concurring and dissenting.
Under South Dakota law, Stoekgrowers’ oral promises to Holloway may have ere-ated an employment contract. I would reverse the summary judgment in favor of Stoekgrowers.1
Holloway alleges that he resigned his position as Chief Brand Inspector in conjunction with Stoekgrowers’ promise that he would be given the position back shortly thereafter. Plaintiff’s Statement of Material Facts, paragraph 1, (November 30, 1988); Plaintiff's Memorandum in Opposition to Motion for Summary Judgment at 3 (September 27, 1988);2 Complaint paragraph XV (February 11,1988). The majority rejects this allegation as insufficient if true to create a property right under South Dakota law.3 I disagree.
The South Dakota Supreme Court held in Larson v. Kreiser’s, Inc., 427 N.W.2d 833 (S.D.1988), that an employer’s oral promise of a particular employment position can create an employment contract in which the employee has an expectation interest. Id. at 834. The majority would limit Larson to cases where an employee accepted employment with the company only because of the employer’s promise of a specific position. Moreover, they note that the alleged oral promise in this case did not specify a fixed term of employment as required by statute, and that a subsequent letter from Stoekgrowers insisted that Holloway was still an at-will employee. Ante at 1134-35. *1138Larson created an exception to S.D.Codified Laws Ann. § 60-4-4 (1978), which provides that employment without a specified term is employment at will. The exception was necessary for Larson to prevail, because there was “no indication in the record that plaintiff was employed for a specified term.” Larson, 427 N.W.2d at 833. Thus, it does not matter that Holloway has not alleged that Stockgrowers promised to employ him for a fixed period of time. The only issue is whether Holloway’s allegations state a cause of action under Larson,4
While Larson accepted a job only because he was promised the presidency of the company one day, the Larson exception to at-will employment is not limited to identical fact situations. Larson relied principally on two other cases for its analysis, one of which was Sea-Land, Service, Inc. v. O’Neal, 224 Va. 343, 297 S.E.2d 647 (1982). In Sea-Land, the plaintiff resigned a position in reliance on her employers’ promise to hire her for a new position. Id. 297 S.E.2d at 648-49. The court held that a cause of action existed. “We fail to see, however, why a contract to exchange jobs should not be considered a contract of em-ployment_” Id. at 650. Apparently, Holloway was an at-will employee at the time the dispute with the State Brand Board arose. Stockgrowers could have fired him outright at that time, but they chose not to do so. Instead, perhaps because his expertise was valuable to Stock-growers, Holloway alleges that Stockgrow-ers promised him that he would be returned to his previous position if he stayed. In this respect, this case is indistinguishable from Sea-Land.
[Although Sea-Land may have had the right to terminate O’Neal’s employment at will either while she was still a sales representative or in the event she became a teletype operator/messenger, the company did not dismiss her this way. Instead, it promised her that, if she resigned from the one position, she would be employed in the other. This was an undertaking separate and apart from any contract covering the particular position involved and was not subject to any presumption of terminability at will that might have applied to such a contract.
Id. I believe it likely that South Dakota would recognize an agreement to change positions at the same business as an employment contract.
Accordingly, I would reverse the grant of summary judgment in favor of Stock-growers. Stockgrowers’ promises may have given Holloway a property interest in continued employment.
. I agree with other portions of the majority opinion: that Stoekgrowers’ conduct qualifies as state action; that Holloway was terminated; that Holloway is not entitled to official state termination procedures; that Chernin correctly states the law of the circuit; that the eleventh amendment bars an award of damages against members of the Brand Board in their official capacities; and that the members of the Brand Board in their individual capacities are entitled to qualified immunity against a Chernin claim.
. The district court refused to consider Holloway’s statement of facts in the September Memorandum because local rules require without exception that facts in dispute be listed separately. Rules of Practice of the United States District Court of the District of South Dakota, Rule 4 § 8(D) (1984). Pursuant to Rule 4, the district court deemed all of Stoekgrowers’ factual allegations admitted, and held that there was no factual dispute. Memorandum Opinion and Order Granting Summary Judgment at 4 (October 28, 1988).
Summary judgment was granted in this case, not because Holloway has not stated a claim or because there is no factual dispute, but because Holloway’s attorney failed to comply with a local rule requiring the separate listing of facts in dispute. Instead, the attorney submitted a three page fact summary. I refuse to disregard the factual dispute clearly set forth in Holloway’s submissions to the court because Local Rule 4 does not give the district courts of South Dakota discretion to modify application of the rule when the equities of a particular case so demand. See Hall v. Commissioner of Internal Revenue, 805 F.2d 1511, 1514-15 (11th Cir.1986) (inconsistent with the policies of the federal rules).
. Whether or not this was a conditional promise is a matter for the jury. Collins v. South Dakota State Board of Transp., 264 N.W.2d 491, 495-96 (S.D.1978).
. Whether the subsequent Stockgrowers’ letter recited or attempted to alter the terms of the agreement should be left to the jury.