Ken Hammer v. City of Osage Beach ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-3206
___________
Ken Hammer, *
*
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri
The City of Osage Beach, Missouri, *
and Jim Schneider, *
*
Defendants-Appellees. *
*
___________
Submitted: March 14, 2002
Filed: January 31, 2003
___________
Before McMILLIAN, HEANEY and RILEY, Circuit Judges.
___________
McMILLIAN, Circuit Judge.
Plaintiff Ken Hammer (“Hammer”) appeals from an order entered in the United
States District Court for the Western District of Missouri1 granting summary
judgment in favor of Defendants the City of Osage Beach (“the City”) and the City’s
Mayor, Jim Schneider (collectively “Defendants”). See Hammer v. City of Osage
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
Beach, No. 00-4050-CV-4-ECF (W.D. Mo. Sept. 7, 2001) (hereinafter “slip op.”).
For reversal, Hammer argues that the district court erred in granting summary
judgment in favor of Defendants because there were genuine issues of material fact
in dispute as to (1) whether Defendants violated his procedural due process rights;
(2) whether he was wrongfully discharged; and (3) whether statements critical of his
job performance contained in a press release were non-actionable opinions protected
by the First Amendment. In addition, he argues that the district court erred in
granting summary judgment in favor of Mayor Schneider because only the City filed
a summary judgment motion. Hammer also argues that the district court abused its
discretion in denying his second motion to amend his complaint. For the reasons set
forth below, we affirm the judgment of the district court.
Jurisdiction in the district court was proper based on 28 U.S.C. §§ 1343 and
1367. Jurisdiction in this court is proper based upon 28 U.S.C. § 1291. The notice
of appeal was timely filed pursuant to Fed. R. App. P. 4(a).
FACTS
Hammer was the City Administrator for the City of Osage Beach, Missouri.
As City Administrator, Hammer’s responsibilities included preparation of the City’s
personnel code and pay plan. Hammer was also the City budget officer and under
state statute and City ordinance was responsible for preparing the proposed budget
for the mayor and the board of aldermen (the “Board”). Hammer did not have a
written employment contract with the City. Under Osage Beach City Ordinance
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2-123,2 the City Administrator position was for an indefinite term and could be
terminated by procedures set forth in Mo. Rev. Stat. § 79.240.3On December 15, 1999, Mayor Schneider issued a press statement regarding
the general status of the City’s government (the “December 15 Press Statement”).
The December 15 Press Statement referred to certain recent conduct by Hammer and
two aldermen and contained accusations of general improprieties and illegalities
related to the City’s health insurance, contract bids, and Hammer’s termination of
2
At the time of Hammer’s hiring and termination, Osage Beach Ordinance 2-
123, provided:
(a) A qualified person shall be appointed city administrator by
the mayor; such appointment shall be approved by a
majority of the board of aldermen. The person so
appointed shall serve for an indefinite term.
(b) The city administrator shall serve at the pleasure of the
appointing authority. The mayor, with the consent of a
majority of the board of aldermen, may remove the city
administrator from office at will. If requested, the mayor
and board of aldermen shall grant the city administrator a
public hearing within thirty (30) days following notice of
such removal.
3
Mo. Rev. Stat. § 79.240 provides in relevant part:
The mayor may, with the consent of a majority of all the members
elected to the board of aldermen, remove from office any
appointive officer of the city at will, and any such appointive
officer may be so removed by a two-thirds vote of all the
members elected to the board of aldermen, independently of the
mayor’s approval or recommendation.
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another City employee. On January 10, 2000, at a closed meeting of the Board,
Alderman Sheely moved to terminate Hammer’s employment with the City. All six
members of the Board voted on the motion to terminate Hammer, with three aldermen
voting in favor of the termination and three opposed. Mayor Schneider broke the tie
by casting his vote in favor of the termination motion. In a letter dated January 11,
2000, Mayor Schneider advised Hammer that his employment was terminated
effective immediately. The letter did not state the reason for Hammer’s termination.
