UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


Allison Kutz,                         Case No. 22-cv-1623 (NEB/ECW)      

          Plaintiff,                                                     

v.                                          ORDER                        

NGI Capital, Inc. doing business as Apex                                 
IT and Eric Christopher Rapp,                                            

          Defendants.                                                    


    This matter is before the Court on Plaintiff Allison Kutz’s (“Plaintiff” or “Kutz”) 
Motion for Leave to Amend the Complaint to Add Punitive Damages (“Motion to 
Amend”) (Dkt. 56).  Defendants NGI Capital, Inc., doing business as Apex IT, and Eric 
Christopher Rapp (collectively, “Defendants”) oppose the Motion.  (Dkt. 64.)  For the 
reasons stated below, the Motion is granted in part and denied in part as moot. 
                      I.   BACKGROUND                                    
A.   Operative Complaint and Procedural Background                        
    Plaintiff filed the operative Complaint in this case on June 21, 2022.  (Dkt. 1.)  
That Complaint alleges in relevant parts as follows:                      
 •  Plaintiff initially began working for Defendant NGI Capital, Inc. d/b/a Apex IT 
    (“Apex” or “Company”) in October 2015 as a Practice Director, and within her first 
    year of employment, the sole owner and Chief Executive Officer (“CEO”) at Apex, 
    Defendant Eric Christopher Rapp (“Rapp”), sexually harassed her.  (Id. ¶¶ 3, 13-
    15.)  Rapp expressed “his inappropriate sexual and ‘romantic’ desire for Plaintiff in 
    front of others,” including clients, partners, Apex management, and Plaintiff’s peers 
    at Apex and sexually harassed Plaintiff in the presence of others, including in the 
    presence of Scott Newton, the President of Apex (“President Newton”), and her 
  direct supervisor Bryan Hinz, who was the Executive Vice President at Apex 
  (“Executive VP Hinz”).  (Id. ¶¶ 13, 18, 22, 27, 32-34.)  Rapp’s harassment “was so 
  pervasive  that,  during  industry  conferences  or  required  in-person  Sales  Team 
  meetings and industry conferences, other male coworkers were put on ‘Rapp Duty’ 
  to ensure Plaintiff could get back to her hotel room unmolested.”  (Id. at ¶¶ 28-30.)   

•  During a Sales Team trip to Breckenridge, Colorado in December 2018 (“December 
  2018 sales team trip”), “Plaintiff fell asleep on a couch in front of four Apex peers.  
  Rapp proceeded to pick Plaintiff up off the couch to take her to bed.  Plaintiff woke 
  up in Rapp’s arms, became alarmed, screamed, and demanded to be put down.”  (Id. 
  ¶ 31.)                                                               

•  Plaintiff “at all times” declined Rapp’s advances; Apex did not have any human 
  resources personnel between 2015 and the spring of 2019 so Plaintiff reported her 
  concerns regarding Rapp’s behavior to  Executive VP Hinz and President Newton 
  “numerous times” via various platforms, to no avail; in response, Executive VP 
  Hinz “told Plaintiff to ‘just ignore him’” and both  Executive VP Hinz and President 
  Newton “made clear that there was little they could do to help her because Rapp 
  was the CEO and sole owner of” Apex; and although, Plaintiff “made it clear” to 
  Rapp  that  his  “harassment  was  not  welcome,”  Rapp  “ignored  and  dismissed 
  Plaintiff’s request that he act professionally and stop harassing her,” leading to her 
  resignation in May 2019.  (Id. ¶¶ 16-17, 19-25, 30, 35-37.)          

•  After receiving assurances from Executive VP Hinz that Apex was instituting 
  changes to improve its “problematic work environment,” including by hiring a 
  human resource professional and reinforcing to Rapp that he limit communications 
  with Plaintiff to “business matters,” Plaintiff agreed to return to her former role at 
  Apex in November 2019.  (Id. ¶¶ 40-56.)                              

•  Rapp informed Plaintiff that her “return to Apex was contingent on signing a 
  supplemental  agreement  drafted  by  his  attorney”  which  “required  Plaintiff  to 
  acknowledge that Rapp had feelings for her, that he would do his best not to act on 
  those feelings or otherwise pursue Plaintiff” but if “he were to act on his feelings 
  towards  her,  Plaintiff  would  agree  not  to  report  the  issue  to  Apex’s  Human 
  Resources or to her supervisor” and should instead “discuss her concerns directly 
  with him” and “not sue Rapp or Apex for sexual harassment.”  (Id. ¶¶ 49-50.)  
  Plaintiff did not sign the supplemental, or any similar, agreement.  (Id. ¶¶ 51-55.) 

•  About  6  months  after  Plaintiff  returned  to  Apex,  Rapp  again  began  sexually 
  harassing her and invited her to join him on trips.  (Id. ¶¶ 57-60.)  Plaintiff refused 
  Rapp’s advances and reported his behavior to Executive VP Hinz and President 
  Newton who both “repeatedly told her to ignore Rapp and limit conversations with 
  him when possible.”  (Id. ¶¶ at 60-61.)                              

•  Plaintiff agreed to meet with Rapp “one-on-one for purposes of a performance 
  review” on August 26, 2020 in Chicago, Illinois, almost a year after her return; 
  during his trip to Chicago, Illinois, Plaintiff arranged for her and Rapp to have dinner 
  with clients “to avoid” meeting with Rapp alone.  Rapp “insisted that he and Plaintiff 
  get drinks before the client dinner,” and Plaintiff “reluctantly agreed” to drinks only 
  if her sister came along.  (Id. ¶¶ 63-71.)                           

•  After dinner with clients on August 26, 2020, “Rapp insisted he share an Uber with 
  Plaintiff because, as he explained, he was staying at a hotel near her apartment.”  
  (Id. ¶ 72.)  Plaintiff suggested they leave separately, but reluctantly ordered an Uber 
  for the two to share after Rapp insisted and did so to ensure that Rapp was dropped 
  off at his hotel first, however, the “Uber had to drive past Plaintiff’s home on the 
  way to Rapp’s hotel. When Rapp saw they were driving past Plaintiff’s home, Rapp 
  insisted the driver pull over, and informed Plaintiff that he would just get out with 
  her.”  (Id. at ¶¶ 73-74.)  Plaintiff was “immediately concerned for her safety” and 
  opposed Rapp’s request; Rapp insisted and pleaded with Plaintiff that they have 
  wine at Plaintiff’s apartment; Plaintiff refused his advances but Rapp nonetheless 
  got out of the Uber and “went to the front of her home”; Plaintiff was “shocked and 
  worried for her safety” so she stayed in the Uber and asked the driver to drop her 
  off by the alley behind her home, “thinking she could sneak into her home through 
  the back door, without Rapp realizing she had done so”; when Plaintiff exited the 
  Uber, she realized she did not have the key to her back door so she called her 
  neighbor to assist her and explained “the situation” to him; Plaintiff’s neighbor gave 
  her the access code to his back door so that Plaintiff could avoid Rapp and informed 
  Plaintiff that he would head her way to “help her” because he could “tell Plaintiff 
  did not feel safe.”  (Id. ¶¶ 75-81.)  Rapp however approached Plaintiff in the alley 
  behind her home, “became furious,” “screamed at Plaintiff,” following which “[s]he 
  tried to get away from Rapp, but he closed in on her, backing her up into a wall,” 
  made insulting commentary to Plaintiff, until Plaintiff’s neighbor “intervened” and 
  “physically separate[d] Rapp from Plaintiff to get Rapp to stop” (“August 2020 
  assault”).  (Id. ¶¶ 82-89.)                                          

•  Plaintiff reported the August 2020 assault to Executive VP Hinz, President Newton, 
  and human resources personnel at Apex, who investigated Plaintiff’s report and 
  found that the “evidence” supported Plaintiff’s “claims and it does appear that the 
  inappropriate behavior and violations of company policy took place.”  (Id. at 90-
  99.)  Human resources personnel informed Plaintiff that Rapp had been made 
  “aware of the relevant law and company policies prohibiting unlawful harassment 
  and retaliation’ so that such conduct ‘does not repeat itself’” and that “nothing more 
    could be done because her harasser, Rapp, was the sole owner and CEO of Apex.”  
    (Id. ¶¶ 100-01.)                                                     

 •  As a result of Plaintiff’s “formal complaint,” Rapp apologized to Plaintiff, but did 
    not stop harassing her and threatened to terminate her employment.  (Id. ¶¶ 102, 
    106-13.)  Rapp continued to inform others of his desires for Plaintiff; Plaintiff 
    continued to refuse Rapp’s advances and informed Executive VP Hinz and human 
    resources personnel at Apex of his continuous harassing behavior, leading to her 
    termination in September 2021.  (Id. ¶¶ 112, 114-38.)                

 •  Plaintiff resides in Chicago, Illinois; Apex is incorporated under the laws of the 
    State of Colorado and is headquartered in Cottage Grove, Minnesota; and Rapp 
    resides in Littleton, Colorado.  (Id. ¶¶ 1-3.)                       

 •  At all relevant times, Plaintiff was an “employee” of Apex under Title VII of the 
    Civil Rights Act, 42 U.S.C. § 2000e(f) (“Title VII”) and the Minnesota Human 
    Rights Act, Minn. Stat. § 363A.01, et. seq. (“MHRA”); “Apex was Plaintiff’s 
    ‘employer’” as defined in Title VII and the MHRA; “Rapp is Apex’s sole owner 
    and CEO and is the alter ego of Apex”; and Rapp is an employer under Title VII 
    and the MHRA.  (Id. ¶¶ 4, 142-43, 152-53, 159-60, 169-70, 179-80, 188-89.) 

 •  This Court has jurisdiction because Apex’s principal office is in Minnesota and it 
    conducts business in Minnesota; Plaintiff spoke with her supervisor who is located 
    in Minnesota almost daily; Plaintiff made multiple reports of harassment to her 
    supervisor who resides in Minnesota and “thereby engaged in protected conduct in 
    Minnesota”;  “Plaintiff  has  clients  that  are  based  in  Minnesota  whom  she 
    consistently contacted”; and Apex “requires employees to agree to Minnesota venue 
    and choice of law provisions.”  (Id. ¶ 10.)                          

    In the operative Complaint, Plaintiff asserts the following eight Counts against 
Defendants: (1) quid pro quo sex discrimination in violation of Title VII; (2) hostile work 
environment sex discrimination in violation of Title VII; (3) retaliation in violation of 
Title VII; (4) quid pro quo sex discrimination in violation of the MHRA; (5) hostile work 
environment sex discrimination in violation of the MHRA; (6) reprisal in violation of the 
MHRA; (7) assault under Minnesota common law; and (8) assault under Illinois common 
law.  (Id. ¶¶ 141-209.)  Plaintiff asserted entitlement to punitive damages as to her claims 
under Title VII and the MHRA in the operative Complaint, and stated her intent to seek 
leave to amend the Complaint to add claims for punitive damages for her common law 
Minnesota and Illinois claims.  (Id. ¶¶ 150, 157, 166, 176, 186, 196, C, D.) 

    On July 27, 2022, Defendants filed a partial motion to dismiss the Complaint, 
seeking, among other things, dismissal of Counts 7 and 8 in their entirety as preempted 
by the MHRA and the Workers’ Compensation Act (“WCA”) and because Plaintiff failed 
to allege a threat of bodily harm under Minnesota and Illinois law.  (Dkt. 11; Dkt. 12 at 6-
7, 14-25.)  Defendants also sought dismissal of Counts 1 through 6.  (Dkt. 12 at 6-7, 8-

14.)  On March 1, 2023, United States District Judge Nancy E. Brasel denied Defendants’ 
motion to dismiss in its entirety.  (Dkt. 37.)  As to the assault claims, Judge Brasel found 
that Plaintiff had stated plausible claims for assault, and ordered Defendants to file an 
answer to the Complaint within 14 days of the order.  (Id. at 13-14.)  On March 15, 2023, 
Defendants filed an Answer to the Complaint.  (Dkt. 41.)                  

    On April 3, 2023, Plaintiff filed the current Motion to Amend, along with 
supporting materials.  (Dkts. 56, 58-60.)  Defendants filed their Opposition to the Motion 
on April 10, 2023, arguing that Plaintiff “embellishes the facts and makes arguments 
based on allegations that are not found anywhere in her complaint” and that “when the 
facts of the proposed Amended Complaint are considered, rather than the magnified 

version present in Kutz’s memorandum, it is evident that Kutz’s proposed amendment is 
futile under Federal Rule of Civil Procedure 15.”  (Dkt. 64 at 1.)  On April 13, 2023, 
Plaintiff filed a Reply.  (Dkt. 67.)  The Court held a hearing on the Motion to Amend on 
May 31, 2023 (“May 31 hearing”).  (Dkt. 77.)                              
B.   Proposed First Amended Complaint                                     
    Plaintiff’s Proposed First Amended Complaint (“Proposed FAC”) is largely 
identical to the operative Complaint.  (See Dkt. 59-1 (redline showing proposed 

amendments).)  In relevant part, the Proposed FAC seeks to add the following factual 
allegations:                                                              
    •  Because Rapp is Apex’s owner and CEO, Apex (and Rapp) knew or     
      should have known about the sexual harassment, and because Rapp    
      ignored  Plaintiff’s  refusals,  Apex  (and  Rapp)  deliberately  acted  in 
      conscious intentional disregard of the high degree of probability of injury 
      to  Plaintiff’s  rights,  or  otherwise  acted  with  indifference  to  this 
      probability.  (Id. ¶ 19.)                                          

    •  As a result of Plaintiff’s complaints to Company leadership, Apex knew 
      or  should  have  known  that  Rapp  was  sexually  harassing  Plaintiff. 
      Because nothing was done to intervene in the harassing conduct, the 
      Company deliberately acted in conscious, intentional disregard of the 
      high degree of probability of injury to Plaintiff’s rights, or otherwise 
      acted with indifference to this probability.  (Id. ¶ 26.)          

    •  As a result of Plaintiff’s complaints to Company leadership and Human 
      Resources, Apex knew or should have known the severity of Rapp’s   
      sexual  harassment  towards  Plaintiff.  Because  nothing  was  done  to 
      intervene in the harassing conduct, the Company deliberately acted in 
      conscious, intentional disregard of the high degree of probability of injury 
      to  Plaintiff’s  rights,  or  otherwise  acted  with  indifference  to  this 
      probability.  (Id. ¶ 104.)                                         

    •  Although  Defendants’  sexual  harassment  training  demonstrates  that 
      Defendants knew that sexual harassment was unlawful, Rapp’s refusal to 
      attend such training—and the Company’s failure to force him to attend 
      training—shows  that  Defendants  knowingly  disregarded  their    
      understanding, as the sexual harassment did not stop, and nothing was 
      done to punish or otherwise intervene in Rapp’s harassing conduct.  (Id. 
      ¶ 109.)                                                            

    The Proposed FAC also seeks to add claims for punitive damages for each Count 
and states as to each: “Defendants willfully committed the above-alleged facts with 
malice or deliberate disregard and indifference for the rights and safety of Plaintiff.  As a 
result, Plaintiff is entitled to punitive damages.”  (Id. ¶¶ 159, 167, 176, 187, 198, 209, 
217, 224.)                                                                

                    II.  LEGAL STANDARD                                  
    Rule 15 of the Federal Rules of Civil Procedure, instead of 

, 
provides the procedural framework for this Motion to Amend to add punitive damages in 
this case asserting claims under federal law, Minnesota statutes, and Minnesota and 
Illinois common law.  See Dolphin Kickboxing Co. v. Franchoice, Inc., 

, 

396-401 (D. Minn. 2020) (analyzing whether 

 or Rule 15 applied to 
motions to amend the complaint to add punitive damages in diversity cases and 
concluding that Rule 15 provides the applicable standard); see also Benner v. St. Paul 
Pub. Sch., I.S.D. #625, 

 (D. Minn. 2019) (“Section 549.191 is 
inapplicable to the present action because Benner’s (surviving) claims are premised on 

federal question jurisdiction and on supplemental jurisdiction, not on diversity 
jurisdiction”); Dewick v. Maytag Corp., 

, 906 n.3 (N.D. Ill. 2003) 
(“Contrary to what Maytag contends, Dewicks’ motion [to amend the complaint to add a 
claim for punitive damages] is controlled by Rule 15(a), not by the section of the Illinois 
Code of Civil Procedure that establishes prerequisites for seeking punitive damages (735 

ILCS 5/2-604.1).”).                                                       
    Federal Rule of Civil Procedure 15(a)(2) provides that “[t]he court should freely 
give leave [to amend] when justice so requires.”  The determination as to whether to 
grant leave to amend is entrusted to the sound discretion of the trial court.  See, e.g., 
Niagara of Wisc. Paper Corp. v. Paper Indus. Union-Mgmt. Pension Fund, 

, 
749 (8th Cir. 1986) (citation omitted).  The Eighth Circuit has held that although 
amendment of a pleading “should be allowed liberally to ensure that a case is decided on 

its merits . . . there is no absolute right to amend.”  Ferguson v. Cape Girardeau Cty., 

, 650-51 (8th Cir. 1996) (citing Chesnut v. St. Louis Cty., 

 (8th 
Cir. 1981); Thompson-El v. Jones, 

 (8th Cir. 1989)).       
    Denial of leave to amend may be justified by “undue delay, bad faith on the part of 
the moving party, futility of the amendment or unfair prejudice to the opposing party.”  

Sanders v. Clemco Indus., 

 (8th Cir. 1987) (citing Foman v. Davis, 

 (1962)); see also Hillesheim v. Myron's Cards and Gifts, Inc., 

 (8th Cir. 2018) (“A district court’s denial of leave to amend a complaint may be 
justified if the amendment would be futile.”) (citation omitted).  “Denial of a motion for 
leave to amend on the basis of futility means the district court has reached the legal 

conclusion that the amended complaint could not withstand a motion to dismiss under 
Rule 12(b)(6) of the Federal Rules of Civil Procedure.  Accordingly, in reviewing a 
denial of leave to amend we ask whether the proposed amended complaint states a cause 
of action under the Twombly[1] pleading standard . . . .”  Zutz v. Nelson, 

 (8th Cir. 2010) (citation and marks omitted); see also In re Senior Cottages of 

Am., LLC, 

, 1001 (8th Cir. 2007) (“[W]hen a court denies leave to amend on 



1    Bell Atl. Corp. v. Twombly, 

 (2007).                     
the ground of futility, it means that the court reached a legal conclusion that the amended 
complaint could not withstand a Rule 12 motion.”).                        
    On a motion to dismiss filed pursuant to Rule 12(b)(6), the Court must take the 

well-pleaded allegations of a claim as true, and construe the pleading, and all reasonable 
inferences arising therefrom, most favorably to the pleader.  See Morton v. Becker, 

 (8th Cir. 1986).  “To survive a motion to dismiss, a complaint must contain 
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 
face.’”  Ashcroft v. Iqbal, 

 (2009) (quoting Twombly, 

).  

