SUSAN RICHARD NELSON, District Judge.
This matter is before the Court on Plaintiff's Objection to the Magistrate Judge's Order of November 21, 2012 Denying the Motion to Amend the Complaint [Doc. No. 79] (the "Order").
The Court's review of decisions of the Magistrate Judge on nondispositive matters is limited to determining whether the Order is clearly erroneous or contrary to law. D. Minn. L. R. 72.2(a). This Court pays great deference to a magistrate judge's determinations.
Plaintiff Ellen Ewald filed this employment discrimination lawsuit in July 2011 against her former employer, the Royal Norwegian Embassy. Plaintiff was employed by Defendant from 2008-2011 as a Higher Education and Research Officer at the Honorary Norwegian Consulate General in Minneapolis. (Compl. ¶ 7 [Doc. No. 1].) The claims asserted in Plaintiff's Complaint arise under Minnesota and federal law. (Compl. ¶¶ 60-112 [Doc. No. 1-1].) In September 2012, Plaintiff moved to amend her complaint to add additional claims based on alleged violations of Norwegian law and to conform her Complaint to the evidence. (Pl.'s Mot. to Amend [Doc. No. 43]; Objection at 10 [Doc. No. 79].)
The employment agreement between the parties contains two provisions relevant to the instant dispute. First, a "Choice of Law" clause provides that "[t]he employment relationship shall be governed by the laws of the country in which the Employee is employed." (Contract ¶ 3, Ex. A to Affidavit of Sean R. Somermeyer [Doc. No. 49-1]). Second, in a clause entitled "Other Relevant Rules," the contract states that "[t]he Employee is subject to the Foreign Service Act, the Instructions for the Foreign Service, and such administrative rules as may apply in the Ministry of Foreign Affairs at any given time." (
Sometime in early summer 2012, Ms. Ewald obtained a letter from the Norwegian Foreign Ministry to the Norwegian Labor Ministry (the "Letter"). (Letter of 12/20/07, Ex. A to Affidavit of Ellen Ewald [Doc. No. 59-1].) Plaintiff maintains that after receiving the Letter, she became aware of the possibility of pursuing claims under the Norwegian Working Environment Act and the Norwegian Gender Equality Act in this suit. (
(Letter, Def.'s Translation, § 2.1, Ex. I to Somermeyer Aff. [Doc. No. 49-9].)
In July and August 2012, the parties participated in a settlement conference and a show-cause hearing related to that conference. On August 24, 2012, the day of the show-cause hearing, the Court also issued the Scheduling Order. (Pretrial Scheduling Order at 1 [Doc. No. 39].) Pursuant to the Scheduling Order, the deadline for amending the pleadings was set for approximately three weeks later, on Saturday, September 15, 2012. (
On Wednesday, September 12, 2012, counsel for Ms. Ewald provided a copy of the Letter to defense counsel and indicated Plaintiff's intention to move to amend the Complaint, absent Defendant's stipulation to the proposed amendments:
(Email of 9/12/12, Ex. B to Somermeyer Aff. [Doc. No. 49-2].) Plaintiff's counsel noted the time-sensitivity of the stipulation request, stating, "THIS REQUEST IS TIME SENSITIVE. IF WE DO NOT HEAR FROM YOU BY NOON ON FRIDAY, AGREEING TO STIPULATE TO ALLOW US TO AMEND, WE WILL MOVE THE COURT ON MONDAY TO ALLOW US TO FILE THE AMENDED COMPLAINT." (
Defendant's counsel responded on Thursday, September 13, refusing to stipulate to the proposed Amended Complaint by Plaintiff's next-day deadline. (Email of 9/13/12, Ex. F to Somermeyer Aff. [Doc. No. 49-6].) Defense counsel noted that the Letter was not fully translated. Defense counsel further identified other reasons for his unwillingness to stipulate to the proposed amendments, including the choice of law provision in Ms. Ewald's employment contract. (
On Monday, September 17, 2012, Plaintiff brought the underlying Motion to Amend the Complaint [Doc. No. 43]. Plaintiff sought to add the Norwegian law claims under the Working Environment Act and the Gender Equality Act as well as allegations regarding additional events that occurred after the commencement of the litigation. (Pl.'s Mem. Supp. Mot. to Amend at 5 [Doc. No. 44]; Proposed Am. Compl. ¶¶ 59; 83; 113-123; 124-132, Ex. B to Affidavit of Sheila Engelmeier [Doc. No. 45-1].) Defendant opposed Plaintiff's motion on the merits. (Def's Opp'n Mem. [Doc. No. 48].) Regarding the timing of the filing of Plaintiff's Motion to Amend, Defendant merely observed, "Because September 15, 2012 fell on a Saturday, the deadline to amend became Monday, September 17, 2012." (
In the Order, Magistrate Judge Rau declined to consider Plaintiff's Motion to Amend on the merits, finding that under Federal Rule of Civil Procedure 6(a), her filing was untimely. (Order at 5-6 [Doc. No. 69].) In addition, Magistrate Judge Rau found that Plaintiff had failed to establish good cause under Rule 16(b) for any request to modify the September 15 deadline in the Scheduling Order. Magistrate Judge Rau therefore denied Plaintiff's Motion to Amend.
