Malicious Prosecution in Minnesota: The Elements, and the Special-Injury Rule Minnesota Never Adopted

Most states won’t let you sue someone for dragging you through a groundless civil lawsuit unless the lawsuit did something to you beyond the ordinary damage of being sued: an arrest, an attachment, a receiver, an injunction, some seizure of you or your property. Lawyers call it the special-injury rule, or the English rule, and it kills the great majority of these claims before anyone gets to the merits.

Minnesota is not one of those states. It rejected the special-injury requirement in 1889 and said so again in 1898, in 1913 and again in 1923, and the Court of Appeals was still applying the same rule in 1987. I’ve found no Minnesota decision imposing it, and the cases people cite for it say the opposite. If you were sued maliciously and without probable cause in Ramsey County and all you lost was the money and the year it took to win, you have the elements of a Minnesota tort.

That is not the same as saying you have a case. Minnesota paid for its open door with a toll at the threshold, and the toll is a proof standard on want of probable cause that no other element in Minnesota tort law carries: it must be very palpable. I’ve watched that phrase do more work in a summary-judgment order than the three elements combined.

So here’s what the elements actually are, where the phantom fourth element came from, and the five or six places these claims really die.

What are the elements of malicious prosecution in Minnesota?

Three, and the Minnesota Supreme Court finally said so out loud in 2017. In Leiendecker v. Asian Women United of Minnesota, 895 N.W.2d 623 (Minn. 2017) (No. A16-0360), the court adopted the Court of Appeals’ formulation word for word:

The tort of malicious prosecution has three elements: “(1) the action [must be] brought without probable cause or reasonable belief that the plaintiff would ultimately prevail on the merits; (2) the action must be instituted and prosecuted with malicious intent; and (3) the action must terminate in favor of the defendant.”

Id. at 634, quoting Kellar v. VonHoltum, 568 N.W.2d 186, 192 (Minn. App. 1997), rev. denied (Minn. Oct. 31, 1997). Count them. Three. There’s no fourth element for injury, interference, arrest, seizure, or anything else.

Where that sentence came from is worth a minute, because it explains why so many people misremember the rule. Kellar took the three elements from Jordan v. Lamb, 392 N.W.2d 607, 609 (Minn. App. 1986), rev. denied (Minn. Oct. 29, 1986). Jordan took them from a federal district judge’s statement of Minnesota law in First National Bank v. Marquette National Bank, 482 F. Supp. 514, 522–23 (D. Minn. 1979). So the modern statement of a Minnesota common-law tort traveled from a federal court, through two Court of Appeals opinions, and into a supreme court opinion thirty-eight years later. Nothing wrong with that. But it does mean the modern cases state the rule without restating the nineteenth-century reasoning behind it, and the reasoning is where the real law lives.

Leiendecker also settles two things people argue about. Malicious prosecution “is an action for a tort” with a right to damages, Schmidt v. Bickenbach, 29 Minn. 122, 123, 12 N.W. 349, 349–50 (1882), which makes it a claim at law that carries a constitutional right to a jury trial. And the burden at trial is preponderance, not clear and convincing. Leiendecker, 895 N.W.2d at 636, citing Nelson v. International Harvester Co. of America, 117 Minn. 298, 301, 135 N.W. 808, 810 (1912).

Does Minnesota require an arrest, an attachment, or “special injury”?

No. And the court has been unusually blunt about it for a hundred and thirty-six years.

Start with McPherson v. Runyon, 41 Minn. 524, 43 N.W. 392 (1889). A woman’s cooking stove, worth twenty dollars, was seized on a replevin writ in justice’s court. She won the replevin case and then sued for malicious prosecution. The defendant argued the claim was just a side issue of the replevin action. The court could have decided the case on the narrow ground that her property had in fact been seized. It wouldn’t. It rested instead “upon the broader proposition” that an action for damages lies for the malicious and groundless prosecution of a civil action “although there was no interference with his person or property.” Id. at 525 (star pagination). Four years later the court applied that holding to a garnishment case where the only out-of-pocket loss pleaded was ten dollars of the plaintiff’s own time and a five-dollar attorney fee. O’Neill v. Johnson, 53 Minn. 439, 441–42, 55 N.W. 601 (1893). Then, in Eickhoff v. Fidelity & Casualty Co., 74 Minn. 139, 76 N.W. 1030 (1898), the court called the point settled by its own decisions: for the malicious and groundless prosecution of a civil action, “the party injured may maintain an action for damages, although there was no interference with his person or property.” Id. at 142. Virtue v. Creamery Package Manufacturing Co., 123 Minn. 17, 32, 142 N.W. 930 (1913), said it again: an action lies “even though there is no interference with the person or property of the defendant.” Kasal v. Picha, 156 Minn. 446, 447–48, 195 N.W. 380 (1923), decided a claim over a lawsuit accusing a farm woman of sowing thistles in a neighbor’s field, with no seizure of anything, and never hinted that the claim was off the table as a category. And in 1987 the Court of Appeals laid out the modern civil rule with both older cases cited in support: “The plaintiff must prove both malice and want of probable cause, and the want of probable cause must be very palpable.” Mendota Heights Associates v. Friel, 414 N.W.2d 480, 484 (Minn. App. 1987), citing Virtue, 123 Minn. at 33, and Eickhoff, 74 Minn. at 142.

