## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 95-3682

___________ James M. Kulinski, * * Appellant, * * v. * * Medtronic Bio-Medicus, Inc., * * Appellee. *

___________ Appeal from the United States No. 95-3803 District Court for the District

___________ of Minnesota. James M. Kulinski, * * Appellee, * * v. * * Medtronic Bio-Medicus, Inc., * * Appellant. *

___________ Submitted: April 17, 1998 Filed: May 8, 1998

___________Judge Magill, who was ori ginally on the panel hearing this appeal, recused himself * afte r oral argument. Because a quorum of the court exists and the two remainin g judges agree on the outcome, a third judge is unnecessary for a determination of this appeal. Before BRIGHT and MURPHY, Circuit Judges. * BRIGHT, Circuit Judge. We return to this case following the answer by the Minnesota Supreme Court of a certified que stion of law relating to Minnesota savings statute, Minn. Stat. § 541.18 (1996)

. Pursuant to Minn. Stat. § 480.062 (1990), this court certified the followin g question of law to the Minnesota Supreme Court on May 2, 1997: [C] an a plaintiff in the particular circumstances of this case, whos e favorable verdict and judgment was v acated on appeal for lack of subject matter jurisdiction, bring the same claim under a differe nt legal theory and be saved by the operation of Minnesota's savings statute, § 541 .18 (1990), fromthe bar of the statute of limitations under Minn. Stat. § 541.07(5 ) (1990)?
Kulinski v. Medtronic Bio-Medicus, Inc. , 112 F.3d 368, 372 (8th Cir. 1997).
In an opin ion authored by Justice Tomljanovich dated April 16, 1998, th e Minnesot aSupreme Court (en banc) in case number C5-97-942, 1998 WL 175678 , answered the certified question in the affirmative.
We express our sincere appreciation to the Minnesota Supreme Court for it s assistance in this case. The issue certified relates to a difficult iss ue of construction and interpretation of a Minnesota statute, never previously considered by a Minnesotaappe llate court. It concerns a matter appropriate for resolution by the state suprem e

court.
I. PRIOR PROCEEDINGS
Our p rior opinion stated the background for this case and the referral to th e Minnesota Supreme Co urt of a certified question. We reiterate that background here.

James M. Kulinski brought this state law breach of contract action ag ainst Medtronic Bio-Medicus, Inc. (Medtronic). The district cour t dismissed Kulinski’s action pursuant to Minnesota’s statute of limitations for wage claims, Minn. Stat. § 541.07(5)(1990). Kulinski appealed and Medtr onic filed a protective cross-appeal arguing that Kulinski’s clai m was precluded by res judicata. We reversed the dismissal of Kulinski’s claimb ut affirmed the denial of Medtronic’s cross-appeal. Kulinski v

. Medtro nic Bio-Medicus, Inc. , 108 F.3d 904 (8th Cir. 1997). Medtronic then filed a petition for rehearing by this panel as well as a suggestion for rehearing en banc. We granted the petition for rehearing by the panel and vacated the panel’s original opinion, thereby rendering the request for a rehearing en banc moot. On rehea ring by the panel we again agree with the district court’s con clusions that the Minnesota statute of limitations, Minn. Stat. § 541.07 (5)(1990), applies and again affirm the dismissal of Medtronic’ s cross-a ppeal. However, we certify to the Minnesota Supreme Court , pursuan t to Minn. Stat. § 480.061 (1996), the question of the distric t cour t’s rejection of the application of the savings statute, Minn. Stat. § 541.18 (1990), to the facts of this case. BACKGROUND Kulin ski worked for Bio-Medicus, Inc. (Bio-Medicus) as it s national sales manager. In January1990, Kulinski executed a change-ofcontrol termination agreement (CCTA), or “golden parachu te” agreement, with Bio-Medicus. This CCT A entitled Kulinski to a lump sum paymentas severance if his employment terminated or was otherwise detrimentally

affected as the result of a hostile takeover of Bio-Medicus. In June 1990, Kulinski signed a second CCTA that entitled him to severance benefits if his employme nt terminated or was detrimentally affected as the result of a friendly merger. In S eptember 1990, Bio-Medicus merged with Medtronic, Inc. to formMedtronic Bio-Medicus, Inc. (Medtronic). Kulinski refused th e merged entity’s offer of a two-year positi on at a reduced salary. Kulinski res igned and notified Bio-Medicus and Medtronic, Inc. that h e experienced a “change of control termination” under the second CCTA. Bio-Medicus rejected Kulinski’s request for his lump sum severanc e payment. Kulinski brought his first action against Medtronic on February 26, 1991, asserting a

claim under the Employee Retirement Income Security Act (E RISA), 29 U.S.C. §§ 1001-1461 (1988 & Supp. III 1991), fo r breach of t he CCTA. Both parties and the district court agreed tha t federal question jurisdiction existed under E RISA. Kulinski did not bring any pendant state l aw claims at this time. After a bench trial, the district court awarded Kulinski $254,566 in severance pay, in addition t o attorney’s fees, costs, and prejudgment interest. Medtronic appealed without challenging t he application of ERISA. This cour t held, sua sponte, that no ERISA plan existed and, therefore , the district court lacked subject matter jurisdiction. Kulinski v. Medtronic Bio-Med icus, Inc. , 21 F.3d 254, 258 (8th Cir. 1994). We vacated th e judgment for Kulinski and remanded th e case with instructions to dismiss for lack of subject matter jurisdiction. Id. Kulinski then moved to amend his ERISA complaint to alleg e a state law breach of contract claim under diversi ty jurisdiction. The district court denied Kulinski’s motion an d dismissed the case with prejudice. Kulinski appealed that decision on July 18, 1994. This cour t up heldthe district court’s decision to dismiss Kulinski’s ERISA actio n with p rejudice. Kulinski v. Medtronic Bio-Medicus, Inc. , 60 F.3d 83 0 (8th Cir. 1995) (per curiam) (unpublished).Before we reviewed that appeal, however, Kulinski filed a ne w

