Naca v. Macalester College
ORDER overruling 66 APPEAL/OBJECTION OF MAGISTRATE JUDGE DECISION to District Judge. (Written Opinion) Signed by Judge Patrick J. Schiltz on September 18, 2017. (CLG)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 16‐CV‐3263 (PJS/BRT)
Peter J. Nickitas, PETER J. NICKITAS LAW OFFICE, L.L.C., for plaintiff.
Sean R. Somermeyer, Kathlyn E. Noecker, and Terran C. Chambers, FAEGRE
BAKER DANIELS LLP, for defendant.
Plaintiff Kristin Naca was employed as a “Faculty Diversity Fellow” and then as
an assistant professor of poetry by defendant Macalester College (“Macalester”).
Macalester fired Naca after one of her former students reported (1) that Naca solicited
sex from her 11 days before she graduated and (2) that Naca had sex with her three
days after she graduated. Naca brought this lawsuit against Macalester, alleging, in
essence, that Macalester fired her not because she solicited sex from and then had sex
with a student, but because Macalester was hostile to Naca on account of her race or
ethnicity, national origin, sex, sexual orientation, disability, and religion.
Naca’s original complaint was stricken for violating the command of Fed. R. Civ.
P. 8(a)(2) that a complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief” and the command of Fed. R. Civ. P. 8(d)(1)
that each allegation in a complaint must be “simple, concise, and direct.” Fed. R. Civ.
P. 8(d)(1). As the Court explained:
Naca’s complaint—which weighs in at a remarkable (in a
bad way) 81 pages and 250 numbered paragraphs and
culminates in 26 claims for relief—does not come close to
complying with Rule 8. The complaint sets forth in numbing
detail just about every slight that Naca alleges she suffered
during her tenure at Macalester. And the allegations in the
complaint are not “simple, concise, and direct”; instead, they
are rife with purple prose and personal invective.
ECF No. 6 at 2. The Court gave Naca an opportunity to file an amended complaint, but
ordered that the complaint not exceed 10,000 words.
Naca filed an amended complaint. Although the complaint met the letter of the
Court’s order—it came in at 9,641 words—the complaint actually increased the number
of claims from 26 to 35. ECF No. 8. Macalester responded by filing a motion to dismiss.
ECF No. 40. At the hearing on that motion, the Court dismissed about two‐thirds of
Naca’s claims from the bench. ECF No. 64.
Naca now seeks to amend her complaint to add Brian Rosenberg (the President
of Macalester) as a defendant, and to bring seven claims against him. ECF No. 55. The
circumstances giving rise to Naca’s request can be briefly summarized as follows:
After this lawsuit was filed on September 28, 2016, Naca and her supporters took
to social media to draw attention to this lawsuit, to publicize Naca’s allegations and her
denial of Macalester’s allegations, and to attract support and donations for Naca.
Macalester’s independent student newspaper—The Mac Weekly—became aware of
Naca’s lawsuit and asked both Naca and Rosenberg to comment. In response, Naca
told The Mac Weekly that her termination was a “clear violation of [her] due process
rights and a blatant act of discrimination made under false pretenses.” ECF No. 61‐1
at 2. Also in response, Rosenberg issued a statement to The Mac Weekly, the following
two sentences of which were quoted in the newspaper:
Kristin Naca’s employment at Macalester was terminated as
the result of a serious violation of the college’s policies
relating to Title IX protections, following a complaint about
her conduct with a student. . . . Unfortunately, Naca’s
response to these findings . . . has been to attack, intimidate
and retaliate against the survivor who brought forward the
Id. (The reference to “attack, intimidate and retaliate” is a reference to the fact that,
before suing Macalester in federal court, Naca sued her alleged victim in state court.)
Naca now wants to sue Rosenberg for commenting on her lawsuit in this way.
Specifically, Naca wants to bring a defamation claim against Rosenberg because, she
says, his assertion was false in three respects: (1) she did not commit “a serious
violation of the college’s policies”; (2) her alleged victim was not a “student” because
she had graduated three days before they had sex; and (3) her alleged victim was not a
“survivor,” because the use of the word “survivor” implies that the alleged victim was
sexually assaulted, and the alleged victim was not sexually assaulted (as the alleged
victim herself admitted in a letter to Naca). ECF No. 55‐1 ¶¶ 250‐264. Naca also wants
to bring six retaliation claims under various civil‐rights statutes, on the theory that her
filing of the lawsuit was protected activity, and Rosenberg’s statement about the lawsuit
constituted unlawful retaliation for engaging in that protected activity. Id. ¶¶ 265‐271.
Magistrate Judge Steven E. Rau denied Naca’s motion for leave to amend her
complaint to add Rosenberg as a defendant and to bring seven claims against him.
ECF No. 63. This matter is before the Court on Naca’s objection to Judge Rau’s order.
