Hodges v. South Dakota School of Mines and Technology

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
TASHA HODGES, CIV.5:22-5011-LLP
Plaintiff,
vs. MEMORANDUM OPINION AND ORDER
GRANTING IN PART MOTION TO
SOUTH DAKOTA SCHOOL OF MINES AND AMEND,DENYING IN PART MOTION
TECHNOLOGY, FOR JUDGMENT ON THE PLEADINGS
AND ORDERING ADDITIONAL
Defendant. BRIEFING
Pending before the Court is Defendant South Dakota School of Mines and Technology's
("School ofMines")Motion for Judgment on the Pleadings,(Doc. II), and PlaintiffTasha Hodges'
("Ms. Hodges") Motion to Amend,(Doe. 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 Plaintiffs 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 Plaintiffs 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, T| 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, If 6). She worked
full time in this position from March 22, 2020 until she was allegedly wrongfully terminated on
June 19, 2020. (Doc. 1, Tf 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 ofher supervisors, and terminated her in violation ofTitle
VII ofthe Civil Rights Act of 1964("Title VII"), as amended,42 U.S.C. §§ 2000e-2(a)and 2000e-
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3(a), and in violation of Title IX ofthe Education Act as amended,20 U.S.C. § 1681,etseq. (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 Vll, 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 diserimination 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. 1,15). 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. 8,13). 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 ofits motion,the School ofMines 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.
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(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 ofRegents. (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 attomey 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 ofprocess, 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 oflaw 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 ofthe Board ofRegents, care ofthe Attomey 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 ofProcess.
(Doc. 16). The Govemor and the Attomey 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
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A timely^ 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 ofthe amendment. Moses,com Sees.,
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" ifit could not withstand a Rule 12(b)(6) motion
to dismiss. Cornelia I Crosswell GST Trust v. Possis Med., Inc., 519 F.3d 778, 782 (8th Cir.
2008);In re Senior Cottages ofAm., 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 complaint^ 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 ofthe 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 vmquestioned." Miller v. Redwood
^ Plaintiff's Motion to Amend complaint is timely as it was filed May 27, 2022 and the Court has not yet
entered a Rule 16 Scheduling Order.
^ Statutes of limitation provide an affirmative defense that may be either asserted or waived, and if asserted,
must be proved by the defendant. Jessie v. Potter, 516 F.3d 709, 713 n.2 (8th Cir. 2008) ("Bar by a statute of
limitation is typically an affirmative defense, which the defendant must plead and prove."); Fed. R. Civ. P. 12(h)(1).
Thus, as a general rule, a plaintiff has no duty to anticipate affirmative defenses and is thus not ordinarily required
to plead avoidance of a limitation bar. See Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 601 n.lO (8th Cir. 2009)
("[A] plaintiff need not plead facts responsive to an affirmative defense before it is raised.").
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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 proving that some reason exists to deny leave to
amend. Roberson v. Hayti Police Dep't, 241 F.3d 992,995 (8th Cir. 2001).
DISCUSSION
The School of Mines urges the Court to deny Ms. Hodges' Motion to Amend on the basis
offutility. The School of Mines argues that the statute oflimitations has passed on her claims and
that Ms. Hodges' claims do not relate back to the initiation of the lawsuit against the School of
Mines.
I. Relation Back of Federal Claims
With regard to her federal claims, the parties focus on the statute of limitations applicable
to Ms. Hodges' Title Vll claims alleging sexual discrimination. A plaintiff is barred from filing a
lawsuit in this Court under Title Vll unless he or she does so within ninety days of receiving a
right to sue letter from the Equal Employment Opportunity Commission("EEOC"). See Fort Bend
County, Texas v. Davis, 139 S.Ct. 1843, 1847(2019); Hales v. Casey's Marketing Co., 886 F.3d
730, 736 (8th Cir. 2018)("This ninety-day period constitutes a limitations period that bars a suit
that is not filed within that time."). The Court notes that Ms. Hodges has also pleaded claims under
of Title IX of the Education Act as amended, 20 U.S.C. § 1681, et seq., and the Fair Labor
Standards Act("FLSA"). The statute of limitations on a FLSA claim is generally two years and
on a Title IX claim is three years. See 29 U.S.C. § 255(a)(providing that FLSA claims must be
"commenced within two years after the cause of action accrued," unless the violation was
"willfiil"); Walker v. Barrett, 650 F.3d 1198, 1205 (8th Cir. 2011)(stating that the state statute of
limitations for personal injury apply to Title IX claims); SDCL § 15-2-15 (providing a 3-year
statute of limitations on personal injury actions). Ms. Hodges argues that the Court should grant
it leave to amend to substitute the Board of Regents as the defendant in this matter. She does not
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appear to contest that the statute oflimitations has passed on her claims, but argues that under Rule
15(c)ofthe Federal Rules of Civil Procedure and under SDCL § 15-6-15(c), her claims relate back
to initiation of this lawsuit.
