Opinion
3:18-cv-00102
2020-03-31
Adam OLSON and, Jennifer Olson, Plaintiffs, v. CITY OF NORTH LIBERTY, Diane Venenga, individually, Christopher Shine, individually, and Tyson Landsgard, individually, Defendants.
Benjamin Granfield Arato, Steven P. Wandro, Wandro & Associates, P.C. Des Moines, IA, for Plaintiffs. Terry J. Abernathy, Bradley J. Kaspar, Pickens Barnes & Abernathy, Cedar Rapids, IA, for Defendants.
Benjamin Granfield Arato, Steven P. Wandro, Wandro & Associates, P.C. Des Moines, IA, for Plaintiffs.
Terry J. Abernathy, Bradley J. Kaspar, Pickens Barnes & Abernathy, Cedar Rapids, IA, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION TO AMEND
ROBERT W. PRATT, Judge U.S. DISTRICT COURT
Before the Court is the Motion for Summary Judgement filed on September 13, 2019, by Defendants Diane Venenga, Christopher Shine, and Tyson Landsgard, all in their individual capacities, as well as the City of North Liberty ECF No. 26. Plaintiffs Adam Olson and Jennifer Olson, his wife, filed their resistance to Defendants' motion on October 11. ECF No. 31. Defendants replied on October 18. ECF No. 32. Plaintiffs moved to amend on January 29, 2020. ECF No. 43. Defendants filed their resistance to Plaintiffs' motion on February 6. ECF No. 47. The Court held oral argument for both motions on February 7. See ECF No. 49. The matters are fully submitted.
I. FACTUAL AND PROCEDURAL BACKGROUND
Adam Olson (Olson) worked in the small, suburban police force of North Liberty, Iowa, for fifteen years. ECF No. 26-3 at 3; ECF No. 32-1 ¶ 6. In 2013 he was shot in the line of duty. ECF No. 31 at 18. As would be revealed years later, this led to a diagnosis of post-traumatic stress disorder (PTSD). See id. In 2017, Olson, then a sergeant, did not get along with his supervisor, Defendant Tyson Landsgard, a lieutenant. ECF No. 26-3 at 4. Landsgard's grievances were performance-related, mostly. See id. In February 2018, the North Liberty Police Department issued Olson a written reprimand for releasing an injured suspect to a hospital despite an outstanding warrant from a nearby jurisdiction. Id. at 8. Olson challenged the reprimand. Id. at 10.
Heads butted again that month following Olson's less-than-stellar annual performance review. See ECF No. 31-1 ¶¶ 6–7. Landsgard said Olson needed to better supervise his subordinates, write more tickets, make more arrests, produce more internal reports, hold more training events, better plan special events (such as "shop with a cop"), report his location more often, and avoid his "slump[s]." ECF No. 26-3 at 13–14. In sum, Landsgard wrote that "[this] is a needs[-]improvement evaluation.... I expect a long[-]term[,] consistent change from Olson[,] and if there is not an improvement then a different option might have to be utilized." Id. at 15–16. Olson appealed the review after the City cited it in limiting his 2018 raise. Id. at 17. The City Administrator Ryan Heiar and Human Resources Director Deb Hilton affirmed. Id. at 17–18, 20. That summer, the Department also placed Olson on a performance recovery plan. ECF No. 31-1 ¶ 8. In a July conversation with Defendant Christopher Shine, another officer, Olson referred to Landsgard as "fearless leader" in frustration. ECF No. 28 at 4. Shine found the comment insubordinate and reported it to Landsgard, who gave Olson another written reprimand. Id. ; see also ECF No. 32-1 ¶¶ 13–14.
On July 14, 2018, Olson was involved in the traffic stop of a car that, reportedly, had a window shot out. ECF No. 26-3 at 25. Shine complained to Landsgard about Olson's conduct during the stop, prompting another investigation. Id. Meanwhile, the Department placed Olson on administrative leave. ECF No. 31-1 ¶ 11.
Landsgard concluded Olson (1) was slow to respond to the traffic stop, which Olson denied; (2) failed to use protective cover, which Olson denied; (3) failed to have his sidearm pulled to protect himself and others, which Olson admitted; (4) failed to pat down the suspects before handcuffing them, which Olson admitted; (5) failed to give the suspects Miranda warnings before questioning them, which Olson admitted; and (6) relayed incorrect information to other responding officers, which Olson denied. Id. ¶ 9.
On September 12, the Department sent Olson and his attorney notice of a September 13 due process hearing "concerning his numerous performance deficiencies and potential termination of his employment." Id. ¶ 13. Then things became complicated.