So where does the phantom element come from? Three places, and each one is a misreading.

The first is the national picture. Most American jurisdictions do require special injury, and treatises say so in general terms. A lawyer who checks a national source and stops there will bring in a rule Minnesota doesn’t have.

The second is a stray phrase. Stead-Bowers v. Langley, 636 N.W.2d 334 (Minn. App. 2001), contains the words “special injury”, but they’re inside a parenthetical describing an Iowa decision, Yoch v. City of Cedar Rapids, 353 N.W.2d 95, 101 (Iowa Ct. App. 1984), in a string cite of out-of-state authority collected for a different point: that many other jurisdictions require something more formal than a criminal investigation before the tort kicks in. Id. at 340. It isn’t a statement of Minnesota law, and the Stead-Bowers court didn’t adopt it.

The third, and the most common, is Kellar v. VonHoltum. People read it as the special-injury case because it’s the case everyone cites. It isn’t. I read Kellar start to finish to check. The words “special injury” don’t appear in it. What Kellar actually holds on this tort is narrower and more useful. The respondents there had done nothing but exercise a statutory right to request a Commerce Department hearing on a bank charter application under Minn. Stat. § 46.041, subd. 3, and “[r]espondents’ exercise of a statutorily given right cannot, we believe, form the basis for liability in a tort action.” 568 N.W.2d at 192. Don’t over-read the case the other way, either. The panel expressly declined to adopt the Noerr-Pennington doctrine in Minnesota, called the question one of first impression, and left it there. Id. at 193.

The price Minnesota charges instead

It’s the heightened standard on the first element, and it’s the whole ballgame. Eickhoff set it out in three sentences nobody has softened since:

However, the want of probable cause must be very palpable. A greater latitude in the doctrine of reasonable cause must be exercised in such cases than would be permissible in an action for maliciously prosecuting a criminal case. Before a party can justly be held liable for maliciously prosecuting a civil action, where there was no interference with the person or property of the defendant, want of probable cause must be very clearly proven.

74 Minn. at 142–43. Then the court explained why, in language that reads like it was written for a modern motion calendar:

To compel a party who brings a civil action and fails to maintain it to pay the costs is, as a rule, all that a practical administration of justice requires, and is usually sufficient to make him cautious about bringing such suits. Any other rule would make litigation interminable.

Id. at 143. And at the end of the opinion, after reversing a $1,500 plaintiff’s verdict:

Losses by judicial proceedings belong to the common incidents of life, and if, in a given case, there is probable cause for instituting them, the party injured thereby can have no redress, except such costs as the law awards.

Id. at 145–46. See the trade Minnesota made. It kept the courthouse door open (no arrest required, no attachment required) and then raised the bar on the merits so ordinary litigation losses stay where they fall. Kasal put both halves in one sentence: “And when damages are sought for the alleged malicious prosecution of a civil action, there being no interference with person or property, the absence of probable cause must be ‘very palpable,’ proven very clearly.” 156 Minn. at 450.

Here’s what that means in practice, and it’s the reason these cases fail. Probable cause in the civil setting is defined generously:

Probable cause for pursuing a civil action consists of such facts and circumstances as will warrant a cautious, reasonable and prudent person in the honest belief that his action and the means taken in prosecution of it are just, legal, and proper.

Mendota Heights, 414 N.W.2d at 484, quoting First National Bank, 482 F. Supp. at 523. Eickhoff had already said essentially the same thing at 74 Minn. at 143: probable cause is “such reason, supported by facts and circumstances, as will warrant a cautious man in the belief that his action, and the means taken in prosecuting it, are legally just and proper.” Under that definition, a claim that was weak, that got dismissed, that the plaintiff himself walked away from, can still have been brought with probable cause. Losing proves nothing. Mendota Heights is the clean example. The defendants sued a city over a bond approval. The city had in fact proceeded in violation of Minn. Stat. § 462C.04, subd. 2, and that one procedural defect established probable cause as a matter of law and disposed of both the malicious prosecution claim and a tortious interference claim in the same opinion. 414 N.W.2d at 484–85.

