Judge Magill, who was originally on the panel hearing thi s * appeal, recused himself after oral argument. Because a quorum of the court exists and the two remaining judges agree on the o utcome, a third judge is unnecessary for a determination of this appeal.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 95-3682

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

___________ Appeal and Cross-Appeal from th e United States District Court No. 95-3803 for the District of Minnesota.

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

___________ Submitted: October 23, 1996 Filed: March 13, 1997

___________ Before BRIGHT and MURPHY, Circuit Judges. *

___________ BRIGHT, Circuit Judge.-2--3-

Jam es M. Kulinski brought this state law breach of contrac t
ac tionagainst Medtronic Bio-Medicus, Inc. The district cour t dismis sedKulinski's action pursuant to Minnesota's statute o f limit ations for wage claims, Minn. Stat. § 541.07(5)(1990)
. Kuli nski appealed and Medtronic filed a protective cross-appea l arguing that Kulinski's claim was precluded by res judicata. W e reverse the dismissal of Kulin ski's claim but affirm the denial of Medtronic's cross-appeal.

BACKGROUND

Kuli nski worked for Bio-Medicus, Inc. (Bio-Medicus) as it s nat ional sales manager. In January 1990, Kulinski executed a change-of-control termination agreement (CCTA), or "golde n parac hute" agreement, with Bio-Medicus. This CCTA entitle d Kulinski to a lump sum payment as severance if his employmen t terminated or was otherwise detrimentally affected as the re sult of a hostile takeover of Bio-Medicus. In June 1990, Kulinski signed
a second CCTA which entitled him to severance benefits if hi s employment terminated or was detrimentally affected as the result of a friendly merger.
In September 1990, Bio-Medicus merged with Medtronic, Inc. to form Medtronic Bio-Medicus, Inc. (Medtronic). Kulinski refu sed the merged entity's offer of a two-year position at a reduced salary. Kulinski resigned and notified Bio-Medicus and Medtronic, In c. that he experienced a "change of control termination" under the second CCTA. Bio-Medicus rejected Kulinski's request for his lump sum severance payment.-4-

Kulin ski brought his first action against Medtronic o n February 26, 1991, asserting aclaim under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461 (1988 & Supp. III 1991), for breach of the CCTA. Both parties and the district court agreed that federal question jurisdiction existed unde r ERISA. Kulinski did not bring any pendant state law claims at this time. After a bench trial, the district court awarded Kulinsk i $254,566 in severance pay, in addition to attorney's fees, costs, and prejudgment interest.

Medtronic appealed without challenging the application o f ERISA
. This court held, sua sponte, that no ERISA plan existe d and, therefore, the district court lacked subject matte r juri sdiction. Kulinski v. Medtronic Bio-Medicus, Inc. , 21 F.3 d 254, 258 (8th Cir. 1994). We vacated the judgment for Kulin ski and remanded the case with instruc tions to dismiss for lack of subject matter jurisdiction. Id. Kulinski then moved to amend his ERISA complaint to allege a state law breach of contract claim unde r diversity jurisdiction. The district court denied Kulinski' s motion and dismissed the case with prejudice.
Kulinski appealed that decisio n on July 18, 1994. This court upheld the district court's decision to dismiss Kulinski's ERIS A action with prejudice. Kulinski v. Medtronic Bio-Medicus, Inc. , No. 94 -2829, 1995 WL 413319, at *1 (8th Cir. July 14, 1995) (pe r curiam) (unpublished).
Before we reviewed that appeal , however, Kulinski filed a new acti onagainst Medtronic in federal district court based o n div ersityjurisdiction. Kulinski raised the state law breach o f
co ntract claim that the district court previously dismissed by re jecting Kulinski's motion to amend his first (ERISA) action
. Medtronic moved to dismiss this second action pursuant to Fed. R.-5-

Civ. P. 12(b)(6) on the ground s of res judicata and the statute of li mitations. The district court held Medtronic's motion unde r advisement pending Kulinski's appeal.

Afte r Kulinski lost his appeal, the district court grante d Medtronic's motion to dismiss Kulinski's state law action as barred by Minnesota's statute of limi tations for wage claims, Minn. Stat. § 54 1.07(5). The court, however, rejected Medtronic's argumen t that res judicata precluded Kulinski's action. These appeal s followed.

