David A. Ramirez, Plaintiff and Appellant
Walmart, Defendant and Appellee
from the District Court of Stutsman County, Southeast
Judicial District, the Honorable Cherie L. Clark, Judge.
A. Ramirez, Jamestown, ND, plaintiff and appellant.
Christopher R. Hedican, Omaha, NE, for defendant and
1] David Ramirez appeals from an order dismissing his
retaliatory discharge action against Walmart without
prejudice for failure to state a claim upon which relief
could be granted. We affirm, concluding the order is
appealable and the district court did not err in dismissing
Ramirez's retaliatory discharge claim on the pleadings.
2] Ramirez was employed by Walmart in Jamestown. On April 18,
2017 Walmart terminated Ramirez's employment. On October
13, 2017 Ramirez sued Walmart under N.D.C.C § 34-01-20,
which prohibits retaliatory discharges by employers. Ramirez
claimed he was discharged from employment in retaliation for
complaining to supervisors about other employees'
3] Walmart moved to dismiss the action for failure to state a
claim upon which relief can be granted under N.D.R.Civ.P.
12(b)(6), arguing Ramirez failed to plead any facts
establishing that his complaints about "serial
dismissals" constituted protected activity as defined in
the statute. The district court granted the motion on
December 1, 2017, and dismissed the action without prejudice.
4] Although an order dismissing a complaint without prejudice
is generally not appealable, when a statute of limitations
has run, a dismissal without prejudice is appealable because
it forecloses litigation in the plaintiff's chosen forum.
See James Vault & Precast Co. v.
B&B Hot Oil Serv., Inc., 2018 ND 63, ¶ 10, 908
N.W.2d 108. Ramirez's action is premised solely on the
retaliatory discharge statute which contains a 180-day
statute of limitations running from the date the violation
occurred. See N.D.C.C. § 34-01-20(3);
Vandall v. Trinity Hosps., 2004 ND 47, ¶ 16,
676 N.W.2d 88.
5] Ramirez commenced this action 178 days after his
termination from employment, and the statute of limitations
expired by the time the district court rendered its decision.
Therefore, the order is appealable.
6] Ramirez argues the district court erred in dismissing his
retaliatory discharge claim.
7] In Martin v. Marquee Pacific, LLC, 2018 ND 28,