On January 25, 2000, Hammer submitted a written request for a public hearing
before the Board. Hammer requested advance notice of the date and time of the
hearing in order to prepare for the hearing and to inform any witnesses he might
choose to call. On January 27, 2000, Hammer received a letter from the City’s
attorney informing him that a public hearing would be held on February 7, 2000, and
that only he would be permitted to address the Board and the public. Hammer spoke
at the February 7, 2000, hearing and was given an unlimited amount of time to air his
concerns. Hammer’s attorney was also permitted to speak on his behalf. Nothing in
the hearing record indicates that Hammer attempted to call witnesses.
On March 28, 2000, Hammer filed this suit in the United States District Court
for the Western District of Missouri. On March 26, 2001, the district court granted
Hammer’s motion to amend his complaint. In his amended complaint, Hammer
alleged that Defendants: (1) deprived him of a property interest without due process
by failing to comply with Mo. Rev. Stat. § 79.240 when they terminated his
employment, in violation of 42 U.S.C. § 1983; (2) wrongfully terminated his
employment4; and (3) defamed him through false and libelous statements in the
4
Although Hammer never raised the issue of supplemental jurisdiction, the
district court nevertheless analyzed Hammer’s state law claims, presumably pursuant
to 28 U.S.C. § 1367.
-4-
December 15 Press Statement.5 On August 15, 2000, the district court denied
Hammer’s second motion for leave to amend his complaint to allege claims of
retaliation for whistleblower activities. On August 23, 2001, the district court
allowed the City to amend its answer to add the affirmative defense of sovereign
immunity.
On September 7, 2001, the district court granted the City’s motion for summary
judgment. Slip op. at 14. The district court held that Defendants had complied with
the termination provisions contained in Mo. Rev. Stat. § 79.240, that Mayor
Schneider was authorized to break the tie vote of the Board under Mo. Rev. Stat.
§ 79.120, and that Hammer’s procedural due process rights were not violated. Id. at
5-10. In addition, the district court held that Hammer’s tort claim for wrongful
discharge was barred by sovereign immunity and that any potential claim for breach
of contract must fail because Hammer had no written employment contract with the
City or, in the alternative, because he failed to adequately plead a claim for breach of
contract. Id. at 11-12. The district court also held that Hammer failed to properly
plead a claim of First Amendment retaliation. Id. at 12. Finally, the district court
found that Hammer’s defamation claim was also barred by sovereign immunity, and,
in any event, the statements contained in the December 15 Press Statement were
privileged opinions protected by the First Amendment and, therefore, not actionable.
Id. at 13-14. Although Mayor Schneider had not joined the City’s motion for
summary judgment, the district court held that the mayor’s statements were privileged
and, therefore, non-actionable, and dismissed the defamation claim as to all parties.
Id. (citing Ribaudo v. Bauer, 982 S.W.2d 701, 703 (Mo. Ct. App. 1998) (Ribaudo)
5
Hammer’s complaint also contained a count alleging that the City illegally
tapped his office phone and illegally recorded his conversations, depriving him of his
right to be free from unreasonable searches and seizures and his right to privacy, in
violation of the Fourth Amendment. On August 23, 2001, the district court dismissed
this count with prejudice by stipulation of the parties.
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(dismissing libel claim against all parties where summary judgment was requested by
only one party because the statement at issue was privileged)). This appeal followed.
DISCUSSION
We review the district court’s decision to grant summary judgment de novo.
See Audio Odyssey, Ltd. v. United States, 255 F.3d 512, 516 (8th Cir. 2001) (citing
Do v. Wal-Mart Stores, 162 F.3d 1010, 1012 (8th Cir. 1998) (additional citations
omitted)). The question before the district court, and before this court on appeal, is
whether the record, when viewed in the light most favorable to the non-moving party,
shows that there are no genuine issues as to any material fact and that the moving
party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (Celotex); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249-50 (1986). The mere existence of a factual dispute is
insufficient alone to bar summary judgment; rather, the dispute must be outcome
determinative under the applicable law. See Celotex, 477 U.S. at 248. Having
reviewed the record as a whole, considering all facts and reasonable inferences that
can be drawn from them in the light most favorable to Hammer as the non-moving
party, we conclude that the district court correctly granted summary judgment in favor
of Defendants.
I.
Hammer first contends that there were genuine issues of material fact in dispute
as to whether Defendants failed to follow proper termination procedures in violation
of City ordinance, state law, and his constitutional right to procedural due process.
