Howe v. Kaal et al

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Anne St. Amant, Lukas Boehning, and Pamela Abbate Dattilo, ECKLAND &
BLANDO LLP, 100 Washington Avenue South, Suite 1500, Minneapolis, MN
55401, for Plaintiff.
Sheila A Engelmeier and Thomas E Marshall, ENGELMEIER & UMANAH, 121
South Eighth Street, Suite 1300, Minneapolis, MN 55402, for Defendants
Wulf Kaal and Emerging Technology Association.
Plaintiff Hayley Howe filed an eleven-count Complaint against Wulf Kaal, her
former mentor and law professor; Emerging Technology Association (“ETA”), a Swiss
entity co-founded by Kaal that Howe performed legal work for; and 35 John Does that are
also associated with ETA. Defendants Kaal and ETA move to dismiss. The Court will grant
in part and deny in part Defendants’ motion to dismiss.
HAYLEY HOWE,
Plaintiff,
v.
WULF KAAL,
EMERGING TECHNOLOGY ASSOCIATION,
and
JOHN DOE #1-35,
Defendants.
Civil No. 25-1946 (JRT/ECW)
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS
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BACKGROUND
I. 	FACTS
Howe seeks damages from Defendants for events that occurred “within the scope
of Plaintiff Howe’s employment with the Emerging Technology Association, under the
general supervision and oversight of Wulf Kaal.” (Compl. ¶ 1.) The facts here are recited
as alleged in Howe’s complaint.
Howe is a Minnesota citizen (id. ¶ 7); Kaal, a professor at University of St. Thomas
School of Law (located in Minnesota), is an Illinois citizen (id. ¶ 8); and ETA is a Swiss
association that operates “throughout the United States,” including in Minnesota (id. ¶ 9).
ETA is the “legal wrapper” for DEVxDAO (id. ¶ 10), which is a “decentralized autonomous
organization (‘DAO’) . . . that operates on blockchain software and is run by those who
have obtained voting power via sweat equity towards a shared purpose” (id. ¶ 37). The
“shared purpose” of DEVxDAO is “to provide grants to developers internationally to
support blockchain-based projects.” (Id. ¶ 38.) Because DEVxDAO is unincorporated, it
uses ETA as “a legal wrapper to enter into contracts on its behalf and manage funds.” (Id.
¶ 39.)
Howe includes John Does #1–35 as Defendants, because “[g]iven DEVxDAO’s novel
structure . . . certain current or former individual voting associates,” the decisionmakers
in DEVxDAO, are “presently unknown or unidentifiable.” (Id. ¶ 11; see also id. ¶ 42.) All
matters within DEVxDAO were voted on in a “forum-style public portal,” with each voting
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associate 	having 	a 	vote. 	(Id. ¶ 42.) 	Each 	voting 	associate 	“received 	monthly
compensation . . . paid by ETA . . . .” (Id.)
A. 	Howe’s Initial Involvement with ETA
Howe attended the University of St. Thomas for undergraduate education and law
school. (Id. ¶ 19.) She first met Kaal while an undergraduate. (Id.) Because of mutual
academic interests, Kaal became a mentor to Howe and was one of the reasons she chose
to attend law school at the University of St. Thomas. (Id. ¶¶ 19-20.)
Kaal is one of the founders of ETA and DEVxDAO. (Id. ¶ 24.) In “late spring or early
summer of 2020, Kaal asked Howe if she would be interested in a compliance position
with a DAO.” 	(Id. ¶ 25.) 	First, she “informally” attended “weekly community calls,
primarily with DEVxDAO and its Grant Program Sponsor, Casper Association,” and then,
in February 2021, she was hired as a “part-time compliance associate” for ETA, working
with DEVxDAO. (Id. ¶ 26–28.) When she began this position, she was still in law school
and Kaal was her supervisor. (Id. ¶ 28.) 	Howe “was paid by ETA—as were all ETA and
DEVxDAO employees/executives.” (Id. ¶ 31.)
When Howe first began working for ETA, “there was little separation in leadership
between” DEVxDAO and ETA. (Id. ¶ 32.) The founding members of each entity “were the
same individuals.” 	(Id.) 	And ETA’s board members and executive directors were also
voting associates of DEVxDAO. 	(Id.) 	In 2021, however, the leaders of the entities
“negotiated a new sponsor agreement” with Casper Association, a grant program sponsor
of DEVxDAO, that “required separation between ETA and DEVxDAO.” (Id. ¶¶ 26, 32.) As
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a result, some individuals resigned from one entity or the other. (Id. ¶ 32.) Kaal resigned
from ETA but remained a voting associate of DEVxDAO. (Id.)
B. 	Howe Graduates Law School and Joins ETA Full-Time
After graduating from law school, and “at Kaal’s urging,” Howe joined ETA full-time
in August 2021 as the Director of Compliance. (Id. ¶ 33–35.) Her direct supervisor at this
time was Marco Aniballi, ETA’s Financial Director and an Executive Board Member. (Id.
¶ 31, 35.) “Kaal remained her superior and [Howe] continued to work closely with Kaal,
who often directed what Howe’s duties should be and how they should be done.” (Id.
¶ 35.) In April 2022, ETA elevated Howe to Director of Legal and Compliance. (Id. ¶ 48.)
Howe made EUR 8,000 per month as the Director of Legal and Compliance. (Id.
¶ 49.) The man “who held this position prior to Howe, and other male individuals at this
level (executives), had fixed salaries of EUR 20,000/month, on top of any [voting
associate] compensation and grants they received through DEVxDAO[.]” (Id.) At the time
she accepted the Director role, “Howe was told that her pay would be increased to EUR
12,000 [per month] in mid-2023,” but ETA ultimately never adjusted her pay. (Id.)
As part of Howe’s role, she “was a liaison between DEVxDAO and ETA, working
closely with several DEVxDAO” voting associates. 	(Id. ¶ 53.) 	One of those voting
associates was Robert Carbone. 	(Id. ¶ 54.) 	Howe and Carbone initially had a “friendly
working relationship.” (Id. ¶ 55.)
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C. 	Puerto Rico Trip and Sexual Assault of Howe
In July 2022, “Howe attended an internal work Summit . . . for DEVxDAO” in
Dorado, Puerto Rico. (Id. ¶¶ 57–58.) “ETA wanted a representative to attend and asked
Howe to attend the Summit on its behalf.” (Id. ¶ 59) “ETA had identified numerous topics
for Howe to address with the DEVxDAO at the Summit . . . .” 	(Id.) 	At the time, Howe
understood the event as intended to gather “all [DEVxDAO voting associates] who resided
in different locations across the world” in order “to discuss and propose topics significant
to the continuation of the growth of DEVxDAO and its operations.” (Id. ¶ 58.) Howe “was
made to believe all [voting associates] would be present, but in reality it was a voluntary
event for [voting associates.]” (Id.)
Howe arrived in Puerto Rico on Thursday, July 21, 2022, and the summit was
scheduled to run through the weekend. 	(Id. ¶ 61.) 	Howe and Kaal, “who were still
working together closely at that time, coordinated their return flights to be on the same
flight on Sunday, July 24, 2022.” (Id.) “As the weekend proceeded, it became clear that
the Summit was disorganized, and more of a boondoggle than a business meeting.” (Id.
¶ 62.) 	Howe was “required to effectively be on-call all hours of the day” during the
Summit, but she “quickly realized that most of the Summit’s events were social
gatherings.” (Id. ¶ 64.)
On Saturday, July 23, 2022, Howe’s colleagues invited her to join other summit
attendees on an outing to the International Regatta in San Juan. (Id. ¶ 67.) Near midday,
while on a dinghy headed to the Regatta, Howe was invited to attend a “business
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meeting . . . held on the boat of a public figure.” 	(Id. ¶¶ 68–69.) 	After the meeting
concluded, she found that “the public figure was hosting a party” on the boat. (Id. ¶ 71.)
She also found that her cell phone had run out of battery. (Id. ¶ 70.)
Around sunset, Kaal invited Howe to leave the boat for “the home of one of the
blockchain project team members.” 	(Id. ¶ 72.) 	There, Howe found herself at another
party, although some attendees were discussing business matters. 	(Id. ¶ 74.) 	Several
attendees used cocaine. (Id. ¶ 76–78.) Howe was offered cocaine, but did not use drugs,
or consume alcohol, at the party. 	(Id. ¶ 77) 	Because Howe’s phone was still out of
battery, she could not call her own Uber to return to the hotel. (See id. ¶ 70, 75–76.)
Eventually, “around 11:00 p.m., someone coordinated an Uber back to the hotel
for Howe and three of her colleagues, including Carbone.” (Id. ¶ 78.) “Upon arriving back
at the hotel, [Howe and three others] rode the elevator up together.” (Id. ¶ 79.) “Howe
and Carbone had rooms on the same floor and the other two colleagues had rooms on
different floors.” (Id.) “Carbone manipulated Howe into entering his hotel room, where
he violently assaulted her and raped her over several hours. Howe was eventually able
to escape from the room.” (Id. ¶ 80–81.)