Shine called Landsgard. ECF No. 28 at 8. He said he wanted to alert him of concerning information regarding Olson before the hearing. Id. Shine said that his wife, Tiffany Shine, told him that Jennifer told her that Olson "had been acting differently than what [Shine] had ever known him to." Id. Shine said he heard Olson "had pretty much shut down and wouldn't speak to anyone." Id. He heard there were family disputes, that Olson had stopped talking to Jennifer, and that Olson "was currently on medication[,] which[,] from what I was told[,] treated symptoms of persons not being in touch with reality." Id. He also said that twice that week Olson had driven by his house, which was common, but did not acknowledge Shine, which was not. Id. Shine said he wanted Landsgard to know about all of this for safety during the meeting. Id.
Shine did not know what that medication was, if any. ECF No. 32-1 ¶ 24.
"[Landsgard] asked if ... [Shine] thought Sgt. Olson would do anything stupid[,] and Sgt. Shine said he did not know. [Landsgard] asked if [he] should have [his] vest on [the next day,] and [Shine] said, ‘Yes[.’]" ECF No. 32-1 ¶ 34. At the same time, Shine testified that he "never said anything as far as that ... [Olson] posed a physical threat to anyone." Id. ¶ 20.
Landsgard then called the chief, Defendant Diane Venenga. ECF No. 32-1 ¶ 27. Landsgard repeated what Shine told him, id. , and said "[Landsgard] and the Chief needed to take safety precautions prior to the hearing." Id. ¶ 28. Citing Shine, Landsgard also said Olson had "gone off the deep end" and was experiencing "a loss of reality." Id. ¶ 30; ECF No. 28 at 16. Landsgard had not seen Olson for more than a month. ECF No. 32-1 ¶ 35.
Venenga then called Shine. Id. ¶ 29. Shine said he was concerned for "everyone's safety," including Olson's. Id. Venenga said she then called the nearby Marengo police department from her cell phone to ask an officer to drive by the Olson residence. ECF No. 28 at 16. Her cell phone records show no call to the publicly listed phone number for the Marengo department on September 12. ECF No. 32-1 ¶ 43–44.
Venenga then called Heiar, the city administrator. Id. ¶ 47. Venenga said some of Olson's reported actions caused her concern and said that she heard that Shine and Landsgard heard that they caused Jennifer concern, too. ECF No. 28 at 87–88. She then asked whether she should still hold Olson's due process hearing at City Hall, as planned. Id. at 88. Heiar argued she should not, and the two discussed holding the hearing over a Skype video call. Id. Heiar then called the City's director of human resources, its attorney, and mayor. Id.
The next day, the city attorney e-mailed Olson's attorney. ECF No. 32-1 ¶ 52. The city attorney outlined the story that had relayed through Shine, Landsgard, Venenga, and the City's officials. Id. This story raised safety concerns, the city attorney said, and the due process hearing would be held over a video call instead of in-person. Id. Nothing else was expected to change, the attorney said, and Olson was barred from the City's property until further notice. Id.
Landsgard was upset the city attorney shared so much information with Olson. Id. ¶ 53. That day, Landsgard received an irate all from Tiffany Shine. Id. ¶ 50. She urged Landsgard to take "[her] name" out of his mouth, using an expletive for emphasis; accused him of spreading hearsay; and insisted she did not want to be involved in the Olson affair. Id. Landsgard did not take this to mean that anything he told Venenga was inaccurate. Id. ¶ 51. Meanwhile, Christopher Shine felt "sick" about the affair. Id. ¶ 54. He also felt his original report to Landsgard had been "twisted." Id. ¶ 65.
The tele-hearing was short. See ECF No. 26-3 at 71. Olson spent five minutes giving his side of the story on the long-simmering performance issues. Id. Then the City asked about the mental health concerns. Id. at 9:13. They gave him the option to respond during the hearing or to follow up in writing. Id. at 9:42. Either way, they wanted "to have Sergeant Olson's side of the story so that we are able to make a decision based on that." Id. at 10:20. Olson and his attorney agreed to discuss some of the new accusations during the hearing and to discuss others in a follow-up e-mail. Id. at 11:00; ECF No. 32-1 ¶ 57. The City fired Olson on September 20, 2018. ECF No. 31-1 ¶ 19. The termination letter cited the ongoing performance issues as the reason for termination. ECF No. 26-3 at 72–73. It made no mention of mental health concerns.
In a text message sent after the due process hearing, Venenga questioned the credibility of the "wives club," although it is unclear to what exactly she referred. See ECF No. 32-1 ¶ 61. Regardless, at least one city official still believed the allegations regarding Olson's mental health. Id. ¶ 60. Furthermore, Heiar testified the new allegations would have been relevant if he considered overriding Venenga's decision to fire Olson. Id. ¶ 59.
Olson then applied for disability benefits. ECF No. 31-1 ¶ 21. He cited a PTSD diagnosis and certified a "total and permanent incapacity for duty" as a law enforcement officer. Id.