ECF No. 66. The Court has conducted a de novo review. See Magee v. Trs. of the Hamline
Univ., Minn., 957 F. Supp. 2d 1047, 1062 (D. Minn. 2013). Based on that review, the
Court overrules Naca’s objection to Judge Rau’s order and denies her motion for leave
to amend her complaint.
The first reason why the Court overrules Naca’s objection is procedural: Local
Rule 72.2(c)(1)(A) clearly provides that an objection to a magistrate judge’s ruling “must
not exceed 3,500 words . . . .” Naca’s counsel is familiar with this rule, as he is a
longtime and active member of this Court’s bar, and he has often objected to the rulings
of magistrate judges. And yet Naca’s objection to Judge Rau’s ruling was (according to
the certificate of “compliance” filed by Naca’s counsel) 7,568 words, over double the
word limit. Naca’s counsel did not seek permission to exceed the word limit nor even
acknowledge that he had done so. This is, unfortunately, of a piece with Naca’s
counsel’s conduct before this Court. In this case and in several other cases before the
Court, Naca’s counsel has regularly violated the Federal Rules of Civil Procedure and
the local rules of this District. The Court will no longer tolerate such violations. Naca’s
objection is overruled because it does not come close to complying with Local
Rule 72.2(c)(1)(A). See Burns v. Office of Atty. Gen., No. 05‐CV‐0858 (PJS/RLE),
2009 WL 825778, at *1 (D. Minn. Mar. 27, 2009) (“Burns’s violation of the local rule was
surely intentional, as Burns is a perennial litigant who is intimately familiar with the
rules of this Court. For that reason alone, this Court overrules Burns’s objection and
adopts Judge Erickson’s R&R.”).
There is another serious procedural problem with Naca’s objection: In
challenging Judge Rau’s ruling, Naca makes arguments that she could have made, but
did not make, before Judge Rau, and Naca relies on a great deal of evidence that she
could have submitted, but did not submit, to Judge Rau. For example, Naca alleges for
the first time that Rosenberg defamed an individual in a previous, unrelated case, and
she submits a number of exhibits in support of her allegation. See ECF No. 66 at 23‐24;
Nickitas Decl. Exs. G‐K. This is plainly improper. See Ridenour v. Boehringer Ingelheim
Pharms., Inc., 679 F.3d 1062, 1067 (8th Cir. 2012) (stating that a movant is “required to
present all of his arguments to the magistrate judge, lest they be waived” and “parties
must take before the magistrate, not only their ‘best shot’ but all of their shots”) (citation
and quotations omitted); Hammann v. 1–800 Ideas.com, Inc., 455 F. Supp. 2d 942, 947‐48
(D. Minn. 2006) (“A party cannot, in his objections to an R&R, raise arguments that were
not clearly presented to the magistrate judge.”).
The second reason why the Court overrules Naca’s objection is substantive:
“[A]n amendment to a pleading can be successfully challenged on grounds of futility if
the claims created by the amendment would not withstand a Motion to Dismiss for
failure to state a claim upon which relief can be granted.” DeRoche v. All Am. Bottling
Corp., 38 F. Supp. 2d 1102, 1106 (D. Minn. 1998). The claims that Naca seeks to bring
would not withstand a motion to dismiss because, as pleaded in her proposed amended
complaint, none of those claims are plausible. See Ashcroft v. Iqbal, 556 U.S. 662 (2009);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
As to the defamation claim: Naca seeks to sue Rosenberg because he responded
to an inquiry from a student newspaper about this lawsuit by summarizing
Macalester’s position in one sentence: “Kristin Naca’s employment at Macalester was
terminated as the result of a serious violation of the college’s policies relating to Title IX
protections, following a complaint about her conduct with a student . . . .” The Court
agrees with Judge Rau that this statement was protected by a qualified privilege under
Minnesota law because it was “‘made upon a proper occasion, from a proper motive,
and . . . based upon reasonable or probable cause.’” Stuempges v. Parke, Davis & Co., 297
N.W.2d 252, 256‐57 (Minn. 1980) (quoting Hebner v. Great N. Ry., 80 N.W. 1128, 1129
Rosenberg is the president of a college that was sued by a professor who was
fired after engaging in sex with a student three days after that student graduated. The
professor and her allies worked to publicize both the college’s allegations against the
professor and the professor’s allegations against the college. The student newspaper
asked both the professor and the president to comment on the pending litigation. In
response, the president succinctly, accurately, and in a non‐inflammatory manner
summarized the college’s position. Clearly, Rosenberg’s comment was made upon a
proper occasion and upon reasonable cause, and none of the facts pleaded in the
proposed amended complaint plausibly suggest that his motive was not proper. Cf.