Under Mo. Rev. Stat. § 79.240, which governs fourth class cities, including the City
of Osage Beach, an appointed city officer may be removed at will by the mayor with
a majority vote of all members of the board of aldermen. The board of aldermen may
also remove an appointed city officer independent of the mayor’s approval or
recommendation by a two-thirds majority vote. Hammer claims that a two-thirds
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majority vote of the Board was required to effect his termination because Alderman
Sheely, not Mayor Schneider, made the original motion calling for his termination.
Because the Board’s original vote was tied three to three, Hammer claims that the
vote was merely an “attempted termination” which failed to effectively terminate his
employment. Hammer also argues that Mayor Schneider should not have been
allowed to vote on the motion to terminate his employment because his personal
enmity towards Hammer made him an interested party.
The district court held that it was irrelevant whether Mayor Schneider or an
alderman first presented the motion to terminate Hammer’s employment to the Board,
citing State ex rel. Gorris v. Mussman, 612 S.W.2d 357 (Mo. Ct. App. 1980)
(Gorris)).6 In order for Hammer’s termination to be effective under Mo. Rev. Stat.
§ 79.240, Mayor Schneider's recommendation and approval by a simple majority of
the Board was all that was required. After the Board’s vote on the motion to
terminate ended in a tie, Mayor Schneider properly cast the tie-breaking vote. In
exercising this power, Mayor Schneider expressed his intent to dismiss Hammer by
personally voting for his dismissal – a decision supported by a majority of the Board.
6
Hammer argues that his case may be distinguished from the case relied on by
the district court, State ex rel. Gorris v. Mussman, 612 S.W.2d 357 (Mo. Ct. App.
1980) (Gorris). Hammer maintains that the vote on the original termination motion
was tied, and it could not be assumed that Mayor Schneider would automatically
obtain approval for his own motion to terminate. Additionally, Hammer argues that
the official record does not show Mayor Schneider’s approval of the Board’s motion
or his official decision to exercise the removal power, so it is unclear whether the
mayor was simply approving the Board’s action or exercising his own removal power.
Therefore, Hammer argues that there were genuine issues of material fact in dispute
as to who exercised the termination power under the statute and whether the
termination was effective. Under Gorris, however, “[w]hich of the two procedures
under § 79.240 is to be followed does not depend on who ‘initiated’ the action to
remove the official but on who actually exercises the removal power.” Id. at 361. By
voting in favor of the motion to terminate, Mayor Schneider expressed his intent to
dismiss Hammer and was not required to once again obtain the consent of the Board
in order to effect the removal. Id.
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As in Gorris, “the actions of the board and the mayor, following one upon the other,
coalesced; together, these actions constituted a proper dismissal under the
requirements of § 79.240.” Id. at 362. Therefore, we hold the district court correctly
ruled that Hammer’s termination did not violate Mo. Rev. Stat. § 79.240 as a matter
of law.
We similarly reject Hammer’s argument that there was a genuine issue of
material fact as to whether Mayor Schneider should have been disqualified from
casting the tie-breaking vote because he was an interested party. Under Mo. Rev.
Stat. § 79.120, the mayor has the authority to vote in matters before the board of
aldermen in case of a tie, but may not vote in cases where he or she is an interested
party.7 The mayor is considered interested if he or she has either a pecuniary interest
in the proceedings, or a personal interest resulting from “deep personal enmity.”
State ex rel. Ciaramitaro v. Charlack, 679 S.W.2d 405, 408 (Mo. Ct. App. 1984)
(Ciaramitaro).8 Although the record shows that Hammer had policy disagreements
with Mayor Schneider, we agree with the district court’s conclusion that Hammer
failed to present evidence showing a genuine issue of material fact as to whether these
disagreements rose to “the level of deep-rooted, mutual hatred, as is required to be an
interested party under Ciaramitaro.”9 Slip op. at 7. These political disagreements,
7
Mo. Rev. Stat. § 79.120 provides in relevant part: “[t]he mayor shall have a
seat in and preside over the board of aldermen, but shall not vote on any question
except in the case of a tie, nor shall he preside or vote in cases where he is an
interested party.”
