This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Mary Schmitt,





Lunchtime Solutions, Inc.,



Filed August 23, 2005


Kalitowski, Judge


Yellow Medicine County District Court

File No. C2-04-165


Douglas D. Kluver, Nelson Oyen Torvik, P.L.L.P., 221 North First Street, P.O. Box 219, Montevideo, MN 56265 (for appellant)


Christopher E. Sandquist, Gislason & Hunter LLP, 124 East Walnut Street, Suite 200, P.O. Box 4157, Mankato, MN 56002-4157 (for respondent)


            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Mary Schmitt, a head cook for Minnesota West Community & Technical College (Minnesota West), brought suit against respondent Lunchtime Solutions, Inc., a South Dakota corporation that received a contract to provide food services for Minnesota West, alleging claims for negligence, negligence per se, and violation of the Minnesota Whistleblower Act.  On appeal from the dismissal of her complaint for failure to state a claim, appellant argues that the district court erred in dismissing her negligence claim based on its determinations that (1) her relation with respondent was contractual and could not be a predicate for a negligence claim; and (2) respondent did not owe her a duty because the employment relation, if any, was at will.  Appellant also argues that the district court erred in dismissing her whistleblower claim because the complaint sufficiently alleges she was an employee of respondent for purposes of the Whistleblower Act.  Finally, appellant argues that the district court erred in dismissing her claims with prejudice.  We affirm.



In reviewing cases involving dismissal for failure to state a claim under Minn. R. Civ. P. 12.02(e), appellate courts consider whether the complaint sets forth a legally sufficient claim for relief.  Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997).  Our review accepts the facts alleged in the complaint as true and construes all reasonable inferences in favor of the nonmoving party.  Marquette Nat’l Bank v. Norris, 270 N.W.2d 290, 292 (Minn. 1978).

1.         Negligence and Negligence Per Se

            Appellant first argues that the allegations in her complaint are sufficient to set forth a legally cognizable negligence claim.  To prove negligence, a plaintiff must show (1) a duty of care existed; (2) that duty was breached; (3) an injury was sustained; and (4) breach of the duty proximately caused the injury.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).  Whether a duty exists is a question of law, which appellate courts review de novo.  Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985). 

Appellant argues that “[r]easonable employers do not violate the law in their hiring practices,” and that she has been injured by respondent’s actions “because, but for the illegal waiver, [appellant] would have received the job that she was originally promised by [respondent].”  But appellant cites, and we have found, no Minnesota law creating a duty in potential employers to act reasonably in their hiring decisions.  

Minnesota courts currently recognize causes of action based on discrimination in the hiring process.  See generally Minn. Stat. §§ 363A.01-.41 (2004) (the Minnesota Human Rights Act).  But, outside the realm of discrimination, courts have been hesitant to create duties on the part of employers in the hiring process.  Cf. Pine River State Bank v. Mettille, 333 N.W.2d 622, 627 (Minn. 1983) (emphasizing the importance of the employer’s discretion and independent judgment in employment decisions); and Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853, 858 (Minn. 1986) (the at-will employment rule reduces judicial intrusion on employer’s discretion).  Further, the Minnesota Supreme Court has made clear that there is no implied covenant of good faith and fair dealing in employment contracts, and has rejected “bad faith termination of a contract as an independent tort” in the employment context.  Hunt, 384 N.W.2d at 858.  Accordingly, because appellant’s complaint does not set forth a legally cognizable claim of negligence under current Minnesota law, we conclude that it was properly dismissed.

Appellant also asserts, for the first time on appeal, that she should have been allowed to argue that she and respondent were in a special relationship.  But her complaint makes no allegations of a special relationship, and appellant did not raise this argument before the district court.  Thus we decline to address this issue.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (appellate courts will generally not consider matters not argued and considered in the district court).

Finally, appellant argues that “[i]t follows that [she] could use [respondent’s] violation of Minn. Stat. § 268.192, subd. 1, not as a private cause of action, but as a substitute for [a] common law standard of care in her negligence per se claim.”  But because appellant neither cites any law in support of this proposition, nor argues it further, we decline to address this argument.  See State v. Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (appellate courts need not address inadequately briefed issues).    

2.         Minnesota’s Whistleblower Act

            Appellant argues, based on the definitions of “employee” in Minn. Stat. § 177.23, subd. 5 (2004), and Minn. Stat. § 181.60, subd. 3 (2004), that, “[i]n Minnesota, an employee is defined as a person who is permitted by an employer to work” and, “[t]herefore, this language, when viewed in a light most favorable to [appellant’s claims], avers that she was an employee of the [respondent].”

But appellant’s claim is based on Minnesota’s Whistleblower Act.  See Minn. Stat. § 181.932 (2004).  And the Whistleblower Act defines “employee” as “a person who performs services for hire in Minnesota for an employer.”  Minn. Stat. § 181.931, subd. 2 (2004); see Guercio v. Production Automation Corp., 664 N.W.2d. 379, 388 (Minn. App. 2003) (same).  This court has held that there is no ambiguity in the Whistleblower Act’s definition of employee, and that the Act “only applies to current employees.”  Guercio, 664 N.W.2d at 388-89.  Because it is undisputed that appellant never worked for respondent, appellant’s claim on this issue was properly dismissed.


             Appellant also challenges the district court’s decision to dismiss her claims with prejudice.  Appellant argues that the district court erred when it failed to, sua sponte, grant leave to amend her complaint, and that “it . . . seems illogical to dismiss a complaint for failure to state a claim . . . with prejudice since, technically, there exists no ‘same claim’ to bar.”  This court reviews a district court’s dismissal of a claim with prejudice under an abuse of discretion standard.  Minn. Humane Soc’y v. Minn. Federated Humane Soc’ys, 611 N.W.2d 587, 590 (Minn. App. 2000) (citing Firoved v. General Motors Corp., 277 Minn. 278, 283, 152 N.W.2d 364, 368 (1967)). 

            Minn. R. Civ. P. 41.02(c) provides that unless the court specifies otherwise, any dismissal, except dismissals for lack of jurisdiction, forum non conveniens, or failure to join an indispensable party, operates as an adjudication on the merits.  See also Royal Realty Co. v. Levin, 243 Minn. 30, 32, 66 N.W.2d 5, 5-6 (1954) (concluding that a dismissal under rule 12.02 is governed by rule 41.02(c) and is thus on the merits); Lampert Lumber Co. v. Joyce, 405 N.W.2d 423, 425 (Minn. 1987) (stating that rule 41.02(c) provides for dismissal with or without prejudice). The district court therefore had the authority to dismiss with or without prejudice in granting respondent’s rule 12.02(e) motion.  And because the district court’s dismissal of appellant’s claims was appropriate, we cannot say the court abused its discretion in dismissing appellant’s claims with prejudice.  See Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 748 (Minn. 2000) (remanding for dismissal with prejudice where the complaint failed to state a claim upon which relief could be granted under Minn. R. Civ. P. 12.02(e)).