A claim is facially plausible “when the plaintiff pleads factual content that allows the 
court to draw the reasonable inference that the defendant is liable for the misconduct 
alleged.”  

                                                            
                        III.  ANALYSIS                                   
    Defendants oppose amendment of the Complaint on futility grounds, arguing that 

the Proposed FAC does not allege facts “that would allow this Court to conclude that 
either defendant knew of or intentionally disregarded facts creating a high probability of 
injury to Kutz’s rights or safety, and proceeded to act with disregard or indifference for 
that high probability of injury.”  (Dkt. 64.)  The Court analyzes the proposed amendment 
below.                                                                    

A.   Counts 1 Through 6—MHRA and Title VII claims                         
    As to Kutz’s Title VII claims, where a “plaintiff pleads a claim based on federal 
law, there is no comparable prohibition on including a request for punitive damages in 
the initial complaint.”  Benner v. St. Paul Pub. Sch., I.S.D. #625, 

, 
822 (D. Minn. 2019).  Moreover, the specific punitive damage provision in the MHRA 
displaces the requirements of 

.  See Minn. Stat. § 363A.29, subd. 4; 
see also Minn. Stat. § 363A.33, subd. 6 (“If the court or jury finds that the respondent has 

engaged in an unfair discriminatory practice, it shall issue an order or verdict directing 
appropriate relief as provided by section 363A.29, subdivisions 3 to 6.”).   
    As conceded by Defendants at the May 31 hearing, the operative Complaint 
sought punitive damages as to the MHRA and Title VII claims, that is, Counts 1 to 6, and 
Defendants did not seek dismissal of Plaintiff’s request for punitive damages for those 

claims.  Accordingly, Plaintiff need not seek leave to amend to add punitive damages 
based on Counts 1 through 6, and the Court therefore denies the Motion to Amend as 
moot to the extent it seeks to amend the Complaint to add claims for punitive damages as 
to those Counts.2  See Andrews v. Fairview Health Servs., Civ. No. 21-1449 (ECT/ECW), 

, at *4 n.4 (D. Minn. Feb. 23, 2022) (“As stated previously, the 

Complaint already seeks punitive damages as to Andrews’ MHRA reprisal claim and 
MHRA sexual orientation discrimination claims. . . .  As such, the Court finds that 
punitive damages as to these claims has already been pled in this action and no further 
motion to amend is required.”); see also Peterson-Rojas v. Dakota Cty., Case No. 21-cv-


2    Defendants contend that Plaintiff’s statement that the Motion to Amend was 
“brought ‘out of an abundance of caution’ further justifies denial” because she has not 
shown “justice so requires” the amendment.  (Dkt. 64 at 2, 9 n.6.)  Plaintiff made this 
statement to explain why she sought amendment as to all claims, even though she did not 
need to do so as to her MHRA and Title VII claims.  (See Dkt. 58 at 2 n.1.)  She did not 
suggest that she did not need to seek leave to amend to add punitive damages as to her 
common law claims, and the Court will not deny leave on Defendants’ proposed ground. 
738 (DSD/TNL), 

, at *3, 6 (D. Minn. Feb. 4, 2022) (denying plaintiff’s 
motion for leave to amend the complaint to add punitive damages and stating that 
plaintiff “need not amend her Complaint to add a punitive damages claim against the 

County under the MHRA” because “Plaintiff may request punitive damages under this 
act at trial and state law caps these claims”) (citing Minn. Stat. 363A.29, subd. 4(b)); 
Hunter v. Ford Motor Co., Civ. No. 08-4980 (PJS/JSM), 

, at *3 (D. 
Minn. Jan. 7, 2010) (stating that the plaintiff need not seek to add punitive damages for 
her federal claims where plaintiff already sought those damages in her initial complaint 

and stating as to plaintiff’s MHRA claims: “In this case, Hunter asserted punitive 
damages for her claims under the MHRA in her original Complaint as well as her 
proposed Amended Complaint.  Hunter need not have brought a motion to amend to add 
a claim for punitive damages under her MHRA claims, considering she already has 
asserted a claim for punitive damages in her Complaints.  As such, Hunter may proceed 

with a punitive damages claim for her [MHRA] claims . . . without leave of the Court.”) 
(internal citations omitted).  In any event, the Proposed FAC alleges that Kutz repeatedly 
complained about Rapp’s sexual harassment to President Newton, Executive VP Hinz, 
and Apex’s Human Resources personnel, who told her that nothing could be done 
because Rapp was the CEO and owner of Apex, and that Kutz repeatedly made it clear 

that Rapp’s conduct was unwelcome and asked him to stop, and he continued his sexual 
harassment.  This is sufficient for the Court to find that Rapp and Apex knew of or 
intentionally disregarded facts creating a high probability of injury to Kutz’s rights or 
safety, and proceeded to act with disregard or indifference for that high probability of 
injury, rendering Kutz’s claims for punitive damages under the MHRA and Title VII not 
futile.                                                                   
    The Court analyzes below whether Counts 7 and 8 of the Proposed FAC could 

withstand a Rule 12(b)(6) motion to dismiss as to each Defendant.         
B.   Claim 7—Minnesota Assault Claim Against Apex and Rapp                
    In the operative Complaint, Plaintiff sought leave to amend the Complaint to seek 
punitive damages based on her Minnesota assault claim.  (See Dkt. 1 ¶¶ 197-203, C.)  
Plaintiff now seeks to add a claim for punitive damages as to the Minnesota assault claim.  

She alleges: “Defendants willfully committed the above-alleged facts with malice or 
deliberate disregard and indifference for the rights and safety of Plaintiff.  As a result, 
Plaintiff is entitled to punitive damages.”  (Dkt. 59-1 ¶ 217.)           
    The Court applies substantive Minnesota law in determining whether the Proposed 
FAC states a plausible claim for punitive damages.  See Shank v. Carleton Coll., No. 16-

CV-1154 (PJS/HB), 

, at *4 (D. Minn. Oct. 15, 2018), aff’d, 

 (D. Minn. 2019).  The relevant legal basis for punitive damages under Minnesota law 
provides:                                                                 
    (a) Punitive damages shall be allowed in civil actions only upon clear and 
    convincing evidence that the acts of the defendant show deliberate disregard 
    for the rights or safety of others.                                  

    (b) A defendant has acted with deliberate disregard for the rights or safety of 
    others if the defendant has knowledge of facts or intentionally disregards 
    facts that create a high probability of injury to the rights or safety of others 
    and:                                                                 
      (1) deliberately proceeds to act in conscious or intentional disregard of 
      the high degree of probability of injury to the rights or safety of others; 
      or                                                                 

      (2) deliberately proceeds to act with indifference to the high probability 
      of injury to the rights or safety of others.                       

, subd. 1.                                            
    Under these criteria, “[a] defendant operates with ‘deliberate disregard’ by acting 
with intent or indifference to threaten the rights or safety of others.”  Gamma-10 Plastics, 
Inc. v. Am. President Lines, Ltd., 

 (8th Cir. 1994).  As such, “the mere 
existence of negligence or of gross negligence does not rise to the level of willful 
indifference so as to warrant a claim for punitive damages.”3  Ulrich v. City of Crosby, 

 (D. Minn. 1994) (citations omitted); see also Shank, 

, at *7 (D. Minn. Oct. 15, 2018) (same); Berczyk v. Emerson Tool Co., 

 (D. Minn. 2003) (“A mere showing of negligence is not sufficient to 
sustain a claim of punitive damages.”) (cleaned up).  Moreover, a plaintiff must allege 
that the defendants were aware of a high probability that their conduct would cause injury 
to plaintiff.  See In re McNeilus Mfg. Explosion Coordinated Litig., No. 17-cv-5237 
(PJS/KMM), 

, at *4 (D. Minn. June 6, 2019).  Put another way, a court 
looks to whether the allegations in a proposed amended complaint plausibly allege a 


3    “Minnesota law defines gross negligence as ‘without even scant care but not with 
such reckless disregard of probable consequences as is equivalent to a willful and 
intentional wrong.’”  Greer v. Walsh Constr. Co., Civ. No. 15-465 (PAM/JSM), 

, at *8 (D. Minn. Feb. 23, 2016) (quoting State v. Chambers, 

 (Minn. 1999)).                                                   
defendant knew of facts, or intentionally disregarded facts, that created a high probability 
that the defendant’s actions would harm the rights or safety of a plaintiff. 
    Defendants make various arguments in opposition to the Motion to Amend, which 

the Court addresses below.  (See Dkt. 64.)                                
    1.   Choice of Law                                                   
    To begin, while Defendants do not explicitly argue that Minnesota assault law is 
inapplicable, they contend that Plaintiff failed “to explain how Minnesota’s assault law 
would convey rights to her while she lived in Illinois” (id. at 16 n.10) and argued at the 

May 31 hearing that neither of the Defendants had any reason to know that Plaintiff 
might have rights under Minnesota law relating to an assault to have deliberately 
disregarded said rights, as Plaintiff did not live or work in Minnesota and the alleged 
assault did not happen in Minnesota.  Plaintiff responded that the Proposed FAC 
specifically alleges that Apex requires its employees to agree to Minnesota venue and 

choice-of-law provisions, which suffices at this stage of the proceedings, and that 
Defendants’ argument is more suited for summary judgment.                 
    Defendants previously declined to make a choice-of-law argument when seeking 
dismissal of Plaintiff’s assault claim in connection with their partial motion to dismiss.  
(Dkt. 12 at 22 n.7.)  Instead, they argued that Plaintiff’s assault claims were preempted by 

the MHRA and the WCA and that Plaintiff failed to allege a threat of bodily harm under 
Minnesota and Illinois law.  (See Dkt. 12 at 14-25.)  In ruling on the partial motion to 
dismiss and finding Plaintiff had adequately pled an underlying assault claim in the 
operative Complaint, Judge Brasel noted the parties’ agreement “that the legal standard 
for assault in Illinois and Minnesota are the same” and that the “attorneys focused their 
attention to the legal standard established under Minnesota law.”  (Dkt. 37 at 13 n.1.) 
    Defendants now urge this Court to consider that Plaintiff failed to explain how 

Minnesota assault law conveyed rights to her.  The Court declines to decide which state’s 
law applies, typically a factually intensive determination, in connection with a Motion to 
Amend that applies the Rule 12(b)(6) standard.  See McLane v. Ethicon Endo-Surgery, 
Inc., No. 3:12-cv-406-J-99MMH-TEM, 

, at *3 (M.D. Fla. June 20, 
2013) (granting plaintiff’s motion to amend the complaint to add punitive damages, 

noting that the parties’ arguments involved a choice-of-law dispute and the weighing of 
evidence, and refusing to consider the defendants’ arguments as the “issues [were] more 
appropriately addressed at a later stage of this litigation”).            
    And in any event, Plaintiff alleged in the Proposed FAC that: Apex is 
headquartered in Cottage Grove, Minnesota, conducts business in Minnesota, and has 

employees nationwide, including in Minnesota (Dkt. 59-1 ¶¶ 2, 9); a “substantial part of 
the events and omissions giving rise to Plaintiff’s claims occurred in” Minnesota as 
Plaintiff spoke with her supervisor who resided in Minnesota almost daily (id. ¶¶ 9-10); 
Plaintiff made multiple reports of harassment to her supervisor who resided in Minnesota 
“and thereby engaged in protected conduct in Minnesota” (id.); Plaintiff had clients that 

are based in Minnesota whom she “consistently contacted” (id. ¶ 10); and Apex “requires 
employees to agree to Minnesota venue and choice of law provisions” (id.).  These 
allegations were incorporated by reference as to Plaintiff’s assault claims.  (Id. ¶¶ 210, 
218.)  The Court finds that these allegations are sufficient for purposes of a Rule 12(b)(6) 
analysis, including as to alleging that Defendants had reason to know that Plaintiff may 
have rights under Minnesota law.  See Evans v. Bus. Dev. Sales, Inc., No. 21-cv-01046 
(SRN/HB), 

, at *7 (D. Minn. Mar. 7, 2022) (finding plaintiff 

sufficiently alleged that the defendants were aware of her right under Minnesota Statutes 
144.4196, subd. 2, where the plaintiff made allegations to that effect in the complaint); 
see also Riley v. St. Louis Cty. of Mo., 

 (8th Cir. 1998) (stating that 
when undertaking a futility analysis, courts are to “look only to the facts alleged in the 
complaint and construe those facts in the light most favorable to the plaintiff.”). 

    The Court turns to the allegations as to each Defendant.             
    2.   Apex                                                            
         a.   The Parties’ Arguments                                     
    As to Apex, citing Zuniga Escamilla v. SMS Holdings Corp., Civ. No. 09-2120 
(ADM/JSM), 

, at *9 (D. Minn. July 29, 2011), Defendants argue that 

Plaintiff’s attempt to impute Rapp’s conduct to Apex fails; Plaintiff failed to allege facts 
that show by clear and convincing evidence that Apex acted with deliberate disregard for 
her rights or safety; Apex had no way of knowing that the August 2020 assault would 
occur; prior to the August 2020 assault, Plaintiff “never conveyed any concern to Apex 
regarding being alone with Rapp,” nor did she allege facts showing that Apex knew of or 

intentionally disregarded any fact creating a high probability under Minnesota law that 
she would be assaulted; and Plaintiff “agreed” to meet with Rapp one-on-one on August 
26, 2020.  (Dkt. 64 at 14-17.)  Defendants contend that while Plaintiff “suggests for the 
first time” in her supporting affidavit to the Motion to Amend that she informed 
Executive VP Hinz that she did not want to meet with Rapp one-on-one in 2020, she 
failed to state when in 2020 the alleged conversation occurred, and “any attempt to claim 
it was prior to the alleged assault is inconsistent with the pleadings” as the Proposed FAC 

does not include any such allegations but instead includes allegations relating to 
“communication boundaries and Apex’s hiring of a human resources director.”  (Id. at 14 
n.9.)  Defendants argue that the extent of Plaintiff’s “reports” regarding Rapp “related to 
her belief that he was in love with her, not that he wanted to harm her,” that Plaintiff and 
Rapp were “rarely” in the same location as they lived and worked in different states, and 

that even if Plaintiff “had requested not to be alone with Rapp before August 2020, she 
does not plead any facts that would suggest that this request put Apex on notice that there 
was a high probability that she was at risk of being assaulted after a client dinner or 
during a performance review.”  (Id. at 16 (citing J.W. ex rel. B.R.W. v. 287 Intermediate 
Dist., 

 (Minn. Ct. App. 2009).)  According to Defendants, Apex 

took prompt and remedial measures after Plaintiff reported the August 2020 assault as 
human resources personnel “immediately” conducted an investigation, assured Plaintiff 
that “appropriate action had been taken to ensure such conduct would not repeat itself,” 
and Plaintiff was not thereafter required to meet with Rapp one-on-one and did not allege 
that she thereafter suffered further assault or inappropriate physical contact from Rapp, 

showing Apex’s actions were “indisputably effective.”  (Id. at 15-17.)  Defendants 
contend that the fact that Plaintiff voluntarily agreed to meet with Rapp one-on-one after 
the alleged August 2020 assault underscores that the two of them meeting, in itself, does 
not carry a high probability of injury.  (Id. at 17.)                     
    Plaintiff responds that she pleaded the requisite connection between Rapp and 
Apex to impose vicarious liability for punitive damages and put forth facts that 
sufficiently establish that Rapp was authorized to act on Apex’s behalf and that he was 

“employed in a managerial capacity with authority to establish policy and make planning 
level decisions” for Apex.  (Dkt. 67 at 14-15 (citing 

, subd. 2).)  
Plaintiff also contends that she informed leadership at Apex about Rapp’s unwelcome 
advances, thereby placing Apex on notice prior to the August 2020 assault, and that 
although she worked and lived in a different state from Rapp, when they were together, 

“Rapp demonstrated a propensity to act in a way that was not only uncomfortable to 
Kutz, but frightening” including the December 2018 incident where Rapp picked her up 
from the couch during a sales team trip.  (Id. at 15-16.)  Plaintiff contends that “Rapp was 
aware that his conduct was harmful” to her and argues that the facts of the J.W. ex rel. 
B.R.W. case cited by Defendants are distinguishable from those of this case.  (Id. at 17.)  

Plaintiff challenges Defendants’ assertion that Apex’s response to the August 2020 
assault was “indisputably effective” and contends that Apex “simultaneously admitted 
there was nothing to be done to stop Rapp.”  (Id. at 16-17.)              
         b.   Whether Kutz Sufficiently Alleged a Claim for Punitive     
              Damages Against Apex Under Minnesota Law                   

    The Court begins with Defendants’ argument that Kutz failed to allege facts 
showing that Rapp’s conduct can be imputed to Apex under Minnesota Statute § 549.20, 
subd. 2.  Defendants quote the following language from the Zuniga Escamilla case: 
“[w]hen a plaintiff seeks to impose vicarious liability for punitive damages of an 
employer for the acts of its [agent], a plaintiff must present evidence under Minnesota 
Statute 549.20, subd. 2.”  (Dkt. 64 at 17.)  However, as stated earlier, in conducting its 
analysis at this stage of the proceeding, the Court need only look to the allegations 

contained in the Proposed FAC.  See Riley, 

 (stating that the Court 
“look[s] only to the facts alleged in the complaint” in conducting a futility analysis); see 
also Mathiason v. Shutterfly, Inc., No. 22-cv-1203 (DSD/DJF), 

, at *4 
(D. Minn. May 16, 2023) (“When conducting a Rule 12(b)(6) analysis on a motion to 
amend, a court generally is restricted from examining matters outside of the four corners 

of the proposed amended complaint.”).                                     
    The Proposed FAC alleges that “Rapp is Apex’s sole owner and CEO and is the 
alter ego of Apex.”  (Dkt. 59-1 ¶¶ 151, 162, 170, 180, 191, 201.)  At the May 31 hearing, 
Defendants argued that Plaintiff failed to allege facts, including for example that Rapp 
was employed by Apex, that he was acting in his scope of his employment when he 

allegedly assaulted her, that Apex authorized or ratified his behavior, or that Rapp was 
unfit and Apex deliberately disregarded his unfitness.  But the Court’s “evaluation of a 
complaint” is “‘a context-specific task that requires [it] to draw on its judicial experience 
and common sense.’”  Braden v. Wal-Mart Stores, Inc., 

 (8th Cir. 
2009) (quoting Iqbal, 

)).  As stated above, Plaintiff alleged in the 

Proposed FAC that: “Rapp is Apex’s sole owner and CEO and is the alter ego of Apex” 
(Dkt. 59-1 ¶¶ 151, 162, 170, 180, 191, 201); Rapp made sexual advances towards her 
“openly in front of client partners, Apex management, and [her] peers” (id. ¶ 18); Rapp 
“repeatedly expressed his desire for Plaintiff directly to Plaintiff’s peers and client 
partners” (id. ¶¶ 18, 30); between 2015 and spring of 2019, Apex did not have any human 
resources personnel to whom Plaintiff could report her concerns of Rapp’s harassment, 
and so she reported her concerns to Executive VP Hinz, who was her direct supervisor, as 

well as to President Newton, “numerous times via telephone, text and the company’s 
instant messaging platform (Skype), and during meetings” (id. ¶¶ 20-22); both Executive 
VP Hinz and President Newton “knew about and had witnessed Rapp sexually harass 
Plaintiff, and knew, even before her reports, that she was facing harassment” (id. ¶ 23); 
and Executive VP Hinz “told Plaintiff that he would talk to Rapp about her concerns, 

when Plaintiff reported Rapp’s incessant harassment to [him and] told Plaintiff to ‘just 
ignore [Rapp]’” (id. ¶ 24).  Plaintiff also alleged that in response to her complaints, both 
Executive VP Hinz and President Newton “made clear that there was little they could do 
to help her because Rapp was the CEO and sole owner of the Company” (id. ¶ 25); as a 
result of her complaints “to Company leadership, Apex knew or should have known that 

Rapp was sexually harassing Plaintiff” (id. ¶ 26); Apex’s leadership did “nothing” “to 
intervene in the harassing conduct,” so “Rapp’s harassment did not stop” (id. ¶¶ 26-30); 
“Rapp’s harassment was so pervasive that, during industry conferences or required in-
person Sales Team meetings and industry conferences, other male coworkers were put 
on ‘Rapp Duty’ to ensure Plaintiff could get back to her hotel room unmolested” (id. 

