Hodges v. S.D. Sch. of Mines & Tech.

634 F.Supp.3d 638

Tasha HODGES, Plaintiff, v. SOUTH DAKOTA SCHOOL OF MINES AND TECHNOLOGY, Defendant.

CIV. 5:22-5011-LLP

United States District Court, D. South Dakota, Western Division

Signed October 5, 2022

Daniel K. Brendtro, Hovland, Rasmus, Brendtro & Trzynka, Prof. PLLC, Sioux Falls, SD, Rolf T. Fiebiger, Pro Hac Vice, Fiebiger Law LLC, Edina, MN, for Plaintiff.

Samuel D. Kerr, Kassie McKie Shiffermiller, Lynn, Jackson, Shultz & Lebrun, PC, Rapid City, SD, Madison L. Young, Singleton Schreiber, San Diego, CA, for Defendant.

MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION TO AMEND, DENYING IN PART MOTION FOR JUDGMENT ON THE PLEADINGS AND ORDERING ADDITIONAL BRIEFING

Lawrence L. Piersol, United States District Judge

Pending before the Court is Defendant South Dakota School of Mines and Technology's ("School of Mines") Motion for Judgment on the Pleadings, (Doc. 11), and Plaintiff Tasha Hodges' ("Ms. Hodges") Motion to Amend, (Doc. 16). For the following reasons, Plaintiffs' Motion to Amend is granted and Defendants' Motion for Judgment on the Pleadings is denied with respect to all of Plaintiff's claims but for her Fair Labor Standards Act ("FLSA") claim. The Court has ordered additional briefing on the issue raised by the School of Mines regarding Plaintiff's FLSA claim.

BACKGROUND

A. Facts and Claims

On January 28, 2022, Plaintiff Tasha Hodges ("Ms. Hodges") filed a complaint against Defendant South Dakota School of Mines and Technology ("School of Mines"). Therein, Ms. Hodges alleges that she was a student in the Civil Engineering PhD program at the School of Mines from 2015 to December 2019. (Doc. 1, ¶ 32). Ms. Hodges was employed by the School of Mines as a part time research scientist from May 22, 2019 to March 22, 2020. (Doc. 1, ¶ 6). She worked full time in this position from March 22, 2020 until she was allegedly wrongfully terminated on June 19, 2020. (Doc. 1, ¶ 6). During that time, Ms. Hodges alleges that the School of Mines discriminated against her based on her sex, retaliated against her for bringing the unwanted discriminatory practices to the attention of her supervisors, and terminated her in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a), and in violation of Title IX of the Education Act as amended, 20 U.S.C. § 1681, et seq. (Doc. 1), and South Dakota Codified Law Ch. 20-13.

Further, Ms. Hodges alleges that the School of Mines failed to pay her wages she earned as an hourly worker under state wage laws (SDCL § 60-11-9) and failed to pay her overtime pay as required under the Fair Labor Standards Act of 1938 as amended ("FLSA"), 29 U.S.C. § 201, et seq., and then retaliated against her and terminated her for bringing the pay discrepancies to the attention of her supervisor in violation of both the FLSA and South Dakota Codified Law § 60-11-17.1.

The Court has jurisdiction over this lawsuit under 28 U.S.C. § 1331 as her Title VII, Title IX, and FLSA claims arise under federal law. The Court has supplemental jurisdiction over Ms. Hodges' state law wage and reprisal claims under 28 U.S.C. § 1367.

B. Procedural History

Ms. Hodges filed a formal discrimination charge of discrimination with the U.S. Equal Employment Opportunity Commission ("the EEOC") and received a Notice of Right to Sue on January 25, 2022. (Doc. 1, ¶ 5). On January 28, 2022, Ms. Hodges filed her complaint against Defendant the School of Mines in the United States District Court with the District of South Dakota, Western Division. (Doc. 1).

A summons was issued as to the School of Mines and its registered agent, Lana Thom, on January 28, 2022, (Doc. 2), and the School of Mines was served on February 3, 2022, (Doc. 3). The School of Mines filed its Answer to the Complaint on March 3, 2022. (Doc. 8). In its Answer, the School of Mines asserted, among other things, that Ms. Hodges' Complaint was barred by the statute of limitations and that she did not serve a copy of the summons and Complaint on the governor and attorney general in accordance with SDCL § 15-6-4(d)(5) and Fed. R. Civ. P. 4(j)(2)(A), (B). (Doc. 8, ¶ 3). In its Answer, the School of Mines also asserts that it is not the real party in interest and lacks capacity to be sued under Fed. R. Civ. P. 17 and that Ms. Hodges' Complaint is barred by sovereign immunity. (Doc. 1).

