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Emy Albert v. Independent School District No. 709

April 15, 2013


St. Louis County District Court File No. 69DU-CV-11-3115

The opinion of the court was delivered by: Bjorkman, Judge

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).


Considered and decided by Connolly, Presiding Judge; Stauber, Judge; and Bjorkman, Judge.


In this tort action arising out of appellant-student's negative experiences with her high school hockey coach, appellant challenges the dismissal of her first amended complaint under Minn. R. Civ. P. 12.02(e) and denial of her motion to further amend her complaint. We affirm.


From September 2007 through October 2010, appellant Emy Albert attended Duluth East High School, part of respondent Independent School District No. 709. During her first two years of high school, Albert played on Duluth East's varsity girls' hockey team. Prior to the 2009-10 season, the school district's three high schools combined to form one girls' hockey team, and hired Shawna Davidson as head coach. This case involves Albert's negative interactions with Davidson during the 2009-10 season.

Albert alleges that Davidson engaged in inappropriate conduct while performing her coaching duties. Davidson regularly used profanity, yelled at players, and made crude jokes about a former coach. According to Albert, Davidson took the team shopping at the store where she worked on a practice night, sent the team out-of-town to watch a hockey game without informing parents, and gave team members, including minors, lottery tickets as Christmas gifts. When Albert expressed concern to Davidson about these actions, Davidson responded by singling Albert out for ridicule and punishment. Davidson's retaliatory action included making Albert practice with both the junior varsity and varsity teams, benching her during games, and verbally attacking and embarrassing her in front of her teammates. Eventually, Davidson stopped talking to Albert, told the other players not to talk to her, returned her equipment without explanation, and did not invite her to participate in off-season training sessions.

Davidson refused to meet with Albert's parents to discuss her complaints, and the school district did not address Albert's concerns about Davidson's conduct. As a result of Davidson's conduct, Albert transferred to a private high school for her senior year.

Albert initiated this action against the school district, alleging claims of negligent hiring, negligent supervision, bullying, and harassment. Albert's bullying claim asserts that Davidson's refusal to speak to her constitutes intentional infliction of emotional distress. The school district moved to dismiss the complaint under Minn. R. Civ. P. 12.02(e), arguing that the complaint "fails to state a claim as a matter of law."

Before the motion hearing, Albert interposed an amended complaint, adding causes of action for intentional and negligent infliction of emotional distress. Albert also filed a memorandum opposing the dismissal motion, arguing, in part, that her amended complaint made the motion moot. Albert's responsive memorandum also addressed the merits of the school district's motion, including her negligent and intentional-inflictionof-emotional distress claims. The district court held a hearing on December 12, 2011.

Four days after the motion hearing, the school district filed a notice of motion and motion to dismiss Albert's first amended complaint under rule 12.02(e). The school district did not file any of the other documents required by Minn. R. Gen. Pract. 115.03 or set a hearing date for the motion. The district court granted the school district's first rule 12 motion, dismissing Albert's original complaint with prejudice. Albert requested leave to bring a motion for reconsideration under Minn. R. Gen. Pract. 115.11. The same day, the school district sent a letter to the district court and Albert's counsel asking whether additional memoranda or argument were necessary in connection with its motion to dismiss Albert's first amended complaint, given the substantive overlap between the two motions.

In February 2012, the district court denied Albert's request to seek reconsideration but authorized her first amended complaint, allowing her to assert the two emotional-distress claims. Albert then filed a motion for leave to serve and file a second amended complaint to add a cause of action under 42 U.S.C. ยง 1983 (2006), claiming that the school district condoned Davidson's retaliatory behavior thereby depriving Albert of her right to free speech. The school district opposed the motion as untimely and without merit, and again advised the district court that it did not ...

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