Brinkman v. Sprinkler Fitters Local #417 et al
ORDER denying as moot 5 Motion to Dismiss and 14 Motion to Dismiss; granting in part 35 Motion to Dismiss and 37 Motion to Dismiss. The Motions are GRANTED as to Brinkman's Title VII claims (Counts I and III of the Amended Complaint) , and those claims are DISMISSED WITH PREJUDICE. The Court declines to exercise supplemental jurisdiction over Brinkman's state-law claims (Counts II and IV of the Amended Complaint), and those claims are DISMISSED WITHOUT PREJUDICE. (Written Opinion). Signed by Judge Richard H. Kyle on 5/2/17. (KLL)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civ. No. 16-3499 (RHK/HB)
Nasseff Mechanical Contractors Inc., et al.,
Lisa C. Stratton, Jill R. Gaulding, Christy L. Hall, Gender Justice, St. Paul, Minnesota,
Jean M. Boler, Schaefer Halleen, LLC, Minneapolis, Minnesota, for Plaintiff.
Britton D. Weimer, Weimer & Weeding PLLC, Bloomington, Minnesota, for Defendant
Nasseff Mechanical Contractors Inc.
Brendan D. Cummins, Cummins & Cummins, LLP, Minneapolis, Minnesota, for
Defendant Local Union #417.
Plaintiff Kimberly Brinkman has worked as a sprinkler fitter in the construction
industry for nearly twenty years. In this action, she alleges that her union, Defendant
Local Union #417 (the “Union”), and a construction company for which she performed
union work, Defendant Nasseff Mechanical Contractors Inc. (“Nasseff”), 1 discriminated
against her on account of her gender and retaliated against her when she complained, in
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et
The Union initially was sued as “Sprinkler Fitters Local Union #417,” but in her Amended
Complaint Brinkman has shortened its name to “Local Union #417.” In addition, the Amended
Complaint avers that Nasseff’s name is “Nasseff Mechanical Contractors, Inc.” (Am. Compl.
¶ 2), although the caption omits a comma between “Contractors” and “Inc.”
seq., and the Minnesota Human Rights Act (“MHRA), Minn. Stat. § 363A.01 et seq.
Presently before the Court are Defendants’ Motions to Dismiss. For the reasons that
follow, the Motions will be granted in part, the Title VII claims dismissed with prejudice,
and the MHRA claims dismissed without prejudice.
The facts relevant to deciding the instant Motions are as follows. Brinkman has
been a member of the Union since 1999 or 2000. (Am. Compl. ¶ 33.) Pursuant to a
collective-bargaining agreement, the Union supplies labor to more than twenty fireprotection companies in the metropolitan Minneapolis area for commercial sprinkler
work. (Id. ¶ 23.) Brinkman is one of only two female “journeyman” members of the
Union. (Id. ¶ 22.)
According to the Amended Complaint, Brinkman began experiencing harassment
by male coworkers from nearly the beginning of her work in the sprinkler-fitting
industry. (Id. ¶ 34.) She alleges that she has suffered various forms of discriminatory
conduct, including not being permitted to work on jobs from start to finish, experiencing
significant periods during which she was offered no assignments, and other mistreatment
she attributes to her gender. (See generally id. ¶¶ 32-61.) With respect to Nasseff, she
alleges that she was initially passed over for work on a Nasseff project in 2013, but after
raising the issue, the company agreed to hire her. Yet, she alleges the company did not
support her like her male co-workers and, eventually, laid her off while hiring male
replacements. (See id. ¶¶ 62-84.) Brinkman sought to challenge the layoff through the
Union, but it allegedly refused to bring a grievance on her behalf. (Id. ¶¶ 85-88.)
