United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-2489

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Helen Fu and Steven Fu, *

*

Appellants, *

* Appeal from the United States

v. * District Court for the 

* District of Minnesota.

Ebonie Owens; Medcor, Inc., dba *

Medcor-Target Clinic and Clinic *

Practice Management, PC; Target *

Corporation, dba Medcor-Target *

Clinic and Clinic Practice *

Management, PC, *

*

Appellees. *

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Submitted: May 12, 2010

Filed: October 6, 2010

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Before WOLLMAN, SMITH, and COLLOTON, Circuit Judges.

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SMITH, Circuit Judge.

Helen Fu and Ebonie Owens both worked for the Medcor clinic in the

Knollwood, Minnesota Target retail store. One day Owens physically attacked Fu

causing several injuries. Medcor terminated Owens. Fu applied for benefits under the

Minnesota Workers' Compensation Act (WCA). After initially paying some benefits,

Medcor's insurance carrier denied the claim, contending that the injuries were the

result of an intentional act. Subsequently, Fu and her husband, Steven, sued Medcor
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The Honorable Paul A. Magnuson, United States District Judge for the District

of Minnesota.

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in state court under several common-law theories and brought one federal claim under

the Americans with Disabilities Act (ADA). The district court1

 granted summary

judgment on all claims and the Fus appeal. We affirm. 

I. Background

Medcor is a management company that provides management and personnel

services for in-store medical clinics. Medcor contracted with Target to provide these

services to certain Target-owned clinics in Minnesota, including the Knollwood

Target. Owens and Fu both worked for the Medcor clinic in the Knollwood Target.

One day Owens attacked Fu, and Medcor subsequently terminated Owens. Fu applied

for benefits under the WCA, but after initially paying benefits, Medcor's insurance

carrier denied the claim, determining that the injuries were the result of an intentional

act.

Subsequently, Fu and her husband sued Medcor in state court under

common-law theories of assault, battery, false imprisonment, intentional and negligent

infliction of emotional distress, negligent hiring, supervision, and retention, and loss

of consortium. Fu also alleged claims against Medcor for disability discrimination

under the ADA and the Minnesota Human Rights Act, violation of Minnesota

Whistleblower's Act, wrongful termination, breach of contract, and defamation.

Because the state court complaint alleged a disability discrimination claim arising

under the ADA, Medcor removed the action to Minnesota federal district court.

Medcor subsequently brought a motion for summary judgment that the district court

granted. The district court dismissed the tort-based injury claims pursuant to the
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The Minnesota Workers' Compensation Act provides in pertinent part: 

Every employer is liable for compensation according to the provisions

of this chapter and is liable to pay compensation in every case of

personal injury or death of an employee arising out of and in the course

of employment without regard to the question of negligence. The burden

of proof of these facts is upon the employee.

Minn. Stat. § 176.021, Subdivision 1. 

"The liability of an employer prescribed by this chapter is exclusive . . . ."

Minn. Stat. § 176.031.

"Personal injury does not include an injury caused by the act of a third person

or fellow employee intended to injure the employee because of personal reasons, and

not directed against the employee as an employee, or because of the employment."

Minn. Stat. § 176.011, Subdivision 16. 

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The Fus do not appeal the dismissal of the remainder of their claims.

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exclusivity provision of the WCA.2

 The district court also dismissed the remaining

claims for disability discrimination, whistleblower violations, breach of contract, and

defamation. The district court further ruled that Target and Medcor were not engaged

in a joint enterprise. Finally, the district court held that Neka Swinney's affidavit,

offered by the Fus after the close of discovery, was not properly disclosed and could

not provide a basis to defeat Medcor's summary judgment motion.

II. Discussion

A. Common Law Claims and the WCA

On appeal, the Fus argue that their common law claims are excepted from the

exclusivity provisions of the WCA.3

 Specifically, the Fus contend that their assault

and battery claim is noncompensable under the WCA pursuant to McGowan v. Our

Savior's Lutheran Church, where the court stated that certain assault cases "are
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noncompensable under the [WCA] because the assailant was motivated by personal

animosity toward his victim, arising from circumstances wholly unconnected with the

employment[.]" 527 N.W.2d 830, 834 (Minn. 1995). The Fus argue that Owens's

attack on Mrs. Fu was based on racial animus and thus wholly unconnected with Fu's

employment. Accordingly, the Fus submit that the district court erred in dismissing

this claim based upon the exclusivity provision of the WCA.

