James Kulinski v. Medtronic Bio-Med. ( 1997 )


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  •                    United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 95-3682
    ___________
    James M. Kulinski,                 *
    *
    Appellant,               *
    *
    v.                                 *
    *
    Medtronic Bio-Medicus, Inc.,       *
    *
    Appellee.                *
    ___________
    Appeal and Cross-Appeal from the
    United States District Court
    No. 95-3803                       for the District of Minnesota.
    ___________
    James M. Kulinski,              *
    *
    Appellee,             *
    *
    v.                              *
    *
    Medtronic Bio-Medicus, Inc.,    *
    *
    Appellant.            *
    ___________
    Submitted: October 23, 1996
    Filed: March 13, 1997
    ___________
    Before BRIGHT and MURPHY, Circuit Judges.*
    ___________
    BRIGHT, Circuit Judge.
    *
    Judge Magill, who was originally on the panel hearing this
    appeal, recused himself after oral argument. Because a quorum of
    the court exists and the two remaining judges agree on the outcome,
    a third judge is unnecessary for a determination of this appeal.
    -2-
    James M. Kulinski brought this state law breach of contract
    action against Medtronic Bio-Medicus, Inc.             The district court
    dismissed Kulinski's action pursuant to Minnesota's statute of
    limitations    for   wage   claims,    Minn.   Stat.   §   541.07(5)(1990).
    Kulinski appealed and Medtronic filed a protective cross-appeal
    arguing that Kulinski's claim was precluded by res judicata.              We
    reverse the dismissal of Kulinski's claim but affirm the denial of
    Medtronic's cross-appeal.
    BACKGROUND
    Kulinski worked for Bio-Medicus, Inc. (Bio-Medicus) as its
    national sales manager.        In January 1990, Kulinski executed a
    change-of-control     termination      agreement    (CCTA),     or    "golden
    parachute"    agreement,    with   Bio-Medicus.        This   CCTA   entitled
    Kulinski to a lump sum payment as severance if his employment
    terminated or was otherwise detrimentally affected as the result of
    a hostile takeover of Bio-Medicus.          In June 1990, Kulinski signed
    a second CCTA which entitled him to severance benefits if his
    employment terminated or was detrimentally affected as the result
    of a friendly merger.
    In September 1990, Bio-Medicus merged with Medtronic, Inc. to
    form Medtronic Bio-Medicus, Inc. (Medtronic).          Kulinski refused the
    merged entity's offer of a two-year position at a reduced salary.
    Kulinski resigned and notified Bio-Medicus and Medtronic, Inc. that
    he experienced a "change of control termination" under the second
    CCTA.   Bio-Medicus rejected Kulinski's request for his lump sum
    severance payment.
    -3-
    Kulinski    brought    his     first     action    against   Medtronic      on
    February 26, 1991, asserting a claim under the Employee Retirement
    Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461 (1988 & Supp.
    III 1991), for breach of the CCTA.               Both parties and the district
    court agreed that federal question jurisdiction existed under
    ERISA.    Kulinski did not bring any pendant state law claims at this
    time.     After a bench trial, the district court awarded Kulinski
    $254,566 in severance pay, in addition to attorney's fees, costs,
    and prejudgment interest.
    Medtronic appealed without challenging the application of
    ERISA.     This court held, sua sponte, that no ERISA plan existed
    and,     therefore,     the    district         court    lacked    subject    matter
    jurisdiction.       Kulinski v. Medtronic Bio-Medicus, Inc., 
    21 F.3d 254
    , 258 (8th Cir. 1994).           We vacated the judgment for Kulinski and
    remanded the case with instructions to dismiss for lack of subject
    matter jurisdiction.          
    Id. Kulinski then
    moved to amend his ERISA
    complaint to allege a state law breach of contract claim under
    diversity jurisdiction.              The district court denied Kulinski's
    motion and dismissed the case with prejudice.
    Kulinski appealed that decision on July 18, 1994.                   This court
    upheld the district court's decision to dismiss Kulinski's ERISA
    action with prejudice.          Kulinski v. Medtronic Bio-Medicus, Inc.,
    No. 94-2829, 
    1995 WL 413319
    , at *1 (8th Cir. July 14, 1995) (per
    curiam) (unpublished).
    Before we reviewed that appeal, however, Kulinski filed a new
    action    against     Medtronic      in   federal       district   court    based   on
    diversity jurisdiction.             Kulinski raised the state law breach of
    contract claim that the district court previously dismissed by
    rejecting Kulinski's motion to amend his first (ERISA) action.
    Medtronic moved to dismiss this second action pursuant to Fed. R.
    -4-
    Civ. P. 12(b)(6) on the grounds of res judicata and the statute of
    limitations.   The district court held Medtronic's motion under
    advisement pending Kulinski's appeal.