On January 1, 2014, Brinkman filed two charges of discrimination with the
Minnesota Department of Human Rights (“DHR”) against Nasseff and the Union,
respectively. (Id. ¶¶ 12-13.) The charges were cross-filed with the Equal Employment
Opportunity Commission (“EEOC”). (Id. ¶ 14.) In September 2014, the DHR notified
Brinkman that her charges were being referred to the EEOC for further processing. Then,
on July 18, 2016, Brinkman received right-to-sue letters from the EEOC with respect to
the charges. (Id. ¶¶ 15-16.) Consistent with Title VII, see 42 U.S.C. § 2000e-5(f)(1), the
letters made clear that any lawsuit based on the allegations in the charges had to be filed
within 90 days of receipt. (See Third Cummins Aff. Ex. 1.) 2
Ninety days from July 18, 2016, was Sunday, October 16, 2016. On that day, one
of Brinkman’s attorneys, Lisa Stratton, Esq., attempted to commence this action by filing
the Complaint and related documents via the Court’s Electronic Case Filing (ECF)
system. (Second Stratton Decl. ¶ 12.) At the time, the Court had recently transitioned
from paper filing to electronic filing for commencing new cases; Stratton, who had not
been actively litigating cases for several years and had not previously commenced an
action through ECF, attempted to familiarize herself with the Court’s new procedures,
which are available on the Court’s website. (Id. ¶¶ 10-11.) 3 According to Stratton, it
As discussed in more detail below, the Court may consider the affidavits, declarations, and
other documents in the record because it will convert the instant Motions into motions for
summary judgment. Regardless, EEOC records (such as right-to-sue letters) are properly
considered on a motion to dismiss, see Faibisch v. Univ. of Minn., 304 F.3d 797, 802-03 (8th
Cir. 2002), and the letters are referenced in the Amended Complaint, see Illig v. Union Elec. Co.,
652 F.3d 971, 976 (8th Cir. 2011).
Federal Rule of Civil Procedure 5(d)(3) allows a court to require electronic filing by local rule;
this Court has adopted such a rule, mandating that “[a]ll documents must be filed electronically”
appeared that she had done everything correctly, and she emailed Brinkman and her cocounsel, Christy Hall, Esq., later that evening to advise that she had filed the Complaint.
(Id. ¶¶ 12, 15.) Yet, Stratton did not receive an NEF indicating that the Complaint had
been filed, nor did Hall, whose ECF account Stratton had used because of concern that
her own account would not work properly. (Id. ¶¶ 12, 14, 17.)
On Monday October 17, Stratton contacted Hall and asked her to verify that the
Complaint had been properly filed and the action started. (Id. ¶ 16.) Hall checked the
“new cases” list on the Court’s website but did not see Brinkman’s action. (Hall Decl.
¶ 10.) Because there were many cases on the list, Hall believed the Clerk’s office simply
“hadn’t gotten to docketing [the] complaint yet.” (Id.) But when Hall did not see the
case on the list by early afternoon, she called the Clerk’s office and spoke to an unknown
male employee. (Id. ¶¶ 12-13.) Though she cannot recall verbatim what was said, the
“gist of the conversation” was that Hall asked whether “everything had been correctly
filed,” and the employee responded that it had been and that the Clerk’s office had
received the Complaint, but it still needed to be docketed. (Id. ¶¶ 13-14.) Based on this
conversation, Hall perceived no reason for concern and concluded “the reason we hadn’t
pursuant to the Court’s Civil Electronic Case Filing Procedures Guide. D. Minn. LR 5.1(a)-(b).
The instructions for opening a new case electronically through ECF contemplate a two-step
process: (1) the entry of case data (such as party names and the basis for jurisdiction), after
which a case number is assigned, and (2) the uploading of case “initiating documents,” including
the complaint and civil cover sheet. See Elec. Civil Case Opening for Attorneys Instructions,
available at http://www.mnd.uscourts.gov/cmecf/guides/ElectronicCaseOpeningInstructions
ForAttorneys.pdf. A Notice of Electronic Filing (“NEF”) is delivered once the process has been
correctly completed. See id.; see also Civil Elec. Case Filing Procedures Guide § II(A)(2)(e),
available at http://www.mnd.uscourts.gov/cmecf/guides/Civil-ECF-Procedures-Guide.pdf.
seen anything via ECF or on the New Cases Report was that the [C]lerk’s office still
needed to docket it.” (Id. ¶ 15.)
