Krishnan Ghosh v. Abbott Laboratories, Inc.; Cardiovascular Systems, Inc.

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 24-3317
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Krishnan Ghosh
lllllllllllllllllllllPlaintiff - Appellant
v.
Abbott Laboratories, Inc.; Cardiovascular Systems, Inc.
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the District of Minnesota
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Submitted: June 12, 2025
Filed: March 26, 2026
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Before LOKEN, ERICKSON, and KOBES, Circuit Judges.
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LOKEN, Circuit Judge.
Krishnan Ghosh appeals the district court’s1 Order granting defendants’
motion to dismiss, denying Ghosh’s motion to amend his First Amended Complaint
as futile, and dismissing his wrongful employment termination claims against Abbott
1The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

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Laboratories, Inc. (ALI) and Cardiovascular Systems, Inc. (CSI), ending a lawsuit
with a long, tortured procedural history. Ghosh v. Abbott Lab’ys, Inc., No. 24-1144,
2024 WL 4534724 (D. Minn. Oct. 21, 2024) (Ghosh). Ghosh presents two issues on
appeal -- the court erred in granting the motion to dismiss and in denying his motion
to amend. For the following reasons, we affirm.
I. Background
In early February 2023 Ghosh, a resident of Hawaii, entered into a National
Employment Agreement with CSI to become its District Sales Manager for Hawaii
(the “Agreement”).2 CSI is a medical device company focused on treating complex
artery diseases headquartered in St. Paul, Minnesota. Ghosh agreed that he would
participate in CSI’s mandatory certification and training process before he would be
allowed to fully perform clinical and commercial services in Hawaii. He began the
process in February, and completed certification in late May. During this period, he
visited Minnesota twice, spending a total of 12 days in the State: February 26th to
March 3rd, and April 23rd to 28th. In Minnesota, he visited hospitals, interacted with
physicians, and performed case observations. In Hawaii, he participated in remote
meetings with CSI’s Minnesota-based staff. Meanwhile, in April 2023, ALI acquired
CSI and CSI became a wholly-owned subsidiary of ALI, which is a wholly-owned
subsidiary of Abbott Laboratories.
2The record on appeal does not contain a copy of the Agreement, so we must
rely for its terms on the parties’ and the district court’s references to it in pleadings
and briefs. We would be justified in dismissing the appeal for this shameful
omission. See Fed. R. App. P. 30(a)(1)(D) (“The appellant must prepare and file an
appendix to the briefs containing . . . (D) other parts of the record to which the parties
wish to direct the court’s attention.”) It is undisputed the Agreement provides that
the “Agreement and the rights of the parties will be governed by and construed and
enforced in accordance with the laws of the State of Minnesota.”
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Shortly after Ghosh completed this training, CSI terminated his employment.
Ghosh alleges CSI fired him because, in March, April, and early May, he uncovered
and reported illegal conduct by CSI in violation of the federal Anti-Kickback Statute.
See 42 U.S.C. § 1320a-7b(b). Some months later, CSI disclosed that it terminated
Ghosh for “conduct-related reasons, including that he aided a competitor over his
own employer” and “engaged in demeaning and disrespectful behavior.”
In January 2024, Ghosh filed a complaint against ALI in Minnesota state court
alleging a violation of the Minnesota Whistleblower Act (MWA). See Minn. Stat.
§ 181.932. ALI removed and moved to dismiss. Ghosh then made an untimely
attempt to amend, which the court denied. Ghosh voluntarily dismissed the case and,
two days later, Ghosh filed a “nearly identical” complaint against ALI without
disclosing the prior suit.3 ALI again moved to dismiss. Ghosh filed a First Amended
Complaint as a matter of right, adding CSI, his employer, as a codefendant and a new
claim under the Hawaii Whistleblowers’ Protection Act (HWPA). Haw. Rev. Stat.
§ 378-62. In May 2024, the codefendants again moved to dismiss. Ghosh moved to
amend his amended complaint to add Abbott Laboratories, ALI’s parent company, as
a defendant. The proposed amended complaint did not add new claims but added fact
allegations about CSI sales representatives’ contacts with Minnesota, including:
-- Information about the corporate relationships among the defendants,
including assertions that contradicted those previously alleged;
-- that during his training in Minnesota, Ghosh provided “valuable expertise”
to the trainers; and
3Ghosh filed a letter with the court explaining that he chose to refile to have
“the case heard on the merits as soon as possible.” The district court noted refiling
is not more efficient than moving to amend the first complaint. “The more reasonable
interpretation is that he did not want to proceed before the district judge and the
magistrate judge assigned to the first case.” Ghosh, 2024 WL 4534724, at *3, *4 n.5.
