United States District Court, D. South Dakota, Northern Division
OPINION AND ORDER
CHARLES B. KORNMANN United States District Judge
Plaintiff instituted this employment discrimination action contending that defendant Gortmaker engaged in gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the South Dakota Human Relations Act of 1972, SDCL 20-13-10 and 26, and that defendant Black engaged in tortious interference with her employment contract. Defendant Black filed a motion to dismiss on the basis that he is not amenable to suit in his individual capacity under Title VII and that plaintiff failed to give notice of her state law claims as required by SDCL 3-21-2. Plaintiff clarified that she was only suing defendant Black in his individual capacity for tortious interference. Defendant Black advised the Court that he was no longer pursuing his motion to dismiss and that motion was denied.
Defendant Gortmaker filed a motion to dismiss on the basis that he is not subject to suit under Title VII in his individual capacity and that plaintiff failed to give notice of her state law claims as required by SDCL 3-21-2. Plaintiff clarified that she was only suing defendant Gortmaker in his official capacity and defendant Gortmaker advised the Court that he is no longer pursuing his motion to dismiss on that basis.
Plaintiff filed an unopposed motion to amend her complaint to more clearly state the communications she made concerning her claims which she contends comply with the notice statute. That motion was granted.
South Dakota's notice requirement provides:
No action for the recovery of damages ... caused by a public entity or its employees may be maintained against the public entity or its employees unless written notice of the time, place, and cause of the injury is given to the public entity as provided by this chapter within one hundred eighty days after the injury. Nothing in this chapter tolls or extends any applicable limitation on the time for commencing an action.
SDCL 3-21-2. South Dakota law further provides that, in the case of an action against the State of South Dakota, notice shall be given to the Attorney General and the Commissioner of Administration. SDCL 3-21-3.
The South Dakota Supreme Court has set forth the purposes of South Dakota's notice statute:
(1) To investigate evidence while fresh; (2) to prepare a defense in case litigation appears necessary; (3) to evaluate claims, allowing early settlement of meritorious ones; (4) to protect against unreasonable or nuisance claims; (5) to facilitate prompt repairs, avoiding further injuries; (6) to allow the [public entity] to budget for payment of claims; and (7) to insure that officials responsible for the above tasks are aware of their duty to act.
Anderson v. Keller, 2007 S.D. 89, ¶ 13, 739 N.W.2d 35, 40.
State law notice of claim statutes are inapplicable in federal civil rights actions brought in federal court. Felder v. Casey, 487 U.S. 131, 140, 108 S.Ct. 2302, 2308, 101 L.Ed.2d 123 (1988). Thus, South Dakota's notice of claim statute cannot defeat plaintiffs Title VII action against Gortmaker.
The United States Supreme Court has long held that, in cases of diversity jurisdiction, "federal courts are to apply state substantive law and federal procedural law." Hanna v. Plumer, 380 U.S. 460, 465, 85 S.Ct. 1136, 1141, 14 L.Ed.2d 8 f1965) (citins Erie R. Co. v. Tompkins. 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). This principle applies equally in the context of pendent jurisdiction over ...