On October 5, 2018, Plaintiffs filed a state court action alleging (1) defamation, (2) abuse of process, (3) civil conspiracy, (4) due process violations under the Iowa constitution, and (5) a civil conspiracy under 42 U.S.C. § 1983. ECF No. 1. Defendants removed the case to this Court. Id. Following Defendants' Motion for Summary Judgment, Plaintiffs moved to withdraw their abuse-of-process claim. ECF No. 31 at 7.
II. SUMMARY JUDGMENT STANDARD
"[S]ummary judgment is an extreme remedy, and one which is not to be granted unless the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances." Robert Johnson Grain Co. v. Chem. Interchange Co. , 541 F.2d 207, 209 (8th Cir. 1976). The purpose of summary judgment is not "to cut litigants off from their right of trial by jury if they really have issues to try." Poller v. Columbia Broad. Sys., Inc. , 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (citation omitted). Rather, it is designed to avoid "useless, expensive and time-consuming trials where there is actually no genuine, factual issue remaining to be tried." Anderson v. Viking Pump Div., Houdaille Indus., Inc. , 545 F.2d 1127, 1129 (8th Cir. 1976).
Federal Rule of Civil Procedure 56(a) provides, "A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought." Summary judgment is proper when the record, viewed in the light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences, shows there is no genuine issue of material fact and the moving party is therefore entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a) ; Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Harlston v. McDonnell Douglas Corp. , 37 F.3d 379, 382 (8th Cir. 1994). A disputed issue is "genuine" when the evidence produced "is such that a reasonable jury could return a verdict for the nonmoving party." See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is considered "material" if it "might affect the outcome of the suit under the governing law." See id. "[T]he substantive law will identify which facts are material .... Factual disputes that are irrelevant or unnecessary will not be counted." Id.
"In considering a motion for summary judgment the court does not weigh the evidence, make credibility determinations, or attempt to discern the truth of any factual issue." Great Plains Real Estate Dev., L.L.C. v. Union Cent. Life Ins. Co. , 536 F.3d 939, 944 (8th Cir. 2008) (quoting Morris v. City of Chillicothe , 512 F.3d 1013, 1018 (8th Cir. 2008) ). Rather, the court only determines whether there are any disputed issues concerning the existence of material facts and, if so, whether those disputes are genuine. See Anderson , 477 U.S. at 251–52, 106 S.Ct. 2505 ; see also Wilson v. Myers , 823 F.2d 253, 256 (8th Cir. 1987) ("Summary judgment is not designed to weed out dubious claims, but to eliminate those claims with no basis in material fact."). Summary judgment is appropriately entered against a party who has failed to make a showing sufficient to establish a genuine dispute as to the existence of an element essential to its case and upon which the party will bear the burden of proof at trial. See Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
When a summary judgment motion is filed, the moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact based on the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any. See id. at 323, 106 S.Ct. 2548 ; Anderson , 477 U.S. at 248, 106 S.Ct. 2505. If the moving party has carried its burden, the nonmoving party must then go beyond its original pleadings and designate specific facts showing that there remains a genuine issue of material fact that needs to be resolved by a trial. See Fed. R. Civ. P. 56(c). This additional showing can be by affidavits, depositions, answers to interrogatories, or admissions in the record. Id. ; Celotex , 477 U.S. at 322–23, 106 S.Ct. 2548 ; Anderson , 477 U.S. at 257, 106 S.Ct. 2505. "[T]he mere existence of some alleged factual dispute between the parties will not defeat a motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson , 477 U.S. at 247–48, 106 S.Ct. 2505. Indeed, "[t]o survive a motion for summary judgment, the nonmoving party must substantiate his allegations with sufficient probative evidence [that] would permit a finding in [his] favor based on more than mere speculation, conjecture, or fantasy." Barber v. C1 Truck Driver Training, LLC , 656 F.3d 782, 801 (8th Cir. 2011) (second and third alterations in original) (quoting Putman v. Unity Health Sys. , 348 F.3d 732, 733–34 (8th Cir. 2003) ). Mere "self-serving allegations and denials are insufficient to create a genuine issue of material fact." Anuforo v. Comm'r , 614 F.3d 799, 807 (8th Cir. 2010) (emphasis added).
A summary judgment motion does not authorize courts to conduct a paper trial. Rather, a "district court's role in deciding the motion is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe." Waldridge v. Am. Hoechst Corp. , 24 F.3d 918, 920 (7th Cir. 1994). In considering a motion for summary judgment, the court's task is merely to decide, based on the evidentiary record that accompanies the filings of the parties, whether there really is any genuine issue concerning a material fact that still requires a trial. See id. (citing Anderson , 477 U.S. at 249, 106 S.Ct. 2505 and 10 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2712 (3d ed. 1998)); see also Fed. R. Civ. P. 56(c)(3).