DISCUSSION
Kulinski raises three issues on appeal. Kulinski first argu es that his claim is not barred by the statute of limitations because he is not bringing a claim for “wages” for purposes of Minn. Stat. § 541.07(5). Kulinski also argues that, even if the statut e applies, his claim is not subject to the statute of limitation s because it is saved under Minn. Stat. § 541.18 (1990). Finally , Kulins ki seeks equitable relief from the statute of limitations
. In addition to contesting Kuli nski's appeal, Medtronic argues that Kulinski's claim is precluded by res judicata. We review th e district court's dismissal of Kulinski's complaint de novo, Carney
v. Hou ston , 33 F.3d 893, 894 (8th Cir. 1994), and presume all o f Kul inski's factual allegations as true. Miree v. DeKalb County , Georgia , 433 U.S. 25, 27 n.2 (1977).

I.
Section 541.07(5) provides that an action shall be commenced within two years if it is:-6-

For the recovery of wages or overtime or damages, fees o r penal ties accruing under any federal or state la w respecting the payment of wages or overtime or damages, fees or penalties except, that if the employer fails to submit payroll records by a specified date upon request of the department of labor and industry or if th e non payment is willful and not the result of mistake o r inadvertence, the limitation is three years. (The term "wages" means all remuneration for services o r employment, including commissions and bonuses and th e cash value of all remuneration in any medium other than cash, where the relationship of master and servant exist s . . . )[.]
Minn. Stat. § 541.07(5).
It is undisputed that the time allotted in § 541.07(5) expir ed before Kulinski filed this diversity action. Nearly four year s passed between Medtronic's alleged breach of contract in 1990 and the filing of Kulinski's second action in 1994. Kulinski, h owever, argues that § 541.07(5) is not applicable because he does no t bring a claim for "wages" within the meaning of that section. Instead, Kulinski argues that his actio n is covered by Minnesota's six-year statute of limitations for actions based "[u]pon a contract o r oth er obligation, express or implied, as to which no othe r limitation is expressly prescr ibed . . . ." Minn. Stat. § 541.05, subd. 1(1) (1990). We disagree.
Although it appears that no Minnesota court has specifically addre ssedwhether wages under § 541.07(5) include severanc e benefi ts, Minnesota courts consistently hold that "all damage s arisin g out of the employment relationship are subject to [ § 541.07(5)]." Stowman v. Carlson Companies, Inc. , 430 N.W.2d 490, 493 (Minn. Ct. App. 1988) (applying Portlance v. Golden Valle y State Ba nk , 405 N.W.2d 240, 243 (Minn. 1987)); see also Levin v
. C.O.M.B. Co. , 441 N.W.2d 801, 804 (Minn. 1989) (unpaid commissions due pursuant to an employment contract); Portlance , 405 N.W.2d atKulinski proposes a very different reading of Minnesota case

law. He cites McDaniel v. United Hardware Distrib. Co. , 469 N.W.2d 84 (Minn. 1991), for the proposition that the two-year statute of limitations does not apply unless the claim is either for hourl y pay or for wages that would have been earned had the employee not been wrongfully terminated. That action rested on rights created by statute and is, therefore, distinguishable. -7- 243 (w rongful discharge based on an oral contract of employmen t allegedly modified by an employees' manual); Worwa v. Solz E nters., Inc. , 238 N.W.2d 628, 631 (Minn. 1976) (contractual wage claims); Roaderick v. Lull Eng'g Co. , 208 N.W.2d 761, 762-63 (Minn. 1973 ) (commission or bonus payments); Kohout v. Shakopee Foundry C o. , 162 N.W.2d 237, 239-40 (Minn. 1968 ) (accrued but unpaid vacation pay); Kletschka v. Abbott-Northwestern Hosp., Inc. , 417 N.W.2d 752, 755 (Minn. Ct. App. 1988) (salary increases and "adjustment of al l fringe benefits"); cf. Adamsonv. Armco, Inc. , 44 F.3d 650, 652-53 (8th C ir.) (construing Stowman to conclude that Minnesota court s construe § 541.07(5) broadly), cert. denied , 116 S. Ct. 85 (1995). Th e Minnesota Supreme Court has also explicitly recognized th e "bro addefinition of wages stated in [§ 541.07(5)] . . . . " Roaderick , 208 N.W.2d at 763.