“Unbeknownst to Howe at the time, just days before he assaulted her, Carbone
[had] posted intimate photos of a woman online without [her] permission. This later [led]
to his arrest and criminal charges in Connecticut.” (Id. ¶ 82.)
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Howe initially told no one at ETA of the assault. (Id. ¶ 83.) However, when Howe
and Kaal were sitting next to each other on the plane home the next day, Kaal, “[o]ut of
the blue,” asked Howe for her thoughts on Carbone. (Id. ¶ 84.) Howe “relayed a negative
impression noting that he was very ‘sexually driven,’” but Howe did not tell Kaal about
the assault. 	(Id. ¶ 85.) 	Kaal “went on to suggest that if Carbone made Howe
uncomfortable, she did not have to work with him.” (Id.) Kaal also stated that “they were
already in the process of terminating Carbone for performance-related reasons.” 	(Id.)
Howe alleges that “Kaal’s comments suggest that he knew or suspected that Carbone had
behaved inappropriately.” (Id.)
D. 	ETA and DEVxDAO’s Response to Howe’s Assault
Howe alleges that Kaal told at least one other voting associate, Tony Greenberg,
that Carbone had “done something improper to Howe.” (Id. ¶ 86.) Howe also believes
“that Kaal was using this knowledge not to actually seek help for Howe, but to further
justify his own personal agenda—which was to get rid of Carbone for completely
unrelated reasons.” (Id.) These allegations are based in part on an “unexpected[]” video
call Howe received from Greenberg on August 12, 2022, approximately three weeks after
the assault, in which Greenberg “abruptly asked Howe if Carbone had made any
unwanted sexual advances toward her.” 	(Id.) 	Howe denied that any advances had
occurred, and asked Greenberg to “not discuss this matter with anyone else.” (Id. ¶ 86–
89.) However, Howe alleges that Kaal and Greenberg were “develop[ing] a plan to get rid
of Carbone,” based on “Howe’s experience with Carbone” and that “[i]n doing so . . .
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[they] revealed sensitive information and speculat[ed] to an unknown number of
individuals who were not equipped to handle or investigate such a matter, without
Howe’s permission[.]” (Id. ¶ 89.)
In late September 2022, Howe ultimately informed her direct supervisor, Aniballi,
of the assault. (Id. ¶ 96.) In a series of calls that followed, Howe was “forced to inform”
Kaal and other officers of the assault, “including that Carbone had choked her and sexually
assaulted her.” (Id. at 98.) Howe also informed Aniballi that there had been illicit drug
use in Puerto Rico. 	(Id. ¶ 99). 	“ETA had no sexual harassment policies, training, or
reporting 	mechanism” 	(id. ¶ 100), 	and 	DEVxDAO 	operated 	under 	a 	disorganized,
democratic governing structure, which meant that the entire situation turned into “a very
public mess,” adjudicated by the “all-male cohort with which Howe worked, stripping her
even further of any dignity to conduct business with her colleagues” (id. ¶ 89). Meanwhile
at least through September 20, 2022, Carbone still attended weekly ETA/DEVxDAO calls,
“even though Kaal . . . had informed Howe . . . that [Carbone] was being removed [for
performance-related reasons] . . . and that she would not have to interact with him
further as a result.” (Id. ¶ 91.)
Ultimately, a “messy” discussion of whether Carbone should be removed from the
organization took place in a 32-member “ETA/DEVxDAO Voting Associate Telegram group
chat, of which Howe was a member.” (Id. ¶ 104 (emphasis in original).) Initially, a group
of members led by Kaal and Greenberg proposed a simple up-or-down vote on whether
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to remove a voting associate who had “allegedly breached the ETA code of conduct” (id.
¶ 106), but some voting associates objected, questioning whether the removal attempt
was legitimate. 	(Id. ¶ 108.) 	Some participants in the chat joked about the situation,
texting things like “drama,” “lol what a mess,” and other insensitive and offensive
comments. (Id. ¶ 109).
Eventually, Kaal stated in the group chat that the assault “was discussed on so
many calls,” and that the vote “was the proposed solution on many calls with the ETA.”
(Id. ¶ 110). Furthermore, Aniballi stated in the group chat, “do you think I’m not briefed
on ALL the drama?! 	This has escaped the DAO and is now public.” 	(Id. ¶ 112.) 	Some
members of the group chat expressed disappointment in how the issue was being
handled, calling attention to the harm being caused to the victim, who they deduced was
very likely in the group chat where all of this was being discussed. (Id. ¶ 118–128). The
members also discussed whether the group should retain an external law firm or a third-
party investigator to handle the situation. (Id. ¶ 123.)
Meanwhile, ETA told Howe that “if she wished to make a formal report against
Carbone within the organization, Swiss law would require her to publicly accuse Carbone
of assault and would open her up to unfettered personal cross examination by Carbone
in front of the 36 all-male Voting Associate cohort” and ETA associates. (Id. ¶ 130.)
Carbone seemingly was formally voted out on October 24, 2022. 	(Id. ¶ 132.)
Carbone filed a federal lawsuit against Kaal and the DEVxDAO in Ohio. (Id. ¶ 137.) The
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Sixth Circuit affirmed the district court’s dismissal for lack of personal jurisdiction over the
defendants. Carbone v. Kaal, 140 F.4th 805, 807 (6 th Cir. 2025).
E. 	Howe Reports the Assault to Police; Alleged Reprisal by ETA
Howe reported the assault to the Washington County Sheriff’s Office on October
29, 2022. (Id. ¶ 135.) Howe “attempted to make a police report in Puerto Rico but was
unable to do so remotely.” (Id. ¶ 135.) Howe states that “Kaal informed the [ETA] Board
that Howe was running around Puerto Rico looking for an attorney” when “she was only
searching for an attorney to assist in making a police report in Puerto Rico.” (Id. ¶ 136.)
“Unbeknownst to Howe,” Kaal and other voting associates within ETA/DEVxDAO
were “working not only to remove Carbone . . . but also to dissolve the DEVxDAO.” (Id.
¶ 139.) Once Howe became aware of the purported dissolution of the DEVxDAO, Howe
was “tasked with assessing the winding down,” and “Kaal indicated Howe would be
included in [the] next iteration” of the organization. (Id. ¶ 140.) But ultimately, Kaal “led
the [voting associates] to shut down the DEVxDAO . . . and use their remaining treasury
of approximately 10 million USD . . . to set up a legal defense fund for ten years, providing
for full indemnification of each [remaining voting associate] . . . for any litigation the ETA
may face.” (Id. ¶ 141.)
Howe subsequently “noticed a degradation in her role and responsibilities with
ETA.” (Id. ¶ 143.) She was assigned “almost exclusively administrative” duties, and the
previously-discussed future opportunities with the group “were now no longer on the
table.” (Id.) She was also “cut off” from other ongoing projects once Kaal “got wind” she
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was involved. (Id. ¶ 144.) Howe was “no longer invited to social events,” and “Kaal . . .
excluded her” from at least one conference and ignored her in public. (Id. ¶ 145.)
F. 	Alleged Injuries
Howe alleges multiple injuries including diminishment of career growth and
opportunities within ETA (id. ¶ 147); a reduction in salary (id.); physical injuries stemming
from the alleged assault, resulting in ongoing symptoms (id. ¶ 149–53); post-traumatic
stress disorder (id. ¶ 154); and reputational harm (id. ¶ 155).
II. 	PROCEDURAL HISTORY
Howe filed her Complaint against Defendants on May 1, 2025. 	(Docket No. 1.)
Howe included 11 causes of action in her Complaint:
Count I—Negligent Hiring, Retention, and Supervision
Count II—Reprisal under the Minnesota Human Rights Act
Count III—Hostile Work Environment under the Minnesota Human Rights Act
Count IV—Violation of the Minnesota Whistleblower Act
Count V—Intentional Infliction of Emotional Distress
Count VI—Negligent Infliction of Emotional Distress
Count VII—Negligent Performance of an Undertaking
Count VIII—Tortious Interference
Count IX—Invasion of Privacy
Count X—Violations of the Federal Equal Pay Act
Count XI— Violations of the Minnesota Equal Pay for Equal Work Act
(Id.) Howe asserts Counts I–VII and IX against Kaal and ETA; Count VIII against only Kaal;
and Count X and XI against only ETA.
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Defendants move to dismiss on a variety of grounds. 	(Defs.’ Mem. Supp. Mot.
Dismiss (“Defs.’ Mem.”), June 16, 2025, Docket No. 12.) 	Defendants seek dismissal of
Counts I–XI for failure to state a claim; Counts II, III and IX as barred by applicable statutes
of limitations; and Counts I, V, VI, VII, VIII, and IX as barred by the exclusivity provisions of
the Minnesota Workers’ Compensation Act. Additionally, ETA argues that the Complaint
was not properly served, venue is improper, the Court lacks personal jurisdiction over
ETA, and that Howe failed to join a required party.
DISCUSSION
I. 	STANDARD OF REVIEW
At the motion to dismiss stage, the Court accepts well-pled allegations in the
complaint as true and draws all reasonable inferences in favor of the plaintiff. Schriener
v. Quicken Loans, Inc., 774 F.3d 442, 444 (8 th Cir. 2014). In addition to the complaint, the
Court may consider “those materials that are necessarily embraced by the pleadings.” Id.