III. ANALYSIS
A. Defamation
Plaintiffs' anchor claim—under all the allegations about due process, conspiracies, and federal civil rights law—is defamation. Defamation can either be written (libel) or spoken (slander). Huegerich v. IBP, Inc. , 547 N.W.2d 216, 221 (Iowa 1996). "The gist of an action for libel or slander is the publication of written or oral statements which tend to injure a person's reputation and good name." Lara v. Thomas , 512 N.W.2d 777, 785 (Iowa 1994). "Generally, the statements must be false and demonstrably about the person claiming to be defamed." Huegerich , 547 N.W.2d at 221 (citing Restatement (Second) of Torts § 558 (Am. Law. Inst. 1977) ).
Because this case involves slander, see Restatement (Second) of Torts § 568, Plaintiffs must show Defendants (1) published—i.e. , spoke, (2) defamatory words, (3) that were false, (4) about them, (5) that caused damages. Defendants do not challenge that their statements were about Olson. See ECF No. 26-1 at 5–11 (challenging Plaintiffs defamation claims on various grounds). Defendants do challenge, however, whether the statements were published, privileged, false, about Jennifer, or damaging. The Court takes each defense in turn.
1. Publication
Publication means communication to one or more third persons. Huegerich , 547 N.W.2d at 221 (citing Belcher v. Little , 315 N.W.2d 734, 737 (Iowa 1982) ). Although the Iowa Supreme Court has not yet addressed the matter, the Iowa Court of Appeals has held that repeating slander to coworkers can constitute publication. Newell v. JDS Holdings, L.L.C. , 834 N.W.2d 463, 472 (Iowa Ct. App. 2013). "An employer ... may be held liable for defamation by an employee if the defamatory statement was published while the employee was acting within the scope of his or her employment." Huegerich , 547 N.W.2d at 221 (citing Vowles v. Yakish , 191 Iowa 368, 179 N.W. 117, 119 (1920) ).
"Intermediate state court decisions should not be disregarded ‘unless [the court is] convinced by other persuasive data that the highest state court would decide [the issue] otherwise.’ " United Fire & Cas. Ins. Co. v. Garvey , 328 F.3d 411, 413 (8th Cir. 2003) (second alteration in original) (citing Comm'r v. Estate of Bosch , 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967) ).
Here, Defendants do not dispute that each Defendant told another third party that Olson had "lost it" or was taking medication for people out of touch with reality. See ECF No. 26-1 at 9–10; see also ECF No. 32-1 ¶¶ 23–29; ECF No. 28 at 87. Rather, they only dispute that intra-organizational communication constitutes publication. Id. at 10. The Court follows the Iowa Court of Appeals' lead and concludes otherwise. Furthermore, the City, as each individual Defendant's employer, may be liable because "the defamatory statement[s] w[ere] published while the employee[s] w[ere] acting within the scope of his or her employment." Huegerich , 547 N.W.2d at 221. The record thus supports publication.
2. Privilege
Even so, a qualified privilege applies to publication between employees of the same organization. Newell , 834 N.W.2d at 472. Iowa requires a defendant who claims a qualified privilege to prove "(1) the statement was made in good faith, (2) the defendant had an interest to uphold, (3) the scope of the statement was limited to the identified interest, and (4) the statement was published on a proper occasion, in a proper manner, and to proper parties only." Theisen v. Covenant Med. Ctr., Inc. , 636 N.W.2d 74, 84 (Iowa 2001) (citing Thompto v. Coborn's Inc. , 871 F. Supp. 1097, 1126 (N.D. Iowa 1994) ). A defendant who abuses the privilege forfeits it. Barreca v. Nickolas , 683 N.W.2d 111, 117 (Iowa 2004). Publication with actual malice constitutes such abuse. Id. at 118. Actual malice requires a plaintiff show "the defendant published the statement with a knowing or reckless disregard of its truth." Id. at 123. "[A] failure to investigate, standing alone, ordinarily will not establish a knowing or reckless disregard for the truth." Id. However, simply repeating "an anonymous and uncorroborated tip," may. Id. "[T]he question of whether a qualified privilege is abused is ordinarily a matter for the jury ...." Id. at 119.
Defendants' argument that an absolute privilege shields the statements of law enforcement officers is misguided. Defendants point to two out-of-state cases to argue that citizen complaints to police departments about officer behavior are absolutely privileged. ECF No. 26-1 at 7 (citing Lewis v. Benson , 101 Nev. 300, 701 P.2d 751, 752 (1985) ; Campo v. Rega , 79 A.D.2d 626, 433 N.Y.S.2d 630, 630 (1980) ). First, there is a world of difference between encouraging civilian oversight of the officers who police them and allowing public employees to slander each other at will. Second, whatever the merits of extending an absolute privilege to the case at bar, the Court is not persuaded that the Iowa Supreme Court would do so. See Mills v. Denny , 245 Iowa 584, 63 N.W.2d 222, 227 (1954) (holding a qualified, not absolute, privilege applies to city council discussions).
