McKenzie v. Lunds, Inc., Civ. 98-54 JRT/RLE.

CourtUnited States District Courts. 8th Circuit. United States District Court of Minnesota
Citation63 F.Supp.2d 986
Docket NumberNo. Civ. 98-54 JRT/RLE.,Civ. 98-54 JRT/RLE.
PartiesDouglas J. McKENZIE, Plaintiff, v. LUNDS, INC., a/k/a Lunds Food Holdings, Inc., Defendant.
Decision Date15 September 1999
63 F.Supp.2d 986
Douglas J. McKENZIE, Plaintiff,
LUNDS, INC., a/k/a Lunds Food Holdings, Inc., Defendant.
No. Civ. 98-54 JRT/RLE.
United States District Court, D. Minnesota.
September 15, 1999.

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Frederick Leonard Neff, Theresa Ann Freeman, Neff Law Office, Bloomington, MN, for Douglas J McKenzie.

Douglas R Christensen, Dorsey & Whitney, Minneapolis, MN, Linda M Mealey-Lohmann,

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Mealey-Lohmann Law Office, Woodbury, MN, for Lunds, Inc.


TUNHEIM, District Judge.

Based upon the Report and Recommendation of United States Magistrate Judge Raymond L. Erickson, and after an independent review of the files, records and proceedings in the above-titled matter, IT IS HEREBY ORDERED:

That the Defendant's Motion for Summary Judgment [Docket No. 16] is GRANTED.


Aug. 23, 1999

ERICKSON, United States Magistrate Judge.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to a special assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(B), upon the Defendant's Motion to Dismiss or, in the alternative, for Summary Judgment. A Hearing on the Motion was conducted on November 17, 1998, at which time, the Plaintiff appeared by Theresa A. Freeman, Esq., and the Defendant appeared by Douglas R. Christensen, Esq.

For reasons which follow, we recommend that the Defendant's Motion for Summary Judgment1 be granted.

II. Factual and Procedural History

The Plaintiff is an employee of the Defendant, which is a grocer with several retail outlets in the Minneapolis metropolitan area. He has worked as a meat cutter for the Defendant for sixteen years. On January 10, 1997, the Plaintiff's employment was terminated for "unacceptable behavior and performance." Thereafter, he filed a grievance with his labor union, which challenged his termination, and which requested that the matter be submitted to arbitration. An Arbitration Hearing was conducted on May 15, 1997. Both the Plaintiff and the Defendant were represented by counsel throughout the pendency of the arbitration proceedings. On July 9, 1997, the Arbitrator reinstated the Plaintiff with back pay, but determined that a 30-day suspension, without pay, was warranted. Prior to the issuance of the Arbitrator's decision, the Plaintiff, on June 6, 1997, filed a Charge of age discrimination, which related to his being disciplined, and discharged, by the Defendant, with the Equal Employment Opportunity Commission ("EEOC"), and which was cross-filed with the Minnesota Department of Human Rights ("MDHR"). Defendant's Exhibits AA, BB. On October 16, 1997, the EEOC issued a right-to-sue letter to the Plaintiff concerning his Charge of age discrimination. Defendant's Exhibit CC. On January 12, 1998, the MDHR issued a right-to-sue letter to the Plaintiff with respect to the same asserted acts of the Defendant.

On that same day — January 12, 1998 — the Plaintiff filed a Complaint in this Court. Defendant's Exhibit EE. The Complaint alleged a violation of Title VII

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of the Civil Rights Act of 1964 (as amended by the Equal Employment Opportunity Act of 1972) ("Title VII"), Title 42 U.S.C. § 2000e-5. In conjunction with his Complaint, the Plaintiff also filed an Application to Proceed in forma pauperis. [Docket No. 2].

On January 14, 1998, the Plaintiff filed an "amended" Charge of discrimination with the EEOC, which was cross-filed with the MDHR. Defendant's Exhibits FF, HH. In his Amended Charge, the Plaintiff alleged, for the first time, that he had been the subject of harassment, and discrimination, based upon his age, disability, and recovering alcoholic status, in violation of the Americans with Disabilities Act ("ADA"), the Age Discrimination in Employment Act ("ADEA"), and Title VII. On January 21, 1998, the EEOC issued a right-to-sue letter in connection with the Plaintiff's Amended Charge of discrimination. Defendant's Exhibit GG.

As part of this Court's regular duties, and pursuant to Title 28 U.S.C. § 1915, the Court issued an Order dated January 27, 1998, in which it identified that, as it was then constituted, the Plaintiff's Complaint failed to satisfy the "notice pleading" requirements of Rule 8(a), Federal Rules of Civil Procedure. Order of January 27, 1998 [Docket No. 3]. In addition to identifying the inadequacies of the Plaintiff's pleadings, and granting him until February 20, 1998, by which to correct those deficiencies, our Order expressly directed the Clerk of Court not to submit the Summons and Complaint to the United States Marshal's Service, for execution upon the Defendant, until further Order of the Court. Id. at 4.