Rule 12(b) of the Federal Rules of Civil Procedure provides that, at the motion to
dismiss stage, a party may assert any of the following defenses: “(1) lack of subject-matter
jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process;
(5) insufficient service of process; (6) failure to state a claim upon which relief can be
granted; and (7) failure to join a party under Rule 19.” Fed. R. Civ. P. 12(b).
As noted above, Defendants request dismissal for a number of reasons: the Court
lacks personal jurisdiction (over ETA), improper venue and improper service (for ETA),
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failure to state a claim upon which relief can be granted (against ETA and Kaal, for all
counts), and failure to join a party under Rule 19. The Court will first address the standard
of review for each of these grounds for dismissal before it addresses the merits.
A. 	Personal Jurisdiction
To survive a 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff
must plead sufficient facts to support a reasonable inference that the defendant can be
subjected to personal jurisdiction. Creative Calling Sols., Inc. v. LF Beauty Ltd., 799 F.3d
975, 979 (8 th Cir. 2015). “[T]he action should not be dismissed for lack of jurisdiction if
the evidence, viewed in the light most favorable to [the plaintiff], is sufficient to support
a conclusion that the exercise of personal jurisdiction over [the defendant] is proper.” Id.
at 979. “To defeat a motion to dismiss for lack of personal jurisdiction, the nonmoving
party need only make a prima facie showing of jurisdiction.” Epps v. Stewart Info. Servs.
Corp., 327 F.3d 642, 647 (8 th Cir. 2003). 	However, conclusory allegations devoid of a
factual foundation do not suffice. Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1073–
74 (8 th Cir. 2004).
The Court may exercise personal jurisdiction over a nonresident to the extent
authorized by Minnesota’s long-arm statute and consistent with the U.S. Constitution’s
Due Process Clause. Minn. Mining & Mfg. Co. v. Nippon Carbide Indus. Co., Inc., 63 F.3d
694, 696–97 (8 th Cir. 1995). Minnesota’s long-arm statute authorizes personal jurisdiction
“as far as the Due Process Clause of the federal constitution allows.” 	Valspar Corp. v.
Lukken Color Corp., 495 N.W.2d 408, 410 (Minn. 1992). Therefore, the Court need only
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determine whether exercise of personal jurisdiction here would comport with due
process. See Minn. Mining & Mfg., 63 F.3d at 697.
Due process requires sufficient “minimum contacts with the forum state” such that
the exercise of jurisdiction over the defendant “does not offend traditional notions of fair
play and substantial justice.” 	Id. (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945)). “The central question is whether a defendant has purposefully availed itself of
the privilege of conducting activities in the forum state and should, therefore, reasonably
anticipate being haled into court there.” Pecoraro v. Sky Ranch for Boys, Inc., 340 F.3d
558, 562 (8 th Cir. 2003) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).
In the Eighth Circuit, courts look to “(1) the nature and quality of contacts with the forum
state; (2) the quantity of such contacts; (3) the relation of the cause of action to the
contacts; (4) the interest of the forum state in providing a forum for its residents; and (5)
convenience of the parties.” Burlington Indus., Inc. v. Maples Indus., Inc., 97 F.3d 1100,
1102 (8 th Cir. 1996). “[D]ue process is satisfied if the defendant has purposely directed its
activities at forum residents, and the litigation results from injuries arising out of, or
relating to, those activities.” Id. at 1103.
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B. 	Venue1
Rule 12(b)(3) provides that a party may move to dismiss an action when the action
is not filed in the proper venue. Fed. R. Civ. P. 12(b)(3). The defendant, as the moving
party, has the burden of establishing that venue is improper. See United States v. Orshek,
164 F.2d 741, 742 (8 th Cir. 1947).
The doctrine of forum non conveniens can be employed when the venue, albeit
proper, is inconvenient or unacceptable for various reasons. Under the doctrine of forum
non conveniens,
when an alternative forum has jurisdiction to hear [a] case,
and when trial in the chosen forum would establish . . .
oppressiveness and vexation to a defendant . . . 	out of all
proportion to plaintiff’s convenience, or when the chosen
forum [is] inappropriate because of considerations affecting
the court’s own administrative and legal problems, the court
may, in the exercise of its sound discretion, dismiss the case,
even if jurisdiction and proper venue are established.
American Dredging Co. v. Miller, 510 U.S. 443, 447–48 (1994) (quoting Piper Aircraft Co.
v. Reyno, 454 U.S. 235, 241 (1981)) (internal quotation marks omitted, alternations in
original). Forum non conveniens is applicable only when the alternative forum is abroad,
and it vests in the Court the power to abstain from the exercise of jurisdiction even where
1 In their Motion to Dismiss, Defendants indicated they were seeking dismissal for
“improper venue.” (Defs.’ Mot. Dismiss at 2, June 16, 2025, Docket No. 11.) In their briefing,
however, Defendants state that “ETA moves to dismiss this case under the doctrine of forum non
conveniens, since a foreign venue—Switzerland—is the most convenient for this litigation.”
((Defs.’ Mem. Supp. Mot. to Dismiss (“Defs.’ Mem.”) at 35, April 23, 2025, Docket No. 9.)
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authorized by statute if “the litigation can more appropriately be conducted in a foreign
tribunal.” De Melo v. Lederle Labs., 801 F.2d 1058, 1060 (8 th Cir. 1986).
In Gulf Oil v. Gilbert, the Supreme Court provided a nonexhaustive list of factors to
must be considered in the forum non conveniens equation. 330 U.S. 501, 508–09 (1947).
The Court categorized these considerations into “private interest,” and “public interest”
factors. Id. Among the private interest factors are: relative ease of access to sources of
proof; availability of compulsory process for attendance of unwilling, and the cost of
obtaining attendance of willing, witnesses; possibility of view of the premises, if view
would be appropriate to the action; and all other practical problems that make trial of a
case easy, expeditious and inexpensive. Piper Aircraft Co. v. Reyno, 454 U.S. at 241 n.6.
The public interest factors included the following: administrative difficulties flowing from
court congestion; the forum’s interest in having localized controversies decided at home;
the interest in having the trial of a diversity case in a forum that is at home with the law
that must govern the action; the avoidance of unnecessary problems in conflict of laws,
or in the application of foreign law; and the unfairness of burdening citizens in an
unrelated forum with jury duty. Id. (quoting Gilbert, 330 U.S. at 508).
C. 	Service of Process
Rule 12(b)(5) allows a party to move to dismiss a complaint for insufficient service
of process. Fed. R. Civ. P. 12(b)(5). The standard of proof for a Rule 12(b)(5) motion to
dismiss is the same as that used for a Rule 12(b)(2) motion to dismiss for lack of personal
jurisdiction. Kammona v. Onteco Corp., 587 F. App’x 575, 577–78 (11 th Cir. 2014), cert.
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denied 575 U.S. 1010 (2015). To survive a motion to dismiss for insufficient service, “a
plaintiff must plead sufficient facts to support a reasonable inference that the defendant”
has been properly served. 	Creative Calling, 799 F.3d at 979 (internal quotation marks
omitted) (quoting K-V Pharm. Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 591–92 (8 th Cir.
2011)). The plaintiff bears the burden of proof on the issue of service. Id. The parties
may submit affidavits and evidence “to bolster their positions,” but if they do, the “motion
is in substance one for summary judgment.” Id. “At the motion [to dismiss] stage, the
action should not be dismissed for lack of [proper service] if the evidence, viewed in the
light most favorable to [the plaintiff], is sufficient to support a conclusion that” service
was proper. Id.
D. 	Failure to State a Claim
In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
Court considers all facts alleged in the complaint as true to determine if the complaint
states a “claim to relief that is plausible on its face.” Braden v. Wal-Mart Stores, Inc., 588
F.3d 585, 594 (8 th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“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.” 	Iqbal, 556 U.S. at 678. 	The Court construes the complaint in the light most
favorable to the plaintiff, drawing all inferences in the plaintiff’s favor. 	Ashley Cnty. v.
Pfizer, Inc., 552 F.3d 659, 665 (8 th Cir. 2009). Although the Court accepts the complaint’s
factual allegations as true and construes the complaint in a light most favorable to the
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plaintiff, it is “not bound to accept as true a legal conclusion couched as a factual
allegation.” 	Papasan v. Allain, 478 U.S. 265, 286 (1986). 	In other words, a complaint
“does not need detailed factual allegations” but must include “more than labels and
conclusions, and a formulaic recitation of the elements” to meet the plausibility standard.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
E. 	Joinder
A party moving for dismissal under Rule 12(b)(7) for failure to join a party must
demonstrate that the absent party is a “required” party as defined by Rule 19(a), and that
joining that party to the litigation is not feasible.2 If a required party under Rule 19(a)
cannot be joined to the litigation, Rule 19(b) provides factors which the Court must
consider to determine whether the litigation can proceed in their absence or should be
dismissed. Fed. R. Civ. P. 19; Two Shields v. Wilkinson, 790 F.3d 791, 794 (8 th Cir. 2015).
