is analyzed

under the same standard as a motion for summary judgment” and “[t]his framework is

compatible with Minnesota law allowing summary judgment in cases” that are meritless.

We are not persuaded.

5
After oral argument, Quest filed a letter advising that the Minnesota Legislature is now
considering legislation related to Minnesota’s anti-SLAPP statute. In response, Rekieta
likewise filed a letter. Neither letter complies with Minnesota Rule of Civil Appellate
Procedure 128.05. As much as Quest’s letter cites pending legislation that is not yet
enacted, it does not “set[] forth . . . citations” to “pertinent and significant authorities.”
Minn. R. Civ. App. P. 128.05. And Rekieta’s letter likewise fails to cite pertinent and
significant authorities; instead, it “presents a new argument and therefore fails to comply
with the rule.” Anderson v. Aitkin Pharmacy Services, LLC, ___ N.W.3d ____, ____, No.
A23-0374, 2024 WL 1146503, at *9 n.9 (Minn. App. Mar. 18, 2024) (declining to consider
a letter filed after oral argument pursuant to rule 128.05); see also Minn. R. Civ. App. P.
128.05 2000 comm. cmt. (“The submission itself is not to contain argument, and a
response, if any, is similarly constrained.”). We therefore decline to consider the parties’
letters regarding pending legislation related to Minnesota’s anti-SLAPP statute.

14
 In Minnesota, a district “court shall grant summary judgment if the movant shows

that there is no genuine issue as to any material fact and the movant is entitled to judgment

as a matter of law.” Minn. R. Civ. P. 56.01. When reviewing a motion for summary

judgment, Minnesota courts “do not weigh the evidence or make factual determinations.”

McIntosh Cnty. Bank v. Dorsey & Whitney, LLP, 745 N.W.2d 538, 545 (Minn. 2008). It is

true that some Colorado courts have characterized analysis of anti-SLAPP special motions

to dismiss as applying a “summary judgment-like” procedure that does not require

weighing evidence. See L.S.S., 523 P.3d at 1286; see also Anderson v. Senthilnathan, 540

P.3d 1248, 1254 (Colo. App. 2023).

But closer scrutiny reveals that—given the interdivisional split discussed above—

some Colorado courts do weigh evidence at the second step of adjudicating anti-SLAPP

special motions to dismiss, in requiring courts to evaluate plaintiffs’ reasonable likelihood

of prevailing on their claims. See Salazar, 522 P.3d at 248 (agreeing that “review of a

special motion to dismiss is similar to a review of the sufficiency of the evidence, in that a

court reviewing such a motion is called on to determine whether the plaintiff’s allegations

and supporting affidavit, viewed in conjunction with any opposing affidavit, meet the legal

threshold of establishing a reasonable likelihood of success on the merits”); see also Make

Your Life Epic LLC II, 98 F.4th at 1327 (noting that “Colorado’s anti-SLAPP statute

requires courts to consider the pleadings and supporting and opposing affidavits stating the

facts upon which the liability or defense is based and evaluate whether the plaintiff has

established that there is a reasonable likelihood that he will prevail on the claim” and

15
concluding that orders “denying anti-SLAPP special motions to dismiss necessarily

involve fact weighing” (quotations omitted)). 6

Here, an application of Colorado’s anti-SLAPP statute consistent with Salazar

would conflict with the animating reasoning of Leiendecker by “unconstitutionally

instruct[ing the] district court[] to usurp the role of the jury by making pretrial factual

findings that can, depending on the findings, result in the complete dismissal of the

underlying action.” Leiendecker, 895 N.W.2d at 635. Moreover, as Quest points out,

Colorado’s reasonable-likelihood-of-success standard deviates from Minnesota’s

summary-judgment standard because determining whether there is a genuine issue of

material fact requires an analysis far less exacting than an evaluation of whether a plaintiff

is reasonably likely to succeed at trial.

