DeRoche v. All American Bottling Corp., Civ. No. 98-675 (JRT/RLE).

• Decision Date: 05 November 1998
• Docket Number: Civ. No. 98-675 (JRT/RLE).
• Parties: Michael F. DeROCHE, Plaintiff, v. ALL AMERICAN BOTTLING CORPORATION, a Delaware Corporation, Defendant.
• Court: U.S. District Court — District of Minnesota

38 F.Supp.2d 1102

Michael F. DeROCHE, Plaintiff, v. ALL AMERICAN BOTTLING CORPORATION, a Delaware Corporation, Defendant.

Civ. No. 98-675 (JRT/RLE).

United States District Court, D. Minnesota.

November 5, 1998.

COPYRIGHT MATERIAL OMITTED

Mark Leslie Knutson, Lisa Danelle Wilson, Bye Angnew Dryer & Storaasli, Duluth, MN, for plaintiff.

Kathleen Mary Mahoney, David M. Wilk, Oppenheimer Wolff & Donnelly, St. Paul, MN, William Crawford Blanton, Jr., Ranelle Leier, Oppenheimer Wolff & Donnelly, Minneapolis, MN, for defendant.

MEMORANDUM ORDER

ERICKSON, United States Magistrate Judge.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(A), upon the Motion of the Plaintiff, Michael F. DeRoche ("DeRoche"), to Amend his Complaint so as to assert a claim for punitive damages, and in order to add a claim under the Minnesota Labor Relations Act, Minnesota Statutes Sections 179.12 ("MLRA").

A Hearing on the Motions was conducted on July 28, 1998, at which time DeRoche appeared by Mark L. Knutson, Esq., and the Defendant, All American Bottling Corporation ("All American"), appeared by William C. Blanton, Esq.

For reasons which follow, De Roche's Motion to Amend is denied.

II. Factual and Procedural Background

This is an action arising out of events which followed the sale of Twin Ports 7-Up ("Twin Ports"), a soft drink distributorship located in Duluth, Minnesota, by Pepsico Corporation to All American, in February of 1994. According to DeRoche, as a part of that transfer of ownership, All American considered those employees, who had previously worked at Twin Ports, for continued employment with All American. The hiring process included an interview with each of the existing employees of Twin Ports in order to determine if they would be employed by All American.

DeRoche, who was fifty-six years of age at the time of the sale, had worked for Twin Ports for 24 years. During his employment, DeRoche worked as a sales route driver. As a result of his having submitted a written application for employment, on or about February 18, 1994, DeRoche was interviewed for employment by an agent of All American. It is not clear, given the Record presented to us, who was present at DeRoche's employment interview, but we are informed that the interview lasted approximately fifteen minutes. During the interview, DeRoche was asked about All American's planned use of a "pre-selling" system to distribute its product.

Under the system employed by All American's predecessor, sales were accomplished by the route drivers loading onto their trucks the amount of product that they expected would satisfy the needs of the customers on their route. Upon arriving at the customer's retail outlet, the driver would negotiate, with the customer, the actual amount of product that would be sold. According to DeRoche, All American was proposing to use a system in which its product would be pre-sold to its customers. Under this approach, the customer would be contacted, by telephone, prior to the delivery date, and an order would then be taken for a specific quantity of All American's product, and the route drivers would then load the ordered product onto their trucks for delivery. Once at the customer's place of business, the driver would restock, and would arrange, the product for resale.

DeRoche contends that he was receptive to the pre-selling plan, and that he expressed that view during his interview. As related by DeRoche, he had worked under a variety of sales systems during his tenure at Twin Ports, and he was not averse to the approach being proposed by All American. DeRoche also asserts that, at all times during his employment with Twin Ports, he had an excellent relationship with the customers he serviced, and that he had been relied upon to train new employees.

When All American announced who would be a part of its newly established workforce, DeRoche was not included. According to DeRoche, All American did hire some previous Twin Ports employees, but none of those hired were older than forty years of age, and none of the sales route drivers, who were then hired, were older than the age of thirty. Thereafter, DeRoche filed a claim of age discrimination with the Minnesota Department of Human Rights.