2 Federal Rule of Civil Procedure 19(a)(1) provides that a party is required to be joined if
feasible if:
(A) in that person’s absence, the court cannot accord complete relief among
existing parties; or
(B) that person claims an interest relating to the subject of the action and is so
situated that disposing of the action in the person’s absence may:
(i) as a practical matter impair or impede the person’s ability to protect the
interest; or
(ii) leave an existing party subject to a substantial risk of incurring double,
multiple, or otherwise inconsistent obligations because of the interest.
Fed. R. Civ. P. 19(a)(1).
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II. 	ANALYSIS
The Court will first address the threshold issues of jurisdictional, venue, and joinder
raised by the Defendants and will then turn to whether each count of Howe’s complaint
can survive a motion to dismiss for failure to state a claim.
A. 	Threshold Issues
1. 	Personal Jurisdiction
The Court may only exercise personal jurisdiction over a nonresident like ETA to
the extent that the exercise is consistent with the U.S. Constitution’s Due Process Clause.
Here, the Court concludes that ETA established sufficient minimum contacts with
Minnesota such that the exercise of jurisdiction does not offend “traditional notions of
fair play and substantial justice.” Minn. Mining, 63 F.3d at 696–97.
To determine whether ETA’s contacts are sufficient, the Court must examine each
of the factors in the five-factor test established by the Eighth Circuit,3 noting that the first
three factors are of primary importance. Burlington Indus., 97 F.3d at 1102. The Court
finds that the factors weigh in favor of finding personal jurisdiction.
3 The five factors are “(1) the nature and quality of contacts with the forum state; (2) the
quantity of such contacts; (3) the relation of the cause of action to the contacts; (4) the interest
of the forum state in providing a forum for its residents; and (5) convenience of the parties.”
Burlington Indus., 97 F.3d at 1102.
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ETA recruited and hired Howe while she was a Minnesota resident, and she lived
in Minnesota while working for the organization.4 	It is well-established that where a
defendant “purposefully avails itself of the privilege of conducting activities within the
forum State, thus invoking the benefits and protections of its laws,” personal jurisdiction
is proper. 	Burger King, 471 U.S. at 475 (quoting Hanson v. Denckla, 357 US. 235, 253
(1958)). ETA’s hiring of Howe and continued employment of her in Minnesota provide a
large number of contacts with the forum state over a substantial period of time.
Specifically, ETA’s conduct and communications with Howe after her assault, which are
directly related to the causes of action in this case, took place while Howe was located in
Minnesota.
Moreover, Minnesota has a strong interest in providing a forum for its residents—
particularly in instances such as this where other forums would be inaccessible or
inconvenient to the plaintiff. See Digi-Tel Holdings, Inc. v. Proteq Telecomm. (PTE) Ltd.,
89 F.3d 519, 525 (8 th Cir. 1996) (“Minnesota has an obvious interest in providing a local
forum in which its residents may litigate claims against non-residents.”). And, finally, the
parties have not articulated why any other forum would be more convenient for ETA
while Minnesota is clearly more convenient for Howe.5
4 Even considering that ETA contracted with the LLC that it had directed Howe to form
instead of Howe directly, that LLC was Minnesota-based. (See Pl.’s Mem. at 20.)
5 At oral argument, counsel for Defendants noted that although ETA has offices in
Switzerland, only one officer lives in Switzerland.
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In short, ETA has sufficient contacts with Minnesota to support the Court’s exercise
of personal jurisdiction.6
2. 	Improper Venue or Forum Non Conveniens
In their Motion to Dismiss, Defendants indicated they were seeking dismissal for
“improper venue.” 	(Defs.’ Mot. Dismiss at 2, June 16, 2025, Docket No. 11.) 	In their
briefing, however, Defendants state that “ETA moves to dismiss this case under the
doctrine of forum non conveniens, since a foreign venue—Switzerland—is the most
convenient for this litigation.” 	(Defs.’ Mem. 	at 35.) 	The Court will decline to dismiss
under either ground.
Under 28 U.S.C. § 1391(a)(2), venue is proper in “a judicial district in which a
substantial part of the events or omissions giving rise to the claim occurred.” A plaintiff
need not show that Minnesota is the “best” venue, Setco Enters. Corp. v. Robbins, 19 F.3d
1278, 1281 (8 th Cir. 1994), nor must they demonstrate that Minnesota has the most
6 The Court further notes the contrast in ETA’s contacts with Minnesota in this case as
compared with the Defendants’ contacts with Ohio in Carbone v. Kaal, where the Sixth Circuit
affirmed dismissal of a case Carbone brought against these same Defendants for lack of personal
jurisdiction. 140 F.4th 805 (6 th Cir. 2025). In Carbone, Carbone’s sole argument supporting Ohio’s
exercise of personal jurisdiction was that Defendants “purposefully availed themselves of the
privilege of acting in Ohio by maintaining computer servers there—servers that Defendants used
to publish allegedly defamatory statements about Carbone.” Id. at 811. Nothing else connected
Defendants to Ohio, nor do they conduct any other business there. Id. Moreover, Defendants
did not even select Ohio as the location for the servers; their agents made that decision. Id. In
contrast, in the case presently before the Court, Defendants purposefully availed themselves of
the forum state in recruiting, hiring, and employing a citizen of Minnesota.
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substantial contacts to the dispute, Transocean Group Holdings Pty Ltd. v. S. Dakota
Soybean Processors, LLC, 505 F. Supp. 2d 573, 575 (D. Minn. 2007). 	Rather, the Court
must simply ask whether the district the plaintiff chose had a substantial connection to
the claims at issue, regardless of whether other forums have greater contacts. See Setco,
19 F.3d at 1281.
Because Howe did most of her work for ETA in Minnesota, reported her assault to
ETA while in Minnesota, and experienced the repercussions of ETA’s conduct while in
Minnesota, the Court considers that a substantial part of the events giving rise to the
claim occurred in Minnesota and venue is proper.
With respect to forum non conveniens, the Court is not convinced that a foreign
venue, specifically Switzerland, is the most convenient for this litigation. It is certainly not
more convenient for Howe—she lives in Minnesota, works in Minnesota, and chose
Minnesota as a venue when filing her suit. 	Kaal—an Illinois citizen and employee at a
Minnesota university—does not seem to have any substantial connection to Switzerland.
Nor, as noted above, is the Court convinced that Switzerland is more convenient for ETA
(except for its inconvenience for Howe). Although ETA is headquartered in Switzerland,
counsel for Defendants indicated that only one board member is actually located in
Switzerland.
With respect to Defendants’ argument that “the parties agreed to arbitrate their
dispute in Switzerland under Swiss law” (Defs.’ Mem. at 34), the Court notes that neither
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party has submitted evidence that Howe was party to an agreement requiring arbitration
or Swiss Law. Rather, Defendants submitted an agreement—that was not even discussed
in the Complaint—between ETA and HHowe Consulting, LLC (Defs.’ Mem at 1), an LLC set
up by Howe at ETA and Kaal’s direction (Pl.’s Mem. Opp. Mot. Dismiss (“Pl.’s Mem.”) at 3,
July 21, 2025, Docket No. 20). Defendants’ arguments regarding arbitration and choice
of law are based on evidence outside of the pleadings and many assumptions that may or
may not be correct. 	The Court finds that a more fully developed factual record is
necessary to properly engage in whether arbitration is required and that a choice-of-law
analysis would be premature at this time.
The Court concludes that venue is proper and the doctrine of forum non
conveniens does not require dismissal.
3. 	Service of Process
To survive a motion to dismiss for insufficient service, a plaintiff must plead
sufficient facts to support a reasonable inference that a defendant has been properly
served. 	Creative Calling Sols., 799 F.3d at 979. 	The Court finds that Howe has plead
sufficient facts to support an inference that ETA, a Swiss entity, was properly served by
serving Kaal, a member of the ETA Board, and service through the Hague convention was
not required.
In Volkswagenwerk Aktiengesellschaft v. Schlunk, the Supreme Court held that the
“Hague Service Convention” applies only when “the internal law of the forum state
defines the applicable method of serving process as requiring the transmittal of
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documents abroad.” 486 U.S. 694, 700 (1988). But, “[w]here service on a domestic agent
is valid and complete under both state law and the Due Process Clause, our inquiry ends
and the Convention has no further implications.” Id. at 707.
Minnesota Rule of Civil Procedure 4.03(c) permits service “[u]pon a domestic or
foreign corporation” through “an officer or managing agent, or to any other agent
authorized expressly or impliedly . . . to receive service of summons . . . .” Accordingly,
the parties seem to agree that this question turns on whether Kaal qualifies an “agent” of
ETA for the purposes of service under Minnesota law. Defendants admit that Kaal is “now
on the ETA Board” but argue that “Kaal is not an agent of ETA under Minnesota law.”
(Defs.’ Mem. at 36–37.)
Under Minnesota law, “the existence of an agency relationship is generally a
question of fact[.]” New Millennium Consulting, Inc. v. United HealthCare Services, Inc.,
695 F.3d 854, 857 (8 th Cir. 2012).
[T]wo significant factors have evolved in determining whether
a particular individual is a managing agent for service of
process: (1) does the individual have the power to exercise
independent 	judgment 	and 	discretion 	to 	promote 	the
business of the corporation; or (2) is the individual’s position
of sufficient rank or character to make it reasonably certain
the corporation would be apprised of the service.
