Opinion
Civil No. A2-98-123.
March 23, 1999.
MEMORANDUM AND ORDER
Before the court are defendant's motions to dismiss plaintiff's complaint under F.R.C.P. 12(b)(5) for insufficient service and Rule 12(b)(1) and (6) for lack of jurisdiction. (Doc. #2, 6.) Plaintiff's complaint alleges violations of Title IX and the North Dakota Human Rights Act. With respect to defendant's first motion to dismiss, defendant claimed that plaintiff had not personally served defendant as required by F.R.C.P. 4(j)(2) and N.D.R.C.P. 4(d)(2)(F). Plaintiff did not respond to defendant's motion, but did personally serve UND President Kendall Baker on January 5, 1999, according to defendant. (Doc. #6.) Since defendant has now been properly served, albeit untimely, the court denies plaintiff's first motion to dismiss as moot.
Even if the court would grant defendant's motion, it would have dismissed plaintiff's complaint without prejudice. Thus, defendant is not prejudiced in any way by plaintiff's untimely service.
With respect to defendant's motion to dismiss for lack of jurisdiction, defendant asserts that both plaintiff's federal and state claims should be dismissed since plaintiff failed to provide timely written notice of his claim to the North Dakota Office of Management and Budget (OMB) as required under N.D.C.C. § 32-12.2-04(1). Defendant argues that since this notice provision is a jurisdictional prerequisite, both of plaintiff's claims must be dismissed. Plaintiff responds by arguing that the injury for which he seeks relief does not fall within the scope of § 32-12.2-04(1), and therefore the notice requirement does not apply. In the alternative, plaintiff argues that because he has alleged a violation of Title IX, the federal interest supercedes the state law notice requirement.
The court agrees with defendant's argument with respect to plaintiff's claim under the North Dakota Human Rights Act. N.D.C.C. § 32-12.2-04(1) provides:
A person bringing a claim against the state or a state employee for an injury shall present to the director of the office of management and budget within one hundred eighty days after the alleged injury is discovered or reasonably should have been discovered a written notice stating the time, place, and circumstances of the injury, the names of any state employees known to be involved, and the amount of compensation or other relief demanded.
The North Dakota Supreme Court has held that actual notice of the claim does not meet the notice requirement of § 32-12.2-04(1) without a writing in conformance with the statute, and that failure to allege that such notice was given precludes all noncontractual claims against the state. See Messiha v. North Dakota, 583 N.W.2d 385, 390-91 (N.D. 1998) (affirming dismissal of plaintiff's wrongful termination claim against UND for failure to provide written notice to the OMB).
In this action, plaintiff does not allege that he gave timely notice to the OMB, and in fact, impliedly admits that such notice was not given. Instead, plaintiff attempts to argue that § 32-12.2-04(1) does not apply because the injury he allegedly suffered does not fall within the scope of the notice provision. The court finds that plaintiff's argument is completely without merit and borders on being frivolous. Although plaintiff does not allege any physical injury, he clearly alleges an "injury to [his] rights or reputation," which constitutes an "injury" under § 32-12.2-04(1). See N.D.C.C. § 32-12.2-01(2), (4) (defining "injury" and "personal injury"). As to plaintiff's alternative argument, the fact that plaintiff alleges a Title IX claim together with his state law claim is irrelevant in considering whether his state law claim is barred by the notice-of-claim provision. Although the facts alleged for each claim are identical, the claims are distinct, and under North Dakota law plaintiff must provide written notice to the OMB within 180 days of discovery of his claim or he is precluded from asserting his state law claim. Therefore, since plaintiff did not provide written notice within 180 days of the actions giving rise to his claim, the court grants defendant's motion with respect to plaintiff's state law claim and orders that plaintiff's cause of action under the North Dakota Human Rights Act be dismissed.
Defendant also argues that plaintiff's Title IX claim should be dismissed for failing to meet the North Dakota notice-of-claim provision. The court disagrees. Title IX impliedly creates a private cause of action for private persons over which the court clearly has subject matter jurisdiction under 28 U.S.C. § 1331.See Cannon v. University of Chicago, 441 U.S. 677 (1979). Although North Dakota's notice-of-claim provision is a jurisdictional prerequisite for any state law claim, it does not apply to purely federal claims; jurisdiction of federal claims is determined exclusively by federal law. Thus, the court denies defendant's motion to dismiss as to plaintiff's Title IX claim.
However, upon review of plaintiff's complaint, the court questions whether plaintiff has standing to bring a Title IX claim. See Lowrey v. Texas A M University System, 117 F.3d 242 (5th Cir. 1997); Brine v. University of Iowa, 90 F.3d 271 (8th Cir. 1996). Standing is a jurisdictional requirement that the court may raise sua sponte. Since the court is raising this issue sua sponte, the court invites the parties to brief this issue so that their arguments may be considered. The parties shall have until April 30, 1999 to file briefs on the issue of whether plaintiff has standing to assert a Title IX claim. After that date, the court will determine whether plaintiff's remaining Title IX claim can proceed.
IT IS ORDERED:
1. Defendant's motion to dismiss for insufficient service is denied as moot. (Doc. #2.)
2. Defendant's motion to dismiss for failure to provide notice is granted as to plaintiff's state law claim, but denied as to plaintiff's cause of action under Title IX. (Doc. #6.) Plaintiff's cause of action under the North Dakota Human Rights Act is dismissed with prejudice.
3. Parties shall have until April 30, 1999 to file briefs on the issue of plaintiff's standing to assert a Title IX claim.
KAREN K. KLEIN U.S. Magistrate Judge