    After Kulinski lost his appeal, the district court granted
    Medtronic's motion to dismiss Kulinski's state law action as barred
    by Minnesota's statute of limitations for wage claims, Minn. Stat.
    § 541.07(5).   The court, however, rejected Medtronic's argument
    that res judicata precluded Kulinski's action.        These appeals
    followed.
    DISCUSSION
    Kulinski raises three issues on appeal.   Kulinski first argues
    that his claim is not barred by the statute of limitations because
    he is not bringing a claim for “wages” for purposes of Minn. Stat.
    § 541.07(5).   Kulinski also argues that, even if the statute
    applies, his claim is not subject to the statute of limitations
    because it is saved under Minn. Stat. § 541.18 (1990).     Finally,
    Kulinski seeks equitable relief from the statute of limitations.
    In addition to contesting Kulinski's appeal, Medtronic argues that
    Kulinski's claim is precluded by res judicata.       We review the
    district court's dismissal of Kulinski's complaint de novo, Carney
    v. Houston, 
    33 F.3d 893
    , 894 (8th Cir. 1994), and presume all of
    Kulinski's factual allegations as true.   Miree v. DeKalb County,
    Georgia, 
    433 U.S. 25
    , 27 n.2 (1977).
    I.
    Section 541.07(5) provides that an action shall be commenced
    within two years if it is:
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    For the recovery of wages or overtime or damages, fees or
    penalties accruing under any federal or state law
    respecting the payment of wages or overtime or damages,
    fees or penalties except, that if the employer fails to
    submit payroll records by a specified date upon request
    of the department of labor and industry or if the
    nonpayment is willful and not the result of mistake or
    inadvertence, the limitation is three years. (The term
    "wages"   means   all  remuneration   for   services   or
    employment, including commissions and bonuses and the
    cash value of all remuneration in any medium other than
    cash, where the relationship of master and servant exists
    . . . )[.]
    Minn. Stat. § 541.07(5).
    It is undisputed that the time allotted in § 541.07(5) expired
    before Kulinski filed this diversity action.               Nearly four years
    passed between Medtronic's alleged breach of contract in 1990 and
    the filing of Kulinski's second action in 1994.            Kulinski, however,
    argues that § 541.07(5) is not applicable because he does not bring
    a claim for "wages" within the meaning of that section.               Instead,
    Kulinski argues that his action is covered by Minnesota's six-year
    statute of limitations for actions based "[u]pon a contract or
    other   obligation,   express    or     implied,   as    to   which   no   other
    limitation is expressly prescribed . . . ."             Minn. Stat. § 541.05,
    subd. 1(1) (1990).    We disagree.
    Although it appears that no Minnesota court has specifically
    addressed   whether   wages     under    §   541.07(5)     include    severance
    benefits, Minnesota courts consistently hold that "all damages
    arising out of the employment relationship are subject to [§
    541.07(5)]."   Stowman v. Carlson Companies, Inc., 
    430 N.W.2d 490
    ,
    493 (Minn. Ct. App. 1988) (applying Portlance v. Golden Valley
    State Bank, 
    405 N.W.2d 240
    , 243 (Minn. 1987)); see also Levin v.
    C.O.M.B. Co., 
    441 N.W.2d 801
    , 804 (Minn. 1989) (unpaid commissions
    due pursuant to an employment contract); Portlance, 405 N.W.2d at
    -6-
    243 (wrongful discharge based on an oral contract of employment
    allegedly modified by an employees' manual); Worwa v. Solz Enters.,
    Inc., 
    238 N.W.2d 628
    , 631 (Minn. 1976) (contractual wage claims);
    Roaderick v. Lull Eng'g Co., 
    208 N.W.2d 761
    , 762-63 (Minn. 1973)
    (commission or bonus payments); Kohout v. Shakopee Foundry Co., 
    162 N.W.2d 237
    , 239-40 (Minn. 1968) (accrued but unpaid vacation pay);
    Kletschka v. Abbott-Northwestern Hosp., Inc., 
    417 N.W.2d 752
    , 755
    (Minn. Ct. App. 1988) (salary increases and "adjustment of all
    fringe benefits"); cf. Adamson v. Armco, Inc., 
    44 F.3d 650
    , 652-53
    (8th Cir.) (construing Stowman to conclude that Minnesota courts
    construe § 541.07(5) broadly), cert. denied, 
    116 S. Ct. 85
    (1995).
    The Minnesota Supreme Court has also explicitly recognized the
    "broad definition of wages stated in [§ 541.07(5)] . . . ."
    
    Roaderick, 208 N.W.2d at 763
    .
    In light of the consistently broad construction given to
    § 541.07(5), we affirm the district court in considering Kulinski’s
    claim as one within the general concept of wages.2    The district
    court did not err in applying the two-year limitation under §
    541.07(5).