Rule 15(c) of the Federal Rules of Civil Procedure govern when an amended pleading
"relates back" to the date of a timely filed original pleading and is thus itself timely even though
it was filed outside an applicable statute of limitations. Krupski v. Costa Crociere S. p. A., 560
U.S. 538, 541 (2010). Where an amended pleading changes a party or a party's name, the Rule
requires that the amended pleading meet the following three requirements:(1)the claim or defense
asserted in the amended complaint arises out of the same conduct, transaction, or occurrence set
out in the initial complaint,(2) within 90 days after the original complaint was filed, the party to
be added "received such notice of the action that it vdll not be prejudiced in defending on the
merits," and(3)upon receiving notice, the party to be added "knew or should have known that the
action would have been brought against it, but for a mistake concerning the proper party's
identity." Fed. R. Civ. P. 15(c)(1)(c); 4(m). Heglund v. Aitkin County, 871 F.3d 572, 578-79(8th
Cir. 2017). When those conditions are satisfied, the amended complaint is treated as if it were
filed on the date ofthe original complaint. Id. at 579.
Defendant does not appear to contest that Ms. Hodges has met the first two prongs of the
relation-back test and focuses its objection on the third prong of the test—^whether the Board of
Regents "knew or should have known that the action would have been brought against it, but for
a mistake concerning the proper party's identity." (Doc. 25 at 223). Since a plaintiff bears the
burden of proof to show that an amended pleading relates back, the Court will briefly address
prongs one and two ofthe relation-back test before analyzing in more detail the School of Mines'
objection as it relates to the third prong of the test. See, e.g., Dodson v. Hillcrest Sec. Corp., 95
F.3d 52 (5th Cir. 1996) ("While [the defendant] had the burden on summary judgment of
presenting evidence sufficient to prove its statute of limitations defense, [the plaintiff] had the
burden of proof to rebut the statute of limitations ground by relation back under Rule 15(c).");
Covey V. Assessor of Ohio Cty., 666 F.App'x. 245, 248 (4th Cir. 2016)(citing W. Contracting
Corp. V. Bechtel Corp., 885 F.2d 1196, 1200(4th Cir. 1989))(same).
A. Same transaction or occurrence
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The first prong of the relation-back test requires that the claim or defense asserted in the
amended complaint arise out of the same conduct, transaction, or occurrence set out in the initial
complaint. Fed. R. Civ. P. 15(c). The Court concludes the proposed amended complaint satisfies
the first prong ofthe test because the alleged liability ofthe Board ofRegents is based on the same
factual allegations and causes of action asserted by Ms. Hodges against the School of Mines in the
original complaint.
B. Notice & prejudice
The second prong of the relation-back test requires that within 90 days after the original
complaint was filed, the party to be added "received such notice of the action that it will not be
prejudiced in defending on the merits." Fed. R. Civ. P. 15(c)(1)(c). Courts interpreting Rule 15(c)
ofthe Federal Rules of Civil Procedure state that notice may be either actual or constructive^. Ms.
Hodges argues that the Court can infer that the Board of Regents had actual notice of this action.
First, Ms. Hodges points out that it is clear from exhibits submitted in support of her Motion to
Amend that the Board of Regents was made aware of the alleged harassing behavior of Dr.