By Wednesday October 19, neither Stratton nor Hall had received an NEF
indicating the Complaint had been filed. They exchanged emails about the “puzzling”
delay but did not attempt to contact the Clerk’s office. (Id. ¶ 18; Second Stratton Decl.
¶¶ 20-21.) But with still no NEF received by Friday October 21, Stratton called the
Court’s ECF help desk and was advised that although a case had been “opened” on
Sunday October 16, the Complaint had not been electronically uploaded and filed at that
time, and the information previously provided by the male employee had been incorrect.
(Second Stratton Decl. ¶ 22.) After discussing the matter, Stratton and Hall then decided
to immediately re-file the Complaint. (Id. ¶¶ 22-23.) Accordingly, the docket in this
matter reflects that the Complaint was not filed until Friday, October 21, 2016.
The Union and Nasseff responded to the Complaint by moving to dismiss.
Brinkman then amended her Complaint, 4 and Defendants have moved once again to
dismiss, arguing inter alia that her Title VII claims are untimely because she filed this
action more than 90 days after receiving the EEOC’s right-to-sue letters. The Motions
have been fully briefed and are ripe for disposition.
The initial Motions to Dismiss (Doc. Nos. 5, 14) remain pending in the docket, but they are
now moot as a result of the Complaint’s amendment. See, e.g., In re Wireless Tel. Fed. Cost
Recovery Fees Litig., 396 F.3d 922, 928 (8th Cir. 2005); Pure Country, Inc. v. Sigma Chi
Fraternity, 312 F.3d 952, 956 (8th Cir. 2002); In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067
(8th Cir. 2000).
STANDARD OF DECISION
The procedural posture of this case requires a brief digression regarding the
appropriate standard of review. As noted above, Defendants have moved to dismiss
under Federal Rule of Civil Procedure 12(b)(6), arguing (among other things) that
Brinkman’s Title VII claims – the only claims addressed herein – are untimely based on
the statute’s 90-day limitations period. Yet, the statute of limitations “rarely provides a
basis for Rule 12(b)(6) dismissal,” Haile v. HMS Host, Civ. No. 14-379, 2014 WL
2480191, at *1 n.3 (D. Minn. June 3, 2014) (Kyle, J.), because it is an affirmative defense
that the defendant must plead and prove, see Fed. R. Civ. P. 8(c)(1); Jessie v. Potter, 516
F.3d 709, 713 n.2 (8th Cir. 2008). Accordingly, an action may be dismissed based on a
statute of limitations only if “the complaint itself establishes the defense.” Jessie, 516
F.3d at 713 n.2. 5
As discussed in more detail below, this is one such “rare” case. It is beyond
dispute here that the deadline for Brinkman to file her Complaint expired on October 17,
2016, but her Complaint was not filed until four days later. Accordingly, the Complaint
itself establishes that Brinkman was untimely, at least with respect to the Title VII claims.
Nevertheless, Brinkman attempts to invoke the doctrine of equitable tolling to save
these claims, submitting Declarations from her attorneys setting forth their efforts to
As the undersigned has previously noted, some courts treat EEOC filing deadlines as conditions
precedent to suit that must be pleaded and proved by plaintiffs, rather than affirmative defenses.
See Hile v. Jimmy Johns Highway 55, Golden Valley, 899 F. Supp. 2d 843, 847 n.6 (D. Minn.
2012) (Kyle, J.) (pointing out that the Eighth Circuit noted the issue in Jessie but declined to
address it). Here, the Court simply follows the parties’ lead and treats Title VII’s 90-day limit
for filing suit as a statute of limitations rather than a condition precedent.
commence this action through ECF. These Declarations are beyond the pleadings and
ordinarily would not be considered by the Court on a motion to dismiss. But because
they have been submitted by Brinkman, and because equitable tolling provides the only
basis for saving her Title VII claims, the Court will consider them. Doing so, however,
means converting Defendants’ Motions into motions for summary judgment. See Fed. R.
Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.”); Stahl v. U.S. Dep’t of Agric., 327 F.3d 697, 701
(8th Cir. 2003) (district court has “complete discretion to determine whether or not to
accept any material beyond the pleadings”). 6
Summary judgment is proper if, drawing all reasonable inferences in favor of
Brinkman, there is no genuine issue as to any material fact and Defendants are entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); Ricci v. DeStefano, 557 U.S. 557,
586 (2009). Defendants bear the burden of showing the material facts are undisputed.
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc);
Whisenhunt v. Sw. Bell Tel., 573 F.3d 565, 568 (8th Cir. 2009). The Court must view
When a court converts a motion to dismiss into one for summary judgment, the “party against
whom this procedure is used . . . is normally entitled to notice that conversion is occurring,”
Barron ex rel. D.B. v. S.D. Bd. of Regents, 655 F.3d 787, 791 (8th Cir. 2011), and “must be
given a reasonable opportunity to present all the material that is pertinent to the motion,” Fed. R.
Civ. P. 12(d). But such notice may be constructive rather than affirmative, and where, as here, it
is the non-movant who has submitted extra-pleading material, she is on sufficient notice that the
motion may be converted. See Barron, 655 F.3d at 792; Hamm v. Rhone-Poulenc Rorer Pharm.,
Inc., 187 F.3d 941, 949 (8th Cir. 1999) (no error in failing to give “formal notice” before
converting motion where “the nonmoving party has submitted materials outside of the pleadings
in support of its resistance to a motion to dismiss”). Notably, Brinkman has not suggested any
facts are missing from the record or require further development. See Hamm, 187 F.3d at 949.
the evidence, and the inferences that may be reasonably drawn from it, in the light most
favorable to Brinkman. Beard v. Banks, 548 U.S 521, 529-30 (2006); Weitz Co., LLC v.
Lloyd’s of London, 574 F.3d 885, 892 (8th Cir. 2009). Brinkman may not rest on mere
allegations or denials, but must show through the presentation of admissible evidence that
specific facts exist creating a genuine issue of material fact for trial. Fed. R. Civ. P.
56(c)(1)(A); Wood v. SatCom Mktg., LLC, 705 F.3d 823, 828 (8th Cir. 2013).
The Title VII claims
Brinkman did not file this action within 90 days
Defendants contend that Brinkman failed to commence this action within 90 days
of receiving the right-to-sue letters, and her Title VII claims are therefore untimely and
must be dismissed. Title VII provides that “[i]f a charge filed with the [EEOC] is
dismissed . . ., the [EEOC] shall so notify the person aggrieved and within ninety days
after the giving of such notice a civil action may be brought against the respondent
named in the charge.” 42 U.S.C. § 2000e-5(f)(1). This ninety-day limit is not
jurisdictional, but is in the nature of a statute of limitations. See, e.g., Walsh v. Nat’l
Computer Sys., Inc., 332 F.3d 1150, 1157 (8th Cir. 2003); Hill v. John Chezik Imports,
869 F.2d 1122, 1124 (8th Cir. 1989).
Applying the statutory language here, the question is whether this action was
“brought” “within ninety days after the giving of . . . notice” by the EEOC. The
Amended Complaint alleges that Brinkman received the EEOC’s right-to-sue letters on
July 18, 2016 (Am. Compl. ¶¶ 15-16), and ninety days later was Sunday October 16,
meaning the deadline for “bringing” this action was extended to the following business
day, Monday, October 17, 2016. Fed. R. Civ. P. 6(a)(1)(C). To “bring” (or
“commence”) this action, 7 Brinkman was required to “fil[e] a complaint with the court,”
Fed. R. Civ. P. 3, which in turn required her to “deliver it to the clerk,” Fed. R. Civ. P.
