United States District Court, D. Minnesota
L. Kaess, Esq., Kaess Law LLC, St. Paul, MN, on behalf of
S. Carter, Assistant City Attorney, Minneapolis City
Attorney's Office, Minneapolis, MN, on behalf of
Defendants City of Minneapolis and Christopher Lokke.
Richard C. Landon, Esq., Gray Plant Mooty, Minneapolis, MN,
on behalf of Defendant Avis Budget Car Rental, LLC.
MEMORANDUM OPINION AND ORDER
MONTGOMERY, U.S. DISTRICT JUDGE
January 17, 2019, the undersigned United States District
Judge heard oral argument on Defendants Christopher Lokke
(“Officer Lokke”) and the City of
Minneapolis' (collectively, the “City
Defendants”) Motion to Dismiss [Docket No. 14].
Plaintiff ERA Venture Capital, Inc. (“Plaintiff”)
has filed a Response [Docket No. 29] opposing the Motion. For
the reasons set forth below, the City Defendants' Motion
February 1, 2017, Plaintiff's predecessor in interest,
ERA Venture Capital, LLC (“ERA”), entered into an
Independent Operator Agreement (“Agreement”) with
Defendant Avis Budget Car Rental, LLC (“Avis”).
Compl. [Docket No. 1, Attach. 1] ¶ 8. The Agreement
named an Avis affiliate as the “Licensor, ” and
ERA as the “Independent Agency Operator.” Compl.
Ex. A (“Agreement”) at 1.
Agreement provided that ERA operate a car rental business at
South 10th Street in Minneapolis, Minnesota (the
“Location”) subject to terms and conditions
stated in the Agreement. Compl. ¶ 9; Agreement at 2.
With respect to the Location, the Agreement provided:
Both parties agree that [ERA] will operate the [L]ocation . .
. on the terms and conditions stated herein. [Avis] will
obtain the right to occupy the Location for the initial term
of this Agreement and a business license, and will furnish
the location with a Wizard Terminal and furniture. [Avis]
shall be under no obligation to maintain the right to occupy
the Location for any term beyond the initial term of the
compensation for renting Avis' vehicles to customers, ERA
was to receive a 12% commission of all rental revenues.
Compl. ¶ 10. The Agreement specified that “[b]oth
parties wish to establish an independent contractor
relationship, ” and that ERA was to notify its
employees that they were employed by ERA and were not
employees of Avis. Compl. ¶ 11; Agreement at 5.
Agreement was for a one-year term ending January 31, 2018
“unless terminated before then by either party for good
cause.” Compl. ¶ 12; Agreement at 6. Either party
to the Agreement could give notice of its intention not to
renew at least 90 days before the end of the term. Compl.
¶ 13; Agreement at 6. Notice was to be provided by
certified or registered mail or by facsimile. Compl. ¶
14; Agreement at 7. If no notice was given, the Agreement
would automatically renew on its anniversary. Compl. ¶
13; Agreement at 6. Paragraph 17 of the Agreement also gave
Avis the right to terminate the Agreement immediately under
the following circumstances:
1. The Location is abandoned or a threat to abandon the
location has been made.
2. Vehicles have been dealt with by your employee, Principal
or agent in a grossly negligent or reckless manner.
3. Your employee, Principal or agent engages in the
unauthorized sale, rental, or use of [Avis] vehicles.
4. Your employee, Principal or agent engages in any act of
dishonesty, violence, abusive or threatening behavior,
misappropriation of funds, or any unlawful act of
discrimination or demonstrates any racial, gender, religious
or age insensitivity against any person including [Avis]
customers or [Avis] corporate employees or business partners
5. Your employee, Principal or agent demonstrates poor
customer service to a level likely to substantially impair