Given the importance of Minnesota’s constitutional right to a civil jury trial and the

conflict between Colorado’s reasonable-likelihood-of-success standard and Minnesota’s

summary-judgment standard, we conclude that applying Colorado’s anti-SLAPP statute

would require Minnesota to “apply rules of law inconsistent with Minnesota’s concept of

6
Also following oral argument, Quest filed a letter notifying us of the United States Court
of Appeals for the Tenth Circuit’s decision in Make Your Life Epic LLC II. Rekieta again
filed a letter in reply. To the extent that Quest’s “letter . . . state[s] without argument the
reasons for the supplemental citation[]”—a “pertinent and significant authorit[y]” that was
issued “after oral argument but before decision”—it complies with Minnesota Rule of Civil
Appellate Procedure 128.05 and we consider Make Your Life Epic LLC II as cited in the
text above. Like his previous correspondence, however, Rekieta’s letter once again is not
constrained to citation of “pertinent and significant authorities” but instead “presents a new
argument and therefore fails to comply with the rule.” Anderson, 2024 WL 1146503, at *9
n.9; see also Minn. R. Civ. App. P. 128.05 2000 comm. cmt. We therefore decline to
consider Rekieta’s responsive letter about Make Your Life Epic LLC II.

16
fairness and equity.” Medtronic, Inc., 630 N.W.2d at 455 (quotation omitted). Thus,

advancement of the forum’s governmental interest favors application of Minnesota law.

5. Application of the better rule of law favors Minnesota law.

The final factor—application of the better rule of law—“should be applied only

when the choice-of-law question remains unresolved after the other factors are

considered.” Medtronic, Inc., 630 N.W.2d at 455. As discussed above, we have concluded

that factors one and two favor application of Colorado law, while factors three and four

favor applying Minnesota law. We therefore turn to an analysis of factor five, which we

conclude favors Minnesota law.

The better rule of law is “the rule that ma[kes] ‘good socio-economic sense for the

time when the court speaks.’” Jepson, 513 N.W.2d at 473 (quoting Robert A. Leflar,

Conflicts Law: More on Choice-Influencing Considerations, 54 Calif. L. Rev. 1584, 1588

(1966)). Simply concluding that the law of the forum is better because the forum’s

legislature enacted the law is impermissible. Danielson v. Nat’l Supply Co., 670 N.W.2d 1,

9 (Minn. App. 2003), rev. denied (Minn. Dec. 16, 2003). Otherwise, “the forum law would

always be better law and this step in our choice of law analysis would be meaningless.”

Jepson, 513 N.W.2d at 473.

In this case, Colorado law is not the better rule of law. There is an ongoing

interdivisional split in the Colorado Court of Appeals on how to treat a plaintiff’s likelihood

of success at the second step of analyzing Colorado anti-SLAPP special motions to dismiss.

And the Colorado Supreme Court has not yet resolved this split. Make Your Life Epic LLC

I, 659 F. Supp. 3d at 1198. Without definitive guidance on how to apply the Colorado anti-

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SLAPP statute, requiring a Minnesota district court to enforce Colorado law does not make

good socioeconomic sense for the time when the district court will need to speak. See

Jepson, 513 N.W.2d at 473. Moreover, because Colorado’s constitution does not provide

for the right to a civil jury trial, there has been no comparable analysis of the

constitutionality of Colorado’s anti-SLAPP statute by the Colorado Supreme Court, as

there was in Leiendecker, 895 N.W.2d at 638. Finally, Minnesota law provides parties a

well-established vehicle for pretrial disposition of lawsuits via summary judgment. See

Minn. R. Civ. P. 56. If Quest’s case is truly nonmeritorious, Rekieta can achieve pretrial

disposition by pursuing a summary-judgment motion after discovery. Thus, without relying

on any preference for the law of the forum based on its enactment by the forum’s

legislature, see Danielson, 670 N.W.2d at 9, we conclude that applying Minnesota law to

this case makes “good socio-economic sense,” see Jepson, 513 N.W.2d at 473 (quotation

omitted).

In sum, because factors three, four, and five all favor choosing Minnesota law, the

district court did not err in deciding that Minnesota law governs this case.

Affirmed.

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