United States District Court, D. Minnesota
J. Nickitas for plaintiff.
R. Somermeyer, Kathlyn E. Noecker, and Terran C. Chambers,
FAEGRE BAKER DANIELS LLP, for defendant.
Patrick J. Schiltz United States District Judge
case is before the Court on two matters: (1) plaintiff
Kristin Naca's motion for leave to refile her (previously
stricken) objection to Magistrate Judge Becky R.
Thorson's August 31, 2017 order denying Naca's motion
to amend her complaint; and (2) Naca's objection to Judge
Thorson's October 25, 2017 order granting in part and
denying in part Naca's motion to compel discovery.
reasons that follow, the Court denies Naca's motion for
leave to refile her objection to the August 31 order and
overrules her objection to the October 25 order. The Court
will also order Naca's counsel, Peter Nickitas, to show
cause why he should not be required to pay $1, 000 to
defendant Macalester College to compensate it for having to
incur attorney's fees to brief the effect of
Nickitas's failures to comply with the Local Rules of
Motion to Refile
sought leave to file a third amended complaint. Judge Thorson
denied the motion. ECF No. 101. At 10:40 pm on the date that
objections to Judge Thorson's order were due, Nickitas
filed an objection that was grossly in excess of (in fact,
more than double) the word count prescribed by the Local
Rules. ECF No. 102. The Court struck Naca's objection the
next day, noting that this was not the first time that
Nickitas had violated the Local Rules in this case. ECF No.
108. Later that day, Naca filed a motion for leave to refile
Naca's objection, with a copy of the proposed objection
attached. ECF No. 109.
essence, Naca is requesting leave to file a late objection.
See D. Minn. L.R. 72.2(a)(1) (14-day deadline for
filing objections). But in the one-paragraph motion, Nickitas
offers no explanation for his violation of the rules and no
argument for why Naca should be permitted to file a late
objection. For that reason alone, Naca's motion is
the Court were to consider Naca's proposed objection on
the merits and review de novo Judge Thorson's order, the
Court would overrule the objection and affirm the order.
See Magee v. Trs. of the Hamline Univ., Minn., 957
F.Supp.2d 1047, 1062 (D. Minn. 2013) (“[T]he Court
reviews de novo a magistrate judge's determination that a
motion to amend a pleading will be denied because the
amendment would be futile.”). The Court generally
agrees with Judge Thorson's analysis. Only a few matters
argues that her entitlement claim under the Family Medical
Leave Act (“FMLA”) is timely because it relates
back to the filing of her first amended complaint. To the
extent that Naca claims that Macalester is liable under the
FMLA for failing to inform her in December 2013 that she was
eligible to take leave under the FMLA, see Third Am.
Compl. ¶ 52, the Court agrees with Judge Thorson that
this claim does not relate back. Moreover, even if this claim
about an omission that occurred in December 2013 did relate
back to the filing of the first amended complaint in October
2016, the claim would still be barred by the two-year statute
of limitations. 29 U.S.C. § 2617(c)(1). It is not true,
as Naca argues on the basis of irrelevant Minnesota case law,
that Naca's FMLA claim did not accrue until she
discovered it. Naca's argument is belied by the language
of the FMLA itself, which clearly provides that the
limitations period begins running on the date of the
violation. Id. (“an action may be brought
under this section not later than 2 years after the date of
the last event constituting the alleged violation for which
the action is brought”).
extent that Naca bases her FMLA entitlement claim on the
various requests for leave identified in her proposed third
amended complaint, she is correct that her claim relates
back. In her first amended complaint, Naca pleaded that she
requested medical leave on several occasions and that
Macalester unlawfully denied her requests. Am. Compl.
¶¶ 70, 75, 77-79, 82-83. Naca's FMLA
entitlement claim is based on this same series of requests
and thus “ar[ises] out of the conduct, transaction, or
occurrence set out-or attempted to be set out-in the original
pleading.” Fed.R.Civ.P. 15(c)(1)(B); see also
Alpern v. Utilicorp United, Inc., 84 F.3d 1525, 1543
(8th Cir. 1996) (“The basic inquiry is whether the
amended complaint is related to the general fact situation
alleged in the original pleading.”).
FMLA entitlement claim is nevertheless untimely, however,
because she does not identify any leave request that was
denied within the two years preceding the filing of this
action. Reed v. Lear Corp., 556 F.3d 674, 681 (8th
Cir. 2009) (“An FMLA violation occurs when an employer
improperly denies a request for leave.”). Like her
other pleadings, Naca's proposed third amended complaint
manages to be both prolix and ambiguous, and it is therefore
difficult to identify and catalogue her leave requests. It is
clear, however, that the only possible leave request that
could fall within the two- year statute of limitations-a
request for a one-course reduction in the fall of 2015-was
granted. See Third Am. Compl. ¶¶
83-84. True, Naca was fired before she could take advantage
of that course reduction. As discussed below, however, Naca
has not alleged any plausible connection between her leave
requests and her termination and therefore she cannot base an
FMLA claim on this fact.
also alleges that in April 2014 she requested a one-course
reduction for spring 2015. Third Am. Compl. ¶¶
67-70. While Naca alleges that Macalester failed to follow up
on this request, Third Am. Compl. ¶ 81, she does not
allege that she renewed the request during the two years
preceding this action.
argues that the three-year limitations period for willful
violations-rather than the two-year limitations period for
non-willful violations-should apply to her FMLA claim.
See 29 U.S.C. § 2617(c)(2). Naca did not
present this argument to Judge Thorson, however, and
therefore she cannot raise it now. Ridenour v. Boehringer
Ingelheim Pharms., Inc., 679 F.3d 1062, 1067 (8th Cir.
2012) (“The district court properly refused to consider
Ridenour's argument that ...