Thereafter, on February 20, 1998, the Plaintiff filed an Amended Complaint, alleging violations of the ADEA, ADA, the MHRA, as well as certain State common law claims. Amended Complaint [Docket No. 7]. Upon reengaging our review of the Plaintiff's application for pauper standing, following the filing of the Amended Complaint, we concluded that the Plaintiff was not entitled to such standing, and made that recommendation to the District Court, the Honorable John R. Tunheim presiding. Report and Recommendation of February 25, 1998 [Docket No. 8]. We also issued an Order, of even date, which continued our directive that a Summons not issue until further Order of the Court. Order of February 25, 1998 [Docket No. 8]. By Order dated March 30, 1998, the District Court adopted our Report and Recommendation, and denied the Plaintiff pauper standing. Order of March 30, 1998 [Docket No. 9].

On April 4, 1998,2 the Clerk of Court docketed the receipt of a filing fee from the Plaintiff, and we directed the Clerk of Court to issue a Summons to the Plaintiff for service upon the Defendant. Order dated April 6, 1998 [Docket No. 10]. To date, the Plaintiff's original Complaint has never been served upon the Defendant. Unfortunately, the Amended Summons and Complaint were delivered to the reception area of the Dorsey & Whitney law firm, on April 9, 1998, and were addressed to Douglas Christensen, Esq., who had represented the Defendant in the arbitration proceedings that involved the Plaintiff. Christensen Affidavit ¶ 3. The Defendant interposed its Answer on April 29, 1998, [Docket No. 11], in which it expressly asserted the affirmative defense of insufficiency of process and/or insufficiency of service of process. Answer to Amended Complaint, Fourth Defense, at 14.

On June 4, 1998, the MDHR issued a right-to-sue letter with respect to the

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Plaintiff's discrimination Charge of January 14, 1998. Thereafter, on August 12, 1998, after the Plaintiff was informed by the Defendant, at the parties' Rule 26(f) Conference, that service had never been effected upon the Defendant, the Plaintiff properly served his Amended Complaint upon the Defendant. Laska Affidavit ¶ 4; Christensen Aff. ¶ 8. On October 6, 1998, the Defendant filed his present dispositive Motion, which challenges the claims, that have been asserted in the Plaintiff's Amended Complaint, on both procedural and substantive grounds.

III. Discussion

A. Standard of Review. Summary Judgment is not an acceptable means of resolving triable issues, nor is it a disfavored procedural shortcut when there are no issues which require the unique proficiencies of a Jury in weighing the evidence, and in rendering credibility determinations. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary Judgment is appropriate when we have viewed the facts, and the inferences drawn from those facts, in a light most favorable to the non-moving party, and we have found no triable issue. Carter v. St. Louis Univ., 167 F.3d 398, 400 (8th Cir.1999); Prudential Ins. Co. v. National Park Med. Center, Inc., 154 F.3d 812, 818 (8th Cir.1998). For these purposes, a disputed fact is "material" if it must inevitably be resolved and the resolution will determine the outcome of the case, while a dispute is "genuine" if the evidence is such that a reasonable Jury could return a verdict for the non-moving party. See, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Liebe v. Norton, 157 F.3d 574, 578 (8th Cir.1998); Dodd v. Runyon, 114 F.3d 726, 729 (8th Cir.1997).

As Rule 56(e) makes clear, once the moving party files a properly supported Motion, the burden shifts to the nonmoving party to demonstrate the existence of a genuine dispute. In sustaining that burden, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavit or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), Federal Rules of Civil Procedure; see also, Anderson v. Liberty Lobby, Inc., supra at 256, 106 S.Ct. 2505; Chism v. W.R. Grace & Co., 158 F.3d 988, 990 (8th Cir.1998). Moreover, the movant is entitled to Summary Judgment where the nonmoving party has failed "to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, supra at 322, 106 S.Ct. 2548; see also, Greer v. Shoop, 141 F.3d 824, 826 (8th Cir.1998); Mayard v. Hopwood, 105 F.3d 1226, 1228 (8th Cir.1997). No genuine issue of fact exists in such a case because "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, supra at 323, 106 S.Ct. 2548; see also, Bell Lumber and Pole Co. v. United States Fire Ins. Co., 60 F.3d 437, 441 (8th Cir. 1995); McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 510 (8th Cir.1995); Settle v. Ross, 992 F.2d 162, 163 (8th Cir. 1993).

B. Legal Analysis. Since...

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