What Minnesota has actually held is not enough

There’s no special-injury list to recite. There is a list of things Minnesota courts have said won’t carry the claim. These are the real ways these claims fail, and every one comes from a decided case, not a treatise:

1. Losing the underlying case. Dismissal proves nothing about probable cause. Eickhoff itself acknowledged that the defendant’s “mistakes” had “prolonged the litigation, and resulted in annoyance and loss to the plaintiff,” and reversed the verdict anyway. 74 Minn. at 145.
2. Malice, standing alone. “Want of probable cause cannot be inferred from proof of malice alone.” Id. at 143. The inference runs the other way and only the other way.
3. A partial win. An interlocutory decree adverse to you on substantial matters is not a favorable termination, even if you beat most of the case. Virtue, 123 Minn. at 33–34.
4. A criminal investigation that produced no charge. Stead-Bowers, 636 N.W.2d at 341.
5. Carelessness rather than malice. There is no negligent-accusation tort in Minnesota. Lundberg, 335 N.W.2d at 236.
6. Using a procedure the legislature gave you. Requesting an agency hearing the statute expressly authorizes “cannot, we believe, form the basis for liability in a tort action.” Kellar, 568 N.W.2d at 192.
7. Suing on counsel’s advice after telling counsel everything. Kasal, 156 Minn. at 448; Miller, 216 Minn. at 23.
8. Consequential business collapse. The chain from a garnishment to a ruined business was “too remote and speculative” in 1893 and it still is. O’Neill, 53 Minn. at 442.
9. A fee award or a judge’s harsh words in the underlying case. A sanctions ruling is not a finding of malicious intent and does not estop anyone. Jordan, 392 N.W.2d at 609.

Is the rule different for a criminal case?

Yes, in three specific ways, and the differences matter more than the shared vocabulary.

The definition of probable cause changes. For a prior criminal proceeding it’s “a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.” Allen v. Osco Drug, Inc., 265 N.W.2d 639, 643 (Minn. 1978), quoting Lammers v. Mason, 123 Minn. 204, 205, 143 N.W. 359 (1913). That standard is about guilt of an offense. The civil standard is about whether a claim was just, legal, and proper. You can’t swap one for the other, and a complaint that recites the wrong one is asking for a motion.

The “very palpable” gloss doesn’t carry over. Eickhoff said in so many words that a greater latitude in reasonable cause applies in the civil setting “than would be permissible in an action for maliciously prosecuting a criminal case.” 74 Minn. at 143. Whatever a plaintiff has to show over a criminal charge, it’s less than what a plaintiff has to show over a lawsuit.

Something formal has to have happened. In the criminal setting, the accusation by itself isn’t the tort. Stead-Bowers v. Langley called this an issue of first impression in Minnesota and answered it this way: “We conclude that some formal legal action must be instituted. Actions such as a criminal charge or indictment would meet this requirement. The initiation of a criminal investigation alone without further proceedings falls short.” 636 N.W.2d at 341. A sheriff’s investigation that closes for lack of evidence, however unfair its origin, isn’t a prosecution.

Two boundaries here, which I’ll state once and not work through again. Whether a private person who reported you to police counts as having instituted the prosecution is a separate question, and it turns on instigation and on the independent judgment of the officer or prosecutor. And there’s no negligence version of this tort. Lundberg v. Scoggins, 335 N.W.2d 235, 236 (Minn. 1983), refused to recognize a claim for negligent accusation and misidentification, reciting that the malicious prosecution action “has always been carefully circumscribed, and not favored in law.” If the accuser was just careless rather than malicious, Minnesota gives you nothing. Where the accuser is a police officer, or the claim is about the arrest itself rather than the charge, you’re into false arrest and probable cause for an arrest, which is a different tort with a different standard.

Who decides probable cause — the judge or the jury?

This is the one corner that’s genuinely unsettled, and anyone who tells you it’s clean hasn’t read Leiendecker against Allen.

The traditional Minnesota rule, stated in Survis v. A. Y. McDonald Manufacturing Co., 224 Minn. 479, 499, 28 N.W.2d 720 (1947), and reaffirmed by the supreme court in Allen v. Osco Drug, 265 N.W.2d at 642, splits the question:

Where the facts are not in dispute, the issue of probable cause should be determined by the trial court. Where the facts are in dispute, they should be submitted to the jury, either (a) for the return of specific findings of fact or (b) for the return of a general verdict in accordance with appropriate instructions and dependent on whether the jury finds one or another version of the facts to be true.

And appellate review of the legal conclusion is de novo, quoting Eastman v. Leiser Co., 148 Minn. 96, 102, 181 N.W. 109, 112 (1921): “It is for the court to declare the ultimate conclusion, as to whether facts, either admitted or established by proof, are sufficient to show want of probable cause.” Kasal put it flatly: whether undisputed facts constitute probable cause “is wholly a question of law. In consequence we must determine it for ourselves as if the case had been heard here.” 156 Minn. at 450.

Allen was frank about why an obviously factual question gets turned into a legal one. The reason, the court said, is “the court’s distrust of the malicious-prosecution action.” 265 N.W.2d at 642. That’s a remarkable thing for a supreme court to write about a cause of action while it’s affirming a verdict on it, and it tells you exactly how these cases get received.