action against Medtronic in federal district court based on diversit y jurisdiction. Kulinski raised the state law breach of contract claim that the district court previously dismissed by rejecting Kulinski’s motion t o amend his first (ERISA) action. Medt ronic moved to dismiss this second action pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds of res judicata and the statute of limitation s. The district court held Medtronic’s motion under advisement pending Kulinski’s appeal. After Kulinski lost his appeal, the district court grante d Medtronic’s motion to dismiss Kulinski’s state law action as barred b y Minne sota’s statute of limitations for wage claims, Minn. Stat. § 541.07(5). The court, however, rejected Medtronic’s argument that res judicata precluded Kulinski’s action. These appeals followed.

Kulinski , 112 F.3d at 368-70. In this litigation, Kulinski presents three issues on appeal.
Kulins ki first argues that his claim is not barred by the statute o f limitations because he is not bringing a cla im for “wages” for purposes of Minn. St at. § 541.07(5). Kulinski also argues that, even if the statut e applie s, his claim is not subject to the statute of limitations because th e claimis sa ved under Minn. Stat. § 541.18 (1990). In the alternative , Kulinski seeks equitable relief from the statute of limitations.

Id. at 371.
Medtronic argues as an alternative ground for affirmance that Kulinski's claim is precluded by res judicata. Id. We vacated this court's earlier opinion on this case reported at 108 F.3d 904 (8th Cir. 1997) by granting a rehearing by the panel. On the rehearing, we determined inKulinski also asked for equitable relief. We do not reach that issue as it is no w 1 moot. our opinion that (1) the e mployees' severance payments were "wages" for purposes of Minnesota's two-year statute of limitations applicable for recovery of wages and that (2) plaintiff's claim was not barred by the doctrine of res judicata. As to the latter issue, we affirmed the d enial of the cross-appeal by Medtronic Bio-Medicus, Inc. Kulinski , 112 F.3d at 373. That opinion resolved those two issues. 1 In that opinion, we certified the savings statute issue to the Supreme Court of the State of Minnesota. In our referral we said:

"I n the absence of controlling precedent in the decisions of th e Minnesota Supreme Court which would enable this court to reach a sound decision without indulging in speculation or conjecture, we believe th e be tter practice is to seek a definitive resolution of th[is] state la w question[] by the Minnesota Supreme Court." Kaiser v. Memorial Blood Center of Minneapolis, Inc. , 938 F.2d 90, 93-94 (8th Cir. 1991)

. Accordingly, we certify the following questi on to the Minnesota Supreme Court pursua

nt to Minn. Stat. § 480.061: can a plaintiff in the particular circums tances of this case, whose favorable verdict and judgment wa s vacated on appeal for lack of subject matter jurisdiction, bring the same claimunder a different legal theory and be saved by the operation o f Minnesota’s savin gs statute, § 541.18 (1990), from the bar of the statute of limitations under Minn. Stat. § 541.07(5)(1990)?

Kulinski , 112 F.3d at 372.
As we have already observed, the Minnesota Supreme Court answered th e certified question in the affirmative. Kulinski v. Medtroni c Bio-Medicus, Inc. , No. C5- 97-942, 1998 WL 175678 (Minn. Apr. 16, 1998). The ans wer to the certified question has now resolved all issues in this case.The Minnesota Supreme Court addressed two issues when considering th e

cert ified question of whether Minnesota's savings statute saves Kulinski's breach o f contract action. Minnesota's savings statute provides: Except where the uniform commercial code otherwise prescribes, i f judgme nt be recovered by plaintiff in an action begun within th e prescribed period of limitation and such judgment be afterward arrested or re versed on appeal, the plaintiff may begin a new action within on e year after such reversal or arrest.

Minn. Stat. § 541.18. First, the Minnesota Supreme Court held "that a judgment fo r the p laintiff, vacated on appeal for lack of subject-matter jurisdiction, is 'reversed ' within the meaning of section 541.18" because an alternative c onstruction would defeat the legisla tive purpose and "a vacated judgment has the same practical effect a s reversal." 1998 WL 175678 at *3. Second, the Minnesota Supreme Court decided that the savings statute permits a different legal theory to be raised in a subsequent action as long as the defendant received notice. 1998 WL 175678 at *4-5. The Minnesota Supr eme Court concluded that "Bio-Medicus received notice, within the limitation s period, of Kulinski's stance--i.e., the termination agreements boun d Bio-Medicus to pay severance b enefits to Kulinski in the event of a takeover and termination of hi s employment." 1998 WL 175678 at *5. For resolution of the Minnesota savings statute issue, we a re bound to follow the ruling o f the Minnesota Supreme Court on the certified question. See Kaiser v

. Me morial Blood Center of Minneapolis, Inc. , 977 F.2d 1280 (8th Cir. 1992)

. According ly, we hold that Minn. Stat. § 541.18 saves Kulinski's breach of contrac t action from the statute of limitations governing wage claims.II. CONCLUSION

For the foregoing reasons, we reverse t he dismissal of Kulinski's contract action and remand for further pro ceedings consistent with this opinion and the opinion of the Minnesota S upreme Court. We affirm the district court's ruling rejecting Medtronic's cross-appeal. A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.