Wussow v. Andor Technology
ORDER granting in part and denying in part 4 Motion to Dismiss.(Written Opinion). Signed by Senior Judge David S. Doty on 10/22/2012. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 12-614(DSD/TNL)
Christopher D. Jozwiak, Esq., Matthew S. Nolan, Esq. and
Baillon, Thome, Jozwiak & Wanta, 222 South Ninth Street,
Suite 2295, Minneapolis, MN 55402, counsel for plaintiff.
Bradley J. Lindeman, Esq., Meagher & Geer, 33 South Sixth
Street, Suite 4400, Minneapolis, MN 55402 and Gabriel J.
Jiran, Esq. and Shipman & Goodwin, One Constitution
Plaza, Hartford, CT 06103, counsel for defendant.
This matter is before the court upon the motion by defendant
Andor Technology to dismiss counts I, III and IV of the complaint.
Based on a review of the file, record and proceedings herein, and
for the following reasons, the court grants the motion in part.
This employment dispute arises out of the termination of
plaintiff Michael Wussow by Andor Technology.1
In March 2000,
Andor Technology hired Wussow as a sales representative.
In 2008, Wussow was promoted to Vice President of Sales and
Wussow actually worked for Bitplane Inc., a wholly-owned
subsidiary of Andor Technology. Compl. ¶ 7.
confidentiality agreement (the Agreement) that outlined salaries,
benefits, bonuses and sales goals.
Id. ¶ 11.
The Agreement contained an earnings before interest, taxes,
depreciation and amortization (EBITDA) bonus.
calculated EBITDA in the same way from 2008 to 2009, but changed
its methodology in 2010.
Id. ¶¶ 11-12, 14.
Wussow did not receive
an EBITDA bonus in 2010 and claims that he would have under the
Id. ¶ 13.
Wussow met with Chris Calling,
President of Andor Technology, on February 17, 2011, to discuss why
he believed that an EBITDA bonus was owed, but no resolution was
Id. ¶ 14.
Wussow also alleges that in late February 2011, he emailed
explained his belief that Andor Technology was discriminating
against a pregnant employee, Christine Brink.
Id. ¶ 17.
affected, but employees on leave for non-pregnancy related reasons
would remain unaffected.
Id. ¶¶ 18-19.
Several days later, on
March 10, 2011, Andor Technology terminated Wussow.
On March 8,
2012, Wussow filed the instant action, alleging retaliation in
violation of the Minnesota Human Rights Act (Count I), breach of
enrichment (Count IV) and failure to pay wages or commissions
Technology moves to dismiss the MHRA, promissory estoppel and
unjust enrichment claims.
To survive a motion to dismiss for failure to state a claim,
“‘a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.’”
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
(quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).
claim has facial plausibility when the plaintiff [has pleaded]
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Iqbal, 129 S. Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 556 (2007)).
Although a complaint need not contain
detailed factual allegations, it must raise a right to relief above
the speculative level.
See Twombly, 550 U.S. at 555.
and conclusions or a formulaic recitation of the elements of a
cause of action are not sufficient to state a claim.”
S. Ct. at 1949 (citation and internal quotation marks omitted).
The court does not consider matters outside the pleadings on
a motion to dismiss under Rule 12(b)(6).
See Fed. R. Civ. P.
The court may consider materials “that are part of the
public record,” Porous Media Corp. v. Pall Corp., 186 F.3d 1077,
1079 (8th Cir. 1999), and matters “necessarily embraced by the
pleadings and exhibits attached to the complaint.”
Mattes v. ABC
Plastics, Inc., 323 F.3d 695, 698 n.4 (8th Cir. 2003).
Minnesota Human Rights Act
Andor Technology first argues that Wussow’s claim under the
Minnesota Human Rights Act (MHRA) is barred by the applicable
“Minnesota’s substantive law, including its statute of limitation,
Larsen v. Mayo Med. Ctr., 218 F.3d 863, 866 (8th Cir.
2000) (citations omitted).
MHRA claims must be brought within one
year after the cause of action arises.
See Minn. Stat. § 363A.28,
At the latest, the statute of limitations began to run
on March 10, 2011, when Wussow was terminated.