Now the tension. In 2017, Leiendecker wrote: “Both the probable cause and malice elements of a malicious prosecution claim are factual questions for the jury.” 895 N.W.2d at 634, citing Smith v. Maben, 42 Minn. 516, 518, 44 N.W. 792, 793 (1890), and Burton v. St. Paul, Minneapolis & Manitoba Ry. Co., 33 Minn. 189, 192, 22 N.W. 300, 301 (1885). Read alone, that sentence swallows Survis. Read in context, it doesn’t. The court was deciding whether the old anti-SLAPP statute unconstitutionally moved fact-finding from the jury to the judge. Its supporting parenthetical from Burton is expressly conditional (“When the facts are in controversy, the subject of probable cause should be submitted to the jury”). And footnote 4 identifies the specific factual dispute the district court had resolved. Chief Justice Gildea, dissenting, would have decided the whole appeal on the ground that “the dispositive question that the district court decided was one of law.” Id. at 638–40.

My read is that Survis survives and Leiendecker is consistent with it: undisputed facts, question for the court; disputed facts, question for the jury; either way the appellate court reviews the ultimate conclusion as a legal one. But I wouldn’t brief that point casually on either side, and I wouldn’t file a malicious prosecution complaint assuming a jury will ever see it.

What does a lawyer’s advice do to want of probable cause?

It can end the case outright. The rule is old, it’s stated as an absolute, and it’s stated for both criminal and civil prior proceedings:

It is a well established rule in this state that where a person states fully and fairly to an attorney all the facts known to him and is advised that such facts warrant a criminal prosecution, and, acting in good faith in reliance on such advice, he institutes a prosecution, he has a complete defense to an action for malicious prosecution.

Miller v. American National Bank, 216 Minn. 19, 23, 11 N.W.2d 655 (1943). Kasal applied the same principle to a civil suit. The county attorney had advised the defendant there against a criminal case, but “reputable counsel” told him to bring the civil one after “a full disclosure of all the facts,” and that was enough for judgment notwithstanding the verdict. 156 Minn. at 448. Eickhoff leaned on the same fact: the underlying actions had been “commenced on the advice of counsel, after a full statement of the facts.” 74 Minn. at 144.

The defense isn’t automatic, though, and three details matter.

It doesn’t matter whether counsel learned the facts from the client or somewhere else, as long as counsel had them. Miller, 216 Minn. at 24. A prosecutor’s independent agreement strengthens the defense but doesn’t create it. Id. at 25. And the good-faith part is real: three justices dissented in Miller precisely because, after a justice of the peace had already discharged the accused once, whether the bank proceeded in good faith on counsel’s advice should have gone to the jury. Id. at 25–26 (dissenting). Advice of counsel used “only as a cover” protects no one.

The mirror image matters just as much on the criminal side. An accuser who doesn’t investigate what he easily could have is charged with what the investigation would have shown: “Failure to make an investigation of facts which are easy to verify, without further explanation, charges the prosecutor with those facts which he would have learned from the investigation.” Allen, 265 N.W.2d at 643. In Allen, the store manager signed a criminal complaint against a forgery victim after the Rochester police told him her checkbook had been stolen and forged checks had been passed. The supreme court held that one fact “sufficient to show both lack of probable cause and malice.” Id. at 644.

Malice is a state of mind, and the inference runs one way only

Malice is a state of mind, proved as a fact, and it isn’t the presumed malice of defamation law. Allen, 265 N.W.2d at 645, tracing the point to Hanowitz v. Great Northern Ry. Co., 122 Minn. 241, 244, 142 N.W. 196 (1913): “The malice which is the essential element of malicious prosecution is not, like the malice essential in libel, slander and false imprisonment, a mere fiction of the law; it is a state of mind to be proved as a fact. Want of probable cause may exist without malice.”

The inference runs in one direction, and Eickhoff put that in a single line I’d put in any brief on this subject: “Want of probable cause cannot be inferred from proof of malice alone.” 74 Minn. at 143. Malice may be inferred from want of probable cause. It doesn’t have to be. Allen, 265 N.W.2d at 645. The jury instruction the supreme court approved in Allen included ill will, hatred, recklessness, cruelty, oppression, and knowing wrongdoing, and it expressly didn’t allow an inference of malice from the mere intentional doing of a wrongful act. The actor has to know it’s wrong. Id. at 645–46 & n.6.

Because the tort requires that state of mind, punitive damages are genuinely available. Allen affirmed $8,000 against the corporate defendant and $630 against the manager on top of $1,500 compensatory. Id. at 642, 646 n.9. Since 1986 you can’t just plead them. Minn. Stat. § 549.191, enacted by 1986 Minn. Laws ch. 455, § 82, requires a motion to amend supported by affidavits, and Minn. Stat. § 549.20, subd. 1(a), demands “clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others.” We walk through that gate in the punitive damages permission article.

What can you actually recover, and are your defense fees part of it?