8
Hammer conceded that he had not discovered evidence of Mayor Schneider’s
financial interest in the proceedings. Hammer v. City of Osage Beach, No. 00-4050-
CV-4-ECF at 6 (W.D. Mo. Sept. 7, 2001) (hereinafter “slip op.”).
9
Hammer cites to Hall v. Missouri Highway & Transp. Comm’n, 235 F.3d 1065th
(8 Cir. 2000), for examples of what “enmity” means in an employment context.
Such behavior includes: raising one’s voice at an employee, slamming doors, walking
out of the room while an employee is speaking, making disparaging comments, and
asking the employee to perform unnecessary work. Id. at 1068-69. Although the
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standing alone, were not sufficient to create a triable issue of material fact as to
whether Mayor Schneider was an interested party. Because Hammer failed to present
sufficient evidence of the mayor’s personal enmity towards Hammer, the district court
correctly held as a matter of law that Mayor Schneider was not disqualified from
breaking the tie vote of the Board under Mo. Rev. Stat. § 79.120.
II.
Hammer also argues there were genuine issues of material fact as to whether
he received notice of the reasons for his termination and whether the hearing held on
February 7, 2000, was a constitutionally adequate name-clearing hearing. Hammer
contends that the February 7, 2000, hearing was insufficient to clear his name because
he was not allowed to call witnesses and the Board did not reconsider its decision to
terminate his employment.10
An at-will public employee generally does not have a protected liberty interest
in continued employment which would obligate a government employer to provide
a hearing in connection with the employee’s discharge.11 See Speer v. City of Wynne,
record contains evidence of policy disputes between Hammer and Mayor Schneider,
Hammer fails to show that they rose to the level of personal enmity required to
disqualify the Mayor from voting.
10
Like Mo. Rev. Stat. §79.240, Osage Beach City Ordinance § 2-123(b)
provided at the time of Hammer’s termination that the mayor may, with the consent
of the majority of the board of aldermen, remove the city administrator from office
at will. Osage Beach City Ordinance § 2-123(b), however, provided an additional
provision not contained in Rev. Mo. Stat. §79.240 whereby, upon request, the mayor
and the board of aldermen were required to grant the city administrator a public
hearing within 30 days following notice of removal. The Ordinance is nevertheless
silent regarding the form and content of the requisite hearing.
11
To establish a due process violation, the plaintiff must show that he or she has
a protected liberty or property interest. Merritt v. Reed, 120 F.3d 124, 126 (8th Cir.
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276 F.3d 980, 984 (8th Cir. 2002) (Speer) (citing Bishop v. Wood, 426 U.S. 341, 348
(1976) (Bishop)). An exception exists, however, in cases where an employee is
terminated in connection with publicized allegations of illegal or improper conduct.
Id. In Board of Regents v. Roth, 408 U.S. 564, 573 (1972) (Roth), the Supreme Court
held that a government employee has a liberty interest in his or her good name and
reputation, which is entitled to protection when he or she is fired based on allegations
of dishonesty, immorality, or illegality. To establish the deprivation of a liberty
interest, a public employee must make a three-part showing: (1) that the public
employer’s reasons for the discharge stigmatized the employee, seriously damaging
his or her reputation or by foreclosing other employment opportunities; (2) that the
employer made the reasons for the discharge public; and (3) that they employee
denied the charges that led to the discharge. Speer, 276 F.3d at 984 (citing Coleman
v. Reed, 147 F.3d 751, 754-55 (8th Cir. 1998)) (additional citations omitted). Where
this showing has been made, under the Constitution’s procedural due process
protections, the employee must be provided with adequate notice and an opportunity
to dispute the charges in a “name-clearing” hearing. Id. (citing Codd v. Velger, 429
U.S. 624, 627-28 (1977) (per curiam) (Codd)) (additional citations omitted); Merritt
v. Reed, 120 F.3d 124, 126 (8th Cir. 1997) (citing Bishop, 426 U.S. at 349).