Tullis v. Federated Mut. Ins. Co., 570 N.W.2d 309, 311 (Minn. 1997).
The Court concludes that, at this motion to dismiss stage, Howe has alleged
sufficient facts to support that Kaal was an agent for the purposes of service under
Minnesota law. Howe has identified numerous ways in which Kaal had “power to exercise
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independent judgment and discretion to promote the business of the corporation[.]” Id.
Indeed, Kaal was largely responsible for ETA hiring Howe in the first place. 	Moreover,
Howe has also pled facts that support that Kaal had “sufficient rank . . . to make it
reasonably certain the corporation would be apprised of the service,” id., including that
Kaal was a co-founder (Compl. ¶ 8) and board member of ETA (see id. ¶¶ 50, 171).
Accordingly, the Court concludes that at this stage, Howe has pled sufficient facts
to support a reasonable inference that ETA was properly served.
4. 	Joinder
A party seeking dismissal under Rule 12(b)(7) for failure to join a necessary party
must 	first 	demonstrate 	that 	the 	non-parties 	are 	“require[d]” 	under 	Rule 	19(a).
Defendants argue that they cannot “obtain complete relief” unless “HHLLC7, whose
contracts define the roles for Howe and ETA” is joined as a party. (Defs.’ Mem. at 40, 41.)
The Court disagrees. Defendants have not shown that HHLLC is a required party, nor have
they articulated what relief they are seeking or why they would be unable to obtain it if
HHLLC Is not joined.
Further, Rule 12(b)(7) and Rule 19 only contemplate dismissal of an action when a
party that is required cannot be joined to the litigation and failure to join the party would
7 Defendants use HHLLC as an abbreviation for HHowe Consulting, LLC (Defs.’ Mem at 1),
an LLC set up by Howe at ETA and Kaal’s direction so that ETA could pay her as a contractor rather
than an employee (Pl.’s Mem. at 3, July 21, 2025, Docket No. 20).
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result in prejudice.8 	Even if Defendants had clearly articulated why HHLLC should be
joined to the litigation, Defendants fail to clearly articulate why HHLLC could not be joined
to this litigation or why this lawsuit should be dismissed if HHLLC could not be joined to
this litigation.
At best, Defendants’ motion to dismiss under Rule 12(b)(7) is premature and will
be denied.9
B. 	Howe’s Claims
Defendants seek dismissal of all counts of Howe’s complaint for failure to state a
claim. Defendants move to dismiss Howe’s tort claims (Counts I, V, VI, VII, VIII, and IX)
under 	the 	exclusivity 	provisions 	of 	the 	Minnesota 	Workers’ 	Compensation 	Act.
Defendants 	also 	move 	to 	dismiss 	Howe’s 	claims 	for 	Reprisal 	and 	Hostile 	Work
Environment under the Minnesota Human Rights Act (Counts II and III) and Howe’s
Invasion of Privacy Claim (Count IX) as barred by the relevant statutes of limitations. The
Court will first address Howe’s tort claims and then will address her remaining claims.
8 See, e.g., McGowan v. Tix, 161 F.4th 1118, 1129 (8 th Cir. 2025) (“If a required party under
Rule 19(a) cannot be joined, Rule 19(b) calls upon courts to determine ‘whether in equity and
good conscience, the action should proceed among the existing parties or should be dismissed’
based on several factors, including the extent to which a judgment would result in prejudice and
provide adequate relief.”)
9 Viewed more cynically, Defendants’ motion under 12(b)(7) appears to be an excuse for
Defendants to attempt bring in facts and evidence outside of the Complaint which are not
relevant at this motion to dismiss stage, including the existence of the LLC created by Howe.
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1. 	Tort Claims
The Court will first consider whether Minnesota’s Workers’ Compensation Act bars
the Court from considering Howe’s tort claims. 	The Court will then consider whether
Howe’s tort claims have facial plausibility.
a. 	Minnesota Workers’ Compensation Act
Minnesota’s Workers’ Compensation Act was created to ensure prompt and
certain compensation for injuries suffered in the workplace. Minn. Stat. § 176.001 (1994).
“If an employee suffers a personal injury or death arising out of and in the course of her
employment, the Act provides the employee’s exclusive remedy.” 	McGowan v. Our
Savior's Lutheran Church, 527 N.W.2d 830, 834 (Minn. 1995) (citing Minn. Stat. § 176.031
(1994). If the Act provides the employee’s exclusive remedy, the Court lacks jurisdiction.
Id.
Certain injuries, however, are excluded from coverage under the Act by Minn. Stat.
§ 176.011, subd. 16, commonly referred to as the “assault exception” to the Act. 	See
McGowan, 527 N.W.2d. at 831. Specifically excluded from coverage are injuries “caused
by the act of a third person or fellow employee intended to injure the employee because
of personal reasons, and not directed against the employee as an employee, or because
of the employment.” Minn. Stat. § 176.011, subd. 16.
Assault cases generally fall into three categories:
(1) those that are noncompensable under the Act because the
assailant was motivated by personal animosity toward his
victim, arising from circumstances wholly unconnected with
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the employment; (2) those that are compensable under the
Act because the provocation or motivation for the assault
arises solely out of the activity of the victim as an employee;
and (3) those that are compensable under the Act because
they are neither directed against the victim as an employee
nor for reasons personal to the employee.
McGowan, 527 N.W.2d at 834 (citing Hanson v. Robitshek–Schneider Co., 209 Minn. 596,
600, 297 N.W. 19, 22 (1941)). For the assault exception to apply, “the acts must not be
directed against the employee as an employee. Or, as articulated in McGowan, the acts
must be ‘wholly unconnected’ to the employment.” 	Stengel v. E. Side Beverage, 690
N.W.2d 380, 386 (Minn. Ct. App. 2004) (citing McGowan, 527 N.W.2d at 834). 	The
“‘wholly unconnected’ standard is in turn a function of analyzing the nature of the
employee’s job.” Id.
Construing the complaint in the light most favorable to Howe, the Court notes that
the assault occurred outside of formal work hours and location, and it is unknown on the
available facts whether the assault was motivated by personal animosity. 	See Kopet v.
Gen. Mills, Inc., No. A04-1708, 2005 WL 1021651. At *4 (Minn. Ct. App. May 3, 2005)
(affirming denial of summary judgment when there was a genuine issue of material fact
whether the assailant’s alleged acts were directed against the victim for personal reasons
unconnected to employment). The Court declines to determine at this stage that Howe’s
assault was or was not “wholly unconnected” to her employment—a determination
which, as the Stengel court noted, requires analyzing “the nature of the employee’s job,”
690 N.W.2d at 386, a fact-intensive inquiry beyond the scope of a motion to dismiss.
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In sum, the Court declines to finally resolve whether the assault exception to the
Workers’ Compensation Act applies, but it will allow certain of Howe’s tort claims to
proceed, as further outlined below.
b. 	Count I: Negligent Hiring, Supervision, and Retention
Defendants move to dismiss Count I because Howe has failed to state a claim for
Negligent Hiring, Retention, and Supervision against ETA or Kaal. The Court will grant the
motion in part (with respect to Howe’s claim of negligent hiring) and deny it in part (with
respect to Howe’s claim of negligent supervision and retention).
“The basic elements of a negligence claim are: (1) existence of a duty of care; (2)
breach of that duty; (3) proximate causation; and (4) injury.” 	Bjerke v. Johnson, 742
N.W.2d 660, 664 (Minn. 2007). 	Minnesota recognizes the torts of negligent hiring,
retention, and supervision. 	Ponticas v. K.M.S. Invs., 331 N.W.2d 907, 910–11 (Minn.
1983).
The torts of negligent hiring and retention are derived from an employer’s duty to
“exercise reasonable care for the safety of members of the general public[.]” Ponticas,
331 N.W.2d at 911. 	Employers must “exercise reasonable care in view of all the
circumstances in hiring individuals who, because of the employment, may pose a threat
of injury to members of the public.” Id. Liability for negligent retention or hiring is
predicated on the negligence of an employer in placing a
person with known propensities, or propensities which should
have been discovered by reasonable investigation, in an
employment position in which, because of the circumstances
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of the employment, it should have been foreseeable that the
hired individual posed a threat of injury to others.
Id. An essential element of negligent hiring or retention claims is a sufficient “connection
between the employment relationship and the plaintiff,” such that the “plaintiff comes in
contact with the employee as the direct result of the employment, and . . . the employer
receives some benefit . . . by the contact[.]” Id. The tort of negligent supervision is similar;
a plaintiff must show that: “(1) the employee’s conduct was foreseeable; and (2) the
employer failed to exercise ordinary care when supervising the employee.” C.B. by L.B. v.
Evangelical Lutheran Church in Am., 726 N.W.2d 127, 136 (Minn. App. 2007) (quotation
marks omitted).
Defendants argue that Count I should be dismissed because Carbone was not an
employee of ETA, and therefore ETA cannot be held liable for his intentional torts.
Defendants further argue that even if Carbone was an employee, Howe did not plead any
facts that “suggest Defendants had any knowledge of a risk posed by Carbone,” and
therefore Howe did not sufficiently plead that they breached a duty of care. (Defs.’ Mem.