5(d)(2)(A). The problem here is that the Complaint was not “delivered” to (or received
by) the Clerk of the Court on or before October 17; indeed, by Brinkman’s own
reckoning, the Complaint was not electronically uploaded (and hence “delivered”) to the
Clerk until October 21, 2016. (See Second Stratton Decl. ¶¶ 22-23.) This can hardly
come as a surprising conclusion, as Stratton received no NEF on October 16, 2016, the
date she attempted to upload the Complaint. Accordingly, the Court concludes the
Complaint was not filed – meaning this action was not brought – until October 21, 2016,
four days too late. See Perry v. Accurate Staffing Consultants, Inc., Civ. No. 3:10-cv201, 2010 WL 2650881, at *1-2 (W.D.N.C. June 30, 2010) (where plaintiff paid filing
fee and received case number on April 28 but did not receive NEF or successfully upload
complaint via ECF until May 4, case was not commenced until May 4).
The Complaint will not be “deemed” timely
Brinkman responds that the Court should “direct the Clerk . . . to
administratively docket the Complaint as [having been] filed on October 16, 2016.”
(Mem. in Opp’n at 12.) In support, she cites the Court’s ECF Case Filing Procedures
Guide (the “Guide”), which provides that a party prevented from filing a new case
“To ‘bring an action’ is a generic phrase, meaning ‘[t]o sue’ and ‘to institute legal proceedings,’
[and] is commonly used as a synonym for the act of ‘commencing’ an action.” Larson v.
Nationwide Agribusiness Ins. Co., 739 F.3d 1143, 1147-48 (8th Cir. 2014) (citations omitted).
“because of a technical difficulty” must (i) “[f]ile the case in ECF as soon as possible
once the difficulty is resolved,” attaching a form “explain[ing] what the technical
difficulties were and why the filing is untimely,” and (ii) file a motion requesting the
Court accept the untimely filing. Guide § II(L)(2)(a)(ii), available at
http://www.mnd.uscourts.gov/cmecf/guides/Civil-ECF-Procedures-Guide.pdf. In the
Court’s view, however, Brinkman cannot avail herself of this provision, because there is
no indication in the record that some “technical difficulty” prevented her from timely
commencing this case. The Guide provides several examples of “technical difficulties”
including “ECF is unavailable, internet service is unavailable, [and] law firm server
malfunction,” but nothing suggests any of those things occurred here. Indeed, all the
record reveals is that Stratton, using a colleague’s account on an unfamiliar ECF system,
failed to properly upload the Complaint to the Clerk. This simply does not suggest that
“technical difficulty,” rather than user error, prevented the Complaint from being
correctly submitted. The Court cannot deem the Complaint timely under these
Equitable tolling does not apply
Brinkman also argues that even if her Title VII claims are untimely, the 90-day
deadline for filing suit should be equitably tolled. The Court does not agree.
The Supreme Court has recognized that Title VII’s time limitations may be
equitably tolled in appropriate circumstances. See, e.g., Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 394 (1982). Equitable tolling is premised on the “excusable neglect”
of the party invoking it, Shempert v. Harwick Chem. Corp., 151 F.3d 793, 797 (8th Cir.
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1998) (citation omitted), and provides a “limited and infrequent form of relief”
appropriate only where (1) the plaintiff pursued her claims diligently but (2) some
extraordinary circumstance “stood in [her] way,” Smithrud v. City of St. Paul, 746 F.3d
391, 396 (8th Cir. 2014) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see
also Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984) (per curiam)
(holding that a plaintiff “who fails to act diligently cannot invoke equitable principles to
excuse that lack of diligence”). Though frequently invoked by dilatory litigants,
“[f]ederal courts have typically extended equitable [tolling] relief only sparingly.” Irwin
v. Dep’t of Veterans Affairs, 498 U.S. 89, 98 (1990).