¶ 31) (emphasis added); and in “December 2018, on a required Sales Team trip to 
Breckenridge, Colorado, Plaintiff fell asleep on a couch in front of four Apex peers” and 
“Rapp proceeded to pick [her] up off the couch to take her to bed,” after which “Plaintiff 
woke up in Rapp’s arms, became alarmed, screamed, and demanded to be put down” (id. 
¶ 33).                                                                    
    Further, Plaintiff alleged that after she resigned her employment with Apex in 

May 2019, “citing Rapp as the reason for leaving,” Executive VP Hinz  discussed her 
returning to Apex and “Plaintiff made clear that she did not want to return to Apex if she 
had to endure Rapp’s harassment” and that in response, Executive VP Hinz “promised 
Plaintiff that although she would have to work with Rapp directly, she could limit her 
communication to business matters,” that Executive VP Hinz informed Plaintiff that he 

“would reinforce such limitations with Rapp,” and informed her that “after she left Apex, 
the Company hired a human resource professional” who “was making changes to 
improve [Apex’s] problematic work environment” and “provide a safeguard against any 
sexual harassment”; that Plaintiff returned to Apex in November 2019 and by May 2020, 
Rapp resumed his unwanted advances towards her, which she reported to Executive VP 

Hinz and “occasionally” to President Newton, “both of whom repeatedly told her to 
ignore Rapp and limit conversations with him when possible”; and that Rapp’s harassing 
behavior persisted, leading to her blocking him on social media.  (Id. ¶¶ 39-49, 58-64.)  
Based on these allegations, it is reasonable to infer that Rapp was employed by Apex, 
that Apex ratified his sexual harassment, and that Rapp was unfit for his position and 

Apex (including Rapp himself4), President Newton, Executive VP Hinz, and Human 


4    The Proposed FAC alleges that Rapp told Kutz that complaining to him “has the 
same effect” as complaining to Apex’s Human Resources, and “thereby admitted that his 
own knowledge of sexual harassment is imputed on Apex.”  (Dkt. 59-1 ¶¶ 144-45.) 
Resources) deliberately disregarded his unfitness.  See Morton, 

 (stating 
that the Court must take the well-pleaded allegations of a claim as true, and construe the 
pleading, and all reasonable inferences arising therefrom, most favorably to the plaintiff). 

    During the May 31 hearing, Defendants argued: “Throughout the complaint all we 
see is Plaintiff’s allegations that Mr. Rapp was romantically pursuing her, giving her 
gifts, sending her wine, saying he would leave his wife for her.  There is no suggestion of 
violence before that point.”  Defendants also argued “we’re all aware of situations where 
romantic pursuit turns violent, but in this case in the complaint there's no allegation that 

there was any propensity toward violence or maliciousness by Mr. Rapp toward Ms. 
Kutz” and the alleged August 2020 assault should be treated as a “very discrete event.”  
    These arguments are unpersuasive for several reasons.  First, this argument 
ignores much of the allegations in the Proposed FAC, which describes Rapp’s alleged 
conduct as “romantic pursuit and sexual demands,” as well as “sexual advances.”  (Dkt. 

59-1 ¶¶ 18, 153, 154, 156, 181, 182, 184 (emphases added).)               
    Second, the Eighth Circuit has however instructed that a “complaint should be 
read as a whole, not parsed piece by piece.”  Braden, 

 (citing Vila v. Inter-
Am. Inv. Corp., 

, 285 (D.C. Cir. 2009) (“factual allegations should be 
‘viewed in their totality’”); cf. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 

 (2007) (“The inquiry [under the Private Securities Litigation Reform Act] is 
whether all of the facts alleged, taken collectively, give rise to a strong inference of 
scienter, not whether any individual allegation, scrutinized in isolation, meets that 
standard.”).  As such, the Court declines Defendants’ invitation to view the alleged 
August 2020 assault in isolation rather than in the context of all of the allegations in the 
Proposed FAC.  Rather, the Court considers all of the allegations, including that Kutz 
made it clear that she wanted Rapp’s sexual harassment and “pursuit” to stop for years 

(see, e.g., Dkt. 59-1 ¶¶ 16, 32, 64) and Apex leadership made it clear they would do 
nothing to stop Rapp’s sexual harassment of Kutz because he was the owner and CEO of 
the company (id. ¶ 25).  The Court also considers the allegations that, after Kutz returned 
to Apex and before the alleged August 2020 assault, Rapp repeatedly tried to 
manufacture a situation where he could physically be with Kutz, including inviting her on 

trips and trying to join Plaintiff’s birthday trip to Florida with her family—which she 
declined and reported to President Newton and Executive VP Hinz—who did nothing to 
stop Rapp but instead asked Kutz to “ignore Rapp and limit conversations with him when 
possible.”  (Id. ¶¶ 62-63).  Moreover, the Court considers the allegation that “Rapp’s 
harassment was so pervasive that, during industry conferences or required in-person Sales 

Team meetings and industry conferences, other male coworkers were put on ‘Rapp Duty’ 
to ensure Plaintiff could get back to her hotel room unmolested” (id. ¶ 31), suggesting a 
level of concern about Kutz’s safety if she were to encounter Rapp while alone.  Based 
on common sense and judicial experience, and taking all reasonable inferences in favor of 
Kutz, the Court finds that Kutz has plausibly alleged that Rapp’s pursuit of Kutz could 

lead to threats, assault, or physical harm to Kutz if Rapp had the opportunity to engage 
with Kutz in person.                                                      
    During the May 31 hearing, Defendants also tried to distance Apex from Rapp 
with respect to the incident that occurred during the December 2018 sales team trip.  The 
Proposed FAC alleges that: “Plaintiff fell asleep on a couch in front of four Apex peers.  
Rapp proceeded to pick Plaintiff up off the couch to take her to bed.  Plaintiff woke up in 
Rapp’s arms, became alarmed, screamed, and demanded to be put down.”  (Id. ¶ 33.)   

    First, Defendants argued that “we don’t know why she was screaming” and that 
Kutz did not allege that Rapp intended to rape her or commit violence to her or that she 
feared for her safety around him after that.  Given that the Proposed FAC alleges that 
Plaintiff screamed because she was “alarmed,” and that she woke up in the arms of a man 
who had repeatedly sexually harassed her and refused to stop notwithstanding her 

objections, the Court can reasonably infer that Plaintiff screamed because she was afraid 
of Rapp and what he intended to do to her.  Braden, 

 (the Court’s 
“evaluation of a complaint” is “‘a context-specific task that requires [it] to draw on its 
judicial experience and common sense’”).                                  
    Second, according to Defendants, Plaintiff never reported that incident to Apex’s 

leadership.  But in the Proposed FAC, Plaintiff alleged “Defendant Apex directly 
employed Plaintiff, and Defendant Rapp is Apex’s sole owner and CEO and is the alter 
ego of Apex.”  (Dkt. 59-1 ¶¶ 151, 162, 170, 180, 191, 201.)  The Proposed FAC alleges 
that other leadership at Apex said they could do nothing about his conduct because Rapp 
owned the company and was the CEO, and that Rapp said that reporting directly to him 

“has the same effect” as reporting to Human Resources (id. ¶¶ 25, 144-45).  Plaintiff has 
plausibly alleged that Apex’s leadership knew about the December 2018 incident both 
because Rapp is part of that leadership and under an alter ego theory.  See also 
Thorkelson v. Publ’g House of the Evangelical Lutheran Church in Am., Civ. No. 10-
1712 (MJD/JSM), 

, at *12 (D. Minn. April 23, 2012) (finding the 
plaintiff’s alter ego claim was not futile in light of the factual allegations, “[t]aken 
together,” alleged by plaintiff); Johnson v. Evangelical Lutheran Church in Am., Civ. No. 

11-23 (MJD/LIB), 

, at *6 (D. Minn. July 22, 2011) (stating that under 
Minnesota law: “[A] court may pierce the corporate veil to hold a party liable for the acts 
of a corporate entity if the entity is used for a fraudulent purpose or the party is the alter 
ego of the entity.  When using the alter ego theory to pierce the corporate veil, courts 
look to the reality and not form, with how the corporation operated and the individual 

defendant’s relationship to that operation.”) (quoting Equity Tr. Co. Custodian ex rel. 
Eisenmenger IRA v. Cole, 

 (Minn. Ct. App. 2009)).      
    Nor is Defendants’ reliance on J.W. ex rel. B.R.W. persuasive.  In J.W. ex rel. 
B.R.W., the Minnesota Court of Appeals affirmed denial of the appellant’s motion to 
amend her complaint to add punitive damages against respondent, a bus company, where 

appellant alleged that her child had been sexually assaulted by another child while riding 
a school bus that was run by the bus company.  

.  The appellant 
argued amendment was proper because one of the respondent’s bus aides was 
reprimanded twice for falling asleep on the bus instead of being terminated immediately; 
the bus driver and bus aides failed to follow instructions that the abusive child sit alone in 

the front seat of the bus; and one of the bus aides had impaired vision in one eye.  

.  In affirming the district court’s ruling, the Minnesota appellate court held that the 
appellant failed to present “evidence to the district court that [respondent] had any 
specific knowledge about [the abusive child] that would create a high probability of 
injury to” the child that was abused and that although, the evidence presented by 
appellant, “may point towards negligence on” respondent’s part, it did not point to a 
“deliberate disregard” by respondent for the safety of the abused child.  

  First, as 

stated above, the Court applies Rule 15, not the evidentiary requirements of 

, in analyzing the Motion to Amend.  Riley, 

.      
    Second, and in any event, none of the actions alleged by the appellant in J.W. ex. 
rel. B.R.W. for purposes of punitive damages related to the bus driver, aides, or 
respondent’s specific knowledge of the abusive child’s propensity toward sexual 

harassment or abuse.  In contrast, as explained in detail above, Plaintiff has plausibly 
alleged Apex’s knowledge of Rapp’s sexual demands and advances, including the need to 
have male coworkers on “Rapp duty” to protect her when in the same location as Rapp, 
and Apex’s failure to do anything about it because he was the CEO and owner of Apex.  
Plaintiff has also plausibly alleged that Rapp is the alter ego of Apex and his knowledge 

can be imputed to Apex.  Moreover, the Proposed FAC alleges that Executive VP Hinz 
knew that Kutz’s return to Apex was contingent on Apex’s “safeguard against any sexual 
harassment” in the form of Becky Hochhausen, the Human Resources professional hired 
by Apex.  (Dkt. 59-1 ¶¶ 42-49.)  The Proposed FAC alleges Rapp’s continued sexual 
harassment of Kutz after she returned, including his attempts to manufacture a situation 

where they were in the same location, her rejection of those attempts, her reporting of 
those attempts to President Newton and Executive VP Hinz, and that their response was 
to repeatedly tell “her to ignore Rapp and limit conversations with him when possible.”  
(Id. ¶¶ 60-63.)  Even if they did not know about Rapp’s unsolicited physical contact with 
Kutz during the December 2018 sales team trip, based on these allegations, Apex 
leadership had reason to know that Rapp had repeatedly sexually harassed Plaintiff and 
continued to do so—unchecked by Apex leadership because he owned and was the CEO 

of Apex—and that Rapp’s conduct could well escalate to unwanted physical contact or 
assault if Plaintiff refused his advances in person.  Simply put, Plaintiff has alleged 
enough facts in the Proposed FAC to survive a Rule 12(b)(6) analysis as to a punitive 
damages claims against Apex based on the Minnesota assault claim.         
    Lastly, as to Defendants’ contention that Apex took prompt and remedial actions 

after Plaintiff reported the August 2020 assault to its human resources personnel, those 
actions are not something the Court can consider at this stage of the proceedings.  
Mathiason, 

 at *4 (“When conducting a Rule 12(b)(6) analysis on a 
motion to amend, a court generally is restricted from examining matters outside of the 
four corners of the proposed amended complaint.”).  Moreover, Plaintiff alleged in the 

Proposed FAC that after she reported the August 2020 assault to Executive VP Hinz, he 
told her that “she could meet with Rapp to hear his apology, or she could leave Apex” 
and that after human resources personnel at Apex completed their investigation of the 
August 2020 assault, she was informed that “Rapp would not agree with her request to 
avoid ‘one-on-one-in-person situations(s)’” and “nothing more could be done because her 

harasser, Rapp, was the sole owner and CEO of Apex, and she could not escalate the 
complaint to anyone.”  (Dkt. 59-1 ¶¶ 93, 98-103.)  Based on these allegations, a court 
could reasonably infer that Apex’s actions were not “prompt and remedial.” 
    In sum, based on the allegations in the Proposed FAC, the Court finds that 
Plaintiff has sufficiently pled a claim for punitive damages for her assault claim under 
Minnesota law as to Apex.5                                                

    3.   Rapp                                                            
         a.   The Parties’ Arguments                                     
    Regarding punitive damages against Rapp for Plaintiff’s assault claim under 
Minnesota law, Defendants argue that Plaintiff failed to “plead a single fact to establish 
by clear and convincing evidence that, on the night of the assault, Rapp knew of or 

intentionally disregarded the high probability of injury” to Plaintiff’s “rights or safety, 
and proceeded to act with intentional disregard or indifference for that high probability of 
injury.”  (Dkt. 64 at 18.)  Defendants contend that Plaintiff’s basis for claiming punitive 
damages against Rapp is no more than a formulaic recitation of the punitive damages 
standard, and that she failed to allege for example that Rapp repeatedly assaulted her, 

“that these events were planned, or that there was a level of culpability warranting a 
claim for punitive damages.”  (Id. at 18-19.)  According to Defendants, there “certainly is 
no basis to conclude that Rapp had any intent to cause bodily harm to Kutz in light of her 
allegations that he was in love with her” and what the allegations show is that Plaintiff 
“agreed to meet one-on-one with Rapp in Illinois, and [] the two of them got into an 

argument late at night after hours of drinking.”  (Id. at 19.)            


5    In granting Plaintiff’s Motion to Amend, the Court expresses no opinion on 
whether Plaintiff will be able to ultimately prove alter ego or vicarious liability, or the 
“deliberate disregard” standard required for an award of punitive damages. 
    Plaintiff responds that an amendment is not futile as the Proposed FAC plausibly 
alleges that she is entitled to punitive damages on her assault claim against Rapp under 
Minnesota law and that Defendants “skew” the allegations and attempt to rewrite them in 

a “self-serving” manner.  (Dkt. 67 at 17-18.)  Plaintiff contends that Defendants’ 
argument is inconsistent with Judge Brasel’s order denying Defendants’ partial motion to 
dismiss.  (Id. at 18.)                                                    
         b.   Whether Plaintiff Sufficiently Alleged a Claim for Punitive 
              Damages Against Rapp Under Minnesota Law                   

    The Court finds that Plaintiff has sufficiently pled a claim for punitive damages as 
to her assault claim under Minnesota law against Rapp.  First, there is no doubt that Judge 
Brasel found Plaintiff pled an underlying claim for assault in the operative Complaint.  
(See Dkt. 37 at 13-14.)  In the order denying Defendants’ partial motion to dismiss, as to 
Plaintiff’s assault claims, Judge Brasel stated:                          
    The Court finds that Kutz has adequately pled assault. Relying primarily on 
    Dahlin,6 Defendants argue that the law requires a verbal threat of physical 
    violation for a claim for assault to prevail. Minnesota law does not define 
    assault so narrowly. Although “mere words or threats alone do not constitute 
    assault,” Dahlin does not support Defendants’ argument. 288 N.W. at 852. 
    Minnesota law requires only a “display of force . . . such as to cause plaintiff 
    reasonable apprehension of immediate bodily harm.” Id.               