Based on the undisputed facts, the district court found that Hammer’s liberty
interests were implicated by the December 15 Press Statement. The December 15
Press Statement criticized Hammer’s job performance and accused him of conduct
that was “improper or even worse illegal” in connection with the City’s health
insurance program and the award of City contracts, and would therefore create the
1997) (citing Shands v. City of Kennett, 993 F.2d 1337, 1347 (8th Cir. 1993)). The
district court found that Hammer could not show that he had a property interest in his
continued employment because he was an at-will employee who could be terminated
at any time for any reason. Slip op. at 7 (citing Board of Regents v. Roth, 408 U.S.
564, 572 (1972) (Roth)) (additional citations omitted). Therefore, the district court
properly limited its analysis to the issue of whether Hammer had a protected liberty
interest.
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type of stigma discussed in Roth. Slip op. at 8. In addition, Hammer presented
evidence that he was confronted with the allegations during his job search and refused
positions because of them, creating an issue of material fact as to whether the stigma
affected his ability to find future employment. Id. at 9. The charges were publically
disseminated when the December 15 Press Statement was released to the local media
in Osage Beach. Id. Hammer also repeatedly denied the truth of the allegations in
the December 15 Press Statement. Id. Therefore, the district court correctly held as
a matter of law that Hammer was entitled to an opportunity to clear his name. Codd,
429 U.S. at 627 (once a claim of stigmatization is properly made under Roth, plaintiff
must be given an opportunity to clear his or her name). See also Johnson v. Rogers,
621 F.2d 300, 306 (8th Cir. 1980) (deprivation of liberty interest found where news
release issued by the county sheriff in connection with the plaintiff’s termination
accused her of wrongdoing, damaged her reputation, and the plaintiff denied the
charges).
Hammer maintains that he received insufficient notice of the reasons for his
termination and that the hearing he received was not a proper name-clearing hearing.
We disagree. The December 15 Press Statement, despite the fact that it was issued
nearly a month before Hammer was terminated, contained statements that were
“clearly made in connection with the Plaintiff’s subsequent discharge.” Slip op. at
8.12 In other words, Hammer cannot genuinely dispute the fact that he received
sufficient notice of the reasons his employment was terminated. Moreover, the Board
was not required to reconsider its decision to terminate Hammer in order for the
hearing to pass constitutional muster. See Codd, 429 U.S. at 627 (“[T]he hearing
required where a nontenured employee has been stigmatized in the course of a
12
Hammer and Mayor Schneider also attended a closed session of the Board on
November 4, 1999, in which many of the same allegations contained in the December
15 Press Statement were discussed. See Minutes of the Closed Session of the Board
of Aldermen of the City of Osage Beach, Missouri (Nov. 4, 1999) (Joint App. at 176-
80).
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decision to terminate his employment is solely ‘to provide the person the opportunity
to clear his name.’”) (quoting Roth, 408 U.S. at 573 n.12). All that is required is that
the aggrieved party be offered a chance to refute the charges against him or her. Id.The February 7, 2000, hearing fulfilled the limited purpose of clearing Hammer’s
name, and did not need to preserve his interest in his job. Roth, 408 U.S. at 573 n.12
(“Once a person has cleared his name at a hearing, the employer, of course, may
remain free to deny him future employment for other reasons.”). Hammer was given
unrestricted time to speak at the hearing, and his attorney was also allowed to speak
on his behalf. Therefore, the district court did not err when it held as a matter of law
that the February 7, 2000, hearing was constitutionally adequate.
III.
Hammer next argues that there were genuine issues of material fact in dispute
as to the nature of the relationship between the parties. Hammer argues that Count
III of his amended complaint is a breach of contract claim or a First Amendment
retaliation claim or both.13 The district court, however, was “confused as to exactly
13
Although not directly raised, Hammer also argues that the district court
should not have dismissed Count III against Mayor Schneider. Hammer maintains
that because Defendants have taken the position that Mayor Schneider terminated
Hammer, pleading in the alternative, Mayor Schneider would be the proper defendant
under Count III. Federal district courts may “grant summary judgment sua sponte
when the losing party is given sufficient advance notice and an adequate opportunity
to submit evidence in opposition.” Chrysler Credit Corp. v. Cathey, 977 F.2d 447,
449 (8th Cir. 1992) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986))
(additional citations omitted). Here, Hammer knew that the district court was
considering the City’s summary judgment motion, and had a chance to present his
evidence. See id. Hammer also knew that Mayor Schneider’s right to judgment
turned on the same issues as the City’s right to judgment. See id. Having concluded
that Hammer’s claims against the City were either non-meritorious, improperly plead,
or barred by sovereign immunity, the district court was within its power to also enter
judgment in favor of Mayor Schneider. See id.-12-
what cause of action [Hammer] attempts to bring under Count III,” slip op. at 10-11,
and therefore examined Count III under both state tort and contract theories.14
We review the district court’s interpretation of Missouri law de novo. Toney
v. WCCO Television, Midwest Cable & Satellite, Inc., 85 F.3d 383, 386 (8th Cir.