Rule 6(a)(1) provides for the method of computing time when a period is stated in days or a longer unit. Fed. R. Civ. P. 6(a)(1). When a time period is stated in days or a longer unit, "if the last day falls on a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or a legal holiday." Fed. R. Civ. P. 6(a)(1)(C). The Advisory Committee Notes to the 2009 Amendments to Rule 6 provide that the time-computation provisions of subdivision (a) are not applicable "when a fixed time to act is set." Advisory Comm. Notes 2009, Fed. R. Civ. P. 6(a). "If, for example, the date for filing is `no later than November 1, 2007,' subdivision (a) does not govern."
Although the Magistrate Judge acknowledged that both Plaintiff and Defendant assumed that the provisions of Rule 6(a) applied here, which would result in an extension until Monday, September 17, 2012, he nonetheless strictly interpreted the requirements of Rule 6 and considered Plaintiff's motion untimely. (Order at 6 [Doc. No. 69].) The facts here, however, do not support such a strict interpretation and draconian result. The plain language of Rule 6 does not speak to "fixed dates" or "dates certain." Rather, the Rule refers to two methods of computing time: (1) in days, under Rule 6(a)(1); or (2) in hours, under Rule 6(a)(2). The fact that counsel for
Although the 2009 Advisory Committee Notes and cases cited therein adopt a strict interpretation of Rule 6, legal commentators and some courts have permitted application of Rule 6 to a specified deadline date as an exercise in courts' broad discretionary powers to manage their own affairs:
4B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1162 (3d ed. 2012). Acknowledging that in the past, courts reached different conclusions about whether the "last day" rule applied when the court fixed a specific due date, another commentator has observed that the Advisory Committee's Notes to the 2009 Amendments resolve the question: "the `last day' rule only applies to time periods that are `computed' under Rule 6(a); it does not apply to fixed-date deadlines." Steven S. Gensler, Federal Rules of Civil Procedure, Rules and Commentary, Rule 6(a) Practice Commentary (2013 ed.) (citations omitted). Nevertheless, "[w]hat this means is that the fixed-day deadline is not
Quoting the passage from Wright & Miller above, the court in
Moreover, even if the Court lacked discretion to consider Plaintiff's motion as timely, Plaintiff has demonstrated good cause under Rule 16(b) to permit a modification to the scheduling order. "[T]he moving party's diligence in attempting to meet the case management order's requirements" is "[t]he primary measure of Rule 16's `good cause' standard."
Because the parties assumed that Plaintiff's filing was timely, they did not present any legal argument regarding Rule 6 or Rule 16 at the hearing on Plaintiff's Motion to Amend. (Tr. of 10/12/12 Hearing [Doc. No. 71].) Plaintiff's counsel did respond to the magistrate judge's questions concerning the timeliness of Plaintiff's motion. (
While the magistrate judge rejected these bases for showing good cause, this Court finds Plaintiff has established good cause. The need for time in which to analyze whether Plaintiff could establish claims under Norwegian law cannot be underestimated, as it involves translation time, the intersection of foreign law and United States law, and consultation with a number of documents in this case, among other things. In addition, between early summer 2012, when Plaintiff first learned of the possible application of Norwegian law, and the September 17, 2012 filing of the Motion to Amend, the parties were preparing for and engaged in settlement negotiations. Following the settlement conference, the parties prepared for and participated in a show-cause hearing ordered by Magistrate Judge Rau.
As to the other identified reason for the delay in moving to amend, the magistrate judge found that any "inadvertent misapplication or misreading of Rule 6 by Ewald's counsel" did not "constitute good cause to permit modification of the scheduling order." (Order at 9 [Doc. No. 69].) Magistrate Judge Rau, citing
The Court also considers other factors in a Rule 16 analysis, including prejudice to the opposing party. Defendant argues that permitting Plaintiff's motion to amend to add Norwegian law claims will result in undue prejudice in the form of delay and additional expense. (Def.'s Opp'n Mem. at 13-14 [Doc. No. 48].) As a threshold matter, "it is not uncommon for U.S. courts to apply foreign law. . . ."
Defendant contends that determining the meaning of foreign law will be both expensive and time-consuming, and therefore prejudicial. (Def.'s Opp'n Mem. at 13-14 [Doc. No. 48].) As Defendant observes, paid expert testimony is the most common method of establishing foreign law in United States court proceedings. (
Defendant argues that Plaintiff's Motion to Amend should be denied on grounds of futility. In reviewing proposed amendments to which a party objects based on futility, the Court considers whether 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.'"
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Evaluation of a complaint upon a motion to dismiss is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense."