    Kutz’s complaint meets this standard. It alleges that Rapp cornered Kutz into 
    an alley at night, screamed at her inches from her face, and restricted her 
    ability to flee. These facts sufficiently plead the requisite display of force 
    required to establish a threat of bodily harm and Rapp’s present ability to 
    carry out the threat. Defendants’ motion to dismiss the assault claims is 
    denied.                                                              


6    Dahlin v. Fraser, 

 (Minn. 1939).                    
(Id. (internal citations omitted).)  The Proposed FAC does not change the allegations as to 
Plaintiff’s underlying assault claim.  As such, the Court finds Defendants’ assertions that 
there “certainly is no basis to conclude that Rapp had any intent to cause bodily harm to 

[Plaintiff] in light of her allegations that he was in love with her” unavailing.7 
    Moreover, the Proposed FAC goes well beyond alleging that Rapp was “in love 
with” Plaintiff.  It alleges ongoing sexual harassment of Plaintiff, including in the form of 
Rapp’s unwanted pursuit over several years and one previous instance of unwanted 
physical contact by Rapp, which resulted in Plaintiff’s screaming in alarm.  The Court is 

not persuaded by Defendants’ arguments that Rapp had no reason to believe Plaintiff did 
not want to be alone with him.  (Dkt. 64 at 18.)  The Proposed FAC specifically alleged 
that Rapp booked a hotel room “a block from where Plaintiff lived” during his August 
2020 trip to Chicago, Illinois; that on the day of the August 2020 assault, Plaintiff 
“reluctantly agreed” to have drinks with Rapp before a scheduled client dinner “only if” 

her sister could come along; that after the client dinner on the day of the August 2020 
assault, “Rapp insisted he share an Uber with Plaintiff[,]” “Plaintiff suggested they leave 
separately, but Rapp was adamant the two share a ride,” after which “Plaintiff relented, 
and she ordered the Uber to ensure that Rapp’s hotel be the first stop so that Rapp would 


7    Although not directly on point, “the Minnesota Supreme Court has found, for the 
purposes of an insurance policy’s intentional act exclusion, that ‘because harm is 
substantially certain to result, intent to harm is inferred as a matter of law in cases of 
nonconsensual sexual contact such as rape or sexual assault where mental illness is not at 
issue.’”  Escamilla v. SMS Holdings Corp., Civ. No. 09-2120 (JMR/JSM), 

, at *11 n.8 (D. Minn. April 5, 2010) (quoting B.M.B. v. State Fire and Cas. 
Co., 

 (Minn. 2003)).                                   
not have an opportunity to come to her home”; that the Uber driver drove past Plaintiff’s 
home on the way to Rapp’s hotel, leading to Rapp insisting that the “driver pull over, and 
[he] informed Plaintiff that he would just get out with her”; and that Plaintiff “told Rapp 

he could not come to her home.”  (Dkt. 59-1 ¶¶ 65-77.)  Plaintiff also alleged in the 
Proposed FAC that Rapp “demanded” that “the two get out of the [Uber] together and 
pleaded with Plaintiff to let him into her home” so he could have a glass of wine with her; 
that although she refused his advances, Rapp got out of the Uber and went to the front of 
her home; and that she was “shocked and worried for her safety, remained in the [Uber] 

and asked the driver to go around the corner” so that she could drop off “by the alley 
behind her home” in order to avoid Rapp and “sneak into her home through the back door 
without Rapp realizing she had done so.”  (Id. ¶¶ 78-80.)  Further, Plaintiff alleged that 
irrespective of her attempts to avoid Rapp on the night of the August 2020 assault, that 
“Rapp had gone around her home to look for [her] and found her in the alley” and he 

“became furious. He screamed at [her]. She tried to get away from [him], but he closed in 
on her, backing her up into a wall.”  (Id. ¶¶ 81-86.)  Based on these allegations, and 
considering the allegations that Plaintiff refused Rapp’s request to go on trips with him, 
blocked Rapp on social media after he failed to adhere to her “numerous requests” that he 
not contact her on social media sites, repeatedly declined of his advances prior to the 

August 2020 assault, and screamed and became alarmed when he picked her up from the 
couch when she was sleeping, it is reasonable to infer that Rapp knew and intentionally 
or recklessly disregarded the fact that Plaintiff did not want to be alone with him.   
    As to Defendants’ other arguments, they cite no authority that advance planning of 
an assault, or repeated assaults, are necessary to show Rapp’s deliberate disregard or 
reckless indifference to Kutz’s right to be free from assault.  For all of these reasons, the 

Court concludes that the Proposed FAC plausibly alleges facts from which the inference 
can be drawn that Rapp knew of or intentionally disregarded facts that Plaintiff did not 
want to be alone with him or touched by him, and that he deliberately acted in conscious 
or intentional disregard or with indifference to the high probability of injury to Kutz’s 
rights and safety.                                                        

C.   Claim 8—Illinois Assault Claim Against Defendants Rapp and Apex      
    In the operative Complaint, Kutz sought leave to amend the Complaint to seek 
punitive damages based on her Illinois assault claim.  (See Dkt. 1 ¶¶ 204-09, C.)  Plaintiff 
now seeks to add a claim for punitive damages as to the Illinois assault claim, alleging: 
“Defendants willfully committed the above-alleged facts with malice or deliberate 

disregard and indifference for the rights and safety of Plaintiff.  As a result, Plaintiff is 
entitled to punitive damages.”  (Dkt. 59-1 ¶ 224.)                        
    The parties disagree as to the applicable Illinois law.  For her part, Plaintiff argued 
that “the analysis under Illinois law for punitive damages is the same as that under 
Minnesota law” and noted that the Illinois statute relating to amending to add punitive 

damages, Ill. Rev. Stat. ch. 110, ¶ 2-640.1 (1991), applies to a “far narrower subset of 
claims involving negligence or product liability.”  (Dkt. 58 at 5 n.4.)  Plaintiff argues that, 
in any event, federal procedural law governs the Court’s analysis as to the Illinois 
common law assault claim.  (Id.)  Defendants argue that the Illinois statute cited to by 
Plaintiff is irrelevant, that the standard for awarding punitive damages in Illinois is 
different from that for Minnesota, and that under Illinois law, punitive damages are 
awarded “where a tort was committed with ‘fraud, actual malice, deliberate violence or 

oppression, or when the defendant acts willfully, or with such gross negligence as to 
indicate a wanton disregard for the rights of others.”  (Dkt. 64 at 19-20.)  Defendants 
criticize Kutz for not specifying if she seeks punitive damages for actual malice, willful 
and wanton disregard, or gross negligence indicating wanton disregard.  (Id. at 20.) 
    In her Reply, Plaintiff contends that Defendants make no conflict of law 

arguments or arguments as to how the Court’s analysis may vary and that if Section 2-
640.1 is inapplicable as argued by Defendants, then there is no authority requiring her to 
move to amend her complaint to assert a claim for punitive damages under Illinois law as 
she would be entitled to such damages without amendment.  (Dkt. 67 at 19-20.)  Plaintiff 
contends that she is not required to choose a basis under which to plead punitive 

damages.  (Id. at 20.)  At the May 31 hearing, Defendants argued that Section 2-640.1 is 
inapplicable and because it is the only ground on which Plaintiff seeks amendment, the 
Motion to Amend is futile as to her Illinois punitive damages claim.      
    Section 2-604.1 provides:                                            
    In all actions on account of bodily injury or physical damage to property, 
    based on negligence, or product liability based on any theory or doctrine, 
    where punitive damages are permitted no complaint shall be filed containing 
    a prayer for relief seeking punitive damages. However, a plaintiff may, 
    pursuant to a pretrial motion and after a hearing before the court, amend the 
    complaint to include a prayer for relief seeking punitive damages. The court 
    shall allow the motion to amend the complaint if the plaintiff establishes at 
    such hearing a reasonable likelihood of proving facts at trial sufficient to 
    support an award of punitive damages.                                
735 ILCS 5/2-604.1 (emphasis added).                                      
    Section 2-604.1 does not apply here as that “provision applies only to a negligence 
or product-liability action, and not to any other type of action, such as an intentional tort.”  
Fiala v. Bickford Sr. Living Grp., LLC, 

, 1248 (Ill. App. Ct. 2015) 
(finding “section 2-604.1 is not applicable under the facts alleged in this case and that the 

trial court erred in striking plaintiff’s request for punitive damages” where the “claims do 
not sound in negligence”).  “The Illinois Supreme Court has specifically and 
unequivocally held that assault” is a “long-recognized tort action.”  Temores v. Cowen, 

 (N.D. Ill. 2003) (citations omitted).  Moreover, Section 2-
604.1 is procedural law.  See Worthem v. Gillete Co., 

 (N.D. Ill. 

1991) (concluding that Section 2-604.1 is procedural and declining to apply it); see also 
Probasco v. Ford Motor Co., 

 (C.D. Ill. 2002) (stating that 
because Section 2-604.1 “is a state procedural requirement it does not govern federal 
courts deciding state law claims.”) (collecting cases).                   
    Although Plaintiff could have pleaded a claim for punitive damages as to her 

assault claim under Illinois law in the operative Complaint, she did not.  Rule 15 however 
permits the Court to consider Plaintiff’s request to amend her Complaint to assert a 
punitive damages claim.  The Court therefore considers below whether an amendment is 
justified as to this claim against each Defendant.                        
    1.   Apex                                                            
         a.   The Parties’ Arguments                                     
    As to Plaintiff’s punitive damages claim against Apex, Defendants argue that 

Plaintiff failed to allege facts in the Proposed FAC giving rise to her claim for such 
damages and that it is not clear what basis under Illinois law on which Plaintiff seeks 
punitive damages against Apex, that is, “whether it be actual malice, willful and wanton 
disregard for Kutz’s rights, or gross negligence indicating wanton disregard of” her 
rights.  (Dkt. 64 at 20-21 (footnote omitted).)  Defendants contend that instead, Plaintiff 

parrots the Minnesota punitive damages standard, failed to satisfy her burden under 
Illinois punitive damages law as well as under Illinois pleading requirements as she stated 
conclusory assertions that punitive damages are warranted, and did not plead facts to 
“establish that Apex acted with actual malice, deliberate violence, or in a grossly 
negligent manner so as to indicate wanton disregard for” her safety.  (Id. at 21.) 

    Plaintiff responds that there is no requirement for her to choose a basis under 
which to plead punitive damages and that Defendants cited no authority for the 
proposition that the basis for pleading punitive damages is mutually exclusive.  (Dkt. 67 
at 20.)  According to Plaintiff, the Proposed FAC plausibly alleges that she is entitled to 
punitive damages on her claims of assault against Apex under Illinois law.  (Id.) 

         b.   Whether Plaintiff Sufficiently Alleged a Claim for Punitive 
              Damages Against Apex Under Illinois Law                    

    Because Plaintiff pleads her assault claim under Illinois common law, “the 
availability of punitive damages is governed by Illinois law.”  See Alford v. Aaron’s 
Rents, Inc., No. 08-cv-0683-MJR, 

, at *1 (S. D. Ill. June 3, 2011).  In 
Illinois, punitive damages are “awarded when torts are committed with fraud, actual 
malice, deliberate violence or oppression, or when the defendant acts willfully, or with 

such gross negligence as to indicate a wanton disregard of the rights of others.”  Loitz v. 
Remington Arms Co., Inc., 

 (Ill. 1990) (quoting Kelsay v. Motorola, 
Inc., 

 (Ill. 1978) and citing Restatement (second) of Torts § 908(2) (1979) 
(“Punitive damages may be awarded for conduct that is outrageous, because of the 
defendant’s evil motive or his reckless indifference to the rights of others.”)).  “Illinois 

courts will impose punitive damages against a corporate defendant for the acts of an 
employee where (1) it authorized, ratified, or approved the act, (2) the employee was 
unfit and the corporation recklessly hired him, or (3) the employee was a manager acting 
within the scope of employment.”  Torretto v. I.B. Diffusion, No. 92 C 2758, 

, at *4 (N.D. Ill. Dec. 26, 1995).                                  

    The Court finds that Plaintiff has sufficiently pled a claim for punitive damages 
against Apex under Illinois law.  Plaintiff specifically alleges in the Proposed FAC that 
“Defendants willfully committed the above-alleged facts with malice or deliberate 
disregard and indifference for the rights and safety of Plaintiff” and incorporated all 
factual allegations by reference in her Illinois assault claim.  (Dkt. 59-1 ¶¶ 218, 224 

(emphases added).)  As stated above, in Illinois, punitive damages are “awarded when 
torts are committed with fraud, actual malice, deliberate violence or oppression, or when 
the defendant acts willfully, or with such gross negligence as to indicate a wanton 
disregard of the rights of others.”  Loitz, 

.           
    Defendants state that Plaintiff used the term “malice,” and appear to argue that a 
distinction exists between the terms “malice” and “actual malice.”  (Dkt. 65 at 20 n.12.)  
But it is not clear at this juncture why a distinction of those terms matter, if at all, and the 

Carson v. Allied News case cited to by Defendants discusses at the summary judgment 
stage whether “‘actual malice’ was shown with convincing clarity” in a libel suit.  

 (7th Cir. 1976) (stating that “actual malice” is “quite different from the 
common law standard of ‘malice’ generally required under the state tort law to support an 
award of punitive damages.  Whereas the common law standard focuses on the 

defendant’s attitude toward plaintiff, ‘actual malice’ concentrates on the defendant’s 
attitude the truth or falsity of the material published.”).  And as Defendants have not cited 
any law supporting their argument that Plaintiff must identify in the Proposed FAC 
whether she alleges Rapp acted with actual malice, willful and wanton disregard for 
Kutz’s rights, or gross negligence indicating wanton disregard of her rights, the Court 

declines to impose this requirement at this stage of the proceedings.     
    Moreover, the Proposed FAC is far from conclusory as to the Illinois assault 
claim, as it incorporates the factual allegations by reference, including that Rapp is the 
alter ego of Apex and so Rapp’s knowledge was imputed to Apex, that Apex’s leadership 
was aware of and witnessed Rapp sexually harass Plaintiff, and that Plaintiff complained 

of Rapp’s unwanted advances to Apex’s leadership on multiple occasions but to no avail.  
See Torretto, 

, at *1-4 (finding the plaintiff alleged sufficient facts to 
assert a claim for punitive damages against defendant (plaintiff’s employer) for the 
intentional torts of assault and battery committed by the president of her employer where 
plaintiff alleged that the president was an alter ego of the employer and that the president 
deliberately and maliciously sexually harassed her “with the complete knowledge” of the 
employer where the plaintiff reported the president’s offensive conduct to her employer’s 

management who all “did nothing to prevent such conduct” and “thereby encouraged and 
authorized such conduct”; noting plaintiff’s allegations under an alter ego theory against 
her employer was cognizable under Illinois law; and finding that the employer authorized 
the president’s acts); see also Cline v. Gen. Elec. Cap. Auto Lease, Inc., 

 (N.D. Ill. 1991) (finding an employer liable for punitive damages where it 

was alleged that the collections’ manager of the employer committed battery against 
plaintiff which was “willful, malicious and ‘outrageous’” because the employer was 
“aware of [the collections’ manager’s] behavior and apparently tolerated it because [the 
collections’ manager] was ‘at least worth $500,000 each year to” the employer and 
stating that courts “award punitive damages in order to punish a defendant for willful or 

malicious conduct, as well as to deter others from similar behavior” where an Illinois 
plaintiff shows that “the defendant’s behavior was exceptionally ‘antisocial’ or 
‘outrageous’”); Steel Warehouse of Wis., Inc. v. Caterpillar, Inc., No. 90 C 20053, 

, at *2 (N.D. Ill. Nov. 13, 1990) (stating that a complaint was not subject to 
dismissal even though it did not plead the elements that must be proved to assert an alter 

ego claim under Illinois law).                                            
    Taking the allegations in the Proposed FAC as true and construing it and all 
reasonable inferences therefrom favorably to Plaintiff, the Court finds that Plaintiff has 
sufficiently pled a claim for punitive damages against Apex for her assault claim under 
Illinois law.                                                             
    2.   Rapp                                                            

         a.   The Parties’ Arguments                                     
    As to Rapp, Defendants argue that Plaintiff failed to establish the appropriate legal 
standard on which she intends to seek punitive damages against Rapp under Illinois law 
and that “there are absolutely no facts to suggest that Rapp acted with actual malice, 
deliberate violence, willfully and wantonly disregarded her rights, or did so in a grossly 

negligent manner.”  (Dkt. 64 at 21-22.)  Plaintiff responds that she has adequately 
established entitlement to punitive damages against Rapp under Illinois law and that her 
allegations “demonstrate that Rapp acted willfully, with total disregard for Kutz’s rights 
and safety, particularly where Rapp intentionally threatened bodily harm with an ability 
to carry out that threat.”  (Dkt. 67 at 20-21.)                           

         b.   Whether Plaintiff Sufficiently Alleged a Claim for Punitive 
              Damages Against Rapp Under Illinois Law                    

    Again, Plaintiff alleged in the Proposed FAC that “Defendants willfully 
committed the above-alleged facts with malice or deliberate disregard and indifference 
for the rights and safety of Plaintiff.”  (Dkt. 59-1 ¶ 224.)  The Proposed FAC also alleges 
that prior to the August 2020 assault, Plaintiff objected to Rapp’s advances, leadership at 
Apex witnessed Rapp sexually harass Plaintiff, Plaintiff reported Rapp’s unwanted 
advances to leadership at Apex, Plaintiff declined Rapp’s offers to go on trips with him, 
Plaintiff blocked Rapp on social media, and on the day of the August 2020 assault, 
Plaintiff suggested that they take separate Ubers, declined his request to have a glass of 
wine at Plaintiff’s home, had the Uber driver drop her off at the alley behind her home in 
order to avoid Rapp, and Rapp nonetheless approached her at the alley, “became furious,” 

“screamed at Plaintiff. She tried to get away from Rapp, but he closed in on her, backing 
her up into a wall[,]” made insulting commentary to her, until her neighbor “intervened” 
and “physically separate[d] Rapp from Plaintiff to get Rapp to stop.”  These allegations 
are sufficient to allege a claim of punitive damages under Illinois law against Rapp.  See 
Alford, 

, at *1 (finding as to the plaintiff’s assault and battery claims 

that she sufficiently alleged “willful verbal and physical sexual conduct” by the 
defendant, warranting submission of the issue of punitive damages to the jury) (citing 
Knierim v. Izzo, 

 (Ill. 1961) (“The ‘outrageous nature’ of the 
defendant’s alleged conduct was sufficient to allow the jury to make an award of punitive 
damages”).                                                                

                             * * *                                       
    Accordingly, for all of these reasons, the Court finds that Plaintiff has sufficiently 
stated claims for punitive damages for her assault claims against Defendants under 
Minnesota and Illinois law.8  The Court also grants the Motion to Amend to the extent 


8    At the May 31 hearing, Defendants generally argued that amendment of Plaintiff’s 
Minnesota and Illinois assault claims is unjustified under Rule 15 because, unlike the 
MRHA and Title VII claims, there are no caps on punitive damages as to the common 
law assault claims, rendering Plaintiff’s request for damages essentially limitless if the 
Court grants the Motion to Amend.  Defendants cite no authority for the proposition that 
an “unlimited” request for punitive damages renders amendment unjustified, and the 
Court rejects this argument.                                              
Plaintiff seeks to add factual allegations (see Dkt. 59-1 ¶¶ 19, 26, 59, 104, 109, 124, 130, 
140, 145, C) in the Proposed FAC.                                         
                         IV.  ORDER                                      

    For the reasons stated above, and based upon all the files, records, and proceedings 
herein, IT IS ORDERED THAT: Plaintiff’s Motion for Leave to Amend the Complaint 
to Add Punitive Damages (Dkt. 56) is GRANTED in part and DENIED in part as 
moot as set forth in this Order.                                          


DATED: August 15, 2023                  s/Elizabeth Cowan Wright          
                                       ELIZABETH COWAN WRIGHT            
                                       United States Magistrate Judge    

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


Allison Kutz,                         Case No. 22-cv-1623 (NEB/ECW)      

          Plaintiff,                                                     

v.                                          ORDER                        

NGI Capital, Inc. doing business as Apex                                 
IT and Eric Christopher Rapp,                                            

          Defendants.                                                    


    This matter is before the Court on Plaintiff Allison Kutz’s (“Plaintiff” or “Kutz”) 
Motion for Leave to Amend the Complaint to Add Punitive Damages (“Motion to 
Amend”) (Dkt. 56).  Defendants NGI Capital, Inc., doing business as Apex IT, and Eric 
Christopher Rapp (collectively, “Defendants”) oppose the Motion.  (Dkt. 64.)  For the 
reasons stated below, the Motion is granted in part and denied in part as moot. 
                      I.   BACKGROUND                                    
A.   Operative Complaint and Procedural Background                        
    Plaintiff filed the operative Complaint in this case on June 21, 2022.  (Dkt. 1.)  
That Complaint alleges in relevant parts as follows:                      
 •  Plaintiff initially began working for Defendant NGI Capital, Inc. d/b/a Apex IT 
    (“Apex” or “Company”) in October 2015 as a Practice Director, and within her first 
    year of employment, the sole owner and Chief Executive Officer (“CEO”) at Apex, 
    Defendant Eric Christopher Rapp (“Rapp”), sexually harassed her.  (Id. ¶¶ 3, 13-
    15.)  Rapp expressed “his inappropriate sexual and ‘romantic’ desire for Plaintiff in 
    front of others,” including clients, partners, Apex management, and Plaintiff’s peers 
    at Apex and sexually harassed Plaintiff in the presence of others, including in the 
    presence of Scott Newton, the President of Apex (“President Newton”), and her 
  direct supervisor Bryan Hinz, who was the Executive Vice President at Apex 
  (“Executive VP Hinz”).  (Id. ¶¶ 13, 18, 22, 27, 32-34.)  Rapp’s harassment “was so 
  pervasive  that,  during  industry  conferences  or  required  in-person  Sales  Team 
  meetings and industry conferences, other male coworkers were put on ‘Rapp Duty’ 
  to ensure Plaintiff could get back to her hotel room unmolested.”  (Id. at ¶¶ 28-30.)   

