FACTS Appellant began her employment with Norman County in 1977. Appellant worked as a secretary for one of the district court judges. A second judge, replacing the first judge, decided he did not need a secretary. Appellant received a letter stating her employment with the county was terminated effective December 31, 1989. The county told appellant there were no other secretarial positions in the courthouse. The second judge hired a reporter instead of having a secretary. The county employment policy allows an employee who is about to be laid off to displace, or "bump," a less senior employee from a different position. The senior employee must be qualified to perform all the duties of the less senior person being bumped. Appellant was senior to a number of other county employees. Appellant requested to be allowed to "bump" an employee less senior so she could avoid the layoff. The county board of commissioners considered the request and told appellant there were no positions she was qualified to fill. The Board sent a letter to appellant: After review of the seniority list and after careful review of your job qualifications and the job descriptions of the various *218 positions which you would be entitled to "bump into," it is the decision of this Board that at this time there are no positions which you are qualified to fill. The county employment policy contains a grievance procedure that allows for mediation and arbitration of a dispute concerning the "interpretation or application of the specific terms and conditions of" the policy. A grievance was never filed under the terms of the policy.[1] Appellant commenced a declaratory judgment action pursuant to Minn. Stat. Ch. 555 (1990) against the county. Counts one and two allege that the county breached the employment contract created by the county employment policy by terminating appellant's employment and refusing to allow her to bump into a position held by a less senior employee. Count three alleges defamation. Count four seeks punitive damages. Count five seeks injunctive relief requiring the county to correct any damage to her reputation by the alleged defamation. On April 8, 1991, the trial court granted the county's motion to strike count four (punitive damages) as violative of Minn. Stat. § 549.191 (1990). On October 9, 1991, the trial court granted the county's motion for summary judgment on the defamation claim but denied summary judgment for the county on the employment contract claims. The trial court determined there was a valid contract between appellant and the county. The trial court refused to dismiss appellant's wrongful discharge claim based on appellant's failure to exhaust administrative remedies. The trial court noted that although appellant failed to follow the technical requirements of the grievance procedure contained in the employment policy, it would be unfair to dismiss her claim on these grounds because the county failed to inform appellant of her rights under the policy. The trial court also concluded there was a disputed material fact as to whether appellant is qualified to perform the work of less senior county employees. On September 24, 1992, the county moved for dismissal for lack of subject matter jurisdiction concerning the remaining employment contract issues. The trial court concluded that the action of the Board could only be reviewed on writ of certiorari, and therefore dismissed the matter for lack of subject matter jurisdiction.

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C. Punitive Damages Instruction According to defendants, the court erred in including a punitive damages instruction as to the state-law wrongful death claim, because plaintiff never moved to amend the complaint to include punitive damages as is required under Minnesota law. See Minn. Stat. § 549.191 (“Upon commencement of a civil action, the complaint must not seek punitive damages. After filing the suit a party may make a motion to amend the pleadings to claim punitive damages.”). But plaintiff was not required to move to amend the complaint to include punitive damages in this case. This court has held that Rule 8(a) of the Federal Rules of Civil Procedure, which allows a party to request punitive damages in its complaint,

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Minn. Stat. § 549.191 when amending her complaint to add a claim for punitive damages; and (2) Plaintiff’s allegations do not make out a prima facie case that Defendants acted with deliberate disregard for the rights or safety of others, including Plaintiff. (Defs.’ Mem. at 4-11; Reply at 2-6.) a. Applicable Procedural Law Defendants argue that Plaintiff failed to seek leave of court to add a claim for

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. In Plaintiff's Supplemental Memorandum, he requests that the Court allow him to file an amended complaint as well as add a claim for punitive damage and to amend the Pretrial Scheduling Order. (Pl.'s Suppl. Mem. at 1 [Doc. No. 57].) The Courts notes that Plaintiff's requests in his supplemental brief are procedural!/ improper under this Court's Local Rules. See D. Minn. L.R. 7.1 (requiring parties requesting relief to file motions with the Court and providing that nondispositive motions "must be heard by the magistrate judge”). By allowing Plaintiff to file an amended complaint, the Court is not ruling on Plaintiff's procedural!/ improper requests contained in his memorandum. If Plaintiff wishes to file a motion to amend to include a claim for punitive damages or alter the pretrial scheduling order, he must follow this District's Local Rules. Furthermore, in diversity actions such as this, the pleading of punitive damage claims must generally conform to the requirements of Minn. Stat. § 549.191. Ulrich v. City of Crosby, 848 F.Supp. 861, 866 (D.Minn.1994); see also Bunker v. Meshbesher, 147 F.3d 691, 696 (8th Cir.1998). Section 549.191 requires the court to perform a gatekeeping function to screen out "unmeritorious claims for punitive damages.” Swanlund v. Shimano Indus. Corp., 459 N.W.2d 151, 154 (Minn.Ct.App.1990). Specifically, the gatekeeping statute provides that the plaintiff may not seek punitive damages at the outset of a civil action. Id. Instead, the .plaintiff must make a motion to amend the pleadings to claim punitive damages and support that motion with affidavits showing the factual basis for the claim. Id. The Court must give the plaintiff leave to add a claim for punitive damages if it finds that the plaintiff provides prima facie evidence in support of the motion. Id.

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Plaintiff acknowledged in his deposition that he should not have pleaded punitive damages in his Complaint. (See Myrle Tr. 166:10-18.) Pleading punitive damages in an initial complaint is barred by Minn. Stat. § 549.191. Therefore, this Court recommends that Defendant’s Motion for Summary Judgment be granted with respect to the issue of punitive damages.

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Under the strictures of Section 549.191, “the Court reviews the evidence in support of a Motion to Amend as the Court would review a Motion for a Directed Verdict — now denominated in the Federal Rules of Civil Procedure as a Motion for the Entry of Judgment as a matter of law.” Id.; see also, Rule 50(a), Federal Rules of Civil Procedure; Swanlund v. Shimano Indus, Corp., Ltd., supra (“Minn. Stat. § 549.191 essentially requires the trial court to direct a portion of the verdict against the plaintiff if the evidence of willful indifference is insufficient.”). “Thus, in reaching such a determination, the Court makes no credibility rulings, nor does the Court consider any challenge, by cross-examination or otherwise, to the Plaintiffs proof.” Id.; Swanlund v. Shimano Indus. Corp., Ltd., supra.

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Ryther asks the court to award treble damages, punitive damages and damages for mental anguish. The MHRA permits an award of compensatory damages “in an amount up to three times the actual damages sustained.” Minn. Stat. § 363.071, subd. 2. It also allows damages for mental anguish or suffering and up to $8,500 in punitive damages. Id.; Minn. Stat. § 549.191. Such damage awards are not required, however, and the court has discretion to determine whether additional damages should be awarded. LaMott v. Apple Valley Health care Ctr., 465 N.W.2d 585, 591 (Minn.Ct.App.1991).

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Defendants seek to strike plaintiffs claim for punitive damages based on Minnesota Statute § 549.191 which prohibits pleading punitive damages without leave of court. Plaintiff claims that the application of Minn. Stat. § 549.191 in federal courts is limited to diversity cases. Because this action is grounded in federal question jurisdiction, plaintiff contends that Minn. Stat. § 549.191 does not necessarily apply.

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