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-- that CSI sales representatives typically return to Minnesota for additional
training annually, and Ghosh expected to do so.
II. The Order Being Appealed
The district court granted defendants’ motion to dismiss in a detailed order.
First, it held that Ghosh’s First Amended Complaint failed to state an MWA claim.
The MWA provides that an employer shall not discharge an “employee” because he
“reports a violation or suspected violation of any federal or state law.” Minn. Stat.
§ 181.932 subd. 1. MWA defines “employee” as “a person who performs services for
hire in Minnesota for an employer,” and “employer” as “any person having one or
more employees in Minnesota.” Minn. Stat. § 181.931 subd. 2 and 3. The court ruled
that Ghosh did not meet this statutory definition because training does not constitute
“performs services for hire,” and because being present in Minnesota just twelve days
over a month before his termination does not meet the statute’s ongoing physical
presence requirement. Ghosh, 2024 WL 4534724, at *4-6. Second, the court held
that Ghosh waived his right to sue under the HWPA by agreeing that “the rights of
the parties will be governed by . . . the laws of the State of Minnesota.” Id. at *6.
On appeal, Ghosh argues that (1) commercial activity is not required by the
phrase “performs services for hire,” and alternatively, his actions during training meet
that requirement; (2) the proper test for determining the “in Minnesota” requirement
is a “contacts-based approach,” not one of physical presence, and alternatively, his
attendance and completion of CSI’s Minnesota-based training process satisfies the
location requirement; and (3) public policy prevents waiver of his HWPA claim.
Ghosh further argues the district court erred in denying as futile his motion to
amend the First Amended Complaint. A district court should freely grant leave to
amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). But the right is not
automatic, and the district court may deny the motion due to “futility of the
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amendment.” Anderson v. Bank of the W., 23 F.4th 1056, 1060 (8th Cir. 2022),
quoting Moses.com Sec., Inc., v. Comprehensive Software Sys., Inc., 406 F.3d 1052,
1065 (8th Cir. 2005). An amendment is futile if it would fail to withstand a motion
to dismiss under Rule 12(b)(6). Zutz v. Nelson, 601 F.3d 842, 850-51 (8th Cir.), cert
denied, 562 U.S. 1005 (2010).
We review the grant of the motion to dismiss the First Amended Complaint de
novo. Stursberg v. Morrison Sun PLLC, 112 F.4th 556, 560 (8th Cir. 2024). We
review the denial of leave to amend for abuse of discretion and questions of futility
de novo. Anderson, 23 F.4th at 1061.
III. Discussion
A. The MWA Claims. We apply the substantive law of Minnesota in this
diversity action. Under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), that
means “we must remain grounded in Minnesota law and determine how the Supreme
Court of Minnesota would apply [the] law in this case.” PHL Variable Ins. Co. v.
Bank of Utah, 780 F.3d 863, 867 (8th Cir. 2019).
1. Was Ghosh an MWA Employee? This is a question of statutory
interpretation. Under Minnesota law, the goal is to “ascertain and effectuate the
intention of the legislature.” Pitman Farms v. Kuehl Poultry, LLC, 48 F.4th 866, 875
(8th Cir. 2022), quoting Minn. Stat. § 645.16. We begin by construing the statute’s
words and phrases according to their “plain and ordinary” meaning, turning to
dictionary definitions for words not defined in the statute. Kuklenski v. Medtronic
USA, Inc., 134 F.4th 528, 531 (8th Cir. 2025) (quotations omitted).4 The district
court correctly concluded that Ghosh did not meet the MWA’s definition of employee
4Minnesota courts look to both contemporary dictionary definitions and those
at the time of enactment. Id. at 531 n.4 (citations omitted).
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because he neither “perform[ed] services for hire” nor did so “in Minnesota.” Ghosh,
2024 WL 4534724, at *4-7.
The MWA does not define “performs services for hire,” and there is no
controlling case from the Supreme Court of Minnesota. Turning to dictionary
definitions, “perform” is defined as “to carry out; execute; do.” The Random House
Dictionary of the English Language 1439 (2d ed. 1987). The phrase “services for
hire” then clarifies that this act must be commercial in nature. These definitions
establish that the plain meaning of the phrase includes two subparts: an “employee”
engages in an intentional and active task; and the task (“services”) is commercial in
nature (“for hire”). Holding otherwise would render the phrase meaningless.