Compl. ¶ 20.
commenced within one year of March 10, 2011.
Wussow argues that he timely commenced this action by filing
a complaint with the court on March 8, 2012.
See Fed. R. Civ. P.
Andor Technology responds that Minnesota law applies, and that
the action was not timely commenced.
The court agrees.
present action, “state commencement rules apply because they are
part and parcel of the statute of limitations.”
Larsen, 218 F.3d
at 867 (citation and internal quotation marks omitted).
Minnesota Rules of Civil Procedure, a civil action is commenced,
Minn. R. Civ. P. 3.01.
And although Minnesota law
controls the commencement of a lawsuit, service of process is a
procedural inquiry, and is governed by federal law. See Hajjiri v.
First Minn. Sav. Bank, F.S.B., 25 F.3d 677, 678 (8th Cir. 1994).
Where, as here, the plaintiff provides notice of the action and
requests that the defendant waive service, the “rules apply as if
a summons and complaint had been served at the time of filing” the
waiver of service with the court.
Fed. R. Civ. P. 4(d)(4).
did not file the signed waiver of service until March 25, 2012, and
Wussow next argues that if his MHRA claim is time-barred, then
the court should apply equitable tolling, equitable estoppel or
Minnesota Statutes § 363A.28.
As an initial matter, the court
notes that no facts sufficient to support these arguments are
contained within the complaint and that this alone precludes
application of these equitable principles.
See Varner v. Peterson
Under Minnesota law, an action may also commence “at the
date of acknowledgment of service if service is made by mail.”
Minn. R. Civ. P. 3.01(b). But “[t]he only way mail service can be
acknowledged ... is by return of the enclosed acknowledgment form.”
Hajjiri v. First Minn. Sav. Bank, F.S.B., 25 F.3d 677, 678 (8th
Cir. 1994) (citations omitted). At the earliest, Andor Technology
acknowledged service on March 20, 2012. See ECF No. 11.
Farms, 371 F.3d 1011, 1016 (8th Cir. 2004) (noting that dismissal
is appropriate when complaint contains no facts to toll statute of
limitations). But even if the court were to consider facts outside
of the complaint, dismissal is still warranted.
In determining whether to apply equitable tolling, the court
will examine whether (1) circumstances beyond the plaintiff’s
control prevented him from filing the action and (2) if tolling
will prejudice the defendant.
See Ochs v. Streater, Inc., 568
N.W.2d 858, 860 (Minn. Ct. App. 1997).
however, does not justify equitable tolling.
Jones v. Consol.
Freightways Corp., 364 N.W.2d 426, 429 (Minn. Ct. App. 1985); see
Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1330 (8th Cir.
1995) (noting need for “exceptional circumstances”). The burden is
on the plaintiff to demonstrate that equitable tolling is proper.
See Bartlett v. Miller & Schroeder Muns., Inc., 355 N.W.2d 435, 441
(Minn. Ct. App. 1984) (citation omitted).
Wussow claims that equitable tolling applies because, despite
initially believing that the Federal Rules of Civil Procedure
applied, he diligently pursued the instant action.3
Prior to the
action being filed, the parties engaged in informal settlement
Nolan Decl. ¶¶ 12-15.
Wussow’s counsel, Matthew
Despite this claim, Wussow still appears to argue that the
Federal Rules of Civil Procedure apply. See Pl.’s Mem. Opp’n 12.
discussions had “reached an impasse,” whereupon he alleges that the
parties agreed to commence litigation in federal court.4
Id. ¶ 16.
Thereafter, Wussow drafted the complaint and filed suit in federal
court on March 8, 2012.
Id. ¶¶ 17-20.
Given that on February 13,
2012, Wussow determined that litigation was necessary, but did not
file the complaint for nearly a month, the court cannot conclude
that he diligently pursued the action.
Moreover, Wussow’s mistaken understanding that the Federal
Rules of Civil Procedure applied does not provide grounds for
equitable tolling. A mistaken belief as to what “the statute means
... is not a basis for tolling the statute of limitations.”
568 N.W.2d at 860.
In sum, plaintiff neither alleges nor points to
any facts indicating that an outside factor prevented a timely
dismissal of Wussow’s MHRA claim.