Lingaman at an early juncture and that the Board of Regents had been in communication with the
School of Mines about these issues. Second, Ms. Hodges argues that "[ujpon information and
belief, [the School of Mines] coordinated with the Board of Regents to select and pay for its
defense counsel; to formulate its detailed Answer; and to[]assert the affirmative defense that[the
School of Mines] lacks the capacity to be sued." (Doc. 17 at 96). Ms. Hodges contends that she
^ Federal courts have found sufficient constructive notice for Rule 15(c) purposes in four distinct factual
settings. Asarco LLC v. Nl Indus., Inc., 106 F. Supp. 3d 1015,1035 n.ll (E.D. Mo. 2015); Lacedra v. Donald W. Wyatt
Detention Facility, 334 F. Supp. 2d 114,129-30(D.R.I. 2004). First, there may be constructive notice if an authorized
employee does not reject a summons naming a non-existent party. Id. Second,there may constructive notice if the
original complaint alleges that the new defendant committed the alleged acts and is an official of one of the original
defendants. Id. Third, a new defendant may have constructive notice if he or she retains the same attorney as an
original defendant and that attorney should have known that the new defendant would be added to the existing
lawsuit. Id. Fourth, a court may find constructive notice if the original and newly named defendants share an
"identity of interests." Id.; see also Hell v. Belle Starr Saloon & Casino, Inc., Civ. No. 09-5074, 2011WL13353217, at
*12 (D.S.D. Aug. 12, 2011)(J. Duffy). The "identity of Interests" test only applies if the original and newly-named
defendants are "so closely related In business or other activities and their interests are sufficiently aligned that it is
fair to presume that the new defendants learned of the institution of the action from the original defendants." Id.;
see also Hell, 2011 WL 13353217, at *12 (citing 6A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice & Procedure,§ 1499(2010)).
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will be submitting a short set of discovery requests to the School of Mines to confirm the facts of
this paragraph. (Doc. 17 at 96, n.9).
Ms. Hodges argues furthermore that "even without specific proof as to those underlying
facts, the Board of Regents is deemed by law to have actual notice of this lawsuit, due to the law
of agency." (Doc. 17 at 96). The School did not address this argument in its opposition brief. In
fact, the School of Mines does not appear to contest at all that it lacked the requisite notice—only
that Ms. Hodges did not make a mistake concerning the proper defendant's identity.
1. Agency Relationship
The Court will first address Ms. Hodges' argument that the Board of Regents is deemed
by law to have actual notice of this lawsuit due to the law of agency. SDCL § 59-6-5 provides
"[a]s against a principal, both principal and agent are deemed to have notice of whatever either has
notice of, and ought,in good faith and the exercise of ordinary care and diligence, to commimicate
to the other." Ghilchrist v. Trail King Indus., Inc., 655 N.W.2d 98, 102-03 (S.D. 2002). "This
statute presumes that an agent will relay to the principal all information that he or she acquires."
Id. at 103. The fact the knowledge was not actually communicated to the principal will not prevent
operation ofthe general rule. Aetna Life Ins. Co. v. McElvain, 363 N.W.2d 186, 189(S.D. 1985).
The School of Mines alleges that she received notice of her right to sue on January 25,
2022, and she filed her Complaint against the School of Minces on January 28, 2022—^within the
90-day deadline. (Doc. 1, H 5). The question whether the School's notice may be imputed to the
Board of Regents depends on whether an agency relationship exists between the two entities.
Under South Dakota law, "[ajgeney is the representation of one called the principal by another
called the agent in dealing with third persons." Kasselder v. Kapperman, 316 N.W.2d 628, 630
(S.D. 1982)(citing SDCL § 59-1-1). The party claiming that an agency relationship exists has the
burden to prove the existence ofthe relationship. Id.
To determine whether an agency relationship exists, the court examines "the relations of
the parties as they exist under their agreement or acts." Id. "Actual agency exists when a principal
and agent expressly agree to enter into an agency relationship." A.P. & Sons Constr. v. Johnson,
657 N.W.2d 292,297(S.D. 2003); SDCL § 59-1-4("Agency is actual when the principal appoints
the agent."). To demonstrate the existence ofan actual agency relationship, a party must show the
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following elements: "(1) manifestation by the principal that the agent shall act for him,(2) the
agent's acceptance ofthe undertaking, and(3)the understanding ofthe parties that the principal is
to be in control of the undertaking." A.P. & Sons, 657 N.W.2d at 297. Ms. Hodges argues that
because the School of Mines avers and South Dakota state law affirms under SDCL § 13-60-1 that
it is under the "control" ofthe Board of Regents, an agency relationship exists between the School
ofMines and Board ofRegents with the School of Mines acting as agent, and the Board ofRegents
as its principal. (Doc. 17 at 96).
The existence of an agency relationship is usually a question of fact. Zee v. Assam, 336
N.W.2d 162,164(S.D. 1983). At the pleading stage, the requisite "evidence ofagency" necessary
to survive a motion to dismiss is "minimal." ResCap Liquidating Trust v. LendingTree, LLC,2020
WL 1317719, at *20 (D. Minn. Mar. 20, 2020). To survive a motion to dismiss, a complaint
alleging agency must plead facts that, if proven, establish the existence of an agency relationship.
Willstrop V. Prince Marketing LLC,2019 WL 11851138, at *3(D. Neb. Jul. 1, 2019).