When applied here, Ghosh’s 39-page First Amended Complaint did not satisfy
either subpart. It alleges that he visited Minnesota to attend training, an inherently
passive activity. His training tasks included case observations, physician visits, and
on-site training sessions, all in stark contrast to more active tasks such as marketing
and selling CSI medical devices. The goal of CSI’s training (or any training) was to
learn CSI’s products and business, including how they are used in arterial surgery.
Training was a way to ensure Ghosh would safely and effectively perform
sophisticated commercial medical care activity in the future in his Hawaii sales
territory. Though his training tasks included participation in some case observations
that resulted in CSI sales, the training sessions and live case observations centered
around non-commercial tasks. Ghosh’s proposed amended complaint attempted to
bolster his argument by adding that he “provided valuable expertise” to the trainers.
But he did not allege he engaged in sales with Minnesota medical providers. He was
engaged in training, not sales, when he was in Minnesota. “Indeed,” the district court
noted: “if training were sufficient, then any employee of a Minnesota company who
comes to the state for training would be protected by the MWA. The Minnesota
legislature’s limited definition of ‘employee’ indicates that it had no such intention.”
Ghosh, 2024 WL 4534724, at *5.
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2. The Ongoing Physical Presence Requirement. Even if Ghosh’s actions in
Minnesota satisfied the “performs services for hire” requirement, his claim fails
because he cannot meet the ongoing physical presence requirement set forth in the
statutory phrase, “in Minnesota.” Though not previously considered by the Supreme
Court of Minnesota, we recently examined a similar phrase -- “in this state” -- in the
analogous Minnesota Human Rights Act and held that “physical presence in
Minnesota” is required. Consequently, an individual who occasionally traveled to
Minnesota for work but had not been to the State in over two years did not work “in
this state.” Kuklenski, 134 F.4th at 530-33. Likewise, “in Minnesota” requires
ongoing physical presence, a requirement Ghosh did not satisfy by alleging one-week
trips for training and the expectation he would return for future CSI functions.
Ongoing physical presence is mandated by the plain language of the statute.
The word “in” means “[w]ithin the limits, bounds, or area of.” Id. at 531, citing
American Heritage Dictionary 1995 (5th ed. revised 2018). Thus, an individual is an
employee if he “performs services for hire” within the limits, bounds, or area of
Minnesota, a geographic entity with set boundaries. It follows, then, that the
individual must be physically present in the State, as this is the only way to be within
the “limits, bounds, or area” of Minnesota.5 And use of the present tense of the word
“perform” in the phrase “performs services for hire in Minnesota” reflects an intent
to limit application to those currently performing services for hire in Minnesota, not
those who “have performed” in the past or “will perform” in the future.
We recognize that “ongoing physical presence” does not automatically exclude
individuals who lack complete physical presence in Minnesota. For example, an
individual who works in Minnesota and in another state may potentially have an
5Ghosh argues that the exclusion of independent contractors from the definition
of “employee” reflects an intent that remote workers be covered by the MWA. But
the definition of employee was added in 1987, long before remote work became
commonplace. 1987 Minn. Laws 140.
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MWA claim. As would someone who works in Minnesota but is terminated while
physically present in another state. But whatever the exact parameters for “ongoing
physical presence,” -- including how often and for how long an individual must visit
Minnesota -- Ghosh has not satisfied them here.
What matters in determining whether an MWA claimant satisfies the “in
Minnesota” requirement is ongoing physical presence in the State -- for Ghosh, a total
of 12 days out of his total employment of approximately 118 days over a span of
several months. We agree with the district court such sparse and sporadic presence
is insufficient. His job as District Sales Manager for Hawaii was in Hawaii, not
Minnesota. His last visit to Minnesota, April 23-28, 2024, was over a month before
his termination. While he may have expected to return to Minnesota for more CSI
training, CSI was acquired by ALI before termination; moreover, such sporadic,
uncertain future visits do not satisfy MWA’s ongoing physical presence requirement.
Ghosh’s argument that the proper test for evaluating “in Minnesota” is a “contacts-
based approach” directly contradicts the statute’s language, “in Minnesota,” and has
not been applied in MWA cases.
The district court properly dismissed Ghosh’s MWA claim.
B. The HWPA Claim. In Ghosh’s First Amended Complaint (his fourth
pleading in less than four months), he added for the first time a claim alleging
violations of the HWPA. Defendants moved to dismiss this claim, arguing the
Agreement’s choice-of-law provision -- “this Agreement and the rights of the parties
will be governed by and construed and enforced in accordance with the laws of the
State of Minnesota” -- waived Ghosh’s right to sue under the HWPA. The district
court agreed, concluding (i) “‘rights of the parties’ plainly includes . . . [the right] to
file a claim under an applicable whistleblower statute,” (ii) statutory whistleblower
statutory claims “are waivable” unless the legislature expressly makes them non-
waivable, and (iii) the Hawaii legislature did not make the HWPA non-waivable.