We review de novo a grant of summary judgment. Summary judgment

is proper if, after viewing the evidence and drawing all reasonable

inferences in the light most favorable to the nonmovant, no genuine issue

of material fact exists and the movant is entitled to judgment as a matter

of law.

Libel v. Adventure Lands of Am., Inc., 482 F.3d 1028, 1033 (8th Cir. 2007). 

The Minnesota cases that have addressed the exclusivity exception have framed

the issue in the following terms:

[T]he central question is not whether the employee was injured merely

while at his or her employment, but whether the injury occurred because

the employee was at the job "in touch with associations and conditions

inseparable from it."

Stengel v. E. Side Beverage, 690 N.W.2d 380, 386 (Minn. Ct. App. 2004) (quoting

Johnson v. Ramsey County, 424 N.W.2d 800, 805 (Minn. Ct. App. 1988)) (emphasis

added). In Stengel, the plaintiff brought suit alleging various common law claims

including "common-law assault and battery, intentional infliction of emotional

distress, and numerous other claims." Id. at 381–82. 

The alleged conduct which formed the basis for [plaintiff]'s claims

include[d] a co-worker sticking his finger in between the buttons of

[plaintiff]'s blouse, between her breasts, and moving his finger back and
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forth while saying "ding, ding, ding . . ."; another co-worker shoving his

hand up her leg saying, "Oh, dead man's curve, I'd like to get some of

that," and then grabbing [plaintiff] and reaching for her vagina; her

supervisor leaning his body against hers and kissing her; and various

other co-workers grabbing her buttocks, grabbing and snapping her bra,

and slapping her backside with a rolled up sign.

Id. at 382. The court in Stengel concluded that "a genuine issue of material fact

exist[ed] as to whether the alleged acts were directed against [plaintiff] for personal

reasons or as an employee." Id. at 386–87. Accordingly, the court held that summary

judgment was inappropriate for the plaintiff's assault and battery claim. Id.

 Contrastingly, in McGowan the plaintiff commenced a negligence action

"seeking damages for injuries she sustained as a result of being raped while working

as director of [a] homeless shelter . . . ." 527 N.W.2d at 831. The Minnesota supreme

court stated:

It is . . . clear that McGowan's employment was a causal factor

contributing to her being raped. At the time she was raped, McGowan

was the shelter's director and had never had any contact with her

assailant outside the workplace. Further, the assault occurred during

working hours, in her office, while she was directly engaged in the

performance of her work duties. Based on these facts, we cannot say that

the rape arose from circumstances unrelated to McGowan's employment.

Id. at 834. Accordingly, the court held "McGowan's injuries are covered under the

[WCA] because they resulted from an assault arising solely out of McGowan's

activities as an employee." Id.

The Fus' case is analogous to McGowan. First, when Owens assaulted Fu she

had never had any contact with Owens outside of the workplace. Second, the assault

occurred during working hours, at the clinic, while Fu performed her work duties.
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Furthermore, although the record reflects that Owens may have harbored racial animus

toward Fu, it also reflects that Owens disliked Fu for specific, work-related reasons

such as Fu reporting Owens's allegedly inferior job performance to clinic supervisors.

In fact, Fu reported to supervisors that Owens was not assisting with computer

problems at the clinic on the very day of the attack.

Furthermore, the Fus' case is distinguishable from Stengel. In Stengel, nothing

indicated that the various assaults were in any way work-related. The Stengel court

stated that "courts must examine cases on their individual facts to determine whether

the employee's job function was somehow related to the injury. If it is not, then the

assault exception applies and the employee's common-law claim is not barred by the

Workers' Compensation Act." 690 N.W.2d at 386 (emphasis added). In this case,

"[b]ased on these facts, we cannot say that the [assault] arose from circumstances

unrelated to [Fu's] employment." McGowan, 527 N.W.2d at 834. Accordingly, in

answering Stengel's "central question," we hold that Fu's "injury occurred because

[she] was at the job in touch with associations and conditions inseparable from it." 690

N.W.2d at 386 (internal quotations and citation omitted).

