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Ramirez v. Walmart

Supreme Court of North Dakota

July 18, 2018

David A. Ramirez, Plaintiff and Appellant
v.
Walmart, Defendant and Appellee

          Appeal from the District Court of Stutsman County, Southeast Judicial District, the Honorable Cherie L. Clark, Judge.

          David A. Ramirez, Jamestown, ND, plaintiff and appellant.

          Christopher R. Hedican, Omaha, NE, for defendant and appellee.

          OPINION

          Crothers, Justice.

         [¶ 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.

         I

         [¶ 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' "unfair" terminations.

         [¶ 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.

         II

         [¶ 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.

         III

         [¶ 6] Ramirez argues the district court erred in dismissing his retaliatory discharge claim.

         [¶ 7] In Martin v. Marquee Pacific, LLC, 2018 ND 28, ΒΆ ...


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