This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-95-2645

Laxman S. Sundae,

Appellant,

vs.

Bradley Scot, et al.,

Respondents.

Filed June 18, 1996

Affirmed

Harten, Judge

Hennepin County District Court

File No. 9319284

Kenneth R. Hertz, Hertz and Associates, 4001 Stinson Blvd., Ste. 312, St. Anthony, MN 55421 (for Appellant)

Surell Brady Minneapolis City Attorney, Peter W. Ginder, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh St., Minneapolis, MN 55402-2453 (for Respondents)

Considered and decided by Harten, Presiding Judge, Davies, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

Appellant Laxman Sundae challenges summary judgment in favor of respondents on his racial discrimination claim. Sundae also challenges the denial of his motion to vacate an earlier adverse summary judgment on other claims, arguing that the district court lacked jurisdiction to rule that the claims were property of his bankruptcy estate. We affirm.

FACTS

Sundae, who is of East Indian descent, owned several rental properties in Minneapolis. He alleges that at various 1991 and 1992 meetings of the Coordinated Neighborhood Action Plan (CNAP), a neighborhood task force created by the City of Minneapolis, members of the task force made defamatory statements about him and certain of his rental properties. CNAP subsequently published the minutes of the meetings and distributed copies to the general public.

On April 5, 1993, Sundae brought claims of defamation, abuse of process, and racial discrimination against various individuals and the City of Minneapolis (respondents herein). On August 1, 1994, the district court granted respondents summary judgment on all claims, ruling that Sundae lacked standing because the claims were property of his bankruptcy estate. On appeal (Sundae I), we affirmed the dismissal of Sundae's defamation and abuse of process claims, but reversed and remanded the racial discrimination claim, holding that that claim was personal to Sundae. Sundae v. Scot, 529 N.W.2d 362 (Minn. App. 1995), review denied (Minn. May 31, 1995).

Sundae now challenges the subsequent adverse summary judgment on the remanded racial discrimination claim, in which the district court ruled that Sundae did not provide sufficient evidence of discrimination. Sundae also challenges the district court's denial of his motion to vacate its order granting summary judgment on the Sundae I litigation, claiming that the district court and, on appeal, this court, lacked subject matter jurisdiction to decide the standing issue.

D E C I S I O N

1. Sundae argues that the federal district court had exclusive jurisdiction to decide whether certain causes of action were property of the bankruptcy estate. The relevant federal jurisdiction statute provides:

(a) Except as provided in subsection (b) of this section, the [federal] district court shall have original and exclusive jurisdiction of all cases under title 11 [the Bankruptcy Code].

(b) Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the [federal] district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to a case under title 11.

28 U.S.C. ' 1334(a), (b) (1994) (emphasis added).

We conclude that this statute did not prevent the district court from determining in Sundae I whether Sundae had standing to bring the defamation and abuse of process claims. That determination fit within the category of proceedings "arising in or related to a case under title 11." Under subsection (b), the federal district court has "original but not exclusive jurisdiction" in such proceedings. Thus, the state district court also had subject matter jurisdiction to decide the standing issue. See In re Brady, Tex., Mun. Gas Corp. (Sanders v. City of Brady), 936 F.2d 212, 218 (5th Cir.) (federal courts have exclusive jurisdiction only over the bankruptcy petition itself), cert. denied, 502 U.S. 1013 (Dec. 16, 1991); Stevenson v. Prairie Power Coop, Inc., 794 P.2d 641, 646 (Idaho Ct. App. 1989) (same), aff'd in relevant part, 794 P.2d 620 (Idaho 1990); see generally 1 Collier on Bankruptcy & 3.01[1][c] (15th ed. 1989). [1]

Accordingly, we affirm the district court's denial of Sundae's motion to vacate the determination in Sundae I dismissing the defamation and abuse of process claims for lack of standing. [2]

2. Sundae also challenges the adverse summary judgment on his racial discrimination claim. Summary judgment is proper when the parties' submissions show that no genuine issue of material fact exists and that one party is entitled to judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

In his complaint, filed April 5, 1993, Sundae alleged six counts of defamation based on statements about Sundae made at CNAP meetings in 1991 and 1992, the minutes of which were disseminated to the public. Generally, the statements related to reports from the Repeat Offender Code Compliance Initiative (ROCCI). Sundae was one of an initial pool of five landlords targeted by ROCCI, a program designed to effect scrutiny of Minneapolis landlords whose properties had a comparative history of high numbers of building code enforcement orders.

Sundae's complaint also contained the following racial discrimination count:

48. Plaintiff herein is a native of India. On account of plaintiff's color and national origin, the City of Minneapolis failed to provide adequate protection and equal treatment of law and further permitted defendants Thomas Thorstenson and Craig Elliason to enter defamatory statements in the public records and permit [sic] these defendants to harass this plaintiff in violation of State of Minnesota Human Rights Act.

Sundae attached minutes from the various CNAP meetings to the complaint. Thus, Sundae alleged that the respondents racially discriminated against him in making the allegedly defamatory statements at the CNAP meetings.

After our remand of the racial discrimination claim in Sundae I, respondents moved for summary judgment. In opposition to this motion, Sundae submitted his own affidavit and a bar graph that he created. The graph contains bars to show that Sundae and another East Indian landlord each received 15 days to comply with work orders, while various "Majority Class" members were allowed from six months to more than three years to comply. Sundae's affidavit states that he has taken courses in statistical analysis and employed such analysis in connection with his job as a research engineer with the U.S. Bureau of Mines. The affidavit also states that the graph represents random inspection data for the period 1986 to 1993, and it contains Sundae's conclusions that the data showed racial discrimination in the issuance of work orders.