The Court finds that the facts in the proposed amended complaint are sufficient to establish
the existence of an agency relationship between the Board of Regents and the School of Mines.
Ms. Hodges has alleged that the South Dakota Board of Regents is the controlling entity of the
School of Mines and it can be inferred that the Board of Regents has manifested an intent and the
School of Mines has agreed to operate the school on behalf ofthe Board of Regents. See Glanzer
V. St. Joseph Indian School, 438 N.W.2d 204, 209 (S.D. 1989)(concluding that the plaintiffs
agency theory should have survived summary judgment because there existed "[ejvidence of the
formation of Dehon [Industries, Inc.] to accomplish St. Joseph's mission, Dehon's acceptance of
that role and control of Dehon by St. Joseph's."). The Court cannot say at this stage of the
proceedings that Ms. Hodges' Motion to Amend is clearly futile for failure to satisfy the second
prong ofthe relation-back test. Whether Ms. Hodges will ultimately be able to establish an agency
relationship is a question offact not amenable to resolution on a motion to amend.
2. Actual Notice
Ms. Hodges argues that the Court can infer that Board of Regents had actual notice of this
action. In support of her argument, Ms. Hodges cites to exhibits outside the pleadings showing
that the Board ofRegents had notice ofMs. Hodges' complaints early on. Counsel for Ms. Hodges
also proposes to conduct discovery on whether the Board of Regents received actual notice ofthe
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action. The School of Mines does not object to the Court granting leave to amend on the basis of
lack of notice on behalfofthe Board ofRegents. The Court cannot say that Ms. Hodges' proposed
amendment to substitute the Board of Regents as a defendant in this matter is futile for failure to
satisfy the second prong of the relation-back test. Ultimately, it will be Ms. Hodges' burden to
prove notice and prove that her claims against the Board of Regents relate back.
C. Mistake
The third prong ofthe relation-back test requires that Ms. Hodges prove that upon receiving
notice, the Board ofRegents"knew or should have known that the action would have been brought
against it, but for a mistake conceming the proper party's identity." Fed. R. Civ. P. 15(c)(l)(C)(ii).
In Krupski v. Costa Crociere S. p. A., 560 U.S. 538 (2010), the United States Supreme Court
analyzed this third prong of Federal Rule 15(c). In Krupski, the plaintiff sought compensation for
injtiries she suffered on a cruise ship. Id. at 541-42. The plaintiff sued the entity, Costa Cruise,
who had issued her passenger ticket even though the ticket identified a separate entity, Costa
Crociere, as the carrier and the entity that must be provided written notice ofthe claim. Id. at 542-
43. The district court allowed the plaintiffto amend her claim to add Costa Crociere as a defendant
after the statute of limitations had passed. Id. at 544. Costa Crociere then moved to dismiss,
contending that the amended complaint did not relate back under Rule 15(c) and was therefore
untimely. Id. at 544-45. The district court granted Costa Crociere's motion to dismiss on the basis
that the plaintiffs failure to name as a defendant a party whose identity the plaintiff knew before
the statute of limitations had nm was not a "mistake" for relation-back purposes. Id. at 545-46.
The district court also stated that the plaintiffs several month delay in moving to amend after
being informed by Costa Cruise in its answer, corporate disclosure statement, and motion for
summary judgment that Costa Crociere was the proper defendant, bolstered its conclusion that
plaintiff was aware ofthe proper defendant and had made no mistake. Id.
The Eleventh Circuit affirmed on appeal. Id. at 546. The Court of Appeals concluded that
because the ticket clearly identified Costa Crociere as the carrier,the plaintiff either knew or should
have known of Costa Crociere's identity as a potential party. Id. In denying relation-back, the
court also found significant the fact that the plaintiff had waited 133 days to amend her complaint
from the time she alleged received notice of Costa Crocier's identity. Id.
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On appeal before the United States Supreme Court, the Court criticized the Eleventh
Circuit's focus on the plaintiffs knowledge, stating that "[t]he question under Rule 15(c)(l)(C)(ii)
is not whether [the plaintiff] knew or should have known the identity of Costa Crociere as the
proper defendant, but whether Costa Crociere knew or should have known that it would have been
named as a defendant but for an error." Id. at 548. The Court stated that "[ijnformation in the
plaintiffs possession is relevant only if it bears on the defendant's understanding of whether the
plaintiff made a mistake regarding the proper party's identity." Id.