Yes, and this is the sleeper issue, because it looks like fee-shifting and it isn’t.

O’Neill v. Johnson is right on point. The plaintiff pleaded that in defending the garnishment action he “necessarily lost time and performed work in and about the defending said action in the sum of $10, and employed attorneys and was compelled to pay and did pay them $5 for their services in the defense of the action.” The court’s holding is one sentence: “These were direct and proximate damages from the malicious bringing of the action, and are recoverable.” 53 Minn. at 442.

That doesn’t offend the American rule, and you want the distinction exact, because opposing counsel will blur the two. Minnesota’s American rule “prevents a party from shifting its attorney fees to its adversary without a specific contract or statutory authorization,” and the recognized third-party-litigation exception applies only where the defendant’s tort “thrusts or projects the plaintiff into litigation with a third party.” Kallok v. Medtronic, Inc., 573 N.W.2d 356, 363 (Minn. 1998). Malicious prosecution fits neither box. The litigation was with the same party, not a third one. The fees are recoverable not as costs of this case but as the compensatory measure of the prior wrong. That’s the theory to plead, and it’s the theory O’Neill actually adopted.

What’s not recoverable is the interesting half of O’Neill. The plaintiff also alleged that the garnishment froze $54 owed to his firm, that the firm then couldn’t pay rent or employees, that the landlord canceled the lease and the employees quit, and that the business was ruined. The court threw all of it out as “too remote and speculative,” with “too much room for contingencies and intervening causes.” Id. at 442. Whether it was caused at all “must necessarily be arrived at by conjecture and speculation.” A modern plaintiff hits the same wall when he wants to recover the deal he lost while the lawsuit was pending. Plead the fees, the time, and the out-of-pocket loss you can prove. Be very careful with the rest.

There’s also a single-recovery limit that’s easy to miss. McPherson allowed the malicious prosecution action even though the plaintiff had already recovered in the replevin case for the taking and detention of the stove, but held that “the damages for the taking and detention, once awarded to the defendant in the original action, cannot be again assessed in an action for malicious prosecution.” 41 Minn. at 526. Anything the underlying court already paid you for is gone.

How long do you have to bring it?

Two years. Minnesota Statutes § 541.07 opens by providing that, with exceptions that don’t matter here, “the following actions shall be commenced within two years,” and clause (1) then names them:

(1) for libel, slander, assault, battery, false imprisonment, or other tort resulting in personal injury, and all actions against veterinarians as defined in chapter 156, for malpractice, error, mistake, or failure to cure, whether based on contract or tort ….

Malicious prosecution isn’t named in that list. It got there by construction, in Bryant v. American Surety Co. of New York, 69 Minn. 30, 71 N.W. 826 (1897), which held that the 1895 amendment adding the “or other tort resulting in personal injury” clause “must be construed as including an action for malicious prosecution.” Id. at 32. Before that amendment, the court said, the claim plainly sat in the six-year catch-all now codified at Minn. Stat. § 541.05, subd. 1(5): “for criminal conversation, or for any other injury to the person or rights of another, not arising on contract, and not hereinafter enumerated.” Bryant moved it.

Most summaries miss two things about that.

The first: Bryant’s reasoning is expressly about a criminal charge. The court’s whole analogy was that “an action for a malicious prosecution involving a criminal charge is akin to an action for slander or libel, for it is a most potent means of injuring a man’s reputation,” because a prosecution like that is “a formal and public declaration, with the apparent sanction of the officers of the law” that the accused is guilty of the particular crime charged. Id. at 31. That reasoning doesn’t obviously reach a garden-variety business lawsuit, which carries no public declaration that anyone committed a crime. When the Court of Appeals surveyed the reach of § 541.07(1) in Manteuffel v. City of North St. Paul, 570 N.W.2d 807, 810–11 (Minn. App. 1997), it described Bryant in exactly those terms: “malicious prosecution for crime.” Id. at 810. The supreme court reads it the same way. Holding in 2013 that § 541.07(1) “is limited to common law causes of action not created by statute,” the court canvassed its own precedents under that clause and described this one as “holding that an action for common law malicious prosecution of a criminal action is subject to a two-year statute of limitations as an ‘other tort resulting in personal injury.’” Sipe v. STS Manufacturing, Inc., 834 N.W.2d 683, 686–87 (Minn. 2013). Look at what that sentence does and doesn’t do. It fixes the two-year period for the criminal version, in the supreme court’s own words, and says nothing about the civil one. I’ve found no Minnesota decision squarely holding whether malicious prosecution of a civil action takes the two-year period or the six-year catch-all. That question appears to be open.

I wouldn’t litigate it as a plaintiff. File within two years. If you’re wrong, you lose everything. And the Wild v. Rarig line, the framework Minnesota uses to decide whether a tort is close enough to the five enumerated torts to take the short period, Wild v. Rarig, 302 Minn. 419, 443–47, 234 N.W.2d 775, 791–93 (1975), as restated into a three-part test in Christenson v. Argonaut Insurance Cos., 380 N.W.2d 515, 518 (Minn. App. 1986), has generally stretched § 541.07(1) to reach intentional torts, not shrunk it. Our general survey of Minnesota deadlines is in the statutes of limitations guide.