Inlight of the consistently broad construction given t o § 541.07(5), we affirm the district court in considering Kul inski’s claimas one within the general concept of wages. The distric t 2 court did not err in applying the two-year limitation under § 541.07(5).

II.

Kulins ki argues that even if the statute of limitation s applies, his claim is "saved" by Minnesota's savings statute:-8--9- Except where the uniform commercial code otherwise prescribes, if judgment be recovered by plaintiff in an action begun within the prescribed period of limitation and su ch judgment be afterward arrested or reversed o n error or appeal, the plaintiff may begin a new actio n within one year after such reversal or arrest.

Minn. Stat. § 541.18 (1990). This statute, virtually unchange d since its enactment in 1851, is rarely utilized and is no t interp retedby any appellate court. Furthermore, no legislativ e history is available.
We start, of course, with the plain language of the statute. Gale v. Commissioner of Taxation , 37 N.W.2d 711, 714-15 (Minn
. 1949). Indeed, simply because the statute is quite old does no t release us from our obligation to give the statute its plai n meaning. See, e.g. , I.N.S. v. Phinpathya , 464 U.S. 190, 191-9 2 (1984) (holding that thirty-two-year-old statute must still b e given its plain meaning); see also Minn. Stat. § 645.16 ("Ev ery law shall be construed, if possible, to give effect to all it s provisions. When the words of a law in their application to a n exi sting situation are clear and free from all ambiguity, th e lette r of the law shall not be disregarded under the pretext o f pu rsuing the spirit."). Kulinski meets the plainly worde d requirements of Minn. Stat. § 541.18. First, he filed his o riginal complaint five months after the alleged breach of contract an d wit hinthe statute of limitation. Second, Kulinski prevailed a t trial and was awarded over $25 0,000 in damages. Third, this court reversed that judgment, not onthe merits, but for lack of subject matter jurisdiction. Fourth, Kulinski began this action based o n diversity jurisdiction within one year of our reversal.

Th e district court, however, held the savings statute wa s "inapplicable to the facts of this case as Kulinski is not b ringingInde ed, the only legal issue present in Kulinski's firs t 3 (ERISA) action which need not be examined in Kulinski's secon d action is whether the CCTA con stituted an employee welfare benefit plan under ERISA. -10- a ne w action based on the same claim as had been previousl y reversed, rather he is asserti ng a new claim." Dist. Ct. Order at 8. We disagree.

A‘cause of action’ is a situation or state of fact s which entitles a party to sustain an action and gives hi m the ri ght to seek judicial interference in his behalf
. Un der the Federal Rules of Civil Procedure, the wor d ‘claim ’ denotes the same thing, i.e. ‘the aggregate o f operative facts which gives rise to a right enforceable in the courts.’

Rhodes v. Jones , 351 F.2d 884, 886-87 (8th Cir. 1965) (quoti ng Dery v. Wyer , 265 F.2d 804, 807 (2d Cir. 1959)). Here, Kulinski' s claim that Medtronic breached the CCTA agreement is the same in bot h actions. Thus, both actions share identical operative documents, witnesses, measure of recovery and essentially the same lega l issues. The only distinction is that Kulinski now asserts a legal

3 theory, state law breach of co ntract under diversity jurisdiction, th at is different from his ERISA theory. In fact, Kulinski i s bringing the same claim.
Significantly, Kulinski did not deliberately or carelessl y withhold the state law cause o f action as an alternative theory in his original pleading. ERISA is an "enormously complex an d detailedstatute", Mertens v. Hewitt Assoc. , 508 U.S. 248, 26 2 (1993) and "contains a preemption provision that applies to state
common law-based claims . . . ." Bannister v. Sorenson , 1996 W L 731897, at *2 (8th Cir. (Neb.)). This preemptive force explain s Kul inski's decision to proceed without alternative state la w theories. Indeed, both parties and the district court initially-11-

believedthe CCTA was an ERISA plan and Medtronic's first appea l did not even contest jurisdiction under ERISA.
We refrain from interpreting the statute to permit a plainti ff to bring a different claim on a successive appeal because tha t issue is not before us. Rather, our holding is narrow. We believe the statute allows a prevailin g plaintiff, like Kulinski, to bring a renewed action based on the same claim that he originally sought relief if, through no fault of his own, a jurisdictional erro r results in the reversal of his judgment on appeal. Accordingly , Kulinski's second action, based on diversity jurisdiction, i s covered by the savings statute and, therefore, is not time-barred.