1996) (Toney) (citing Farr v. Farm Bureau Ins. Co., 61 F.3d 677, 679 (8th Cir. 1995)
Farr)). The district court found that Count III properly stated a state tort claim for
wrongful discharge. Under Missouri law, political subdivisions have sovereign
immunity from state tort claims under Mo. Rev. Stat. § 537.600, except in three
enumerated circumstances. Sovereign immunity may be waived (1) where public
employees are involved in an automobile accident, or (2) where injuries are caused
by the condition of public property if the land is kept in dangerous condition. Mo.
Rev. Stat. § 537.600. Sovereign immunity may also be waived (3) when a political
subdivision purchases liability insurance. Mo. Rev. Stat. § 537.610. Although the
City purchased liability insurance, the policy expressly stated that it did not expand
the City’s liability beyond that which is established in Mo. Rev. Stat. §§ 537.600 and
537.610. See slip op. at 12. The district court therefore correctly held that none of
these exceptions applied and properly dismissed Hammer’s wrongful discharge claim.
Id. See, e.g., State ex rel. Ripley County v. Garrett, 18 S.W.3d 504, 508-09 (Mo. Ct.
App. 2000) (granting summary judgment where endorsement in the county’s general
commercial liability insurance policy expressly preserved sovereign immunity),
overruled on other grounds by Amick v. Pattonville-Bridgeton Terrace Fire
Protection Dist., No. SC 84677, 2002 WL 31863859, at *2 (Mo. Dec. 24, 2002).
We agree with the district court that Hammer failed to adequately plead a
breach of contract claim under Count III. Count III did not contain either the word
“breach” or “contract.” Only after the City raised the defense of sovereign immunity
to the state tort claim did Hammer first argue his claim was actually for breach of
14
The district court dismissed Hammer’s First Amendment whistleblower claim
as improperly plead. Slip op. at 12.
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contract. We also agree with the district court that Hammer did not have an implied
contract of employment with the City. Hammer acknowledges that he did not have
a written contract of employment with the City, and the district court properly
concluded that, despite city ordinances requiring certain procedures before the city
administrator could be terminated, Hammer remained an at-will employee. See Fidler
v. Personnel Comm. for the City of Raytown, 766 S.W.2d 158, 160 (Mo. Ct. App.
1989) (“[A] public employer, particularly a municipality . . . , has no authority to limit
by contract or ordinance the power granted the public body [under Mo. Rev. Stat.
§79.240] to hire and discharge at will its appointed officers.”) (citing Russell v. City
of Raytown, 544 S.W.2d 48 (Mo. Ct. App. 1976)). The City could therefore
terminate Hammer “without reason or for no reason at all.” Id. See also Armer v.
City of Salem, 861 F.2d 514, 516 (8th Cir. 1988) (holding police officers were at-will
employees under Mo. Rev. Stat. § 79.240 and thus were removable “for any reason
or no reason.”).
IV.
Regarding his state law defamation claim, Hammer next argues that there were
genuine issues of material fact in dispute as to whether criticisms of his job
performance contained in the December 15 Press Statement were non-actionable
opinions protected by the First Amendment. See Press Statement, Jim Schneider,
Mayor, City of Osage Beach, Missouri (Dec. 15, 1999) (Joint App. at 31-32).
Hammer also argues that the district court erred in granting summary judgment in
favor of Schneider on the defamation claim because only the City filed a motion for
summary judgment.
We again review the district court’s interpretation of Missouri law de novo.
