This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed August 23, 2005
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
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.
D E C I S I O N
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
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.
and Negligence Per Se
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).
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)).
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)).