•  During a Sales Team trip to Breckenridge, Colorado in December 2018 (“December 
  2018 sales team trip”), “Plaintiff fell asleep on a couch in front of four Apex peers.  
  Rapp proceeded to pick Plaintiff up off the couch to take her to bed.  Plaintiff woke 
  up in Rapp’s arms, became alarmed, screamed, and demanded to be put down.”  (Id. 
  ¶ 31.)                                                               

•  Plaintiff “at all times” declined Rapp’s advances; Apex did not have any human 
  resources personnel between 2015 and the spring of 2019 so Plaintiff reported her 
  concerns regarding Rapp’s behavior to  Executive VP Hinz and President Newton 
  “numerous times” via various platforms, to no avail; in response, Executive VP 
  Hinz “told Plaintiff to ‘just ignore him’” and both  Executive VP Hinz and President 
  Newton “made clear that there was little they could do to help her because Rapp 
  was the CEO and sole owner of” Apex; and although, Plaintiff “made it clear” to 
  Rapp  that  his  “harassment  was  not  welcome,”  Rapp  “ignored  and  dismissed 
  Plaintiff’s request that he act professionally and stop harassing her,” leading to her 
  resignation in May 2019.  (Id. ¶¶ 16-17, 19-25, 30, 35-37.)          

•  After receiving assurances from Executive VP Hinz that Apex was instituting 
  changes to improve its “problematic work environment,” including by hiring a 
  human resource professional and reinforcing to Rapp that he limit communications 
  with Plaintiff to “business matters,” Plaintiff agreed to return to her former role at 
  Apex in November 2019.  (Id. ¶¶ 40-56.)                              

•  Rapp informed Plaintiff that her “return to Apex was contingent on signing a 
  supplemental  agreement  drafted  by  his  attorney”  which  “required  Plaintiff  to 
  acknowledge that Rapp had feelings for her, that he would do his best not to act on 
  those feelings or otherwise pursue Plaintiff” but if “he were to act on his feelings 
  towards  her,  Plaintiff  would  agree  not  to  report  the  issue  to  Apex’s  Human 
  Resources or to her supervisor” and should instead “discuss her concerns directly 
  with him” and “not sue Rapp or Apex for sexual harassment.”  (Id. ¶¶ 49-50.)  
  Plaintiff did not sign the supplemental, or any similar, agreement.  (Id. ¶¶ 51-55.) 

•  About  6  months  after  Plaintiff  returned  to  Apex,  Rapp  again  began  sexually 
  harassing her and invited her to join him on trips.  (Id. ¶¶ 57-60.)  Plaintiff refused 
  Rapp’s advances and reported his behavior to Executive VP Hinz and President 
  Newton who both “repeatedly told her to ignore Rapp and limit conversations with 
  him when possible.”  (Id. ¶¶ at 60-61.)                              

•  Plaintiff agreed to meet with Rapp “one-on-one for purposes of a performance 
  review” on August 26, 2020 in Chicago, Illinois, almost a year after her return; 
  during his trip to Chicago, Illinois, Plaintiff arranged for her and Rapp to have dinner 
  with clients “to avoid” meeting with Rapp alone.  Rapp “insisted that he and Plaintiff 
  get drinks before the client dinner,” and Plaintiff “reluctantly agreed” to drinks only 
  if her sister came along.  (Id. ¶¶ 63-71.)                           

•  After dinner with clients on August 26, 2020, “Rapp insisted he share an Uber with 
  Plaintiff because, as he explained, he was staying at a hotel near her apartment.”  
  (Id. ¶ 72.)  Plaintiff suggested they leave separately, but reluctantly ordered an Uber 
  for the two to share after Rapp insisted and did so to ensure that Rapp was dropped 
  off at his hotel first, however, the “Uber had to drive past Plaintiff’s home on the 
  way to Rapp’s hotel. When Rapp saw they were driving past Plaintiff’s home, Rapp 
  insisted the driver pull over, and informed Plaintiff that he would just get out with 
  her.”  (Id. at ¶¶ 73-74.)  Plaintiff was “immediately concerned for her safety” and 
  opposed Rapp’s request; Rapp insisted and pleaded with Plaintiff that they have 
  wine at Plaintiff’s apartment; Plaintiff refused his advances but Rapp nonetheless 
  got out of the Uber and “went to the front of her home”; Plaintiff was “shocked and 
  worried for her safety” so she stayed in the Uber and asked the driver to drop her 
  off by the alley behind her home, “thinking she could sneak into her home through 
  the back door, without Rapp realizing she had done so”; when Plaintiff exited the 
  Uber, she realized she did not have the key to her back door so she called her 
  neighbor to assist her and explained “the situation” to him; Plaintiff’s neighbor gave 
  her the access code to his back door so that Plaintiff could avoid Rapp and informed 
  Plaintiff that he would head her way to “help her” because he could “tell Plaintiff 
  did not feel safe.”  (Id. ¶¶ 75-81.)  Rapp however approached Plaintiff in the alley 
  behind her home, “became furious,” “screamed at Plaintiff,” following which “[s]he 
  tried to get away from Rapp, but he closed in on her, backing her up into a wall,” 
  made insulting commentary to Plaintiff, until Plaintiff’s neighbor “intervened” and 
  “physically separate[d] Rapp from Plaintiff to get Rapp to stop” (“August 2020 
  assault”).  (Id. ¶¶ 82-89.)                                          

•  Plaintiff reported the August 2020 assault to Executive VP Hinz, President Newton, 
  and human resources personnel at Apex, who investigated Plaintiff’s report and 
  found that the “evidence” supported Plaintiff’s “claims and it does appear that the 
  inappropriate behavior and violations of company policy took place.”  (Id. at 90-
  99.)  Human resources personnel informed Plaintiff that Rapp had been made 
  “aware of the relevant law and company policies prohibiting unlawful harassment 
  and retaliation’ so that such conduct ‘does not repeat itself’” and that “nothing more 
    could be done because her harasser, Rapp, was the sole owner and CEO of Apex.”  
    (Id. ¶¶ 100-01.)                                                     

 •  As a result of Plaintiff’s “formal complaint,” Rapp apologized to Plaintiff, but did 
    not stop harassing her and threatened to terminate her employment.  (Id. ¶¶ 102, 
    106-13.)  Rapp continued to inform others of his desires for Plaintiff; Plaintiff 
    continued to refuse Rapp’s advances and informed Executive VP Hinz and human 
    resources personnel at Apex of his continuous harassing behavior, leading to her 
    termination in September 2021.  (Id. ¶¶ 112, 114-38.)                

 •  Plaintiff resides in Chicago, Illinois; Apex is incorporated under the laws of the 
    State of Colorado and is headquartered in Cottage Grove, Minnesota; and Rapp 
    resides in Littleton, Colorado.  (Id. ¶¶ 1-3.)                       

 •  At all relevant times, Plaintiff was an “employee” of Apex under Title VII of the 
    Civil Rights Act, 42 U.S.C. § 2000e(f) (“Title VII”) and the Minnesota Human 
    Rights Act, Minn. Stat. § 363A.01, et. seq. (“MHRA”); “Apex was Plaintiff’s 
    ‘employer’” as defined in Title VII and the MHRA; “Rapp is Apex’s sole owner 
    and CEO and is the alter ego of Apex”; and Rapp is an employer under Title VII 
    and the MHRA.  (Id. ¶¶ 4, 142-43, 152-53, 159-60, 169-70, 179-80, 188-89.) 

 •  This Court has jurisdiction because Apex’s principal office is in Minnesota and it 
    conducts business in Minnesota; Plaintiff spoke with her supervisor who is located 
    in Minnesota almost daily; Plaintiff made multiple reports of harassment to her 
    supervisor who resides in Minnesota and “thereby engaged in protected conduct in 
    Minnesota”;  “Plaintiff  has  clients  that  are  based  in  Minnesota  whom  she 
    consistently contacted”; and Apex “requires employees to agree to Minnesota venue 
    and choice of law provisions.”  (Id. ¶ 10.)                          

    In the operative Complaint, Plaintiff asserts the following eight Counts against 
Defendants: (1) quid pro quo sex discrimination in violation of Title VII; (2) hostile work 
environment sex discrimination in violation of Title VII; (3) retaliation in violation of 
Title VII; (4) quid pro quo sex discrimination in violation of the MHRA; (5) hostile work 
environment sex discrimination in violation of the MHRA; (6) reprisal in violation of the 
MHRA; (7) assault under Minnesota common law; and (8) assault under Illinois common 
law.  (Id. ¶¶ 141-209.)  Plaintiff asserted entitlement to punitive damages as to her claims 
under Title VII and the MHRA in the operative Complaint, and stated her intent to seek 
leave to amend the Complaint to add claims for punitive damages for her common law 
Minnesota and Illinois claims.  (Id. ¶¶ 150, 157, 166, 176, 186, 196, C, D.) 

    On July 27, 2022, Defendants filed a partial motion to dismiss the Complaint, 
seeking, among other things, dismissal of Counts 7 and 8 in their entirety as preempted 
by the MHRA and the Workers’ Compensation Act (“WCA”) and because Plaintiff failed 
to allege a threat of bodily harm under Minnesota and Illinois law.  (Dkt. 11; Dkt. 12 at 6-
7, 14-25.)  Defendants also sought dismissal of Counts 1 through 6.  (Dkt. 12 at 6-7, 8-

14.)  On March 1, 2023, United States District Judge Nancy E. Brasel denied Defendants’ 
motion to dismiss in its entirety.  (Dkt. 37.)  As to the assault claims, Judge Brasel found 
that Plaintiff had stated plausible claims for assault, and ordered Defendants to file an 
answer to the Complaint within 14 days of the order.  (Id. at 13-14.)  On March 15, 2023, 
Defendants filed an Answer to the Complaint.  (Dkt. 41.)                  

    On April 3, 2023, Plaintiff filed the current Motion to Amend, along with 
supporting materials.  (Dkts. 56, 58-60.)  Defendants filed their Opposition to the Motion 
on April 10, 2023, arguing that Plaintiff “embellishes the facts and makes arguments 
based on allegations that are not found anywhere in her complaint” and that “when the 
facts of the proposed Amended Complaint are considered, rather than the magnified 

version present in Kutz’s memorandum, it is evident that Kutz’s proposed amendment is 
futile under Federal Rule of Civil Procedure 15.”  (Dkt. 64 at 1.)  On April 13, 2023, 
Plaintiff filed a Reply.  (Dkt. 67.)  The Court held a hearing on the Motion to Amend on 
May 31, 2023 (“May 31 hearing”).  (Dkt. 77.)                              
B.   Proposed First Amended Complaint                                     
    Plaintiff’s Proposed First Amended Complaint (“Proposed FAC”) is largely 
identical to the operative Complaint.  (See Dkt. 59-1 (redline showing proposed 

amendments).)  In relevant part, the Proposed FAC seeks to add the following factual 
allegations:                                                              
    •  Because Rapp is Apex’s owner and CEO, Apex (and Rapp) knew or     
      should have known about the sexual harassment, and because Rapp    
      ignored  Plaintiff’s  refusals,  Apex  (and  Rapp)  deliberately  acted  in 
      conscious intentional disregard of the high degree of probability of injury 
      to  Plaintiff’s  rights,  or  otherwise  acted  with  indifference  to  this 
      probability.  (Id. ¶ 19.)                                          

    •  As a result of Plaintiff’s complaints to Company leadership, Apex knew 
      or  should  have  known  that  Rapp  was  sexually  harassing  Plaintiff. 
      Because nothing was done to intervene in the harassing conduct, the 
      Company deliberately acted in conscious, intentional disregard of the 
      high degree of probability of injury to Plaintiff’s rights, or otherwise 
      acted with indifference to this probability.  (Id. ¶ 26.)          

    •  As a result of Plaintiff’s complaints to Company leadership and Human 
      Resources, Apex knew or should have known the severity of Rapp’s   
      sexual  harassment  towards  Plaintiff.  Because  nothing  was  done  to 
      intervene in the harassing conduct, the Company deliberately acted in 
      conscious, intentional disregard of the high degree of probability of injury 
      to  Plaintiff’s  rights,  or  otherwise  acted  with  indifference  to  this 
      probability.  (Id. ¶ 104.)                                         

    •  Although  Defendants’  sexual  harassment  training  demonstrates  that 
      Defendants knew that sexual harassment was unlawful, Rapp’s refusal to 
      attend such training—and the Company’s failure to force him to attend 
      training—shows  that  Defendants  knowingly  disregarded  their    
      understanding, as the sexual harassment did not stop, and nothing was 
      done to punish or otherwise intervene in Rapp’s harassing conduct.  (Id. 
      ¶ 109.)                                                            

    The Proposed FAC also seeks to add claims for punitive damages for each Count 
and states as to each: “Defendants willfully committed the above-alleged facts with 
malice or deliberate disregard and indifference for the rights and safety of Plaintiff.  As a 
result, Plaintiff is entitled to punitive damages.”  (Id. ¶¶ 159, 167, 176, 187, 198, 209, 
217, 224.)                                                                

                    II.  LEGAL STANDARD                                  
    Rule 15 of the Federal Rules of Civil Procedure, instead of 

, 
provides the procedural framework for this Motion to Amend to add punitive damages in 
this case asserting claims under federal law, Minnesota statutes, and Minnesota and 
Illinois common law.  See Dolphin Kickboxing Co. v. Franchoice, Inc., 

, 

396-401 (D. Minn. 2020) (analyzing whether 

 or Rule 15 applied to 
motions to amend the complaint to add punitive damages in diversity cases and 
concluding that Rule 15 provides the applicable standard); see also Benner v. St. Paul 
Pub. Sch., I.S.D. #625, 

 (D. Minn. 2019) (“Section 549.191 is 
inapplicable to the present action because Benner’s (surviving) claims are premised on 

federal question jurisdiction and on supplemental jurisdiction, not on diversity 
jurisdiction”); Dewick v. Maytag Corp., 

, 906 n.3 (N.D. Ill. 2003) 
(“Contrary to what Maytag contends, Dewicks’ motion [to amend the complaint to add a 
claim for punitive damages] is controlled by Rule 15(a), not by the section of the Illinois 
Code of Civil Procedure that establishes prerequisites for seeking punitive damages (735 

ILCS 5/2-604.1).”).                                                       
    Federal Rule of Civil Procedure 15(a)(2) provides that “[t]he court should freely 
give leave [to amend] when justice so requires.”  The determination as to whether to 
grant leave to amend is entrusted to the sound discretion of the trial court.  See, e.g., 
Niagara of Wisc. Paper Corp. v. Paper Indus. Union-Mgmt. Pension Fund, 

, 
749 (8th Cir. 1986) (citation omitted).  The Eighth Circuit has held that although 
amendment of a pleading “should be allowed liberally to ensure that a case is decided on 

its merits . . . there is no absolute right to amend.”  Ferguson v. Cape Girardeau Cty., 

, 650-51 (8th Cir. 1996) (citing Chesnut v. St. Louis Cty., 

 (8th 
Cir. 1981); Thompson-El v. Jones, 

 (8th Cir. 1989)).       
    Denial of leave to amend may be justified by “undue delay, bad faith on the part of 
the moving party, futility of the amendment or unfair prejudice to the opposing party.”  

Sanders v. Clemco Indus., 

 (8th Cir. 1987) (citing Foman v. Davis, 

 (1962)); see also Hillesheim v. Myron's Cards and Gifts, Inc., 

 (8th Cir. 2018) (“A district court’s denial of leave to amend a complaint may be 
justified if the amendment would be futile.”) (citation omitted).  “Denial of a motion for 
leave to amend on the basis of futility means the district court has reached the legal 

conclusion that the amended complaint could not withstand a motion to dismiss under 
Rule 12(b)(6) of the Federal Rules of Civil Procedure.  Accordingly, in reviewing a 
denial of leave to amend we ask whether the proposed amended complaint states a cause 
of action under the Twombly[1] pleading standard . . . .”  Zutz v. Nelson, 

 (8th Cir. 2010) (citation and marks omitted); see also In re Senior Cottages of 

Am., LLC, 

, 1001 (8th Cir. 2007) (“[W]hen a court denies leave to amend on 



1    Bell Atl. Corp. v. Twombly, 

 (2007).                     
the ground of futility, it means that the court reached a legal conclusion that the amended 
complaint could not withstand a Rule 12 motion.”).                        
    On a motion to dismiss filed pursuant to Rule 12(b)(6), the Court must take the 

well-pleaded allegations of a claim as true, and construe the pleading, and all reasonable 
inferences arising therefrom, most favorably to the pleader.  See Morton v. Becker, 

 (8th Cir. 1986).  “To survive a motion to dismiss, a complaint must contain 
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 
face.’”  Ashcroft v. Iqbal, 

 (2009) (quoting Twombly, 

).  