Toney, 85 F.3d at 386 (citing Farr, 61 F.3d at 679). Under Missouri law, there is a
two-part test for reviewing allegedly defamatory statements to determine whether a
plaintiff can survive summary judgment: (1) whether the statement is capable of
having a defamatory meaning and, if so, (2) whether one or more privileges shields
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the defendant from legal action. Ribaudo, 982 S.W.2d at 704 (citations omitted);
Pape v. Reither, 918 S.W.2d 376, 380 (Mo. Ct. App. 1996) (Pape) (citations omitted).
Statements of opinion, even if made maliciously or insincerely, are afforded absolute
privilege under the free speech clause of the First Amendment and cannot be
actionable libel. Pape, 918 S.W.2d at 380 (citing Diez v Pearson, 834 S.W.2d 250,
253 (Mo. Ct. App. 1992) (Diez)). Whether a purportedly defamatory statement is a
protected opinion or an actionable assertion of fact is a question of law for the court.
Pape, 918 S.W.2d at 379 (citations omitted); Diez, 834 S.W.2d at 252 (citations
omitted). The test for determining whether a statement is an opinion is “‘whether a
reasonable factfinder could conclude that the statement implies an assertion of
objective fact.’” Ribaudo, 982 S.W.2d at 705 (quoting Nazeri v. Missouri Valley
College, 860 S.W.2d 303, 314 (Mo. 1993)). The court must examine “the totality of
the circumstances to determine whether the ordinary reader would have interpreted
the statement as an opinion.” Diez, 834 S.W.2d at 252 (citing Henry v. Halliburton,
690 S.W.2d 775, 788 (Mo. 1985) (Henry)). The privilege does not apply, however,
where the statement of opinion implies the existence of undisclosed defamatory
facts.15 Ribaudo, 982 S.W.2d at 704 (citing Pape, 918 S.W.2d at 380).
The district court found that the statements made by Mayor Schneider appeared
capable of having a defamatory meaning, but held that the statements were non-
actionable privileged opinions expressed by the mayor as part of an ongoing political
15
Allegations of specific criminal conduct are considered statements of fact.
Diez v. Pearson, 834 S.W.2d 250, 252 (Mo. Ct. App. 1992) (citing Henry v.
Halliburton, 690 S.W.2d 775, 790 (Mo. 1985) (Henry)). A statement merely referring
to criminal conduct, however, must be examined in context to determine “whether the
reader would be left with the impression that the plaintiff was being accused of a
crime or that the defendant disagreed with the plaintiff’s conduct and used pejorative
statements or vituperative language to indicate his or her disapproval.” Id. (citing
Henry, 690 S.W.2d at 788-89).
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dispute.16 Slip op. at 13-14. Examining the circumstances surrounding the issuance
of the December 15 Press Statement, the district court noted that numerous comments
had been circulating regarding the present state of the City’s government and the
conduct of City officials. Id. at 13. It was in response to these concerns, and to
defend his own actions, that Mayor Schneider issued the press statement commenting
on the actions of Hammer and two aldermen. Id. As noted by the district court,
statements regarding political issues are generally afforded greater protection than
other types of speech. Id. at 13 (citing New York Times v. Sullivan, 376 U.S. 254(1964)). See also Ribaudo, 982 S.W.2d at 705 (“[T]he fact that the [allegedly
libelous] statements were made in the course of a political campaign is entitled to
great weight in determining whether there is actionable libel.”). The district court
found that Mayor Schneider supported the allegations in his statement by referring
to specific facts, noting that “even falsely or insincerely held opinions regarding
criminal conduct are privileged, so long as the facts supporting the opinions are
included.” Slip op. at 13-14 (citing Diez, 834 S.W.2d at 253). The December 15
Press Statement referred to the fact that the City’s budget information was only stored
on a single computer with no back up, that an alderman was illegally on the City’s
insurance policy, that Hammer applied for loans on behalf of the City without first
consulting Mayor Schneider or the Board, and that Hammer acted outside his
authority to award contract bids in cases where there was only one bidder or to a party
with the second lowest bid. Slip op. at 13-14. Therefore, the district court held that
allegations contained in the December 15 Press Statement were privileged opinions
and not actionable. Id. Although Hammer maintains that the Press Statement did not
contain facts which would allow a reader to decide independently whether Hammer’s
alleged conduct was illegal, we agree with the district court and hold that as a matter
of law Mayor Schneider’s comments in the December 15 Press Statement were
privileged opinions protected by the First Amendment. See Pape, 918 S.W.2d at 381
16
The district court also held that Hammer’s defamation claim could be
dismissed because the City had not waived sovereign immunity. Slip op. at 14.
