Brodkorb v. Minnesota

Decision Date13 February 2013
Docket NumberCivil No. 12-1958 (SRN/AJB)
PartiesMichael Brodkorb, Plaintiff, v. State of Minnesota, the Minnesota Senate, and Cal Ludeman, individually, Defendants.
CourtU.S. District Court — District of Minnesota

Gregory J. Walsh, Jeffrey D. Schiek, and Philip G. Villaume, Villaume & Schiek, P.A., 2051 Killebrew Drive, Suite 611, Bloomington, Minnesota 55425, for Plaintiff.

Christopher J. Harristhal and Dayle Nolan, Larkin, Hoffman, Daly & Lindgren, Ltd., 7900 Xerxes Avenue South, Suite 1500, Minneapolis, Minnesota 55431, for Defendants.

SUSAN RICHARD NELSON, United States District Judge

This matter is before the Court on Defendants' Motion for Partial Dismissal Pursuant to Fed. R. Civ. P. 12(b)(6) [Doc. No. 10] and Defendants' Motion to Strike Pursuant to Fed. R. Civ. P. 12(f) and Misjoinder Pursuant to Fed. R. Civ. P. 21 [Doc. No. 3]. For the reasons stated below, Defendants' motions are granted.


Plaintiff Michael Brodkorb brought this employment-related suit against Defendants the State of Minnesota, the Minnesota Senate, and Cal Ludeman, asserting claims arising under the following: (1) the Minnesota Human Rights Act (the "MHRA") (Count I); (2) 42 U.S.C. § 2000E, "Title VII" (Count III); (3) 42 U.S.C. § 1983 (CountIV); and (4) state common law claims for defamation/slander (Counts V & VIII).1 (Compl., Ex. 1 to Notice of Removal [Doc. No. 1-1].)

In December 2008, Brodkorb was hired as Communications Director for the Minnesota Senate Minority Caucus. (Id. ¶ 5.) In 2010, after Republicans gained the majority in the Minnesota Senate, Brodkorb became Communications Director for the Minnesota Senate Majority Caucus. (Id. ¶7.) At this time, Senator Amy Koch was elected Senate Majority Leader. (Id. ¶ 6.) Brodkorb alleges that in September 2011, Deputy Majority Leader Geoff Michel, through Chief of Staff Cullen Sheehan, became aware that Brodkorb and Senator Koch were involved in an extramarital relationship.

On December 14, 2011, Brodkorb contends that Senator Michel, along with Senator Chris Gerlach, Senator Claire Robling, and Senator David Hahn met with Senator Koch to discuss her romantic involvement with Brodkorb. (Id. ¶¶ 9-10.) The Complaint alleges that the senators requested that Koch resign immediately. (Id. ¶ 11.) In addition, the Complaint alleges that the parties discussed plans for Brodkorb to be terminated by Senator Cal Ludeman, Secretary of the Senate, following Koch's resignation.2 (Id.)Brodkorb alleges that in additional discussions, the senators determined that "Brodkorb needed to be terminated because of his intimate relationship with Senator Koch." (Compl. ¶ 13, Ex. 1 to Notice of Removal [Doc. No. 1-1].) On December 15, 2011, Senator Koch resigned from her position as Senate Majority Leader and indicated that she would not seek re-election. (Id. ¶ 14.)

On December 16, 2011, Ludeman terminated Brodkorb. (Id. ¶16.) At this meeting, Ludeman allegedly referred to Koch's resignation the previous day, as well as the extramarital affair between Koch and Brodkorb. (Id. ¶ 18.) Brodkorb thus alleges that Ludeman and Republican leaders were aware of the relationship between Koch and Brodkorb prior to his termination. (Id. ¶ 19.) Brodkorb further asserts that Senator Ludeman did not offer him the possibility of transferring to another position prior to his termination. (Id. ¶ 20.) Brodkorb alleges that similarly situated female employees were not terminated despite relationships with male legislators. (Id. ¶ 21.)

On March 13, 2012, Brodkorb served the Minnesota Senate with a Notice of Claims letter, alleging a gender discrimination claim. (Id. ¶ 24.) In the letter, Brodkorb issued a settlement demand of $500,000 and expressed his willingness to participate in the early mediation of his claims. (Notice of Claims at 3, Ex. B to Aff. of C. Harristhal [Doc. No. 14-1].) The following day, March 14, 2012, Senator Ludeman issued a press release to the general public. (Id. ¶ 25.) In the press release, printed on Minnesota Senate letterhead and entitled "Statement from Secretary Ludeman," Brodkorb's offer ofmediation was acknowledged and rejected. (Press Release, Ex. A to Harristhal Aff. [Doc. No. 14-1].) The press released further stated:

Despite Mr. Brodkorb's efforts to disrupt the work of the Senate in the current legislative session, to distract members of the Senate, to extort a payment from the Senate, and to try his so-called claims in the media, the Senate will not allow that to succeed.