A claim is facially plausible “when the plaintiff pleads factual content that allows the 
court to draw the reasonable inference that the defendant is liable for the misconduct 
alleged.”  

                                                            
                        III.  ANALYSIS                                   
    Defendants oppose amendment of the Complaint on futility grounds, arguing that 

the Proposed FAC does not allege facts “that would allow this Court to conclude that 
either defendant knew of or intentionally disregarded facts creating a high probability of 
injury to Kutz’s rights or safety, and proceeded to act with disregard or indifference for 
that high probability of injury.”  (Dkt. 64.)  The Court analyzes the proposed amendment 
below.                                                                    

A.   Counts 1 Through 6—MHRA and Title VII claims                         
    As to Kutz’s Title VII claims, where a “plaintiff pleads a claim based on federal 
law, there is no comparable prohibition on including a request for punitive damages in 
the initial complaint.”  Benner v. St. Paul Pub. Sch., I.S.D. #625, 

, 
822 (D. Minn. 2019).  Moreover, the specific punitive damage provision in the MHRA 
displaces the requirements of 

.  See Minn. Stat. § 363A.29, subd. 4; 
see also Minn. Stat. § 363A.33, subd. 6 (“If the court or jury finds that the respondent has 

engaged in an unfair discriminatory practice, it shall issue an order or verdict directing 
appropriate relief as provided by section 363A.29, subdivisions 3 to 6.”).   
    As conceded by Defendants at the May 31 hearing, the operative Complaint 
sought punitive damages as to the MHRA and Title VII claims, that is, Counts 1 to 6, and 
Defendants did not seek dismissal of Plaintiff’s request for punitive damages for those 

claims.  Accordingly, Plaintiff need not seek leave to amend to add punitive damages 
based on Counts 1 through 6, and the Court therefore denies the Motion to Amend as 
moot to the extent it seeks to amend the Complaint to add claims for punitive damages as 
to those Counts.2  See Andrews v. Fairview Health Servs., Civ. No. 21-1449 (ECT/ECW), 

, at *4 n.4 (D. Minn. Feb. 23, 2022) (“As stated previously, the 

Complaint already seeks punitive damages as to Andrews’ MHRA reprisal claim and 
MHRA sexual orientation discrimination claims. . . .  As such, the Court finds that 
punitive damages as to these claims has already been pled in this action and no further 
motion to amend is required.”); see also Peterson-Rojas v. Dakota Cty., Case No. 21-cv-


2    Defendants contend that Plaintiff’s statement that the Motion to Amend was 
“brought ‘out of an abundance of caution’ further justifies denial” because she has not 
shown “justice so requires” the amendment.  (Dkt. 64 at 2, 9 n.6.)  Plaintiff made this 
statement to explain why she sought amendment as to all claims, even though she did not 
need to do so as to her MHRA and Title VII claims.  (See Dkt. 58 at 2 n.1.)  She did not 
suggest that she did not need to seek leave to amend to add punitive damages as to her 
common law claims, and the Court will not deny leave on Defendants’ proposed ground. 
738 (DSD/TNL), 

, at *3, 6 (D. Minn. Feb. 4, 2022) (denying plaintiff’s 
motion for leave to amend the complaint to add punitive damages and stating that 
plaintiff “need not amend her Complaint to add a punitive damages claim against the 

County under the MHRA” because “Plaintiff may request punitive damages under this 
act at trial and state law caps these claims”) (citing Minn. Stat. 363A.29, subd. 4(b)); 
Hunter v. Ford Motor Co., Civ. No. 08-4980 (PJS/JSM), 

, at *3 (D. 
Minn. Jan. 7, 2010) (stating that the plaintiff need not seek to add punitive damages for 
her federal claims where plaintiff already sought those damages in her initial complaint 

and stating as to plaintiff’s MHRA claims: “In this case, Hunter asserted punitive 
damages for her claims under the MHRA in her original Complaint as well as her 
proposed Amended Complaint.  Hunter need not have brought a motion to amend to add 
a claim for punitive damages under her MHRA claims, considering she already has 
asserted a claim for punitive damages in her Complaints.  As such, Hunter may proceed 

with a punitive damages claim for her [MHRA] claims . . . without leave of the Court.”) 
(internal citations omitted).  In any event, the Proposed FAC alleges that Kutz repeatedly 
complained about Rapp’s sexual harassment to President Newton, Executive VP Hinz, 
and Apex’s Human Resources personnel, who told her that nothing could be done 
because Rapp was the CEO and owner of Apex, and that Kutz repeatedly made it clear 

that Rapp’s conduct was unwelcome and asked him to stop, and he continued his sexual 
harassment.  This is sufficient for the Court to find that Rapp and Apex knew of or 
intentionally disregarded facts creating a high probability of injury to Kutz’s rights or 
safety, and proceeded to act with disregard or indifference for that high probability of 
injury, rendering Kutz’s claims for punitive damages under the MHRA and Title VII not 
futile.                                                                   
    The Court analyzes below whether Counts 7 and 8 of the Proposed FAC could 

withstand a Rule 12(b)(6) motion to dismiss as to each Defendant.         
B.   Claim 7—Minnesota Assault Claim Against Apex and Rapp                
    In the operative Complaint, Plaintiff sought leave to amend the Complaint to seek 
punitive damages based on her Minnesota assault claim.  (See Dkt. 1 ¶¶ 197-203, C.)  
Plaintiff now seeks to add a claim for punitive damages as to the Minnesota assault claim.  

She alleges: “Defendants willfully committed the above-alleged facts with malice or 
deliberate disregard and indifference for the rights and safety of Plaintiff.  As a result, 
Plaintiff is entitled to punitive damages.”  (Dkt. 59-1 ¶ 217.)           
    The Court applies substantive Minnesota law in determining whether the Proposed 
FAC states a plausible claim for punitive damages.  See Shank v. Carleton Coll., No. 16-

CV-1154 (PJS/HB), 

, at *4 (D. Minn. Oct. 15, 2018), aff’d, 

 (D. Minn. 2019).  The relevant legal basis for punitive damages under Minnesota law 
provides:                                                                 
    (a) Punitive damages shall be allowed in civil actions only upon clear and 
    convincing evidence that the acts of the defendant show deliberate disregard 
    for the rights or safety of others.                                  

    (b) A defendant has acted with deliberate disregard for the rights or safety of 
    others if the defendant has knowledge of facts or intentionally disregards 
    facts that create a high probability of injury to the rights or safety of others 
    and:                                                                 
      (1) deliberately proceeds to act in conscious or intentional disregard of 
      the high degree of probability of injury to the rights or safety of others; 
      or                                                                 

      (2) deliberately proceeds to act with indifference to the high probability 
      of injury to the rights or safety of others.                       

, subd. 1.                                            
    Under these criteria, “[a] defendant operates with ‘deliberate disregard’ by acting 
with intent or indifference to threaten the rights or safety of others.”  Gamma-10 Plastics, 
Inc. v. Am. President Lines, Ltd., 

 (8th Cir. 1994).  As such, “the mere 
existence of negligence or of gross negligence does not rise to the level of willful 
indifference so as to warrant a claim for punitive damages.”3  Ulrich v. City of Crosby, 

 (D. Minn. 1994) (citations omitted); see also Shank, 

, at *7 (D. Minn. Oct. 15, 2018) (same); Berczyk v. Emerson Tool Co., 

 (D. Minn. 2003) (“A mere showing of negligence is not sufficient to 
sustain a claim of punitive damages.”) (cleaned up).  Moreover, a plaintiff must allege 
that the defendants were aware of a high probability that their conduct would cause injury 
to plaintiff.  See In re McNeilus Mfg. Explosion Coordinated Litig., No. 17-cv-5237 
(PJS/KMM), 

, at *4 (D. Minn. June 6, 2019).  Put another way, a court 
looks to whether the allegations in a proposed amended complaint plausibly allege a 


3    “Minnesota law defines gross negligence as ‘without even scant care but not with 
such reckless disregard of probable consequences as is equivalent to a willful and 
intentional wrong.’”  Greer v. Walsh Constr. Co., Civ. No. 15-465 (PAM/JSM), 

, at *8 (D. Minn. Feb. 23, 2016) (quoting State v. Chambers, 

 (Minn. 1999)).                                                   
defendant knew of facts, or intentionally disregarded facts, that created a high probability 
that the defendant’s actions would harm the rights or safety of a plaintiff. 
    Defendants make various arguments in opposition to the Motion to Amend, which 

the Court addresses below.  (See Dkt. 64.)                                
    1.   Choice of Law                                                   
    To begin, while Defendants do not explicitly argue that Minnesota assault law is 
inapplicable, they contend that Plaintiff failed “to explain how Minnesota’s assault law 
would convey rights to her while she lived in Illinois” (id. at 16 n.10) and argued at the 

May 31 hearing that neither of the Defendants had any reason to know that Plaintiff 
might have rights under Minnesota law relating to an assault to have deliberately 
disregarded said rights, as Plaintiff did not live or work in Minnesota and the alleged 
assault did not happen in Minnesota.  Plaintiff responded that the Proposed FAC 
specifically alleges that Apex requires its employees to agree to Minnesota venue and 

choice-of-law provisions, which suffices at this stage of the proceedings, and that 
Defendants’ argument is more suited for summary judgment.                 
    Defendants previously declined to make a choice-of-law argument when seeking 
dismissal of Plaintiff’s assault claim in connection with their partial motion to dismiss.  
(Dkt. 12 at 22 n.7.)  Instead, they argued that Plaintiff’s assault claims were preempted by 

the MHRA and the WCA and that Plaintiff failed to allege a threat of bodily harm under 
Minnesota and Illinois law.  (See Dkt. 12 at 14-25.)  In ruling on the partial motion to 
dismiss and finding Plaintiff had adequately pled an underlying assault claim in the 
operative Complaint, Judge Brasel noted the parties’ agreement “that the legal standard 
for assault in Illinois and Minnesota are the same” and that the “attorneys focused their 
attention to the legal standard established under Minnesota law.”  (Dkt. 37 at 13 n.1.) 
    Defendants now urge this Court to consider that Plaintiff failed to explain how 

Minnesota assault law conveyed rights to her.  The Court declines to decide which state’s 
law applies, typically a factually intensive determination, in connection with a Motion to 
Amend that applies the Rule 12(b)(6) standard.  See McLane v. Ethicon Endo-Surgery, 
Inc., No. 3:12-cv-406-J-99MMH-TEM, 

, at *3 (M.D. Fla. June 20, 
2013) (granting plaintiff’s motion to amend the complaint to add punitive damages, 

noting that the parties’ arguments involved a choice-of-law dispute and the weighing of 
evidence, and refusing to consider the defendants’ arguments as the “issues [were] more 
appropriately addressed at a later stage of this litigation”).            
    And in any event, Plaintiff alleged in the Proposed FAC that: Apex is 
headquartered in Cottage Grove, Minnesota, conducts business in Minnesota, and has 

employees nationwide, including in Minnesota (Dkt. 59-1 ¶¶ 2, 9); a “substantial part of 
the events and omissions giving rise to Plaintiff’s claims occurred in” Minnesota as 
Plaintiff spoke with her supervisor who resided in Minnesota almost daily (id. ¶¶ 9-10); 
Plaintiff made multiple reports of harassment to her supervisor who resided in Minnesota 
“and thereby engaged in protected conduct in Minnesota” (id.); Plaintiff had clients that 

are based in Minnesota whom she “consistently contacted” (id. ¶ 10); and Apex “requires 
employees to agree to Minnesota venue and choice of law provisions” (id.).  These 
allegations were incorporated by reference as to Plaintiff’s assault claims.  (Id. ¶¶ 210, 
218.)  The Court finds that these allegations are sufficient for purposes of a Rule 12(b)(6) 
analysis, including as to alleging that Defendants had reason to know that Plaintiff may 
have rights under Minnesota law.  See Evans v. Bus. Dev. Sales, Inc., No. 21-cv-01046 
(SRN/HB), 

, at *7 (D. Minn. Mar. 7, 2022) (finding plaintiff 

sufficiently alleged that the defendants were aware of her right under Minnesota Statutes 
144.4196, subd. 2, where the plaintiff made allegations to that effect in the complaint); 
see also Riley v. St. Louis Cty. of Mo., 

 (8th Cir. 1998) (stating that 
when undertaking a futility analysis, courts are to “look only to the facts alleged in the 
complaint and construe those facts in the light most favorable to the plaintiff.”). 

    The Court turns to the allegations as to each Defendant.             
    2.   Apex                                                            
         a.   The Parties’ Arguments                                     
    As to Apex, citing Zuniga Escamilla v. SMS Holdings Corp., Civ. No. 09-2120 
(ADM/JSM), 

, at *9 (D. Minn. July 29, 2011), Defendants argue that 

Plaintiff’s attempt to impute Rapp’s conduct to Apex fails; Plaintiff failed to allege facts 
that show by clear and convincing evidence that Apex acted with deliberate disregard for 
her rights or safety; Apex had no way of knowing that the August 2020 assault would 
occur; prior to the August 2020 assault, Plaintiff “never conveyed any concern to Apex 
regarding being alone with Rapp,” nor did she allege facts showing that Apex knew of or 

intentionally disregarded any fact creating a high probability under Minnesota law that 
she would be assaulted; and Plaintiff “agreed” to meet with Rapp one-on-one on August 
26, 2020.  (Dkt. 64 at 14-17.)  Defendants contend that while Plaintiff “suggests for the 
first time” in her supporting affidavit to the Motion to Amend that she informed 
Executive VP Hinz that she did not want to meet with Rapp one-on-one in 2020, she 
failed to state when in 2020 the alleged conversation occurred, and “any attempt to claim 
it was prior to the alleged assault is inconsistent with the pleadings” as the Proposed FAC 

does not include any such allegations but instead includes allegations relating to 
“communication boundaries and Apex’s hiring of a human resources director.”  (Id. at 14 
n.9.)  Defendants argue that the extent of Plaintiff’s “reports” regarding Rapp “related to 
her belief that he was in love with her, not that he wanted to harm her,” that Plaintiff and 
Rapp were “rarely” in the same location as they lived and worked in different states, and 

that even if Plaintiff “had requested not to be alone with Rapp before August 2020, she 
does not plead any facts that would suggest that this request put Apex on notice that there 
was a high probability that she was at risk of being assaulted after a client dinner or 
during a performance review.”  (Id. at 16 (citing J.W. ex rel. B.R.W. v. 287 Intermediate 
Dist., 

 (Minn. Ct. App. 2009).)  According to Defendants, Apex 

took prompt and remedial measures after Plaintiff reported the August 2020 assault as 
human resources personnel “immediately” conducted an investigation, assured Plaintiff 
that “appropriate action had been taken to ensure such conduct would not repeat itself,” 
and Plaintiff was not thereafter required to meet with Rapp one-on-one and did not allege 
that she thereafter suffered further assault or inappropriate physical contact from Rapp, 

showing Apex’s actions were “indisputably effective.”  (Id. at 15-17.)  Defendants 
contend that the fact that Plaintiff voluntarily agreed to meet with Rapp one-on-one after 
the alleged August 2020 assault underscores that the two of them meeting, in itself, does 
not carry a high probability of injury.  (Id. at 17.)                     
    Plaintiff responds that she pleaded the requisite connection between Rapp and 
Apex to impose vicarious liability for punitive damages and put forth facts that 
sufficiently establish that Rapp was authorized to act on Apex’s behalf and that he was 

“employed in a managerial capacity with authority to establish policy and make planning 
level decisions” for Apex.  (Dkt. 67 at 14-15 (citing 

, subd. 2).)  
Plaintiff also contends that she informed leadership at Apex about Rapp’s unwelcome 
advances, thereby placing Apex on notice prior to the August 2020 assault, and that 
although she worked and lived in a different state from Rapp, when they were together, 

“Rapp demonstrated a propensity to act in a way that was not only uncomfortable to 
Kutz, but frightening” including the December 2018 incident where Rapp picked her up 
from the couch during a sales team trip.  (Id. at 15-16.)  Plaintiff contends that “Rapp was 
aware that his conduct was harmful” to her and argues that the facts of the J.W. ex rel. 
B.R.W. case cited by Defendants are distinguishable from those of this case.  (Id. at 17.)  

Plaintiff challenges Defendants’ assertion that Apex’s response to the August 2020 
assault was “indisputably effective” and contends that Apex “simultaneously admitted 
there was nothing to be done to stop Rapp.”  (Id. at 16-17.)              
         b.   Whether Kutz Sufficiently Alleged a Claim for Punitive     
              Damages Against Apex Under Minnesota Law                   

    The Court begins with Defendants’ argument that Kutz failed to allege facts 
showing that Rapp’s conduct can be imputed to Apex under Minnesota Statute § 549.20, 
subd. 2.  Defendants quote the following language from the Zuniga Escamilla case: 
“[w]hen a plaintiff seeks to impose vicarious liability for punitive damages of an 
employer for the acts of its [agent], a plaintiff must present evidence under Minnesota 
Statute 549.20, subd. 2.”  (Dkt. 64 at 17.)  However, as stated earlier, in conducting its 
analysis at this stage of the proceeding, the Court need only look to the allegations 

contained in the Proposed FAC.  See Riley, 

 (stating that the Court 
“look[s] only to the facts alleged in the complaint” in conducting a futility analysis); see 
also Mathiason v. Shutterfly, Inc., No. 22-cv-1203 (DSD/DJF), 

, at *4 
(D. Minn. May 16, 2023) (“When conducting a Rule 12(b)(6) analysis on a motion to 
amend, a court generally is restricted from examining matters outside of the four corners 

of the proposed amended complaint.”).                                     
    The Proposed FAC alleges that “Rapp is Apex’s sole owner and CEO and is the 
alter ego of Apex.”  (Dkt. 59-1 ¶¶ 151, 162, 170, 180, 191, 201.)  At the May 31 hearing, 
Defendants argued that Plaintiff failed to allege facts, including for example that Rapp 
was employed by Apex, that he was acting in his scope of his employment when he 

allegedly assaulted her, that Apex authorized or ratified his behavior, or that Rapp was 
unfit and Apex deliberately disregarded his unfitness.  But the Court’s “evaluation of a 
complaint” is “‘a context-specific task that requires [it] to draw on its judicial experience 
and common sense.’”  Braden v. Wal-Mart Stores, Inc., 

 (8th Cir. 
2009) (quoting Iqbal, 

)).  As stated above, Plaintiff alleged in the 

Proposed FAC that: “Rapp is Apex’s sole owner and CEO and is the alter ego of Apex” 
(Dkt. 59-1 ¶¶ 151, 162, 170, 180, 191, 201); Rapp made sexual advances towards her 
“openly in front of client partners, Apex management, and [her] peers” (id. ¶ 18); Rapp 
“repeatedly expressed his desire for Plaintiff directly to Plaintiff’s peers and client 
partners” (id. ¶¶ 18, 30); between 2015 and spring of 2019, Apex did not have any human 
resources personnel to whom Plaintiff could report her concerns of Rapp’s harassment, 
and so she reported her concerns to Executive VP Hinz, who was her direct supervisor, as 

well as to President Newton, “numerous times via telephone, text and the company’s 
instant messaging platform (Skype), and during meetings” (id. ¶¶ 20-22); both Executive 
VP Hinz and President Newton “knew about and had witnessed Rapp sexually harass 
Plaintiff, and knew, even before her reports, that she was facing harassment” (id. ¶ 23); 
and Executive VP Hinz “told Plaintiff that he would talk to Rapp about her concerns, 

when Plaintiff reported Rapp’s incessant harassment to [him and] told Plaintiff to ‘just 
ignore [Rapp]’” (id. ¶ 24).  Plaintiff also alleged that in response to her complaints, both 
Executive VP Hinz and President Newton “made clear that there was little they could do 
to help her because Rapp was the CEO and sole owner of the Company” (id. ¶ 25); as a 
result of her complaints “to Company leadership, Apex knew or should have known that 

Rapp was sexually harassing Plaintiff” (id. ¶ 26); Apex’s leadership did “nothing” “to 
intervene in the harassing conduct,” so “Rapp’s harassment did not stop” (id. ¶¶ 26-30); 
“Rapp’s harassment was so pervasive that, during industry conferences or required in-
person Sales Team meetings and industry conferences, other male coworkers were put 
on ‘Rapp Duty’ to ensure Plaintiff could get back to her hotel room unmolested” (id. 