    II.
    Kulinski argues that even if the statute of limitations
    applies, his claim is "saved" by Minnesota's savings statute:
    Kulinski proposes a very different reading of Minnesota case
    law. He cites McDaniel v. United Hardware Distrib. Co., 
    469 N.W.2d 84
    (Minn. 1991), for the proposition that the two-year statute of
    limitations does not apply unless the claim is either for hourly
    pay or for wages that would have been earned had the employee not
    been wrongfully terminated. That action rested on rights created
    by statute and is, therefore, distinguishable.
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    Except where the uniform commercial code otherwise
    prescribes, if judgment be recovered by plaintiff in an
    action begun within the prescribed period of limitation
    and such judgment be afterward arrested or reversed on
    error or appeal, the plaintiff may begin a new action
    within one year after such reversal or arrest.
    Minn. Stat. § 541.18 (1990).               This statute, virtually unchanged
    since    its    enactment    in    1851,    is   rarely    utilized   and    is    not
    interpreted by any appellate court.                Furthermore, no legislative
    history is available.
    We start, of course, with the plain language of the statute.
    Gale v. Commissioner of Taxation, 
    37 N.W.2d 711
    , 714-15 (Minn.
    1949).     Indeed, simply because the statute is quite old does not
    release us from our obligation to give the statute its plain
    meaning.       See, e.g., I.N.S. v. Phinpathya, 
    464 U.S. 190
    , 191-92
    (1984) (holding that thirty-two-year-old statute must still be
    given its plain meaning); see also Minn. Stat. § 645.16 ("Every law
    shall    be    construed,    if    possible,     to   give   effect   to     all   its
    provisions.          When the words of a law in their application to an
    existing situation are clear and free from all ambiguity, the
    letter of the law shall not be disregarded under the pretext of
    pursuing       the    spirit.").     Kulinski      meets     the   plainly    worded
    requirements of Minn. Stat. § 541.18.             First, he filed his original
    complaint five months after the alleged breach of contract and
    within the statute of limitation.                Second, Kulinski prevailed at
    trial and was awarded over $250,000 in damages.                Third, this court
    reversed that judgment, not on the merits, but for lack of subject
    matter jurisdiction. Fourth, Kulinski began this action based on
    diversity jurisdiction within one year of our reversal.
    The district court, however, held the savings statute was
    "inapplicable to the facts of this case as Kulinski is not bringing
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    a new action based on the same claim as had been previously
    reversed, rather he is asserting a new claim."          Dist. Ct. Order at
    8.   We disagree.
    A ‘cause of action’ is a situation or state of facts
    which entitles a party to sustain an action and gives him
    the right to seek judicial interference in his behalf.
    Under the Federal Rules of Civil Procedure, the word
    ‘claim’ denotes the same thing, i.e. ‘the aggregate of
    operative facts which gives rise to a right enforceable
    in the courts.’
    Rhodes v. Jones, 
    351 F.2d 884
    , 886-87 (8th Cir. 1965) (quoting Dery
    v. Wyer, 
    265 F.2d 804
    , 807 (2d Cir. 1959)).         Here, Kulinski's claim
    that Medtronic breached the CCTA agreement is the same in both
    actions.    Thus, both actions share identical operative documents,
    witnesses, measure of recovery and essentially the same legal
    issues.3    The only distinction is that Kulinski now asserts a legal
    theory, state law breach of contract under diversity jurisdiction,
    that is different from his ERISA theory.             In fact, Kulinski is
    bringing the same claim.
    Significantly, Kulinski did not deliberately or carelessly
    withhold the state law cause of action as an alternative theory in
    his original     pleading.     ERISA    is   an   "enormously   complex   and
    detailed statute", Mertens v. Hewitt Assoc., 
    508 U.S. 248
    , 262
    (1993) and "contains a preemption provision that applies to state
    common law-based claims . . . ."          Bannister v. Sorenson, 
    1996 WL 731897
    , at *2 (8th Cir. (Neb.)).          This preemptive force explains
    Kulinski's    decision   to   proceed   without    alternative   state    law
    theories.    Indeed, both parties and the district court initially
    3
    Indeed, the only legal issue present in Kulinski's first
    (ERISA) action which need not be examined in Kulinski's second
    action is whether the CCTA constituted an employee welfare benefit
    plan under ERISA.
    -10-
    believed the CCTA was an ERISA plan and Medtronic's first appeal
    did not even contest jurisdiction under ERISA.
    We refrain from interpreting the statute to permit a plaintiff
    to bring a different claim on a successive appeal because that
    issue is not before us.     Rather, our holding is narrow.      We believe
    the statute allows a prevailing plaintiff, like Kulinski, to bring
    a renewed action based on the same claim that he originally sought
    relief if, through no fault of his own, a jurisdictional error
    results in the reversal of his judgment on appeal.            Accordingly,
    Kulinski's second action, based on diversity jurisdiction, is
    covered by the savings statute and, therefore, is not time-barred.