(Id.; Compl. ¶ 26, Ex. A to Notice of Removal [Doc. No. 1-1].)

In addition, Brodkorb alleges that on or about March 15, 2012, Ludeman stated to a newspaper reporter that Brodkorb was attempting to "'blackmail' the Senate, disrupt its work, and 'extort' payment." (Compl. ¶ 27.) On approximately April 5, 2012, Brodkorb served another Notice of Claims letter on the Minnesota Senate, identifying additional claims of defamation against the Senate. (Id. ¶ 29.)

Plaintiff initially filed this lawsuit in Ramsey County State Court on July 23, 2012, and Defendants removed the action to this Court on August 9, 2012. (Notice of Removal [Doc. No. 1].)


Pursuant to Fed. R. Civ. P. 12(b)(6), Defendants move for partial dismissal, arguing that Plaintiff's claim based on 42 U.S.C. § 1983 (Count IV), and his state law claims for defamation/slander against the Minnesota Senate and its employees (Count V), and against Cal Ludeman individually (Count VIII), fail as a matter of law. Defendants contend that the §1983 claim fails because Plaintiff has failed to plead and prove a constitutional violation. (Defs.' Mem. Supp. Mot. to Dismiss at 3-4 [Doc. No. 13].) As to Brodkorb's defamation/slander claims, Defendants argue that the statements at issueconstitute protected speech under the First Amendment and therefore cannot support a claim of defamation. (Id. at 5.) In addition, Defendants argue that the statements were absolutely privileged statements made by a high-level government official, and were also qualifiedly privileged, as statements made upon a proper occasion, from a proper motive, and based on reasonable or probable cause. (Id. at 14-19.)

In opposition to Defendants' Motion to Dismiss, Plaintiff argues that his § 1983 claim is properly supported by his claim for relief under Title VII. (Pl.'s Opp'n Mem. to Mot. to Dismiss at 13 [Doc. No. 29].) In addition, Brodkorb contends that Defendants have waived Eleventh Amendment immunity by virtue of having removed this action to federal court. (Id. at 11-12.) As to his defamation claims, Brodkorb argues that Defendants' speech is not protected under the First Amendment and that his claims therefore survive. (Id. at 16-17.)

In addition to their Motion for Partial Dismissal, Defendants also move to strike from the Complaint references to "the State of Minnesota" and the "employees" of the Minnesota Senate as immaterial and impertinent, pursuant to Fed. R. Civ. P. 12(f). (Defs.' Mem. Supp. Mot. Strike at 3-5 [Doc. No. 5].) Defendants further argue that references to the "State of Minnesota" should be stricken from the Complaint on grounds of misjoinder, pursuant to Fed. R. Civ. P. 21. (Id. at 10-12.) In response, Plaintiff contends that the State of Minnesota should not be stricken from the Complaint because pursuant to Minn. Stat. § 3.732, subd. 1, the "State" includes officers in the legislative branch of government. (Pl.'s Opp'n Strike Mem. at 5 [Doc. No. 18].) Brodkorb asserts that because he has asserted proper causes of action under the doctrine of respondeatsuperior against the State of Minnesota, the Minnesota Senate, its employees, and Cal Ludeman individually, Defendants' Motion to Strike and for Misjoinder should be denied. (Id. at 7.)

A. Motion for Partial Dismissal

When evaluating a motion to dismiss under Rule 12(b)(6), the Court assumes the facts in the Complaint to be true and construes all reasonable inferences from those facts in the light most favorable to the non-moving party. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). However, the Court need not accept as true wholly conclusory allegations, Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir. 1999), or legal conclusions drawn from the facts pled. Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990).

To survive a motion to dismiss, a pleading must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007). Although a complaint or counterclaim need not contain "detailed factual allegations," it must contain facts with enough specificity "to raise a right to relief above the speculative level." Id. at 555. As the United States Supreme Court has stated, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," will not pass muster under Twombly. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing Twombly, 550 U.S. at 555). In sum, this standard "calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim]." Twombly, 550 U.S. at 556.

When considering a Rule 12 motion, the Court generally must ignore materialsoutside the pleadings, but it may consider "some materials that are part of the public record or do not contradict the complaint," Missouri ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102, 1107 (8th Cir. 1999), as well as materials that are "necessarily embraced by the pleadings." Piper Jaffray Cos. v. Nat'l Union Fire Ins. Co., 967 F. Supp. 1148, 1152 (D. Minn. 1997); see also 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 1357, at 199 (1990) (court may consider "matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint"). While Brodkorb objects to the Court's consideration of Defendants' exhibits, some of these exhibits are clearly...

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