¶ 31) (emphasis added); and in “December 2018, on a required Sales Team trip to 
Breckenridge, Colorado, Plaintiff fell asleep on a couch in front of four Apex peers” and 
“Rapp proceeded to pick [her] up off the couch to take her to bed,” after which “Plaintiff 
woke up in Rapp’s arms, became alarmed, screamed, and demanded to be put down” (id. 
¶ 33).                                                                    
    Further, Plaintiff alleged that after she resigned her employment with Apex in 

May 2019, “citing Rapp as the reason for leaving,” Executive VP Hinz  discussed her 
returning to Apex and “Plaintiff made clear that she did not want to return to Apex if she 
had to endure Rapp’s harassment” and that in response, Executive VP Hinz “promised 
Plaintiff that although she would have to work with Rapp directly, she could limit her 
communication to business matters,” that Executive VP Hinz informed Plaintiff that he 

“would reinforce such limitations with Rapp,” and informed her that “after she left Apex, 
the Company hired a human resource professional” who “was making changes to 
improve [Apex’s] problematic work environment” and “provide a safeguard against any 
sexual harassment”; that Plaintiff returned to Apex in November 2019 and by May 2020, 
Rapp resumed his unwanted advances towards her, which she reported to Executive VP 

Hinz and “occasionally” to President Newton, “both of whom repeatedly told her to 
ignore Rapp and limit conversations with him when possible”; and that Rapp’s harassing 
behavior persisted, leading to her blocking him on social media.  (Id. ¶¶ 39-49, 58-64.)  
Based on these allegations, it is reasonable to infer that Rapp was employed by Apex, 
that Apex ratified his sexual harassment, and that Rapp was unfit for his position and 

Apex (including Rapp himself4), President Newton, Executive VP Hinz, and Human 


4    The Proposed FAC alleges that Rapp told Kutz that complaining to him “has the 
same effect” as complaining to Apex’s Human Resources, and “thereby admitted that his 
own knowledge of sexual harassment is imputed on Apex.”  (Dkt. 59-1 ¶¶ 144-45.) 
Resources) deliberately disregarded his unfitness.  See Morton, 

 (stating 
that the Court must take the well-pleaded allegations of a claim as true, and construe the 
pleading, and all reasonable inferences arising therefrom, most favorably to the plaintiff). 

    During the May 31 hearing, Defendants argued: “Throughout the complaint all we 
see is Plaintiff’s allegations that Mr. Rapp was romantically pursuing her, giving her 
gifts, sending her wine, saying he would leave his wife for her.  There is no suggestion of 
violence before that point.”  Defendants also argued “we’re all aware of situations where 
romantic pursuit turns violent, but in this case in the complaint there's no allegation that 

there was any propensity toward violence or maliciousness by Mr. Rapp toward Ms. 
Kutz” and the alleged August 2020 assault should be treated as a “very discrete event.”  
    These arguments are unpersuasive for several reasons.  First, this argument 
ignores much of the allegations in the Proposed FAC, which describes Rapp’s alleged 
conduct as “romantic pursuit and sexual demands,” as well as “sexual advances.”  (Dkt. 

59-1 ¶¶ 18, 153, 154, 156, 181, 182, 184 (emphases added).)               
    Second, the Eighth Circuit has however instructed that a “complaint should be 
read as a whole, not parsed piece by piece.”  Braden, 

 (citing Vila v. Inter-
Am. Inv. Corp., 

, 285 (D.C. Cir. 2009) (“factual allegations should be 
‘viewed in their totality’”); cf. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 

 (2007) (“The inquiry [under the Private Securities Litigation Reform Act] is 
whether all of the facts alleged, taken collectively, give rise to a strong inference of 
scienter, not whether any individual allegation, scrutinized in isolation, meets that 
standard.”).  As such, the Court declines Defendants’ invitation to view the alleged 
August 2020 assault in isolation rather than in the context of all of the allegations in the 
Proposed FAC.  Rather, the Court considers all of the allegations, including that Kutz 
made it clear that she wanted Rapp’s sexual harassment and “pursuit” to stop for years 

(see, e.g., Dkt. 59-1 ¶¶ 16, 32, 64) and Apex leadership made it clear they would do 
nothing to stop Rapp’s sexual harassment of Kutz because he was the owner and CEO of 
the company (id. ¶ 25).  The Court also considers the allegations that, after Kutz returned 
to Apex and before the alleged August 2020 assault, Rapp repeatedly tried to 
manufacture a situation where he could physically be with Kutz, including inviting her on 

trips and trying to join Plaintiff’s birthday trip to Florida with her family—which she 
declined and reported to President Newton and Executive VP Hinz—who did nothing to 
stop Rapp but instead asked Kutz to “ignore Rapp and limit conversations with him when 
possible.”  (Id. ¶¶ 62-63).  Moreover, the Court considers the allegation that “Rapp’s 
harassment was so pervasive that, during industry conferences or required in-person Sales 

Team meetings and industry conferences, other male coworkers were put on ‘Rapp Duty’ 
to ensure Plaintiff could get back to her hotel room unmolested” (id. ¶ 31), suggesting a 
level of concern about Kutz’s safety if she were to encounter Rapp while alone.  Based 
on common sense and judicial experience, and taking all reasonable inferences in favor of 
Kutz, the Court finds that Kutz has plausibly alleged that Rapp’s pursuit of Kutz could 

lead to threats, assault, or physical harm to Kutz if Rapp had the opportunity to engage 
with Kutz in person.                                                      
    During the May 31 hearing, Defendants also tried to distance Apex from Rapp 
with respect to the incident that occurred during the December 2018 sales team trip.  The 
Proposed FAC alleges that: “Plaintiff fell asleep on a couch in front of four Apex peers.  
Rapp proceeded to pick Plaintiff up off the couch to take her to bed.  Plaintiff woke up in 
Rapp’s arms, became alarmed, screamed, and demanded to be put down.”  (Id. ¶ 33.)   

    First, Defendants argued that “we don’t know why she was screaming” and that 
Kutz did not allege that Rapp intended to rape her or commit violence to her or that she 
feared for her safety around him after that.  Given that the Proposed FAC alleges that 
Plaintiff screamed because she was “alarmed,” and that she woke up in the arms of a man 
who had repeatedly sexually harassed her and refused to stop notwithstanding her 

objections, the Court can reasonably infer that Plaintiff screamed because she was afraid 
of Rapp and what he intended to do to her.  Braden, 

 (the Court’s 
“evaluation of a complaint” is “‘a context-specific task that requires [it] to draw on its 
judicial experience and common sense’”).                                  
    Second, according to Defendants, Plaintiff never reported that incident to Apex’s 

leadership.  But in the Proposed FAC, Plaintiff alleged “Defendant Apex directly 
employed Plaintiff, and Defendant Rapp is Apex’s sole owner and CEO and is the alter 
ego of Apex.”  (Dkt. 59-1 ¶¶ 151, 162, 170, 180, 191, 201.)  The Proposed FAC alleges 
that other leadership at Apex said they could do nothing about his conduct because Rapp 
owned the company and was the CEO, and that Rapp said that reporting directly to him 

“has the same effect” as reporting to Human Resources (id. ¶¶ 25, 144-45).  Plaintiff has 
plausibly alleged that Apex’s leadership knew about the December 2018 incident both 
because Rapp is part of that leadership and under an alter ego theory.  See also 
Thorkelson v. Publ’g House of the Evangelical Lutheran Church in Am., Civ. No. 10-
1712 (MJD/JSM), 

, at *12 (D. Minn. April 23, 2012) (finding the 
plaintiff’s alter ego claim was not futile in light of the factual allegations, “[t]aken 
together,” alleged by plaintiff); Johnson v. Evangelical Lutheran Church in Am., Civ. No. 

11-23 (MJD/LIB), 

, at *6 (D. Minn. July 22, 2011) (stating that under 
Minnesota law: “[A] court may pierce the corporate veil to hold a party liable for the acts 
of a corporate entity if the entity is used for a fraudulent purpose or the party is the alter 
ego of the entity.  When using the alter ego theory to pierce the corporate veil, courts 
look to the reality and not form, with how the corporation operated and the individual 

defendant’s relationship to that operation.”) (quoting Equity Tr. Co. Custodian ex rel. 
Eisenmenger IRA v. Cole, 

 (Minn. Ct. App. 2009)).      
    Nor is Defendants’ reliance on J.W. ex rel. B.R.W. persuasive.  In J.W. ex rel. 
B.R.W., the Minnesota Court of Appeals affirmed denial of the appellant’s motion to 
amend her complaint to add punitive damages against respondent, a bus company, where 

appellant alleged that her child had been sexually assaulted by another child while riding 
a school bus that was run by the bus company.  

.  The appellant 
argued amendment was proper because one of the respondent’s bus aides was 
reprimanded twice for falling asleep on the bus instead of being terminated immediately; 
the bus driver and bus aides failed to follow instructions that the abusive child sit alone in 

the front seat of the bus; and one of the bus aides had impaired vision in one eye.  

.  In affirming the district court’s ruling, the Minnesota appellate court held that the 
appellant failed to present “evidence to the district court that [respondent] had any 
specific knowledge about [the abusive child] that would create a high probability of 
injury to” the child that was abused and that although, the evidence presented by 
appellant, “may point towards negligence on” respondent’s part, it did not point to a 
“deliberate disregard” by respondent for the safety of the abused child.  

  First, as 

stated above, the Court applies Rule 15, not the evidentiary requirements of 

, in analyzing the Motion to Amend.  Riley, 

.      
    Second, and in any event, none of the actions alleged by the appellant in J.W. ex. 
rel. B.R.W. for purposes of punitive damages related to the bus driver, aides, or 
respondent’s specific knowledge of the abusive child’s propensity toward sexual 

harassment or abuse.  In contrast, as explained in detail above, Plaintiff has plausibly 
alleged Apex’s knowledge of Rapp’s sexual demands and advances, including the need to 
have male coworkers on “Rapp duty” to protect her when in the same location as Rapp, 
and Apex’s failure to do anything about it because he was the CEO and owner of Apex.  
Plaintiff has also plausibly alleged that Rapp is the alter ego of Apex and his knowledge 

can be imputed to Apex.  Moreover, the Proposed FAC alleges that Executive VP Hinz 
knew that Kutz’s return to Apex was contingent on Apex’s “safeguard against any sexual 
harassment” in the form of Becky Hochhausen, the Human Resources professional hired 
by Apex.  (Dkt. 59-1 ¶¶ 42-49.)  The Proposed FAC alleges Rapp’s continued sexual 
harassment of Kutz after she returned, including his attempts to manufacture a situation 

where they were in the same location, her rejection of those attempts, her reporting of 
those attempts to President Newton and Executive VP Hinz, and that their response was 
to repeatedly tell “her to ignore Rapp and limit conversations with him when possible.”  
(Id. ¶¶ 60-63.)  Even if they did not know about Rapp’s unsolicited physical contact with 
Kutz during the December 2018 sales team trip, based on these allegations, Apex 
leadership had reason to know that Rapp had repeatedly sexually harassed Plaintiff and 
continued to do so—unchecked by Apex leadership because he owned and was the CEO 

of Apex—and that Rapp’s conduct could well escalate to unwanted physical contact or 
assault if Plaintiff refused his advances in person.  Simply put, Plaintiff has alleged 
enough facts in the Proposed FAC to survive a Rule 12(b)(6) analysis as to a punitive 
damages claims against Apex based on the Minnesota assault claim.         
    Lastly, as to Defendants’ contention that Apex took prompt and remedial actions 

after Plaintiff reported the August 2020 assault to its human resources personnel, those 
actions are not something the Court can consider at this stage of the proceedings.  
Mathiason, 

 at *4 (“When conducting a Rule 12(b)(6) analysis on a 
motion to amend, a court generally is restricted from examining matters outside of the 
four corners of the proposed amended complaint.”).  Moreover, Plaintiff alleged in the 

Proposed FAC that after she reported the August 2020 assault to Executive VP Hinz, he 
told her that “she could meet with Rapp to hear his apology, or she could leave Apex” 
and that after human resources personnel at Apex completed their investigation of the 
August 2020 assault, she was informed that “Rapp would not agree with her request to 
avoid ‘one-on-one-in-person situations(s)’” and “nothing more could be done because her 

harasser, Rapp, was the sole owner and CEO of Apex, and she could not escalate the 
complaint to anyone.”  (Dkt. 59-1 ¶¶ 93, 98-103.)  Based on these allegations, a court 
could reasonably infer that Apex’s actions were not “prompt and remedial.” 
    In sum, based on the allegations in the Proposed FAC, the Court finds that 
Plaintiff has sufficiently pled a claim for punitive damages for her assault claim under 
Minnesota law as to Apex.5                                                

    3.   Rapp                                                            
         a.   The Parties’ Arguments                                     
    Regarding punitive damages against Rapp for Plaintiff’s assault claim under 
Minnesota law, Defendants argue that Plaintiff failed to “plead a single fact to establish 
by clear and convincing evidence that, on the night of the assault, Rapp knew of or 

intentionally disregarded the high probability of injury” to Plaintiff’s “rights or safety, 
and proceeded to act with intentional disregard or indifference for that high probability of 
injury.”  (Dkt. 64 at 18.)  Defendants contend that Plaintiff’s basis for claiming punitive 
damages against Rapp is no more than a formulaic recitation of the punitive damages 
standard, and that she failed to allege for example that Rapp repeatedly assaulted her, 

“that these events were planned, or that there was a level of culpability warranting a 
claim for punitive damages.”  (Id. at 18-19.)  According to Defendants, there “certainly is 
no basis to conclude that Rapp had any intent to cause bodily harm to Kutz in light of her 
allegations that he was in love with her” and what the allegations show is that Plaintiff 
“agreed to meet one-on-one with Rapp in Illinois, and [] the two of them got into an 

argument late at night after hours of drinking.”  (Id. at 19.)            


5    In granting Plaintiff’s Motion to Amend, the Court expresses no opinion on 
whether Plaintiff will be able to ultimately prove alter ego or vicarious liability, or the 
“deliberate disregard” standard required for an award of punitive damages. 
    Plaintiff responds that an amendment is not futile as the Proposed FAC plausibly 
alleges that she is entitled to punitive damages on her assault claim against Rapp under 
Minnesota law and that Defendants “skew” the allegations and attempt to rewrite them in 

a “self-serving” manner.  (Dkt. 67 at 17-18.)  Plaintiff contends that Defendants’ 
argument is inconsistent with Judge Brasel’s order denying Defendants’ partial motion to 
dismiss.  (Id. at 18.)                                                    
         b.   Whether Plaintiff Sufficiently Alleged a Claim for Punitive 
              Damages Against Rapp Under Minnesota Law                   

    The Court finds that Plaintiff has sufficiently pled a claim for punitive damages as 
to her assault claim under Minnesota law against Rapp.  First, there is no doubt that Judge 
Brasel found Plaintiff pled an underlying claim for assault in the operative Complaint.  
(See Dkt. 37 at 13-14.)  In the order denying Defendants’ partial motion to dismiss, as to 
Plaintiff’s assault claims, Judge Brasel stated:                          
    The Court finds that Kutz has adequately pled assault. Relying primarily on 
    Dahlin,6 Defendants argue that the law requires a verbal threat of physical 
    violation for a claim for assault to prevail. Minnesota law does not define 
    assault so narrowly. Although “mere words or threats alone do not constitute 
    assault,” Dahlin does not support Defendants’ argument. 288 N.W. at 852. 
    Minnesota law requires only a “display of force . . . such as to cause plaintiff 
    reasonable apprehension of immediate bodily harm.” Id.               