11.)
As an initial matter, the Court will reject Defendants’ contention that because
Carbone was not an employee of ETA, ETA cannot be held liable for his intentional torts.
The Minnesota Supreme Court has described, “the law will impose a duty on A to protect
B from C’s criminal acts if there is a special relationship between A and B. 	In such a
relationship, B has in some way entrusted his or her safety to A and A has accepted that
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entrustment.” State v. Back, 775 N.W.2d 866, 870 (Minn. 2009) (internal quotation marks
and citation omitted). Under the doctrine of respondeat superior, from which the torts
of negligent hiring, retention, and supervision arise, a duty of care arises not from the
formation of a traditional employee/employer relationship, but from the common-law
standard that “[a] person conducting an activity through servants or other agents is
subject to liability for harm resulting from his conduct if he is negligent or reckless.”
Restatement (Second) Agency § 213 (1958). Although it is possible that Defendants will
ultimately prove such a master/servant relationship did not exist here, the Court finds
that Howe’s Complaint plausibly alleges that such a relationship did exist such that it gave
rise to vicarious liability for Carbone’s intentional torts.
With respect to Defendants’ contention that they did not breach their duty of care
in hiring, retaining, or supervising Carbone, the Court finds that Howe has sufficiently
alleged claims of negligent retention and supervision, but Howe did not plead facts to
support her claim of negligent hiring.
Considering all facts alleged in the Complaint as true, the Complaint plausibly
alleges 	that 	Kaal 	and 	ETA 	knew 	of 	the 	potential 	that 	Carbone 	would 	behave
inappropriately and be a danger to others, particularly women, and that they acted
negligently in retaining Carbone and failing to exercise sufficient supervision, particularly
in the unique setting of the Puerto Rico trip but in the weeks following the trip as well.
Specifically, the Complaint alleged that at the time of the flight back from Puerto Rico,
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Kaal already “knew or suspected that Carbone had behaved inappropriately” (Compl.
¶ 84); that Carbone had posted intimate photos of another woman without her
permission prior to the trip (id. ¶ 82); and that Kaal was already in the process of trying
to remove Carbone prior to the trip (id. ¶ 86). 	Thus, the Court will deny Defendants’
motion to dismiss with respect to Howe’s claim of negligent supervision and retention.
Howe does not, however, allege any facts that would support a claim that
Defendants acted negligently in hiring Carbone in the first instance. 	The Court will,
therefore, grant Defendants’ motion to dismiss with respect to Howe’s claim of negligent
hiring.
c. 	Negligent or Intentional Infliction of Emotional Distress
Defendants ask the Court to dismiss Howe’s claims for negligent and intentional
infliction of emotional distress (Counts V and VI, respectively). 	The Court will grant
Defendants’ motion with respect to these claims because, as further explained below,
Howe does not adequately allege the elements of these torts.
i. 	Count V: Intentional Infliction of Emotional Distress
Minnesota recognizes the tort of intentional infliction of emotional distress
(“IIED”) as defined in the Restatement (Second) of Torts. 	Langeslag v. KYMN Inc., 664
N.W.2d 860, 864 (Minn. 2003) (citing Restatement (Second) of Torts § 46(1) (1965)). IIED
consists of four elements: (1) the conduct must be extreme and outrageous; (2) the
conduct must be intentional or reckless; (3) it must cause emotional distress; and (4) the
distress must be severe. 	Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 438–39
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(Minn. 1983); see also Restatement (Second) of Torts § 46(1) (1965). 	The Minnesota
Supreme Court has “cautioned” that IIED claims must be “sharply limited to cases
involving particularly egregious facts and that a high threshold standard of proof is
required to submit the claim to a jury.” Langeslag, 664 N.W.2d at 864 (internal quotation
marks omitted).
“Extreme and outrageous” conduct must be “so atrocious that it passes the
boundaries of decency and is utterly intolerable to the civilized community.” 	Hubbard,
330 N.W.2d at 439. 	“Emotional distress” is “severe,” for the purposes of prongs three
and four if “the distress inflicted is so severe that no reasonable [person] could be
expected to endure it.” Id. (quoting Restatement (Second) of Torts § 46, comment j).
Considering all facts alleged in the Complaint as true, Kaal and ETA’s conduct in
response to Howe’s report of sexual assault was outrageous. 	Howe was not awarded
confidentiality, even when she was told to expect it. (See Compl. ¶¶ 88, 89, 100–102.)
Howe was expected to continue to interact with Carbone even after reporting his
misconduct. (Id. ¶ 103.) 	Howe’s allegations and Carbone’s conduct were discussed by
more than 30 voting associates of DEVxDAO and associates of ETA on a group chat of
which Howe was a member (id. ¶¶ 104, 109) and in numerous calls among individuals
Howe considered colleagues. 	(id. ¶ 110). 	Moreover, a sophisticated, multi-national
business organization failed to have sexual harassment policies, training, or reporting
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mechanisms in place (see id. ¶ 100), resulting in all voting associates of DEVxDAO being
informed that “Howe was the victim” (id. ¶ 132).
However, Howe did not adequately allege that her emotional distress in response
to these events was severe. “Just as the plaintiff must meet a high threshold of proof in
proving the extreme nature of the conduct, the plaintiff must also meet a high threshold
of proof regarding the severity of the mental distress.” 	Langeslag v. KYMN Inc., 664
N.W.2d 860, 868 (Minn. 2003). While Howe alleged that she had “anxiety attacks every
time she had to have a call” with Carbone during August and September (id. ¶ 90), Howe
does not allege what emotional distress she suffered (or if there were any physical effects)
after she reported the assault at the end of September. Thus, while the Court finds that
Kaal and ETA’s conduct in response to Howe’s report of sexual assault was outrageous,
Howe did not allege what emotional distress she suffered as a result of this specific
conduct or if that distress was severe. 	Accordingly, the Court will grant Defendants’
motion to dismiss with respect to Howe’s claim for intentional infliction of emotional
distress.
ii. 	Count VI: Negligent Infliction of Emotional Distress
“To establish a claim for negligent infliction of emotional distress, a plaintiff must
show that she was within a zone of danger of physical impact, reasonably feared for her
safety, 	and 	suffered 	severe 	emotional 	distress 	with 	accompanying 	physical
manifestations.” 	Wall v. Fairview Hosp. and Healthcare Servs., 584 N.W.2d 395, 408
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(Minn. 1998). 	The “zone of danger is limited to actual physical danger caused by the
defendant’s negligence.” 	Id. 	Negligent infliction of emotional distress claims, in other
words, involve “a plaintiff . . . experience[ing] a reasonable anxiety, with physical
symptoms, ‘from being in a situation where it was abundantly clear that plaintiff was in
grave personal peril for some specifically defined period of time. . . .’” Id. (quoting K.A.C.
v. Benson, 527 N.W.2d 553, 558 (Minn. 1995)).
Howe alleges that she was “in the zone of danger of physical impact when she was
subjected to Carbone’s sexual assault on a work trip for ETA in Puerto Rico.” 	(Compl.
¶ 218.) 	But an essential element of a negligent infliction of emotional distress claim is
that “[f]ortune smiled and the imminent calamity did not occur.” 	Wall, 584 N.W.2d at
395 (quoting K.A.C. v. Benson, 527 N.W.2d 553, 558 (Minn. 1995)). “A plaintiff is in a zone
of danger when physical harm might occur, but fortunately does not.” Id. Howe does not
allege that she “merely in a zone of danger” with Carbone; she alleges that “she was in
fact physically harmed by his abuse.” Id. (holding a psychiatric nurse’s recurrent failure
to prevent a psychiatrist’s abuse of patient would not support patient’s claim for negligent
infliction of emotional distress because patient was not merely in a zone of danger with
psychiatrist but was in fact physically harmed by his abuse). A claim of negligent infliction
of emotional distress is, therefore, an ill fit for the facts of this case.
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Because Howe has not pled facts sufficient to support a claim of negligent infliction
of emotional distress by ETA or Kaal, the Court will grant Defendants’ motion to dismiss
her claim for negligent infliction of emotional distress.
d. 	Count VII: Negligent Performance of an Undertaking
Defendants move to dismiss Howe’s claim of negligent performance of an
undertaking. Howe alleges that ETA and Kaal undertook the responsibility of investigating
Howe’s report of sexual assault, and breached Howe’s privacy by negligently spreading
confidential information. (Compl. ¶¶ 224–230.) The Court will grant Defendants’ motion
because Howe does not adequately allege the elements of a negligent performance of an
undertaking claim.
The Minnesota Supreme Court has recognized that tort liability for negligent
performance of an undertaking arises when:
One who gratuitously undertakes with another to do an act or
to render services which he should recognize as necessary to
the other’s bodily safety and thereby leads the other in
reasonable 	reliance 	upon 	the 	performance 	of 	such
undertaking
(a) to refrain from himself taking the necessary steps to secure
his safety or from securing the then available protective
action by third persons, or
(b) to enter upon a course of conduct which is dangerous
unless the undertaking is carried out, is subject to liability to
the other for bodily harm resulting from the actor’s failure to
exercise reasonable care to carry out his undertaking.
