United States District Court, D. Minnesota
Aaron A. Benner, Plaintiff,
Saint Paul Public Schools, I.S.D. #625, and Lisa Grunewald, Defendants.
KATHERINE MENENDEZ UNITED STATES MAGISTRATE JUDGE
employment action, Aaron Benner alleges that the Saint Paul
Public Schools, I.S.D. #625 (“SPPS” or “the
District”), discharged him from his teaching position
in retaliation for his criticism of a “racial
equity” policy aimed at preventing disproportionate
suspensions for students of color. On May 6, 2019, United
States District Judge Susan R. Nelson issued a Memorandum
Opinion and Order granting in part and denying in part
SPPS's motion for summary judgment. [ECF No. 105.] In
relevant part, Judge Nelson found that a jury must decide Mr.
Benner's retaliatory discharge claim under the Minnesota
Whistleblower Act, and she denied the SPPS's request that
a reference to punitive damages in the Third Amended
Complaint be stricken. [Id. at 58-60, 70-71 &
24, 2019, Mr. Benner filed a motion to amend the scheduling
order and to amend the complaint, which is now before the
Court. [ECF No. 112.] Mr. Benner asks the Court to modify the
schedule to allow him to bring a motion to amend the
complaint even though the applicable deadline has passed. Mr.
Benner requests leave to amend to assert a claim for punitive
damages against the District for retaliatory discharge under
the Minnesota Whistleblower Act. The District opposes both
requests, arguing that: (1) Mr. Benner has failed to
demonstrate good cause to allow an untimely motion to amend
under Fed.R.Civ.P. 16; and (2) leave to amend should be
denied because the District is immune from liability for
punitive damages for Mr. Benner's retaliatory discharge
claim under the Municipal Tort Claims Act, Minn. Stat. §
explained below, based on the unique circumstances of this
case, the Court concludes that the motion to amend the
complaint should be considered on the merits, even though it
was filed after the applicable deadline in the scheduling
order. The Court also concludes that the motion to amend the
complaint should be granted.
Motion to Amend the Scheduling Order
initial Pretrial Scheduling Order set the deadline for filing
non-dispositive motions, “including those which relate
to ... leave to assert punitive damages (if
applicable)” to be filed no later than April 6, 2018.
[ECF No. 26 at 2 ¶ 6.] Pursuant to the parties'
stipulations, the Scheduling Order was amended several times,
and the deadline to file and serve non-dispositive motions
was ultimately extended to September 6, 2018. [ECF No. 52.]
On September 6, 2018, Mr. Benner filed a non-dispositive
motion to compel discovery [ECF No. 56], but he did not file
a motion related to punitive damages. Mr. Benner's
pending motion to amend the complaint was not filed until
June 24, 2019 [ECF No. 112], more than nine months after the
relevant deadline passed. Because he filed the motion so long
after the deadline, Mr. Benner asks the Court to modify the
scheduling order to permit him to file his motion to amend
the complaint now. SPPS argues that Mr. Benner has failed to
demonstrate the required “good cause” for
modifying the scheduling order because he has not shown that
he was diligent in pursuing his motion to amend.
Relevant Procedural History
the scheduling order should be modified depends on the
litigation's procedural history. To make sense of that
history, one must be familiar with a requirement of Minnesota
law governing punitive-damages claims. Under Minn. Stat.
§ 549.191, sometimes referred to as the gatekeeping
statute, a plaintiff is expressly forbidden from seeking
punitive damages in her initial complaint. Instead, a
plaintiff must later file a motion to amend that is
accompanied by prima facie clear and convincing evidence that
the defendant's conduct entitles the plaintiff to recover
punitive damages. Id. Although courts in the
District of Minnesota applied the gatekeeping statute's
evidentiary standard for several years after the law was
enacted in cases where a party's claim was based on
Minnesota law, since July 2017, that practice has shifted.
See In re Bair Hugger Forced Air Warming Devices Prods.
Liab. Litig., MDL No. 15-2666 (JNE/FLN), 2017 WL 5187832
(D. Minn. July 27, 2017) (concluding that the gatekeeping
statute's standard governing amendment is inapplicable in
federal court because it conflicts with the standards of Rule
15); see also Shank v. Carleton College, No.
16-cv-1154 (PJS/HB), 2018 WL 4961472, at *4 (D. Minn. Oct.
15, 2018) (collecting cases). Now the courts in this District
generally review motions to amend to add punitive-damages
claims through the lens of Fed.R.Civ.P. 15.
plaintiff pleads a claim based on federal law, there is no
comparable prohibition on including a request for punitive
damages in the initial complaint. See Hunter v. Ford.
Motor Co., No. 08-cv-4980 (PJS/JSM), 2010 WL 11537516
(D. Minn. Jan. 7, 2010) (reasoning that the plaintiff did not
need to bring a motion to amend to add a claim for punitive
damages arising out of her claims under federal statutes
because she had already asserted such a claim). Indeed, Rule
8 requires a pleading to include only a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” and a “demand for the relief
sought….” Fed.R.Civ.P. 8(a)(2)- (3).