    Kutz’s complaint meets this standard. It alleges that Rapp cornered Kutz into 
    an alley at night, screamed at her inches from her face, and restricted her 
    ability to flee. These facts sufficiently plead the requisite display of force 
    required to establish a threat of bodily harm and Rapp’s present ability to 
    carry out the threat. Defendants’ motion to dismiss the assault claims is 
    denied.                                                              


6    Dahlin v. Fraser, 

 (Minn. 1939).                    
(Id. (internal citations omitted).)  The Proposed FAC does not change the allegations as to 
Plaintiff’s underlying assault claim.  As such, the Court finds Defendants’ assertions that 
there “certainly is no basis to conclude that Rapp had any intent to cause bodily harm to 

[Plaintiff] in light of her allegations that he was in love with her” unavailing.7 
    Moreover, the Proposed FAC goes well beyond alleging that Rapp was “in love 
with” Plaintiff.  It alleges ongoing sexual harassment of Plaintiff, including in the form of 
Rapp’s unwanted pursuit over several years and one previous instance of unwanted 
physical contact by Rapp, which resulted in Plaintiff’s screaming in alarm.  The Court is 

not persuaded by Defendants’ arguments that Rapp had no reason to believe Plaintiff did 
not want to be alone with him.  (Dkt. 64 at 18.)  The Proposed FAC specifically alleged 
that Rapp booked a hotel room “a block from where Plaintiff lived” during his August 
2020 trip to Chicago, Illinois; that on the day of the August 2020 assault, Plaintiff 
“reluctantly agreed” to have drinks with Rapp before a scheduled client dinner “only if” 

her sister could come along; that after the client dinner on the day of the August 2020 
assault, “Rapp insisted he share an Uber with Plaintiff[,]” “Plaintiff suggested they leave 
separately, but Rapp was adamant the two share a ride,” after which “Plaintiff relented, 
and she ordered the Uber to ensure that Rapp’s hotel be the first stop so that Rapp would 


7    Although not directly on point, “the Minnesota Supreme Court has found, for the 
purposes of an insurance policy’s intentional act exclusion, that ‘because harm is 
substantially certain to result, intent to harm is inferred as a matter of law in cases of 
nonconsensual sexual contact such as rape or sexual assault where mental illness is not at 
issue.’”  Escamilla v. SMS Holdings Corp., Civ. No. 09-2120 (JMR/JSM), 

, at *11 n.8 (D. Minn. April 5, 2010) (quoting B.M.B. v. State Fire and Cas. 
Co., 

 (Minn. 2003)).                                   
not have an opportunity to come to her home”; that the Uber driver drove past Plaintiff’s 
home on the way to Rapp’s hotel, leading to Rapp insisting that the “driver pull over, and 
[he] informed Plaintiff that he would just get out with her”; and that Plaintiff “told Rapp 

he could not come to her home.”  (Dkt. 59-1 ¶¶ 65-77.)  Plaintiff also alleged in the 
Proposed FAC that Rapp “demanded” that “the two get out of the [Uber] together and 
pleaded with Plaintiff to let him into her home” so he could have a glass of wine with her; 
that although she refused his advances, Rapp got out of the Uber and went to the front of 
her home; and that she was “shocked and worried for her safety, remained in the [Uber] 

and asked the driver to go around the corner” so that she could drop off “by the alley 
behind her home” in order to avoid Rapp and “sneak into her home through the back door 
without Rapp realizing she had done so.”  (Id. ¶¶ 78-80.)  Further, Plaintiff alleged that 
irrespective of her attempts to avoid Rapp on the night of the August 2020 assault, that 
“Rapp had gone around her home to look for [her] and found her in the alley” and he 

“became furious. He screamed at [her]. She tried to get away from [him], but he closed in 
on her, backing her up into a wall.”  (Id. ¶¶ 81-86.)  Based on these allegations, and 
considering the allegations that Plaintiff refused Rapp’s request to go on trips with him, 
blocked Rapp on social media after he failed to adhere to her “numerous requests” that he 
not contact her on social media sites, repeatedly declined of his advances prior to the 

August 2020 assault, and screamed and became alarmed when he picked her up from the 
couch when she was sleeping, it is reasonable to infer that Rapp knew and intentionally 
or recklessly disregarded the fact that Plaintiff did not want to be alone with him.   
    As to Defendants’ other arguments, they cite no authority that advance planning of 
an assault, or repeated assaults, are necessary to show Rapp’s deliberate disregard or 
reckless indifference to Kutz’s right to be free from assault.  For all of these reasons, the 

Court concludes that the Proposed FAC plausibly alleges facts from which the inference 
can be drawn that Rapp knew of or intentionally disregarded facts that Plaintiff did not 
want to be alone with him or touched by him, and that he deliberately acted in conscious 
or intentional disregard or with indifference to the high probability of injury to Kutz’s 
rights and safety.                                                        

C.   Claim 8—Illinois Assault Claim Against Defendants Rapp and Apex      
    In the operative Complaint, Kutz sought leave to amend the Complaint to seek 
punitive damages based on her Illinois assault claim.  (See Dkt. 1 ¶¶ 204-09, C.)  Plaintiff 
now seeks to add a claim for punitive damages as to the Illinois assault claim, alleging: 
“Defendants willfully committed the above-alleged facts with malice or deliberate 

disregard and indifference for the rights and safety of Plaintiff.  As a result, Plaintiff is 
entitled to punitive damages.”  (Dkt. 59-1 ¶ 224.)                        
    The parties disagree as to the applicable Illinois law.  For her part, Plaintiff argued 
that “the analysis under Illinois law for punitive damages is the same as that under 
Minnesota law” and noted that the Illinois statute relating to amending to add punitive 

damages, Ill. Rev. Stat. ch. 110, ¶ 2-640.1 (1991), applies to a “far narrower subset of 
claims involving negligence or product liability.”  (Dkt. 58 at 5 n.4.)  Plaintiff argues that, 
in any event, federal procedural law governs the Court’s analysis as to the Illinois 
common law assault claim.  (Id.)  Defendants argue that the Illinois statute cited to by 
Plaintiff is irrelevant, that the standard for awarding punitive damages in Illinois is 
different from that for Minnesota, and that under Illinois law, punitive damages are 
awarded “where a tort was committed with ‘fraud, actual malice, deliberate violence or 

oppression, or when the defendant acts willfully, or with such gross negligence as to 
indicate a wanton disregard for the rights of others.”  (Dkt. 64 at 19-20.)  Defendants 
criticize Kutz for not specifying if she seeks punitive damages for actual malice, willful 
and wanton disregard, or gross negligence indicating wanton disregard.  (Id. at 20.) 
    In her Reply, Plaintiff contends that Defendants make no conflict of law 

arguments or arguments as to how the Court’s analysis may vary and that if Section 2-
640.1 is inapplicable as argued by Defendants, then there is no authority requiring her to 
move to amend her complaint to assert a claim for punitive damages under Illinois law as 
she would be entitled to such damages without amendment.  (Dkt. 67 at 19-20.)  Plaintiff 
contends that she is not required to choose a basis under which to plead punitive 

damages.  (Id. at 20.)  At the May 31 hearing, Defendants argued that Section 2-640.1 is 
inapplicable and because it is the only ground on which Plaintiff seeks amendment, the 
Motion to Amend is futile as to her Illinois punitive damages claim.      
    Section 2-604.1 provides:                                            
    In all actions on account of bodily injury or physical damage to property, 
    based on negligence, or product liability based on any theory or doctrine, 
    where punitive damages are permitted no complaint shall be filed containing 
    a prayer for relief seeking punitive damages. However, a plaintiff may, 
    pursuant to a pretrial motion and after a hearing before the court, amend the 
    complaint to include a prayer for relief seeking punitive damages. The court 
    shall allow the motion to amend the complaint if the plaintiff establishes at 
    such hearing a reasonable likelihood of proving facts at trial sufficient to 
    support an award of punitive damages.                                
735 ILCS 5/2-604.1 (emphasis added).                                      
    Section 2-604.1 does not apply here as that “provision applies only to a negligence 
or product-liability action, and not to any other type of action, such as an intentional tort.”  
Fiala v. Bickford Sr. Living Grp., LLC, 

, 1248 (Ill. App. Ct. 2015) 
(finding “section 2-604.1 is not applicable under the facts alleged in this case and that the 

trial court erred in striking plaintiff’s request for punitive damages” where the “claims do 
not sound in negligence”).  “The Illinois Supreme Court has specifically and 
unequivocally held that assault” is a “long-recognized tort action.”  Temores v. Cowen, 

 (N.D. Ill. 2003) (citations omitted).  Moreover, Section 2-
604.1 is procedural law.  See Worthem v. Gillete Co., 

 (N.D. Ill. 

1991) (concluding that Section 2-604.1 is procedural and declining to apply it); see also 
Probasco v. Ford Motor Co., 

 (C.D. Ill. 2002) (stating that 
because Section 2-604.1 “is a state procedural requirement it does not govern federal 
courts deciding state law claims.”) (collecting cases).                   
    Although Plaintiff could have pleaded a claim for punitive damages as to her 

assault claim under Illinois law in the operative Complaint, she did not.  Rule 15 however 
permits the Court to consider Plaintiff’s request to amend her Complaint to assert a 
punitive damages claim.  The Court therefore considers below whether an amendment is 
justified as to this claim against each Defendant.                        
    1.   Apex                                                            
         a.   The Parties’ Arguments                                     
    As to Plaintiff’s punitive damages claim against Apex, Defendants argue that 

Plaintiff failed to allege facts in the Proposed FAC giving rise to her claim for such 
damages and that it is not clear what basis under Illinois law on which Plaintiff seeks 
punitive damages against Apex, that is, “whether it be actual malice, willful and wanton 
disregard for Kutz’s rights, or gross negligence indicating wanton disregard of” her 
rights.  (Dkt. 64 at 20-21 (footnote omitted).)  Defendants contend that instead, Plaintiff 

parrots the Minnesota punitive damages standard, failed to satisfy her burden under 
Illinois punitive damages law as well as under Illinois pleading requirements as she stated 
conclusory assertions that punitive damages are warranted, and did not plead facts to 
“establish that Apex acted with actual malice, deliberate violence, or in a grossly 
negligent manner so as to indicate wanton disregard for” her safety.  (Id. at 21.) 

    Plaintiff responds that there is no requirement for her to choose a basis under 
which to plead punitive damages and that Defendants cited no authority for the 
proposition that the basis for pleading punitive damages is mutually exclusive.  (Dkt. 67 
at 20.)  According to Plaintiff, the Proposed FAC plausibly alleges that she is entitled to 
punitive damages on her claims of assault against Apex under Illinois law.  (Id.) 

         b.   Whether Plaintiff Sufficiently Alleged a Claim for Punitive 
              Damages Against Apex Under Illinois Law                    

    Because Plaintiff pleads her assault claim under Illinois common law, “the 
availability of punitive damages is governed by Illinois law.”  See Alford v. Aaron’s 
Rents, Inc., No. 08-cv-0683-MJR, 

, at *1 (S. D. Ill. June 3, 2011).  In 
Illinois, punitive damages are “awarded when torts are committed with fraud, actual 
malice, deliberate violence or oppression, or when the defendant acts willfully, or with 

such gross negligence as to indicate a wanton disregard of the rights of others.”  Loitz v. 
Remington Arms Co., Inc., 

 (Ill. 1990) (quoting Kelsay v. Motorola, 
Inc., 

 (Ill. 1978) and citing Restatement (second) of Torts § 908(2) (1979) 
(“Punitive damages may be awarded for conduct that is outrageous, because of the 
defendant’s evil motive or his reckless indifference to the rights of others.”)).  “Illinois 

courts will impose punitive damages against a corporate defendant for the acts of an 
employee where (1) it authorized, ratified, or approved the act, (2) the employee was 
unfit and the corporation recklessly hired him, or (3) the employee was a manager acting 
within the scope of employment.”  Torretto v. I.B. Diffusion, No. 92 C 2758, 

, at *4 (N.D. Ill. Dec. 26, 1995).                                  

    The Court finds that Plaintiff has sufficiently pled a claim for punitive damages 
against Apex under Illinois law.  Plaintiff specifically alleges in the Proposed FAC that 
“Defendants willfully committed the above-alleged facts with malice or deliberate 
disregard and indifference for the rights and safety of Plaintiff” and incorporated all 
factual allegations by reference in her Illinois assault claim.  (Dkt. 59-1 ¶¶ 218, 224 

(emphases added).)  As stated above, in Illinois, punitive damages are “awarded when 
torts are committed with fraud, actual malice, deliberate violence or oppression, or when 
the defendant acts willfully, or with such gross negligence as to indicate a wanton 
disregard of the rights of others.”  Loitz, 

.           
    Defendants state that Plaintiff used the term “malice,” and appear to argue that a 
distinction exists between the terms “malice” and “actual malice.”  (Dkt. 65 at 20 n.12.)  
But it is not clear at this juncture why a distinction of those terms matter, if at all, and the 

Carson v. Allied News case cited to by Defendants discusses at the summary judgment 
stage whether “‘actual malice’ was shown with convincing clarity” in a libel suit.  

 (7th Cir. 1976) (stating that “actual malice” is “quite different from the 
common law standard of ‘malice’ generally required under the state tort law to support an 
award of punitive damages.  Whereas the common law standard focuses on the 

defendant’s attitude toward plaintiff, ‘actual malice’ concentrates on the defendant’s 
attitude the truth or falsity of the material published.”).  And as Defendants have not cited 
any law supporting their argument that Plaintiff must identify in the Proposed FAC 
whether she alleges Rapp acted with actual malice, willful and wanton disregard for 
Kutz’s rights, or gross negligence indicating wanton disregard of her rights, the Court 

declines to impose this requirement at this stage of the proceedings.     
    Moreover, the Proposed FAC is far from conclusory as to the Illinois assault 
claim, as it incorporates the factual allegations by reference, including that Rapp is the 
alter ego of Apex and so Rapp’s knowledge was imputed to Apex, that Apex’s leadership 
was aware of and witnessed Rapp sexually harass Plaintiff, and that Plaintiff complained 

of Rapp’s unwanted advances to Apex’s leadership on multiple occasions but to no avail.  
See Torretto, 

, at *1-4 (finding the plaintiff alleged sufficient facts to 
assert a claim for punitive damages against defendant (plaintiff’s employer) for the 
intentional torts of assault and battery committed by the president of her employer where 
plaintiff alleged that the president was an alter ego of the employer and that the president 
deliberately and maliciously sexually harassed her “with the complete knowledge” of the 
employer where the plaintiff reported the president’s offensive conduct to her employer’s 

management who all “did nothing to prevent such conduct” and “thereby encouraged and 
authorized such conduct”; noting plaintiff’s allegations under an alter ego theory against 
her employer was cognizable under Illinois law; and finding that the employer authorized 
the president’s acts); see also Cline v. Gen. Elec. Cap. Auto Lease, Inc., 

 (N.D. Ill. 1991) (finding an employer liable for punitive damages where it 

was alleged that the collections’ manager of the employer committed battery against 
plaintiff which was “willful, malicious and ‘outrageous’” because the employer was 
“aware of [the collections’ manager’s] behavior and apparently tolerated it because [the 
collections’ manager] was ‘at least worth $500,000 each year to” the employer and 
stating that courts “award punitive damages in order to punish a defendant for willful or 

malicious conduct, as well as to deter others from similar behavior” where an Illinois 
plaintiff shows that “the defendant’s behavior was exceptionally ‘antisocial’ or 
‘outrageous’”); Steel Warehouse of Wis., Inc. v. Caterpillar, Inc., No. 90 C 20053, 

, at *2 (N.D. Ill. Nov. 13, 1990) (stating that a complaint was not subject to 
dismissal even though it did not plead the elements that must be proved to assert an alter 

ego claim under Illinois law).                                            
    Taking the allegations in the Proposed FAC as true and construing it and all 
reasonable inferences therefrom favorably to Plaintiff, the Court finds that Plaintiff has 
sufficiently pled a claim for punitive damages against Apex for her assault claim under 
Illinois law.                                                             
    2.   Rapp                                                            

         a.   The Parties’ Arguments                                     
    As to Rapp, Defendants argue that Plaintiff failed to establish the appropriate legal 
standard on which she intends to seek punitive damages against Rapp under Illinois law 
and that “there are absolutely no facts to suggest that Rapp acted with actual malice, 
deliberate violence, willfully and wantonly disregarded her rights, or did so in a grossly 

negligent manner.”  (Dkt. 64 at 21-22.)  Plaintiff responds that she has adequately 
established entitlement to punitive damages against Rapp under Illinois law and that her 
allegations “demonstrate that Rapp acted willfully, with total disregard for Kutz’s rights 
and safety, particularly where Rapp intentionally threatened bodily harm with an ability 
to carry out that threat.”  (Dkt. 67 at 20-21.)                           

         b.   Whether Plaintiff Sufficiently Alleged a Claim for Punitive 
              Damages Against Rapp Under Illinois Law                    

    Again, Plaintiff alleged in the Proposed FAC that “Defendants willfully 
committed the above-alleged facts with malice or deliberate disregard and indifference 
for the rights and safety of Plaintiff.”  (Dkt. 59-1 ¶ 224.)  The Proposed FAC also alleges 
that prior to the August 2020 assault, Plaintiff objected to Rapp’s advances, leadership at 
Apex witnessed Rapp sexually harass Plaintiff, Plaintiff reported Rapp’s unwanted 
advances to leadership at Apex, Plaintiff declined Rapp’s offers to go on trips with him, 
Plaintiff blocked Rapp on social media, and on the day of the August 2020 assault, 
Plaintiff suggested that they take separate Ubers, declined his request to have a glass of 
wine at Plaintiff’s home, had the Uber driver drop her off at the alley behind her home in 
order to avoid Rapp, and Rapp nonetheless approached her at the alley, “became furious,” 

“screamed at Plaintiff. She tried to get away from Rapp, but he closed in on her, backing 
her up into a wall[,]” made insulting commentary to her, until her neighbor “intervened” 
and “physically separate[d] Rapp from Plaintiff to get Rapp to stop.”  These allegations 
are sufficient to allege a claim of punitive damages under Illinois law against Rapp.  See 
Alford, 

, at *1 (finding as to the plaintiff’s assault and battery claims 

that she sufficiently alleged “willful verbal and physical sexual conduct” by the 
defendant, warranting submission of the issue of punitive damages to the jury) (citing 
Knierim v. Izzo, 

 (Ill. 1961) (“The ‘outrageous nature’ of the 
defendant’s alleged conduct was sufficient to allow the jury to make an award of punitive 
damages”).                                                                

                             * * *                                       
    Accordingly, for all of these reasons, the Court finds that Plaintiff has sufficiently 
stated claims for punitive damages for her assault claims against Defendants under 
Minnesota and Illinois law.8  The Court also grants the Motion to Amend to the extent 


8    At the May 31 hearing, Defendants generally argued that amendment of Plaintiff’s 
Minnesota and Illinois assault claims is unjustified under Rule 15 because, unlike the 
MRHA and Title VII claims, there are no caps on punitive damages as to the common 
law assault claims, rendering Plaintiff’s request for damages essentially limitless if the 
Court grants the Motion to Amend.  Defendants cite no authority for the proposition that 
an “unlimited” request for punitive damages renders amendment unjustified, and the 
Court rejects this argument.                                              
Plaintiff seeks to add factual allegations (see Dkt. 59-1 ¶¶ 19, 26, 59, 104, 109, 124, 130, 
140, 145, C) in the Proposed FAC.                                         
                         IV.  ORDER                                      

    For the reasons stated above, and based upon all the files, records, and proceedings 
herein, IT IS ORDERED THAT: Plaintiff’s Motion for Leave to Amend the Complaint 
to Add Punitive Damages (Dkt. 56) is GRANTED in part and DENIED in part as 
moot as set forth in this Order.                                          


DATED: August 15, 2023                  s/Elizabeth Cowan Wright          
                                       ELIZABETH COWAN WRIGHT            
                                       United States Magistrate Judge