The Supreme Court in Krupski stated that "it would be error to conflate knowledge of a
party's existence with the absence of mistake." Id. The Court defined a mistake as "[a]n error,
misconception, or misunderstanding; an erroneous belief." Id. at 548-59 (quoting Black's Law
Dictionary 1092(9th ed. 2009)). The Court explained:
We agree that making a deliberate choice to sue one party instead of another while
fully understanding the factual and legal differences between the two parties is the
antithesis of making a mistake concerning another party's identity. We disagree,
however, with respondent's position that any time a plaintiff is aware of the
existence of two parties and chooses to sue the wrong one, the proper defendant
could reasonably believe that the plaintiff made no mistake. The reasonableness of
the mistake is not itself at issue.
Id. at 449. Examining the plaintiffs complaint,the Court found that it "plainly" indicated that the
plaintiff misunderstood crucial facts regarding the two companies' identities and what entity was
in charge of the ship. Id. at 555. The Court noted that the complaint made clear that the plaintiff
meant to sue the company that "owned, operated, managed, supervised and controlled" the ship
on which she was injured and also indicated (mistakenly) that Costa Crociere performed those
roles. Id. at 554. In addition, the Court noted that Costa Crociere could not articulate any trial
strategy that it believed the plaintiff to be pursuing in suing a defendant(Costa Cruise) that was
legally unable to provide relief. Id. at 555.
The Court in Krupski also held that the fact that the plaintiff waited 133 days from the time
she filed her original complaint to seek leave to amend had no bearing on whether the amended
complaint related back. Id. at 546, 553. The Court stated that while a court may consider "undue
delay" or "dilatory motive" in deciding whether to grant leave to ^end under Rule 15(a), Rule
15(c) makes clear, that "the speed with which a plaintiff moves to amend her complaint or files an
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amended complaint after obtaining leave to do so has no bearing on whether the amended
complaint relates back." Id. at 553.
The Eighth Circuit Court of Appeals has had a single occasion to examine the Krupski
Court's analysis of the third prong of the relation-back test. In Heglund v. Aitkin Cty., 871 F.Sd
572(8th Cir. 2017),the plaintiff brought a lawsuit against hundreds ofJohn and Jane Does alleging
a violation of 18 U.S.C. § 2724(a) which provides that "[a] person who knowingly obtains,
discloses, or uses an individual's personal information from a motor vehicle record for a purpose
not permitted is liable to the individual." Id. at 576 (quoting 28 U.S.C. § 2724(a)). During
discovery, the plaintiff learned the identity of the officer who had accessed the plaintiffs
information and moved to amend the complaint to substitute him for a John Doe defendant after
the statute of limitations had expired. Id. at 576. The district court granted the motion and the
officer then moved for summary judgment based on the statute of limitations. Id. at 576. The
district court granted the officer's motion for summary judgment, concluding that the plaintiffs
naming of"John Doe" in the original complaint, rather than the officer, was not a mistake. Id. at
576-77.
The plaintiff in Heglund appealed. Although the Supreme Court in Krupski stated that the
primary question in determining relation back under Rule 15(c)(1)(C) is what the prospective
defendant "knew or should have knovm" about the plaintiffs claim against him, on appeal, the
Eighth Circuit dismissed the prospective defendant's knowledge as inconsequential considering
the plaintiffs deliberate decision to sue John Doe while knowing that he was not a proper
defendant. See id. at 581 ("Regardless of... what[the prospective defendant]knew about whether
the plaintiffs would like to have sued him,the [plaintiffs] did not make a 'mistake' in the ordinary
sense of the word. . . ."). The Heglund court stated that the definition of"mistake" from Black's
Law Dictionary cited in Krupski "implies a lack of intentionality." Id. at 580; see also Gienapp v.
Milbrandt, Civ. No. 18-1014,2020 WL 730396,at *4(J. Kommann)(D.S.D. Feb. 13,2020)("The
Heglund Court further explained that "the difference between a true mistake within the meaning
ofRule 15(c)and a lack ofknowledge on the part ofthe plaintiff had to do with the purposefulness
with which the plaintiff named the wrong party.") The court in Heglund found that the inclusion
of"John Doe" by the plaintiff was not an "intentional misidentification," "unintentional error,"
"inadvertent wrong action" and thus a "mistake," but was used by the plaintiff because, as the
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plaintiff had admitted, she lacked knowledge of the prospective defendant's identity. Id. at 580.
The court held that the plaintiff"did not make a 'mistake' . . . when she intentionally sued 'John
Doe' while knowing that he was not the proper defendant" and thus concluded that the plaintiffs
claims did not relate back under Rule 15(c). M at 581.