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Abresch v. Northwestern Bell Tel. Co., 75 N.W.2d 206, 210–11 (Minn. 1956) (internal
quotation marks omitted) (quoting Restatement, Torts, § 325).10 The court stated that
this rule applies to “bodily injury . . . as well [as] to property damage.” Id.
Howe alleges that Defendants’ botched investigation of the sexual assault gives
rise to a negligent performance of an undertaking claim; but she does not allege that the
investigation, regardless of whether it was mishandled, lead her to suffer additional
bodily injury or harm. Because Howe’s does not adequately allege the elements of this
tort claim, the Court will grant Defendants’ motion to dismiss Howe’s negligent
performance of an undertaking claim.
e. 	Count VIII: Tortious Interference
Defendants move to dismiss Howe’s tortious interference claim against Kaal,
primarily arguing that Howe has pled her claim “more as negligence on Kaal’s part” and
contending that Minnesota does not recognize the tort of negligent interference with
prospective economic advantage.11 (Defs.’ Mem. at 15.) The Court disagrees.
10 “[S]ince its decision in Abresch, the [Minnesota] supreme court has adopted the
Restatement (Second) of Torts § 324A and has applied all three bases of liability contained in
section 324A when addressing liability to a third party after an assumption of a duty. Ironwood
Springs Christian Ranch, Inc. v. Walk to Emmaus, 801 N.W.2d 193, 199 (Minn. Ct. App. 2011). But
§ 324A, like § 325, also requires resulting “physical harm.” Restatement (Second) of Torts § 324A.
11 Defendants also argue that “because one cannot interfere with its own contract, an
employer cannot be sued for tortious interference by its former employee.” (Defs.’ Mem. at 15.)
But, as Howe does not assert a claim of tortious interference against ETA, this argument is
inapposite.
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Howe’s interference claim falls under the umbrella of “tortious interference with
prospective economic advantage.” 	Gieseke ex rel. Diversified Water Diversion, Inc. v.
IDCA. Inc., 844 N.W.2d 210, 219 (Minn. 2014). This claim can arise from “the wrongful
interference with noncontractual as well as contractual business relationships.” 	Witte
Transp. Co. v. Murphy Motor Freight Lines, Inc., 193 N.W.2d 148, 151 (Minn. 1971). These
claims “must be limited to those circumstances in which the interference is intentional
and independently tortious or unlawful, rather than merely unfair.” Gieseke, 844 N.W.2d
at 218. 	Under Minnesota law, plaintiffs must prove five elements to prevail on an
interference with prospective economic advantage claim: (1) the plaintiff possessed “a
reasonable expectation of economic advantage;” (2) the Defendant knew of that
expectation; (3) the defendant “intentionally interfered with plaintiff's reasonable
expectation of economic advantage,” in a manner that “is either independently tortious”
or is unlawful under statute or regulation; (4) “it is reasonably probable that plaintiff
would have realized” her economic advantage absent Defendant’s interference; and (5)
“plaintiff sustained damages.” Id.
The Court finds that Howe’s complaint plausibly alleges each of these elements,
including that Kaal interfered with Howe’s noncontractual prospective economic business
relationships, including her relationship with ETA. 	The Court will, therefore, deny
Defendants’ motion to dismiss Howe’s tortious interference claim.
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f. 	Invasion of Privacy (Count IX)
Defendants move to dismiss Howe’s claim against Kaal and ETA for invasion of
privacy. 	The Court will grant Defendants’ motion with respect to this claim because
Howe’s Complaint fails to sufficiently allege each element of this tort.
Howe’s invasion-of-privacy claim is for the tort of “publication of private facts,”
which occurs when someone “gives publicity to a matter concerning the private life of
another . . . if the matter publicized is of a kind that (a) would be highly offensive to a
reasonable person, and (b) is not of legitimate concern to the public.” Lake v. Wal-Mart
Stores, Inc., 582 N.W.2d 231, 233 (Minn. 1998) (quoting Restatement (Second) of Torts,
§ 652B (1977)).
Defendants inaccurately assert that Howe failed to allege that her private
information was shared outside the DEVxDAO. Howe’s Complaint does allege that at least
some information was “disseminated to members of the public outside of ETA and
DEVxDAO.” (Compl. ¶ 240; see also id. ¶ 112.) What Howe does not allege, however, is
that the information shared was “of a kind that . . . would be highly offensive to a
reasonable person.” 	Lake, 582 N.W.2d at 233. 	Indeed, Howe does not allege what
information was shared outside of ETA and DEVxDAO. 	(See Compl. ¶ 112 (stating that
Aniballi entered a Telegram chat that stated “[t]his has escaped the DAO and is now
public” but not further defining what information had been made public).) 	Nor does
Howe allege how many people outside of DEVxDAO voting associates were aware of the
(undefined) private facts. 	Cf. Robbinsdale Clinic, P.A. v. Pro-Life Action Ministries, 515
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N.W.2d 88, 92 (Minn. Ct. App. 1994) (“[E]ven where invasion of privacy claims are
recognized, they are generally not allowed where private facts are only communicated to
a single person or a small group of people[.]”).
The Court will, therefore, grant Defendants’ motion to dismiss Howe’s invasion of
privacy claim.12
* 	* 	*
In conclusion, the Court finds that the Minnesota’s Workers’ Compensation Act
does not bar the Court from considering Howe’s tort claims at this stage. 	However,
because Howe has failed to adequately plead all of her tort claims, the Court will allow
only Howe’s negligent supervision and retention claim and her tortious interference claim
to proceed.
2. 	Minnesota Human Rights Act Claims
The Court will next consider Howe’s claims against Kaal and ETA of reprisal13 and
hostile work environment14 under the Minnesota Human Rights Act (MHRA). Defendants
argue that because (1) Howe was an independent contractor, not an employee, she
12 Defendants also request that the Court dismiss Howes’ invasion of privacy claim
because it is time-barred. The parties, however, disagree on whether a two-year or six-year
statute of limitations applies to the tort of invasion of privacy. Because the Court will dismiss this
claim on other grounds, it will decline to opine on the applicable statute of limitations.
13 See Minn. Stat. § 363A.15.
14 See Minn. Stat. § 363A.08.
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cannot claim protection of the MHRA; (2) if the MHRA was applicable, Howe’s claims
would be barred by the statute of limitations; and (3) in any event, Howe has not suffered
an adverse employment action. The Court will address each argument in turn below.
a. 	Independent Contractor
Defendants submitted 	a 	copy 	of 	an 	agreement 	between 	ETA 	and 	HHowe
Consulting, LLC that, they argue, proves Howe was a contractor, not an employee. (See
Defs.’ Mem at 1, 18.) 	But, at the motion to dismiss stage, the Court accepts the
Complaint’s factual allegations as true and construes the complaint in a light most
favorable to the plaintiff, and Howe clearly alleged that she was an “employee of ETA and
DEVxDAO” (Compl. ¶ 160) and she was “misclassified as an independent contractor for
ETA when she was in actuality an employee given ETA’s control over Plaintiff’s means and
manner of performance” (id. ¶¶ 158, 184, 197, 205). Although Howe may be found to be
an independent contractor at a later stage of this proceeding, the Court will accept as true
at this stage that Howe was an employee of ETA and, thus, could claim the protections of
the MHRA.
b. 	Statute of Limitations
Defendants also move to dismiss Howe’s reprisal and hostile work environment
claims under the MHRA because they are barred by a one-year statute of limitations. See
Minn. Stat. § 363A.28, subd. 3(a) (“A claim of an unfair discriminatory practice must be
brought as a civil action . . . within one year after the occurrence of the practice.”). Howe
counters that her claims are timely under the MHRA because of the continuing violations
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doctrine. See, e.g., Sigurdson v. Isanti Cnty., 448 N.W.2d 62, 66 (Minn. 1989); Brotherhood
of Ry. & S. S. Clerks, Freight Handlers, Exp. & Station Emp., Lodge 364 v. State by Balfour,
229 N.W.2d 3, 12 (Minn. 1975).
i. 	Count II: Reprisal
Howe alleges that Kaal and ETA engaged in reprisal by assigning Howe to a “lesser
position in terms of wages, hours, and job security.” (Compl. ¶ 176.) Defendants argue
that this claim should be dismissed because it is barred by the one-year statute of
limitations. To survive at this motion to dismiss stage, Howe must allege that the reprisal
occurred within one year of filing her complaint.
In the Complaint, Howe states that her most recent paycheck from ETA was
received in January 2025 and that it was less than $200 (Compl. ¶ 179) while, before her
report of assault, she had made EUR 8,000 per month (id. ¶ 49). Although Howe’s duties
and hours changed dramatically in the two years prior to her filing her Complaint, those
changes—as well as the changes in pay—could be a reprisal. See Minn. Stat. § 363A.15
(“It is an unfair discriminatory practice for any individual who participated in the alleged
discrimination as a perpetrator, employer, . . . or employee or agent thereof to
intentionally engage in any reprisal against any person[.] . . . It is a reprisal for an employer
to . . . transfer or assign the individual to a lesser position in terms of wages, hours, job
classification, job security, or other employment status . . . . ”).
