Summary: Defendants brought a motion to amend answer to add additional affirmative defenses and motion to sever and/or bifurcate. The plaintiff did not object to the motion to amend and it was therefore granted. Plaintiff asserted the motion to bifurcate or sever was premature. The court disagreed and ordered that the state law NDHRA claim and the ADEA claims shall be severed and presented to two different juries, given the differing standards of proof applicable to each claim and the likelihood of confusion if the same jury were to consider both.

Case Name: Thyberg v. Melroe, et al.
Case Number: A1-00-01
Docket Number: 29
Date Filed: 11/20/00
Nature of Suit: 442

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION

ORDER

Before the court is defendants' Melroe Company, Clark Equipment Company, and Ingersoll-Rand Company Motion to Amend Answer to Add and Amend Affirmative Defenses (Doc. # 16) and defendants' Motion to Sever or Bifurcate (Doc. #19). Plaintiff has stated no objection to the defendants' motion to amend answer. (Doc. #20). Accordingly, defendants' Motion to Amend Answer to Add and Amend Affirmative Defenses (Doc. #16) is GRANTED. In response to the motion to sever or bifurcate, plaintiff asserts that this motion is premature because he has not obtained adequate discovery in order to fully evaluate his claims. Plaintiff has further stated that he may be in a position to dismiss one or more claims voluntarily, depending on the information obtained through discovery. The court agrees with the defendant that this motion is neither premature nor fact based. Rather, the issue to presented to the court is primarily a procedural one: Should the ADEA and the North Dakota Human Rights Act causes of action be either severed or bifurcated, given the different standard of proof applicable to each? For the following reasons, the undersigned answers this question in the affirmative.

Case law is clear that state and federal claims with varying burdens of proof should not be tried together. Recognizing that the proof of pretext is not an essential element of the plaintiff's burden in a state law cause of action, see Schweigert v. Provident Life, Ins. Co., 503 N.W.2d 225, 227-29 (N.D. 1993), the Eighth Circuit Court of Appeals held that, "[i]n most cases, when federal and state claims are joined and the federal claims are dismissed on a motion for summary judgment, the pendent state claims are dismissed without prejudice to 'avoid needless decisions of state law . . . as a matter of comity and to promote justice between the parties.'" Birchem v. Knights of Columbus, 116 F.3d 310, 313 (8^th Cir. 1997) (quoting Ivy v. Kimbrough, 115 F.3d 550. 553 )8^th Cir. 1997) (citations omitted). The Eighth Circuit, in footnote three of the Birchem opinion further suggested that, in the event a plaintiff was entitled to a jury trial on a federal claim, "the federal court should consider dismissing any pendent or supplemental claims under the NDHRA before trial." Id. at 314. The plaintiff would still have the option of pursuing that state claim in state court, "or in federal court if there is diversity jurisdiction." Id.

Defendants assert that this court has diversity jurisdiction of the action and that dismissal of the state law claims would simply result in a removal to this court again. Thus, the issue is not whether to dismiss the state law claims but rather whether to bifurcate or sever. It is the undersigned's view that severance would be the more appropriate stance in this case. Severance would require two trials presented to two juries encompassing both liability and damages. Bifurcation would result in the presentation of the same evidence to the same jury, which would then be charged with the daunting task of deciphering the parties' burdens under very different standards. The court finds that the potential for confusion is simply too great under the scenario envisioned by bifurcation. Therefore, IT IS ORDERED that the state law NDHRA claim and the ADEA claims shall be severed and presented to two different juries, in the event the claims survive the pending summary judgment motions.

Defendant's Motion to Sever or Bifurcate (Doc. # 19) is GRANTED.

Pursuant to Local Rule 72.1(E)(3), any party may appeal from this order within ten (10) days after being served with a copy thereof.

Dated this ____ day of November, 2000.