It is clear that under Krupski and Heglund, Ms. Hodges' claims against the Board of
Regents will not relate back if she sued the School of Mines with full knowledge that it was not
the correct defendant. As the Supreme Court stated in Krupski, "[w]e agree that making a
deliberate choice to sue one party instead of another while fully understanding the factual and legal
differences between the two parties is the antithesis of making a mistake concerning another
party's identity." 560 U.S. at 549. In Heglund, the eourt stated that the plaintiff did not make a
"mistake" when she deliberately sued John Doe while knowing that he was not the proper
defendant. 871 F.3d at 581; see also Gienapp,2020 WL 730396 at *4. However,the Court finds
that there is no evidenee that Ms. Hodges sued the School of Mines will full knowledge that it was
not the correct defendant in this case. In fact, all facts point to the contrary.
This Court finds the fact ofthis case to be very similar to those in Krupski. In Krupski, the
Eleventh Circuit Court of Appeals concluded that because the plaintiffs passenger ticket clearly
identified the carrier (the proper defendant in that matter), plaintiff either knew or should have
known ofthe carrier's identity as a potential party to be sued and therefore did not make a mistake
concerning the proper defendant's identity. Here, the School of Mines argues that Ms. Hodges
was aware or at least should have been aware that the Board of Regents governed the School of
Mines and was the proper party to be sued. (Doc. 25 at 226). The School of Mines argues that its
position statement to the EEOC indicated that it "is one of six higher education institutions
governed by the South Dakota Board of Regents. . . ." (Doc. 18-5). However, as the Supreme
Court stated in Krupski, "[t]he question under Rule 15(c)(l)(C)(ii) is not whether [the plaintiff]
knew or should have known the identity of[the carrier] as the proper defendant, but whether [the
carrier] knew or should have known that it would have been named as a defendant but for an error."
560 U.S. at 548. As in Krupski, "it would be error to conflate knowledge of a party's existence
with the absence of mistake." Id.
It is elear to the Court that Ms. Hodges and her counsel misunderstood crucial facts
regarding which entity was the proper defendant in this case. The School of Mines, like the
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defendant in Krupski, has articulated no trial strategy that Ms. Hodges may have been pursuing in
suing a defendant(School of Mines) that has not waived its immunity to suit. This is not a case
like Hegland where the plaintiff made "a deliberate choice to sue one party instead of another
while fully understanding the factual and legal differences between the two parties." Krupski, 560
U.S. at 549. There is nothing under SDCL Ch. 13-60 that gives the School of Mines the ability to
sue or be sued. B.K. ex rel. Kroupa v. 4-H, 877 F.Supp.2d 804, 813 (D.S.D. Jul. 2012)("When
the state statute is silent on whether a state entity can sue or be sued,then that entity is not amenable
to suit under [Fed. R. Civ. P. 17(b)(3)] and dismissal is appropriate.")(citing Lundquist v. Univ. of
S.D. SanfordSch. ofMed, Civ. No. 09-4147, 2011 WL 5326074, at *5 (D.S.D. Nov. 4, 2011)).
Rather, the Board of Regents, which controls the School of Mines, see SDCL § 13-60-1, has the
power to sue and be sued under SDCL § 13-49-11. See Lundquist, 2011 WL 5326074, at *5. In
Krupski, the Supreme Court stated that;
A prospective defendant who legitimately believed that the limitations period had
passed without any attempt to sue him has a strong interest in repose. But repose
would be a windfall for a prospective defendant who understood, or who should
have understood,that he escaped suit during the limitations period only because the
plaintiff misunderstood a crucial fact about his identity.
560 U.S. at 550. Presuming Ms. Hodges is able to prove that the Board ofRegents received notice,
thus satisfying the second prong ofthe relation-back test, the Court finds that the Board ofRegents
knew or knew or should have known that it would have been named as a defendant in this matter
but for Plaintiffs mistake. See Fed. R. Civ. P. 15(c)(ii).
D. Summary
The Court finds that the School of Mines has failed to prove that Ms. Hodges' federal
claims against the Board of Regents is barred by the statute of limitations. Leave to amend is
granted. Ultimately, it will be Ms. Hodges' burden to prove that within 90 days after the original
complaint was filed, the Board of Regents received notice of the action such that it will not be
prejudiced in defending on the merits. See Fed. R. Civ. P. 15(c)(C)(i).
II. State law claims
The School of Mines argues that even if Ms. Hodges' proposed amended complaint does
relate back, her state law claims are still time-barred because under South Dakota law,she did not
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commence her state law claims against it within the statute oflimitations period. (Doc.25 at 227).