In Barreca , an alderman repeated an anonymous tip that a local night club held sexually charged contests for teenagers. Id. at 114–15. The alderman did not contact the club's owner before publication. Id. at 115. The Iowa Supreme Court held summary judgment for the alderman was inappropriate because he based his accusation "wholly on an unverified anonymous telephone call ." Id. at 123 (quoting St. Amant v. Thompson , 390 U.S. 727, 732, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968) ). The record also contained evidence the alderman "entertained serious doubts about the truth of the phone call." Id.
Here, a jury must resolve whether Defendants abused their qualified privilege because they based their accusations on vague, unverified gossip that they had reason to doubt. First, Defendants accusations hinged on Shine's interpretation of his own wife's description of Jennifer's alleged comments. ECF No. 32-1 ¶¶ 25, 35–36, 48. Second, Defendants made zero effort to verify Tiffany Shine's alleged statements. See id. ¶¶ 32, 39–40, 58. Meanwhile, these rumors were at odds with Olson's normal behavior. E.g. , id. ¶ 16. In other words, a jury could find Defendants based their accusations "wholly on an unverified ... telephone call " based on a named but highly questionable source. Barreca , 683 N.W.2d at 123.
The record also contains facts suggesting Defendants had doubts regarding the truth of the rumors and thus acted recklessly. Although these inferences are not air-tight, they are sufficient for the summary-judgment stage. For instance, a juror could conclude that Shine's feeling "sick" about the fallout from his comments suggests either (1) he had reason to doubt their veracity or (2) he stood by his statement but simply felt bad for his friend. See ECF No. 32-1 ¶ 54. Furthermore, Shine's comment that his original report to Landsgard was "twisted" raises questions as to whether Landsgard embellished Shine's statement with knowing or reckless disregard for the truth. Id. ¶ 65; see also id. ¶ 20. Finally, Venenga later said in a text message that she "cannot give credibility to the wives club." ECF No. 28 at 40. Although the parties dispute as to what precisely Venenga was referring, a juror could find it shows some doubt in Tiffany Shine's or Jennifer's propensity to tell the truth. In sum, the record contains enough evidence of "doubts about the truth of the phone call[s]" to support a finding of actual malice. Barreca , 683 N.W.2d at 123.
To be sure, a mentally unstable officer can present a public safety risk. But given some of Defendants' past tensions with Olson, see, e.g. , ECF No. 32-1 ¶¶ 13–14, the speciousness of Shine's concerns, see ECF No. 32-1 ¶ 22, and the fact Defendants here did not have to "make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving," Graham v. Connor , 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), a reasonable juror could well conclude Defendants' behavior toward Olson was at least reckless. In sum, the record contains evidence supporting both sides as to whether Defendants abused their qualified privilege. Thus, the matter is for the jury to decide, as Iowa courts prefer.
Defendants did not plead qualified privilege in their Answer. See Kent v. Iowa , 651 F. Supp. 2d 910, 965 (S.D. Iowa 2009) (quoting Vinson , 360 N.W.2d at 116 ) ("Qualified privilege is an affirmative defense which must be pleaded and proved."). Although the failure to plead an affirmative defense generally constitutes waiver under Federal Rule of Civil Procedure 8(c), "when an affirmative defense is raised in the trial court in a manner that does not result in unfair surprise, technical failure to comply with Rule 8(c) is not fatal." Sherman v. Winco Fireworks, Inc. , 532 F.3d 709, 715 (8th Cir. 2008) (quoting First Union Nat'l Bank v. Pictet Overseas Trust Corp. , 477 F.3d 616, 622 (8th Cir. 2007) ). The Court follows that rationale here. Plaintiffs were on notice that Defendants planned to use some privilege-based defense when Defendants raised "official government proceeding." ECF No. 3 at 6. See also Barreca , 683 N.W.2d at 118 (discussing official proceeding defense).
3. Truth
"[T]ruth is a complete defense to a defamation action ...." Hovey v. Iowa State Daily Publ'n Bd., Inc. , 372 N.W.2d 253, 255 (Iowa 1985). Iowa does not require defendants prove literal truth, only "substantial truth." Behr v. Meredith Corp. , 414 N.W.2d 339, 342 (Iowa 1987). This means that the defendant need not show the truth of each detail "as long as the ‘sting’ or ‘gist’ of the defamatory charge is substantially true." Id. (citing Hovey , 372 N.W.2d at 255 ). At the summary-judgment stage, a court must ask "whether the plaintiff would have been exposed to any more opprobrium had the publication been free of error." Id.