B. Swinney's Affidavit

Next, the Fus argue that the district court abused its discretion in excluding

Swinney's affidavit. The Fus contend that there is nothing on the record that indicates

that Mrs. Fu engaged in bad faith in concealing Swinney's existence.

Although the record indicates that the Fus did not engage in bad faith in

concealing Swinney, the Fus have not provided an excuse for untimely disclosing the

Swinney affidavit. Federal Rule of Civil Procedure 37(c)(1) provides in relevant part:

If a party fails to provide information or identify a witness as required by

Rule 26(a) or (e), the party is not allowed to use that information or

witness to supply evidence on a motion, at a hearing, or at a trial, unless

the failure was substantially justified or is harmless.
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Federal Rule of Civil Procedure 26(a)(3) provides in pertinent part: 

(A) In General. In addition to the disclosures required by Rule 26(a)(1)

and (2), a party must provide to the other parties and promptly file the

following information about the evidence that it may present at trial

other than solely for impeachment: 

(iii) an identification of each document or other exhibit, including

summaries of other evidence—separately identifying those items

the party expects to offer and those it may offer if the need arises.

The Fus have not provided substantial justification for failing to timely disclose

Swinney's affidavit nor have they demonstrated that such failure is harmless. See Fed.

R. Civ. P. 37(c)(1). 

Furthermore, the district court did consider the Swinney affidavit, noting that

"even if plaintiffs could use Ms. Swinney's testimony, however, that testimony at most

shows that Owens did not like Fu." Accordingly, Fu was not prejudiced by the

exclusion of the Swinney affidavit because the district court actually considered it but

found it immaterial.

C. Joint Enterprise

Finally, the Fus argue that they demonstrated a material fact issue as to whether

Target and Medcor were engaged in a joint enterprise thereby making Target jointly

liable for Mrs. Fu's injuries. The Fus also contend that the district court's analysis

erroneously conflates the concepts of joint venture and joint enterprise. 

We disagree and affirm. In Murphy v. Keating, the Minnesota supreme court

stated:

There are two elements customarily required by the courts to establish

joint enterprise, namely, (1) a mutual undertaking for a common purpose,
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and (2) a right to some voice in the direction and control of the means

used to carry out the common purpose. This is well illustrated in

Cunningham v. City of Thief River Falls, 84 Minn. 21, 27, 86 N.W. 763,

765 [(1901)]; "Parties cannot be said to be engaged in a joint enterprise,

within the meaning of the law of negligence, unless there be a

community of interest in the objects or purposes of the undertaking, and

an equal right to direct and govern the movements and conduct of each

other with respect thereto. Each must have some voice and right to be

heard in its control and management."

283 N.W. 389, 392 (Minn. 1939). The agreement between Target and Medcor

expressly provided that Medcor was operating independently from Target, that neither

Medcor nor its employees were "employees, joint ventures, partners, contractors, or

lessees of Target or employees leased to Target," and that Medcor had "sole control

over the manner, means and methods by which Medcor and Medcor's employees

. . . perform services" under the agreement. The agreement also expressly provided

that Medcor alone had sole control over its employees, stating that Medcor alone was

responsible for "selecting, hiring, training, supervising and terminating" the

employees it used to provide clinic services. Based on this contractual language, we

hold that the district court did not err in concluding that Target and Medcor were not

engaged in a joint enterprise under Minnesota law. See Murphy, 283 N.W. at 392;

Weber by Sanft v. Goetzke, 371 N.W.2d 611, 616 (Minn. Ct. App. 1985) ("The right

to legal control means that all involved in the undertaking must have a joint or mutual

right to direct the agency used to carry out the common purpose. . . . By its terms

'legal control' implies an enforceable right to control the movements of another.").

Because we hold that Target and Medcor were not engaged in a joint enterprise we

need not address the Fus' contention that the district court erroneously conflated the

concepts of joint venture and joint enterprise. 

III. Conclusion

We affirm.

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