Defendant raises several arguments in support of its position that Plaintiff's proposed amendments are futile. First, Defendant argues that any amendments to add claims under Norwegian law are futile because foreign-law claims are precluded by the choice-of-law provision in the employment contract. (Def.'s Opp'n Mem. at 1 [Doc. No. 48].) Moreover, Defendant argues that because Plaintiff relied on this provision in order to invoke this Court's jurisdiction over Defendant, "she cannot rely on the choice-of-law provision when it is to her advantage, and ignore it when it isn't." (
As to the first point, the Eighth Circuit has held that, combined with other factors, a choice-of-law provision is an important factor in determining whether the defendant purposely availed itself in the forum state.
Defendant is correct that the employment agreement provides that the parties' relationship is governed by United States' law, i.e., "the laws of the country in which the Employee is employed." (Contract § 3, Ex. A to Somermeyer Aff. [Doc. No. 49-1].) Minnesota courts generally recognize choice-of-law provisions absent evidence of bad faith or the intention to evade the law.
The Instructions for the Foreign Service, in a translation provided by Plaintiff, state that the Working Environment Act "shall be applied to locally employed personnel provided that the provisions are not in conflict with local acts or regulations." (Translated Instructions at 1, § 1, Ex. A to Affidavit of Thomas E. Marshall [Doc. No. 79-2].) In her proposed amendments, Plaintiff alleges that the Working Environment law does not conflict with either Minnesota law or the federal law of the United States. (Proposed Am. Compl. ¶ 121, Ex. B to Engelmeier Aff. [Doc. No. 45-1].) Defendant has not identified any Minnesota or United States federal legal authority with which the Working Environment Act conflicts. Rather, Defendant responds that the Instructions for the Foreign Service, in addition to the Letter, do not carry the force of law. (Letter of 10/18/12 at 1 [Doc. No. 66]; Def.'s Opp'n Mem. at 11-12 [Doc. No. 48].) The Court agrees with Defendant that the Letter does not confer legal authority upon which a claim may be based. The Court therefore considers whether Plaintiff has alleged plausible claims under the terms of the Working Environment Act and the General Equality Act.
The Norwegian Working Environment Act states that "[t]his Act may not be departed from by agreement to the detriment of the employee unless this is expressly provided." (Working Environment Act, § 1-9 at 12, Ex. I to Somermeyer Aff.) The undersigned finds the term "expressly" to mean "explicitly," "particularly," or "specifically." Merriam-Webster Online Dictionary (visited June 10, 2013), http://www.merriam-webster.com/dictionary/expressly. Based on the record before the Court, there is no evidence that Ms. Ewald "expressly" contracted away her rights under the Working Environment Act. Defendant's inferences based on the choice-of-law provision are not enough, at this stage, to prevent an amendment to assert a Working Environment Act claim. Again, the Court's focus is on the allegations in the Complaint and whether they are sufficiently detailed to support entitlement to the requested relief. The Working Environment Act confers certain rights and also provides that those rights cannot be waived or overridden unless expressly provided. (Working Environment Act, § 1-9 at 12, Ex. I to Somermeyer Aff.) Such provisions can be found in certain laws in this country, including, for example, the Minnesota Franchise Act, which contains a non-waiver provision that overrides contractual choice-of-law provisions with respect to Minnesota residents or corporations operating franchises in Minnesota. Minn. Stat. § 80C.21. Plaintiff's proposed amended claim adequately states a claim for relief under the Working Environment Act.
Defendant also argues that the Working Environment Act requires actions based on gender discrimination to be brought under the Gender Equality Act, citing Section 13-1 of the Working Environment Act. (Def.'s Opp'n Mem. at 11, n.9 [Doc. No. 48].) While Defendant correctly reads Section 13-1 of the Working Environment Act, Plaintiff's proposed claim focuses on provisions of the Working Environment Act that address a healthy working situation and the prohibition of harassing behavior in general. (Proposed Am. Compl. ¶¶ 117-123, Ex. Ex. B to Engelmeier Aff. [Doc. No. 45-1].) Plaintiff's allegations in her proposed Working Environment Claim do not appear to be based on gender discrimination. For example, Plaintiff alleges, "Section 1-1(a) of the Working Environment Act includes, as its purpose, ensuring a healthy and meaningful working situation for employees, that affords full safety from harmful physical and mental influences." (
It may be that Plaintiff's Working Environment Act claim will fail to withstand summary judgment, but focusing on the pleadings, Plaintiff has asserted a plausible Working Environment claim. Her motion to amend this claim is therefore granted.
Plaintiff alleges that the Norwegian Gender Equality Act provides for the active promotion of gender equity in employment. (
Although not addressed in the Proposed Amended Complaint, the geographic scope of the Gender Equality Act is proscribed as follows:
(Gender Equality Act, § 20, Ex. G to Somermeyer Aff. [Doc. No. 49-7].) Because Ewald worked in the United States, and not "in Norway," the Gender Equality Act does not apply to her.
Finally, Plaintiff seeks permission to amend the Complaint to conform the factual allegations to the current state of discovery. This request is granted. The Court notes that Plaintiff should also take this opportunity to revise the Proposed Amended Complaint, including the caption, to reflect the dismissal of Mr. Gandrud from this action.