The second: accrual comes late, and that’s the one built-in advantage this claim has. No cause of action exists until the underlying case has ended in your favor. “A right of action for malicious prosecution never arises until the litigation complained of has terminated favorably to the party alleging malicious prosecution.” Virtue, 123 Minn. at 33. Jordan v. Lamb drew the practical conclusion: because the claim can’t be maintained until the prior litigation ends, “it is obvious that Jordan’s malicious prosecution claim could not have been litigated” during the prior action, and neither res judicata nor a partial satisfaction signed in that action barred it. 392 N.W.2d at 608–09. A defendant who spends four years winning a lawsuit doesn’t lose the tort claim to those four years.

Virtue also shows how strict the favorable-termination requirement is. The plaintiffs there had beaten most of the patent infringement claims against them, but an interlocutory decree had gone against them on one device. The court wouldn’t slice it up: the matters they’d lost on “are not of a trifling character. They are substantial,” so the suit hadn’t terminated in their favor at all. 123 Minn. at 33–34. What counts as a favorable termination, and what a stipulated dismissal or a settlement does to it, is a big subject with its own case law, and it decides more of these cases than any other element.

Is there a statute? Not for the tort — but two now govern the fight

Nothing in Minnesota Statutes creates this cause of action or sets its elements. It’s common law start to finish. Leiendecker cited nothing but cases for the three elements, and Bryant had to reason the tort into the limitations statute by analogy because the legislature never named it there either.

Still, two statutes decide how these claims get litigated in 2026, and both cut against the plaintiff.

The Uniform Public Expression Protection Act, Minn. Stat. §§ 554.07 to 554.19. A malicious prosecution claim is, by definition, a claim against someone for what they filed in a judicial or administrative proceeding. That puts it squarely within § 554.08(b)(1)–(2), unless one of the twelve exclusions in § 554.08(c) pulls it back out. A defendant may move for expedited relief within 60 days of service, § 554.09; the motion stays everything, including discovery, § 554.10(a); the court decides it on a summary-judgment record, § 554.12; and dismissal is with prejudice if the responding party “fails to establish a prima facie case as to each essential element of the cause of action,” § 554.13(a)(3)(i). If the movant prevails, fees are mandatory. § 554.16(1). Put that next to everything above: a plaintiff whose want of probable cause must be “very palpable” has to make a prima facie showing on the hardest element in Minnesota tort law, before discovery, with a fee award hanging over it. The act doesn’t reach “a cause of action asserted before May 25, 2024,” § 554.19, and it replaced the anti-SLAPP procedure the supreme court struck down in Leiendecker itself. The history is in our UPEPA article.

Sanctions under Minn. Stat. § 549.211. Sanctions stand in for the tort far more often than they add to it, because they run on a 21-day safe harbor inside the underlying case instead of a two-year tort clock after it. § 549.211, subd. 4(a); see the safe-harbor mechanics. But don’t treat a sanctions motion as having disposed of the tort. Jordan v. Lamb held that a fee motion under the predecessor statute “is not the litigation of a cause of action,” that the trial court’s description of the prior suit as “fraudulent at its inception” was “not equivalent to a finding that the suit was ‘instituted and prosecuted with malicious intent,’” and that collateral estoppel therefore didn’t run in either direction. 392 N.W.2d at 608–09. Winning fees doesn’t win the tort. Losing a fee motion doesn’t lose it.

There’s no statute that does the tort’s job, and the one security-for-costs statute on the books does close to nothing for a defendant facing a groundless suit. Minn. Stat. § 549.18 reaches a plaintiff who “is committed for a crime, or is a nonresident or a foreign corporation,” plus an action brought into district court on the defendant’s appeal, and it sets the bond at “the sum of at least $75.” Where the underlying case did involve a provisional remedy (an attachment, a claim-and-delivery seizure, an injunction), the bond posted for that remedy is usually the faster and better recovery, because it doesn’t require proof of malice at all. See our piece on replevin and claim and delivery for how those bonds work.

The short version

Minnesota doesn’t make you prove a special injury. It makes you prove, very clearly, that no cautious and prudent person could have honestly believed the lawsuit was just, legal, and proper. You prove it after the lawsuit is over, against a defendant who may have a complete defense in a one-page letter from his lawyer, at a hearing his lawyer can force within 60 days of your complaint with fees riding on the outcome. That’s not a special-injury rule. It’s a harder one, and it’s why I’ve turned down more of these than I’ve filed.

