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

Most states will not 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 your person or your property. Lawyers call it the special-injury or English rule, and it kills the great majority of these claims before anyone reaches the merits.

Minnesota is not one of those states. It rejected the special-injury requirement in 1889 and repeated the rejection in 1898, in 1913 and again in 1923, and the Court of Appeals was still applying the same rule in 1987. I have 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 the only thing 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 bought its open door with a price at the threshold, and the price is a proof standard on want of probable cause that no other element in Minnesota tort law carries: it must be very palpable. I have watched that phrase do more work in a summary-judgment order than the three elements combined.

Below is 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 the elements. There are three. There is no fourth element for injury, interference, arrest, seizure, or anything else.

The genealogy of that sentence 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 operative modern formulation 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 about that chain is improper. 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 carrying a constitutional jury-trial right. 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 a mere incident of the replevin action. The court could have decided the case on the narrow ground that her property had in fact been seized. It refused, resting 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), repeated it — 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 suggested the claim was categorically unavailable. And in 1987 the Court of Appeals set 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.

First, 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 import a rule Minnesota does not have.

Second, Stead-Bowers v. Langley, 636 N.W.2d 334 (Minn. App. 2001), contains the phrase “special injury” — 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 proposition — that many other jurisdictions require something more formal than a criminal investigation before the tort is triggered. Id. at 340. It is not a statement of Minnesota law and the Stead-Bowers court did not adopt it.

Third, and most often, people read Kellar v. VonHoltum as the special-injury case because it is the case everyone cites. It is not. I read Kellar start to finish specifically to test that assumption. The words “special injury” do not 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. Do not over-read the case in the other direction either: the panel expressly declined to adopt the Noerr-Pennington doctrine in Minnesota, calling the question one of first impression and leaving it there. Id. at 193.

The price Minnesota charges instead

The heightened standard on the first element, and it is the whole ballgame. Eickhoff set it out in three sentences that have never been softened:

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. The court then 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, having reversed 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. Notice 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 that 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 is the practical consequence, and it is 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 was dismissed, that the plaintiff himself abandoned, can still have been brought with probable cause. Losing proves nothing. Mendota Heights is the clean illustration: 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 single 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

If there is no special-injury list to recite, there is a list of things Minnesota courts have said will not carry the claim. These are the real failure modes, and every one of them comes from a decided case rather than 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 probable-cause definition changes. For a prior criminal proceeding it is “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 is a standard about guilt of an offense. The civil standard is about whether a claim was just, legal, and proper. They are not interchangeable, and a complaint that recites the wrong one invites a motion.

The “very palpable” gloss does not travel. 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 must show over a criminal charge, it is less than what a plaintiff must show over a lawsuit.

Something formal has to have happened. In the criminal setting, the accusation alone is not the tort. Stead-Bowers v. Langley held it was 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, is not a prosecution.

Two boundaries around this, stated once and not re-derived here. Whether a private person who reported you to police counts as having instituted the prosecution is a separate question turning on instigation and the independent judgment of the officer or prosecutor. And there is 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 merely 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, the analysis moves to 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 genuinely unsettled corner, and anyone who tells you it is clean has not 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 is de novo on the legal conclusion, 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 candid about why an obviously factual question gets converted 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 is a remarkable thing for a supreme court to write about a cause of action it is simultaneously affirming a verdict on, and it tells you exactly how these cases are 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 does not: 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. And 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 would not brief that point casually on either side, and I would not 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 is stated as an absolute, and it is 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 defendant there had been advised against a criminal case by the county attorney but was told by “reputable counsel” 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.

Three qualifications, because the defense is not automatic.

It does not matter whether counsel learned the facts from the client or somewhere else, so long as counsel had them. Miller, 216 Minn. at 24. It is fortified, not created, by a prosecutor’s independent concurrence. Id. at 25. And the good-faith component is a real one: 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 is just as important on the criminal side. An accuser who does not 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 single 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

It is a state of mind, proved as a fact, and it is not 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 one direction only, and Eickhoff stated the asymmetry in a single line I would 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 need not 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 expressly did not permit an inference of malice from the mere intentional doing of a wrongful act — the actor has to know it is 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 cannot simply 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 that gate through 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 is not.

O’Neill v. Johnson is directly 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 does not offend the American rule, and the distinction is worth stating precisely because opposing counsel will conflate 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 is the theory to plead, and the theory O’Neill actually adopted.

What is 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 therefore could not 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.” That is the same wall a modern plaintiff hits when he wants to recover the deal he lost while the lawsuit was pending. Plead the fees, the time, and the provable out-of-pocket loss; be very careful with the rest.

There is also a single-recovery limit that is easy to overlook. 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 compensated is gone.

How long do you have to bring it?

Two years. Minnesota Statutes § 541.07 opens by providing that, with exceptions not relevant 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 is not 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.

Two things follow that most summaries miss.

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 such a prosecution 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 does not obviously reach a garden-variety business lawsuit, which carries no public declaration of criminality. 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). Note what that sentence does and does not do: it fixes the two-year period for the criminal variant, in the supreme court’s own words, and says nothing about the civil one. I have 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 would not litigate it as a plaintiff. File within two years. The downside of being wrong is total, 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 expanded § 541.07(1) to reach intentional torts, not contracted it. Our general survey of Minnesota deadlines is in the statutes of limitations guide.

Second, accrual is late, and that is the one structural 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 cannot 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 does not lose the tort claim to the passage of 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 refused to slice it: the matters on which they had failed “are not of a trifling character. They are substantial,” and the suit therefore had not 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 large 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 fixes its elements. It is 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.

Two statutes nonetheless decide how these claims are 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 — 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). Note the fit with everything above: a plaintiff whose want of probable cause must be “very palpable” is being asked to make a prima facie showing on the hardest element in Minnesota tort law, before discovery, on penalty of a fee award. The act does not 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. These are a substitute for the tort far more often than a supplement to it, because they run on a 21-day safe harbor inside the underlying case rather than a two-year tort clock after it. § 549.211, subd. 4(a); see the safe-harbor mechanics. But do not 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 characterization 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 did not run in either direction. 392 N.W.2d at 608–09. Winning fees does not win the tort. Losing a fee motion does not lose it.

There is no statutory counterpart to the tort, 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 fixes 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 under that remedy is usually the faster and better recovery, because it does not require proof of malice at all. See our piece on replevin and claim and delivery for how those bonds work.

The short version

Minnesota does not 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 — 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 is not a special-injury rule. It is a harder one, and it is why I have turned down more of these than I have 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 divides into three questions, and we ask them in this order: did the underlying case terminate 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 the 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 have been sued for bringing a lawsuit, or you have just finished defending one that should never 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 were read from the Caselaw Access Project archive at 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.