It thus is substantially true to say a mayor wasted $80,000 of taxpayer money when it was indisputably proven that he wasted $17,500 because there was "no more opprobrium" attached to wasting the greater amount. Fort Worth Press Co. v. Davis , 96 S.W.2d 416, 419 (Tex. Civ. App. 1936), cited with approval in Behr , 414 N.W.2d at 342. The Iowa Supreme Court has cited several other examples of substantial truth with approval:
Fendler v. Phoenix Newspapers Inc. , 130 Ariz. 475, 636 P.2d 1257, 1262 (Ariz. Ct. App.1981) (defendant printed that plaintiff was "doing four-to-five years in prison" when in fact he was free pending appeal); Sivulich v. Howard Publications, Inc. , 126 Ill.App.3d 129, 81 Ill.Dec. 416, 466 N.E.2d 1218, 1219–20 (1984) (defendant printed that plaintiff was "charged" with battery; in truth, plaintiff had been civilly sued for same act); Hovey , 372 N.W.2d at 254–55 (defendant printed that plaintiff-victim had been raped; actually, she had been forced to commit an oral sex act and no genital sexual intercourse had occurred); Bill Partin Jewelry, Inc. v. Smith , 467 So.2d 188, 189 (La. Ct. App. 1985) (defendants broadcast an allegation that plaintiff had participated in burglary; actually, plaintiff had been accused only of receiving burglarized property); Bosley v. Hebert , 385 So.2d 430, 431 (La. Ct. App. 1980) (plaintiff actually arrested for theft of washing machine but reported as having been arrested for theft by issuing worthless checks); Hamilton v. Lake Charles Am. Press, Inc. , 372 So.2d 239, 240–41 (La. Ct. App.), writ denied , 375 So.2d 943 (La. 1979) (defendant printed that
plaintiff was disbarred and convicted for faking automobile accidents to defraud insurance companies; actually, plaintiff's disbarment had been stayed pending appeals, and his conviction had been for conspiracy to commit mail fraud dealing with faked accidents); Rosen v. Capitol [Capital] City Press , 314 So.2d 511, 512 (La. Ct. App. 1975) (defendant reported plaintiff-doctor was indicted for distributing narcotics; instead, he had been indicted for illegally distributing stimulants).
Behr , 414 N.W.2d at 343–44. "If the underlying facts as to the gist or sting of the defamatory charge are undisputed, the court may determine substantial truth as a matter of law." Id. at 342. In other words, if the parties only dispute the level of social sting or "opprobrium," not what was said or what was literally true, the question is for the Court. Id.
Here, truth offers Defendants no defense for two reasons. First, with respect to literal truth, Defendants have not established what medication, if any, Olson was taking. See ECF No. 32-1 ¶ 24. At oral argument, Defendants' counsel still could not resolve this issue. This means "the underlying facts as to the gist or sting of the defamatory charge" remain disputed and the question is not one for the Court. Behr , 414 N.W.2d at 342.
The Court withholds judgment on Plaintiff's Motion in Limine to exclude "[t]estimony or argument that plaintiff Olson's prescription medication is evidence in support of defendants' affirmative defense of truth" and "[t]estimony or argument that plaintiff Olson's PTSD diagnosis is evidence in support of defendants' affirmative defense of truth." ECF No. 37.
Second, even assuming Olson was taking medication for PTSD, Defendants' substantial truth defense would fail. This is so because there is a big difference—both in fact and in social perception—between a police officer suffering from PTSD after being shot in the line of duty and simply going "off the deep end" or being "out of touch with reality." Indeed, Heiar, said Defendants' description of Olson's mental health would have been relevant if he considered overriding Venenga's decision to fire Olson. ECF No. 28 at 90. But at oral argument, Defendants' counsel conceded the City would not do the same for any officer taking medication for PTSD. In other words, Defendants' description of Olson's mental health and the literal truth are not the same. Their substantial truth argument thus fails.
Nor need Olson show "clear and convincing evidence" of actual malice, as he is not a public figure. See Kiesau v. Bantz , 686 N.W.2d 164, 178 (Iowa 2004), overruled on other grounds by Alcala v. Marriott Int'l, Inc. , 880 N.W.2d 699 (Iowa 2016) (holding a low-ranking deputy sheriff is not a public figure).
4. Regarding Plaintiffs
Slander requires "the statements must be ... demonstrably about the person claiming to be defamed." Huegerich , 547 N.W.2d at 221. "[T]his element only requires that a third-party recipient be able to understand who is the intended subject." Bierman v. Weier , 826 N.W.2d 436, 464 (Iowa 2013). In some cases, a false claim that a plaintiff said something can constitute defamation. See Kent v. Iowa , 651 F. Supp. 2d 910, 964 (S.D. Iowa 2009) (holding allegations that one engaged in verbal sexual harassment may constitute slander).