We agree with the district court that Sundae's responsive evidence of racial discrimination was inadequate to enable him to withstand summary judgment.

First, the district court did not abuse its discretion in excluding the bar graph. Sundae did not establish himself as a statistical expert and did not establish a sufficient foundation for his statistical analysis. Sundae's assurances that foundation would be demonstrated at trial do not aid his defense against summary judgment. See Rosvall v. Provost, 279 Minn. 119, 124, 155 N.W.2d 900, 904 (1968) (speculation regarding evidence that may be developed at trial is insufficient for summary judgment purposes); Schmidt v. Apple Valley Health Care Ctr., Inc., 460 N.W.2d 349, 354 (Minn. App. 1990) (same), review denied (Minn. Oct. 25, 1990).

Second, the bar graph purports to show discrimination in the issuance of work orders; it does not concern statements made at the CNAP meetings. Inequitable work order practices cannot be a viable basis for Sundae's racial discrimination claim because he did not establish that the alleged practices took place within the one-year limitations period. See Minn. Stat. ' 363.06, subd. 3 (1994). Sundae argues that the work order practices were part of a pattern of discrimination that culminated in the alleged CNAP defamations; he therefore claims that the statute of limitations is met because the last of the CNAP meetings occurred within one year of his filing suit. We reject this assertion. The alleged CNAP defamations are distinct from the alleged discriminatory work order practices. See Sigurdson v. Isanti County, 448 N.W.2d 62, 67-68 (Minn. 1989) (consequences or effects of discrimination may not be considered as part of a continuing violation). Moreover, the "continuing violation" doctrine has not been applied outside the employment context.

We turn now to Sundae's claim of discrimination by defamation as set forth in his affidavit, in which Sundae asserts that the CNAP statements were defamatory.

Sundae's Minnesota Human Rights Act claim arises under the Act's public services provision, which makes it an unfair discriminatory practice to

discriminate against any person in the access to, admission to, full utilization of or benefit from any public service because of race.

Minn. Stat. ' 363.03, subd. 4(1) (1994). For claims under this provision, the supreme court has required that the plaintiff show either

(1) an adverse difference in treatment with respect to public services * * * when compared to the treatment accorded others similarly situated except for the existence of an impermissible factor such as race * * *; or (2) treatment so at variance with what would reasonably be anticipated absent discrimination that discrimination is the probable explanation.

City of Minneapolis v. Richardson, 307 Minn. 80, 87, 239 N.W.2d 197, 202 (1976). The plaintiff must first make a prima facie showing; if such a showing is made, "it is reasonable to require an opposing party to respond with evidence of a permissible basis for the distinction being made." Id. at 87, 239 N.W.2d at 202.

Sundae has not satisfied this test. Sundae argues that no similarly defamatory statements were made at CNAP meetings about the other ROCCI subject landlords. But the circumstances of each landlord are unique; therefore it is impracticable to make a meaningful comparison between task force statements made about Sundae and those made about other landlords. Moreover, the statements made about Sundae, albeit not complimentary, were not so at variance with what would be reasonably expected to be said about ROCCI landlords as to imply discrimination based on race. Finally, Sundae has not rebutted respondents' evidence showing that he became a ROCCI target not because of his race but because of the number of his code violations. The only competent evidence submitted by Sundae in opposition to summary judgment--his affidavit--contained only conclusions without evidentiary support.

Affidavits in opposition to a motion for summary judgment do not create issues of fact if they merely recite conclusions without any specific factual support.

Grandnorthern, Inc. v. West Mall Partnership, 359 N.W.2d 41, 44 (Minn. App. 1984). We affirm the summary judgment for respondents on Sundae's racial discrimination claim. [3]

Affirmed.


Footnotes

[1] The cases cited by Sundae are inapposite because they did not involve the distinction between the federal courts' exclusive jurisdiction (section 1334(a)) and their concurrent jurisdiction (section 1334(b)).

[2] At oral argument, Sundae submitted to this court various documents relating to proceedings in federal bankruptcy court. By these documents, Sundae contends that because his bankruptcy reorganization plan was confirmed in 1992, no bankruptcy estate existed at the time of the district court's August 1, 1994, order. Sundae appears to argue that the district court and this court therefore erred in ruling in Sundae I that the defamation and abuse of process claims belonged to the bankruptcy estate.

We receive these documents over respondents' objection, but the documents are not dispositive. In Sundae I, the district court properly exercised its jurisdiction in ruling that Sundae lacked standing, and we affirmed the resulting dismissal. The dismissal is therefore final and conclusive, and Sundae cannot now be heard to challenge the correctness of that result. See Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 720 (Minn. 1987) (after dismissal by appellate court, plaintiff could not reopen judgment to make additional argument). Moreover, the documents do not support an argument that Sundae had standing in 1994. A federal bankruptcy judge opined that this court erred in concluding that the claims belonged to the bankruptcy estate. The judge's point, however, was that because the bankruptcy estate no longer existed, the proper inquiry was whether the claims belonged to Sundae or to the creditors. The judge concluded that the defamation and abuse of process claims were transferred along with all other nonexempt property to the creditors under the reorganization plan; thus, the judge refused to reopen the bankruptcy case. Sundae's submission, then, tangentially supports our holding in Sundae I that the defamation and abuse of process claims did not belong to Sundae.

[3] Sundae argues that his federal claim under 42 U.S.C. ' 1983 (1994) should survive because it is governed by a six-year statute of limitations. We reject this argument. In his complaint, Sundae alleged a violation of section 1983 only in his abuse of process claim, and that claim was dismissed for lack of standing; the racial discrimination claim was brought only under the Minnesota Human Rights Act. In addition, Sundae's failure to provide sufficient evidence of discrimination likewise would be fatal to any federal discrimination claim.