Because Ms. Hodges' state law claims are untimely against the School of Mines,the School argues
that it is futile to grant her leave to substitute the Board of Regents as a defendant in this matter.
(Doc. 25 at 229)("Ultimately, all her state claims against [the Board of Regents] are futile even if
the proposed amendment does relate hack.").
In this case, the Court has federal question jurisdiction and supplemental jurisdiction over
Ms. Hodges' state law claims. Accordingly, South Dakota law governs when Ms. Hodges' state
law claims commence for statute oflimitation purposes. See Appletree Square I. Ltd. Partnership
V. W.R. Grace & Co., 29 F.3d 1283 (8th Cir. 1994)(concluding that if state law claims would be
barred in state court. Walker v. Armco Steel Corp., 446 U.S. 740(1980) dictates that they should
not be allowed to proceed in federal court; "it is the source of the right sued upon, and not the
ground on which federal jurisdiction over the case is founded, which determines the goveming
law."). Id. at 1286. Under South Dakota law, it is the service of the summons—^not the filing of
the complaint—^that commences an action. SDCL § 15-2-30.
Ms. Hodges' proposed amended complaint alleges five violations of South Deikota law;(1)
sex discrimination in violation of SDCL § 20-13-10;(2)sex discrimination in violation of SDCL
§ 20-13-22;(3) retaliation in violation of SDCL § 20-13-26;(4)failure to pay wages in violation
of SDCL § 60-11-9; and (5) retaliation in violation of SDCL § 60-11-17.1. Ms. Hodges' claims
under SDCL Ch. 60-11 must be commenced within two years from the date the cause of action
accrued. See SDCL § 15-2-15(c)(providing that "an action for wages regulated by either state or
federal statute or for a penalty or liquidated damages for failure to pay wages regulated by either
such state or federal statute" must be "commenced only within two years after the cause of action
shall have accrued."). Ms. Hodges alleges that the School of Mines failed to pay her appropriate
wages from November 2019 until March 2020. The School of Mines argues that Ms. Hodges
needed to have commenced her claims under SDCL § 60-11-9 within two years of March 2020,
but has failed to do so. (Doc. 25 at 228). The School of Mines asserts that it was served with Ms.
Hodges' complaint on May 27, 2022—^past the two-year limitations period.
The School of Mines argues that her claims under SDCL Ch. 20-13 are also barred by the
statute oflimitations. Any charge filed under SDCL Ch. 20-13 must"be filed within one hundred
and eighty days after the alleged discriminatory or unfair practice occurred." SDCL § 20-13-31.
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Ms. Hodges alleges in her charge ofdiscrimination filed with the South Dakota Division ofHuman
Rights and the United States Equal Employment Opportunity Commission that the discrimination
took place between January 7, 2020 and June 19, 2020. (Doc. 18, Ex. 4). Ms. Hodges filed her
charge of discrimination with both the South Dakota Division of Human Rights and the United
States Equal Employment Opportunity Commission on March 10,2021. (Doc. 18,Exs. 4-5). The
School of Mines argues that because Ms. Hodges filed her charge of discrimination with the South
Dakota Division of Human Rights more than 180 days after the alleged discrimination took place,
any claims against the Board ofRegents arising under SDCL Ch. 20-13 are time-barred. (Doc. 25
at 229).
Ms. Hodges contends that her state law claims relate back under SDCL § 15-6-15(c). As
this Court stated in its opinion addressing the plaintiffs motion to amend in Nettles v. Hilton
Worldwide, Civ. No. 4:18-4102, 2020 WL 7029948 (D.S.D. Nov. 30, 2020), requirements for
relation back under SDCL § 15-6-15(c) and Fed. R. Civ. P. 15(c) are practically the same except
that under the South Dakota rule, notice must be received within the limitations period, whereas
under the Federal Rule as it was amended in 1991,the party to be substituted must have received
notice of the institution of the action within the period for serving the summons and complaint
under Fed. R. Civ. P. 4(m). 2020 WL 7029948, at *5-6. In the present case, it appears that Ms.
Hodges'federal claims were timely commenced against the School ofMines because under federal
law,federal claims commence upon filing ofthe complaint. By contrast, under South Dakota law,
Ms. Hodges' state law claims did not commence until service ofsummons on the School ofMines.