Following the announcement of All American's new hires, DeRoche asked All American to explain the reasons for its rejection of his employment application. In response, DeRoche was told that he was refused employment because All American had concluded that he was resistant to change, and could not adapt to All American's new "system." DeRoche takes strong exception to that explanation, as he recalls that, during his employment interview, he expressed a positive, and supportive, attitude toward the proposed pre-sale distribution plan which, by DeRoche's reckoning, was the only substantive marketing change that was being proposed by All American. Assuming, as he does, that the interview was the only basis upon which All American relied for its decision not to hire him, DeRoche contends that the reasons given for his rejection were merely a pretext for All American's true, discriminatory intent to deny him employment because of his age, and his union affiliation.

In support of his claim of discrimination, DeRoche offers an account of a conversation that he had with Steve Steele ("Steele"), who had been employed at Twin Ports for approximately eighteen months prior to its acquisition by All American. He was then hired by All American as a sales route driver. DeRoche notes that Steele was "about 30" at the time he was hired by All American, and he recounts that, during their conversation, Steele told him that a manager employed by All American advised that the true reason for DeRoche's employment rejection was different than what All American had explained. Steele allegedly stated that the unidentified manager explained that DeRoche was not hired because of his age, and his status as a union member.

DeRoche commenced this action, in Minnesota District Court, in January of 1998. In his Complaint, DeRoche alleges that the Defendant illegally denied him employment because of his age, in violation of Minnesota Statutes Sections 363.01 et seq., and 181.81, and he claims damages in excess of fifty thousand dollars. Relying upon the parties' diversity of citizenship as a jurisdictional predicate,¹ on February 11, 1998, All American timely removed the action to this Court. See, 28 U.S.C. § 1441. In his current Motion, DeRoche requests leave to amend his Complaint so as to include a claim for punitive damages, under Minnesota Statutes Section 181.81, and to incorporate a claim under the MLRA. Notably, no Federal questions are presented in the claims that DeRoche has pleaded, or that he has requested leave to plead. Against this backdrop, we consider the DeRoche's Motion to Amend his Complaint.

III. Discussion

A. Standard of Review. Where, as here, a plaintiff seeks to amend his Complaint, Rule 15(a), Federal Rules of Civil Procedure, dictates that leave to amend shall be "freely given when justice so requires." The Supreme Court has explained the purposes of Rule 15(a) as follows:

If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of such an apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. — the leave sought should, as the rules require, be "freely given."

Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also, ARE Sikeston v. Weslock National, Inc., 120 F.3d 820, 832 (8th Cir.1997); Thompson-El v. Jones, 876 F.2d 66, 67 (8th Cir. 1989).

Although we begin with a presumption of liberality, an amendment to a pleading can be successfully challenged on grounds of futility if 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. See, Humphreys v. Roche Biomedical Laboratories, Inc., 990 F.2d 1078, 1082 (8th Cir.1993); Weimer v. Amen, 870 F.2d 1400, 1407 (8th Cir.1989); Holloway v. Dobbs, 715 F.2d 390, 392-93 (8th Cir.1983); Norbeck v. Davenport Community Sch. Dist., 545 F.2d 63 (8th Cir.1976), cert. denied, 431 U.S. 917, 97 S.Ct. 2179, 53 L.Ed.2d 227 (1977); but cf., Karl's Inc. v. Sunrise Computers, Inc., 901 F.2d 657, 660 (8th Cir. 1990) ("colorable showing" sufficient to withstand application of clearly frivolous rule).

B. Legal Analysis. As noted, DeRoche seeks leave to amend his Complaint in order to assert a claim for punitive damages, and to invoke any remedies under the MLRA. Since the proposed amendments involve different considerations, we address them separately.

1. DeRoche's Motion to Amend his Complaint to Include Punitive Damages Under Minnesota Statutes Section 181.81.

As a threshold issue, we are obligated to determine whether Minnesota Statutes Section 181.81 permits a recovery for the punitive damages. If the Statute does not, then we need not consider whether DeRoche has satisfied his burden, under the laws of Minnesota, to present prima facie evidence that the Defendant acted with a deliberate disregard to his entitlement, if any there be, to employment with All American. See, Minnesota Statutes Sections 549.191 and 549.20.

All American argues that Minnesota Statutes Section 181.81 does not envision an award of punitive damages, because the provisions of that Statute specifically enumerate the remedies that the Minnesota Legislature intended.² As a result, All American argues that any claim, by DeRoche, for...