Here, the Court accepts at face value the representations of Brinkman’s lawyers
regarding their communication with the Clerk’s office,8 which might suggest a
circumstance “standing in Brinkman’s way” from timely filing. Arguably, therefore, she
satisfies one prong of the test for equitable tolling. See Shempert, 151 F.3d at 798
(equitable tolling may be appropriate where “the court has led the plaintiff to believe that
. . . she has done everything required of . . . her”) (citing Baldwin Cty., 466 U.S. at 151).
But the other prong of the test requires Brinkman to demonstrate that she acted
diligently, and it is here that her entreaty for equitable tolling fails. It is undisputed
Brinkman’s counsel waited until the eleventh hour to file her Complaint. The ninetieth
The male employee with whom Hall interacted is unidentified in the record, which could be
deemed a fatal defect. See, e.g., Davis v. Browner, 113 F. Supp. 2d 1223, 1228 (N.D. Ill. 2000)
(“Reliance on an unidentified person in the clerk’s office is not enough to warrant equitable
tolling.”). Indeed, with the timeliness of Brinkman’s claims hanging in the balance, one might
expect that Hall would have asked for (and written down) the employee’s name. But the Court
will overlook this lack of specificity, as it finds equitable tolling inappropriate regardless.
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day after July 18, 2016, was Sunday, October 16, 2016, and Stratton waited until that day
– a Sunday, when no ECF help was available from the Clerk’s office – to attempt to
electronically file the Complaint. Despite submitting several lengthy Declarations, none
of Brinkman’s lawyers has offered any explanation why they waited until the very end of
the limitations period to attempt to commence this action. Indeed, those Declarations
make clear that work on the Complaint began in the spring of 2016, and a “first draft of
the complaint” was prepared “[d]uring the summer of 2016,” long before October 16.
(Hall Decl. ¶¶ 5, 7 (emphasis added).) This case is not particularly novel or complex, as
it asserts garden-variety discrimination and retaliation claims. Yet, for unexplained
reasons, counsel waited until the last minute to attempt to file it.
Courts have routinely refused to equitably toll the deadline for filing suit under
similar circumstances. For example, in Kellum v. Commissioner of Social Security, 295
F. App’x 47 (6th Cir. 2008), the plaintiff attempted to commence an action by submitting
a complaint to the clerk of court, using the ECF system, on the last day of the filing
period. The clerk received the complaint and sent the plaintiff an automated notice that it
had been filed. The following day, however, the clerk’s office notified the plaintiff that
the required filing fee had not been paid, and it was another four days before the plaintiff
finally did so. Accordingly, the plaintiff’s complaint was not date-stamped as filed until
five days after the deadline had passed. The defendant moved to dismiss, arguing the
complaint was untimely, and the district court agreed, concluding in the process that the
plaintiff was not entitled to equitable tolling.
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The Sixth Circuit affirmed, reasoning that equitable tolling was unavailable
because the plaintiff “wait[ed] until the last possible day to file his complaint.” Id. at 50.
Noting that the circumstances served as a “classic reminder of the risks [plaintiffs] take
for no apparent reason by waiting until the very end of a filing period to initiate their
lawsuits,” the court found equitable tolling inappropriate because there was no indication
the plaintiff had “acted diligently in pursuing his rights.” Id. at 50-51. Other decisions
are in accord. See, e.g., Hallgren v. U.S. Dep’t of Energy, 331 F.3d 588, 590 (8th Cir.