Where Madgett Law, LLC fits

Madgett Law, LLC evaluates and litigates malicious prosecution and related litigation-conduct claims in Minnesota state and federal court, on both sides. In practice the work comes down to three questions, and we ask them in this order: did the underlying case end in the client’s favor in the strict sense Virtue requires, is the want of probable cause palpable enough to survive a § 554.09 motion before discovery, and is the sanctions route inside the pending case a better remedy than a tort claim after it. We also defend the people on the receiving end of these claims, which is more often than not the more winnable side of the caption. If you’ve been sued for bringing a lawsuit, or you’ve just finished defending one that never should have been brought, call 612-470-6529 or send us a message.

Sources: Minn. Stat. § 541.07 (preamble and cl. (1)) (two-year period; enumerated torts and the “other tort resulting in personal injury” clause). Minn. Stat. § 541.05, subd. 1(5) (six-year catch-all for “any other injury to the person or rights of another”). Minn. Stat. §§ 554.07 (short title; §§ 554.07 to 554.19), 554.08(b)(1)–(2) (scope: communication in or on an issue under review in a governmental proceeding), 554.09 (60-day special motion), 554.10(a) (automatic stay of proceedings and discovery), 554.12 (evidence considerable under Minn. R. Civ. P. 56.03), 554.13(a)(3)(i) (dismissal with prejudice where the responding party fails to establish a prima facie case on each essential element), 554.16(1) (mandatory costs and fees to a prevailing movant), 554.19 (savings clause; causes of action asserted before May 25, 2024); all enacted 2024 Minn. Laws ch. 123, art. 18. Minn. Stat. § 554.08(c) (twelve exclusions from the act’s scope). Minn. Stat. § 549.211, subd. 4(a) (21-day safe harbor). Minn. Stat. § 549.18 (security for costs; bond of at least $75 from a plaintiff committed for a crime, a nonresident, or a foreign corporation). Minn. Stat. § 549.191 (motion and affidavits required to plead punitive damages); § 549.20, subd. 1(a) (clear and convincing evidence of deliberate disregard). Minn. Stat. § 46.041, subds. 2–3, as applied in Kellar. Minn. Stat. § 462C.04, subd. 2, as applied in Mendota Heights. Leiendecker v. Asian Women United of Minnesota, 895 N.W.2d 623, 634, 634–35 n.4, 636, 638–40 (Minn. 2017) (No. A16-0360) (634: three elements quoted from Kellar; malicious prosecution as a claim at law citing Schmidt v. Bickenbach; probable cause and malice as jury questions citing Smith v. Maben and Burton; 634–35 n.4: the factual dispute the district court resolved; 636: preponderance standard citing Nelson v. International Harvester; 638–40: Gildea, C.J., dissenting, that the dispositive question was one of law). Kellar v. VonHoltum, 568 N.W.2d 186, 192, 193 (Minn. App. 1997), rev. denied (Minn. Oct. 31, 1997) (No. C3-97-132) (192: three elements, citing Jordan v. Lamb; exercise of a statutory right cannot ground tort liability; 193: Noerr-Pennington not adopted; no special-injury element anywhere in the opinion). Jordan v. Lamb, 392 N.W.2d 607, 608–09 (Minn. App. 1986), rev. denied (Minn. Oct. 29, 1986) (No. C1-86-425) (608: a § 549.21 fee motion is not the litigation of a cause of action; the claim could not have been brought in the prior action; 609: three elements sourced to First National Bank v. Marquette National Bank, 482 F. Supp. 514, 522–23 (D. Minn. 1979); “fraudulent at its inception” not equivalent to malicious intent; collateral estoppel elements unmet). McPherson v. Runyon, 41 Minn. 524, 525, 526, 43 N.W. 392 (1889) (525: claim lies although there was no interference with person or property; 526: no claim until the prior action terminates favorably; damages already awarded in the prior action cannot be assessed again). O’Neill v. Johnson, 53 Minn. 439, 441, 442, 55 N.W. 601 (1893) (441: action lies for maliciously and without probable cause prosecuting a civil action; 442: malice pleaded as a fact and want of probable cause pleadable directly; lost time and attorney fees in defending are direct and proximate damages and recoverable; consequential business-ruin damages too remote and speculative). Bryant v. American Surety Co. of New York, 69 Minn. 30, 31, 32, 71 N.W. 826 (1897) (31: criminal-charge analogy to libel and slander; 32: “personal injury” means personal wrong, not bodily injury; the two-year amendment construed to include an action for malicious prosecution). Eickhoff v. Fidelity & Casualty Co., 74 Minn. 139, 142, 143, 144, 145, 145–46, 76 N.W. 1030 (1898) (142: settled that the claim lies without interference with person or property; want of probable cause must be very palpable; greater latitude than in a criminal case; 143: want of probable cause must be very clearly proven; “[a]ny other rule would make litigation interminable”; civil probable-cause definition; malice not a source of an inference of