Roberts v. Bd. of Trs. of the Minn. State Coll. & Univ. ex rel. State, No. A03‐528, A03‐1053,
2004 WL 727175, at *3‐4, *6‐7 (Minn. Ct. App. 2004) (university administrator’s
statement to student explaining disciplinary action against professor, and mayor’s letter
to newspaper concerning controversy surrounding professor, were both protected by
qualified privilege). Similarly, none of the facts pleaded in the proposed amended
complaint plausibly suggest that “this privilege was abused because the defamatory
statements were made with malice.” Bol v. Cole, 561 N.W.2d 143, 150 (Minn. 1997).
Naca also complains that “. . . Mr. Rosenberg calling Doe a ‘survivor’ . . . does
mean, if not imply, that Doe was the survivor of a sexual assault by Naca.” ECF No. 66
at 22. That is simply not true. The term “survivor” is used to describe those who have
survived a wide variety of phenomena, including but certainly not limited to various
types of sexual misconduct. As the Eighth Circuit has said, “‘remarks on a subject
lending itself to multiple interpretations cannot be the basis of a successful defamation
action because as a matter of law no threshold showing of ‘falsity’ is possible in such
circumstances.’” McClure v. Am. Family Mut. Ins., 223 F.3d 845, 853 (8th Cir. 2000)
(quoting Hunter v. Hartman, 545 N.W.2d 699, 707 (Minn. Ct. App. 1996)).
Even if Rosenberg’s use of the word “survivor” could only be construed as an
allegation that Naca engaged in sexual misconduct of a particular type, Naca’s
defamation claim would fail because Rosenberg’s statement would be protected by the
qualified privilege. As discussed above, the statement was made on a proper occasion,
and the complaint does not plausibly allege that Rosenberg acted with malice.
Moreover, the statement is based on reasonable cause. In this lawsuit, Naca has focused
almost obsessively on legalistic distinctions between such terms as “sexual assault,”
“sexual harassment,” “sexual abuse,” and “sexual misconduct.” In so doing, Naca has
missed the forest for the trees. Sexual contact between a professor and a student is
widely prohibited because of disparities in their relationship. There is always a
disparity in power and authority, and often disparities in education, experience,
sophistication, or age. As a result of these disparities, a student cannot give authentic
consent to sex with the professor. In continually emphasizing that she did not have sex
with the student until three days after the student graduated, Naca ignores that the
student testified (and Macalester found) that Naca solicited sex from the student while
she was still a student. Naca also ignores that Macalester could reasonably have
concluded that the disparities between a professor and a student do not entirely
disappear the instant that the student is handed her diploma. Rosenberg’s use of the
term “survivor,” even if actionable, was protected by the qualified privilege.
As to the retaliation claims: The Court agrees with Judge Rau that the retaliation
claims that Naca seeks to assert are not plausible. As Judge Rau discussed, although
courts have recognized retaliation claims brought by employees against their former
employers for post‐employment actions, courts have generally done so only when the
employer refused to honor the fired employee’s recall rights, refused to rehire the
employee, or gave the employee a negative reference. See, e.g., Robinson v. Shell Oil Co.,
519 U.S. 337 (1997) (former employer provided a negative reference to prospective
employer of employee); Fischer v. Minneapolis Pub. Sch., 792 F.3d 985 (8th Cir. 2015)
(former employer refused to recall employee); Smith v. St. Louis Univ., 109 F.3d 1261 (8th
Cir. 1997) (former employer provided a negative reference), abrogated on other grounds by
Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011) (en banc); Maynard v. Motors
Mgmt. Corp., No. 05‐CV‐1089, 2006 WL 2530354, at *11 (D. Minn. Aug. 31, 2006) (former
employer refused to rehire employee). The parties have not cited—and the Court has
not found—any decision that recognized a retaliation claim under the circumstances
here, where the employee sued her former employer, where the former employer was
asked to respond to the allegations made by the employee in her lawsuit, and where the
former employer did so.
The reason no such case exists seems obvious: In order to make out a claim for
retaliation under any of the civil‐rights statutes cited by Naca, “a plaintiff must show
that a reasonable employee would have found the challenged action materially
adverse . . . .” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). In this
context, a “materially adverse” action is an action that might have dissuaded a
reasonable employee from suing her former employer. See id. Naca must prove, in
essence, that a reasonable employee in her position might have been dissuaded from
suing Macalester if she had known that Rosenberg would respond to a newspaper’s
request for comment on the lawsuit by briefly summarizing Macalester’s position—a
position that was already public knowledge by virtue of the filing of Naca’s complaint.
The notion that a reasonable employee might be dissuaded from filing a complaint
describing the reason that her employer gave for firing her because, if she did so, the
employer might describe its reason for firing her is implausible.
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT Plaintiff’s objection [ECF No. 66] to Magistrate
Judge Rau’s order [ECF No. 63] is OVERRULED and the order is AFFIRMED.
Dated: September 18, 2017
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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