2003) (rejecting equitable tolling where plaintiff’s counsel waited until end of 90-day
period to mail complaint to clerk; “By mailing the complaint one day before the deadline,
[the plaintiff’s] attorney assumed the risk that any slight disruption of ordinary mail
service might delay the filing.”); Farzana K v. Ind. Dep’t of Educ., 473 F.3d 703, 705
(7th Cir. 2007) (“Waiting until the last hours is not diligent; the errors that often
accompany hurried action do not enable the bungling lawyer to grant himself extra
time.”); Towner v. Astrue, No. C10-91, 2011 WL 3875425, at *7 (N.D. Iowa Aug. 31,
2011) (refusing to apply equitable tolling where plaintiff “wait[ed] until the last minute,
when [his counsel] encountered difficulties with the electronic filing system, . . .
ultimately causing his complaint to be untimely filed”); Thomas v. United Parcel Serv.,
No. 99 C 6258, 2000 WL 290279, at *2 (N.D. Ill. Mar. 17, 2000) (declining to apply
equitable tolling where plaintiff waited until final day of statutory period).
The Court perceives no reason to reach a different result in this case. Equitable
tolling is predicated on excusable neglect, Shempert, 151 F.3d at 797, but such an
assertion rings hollow when a plaintiff such as Brinkman – despite being represented by
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several experienced attorneys – sits on her claims without explanation and then races to
court just before the filing deadline. Parties who “wait until the last day of a statute-oflimitations period to file a complaint have only themselves to blame when Murphy’s law
comes knocking.” Mader v. United States, 654 F.3d 794, 814 (8th Cir. 2011) (en banc)
(Bye, Murphy, Melloy, Smith & Shepherd, JJ., dissenting).
Nor does the Court believe this outcome is altered by the incorrect information
Brinkman’s counsel received from the Clerk’s office. Indeed, that information is relevant
only because her counsel waited until the end of the 90-day period to file suit; had
counsel been diligent and filed the action even a few days earlier, the “misinformation”
would not have mattered and Brinkman would not find herself in her current
predicament. See Kellum, 295 F. App’x at 50-51 (“misleading” email from clerk’s office
to plaintiff indicating complaint had been electronically filed when it had not been did not
justify equitable tolling where plaintiff did not submit complaint until “the last day on
which he could timely file it”). Moreover, this lack of diligence was exacerbated by
counsel’s response after speaking to the Clerk’s office. Stratton and Hall were aware that
they were supposed to receive an NEF once the Complaint was filed, which is exactly
why Stratton asked Hall to contact the Clerk’s office on Monday, October 17, 2016.
(Second Stratton Decl. ¶ 16 (“I asked [Hall] to verify that the case initiation procedure
had been successful and the complaint was electronically filed . . . because we hadn’t
received an ECF confirmation of the filing of the complaint.”); Hall Decl. ¶¶ 11-12.) But
even after being told that the Complaint had been filed, no NEF came – and yet counsel
did nothing on Tuesday, October 18; Wednesday, October 19; or Thursday, October 20.
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All the while Stratton and Hall were exchanging emails “puzzling over the delay” (Hall
Decl. ¶ 18; accord Second Stratton Decl. ¶ 20), but doing nothing about it. In the Court’s
view, this four-day delay further highlights the lack of diligence with which this case was
commenced and undermines the application of equitable tolling.
While the Court is not unsympathetic to Brinkman’s situation, the Supreme Court
has admonished that equitable tolling cannot be employed to save an untimely claim
simply because of a “vague sympathy for particular litigants.” Baldwin Cty., 466 U.S. at
152. Accordingly, and for the reasons set forth above, the Court concludes that the 90day limitation period should not be equitably tolled here, and Brinkman’s Title VII
claims will be dismissed as untimely.
The MHRA claims
Having dismissed the Title VII claims, all that remain for resolution are
Brinkman’s MHRA claims. Yet, subject-matter jurisdiction in this action is premised on
the existence of a federal cause of action. Jurisdiction over the state-law claims exists
solely by virtue of the supplemental jurisdiction statute, 28 U.S.C. § 1367, which
provides jurisdiction over state claims forming part of the same “case or controversy” as
federal ones. The exercise of supplemental jurisdiction is discretionary, and where all
federal claims have been dismissed prior to trial, “even though not insubstantial in a
jurisdictional sense, the state claims should be dismissed as well.” United Mine Workers
v. Gibbs, 383 U.S. 715, 726 (1966); accord, e.g., Wilson v. Miller, 821 F.3d 963, 971
(8th Cir. 2016). Accordingly, the Court declines to exercise supplemental jurisdiction
over the MHRA claims, and they will be dismissed without prejudice.