As discussed above, Ms. Hodges' wage claims under SDCL Ch. 60-11 accrued at the latest in
March 2020 and she had imtil March 2022 to timely commence any claims arising under that
statute. The School of Mines and its registered agent were served with the summons and complaint
in this matter on February 2, 2022. (Doc. 3). However, in order to effectuate service upon the
School of Mines under SDCL § 15-6-4(d)(5) and Fed. R. Civ. P. 4(j)(2)(A),(B), Ms. Hodges was
required to serve the governor and attorney general. The School of Mines raised this issue in its
Answer filed on March 3, 2022. (Doc. 8). The governor and attorney general were not served
with the summons and complaint in this matter imtil May 27, 2022—after the expiration of the
statute of limitations on Ms. Hodges' SDCL Ch. 60-11 claims. Because Ms. Hodges' claims
arising under SDCL Ch. 60-11 were not commenced under South Dakota law within the statute of
limitations, her claims are time-barred even ifthey relate back under SDCL § 15-6-15(c).
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At first glance, it appears to the Court that Ms. Hodges' state law discrimination claims
arising under SDCL Ch. 20-13 are also time-barred because her charge of discrimination relating
to such claims was filed with the South Dakota Division of Human Rights beyond the 180-day
statutory deadline. Ms. Hodges alleges in her charge ofdiscrimination filed with the South Dakota
Division ofHuman Rights and the United States Equal Employment Opportunity Commission that
the discrimination took place between January 7, 2020 and June 19, 2020. (Doc. 18, Ex. 4). Ms.
Hodges did not file her eharge of discrimination with both the South Dakota Division of Human
Rights and the United States Equal Employment Opportunity Commission until Mareh 10, 2021.
(Doc. 18, Exs. 4-5). Ms. Hodges did not address whether her state law discrimination claims are
barred for failure to timely file her charge ofdiscrimination. The Court will order that Ms. Hodges
brief this issue if she decides to proceed on these claims.
III. Conclusion
The appropriate test in determining whether to grant a motion to amend is whether the
claim to be asserted is futile. See Moses.com Sees., Inc. v. Comprehensive Software Sys., Inc., 406
F.3d 1052, 1065 (8th Cir. 2005). The Court denies Ms. Hodges leave to amend her complaint to
substitute the Board of Regents as a defendant to her claims arising under SDCL Ch. 60-11 on the
basis of futility. Even if these claims relate back under SDCL § 15-6-15(e), they were untimely
commenced against the Sehool of Mines. Relation back would thus provide no reprieve. If Ms.
Hodges desires to proceed on her claims arising under SDCL Ch. 20-13,then she shall file a brief
with the Court addressing whether her claims are time-barred for failure to file her charge of
discrimination within 180 days after alleged discriminatory or unfair practice occurred. With
regard to Ms. Hodges' federal claims, the School of Mines has not met its burden in proving that
on the face ofthe complaint, such claims are untimely. Ultimately, it will be Ms. Hodges' burden
to prove that her claims against the Board of Regents relate-back under Rule 15(c) ofthe Federal
Rules of Civil Procedure. The Court will allow the amendment and any discovery related to the
statute of limitations issue.
Accordingly, it is hereby ORDERED that:
1. Plaintiff's Motion to Amend(Doc. 16)is GRANTED IN PART AND DENIED IN PART
as follows:
a. DENIED as to Plaintiffs claims arising under SDCL Ch. 60-11;
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b. GRANTED as to Plaintiffs claims arising under federal law. Plaintiff may
substitute the South Dakota Board of Regents as a defendant in Plaintiffs federal
law elaims; and
c. The Court will reserve judgment on Plaintiffs claims arising under SDCL Ch. 20-
13.
2. If Plaintiff deeides to proceed against the Board of Regents on her claims arising under
SDCL Ch. 20-13, she shall file a brief no later than 10 calendar days from the date ofthis
order addressing whether her elaims arising under SDCL Ch. 20-13 are time-barred for
failure to file a eharge of diserimination within 180 days of the alleged discrimination.
Defendant shall have an additional 10 calendar days in whieh to file a response brief; and
3. Plaintiffs Motion for Judgment on the Pleadings(Doe. 11)is DENIED with respect to all
ofPlaintiffs claims but for her FLSA claim. The Court will reservejudgment on Plaintiffs
ELSA claim. Plaintiff shall file a brief no later than 10 calendar days responding to
Defendant's argument that Plaintiff was a professionally exempt employee in 2019 and
therefore not entitled to overtime pay. Defendant shall have an additional 10 calendar days
in whieh to file a reply brief.
Dated this ^ day of October, 2022.
BY THE COURT:
awrence L. Piersol
ATTEST: United States District Judge
MATTHEW W. THELEN,CLERK
(AAi^
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