    III.
    Because we conclude that the savings statute applies to
    Kulinski's claim, we decline to reach his request for equitable
    relief.
    IV.
    Medtronic     raises   a   cross-appeal    asserting   that,   even   if
    Kulinski's claim survives the statute of limitations, his claim is
    precluded    by   res   judicata.    Claim     preclusion   requires   three
    elements: (1) identical parties in the lawsuits; (2) identical
    claims or causes of action; and (3) a final judgment on the merits
    in the prior action.     Lane v. Peterson, 
    899 F.2d 737
    , 741 (8th Cir.
    1990).    In this case, the parties and claims are identical in both
    suits.      The only issue, then, is whether the district court
    rendered a final judgment on the merits in the original action.
    The district court held that the dismissal of Kulinski's first
    complaint under ERISA for lack of jurisdiction was not an
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    adjudication on the merits of that claim and, therefore, was not a
    final judgment.
    Medtronic first argues that res judicata requires Kulinski to
    plead all bases for jurisdiction in his original pleading.       This
    argument is inconsistent with our precedent.   In McCarney v. Ford
    Motor Co., 
    657 F.2d 230
    (8th Cir. 1981), we held that a dismissal
    based on subject matter jurisdiction:
    should preclude relitigation of the same [jurisdiction]
    issue but not a second suit on the same claim even if
    arising out of the identical set of facts. . . . [W]here
    the second suit presents new theories of relief,
    admittedly based upon the same operative facts as alleged
    in the first action, it is not precluded because the
    first decision was not on the merits of the substantive
    claim.
    
    Id. at 233-34
    (citations omitted); cf. Oglala Sioux Tribe v.
    Homestake Mining Co., 
    722 F.2d 1407
    , 1411 (8th Cir. 1984) (holding
    second action barred by res judicata because plaintiff "assert[ed]
    identical claims and jurisdictional grounds" as the first action).
    Kulinski based his first action on federal ERISA law and his second
    action on state contract law.    Thus, the dismissal of Kulinski's
    first action precludes another ERISA claim, but not the same claim
    under a different theory and jurisdictional basis.4
    4
    Medtronic's attempt to persuade us to ignore our precedent is
    unconvincing. Medtronic cites to two cases for support. Kale v.
    Combined Ins. Co. of America, 
    924 F.2d 1161
    (1st Cir. 1991); Shaver
    v. F.W. Woolworth Co., 
    840 F.2d 1361
    , 1367 n.2 (7th Cir. 1988).
    These cases differ significantly from the case at bar because in
    both Kale and Shaver the original cause of action was dismissed on
    the merits and with prejudice. Here, of course, Kulinski's initial
    claim was dismissed for lack of subject matter jurisdiction and was
    not on the merits. Johnson v. Boyd-Richardson Co., 
    650 F.2d 147
    ,
    148 (8th Cir. 1981) ("[W]hen a dismissal is for ‘lack of
    jurisdiction,’ the effect is not an adjudication on the merits, and
    therefore the res judicata bar does not arise.").
    -12-
    -13-
    Medtronic next argues that a denial of a motion for leave to
    file an amended complaint has preclusive effect as to claims in the
    amended complaint.     The procedural history of all three cases cited
    by Medtronic, however, included an adjudication of the first
    complaint on the merits.            See, e.g., King v. Hoover Group, Inc.,
    
    958 F.2d 219
    , 221 (8th Cir. 1992) (original complaint dismissed on
    summary judgment); Nagle v. Lee, 
    807 F.2d 435
    , 443 (5th Cir. 1987)
    (original complaint dismissed for failure to prosecute); Carter v.
    Money Tree Co., 
    532 F.2d 113
    , 114 (8th Cir. 1976) (original claim
    dismissed    for    failure    to    state    a    claim).     Kulinski's      first
    complaint, on the other hand, was dismissed only for lack of
    subject matter jurisdiction.           We decline to contort the district
    court’s denial of Kulinski's proposed amended complaint into a
    denial on the merits.
    Finally, Medtronic argues that the district court's dismissal
    "with prejudice" operates as an adjudication on the merits and,
    therefore,    precludes       subsequent      actions.        We   disagree.     In
    McCarney, we held the plaintiff's second suit was not barred by the
    dismissal of his first suit despite its label "with prejudice"
    because it did not reach the 
    merits. 657 F.2d at 234
    .
    CONCLUSION
    For    the    foregoing    reasons,      we    reverse    the   dismissal   of
    Kulinski’s contract action and remand for proceedings consistent
    with this opinion.        We affirm the district court’s ruling of
    Medtronic’s cross-appeal.
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    A true copy.
    Attest:
    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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