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The Court pauses, however, to address one additional issue. The Union and
Nasseff argue that Brinkman’s MHRA claims are “completely preempted” by the duty of
fair representation arising out of the National Labor Relations Act (“NLRA”), 29 U.S.C.
§ 159(a). (See Union Mem. at 18-21; Nasseff Mem. at 6-7.) When a state-law claim is
completely preempted, it is essentially converted into a federal claim. E.g., Caterpillar
Inc. v. Williams, 482 U.S. 386, 393 (1987). According to Defendants, that is the case
here, meaning the MHRA claims are in actuality claims under the NLRA. And if that
were true, the Court might be precluded from declining to exercise “supplemental”
jurisdiction over them.
Nevertheless, preemption does not impact the analysis. The doctrine of complete
preemption provides an exception to the “well-pleaded complaint” rule, which requires a
federal cause of action to appear on the face of a complaint before a defendant may
remove a case to federal court under federal-question jurisdiction. E.g., Gaming Corp. of
Am. v. Dorsey & Whitney, 88 F.3d 536, 542-43 (8th Cir. 1996). That, of course, is not
the issue here. Rather, Defendants assert preemption as a defense to Brinkman’s MHRA
claims, and in those circumstances, the character of the claims is not altered. See, e.g.,
Trs. of Twin City Bricklayers Fringe Benefit Funds v. Superior Waterproofing, Inc., 450
F.3d 324, 329 n.3 (8th Cir. 2006) (distinguishing complete preemption as a “jurisdictional
doctrine . . . used to remove state claims to federal court” from preemption “as a defense,
raising the question of whether [certain] claims can be litigated in this action”); Gaming
Corp., 88 F.3d at 542-43 (noting that a “federal defense, including the defense that one or
more claims are preempted by federal law, does not give the defendant the right to
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remove,” and pointing out the difference between this and “[c]omplete preemption . . . as
an exception to the well-pleaded complaint rule”); see also Caterpillar, 482 U.S. at 398
(“The fact that a defendant might ultimately prove that a plaintiff's claims are pre-empted
under the NLRA does not establish that they are removable to federal court.”).
Accordingly, even if preempted, the state-law nature of Brinkman’s MHRA claims
remains unaltered, and hence the Court may – and will – decline to exercise supplemental
jurisdiction over them. 9
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
Defendants’ initial Motions to Dismiss (Doc. Nos. 5, 14) are DENIED AS
Defendants’ current Motions to Dismiss (Doc. Nos. 35, 37) are
GRANTED IN PART. The Motions are GRANTED as to Brinkman’s Title VII claims
(Counts I and III of the Amended Complaint), and those claims are DISMISSED WITH
In any event, whether the MHRA claims are preempted is not as clear-cut as Defendants make
it out to be. See, e.g., Wrobbel v. Asplundh Constr. Corp., 549 F. Supp. 2d 868, 874-75 & n.6
(E.D. Mich. 2008) (no NLRA preemption of state discrimination claims); Parker v. Metro.
Transp. Auth., 97 F. Supp. 2d 437, 448-49 (S.D.N.Y. 2000) (concluding that Supreme Court
precedent makes clear discrimination claims are not necessarily preempted by duty-of-fairrepresentation claims). The issue is better left to a state-court judge to resolve, should Brinkman
choose to refile her MHRA claims. See Caterpillar, 482 U.S. at 398 n.13 (declining to express
an opinion on preemption; “These are questions that must be addressed in the first instance by
the state court.”).
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The Court declines to exercise supplemental jurisdiction over Brinkman’s
state-law claims (Counts II and IV of the Amended Complaint), and those claims are
DISMISSED WITHOUT PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: May 2, 2017
s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge
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