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Thus, Ghosh’s First Amended Complaint fails to state an HWPA claim. Ghosh,
2024 WL 4534724, at *6.
On appeal, Ghosh argues that he “qualifies” under the HWPA as “an employee
of [ALI/CSI] who was required to report violations of law to his employer,” and if he
has no claim under the MWA, “it is against public policy and the interest of justice
not to allow Mr. Ghosh to [file a] claim under the [HWPA]” due to a choice of law
provision. In his reply brief, without even noting the choice-of-law authorities on
which the district court relied, Ghosh argues “this Court should rule to set a critical
precedent to protect the interests of remote workers such as Mr. Ghosh, given the
imminent threat to state and national public policy, which Whistleblower laws were
conceived and designed to protect.” In other words, governing Minnesota law does
not matter, just do the right thing as a matter of public policy. We decline the
invitation.
As Minnesota is the forum state, we apply its choice of law rules. Nw.
Airlines, Inc. v. Astraea Aviation Servs., 111 F.3d 1386, 1393 (8th Cir. 1997), citing
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Minnesota generally
enforces choice-of-law provisions. Id. at 1392 (citation omitted). Under Minnesota
law, “except as limited by public policy a person may waive any legal right,
constitutional or statutory.” State ex rel. Johnson v. Indep. Sch. Dist. No. 810,
Wabasha Cnty., 109 N.W.2d 596, 602 (Minn. 1961), citing 20 Dunnell, Dig. (3 ed.)
§§ 10134, 10134a, 10135; see Northwest Airlines, 111F.3d at 1392 n.4 (holding a
Texas deceptive trade practices claim “not available under Minnesota law”).
However, a legislature may provide that certain statutory claims are not waivable.
For example, the Hawaii legislature added the following provision in its landlord-
tenant law: “A tenant or landlord may not waive or agree to forego rights or remedies
under this chapter.” Haw. Rev. Stat. § 521-31. There is no comparable provision in
the HWPA and no statutory indication the legislature intended to prevent its waiver.
See Haw. Rev. Stat. § 378-62. If anything, the inclusion of a two-year statute of
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limitations suggests it deemed the HWPA waivable. Haw. Rev. Stat. § 378-63.
Ghosh cites no case stating that the HWPA is unwaivable, and Hawaii courts
routinely enforce its statute of limitations. E.g., Lalau v. City & Cnty. of Honolulu,
938 F. Supp. 2d 1000, 1021 (D. Haw. 2013).
Because the HWPA is waivable, the issue is whether the Agreement waives it.
The Agreement broadly states, without exception: “this Agreement and the rights of
the parties” will be governed by the laws of Minnesota. This extension of Minnesota
law to the “rights of the parties” clearly includes Ghosh’s right to file claims under
an applicable whistleblower statute, as the district court held. But the court then
concluded that, because whistleblower claims are waivable and the Hawaii legislature
did not expressly prevent the HWPA from being waived by the parties’ choice of law
provision, “Ghosh does not have a tenable claim under the HWPA.” Ghosh, 2024
WL 4534724, at *6. We agree.
“Minnesota traditionally enforces parties’ contractual choice of law provisions.
Minnesota courts have consistently expressed a commitment to the rule ‘that the
parties, acting in good faith and without an intent to evade the law, may agree that the
law of either state shall govern.’” Hagstrom v. Am. Cir. Breaker Corp., 518 N.W.2d
46, 48 (Minn. App. 1994) (citations and quotations omitted). Applying this standard,
the Court enforced the parties’ contractual choice of North Carolina law and upheld
the termination of a dealer sales representative agreement under North Carolina law
that conflicted with the notice requirements of the Minnesota Termination of Sales
Representative Act (MTSRA) because that Act, unlike the Minnesota Franchise Act,
did not void inconsistent contractual choice of law provisions. The Minnesota Court
of Appeals and the District of Minnesota have since followed Hagstrom in more
recent cases.
We recognize that cases like Hagstrom enforcing state laws contractually
chosen by the parties to bar claims under Minnesota statutes do not govern the
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question whether Minnesota courts would allow statutory claims from other States
when the parties chose Minnesota law to govern the contract. No one cites any case
where Minnesota appellate courts addressed that question, and it may be one of first
impression.