Here, Defendants do not dispute their statements were about Olson. They do, however, challenge whether any of their statements were "about" Jennifer. None of Defendants' statements—that Olson had "lost it" or that Olson was taking medication for people "out of touch with reality" involve Jennifer. Citing this Court's Kent decision, Plaintiffs argue Defendants defamed Jennifer, too, by falsely claiming she started the game of suburban telephone regarding her husband's mental health. Plaintiffs are right that Defendants' statements literally were about Jennifer. Although, as discussed below, it proves too much to say these statements defamed her.
5. Damages
"At common law, slander was generally not actionable unless the plaintiff proved actual damage." Barreca , 683 N.W.2d at 116 (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 112, at 788 (5th ed. 1984)). Iowa, however, presumes damages—as well as falsity and malice—in slander per se cases. Vinson v. Linn-Mar Cmty. Sch. Dist. , 360 N.W.2d 108, 116 (Iowa 1984). Slander per se occurs when the words uttered "are of such a nature, whether true or not, that the court can presume as a matter of law that their publication will have [slanderous] effect," id. (citing Haas v. Evening Democrat Co. , 252 Iowa 517, 107 N.W.2d 444, 447 (1961) ), i.e. , "tending to injure the reputation of another person or to expose [the person] to public hatred, contempt, or ridicule or to injure [the person] in the maintenance of [the person's] business," id. at 115 (alterations in original) (quoting Plendl v. Beuttler , 253 Iowa 259, 111 N.W.2d 669, 670–71 (1961) ).
Iowa courts have held "loathsome disease" and "incompetence in occupation" constitute slander per se. Id. And in the context of libel, slander's near-identical sibling, "stating a person has been molested by their father and suffers from bipolar disorder constitutes libel per se under Iowa law." Bierman , 826 N.W.2d at 464 (emphasis added). "[T]he imputation of certain physical and mental attributes such as disease or insanity are defamatory because they tend to deter third persons from associating with the person so characterized." Restatement (Second) of Torts § 559 (emphasis added). Iowa largely follows the Second Restatement on defamation. See Barreca , 683 N.W.2d at 116 ; Lara , 512 N.W.2d at 785 ; Bierman , 826 N.W.2d at 464 ; Vinson , 360 N.W.2d at 120. When the language is unambiguous, whether an utterance was slander per se is a decision for the court. Vinson , 360 N.W.2d 108, 116 (Iowa 1984) (citing Berger v. Freeman Tribune Publishing Co. , 132 Iowa 290, 109 N.W. 784, 786 (1906) ). When the utterance can sustain two meanings, the jury decides which meaning the defendant conveyed. Id.
Barring slander per se, the plaintiff must prove falsity, malice, and damages to recover. Vinson , 360 N.W.2d at 115–16 (quoting Vojak v. Jensen , 161 N.W.2d 100, 104 (Iowa 1968) ). There must be a "cognizable injury, such as injury to reputation." Johnson v. Nickerson , 542 N.W.2d 506, 513 (Iowa 1996). Hurt feelings or mere falsity do not suffice. Id.
a. Adam Olson
Defendants' comments that Olson had "lost it" and was taking medication for those out of touch with reality constituted slander per se. This is so because they suggested insanity, deterred others from associating with him, and suggested "incompetence in occupation." Barreca , 683 N.W.2d at 116. Defendants and other city officials admit that their statements regarding Olson caused them to hold his due process hearing over Skype and to otherwise keep him out of city buildings to protect employees. See ECF No. 32-1 ¶ 52. In other words, Defendants' statements about Olson caused the "imputation of certain ... mental attributes such as disease or insanity" and "deter[red] third persons from associating with the person so characterized." Restatement (Second) of Torts § 559.
b. Jennifer Olson
By contrast, Jennifer's defamation claim fails because she makes no showing that Defendants injured her reputation. First, Jennifer cannot plead slander per se because it is not obvious how alleging she discussed her husband's mental health harmed her reputation, reduced her ability to earn a living, or deterred others from associating with her. Nor do Plaintiffs point to any case law in which a court held being accused of gossip constitutes slander per se. Therefore, Jennifer must prove damages, a bar she does not even attempt to clear. See ECF No. 31 at 20. She merely argues that Defendants' statements were false—a claim supported only by her own deposition. Id. ; see also ECF No. 32-1 ¶ 68. That is insufficient.
There remains a separate issue that the only basis for Jennifer's claim that Defendants' statements were false is her own deposition. See ECF No. 32-1 ¶ 68. Although the Court need not resolve the matter because damages are lacking, "self-serving allegations and denials are insufficient to create a genuine issue of material fact." Anuforo v. Comm'r , 614 F.3d 799, 807 (8th Cir. 2010).
In sum, summary judgment is inappropriate for Olson's defamation claim because there remain material factual disputes under Iowa law. By contrast, summary judgment is appropriate for Jennifer's defamation claim because the record lacks evidence that she suffered damages.