On May 12, 2022, the School of Mines filed a Motion for Judgment on the Pleadings. (Doc. 11). In support of its motion, the School of Mines argues that it lacks the capacity to be sued under Fed. R. Civ. P. 17(b)(3); that it has not waived its immunity to suit under South Dakota law. (Doc. 12 at 64-67). The School of Mines argues that public universities such as the School of Mines are under the control of the South Dakota Board of Regents and that the proper defendant is therefore the South Dakota Board of Regents. (Doc. 12 at 64-67). In the alternative, the School of Mines argues that the complaint must be dismissed because Ms. Hodges failed to effectuate proper service on the School of Mines under Rule 4(j) of the Federal Rules of Civil Procedure. (Doc. 12 at 67). Specifically, the School of Mines argues that that Ms. Hodges was required to, but failed in effectuating service upon the School of Mines' chief executive officer or South Dakota's governor and attorney general as required under Rule 4(j) and SDLC § 15-6-4(d)(5). The School of Mines argues that more than 90 days have passed since the filing of her Complaint, that Ms. Hodges was put on notice in the School's March 3, 2022, Answer that she had failed to effectuate proper service of process, and that good cause therefore does not exist to extend the time for service beyond the 90-day deadline provided under Rule 4(m) of the Federal Rules of Civil Procedure. In the event the Court finds that that Ms. Hodges served the correct party, the School of Mines argues in its Motion for Judgment on the Pleadings that Ms. Hodges' FLSA claim alleging that the School of Mines violated the FLSA by its failure to pay her overtime in 2019 fails a matter of law because she was a professionally exempt employee during that time frame. (Doc. 12 at 70). Defendant's Motion for Judgment on the Pleadings is presently pending before the Court.

On May 13, 2022, Ms. Hodges filed a Request for Summonses to the South Dakota School of Mines, a state institution under the control of the Board of Regents, care of the Attorney General and South Dakota Governor Kristi Noem. (Doc. 13). On May 23, 2022, new summonses were issued pursuant to Ms. Hodges' May 13, 2022 request. (Doc. 15). On May 27, 2022, Ms. Hodges filed a Motion to Amend/Correct Complaint and for an Extension of Time for Service of Process. (Doc. 16). The Governor and the Attorney General were served the summonses and complaint that same day—May 27, 2022. (Docs. 19, 20). Ms. Hodges' Motion to Amend is presently pending before the Court.

STANDARD OF REVIEW

A timely¹ motion to amend a party's pleadings is ordinarily governed by Rule 15 of the Federal Rules of Civil Procedure. When a party can no longer amend its pleading as a matter of course under Rule 15(a)(1) of the Federal Rules of Civil Procedure, amendment is allowed "only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). Although leave to amend the complaint it typically freely given, whether to permit amendment of the complaint or addition of parties is committed to the court's discretion. Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008) (citing Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998)); see Fed. R. Civ. P. 15(a)(2).

A court may deny a motion for leave to amend if there has been undue delay, bad faith, or dilatory motive by the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the non-moving party, or futility of the amendment. Moses.com Secs., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065 (8th Cir. 2005). A proposed amendment to a pleading may be denied as "futile" if it could not withstand a Rule 12(b)(6) motion to dismiss. Cornelia I. Crowell GST Trust v. Possis Med., Inc., 519 F.3d 778, 782 (8th Cir. 2008); In re Senior Cottages of Am., LLC, 482 F.3d 997, 1001 (8th Cir. 2007).

A limitations defense may be asserted in a motion to amend "when it appears from the face of the complaint² itself that the limitation period has run." See Varner v. Peterson Farms, 371 F.3d 1011, 1016 (8th Cir. 2004) (internal quotations and citation omitted); see also Enervations, Inc. v. Minn. Mining & Mfg. Co., 380 F.3d 1066, 1069 (8th Cir. 2004) (holding that the proposed amendment was futile because even if amended, the proposed claim would still be time-barred). In determining whether a statute of limitations defense is apparent on the face of the complaint, a court is limited to the materials properly before it on a motion to dismiss, which, in addition to the complaint, may include "matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned." Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 n.3 (8th Cir. 2012) (citing 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1357 (3d ed. 2004)); see Noble Sys. Corp. v. Alorica Cent., LLC, 543 F.3d 978, 983 (8th Cir. 2008) ("Although our cases require the defense to be apparent on the face of the complaint, this means simply that the district court is limited to the material properly before it on a motion to dismiss . . . ."). In addition, a court must accept all well-pleaded factual allegations in the complaint as true and draw all inferences in favor of the nonmovant. Blankenship v. USA Truck, Inc., 601 F.3d 852, 853 (8th Cir. 2010). The party opposing the amendment bears the burden of...