III.

Becaus e we conclude that the savings statute applies t o Kulins ki's claim, we decline to reach his request for equitabl e relief.

IV.

Med tronic raises a cross-appeal asserting that, even i f Kulinski's claim survives the statute of limitations, his claim is prec ludedby res judicata. Claim preclusion requires thre e el ements: (1) identical parties in the lawsuits; (2) identica l claims or causes of action; an d (3) a final judgment on the merits in the prior action. Lane v. Peterson , 899 F.2d 737, 741 (8 th Cir. 1990). In this case, the part ies and claims are identical in both suits. The only issue, then, is whether the district cour t rendereda final judgment on the merits in the original action
. The district court held that the dismissal of Kulinski's firs t complaint under ERISA for lack of jurisdiction was not anMedtronic's attempt to persuade us to ign ore our precedent is 4 unconvincing. Medtronic cites to two cases for support. Kale v. Combined Ins. Co. of America , 924 F.2d 1161 (1st Cir. 1991); Shaver v. F. W. Woolworth Co. , 840 F.2d 1361, 1367 n.2 (7th Cir. 1988)
. These cases differ significantly from the case at bar because i n both Kale and Shaverthe origi nal cause of action was dismissed on the merits and with prejudice. Here, of course, Kulinski's initial claim was dismissed for lack of subject matter jurisdiction and was not on the merits. Johnson v. Boyd-Richardson Co. , 650 F.2d 147, 148 (8th Cir. 1981) ("[W]hen a dismissal is for ‘lack o f jurisdiction,’ the effect is not an adjudication on the meri ts, and therefore the res judicata bar does not arise."). -12- adjudication on the merits of that claim and, therefore, was not a final judgment.
Medtronic first argues that re s judicata requires Kulinski to pleadall bases for jurisdiction in his original pleading. Thi s argument is inconsistent with our precedent. In McCarney v. Ford Motor Co. , 657 F.2d 230 (8th Cir. 1981), we held that a dismissal based on subject matter jurisdiction:
should preclude relitigation of the same [jurisdiction] issue but not a second suit on the same claim even i f arising out of the identical s et of facts. . . . [W]here the second suit presents new theories of relief , admittedly

based upon the same operative facts as allege d inthe first action, it is not precluded because th e first decision was not on the merits of the substantive claim.

Id. at 233-34 (citations omitted); cf. Oglala Sioux Tribe v
. Homestake Mining Co. , 722 F.2d1407, 1411 (8th Cir. 1984) (holding second action barred by res ju dicata because plaintiff "assert[ed] identical claims and jurisdict ional grounds" as the first action). Kulinski based his first action on federal ERISA law and his second actionon state contract law. Thus, the dismissal of Kulinski' s first action precludes another ERISA claim, but not the same claim under a different theory and jurisdictional basis. 4-13--14-

Medtronic next argues that a denial of a motion for leave to file an amended complaint has preclusive effect as to claims in the amended complaint. The procedural history of all three case s cited byMed tronic, however, included an adjudication of the firs t complain t on the merits. See, e.g. , King v. Hoover Group, Inc. , 958 F.2d 219, 221 (8th Cir. 19 92) (original complaint dismissed on summary judgment); Nagle v. Le e , 807 F.2d 435, 443 (5th Cir. 1987) (original complaint dismissed for failure to prosecute); Carter v. Money Tree Co. , 532 F.2d 113, 114 (8th Cir. 1976) (original claim dis missedfor failure to state a claim). Kulinski's firs t complaint, on the other hand, was dismissed only for lack o f sub ject matter jurisdiction. We decline to contort the distric t
co urt’s denial of Kulinski's proposed amended complaint into a denial on the merits.
Finally, Medtronic argues that the district court's dismissal "with prejudice" operates as an adjudication on the merits and , th erefore, precludes subsequent actions. We disagree. I n McCarney , we held the plaintiff's second suit was not barredby the dismissal of his first suit despite its label "with prejudice " because it did not reach the merits. 657 F.2d at 234.

CONCLUSION

For the foregoing reasons, we reverse the dismissal o f Ku linski’s contract action and remand for proceedings consisten t withthis opinion. We affirm the district court’s ruling o f Medtronic’s cross-appeal.-15-

A true copy.

Attest:

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