Benner filed his original Complaint on May 11, 2017. He
alleged only federal claims and included a request for
punitive damages in his prayer for relief. [ECF No. 1.] When
the District moved to dismiss the complaint for failure to
state a claim on July 10, 2017, it made no argument
concerning the propriety of the claim for punitive damages.
[ECF No. 5.] Mr. Benner filed his first Amended Complaint on
July 31, 2017, which he was permitted to do once as a matter
of course under Fed.R.Civ.P. 15(a)(1)(B). [ECF No. 12.] Mr.
Benner continued to ask that the District be required to pay
punitive damages in his prayer for relief. [ECF No. 12.]
Given that the first two iterations of Mr. Benner's
pleading did not contain any state law claims, his general
pleading of punitive damages presented no issue at the outset
of the case.
Benner retained new representation in this case in December
2017, and his current counsel, Ashwin Madia, entered a notice
of appearance on his behalf. [ECF No. 28.] With Mr. Madia on
board, the parties stipulated to the filing of a Second
Amended Complaint on January 31, 2018. [ECF No. 35
(Stipulation); ECF No. 37 (Second Am. Compl.).] The Second
Amended Complaint included a claim based on the Minnesota
Whistleblower Act and retained the previous general request
for punitive damages. Several months later, the parties
stipulated to the filing of a Third Amended Complaint on May
7, 2018. [ECF No. 43 (Stipulation); ECF No. 46 (Third Am.
Compl.).] Again, the Third Amended Complaint included claims
based upon the Minnesota Whistleblower Act and the
punitive-damages request in the prayer for relief. In the
parties' stipulations, a paragraph expressed the
District's position regarding the viability of Mr.
Defendant has reviewed the proposed [Second and Third Amended
Complaints] and contends that the new claims are unviable,
but it believes that it will be more efficient to challenge
the new claims with the existing ones in its anticipated
summary judgment motion than to oppose Plaintiff's
request to amend the complaint at this time.
[ECF Nos. 35 & 43.] Neither stipulation specifically
mentions the presence of the punitive-damages claim given the
addition of the state law claims.
August 31, 2018, about a week before the deadline for filing
non-dispositive motions, Mr. Madia emailed defense counsel
regarding a discovery dispute and inquiring whether SPPS
would object to having Judge Nelson consider the propriety of
punitive damages in the context of the summary-judgment
briefing. [Madia Decl. (June 24, 2019), Ex. 1, ECF No. 115.]
Mr. Madia stated:
I'd like to file a motion to amend the complaint to add a
claim for punitive damages on the Whistleblower Act claim
(Count 3). Technically it's a non-dispositive motion and
should be filed by Sep. 6. I'm happy to draft and file it
along with our motion to compel next week. However, I think
it may be more productive and cost-efficient for everyone to
brief it and have it heard in accord with your summary
judgment motion. Both motions are fact intensive and I think
it would be productive to have the motions concurrently
heard. Further, if SPPS wins on sj, then of course resolution
of the punitives motion will be unnecessary.
But again, I'm happy to file the punitives motion next
week if you prefer. Please let me know your preference.
[Id. at 2.] In response, defense counsel stated that
the motion should be treated as a non-dispositive motion,
rather than being considered alongside the District's
summary-judgment motion. [Id. at 1.] Mr. Benner
filed a motion to compel on September 6, 2018, but he did not
file a motion to amend the complaint to assert a
punitive-damages claim in connection with the Minnesota
Whistleblower Act claim.
filed its motion for summary judgment on December 21, 2018.
In its memorandum supporting the motion, SPPS argued that Mr.
Benner's punitive-damages claim had to be dismissed
because he “did not move the Court for permission to
amend the complaint to assert a claim for punitive damages in
violation of Minn. Stat. § 549.191….”
[Def.'s Summ. J. Mem. at 34-25, ECF No. 75.] SPPS cited
authority for the proposition that a punitive-damages claim
can be stricken from a complaint asserting claims under
Minnesota law where no motion under the gatekeeping statute
was filed. [Id.] SPPS's summary-judgment
briefing did not argue that recovery of punitive damages
against a municipality is prohibited by Minn. Stat. §
466.04, subd. 1(b).
Nelson's summary-judgment decision rejected the
District's argument that the punitive-damages claim
should be stricken. She concluded that no motion was required
under the circumstances, and even if such a motion were
before the Court, it would be granted because the record
indicated that Mr. Benner met the gatekeeping act's
evidentiary standard. [Mem. Opinion & Order at 70-71
& n.24, ECF No. 105.]
Court's July 29, 2019 hearing on the motion addressed in
this Order, counsel represented that they discussed the
substance of Judge Nelson's summary-judgment ruling
regarding punitive damages. Defense counsel took the position
that it remained an open question whether punitive damages
were in the case for purposes of the Whistleblower Act claim
and that a motion to amend the complaint was still required.
Mr. Madia indicated that he sought to modify the scheduling
order and amend the complaint out of an abundance of caution
because of the District's position and due to uncertainty
about whether Judge Nelson's statements regarding the
gatekeeping statute's evidentiary standard could be read
to suggest that he still needed to file a motion.