Hammer does not dispute this issue on appeal.
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(dismissing libel action for allegedly defamatory statements accusing plaintiff of
fraud, noting that “allegations of fraudulent or illegal conduct are conclusions about
the consequences that should attach to certain conduct, and as such they too are
[privileged] opinions”).
We also hold that the district court correctly granted summary judgment in
favor of Mayor Schneider on the defamation claim, even though the City’s motion
was the only summary judgment motion filed. A judgment entered by the court on
a libel claim may dispose of all counts against all parties if the resolution of one issue
in favor of one defendant necessarily resolves the same claims against the other
parties. See Ribaudo, 982 S.W.2d at 703 (upholding the dismissal of a libel claim
against all parties where only one party requested summary judgment and the
statement was found to be privileged). Because Hammer’s defamation claims against
both the City and Mayor Schneider were based on the December 15 Press Statement,
and the district court found that the statements at issue were not actionable as a matter
or law, it was proper for the district court to grant summary judgment in favor of
Mayor Schneider as well as the City.
V.
Finally, Hammer argues that the district court erred in denying his second
motion to amend his complaint to raise new claims of retaliation for whistleblowing
activities, in violation of state law, the First Amendment, and 42 U.S.C. § 1983.
Hammer argues that the district court should have granted his second motion for leave
to amend his complaint in response to the City’s newly pleaded defense of sovereign
immunity and that the district court erred in denying leave to amend without
explanation.
We review the district court’s decision to grant or deny leave to amend for
abuse of discretion. Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998)
(Bell) (citing Humphreys v. Roche Biomedical Labs., Inc., 990 F.2d 1078, 1081 (8th
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Cir. 1993)) (additional citations omitted). Leave to amend under Federal Rule of
Civil Procedure 15(a) “shall be freely given when justice so requires.” Fed. R. Civ.
P. 15(a). There is, however, no absolute right to amend a pleading. Becker v. Univ.
of Nebraska, 191 F.3d 904, 908 (8th Cir. 1999) (citing Williams v. Little Rock
Municipal Water Works, 21 F.3d 218, 224 (8th Cir. 1994) (Williams)). Leave should
be denied where there are compelling reasons “such as undue delay, bad faith, or
dilatory motive, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the non-moving party, or futility of the amendment.” Id.
at 907-08 (quoting Brown v. Wallace, 957 F.2d 564, 566 (8th Cir. 1992)).
Reviewing the record, we find that the district court did not abuse its discretion
in denying Hammer’s second motion for leave to amend his complaint. Hammer did
not plead, or even mention, the First Amendment in his original complaint or his
amended complaint; nor were his First Amendment claims reasonably related to the
pleaded allegations such that Defendants would have been placed on notice that
Hammer was pursuing such a claim. See Bell, 160 F.3d at 454 (“[W]hen late
tendered amendments involve new theories of recovery and impose additional
discovery requirements, courts are less likely to find an abuse of discretion due to the
prejudice involved.”) (citing Dover Elevator Co. v. Arkansas State Univ., 64 F.3d
442, 448 (8th Cir. 1995)). Morever, Hammer filed his second motion to amend nearly
fifteen months after the filing of his original complaint. The district court had already
granted leave to amend once, and the second motion for leave to amend was filed
after discovery had closed and the City had moved for summary judgment on the
pleaded theories. Therefore, the district court had adequate reasons to deny
Hammer’s motion. See id. (upholding district court’s denial of a motion to amend
where the issues raised by the proposed amendment involved different legal and
factual issues from those in the original complaint); Williams, 21 F.3d at 224-25(holding no abuse of discretion in denying motion to amend where plaintiff filed
motion to amend fourteen months after filing of original complaint and six days after
the discovery period ended).
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CONCLUSION
Accordingly, the judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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