want of probable cause; probable cause reviewed as a legal conclusion; 144: underlying suits commenced on advice of counsel after a full statement of the facts; 145: mistakes that prolonged the litigation and caused annoyance and loss did not establish want of probable cause; 145–46: losses by judicial proceedings are common incidents of life and redress is limited to costs). Virtue v. Creamery Package Manufacturing Co., 123 Minn. 17, 32, 33, 33–34, 142 N.W. 930 (1913) (32: action lies even though there is no interference with the person or property of the defendant; 33: both malice and want of probable cause required and the latter must be very palpable, quoting Eickhoff; no right of action until the prior litigation terminates favorably; 33–34: an interlocutory decree adverse on substantial matters is not a favorable termination). Kasal v. Picha, 156 Minn. 446, 447–48, 450, 195 N.W. 380 (1923) (447–48: the thistle-sowing suit and advice of reputable counsel after full disclosure of all the facts supported probable cause for a civil suit; 450: absence of probable cause must be very palpable and proven very clearly; whether undisputed facts constitute probable cause is wholly a question of law). Miller v. American National Bank, 216 Minn. 19, 23, 24, 25, 25–26, 11 N.W.2d 655 (1943) (23: full-and-fair-disclosure advice-of-counsel rule as a complete defense; 24: counsel’s knowledge from other sources; 25: prosecutor’s concurrence fortifies the defense; 25–26: dissent of three justices that good-faith reliance was for the jury and advice used only as a cover protects no one). Survis v. A. Y. McDonald Manufacturing Co., 224 Minn. 479, 499, 28 N.W.2d 720 (1947) (judge/jury division on probable cause; appellate review as a legal conclusion, quoting Eastman v. The Leiser Co., 148 Minn. 96, 102, 181 N.W. 109, 112 (1921)). Allen v. Osco Drug, Inc., 265 N.W.2d 639, 642, 643, 644, 645, 645–46 & n.6, 646 n.9 (Minn. 1978) (No. 47272) (642: Survis rule reaffirmed, “the court’s distrust of the malicious-prosecution action,” compensatory and punitive awards; 643: criminal probable-cause definition quoting Lammers v. Mason, 123 Minn. 204, 205, 143 N.W. 359 (1913); failure to investigate easily verified facts; 644: signing the complaint after corroboration showed both lack of probable cause and malice; 645: malice as a state of mind, quoting Hanowitz v. Great Northern Ry. Co., 122 Minn. 241, 244, 142 N.W. 196 (1913), and inferable but not presumed; 645–46 & n.6: the approved malice instruction; 646 n.9: punitive damages supported by recklessness). Lundberg v. Scoggins, 335 N.W.2d 235, 236 (Minn. 1983) (No. C5-82-1410) (the action has always been carefully circumscribed and is not favored in law; no claim for negligent accusation and misidentification). Mendota Heights Associates v. Friel, 414 N.W.2d 480, 484, 484–85 (Minn. App. 1987) (No. C5-87-1152) (484: civil probable-cause definition quoting First National Bank v. Marquette National Bank, 482 F. Supp. 514, 523 (D. Minn. 1979); plaintiff must prove both malice and want of probable cause and the want of probable cause must be very palpable, citing Virtue and Eickhoff; 484–85: undisputed statutory violation established probable cause as a matter of law and also defeated the tortious interference claim). Kallok v. Medtronic, Inc., 573 N.W.2d 356, 363 (Minn. 1998) (No. C2-96-1598) (American rule; third-party litigation exception limited to litigation with a third party). Stead-Bowers v. Langley, 636 N.W.2d 334, 338–39, 340, 341 (Minn. App. 2001) (No. C6-01-423) (338–39: three elements quoting Jordan v. Lamb; 340: out-of-state string cite including the Iowa special-injury parenthetical from Yoch v. City of Cedar Rapids, 353 N.W.2d 95, 101 (Iowa Ct. App. 1984); 341: some formal legal action must be instituted and a criminal investigation alone falls short). Manteuffel v. City of North St. Paul, 570 N.W.2d 807, 810 (Minn. App. 1997) (No. C5-97-696) (describing Bryant as malicious prosecution for crime within the § 541.07(1) line; Wild v. Rarig, 302 Minn. 419, 443–47, 234 N.W.2d 775, 791–93 (1975), and its restatement in Christenson v. Argonaut Insurance Cos., 380 N.W.2d 515, 518 (Minn. App. 1986)). Sipe v. STS Manufacturing, Inc., 834 N.W.2d 683, 686–87 (Minn. 2013) (No. A11-2082) (686: section 541.07(1) is limited to common law causes of action not created by statute; 687: describing Bryant as holding that an action for common law malicious prosecution of a criminal action is subject to the two-year period as an “other tort resulting in personal injury”). Case texts: Caselaw Access Project archive, static.case.law; star pagination in the citations above refers to the official Minnesota Reports and North Western Reporter pagination shown there. This article is general legal information about Minnesota law. It is not legal advice, it does not create an attorney–client relationship, and no outcome is promised or implied.