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Because Howe received her last paycheck in January 2026, her reprisal claim is
sufficiently pled within one year of filing of her complaint. Thus, the Court finds at this
motion-to-dismiss stage, Howe has adequately alleged a continuing violation such that
the statute of limitations does not bar her reprisal claim.
ii. 	Count III: Hostile Work Environment
Defendants also move to dismiss Howe’s hostile work environment claim under
the MHRA because it is barred by the one-year statute of limitations.
A plaintiff bringing a hostile work environment claim under the MHRA must show:
“(1) they are a member of a group that has protected status under the [MHRA]; (2) they
were subject to unwelcome harassment; (3) the harassment was based on their
membership in a protected group; and (4) the harassment affected a term, condition, or
privilege of their employment.” Henry v. Ind. Sch. Dist. #265, 988 N.W.2d 868, 881 (Minn.
2023). Howe alleges the following facts: she is female (Compl. ¶ 185), a protected class
under the MHRA; she was sexually assaulted because of her sex (id. ¶ 188); “the sexual
assault . . . was sufficiently severe or persuasive that a reasonable person in [Howe’s]
position would find the work environment to be intimidating, hostile, and offensive” (id.
¶ 189); and ETA “fail[ed] to take prompt and appropriate action to correct the behavior”
(id. ¶ 191).
Although Howe alleges in her Complaint that “Defendants’ actions are part of a
continuing violation of the Minnesota Human Rights Act, as their retaliatory conduct
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continues to this very day” (id. ¶ 192), the Complaint does not identify what “retaliatory
conduct” or ongoing violations she is suffering because she is female. See Papasan, 478
U.S. at 286 (noting that the Court is “not bound to accept as true a legal conclusion
couched as a factual allegation”). 	Thus, the Court finds that Howe has not adequately
alleged a continuing violation with respect to her hostile work environment claim, and
the statute of limitations bars this claim.
c. 	Adverse Employment Action
Finally, Defendants argue that Howe’s claims under the MHRA should be dismissed
because Howe has not suffered an adverse employment action.
“Under the MHRA, to establish a prima facie case for a reprisal claim, a plaintiff . . .
must 	establish 	the 	following 	elements: 	‘(1) 	statutorily-protected 	conduct 	by 	the
employee; (2) adverse employment action by the employer; and (3) a causal connection
between the two.’” Bahr v. Capella Univ., 788 N.W.2d 76, 81 (Minn. 2010). “An adverse
employment action must include some tangible change in duties or working conditions.”
Id. at 83.
Howe pled numerous changes in her duties and working conditions after she
reported being sexually assaulted including a change in work responsibilities, a change in
pay, an alteration in her expectations for promotion, and changes in how she was treated
by her colleagues. 	In short, she has adequately pled conduct sufficient to support an
adverse employment action at the motion-to-dismiss stage.
* 	* 	*
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Because Howe has not adequately alleged a continuing violation and the statute
of limitations bars her hostile work environment claim under the MHRA, the Court will
grant Defendants’ motion to dismiss this claim. The Court will, however, allow Howe’s
reprisal claim under the MHRA to proceed.
3. 	Count IV: Minnesota Whistleblower Act Claim
Minnesota’s whistleblower statue provides that an employer shall not “discharge,
discipline, penalize, interfere with, threaten, restrain, coerce, or otherwise retaliate or
discriminate against an employee,” because the employee, “in good faith, reports a
violation, suspected violation, or planned violation of any federal or state law or common
law or rule . . . to an employer[.]” Minn. Stat. § 181.932, subd. 1; Kidwell v. Sybaritic, Inc.,
784 N.W.2d 220, 226 (Minn. 2010).
As with Howe’s claims under the MHRA, Defendants argue that Howe was a
contractor, not an employee and that Howe suffered no adverse employment action by
either Kaal or ETA.
First, as noted above, although Howe may be found to be an independent
contractor at a later stage of this proceeding, the Court finds that Howe has pled facts
sufficient to plausibly allege that she was an employee of ETA, and thus could claim the
protections of the Minnesota Whistleblower Act.
Second, as discussed above with respect to Howe’s claims under the MHRA, the
Court finds that Howe has alleged facts sufficient to plausibly allege an adverse
employment action in violation of the Whistleblower statue.
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Because the Court concludes that Howe’s Complaint alleges a plausible claim for
violations of whistleblower protections, the Court will deny Defendants’ motion to
dismiss this count.
4. 	Counts X and XI: Equal Pay Claims
Howe brings equal pay claims against ETA under federal and state law. The Court
will deny ETA’s motions to dismiss these counts because Howe has sufficient alleged
discrimination in her Complaint.
Under the Federal Equal Pay Act, a “prima facie case of discrimination based upon
unequal pay . . . must show that [the employer] paid male workers more than [the
plaintiff] was paid for equal work in jobs that required equal skill, effort, and responsibility
and were performed under similar conditions.” McLaughlin v. Esselte Pendaflex Corp., 50
F.3d 507, 513 (8 th Cir. 1995).
Similarly, Minnesota statute provides that:
No employer shall discriminate between employees on the
basis of sex by paying wages to employees at a rate less than
the rate the employer pays to employees of the opposite sex
for equal work on jobs the performance of which requires
equal skill, effort, and responsibility, and which are performed
under similar working conditions, except where such payment
is made pursuant to a seniority system, a merit system, a
system which measures earnings by quantity or quality of
production, or a differential based on any other factor other
than sex.
Minn. Stat. § 181.67, subd. 1. The “[Minnesota Equal Pay Act] does not require plaintiffs
to prove that an employer acted with discriminatory intent; plaintiffs need show only that
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an employer pays males more than females.” Ewald v. Royal Norwegian Embassy, 82 F.
Supp. 3d 871 (D. Minn. 2014) (quoting Bauer v. Curators of the Univ. of Mo., 680 F.3d
1043, 1045 (8 th Cir. 2012) (internal quotation marks omitted)).
Howe alleges that that the previous, male Director of Legal Compliance was paid
significantly more than her. 	Yet Defendants state that the “Complaint provides no
information as to whether . . . [they were] a contractor like Howe, the person’s credentials
or experience, or even the duties this person supposedly performed.” 	(Defs.’ Mem. at
22.) Defendants also state that Howe erroneously compares her pay to individuals with
positions that are not substantially similar to her own. 	See Buettner v. Arch Coal Sales
Co., 216 F.3d 707, 719 (8 th Cir. 2000) (“[T]o establish a prima facie case of wage
discrimination based on unequal pay, a plaintiff must show that the defendant paid male
workers more than she was paid for equal work in jobs that required equal skill, effort,
and responsibility and were performed under similar conditions.”)
Nevertheless, the Court finds that Howe’s allegations meet the required threshold
to bring an unequal pay claim at this stage. Howe alleges a EUR 16,000 difference in pay
between herself and her male predecessor, and whether the two jobs required equal skill
and whether Howe’s credentials or experience were different will require discovery and
further development of the facts. The Court will, therefore, deny Defendants’ motion to
dismiss Howe’s equal pay and equal work act claims.
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CONCLUSION
The Court will grant in part and deny in part Defendants’ motion to dismiss Howe’s
Complaint against Wulf Kaal and ETA. Because the Court finds that jurisdiction is proper,
it will not dismiss the Complaint in full. 	The Court will dismiss several counts without
prejudice because Howe has failed to state a claim or the underlying claims is barred by
the relevant statute of limitations. While several other counts may proceed, the Court
cautions all parties against citing or alluding to additional facts and documents beyond
the scope of the record, as both sides have done at this stage.15
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Defendants’ Motion to Dismiss [Docket No. 11] is GRANTED in
part and DENIED in part, as follows:
1. 	GRANTED in part and DENIED in part, with respect to Count I—Negligent
Hiring, Retention, and Supervision:
a. 	GRANTED with respect to Negligent Hiring;
b. 	DENIED with respect to Negligent Retention and Supervision;
2. 	DENIED with respect to Count II—Reprisal under the Minnesota Human
Rights Act;
15 When submitting any future motions, the parties—particularly Defendants—are
reminded of the importance of the meet and confer requirement under Local Rule 7.1(a).
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3. 	GRANTED with respect to Count III—Hostile Work Environment under the
Minnesota Human Rights Act;
4. 	DENIED with respect to Count IV—Whistleblower Protection under the
Minnesota Whistleblower Act;
5. 	GRANTED with respect to Count V—Intentional Infliction of Emotional
Distress;
6. 	GRANTED with respect to Count VI—Negligent Infliction of Emotional
Distress;
7. 	GRANTED 	with 	respect 	to 	Count 	VII—Negligent 	Performance 	of 	an
Undertaking;
8. 	DENIED with respect to Count VIII—Tortious Interference;
9. 	GRANTED with respect to Count IX—Invasion of Privacy;
10. 	DENIED with respect to Count X—Violations of the Federal Equal Pay Act;
11. 	DENIED with respect to Count XI— Violations of the Minnesota Equal Pay for
Equal Work Act.
DATED: March 10. 2026 	_____/s/ John R. Tunheim ____
at Minneapolis, Minnesota. 	JOHN R. TUNHEIM
United States District Judge
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