“A party seeking to invoke the doctrine of equitable estoppel
has the burden of proving three elements: (1) that promises or
inducements were made; (2) that it reasonably relied upon the
promises; and, (3) that it will be harmed if estoppel is not
Hydra-Mac, Inc. v. Onan Corp., 450 N.W.2d 913, 919
Andor Technology denies this allegation. Def.’s Reply Mem.
3 n.2. For purposes of this motion, the court construes the facts
in a light most favorable to Wussow.
(Minn. 1990) (citation omitted).
“Promises intended to induce a
party to refrain from taking action may estop a defendant from
asserting a statute of limitations defense.”
Singelman v. St.
Francis Med. Ctr., 777 N.W.2d 540, 543 (Minn. Ct. App. 2010)
Equitable estoppel is inapplicable, however,
when a plaintiff “has failed to exercise due diligence in filing
its action after the grounds giving rise to the claimed estoppel
have ceased to exist.”
Hydra-Mac, 450 N.W.2d at 919 (citation
Wussow claims that equitable estoppel should apply because he
detrimentally relied on representations made by Andor Technology.
Specifically, Wussow explains that he relied on Andor Technology’s
agreement to accept service and to have the action commenced in
Wussow, however, neither alleges nor provides any
facts demonstrating that a representation by Andor Technology
Specifically, Wussow does not allege that Andor Technology agreed
to untimely commencement or that it would waive a statute-oflimitations defense.
As a result, equitable estoppel would not
preclude dismissal of Wussow’s MHRA claim.
Minnesota Statutes § 363A.28
The statute of limitations for MHRA claims is “suspended
during the time a potential charging party and respondent are
voluntarily engaged in a dispute resolution process.”
§ 363A.28, subdiv. 3.
Examples of dispute resolution include
employment system or a school board sexual harassment or sexual
Wussow claims that prior to commencing litigation, the parties
negotiations that qualify as dispute resolution under § 363A.28.
In support, Wussow notes that the American with Disabilities Act
“alternative means of dispute resolution.”
42 U.S.C. § 12212.
This, however, is not a definitional statute; rather it is an
explanation that the ADA encourages all forms of alternative
Even construing the ADA language in a light
most favorable to Wussow, there is no indication that the drafters
Moreover, the examples included in § 363A.28 all necessarily
contemplate informal negotiations between future litigants.
result, application of § 363A.28 would not preclude dismissal of
Wussow’s MHRA claim. Therefore, even if the court were to consider
facts outside of the complaint, dismissal would be warranted.
Promissory Estoppel and Unjust Enrichment
Andor Technology next argues that the court should dismiss
Wussow’s promissory estoppel and unjust enrichment claims.
Northeast, LLC, No. 08-4737, 2010 WL 760442 (D. Minn. Mar. 1,
2010), for the proposition that claims in equity “may not proceed
where a legally enforceable contract was formed.”
Id. at *10
see also U.S. Fire Ins. Co. v. Minn. State Zoological Bd., 307
N.W.2d 490, 497 (Minn. 1981) (dismissing unjust enrichment claim
where valid contract formed).
Instead, Andor Technology argues that Wussow
alleged the existence of a valid contract in the complaint and
that, for purposes of this motion, this fact should be taken as
Andor Technology’s interpretation, however, would eliminate
a plaintiff’s ability to plead in the alternative.
See Fed. R.
Civ. P. 8(d)(2) (providing for alternative pleading). Moreover, if
discovery were to show that the contract was invalid, Wussow would
be left without an equitable remedy.
As in Krutchen, defendant’s
motion is best addressed upon a motion for summary judgement, once
the existence of the Agreement has been established.
dismissal of Wussow’s promissory estoppel and unjust enrichment
claims is not warranted.
Accordingly, based on the above, IT IS HEREBY ORDERED that:
The motion to dismiss [ECF No. 4] is granted in part;
The motion is granted as to plaintiff’s Minnesota Human
Rights Act claim; and
estoppel and unjust enrichment claims.
October 22, 2012
s/David S. Doty
David S. Doty, Judge
United States District Court