We find persuasive the reasoning in Warren E. Johnson Cos. v. Unified Brand,
Inc., where the District of Minnesota, applying Minnesota law, dismissed an MTSRA
claim as precluded by a contractual choice of law provision that the “Agreement will
be construed in accord with the laws of Mississippi.” Interpreting and applying
Northwest Airlines and Hagstrom, the court explained that the parties “contracted to
apply Mississippi law to the Agreement, and the claim . . . under the MTSRA, is so
related to the Agreement that the choice of Mississippi law applies to that claim . . .
and precludes [plaintiff’s] attempt to invoke the protections of the MTSRA.” 735 F.
Supp. 2d 1099, 1110 (D. Minn. 2010).
Moreover, we note that there is another factor we predict the Supreme Court
of Minnesota would find highly relevant here -- Minnesota and Hawaii have parallel
whistleblower statutes and Ghosh chose to assert his claim under the MWA. He only
asserted an HWPA claim four pleadings later, when it appeared he may have ridden
the wrong horse. In this situation, we predict the Supreme Court of Minnesota,
invoking principles from the ancient election-of-remedies doctrine, would hold that
Minnesota courts will enforce one whistleblower statute, but not both. In other
words, Ghosh “picked his poison” in suing in Minnesota under the MWA.6 His
6Initially, Ghosh likely could have asserted an HWPA claim in a Hawaiian
federal or state court, provided there was no forum selection clause. And he still may
have that claim in a Hawaiian court, unless his decision to file only in Minnesota now
precludes such a suit, or it has become time-barred. Therefore his counsel’s
disingenuous assertion that our decision will leave terminated remote employees with
valid whistleblower claims “without any recourse” is simply wrong.
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belated claim under the HWPA is therefore “not available under Minnesota law.”
Northwest Airlines, 111 F.3d at 1392 n.4.
On appeal, Ghosh’s brief and reply brief cite no case holding that a claim under
a foreign State’s whistleblower statute is not barred by a contractual choice of law
provision that the forum State’s law broadly governs all claims, and we have found
none. Cf. Donnert v. Feld Ent., Inc., 612 F. App’x 657, 662-63 (4th Cir. 2015)
(barring claim under Florida Whistleblower Act because contract choice of law
provision chose Virginia law, even though it is less protective of whistleblowers).
Ghosh does not even acknowledge the district court’s reasoning and attempt to
distinguish the authorities cited. Rather, he urges us to “set a critical precedent to
protect the interests of remote employees such as Mr. Ghosh.” It is “a complete
injustice to enable companies such as CSI and Abbott to . . . wrongfully terminate
[remote] employees without any recourse due to a contractual provision,” and public
policy dictates not enforcing the agreement due to the remedial nature of the HWPA.
This public policy contention does not establish reversible error. Indeed, it is
contrary to Minnesota law that we are obligated to follow in a diversity case.
“Minnesota public policy favors the freedom to contract . . . [except] when the
particular contract violates some principles which is of even greater importance to the
general public.” Lyon Fin. Servs., Inc. v. Ill. Paper & Copier Co., 848 N.W.2d 539,
545 (Minn. 2014) (quotation omitted). Ghosh argues dismissing his HWPA claim
would constitute a “grave injustice.” But Minnesota allows parties to waive their
rights as part of an enforceable contract. Ghosh does not argue this contract is not
enforceable, so whatever “injustice” arises from his voluntary waiver is not of legal
concern.7
7Because Ghosh cannot establish a claim against any defendant, we need not
reach whether ALI or Abbott are proper defendants in this action. The duplicative
nature of the claims makes them futile even when applied to a defendant added by an
amended complaint. See Jackson v. Riebold, 815 F.3d 1114, 1123 (8th Cir. 2016).
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C. Denial of the Motion for Leave to Amend. Ghosh argues the district
court erred in denying his motion for leave to file an amended complaint, his fifth
pleading, because it added allegations showing he was an MWA employee and
provided sufficient evidence to bring a valid claim under the HWPA. The district
court concluded that Ghosh was not guilty of bad faith or undue delay in moving to
amend but nonetheless denied the motion because the amendments are futile:
An amendment is futile when it could not survive a motion to
dismiss under Rule 12(b)(6). Because Ghosh’s proposed amendments
do not include new claims against defendants . . . . [his] claims are
legally untenable, even considering the proposed amendment. The
motion to amend will therefore be denied as futile.
Ghosh, 2024 WL 4534724 *4 (citation omitted). We agree with this analysis and
affirm the court’s decision that Ghosh’s MWA and HWPA claims “are legally
untenable, even considering the proposed amendment.” Therefore, we likewise
affirm the denial of his motion for leave to amend the First Amended Complaint.
For the foregoing reasons, the judgment of the district court is affirmed.
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