B. Civil Conspiracy
"Civil conspiracy is not in itself actionable ...." Basic Chemicals, Inc. v. Benson , 251 N.W.2d 220, 233 (Iowa 1977) (citing Shannon v. Gaar , 233 Iowa 38, 6 N.W.2d 304, 308 (1942) ). Rather, it allows recovery when multiple actors work in concert to cause a tort. See id. ; Iowa Civ. Jury Instr. § 3500.1 (Iowa State Bar Ass'n 2018). Here, Plaintiffs allege Defendants conspired to defame them. Thus, the analysis goes no further for Jennifer as her defamation claims fail. Olson, by contrast, clears this first hurdle because his defamation claims remain submissible.
"The principal element of a conspiracy is an agreement or understanding to commit a wrong against another." Adam v. Mt. Pleasant Bank & Tr. Co. , 387 N.W.2d 771, 773 (Iowa 1986). "It involves some mutual mental action coupled with an intent to commit the act which results in injury." Basic Chemicals, Inc. , 251 N.W.2d at 233 (emphasis added) (citing Neff v. World Publ'g Co. , 349 F.2d 235, 257 (8th Cir. 1965) ). This means there must be an agreement, and "[i]n order for there to be an agreement ..., there must be knowledge of that purpose by the alleged conspirator." Tubbs v. United Cent. Bank, N.A. , 451 N.W.2d 177, 184 (Iowa 1990). By contrast, "[m]erely because two or more persons associate with each other, or meet to discuss common interests or goals does not, by itself, establish a conspiracy." Iowa Civ. Jury Instr. § 3500.2; see also id. § 3500.3.
In Nelson v. McMillan , for instance, a horse breeder alleged several of its rivals collectively injured its employees' "character and standing as men of integrity and reliable breeders and dealers." 176 Iowa 561, 156 N.W. 327, 331 (1916). The Iowa Supreme Court held the evidence was insufficient to sustain a conspiracy to defame because it only demonstrated "enemies who were active and bitter and were watchfully waiting an opportunity to press their charges against the business integrity of the defendants." Id. By contrast, the evidence did not establish any intentional "combination to promote that purpose." Id.
So too here. Even accepting the evidence can support several defamation claims, it does not show any "agreement" or "mutual mental action coupled with an intent to commit" that defamation. Basic Chemicals, Inc. , 251 N.W.2d at 233. This is so because, to the extent Defendants defamed Plaintiff, they did so through a reckless—rather than intentional—disregard for the truth. This necessarily means there was no "knowledge of that purpose" to defame. Tubbs , 451 N.W.2d at 184.
Olson points to evidence that Defendants texted and spoke with each other regarding his mental health. Olson also notes that at least some Defendants appeared to not think very highly of him and sought reasons to fire him. But, at least on this record, such facts suggest "enemies who were active and bitter and were watchfully waiting an opportunity to press their charges against" Olson. Nelson , 156 N.W. at 331. On its own, that is insufficient. Thus, because the evidence would not "permit a finding in [Olson's] favor based on more than mere speculation," Defendants are entitled to summary judgement on civil conspiracy. Barber , 656 F.3d at 801.
C. Due Process Under the Iowa Constitution
Olson also claims Defendants violated his substantive and procedural due process rights under the Iowa Constitution. Iowa's constitution provides that "no person shall be deprived of life, liberty, or property, without due process of law." Iowa const. art. I, § IX. This language mimics the 14th Amendment's provision that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1.
Iowa "zealously guard[s] [its] ability" to interpret its constitutional provisions differently from their federal analogues. State v. Feregrino , 756 N.W.2d 700, 704 n.1 (Iowa 2008). However, when "an argument that the Iowa Constitution should be construed differently than the United States Constitution is not presented, [the Iowa Supreme Court] assume[s] for the purposes of the case that the provisions should be interpreted in an identical fashion." Id. Here, neither side argues the Court should construe Iowa's due process clause differently from the federal one. Thus, the Court will follow federal due process doctrine.
1. Substantive Due Process
"[S]ubstantive due process prevents the government from engaging in conduct that shocks the conscience or interferes with rights implicit in the concept of ordered liberty." Riley v. St. Louis Cty. , 153 F.3d 627, 630–31 (8th Cir. 1998) (alteration in original) (quoting United States v. Salerno , 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ). Courts also refer to this latter category as "fundamental rights and liberty interests," a small list of freedoms that does not include public employment. Washington v. Glucksberg , 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (citing Reno v. Flores , 507 U.S. 292, 301–02, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) ).
A substantive due process violation in the context of public employment termination thus must "shock[ ] the conscience." See Riley , 153 F.3d at 630. "In such a case, the plaintiff must ultimately allege that the government action complained of is ‘sufficiently outrageous’ or " ‘truly irrational," that is, "something more than ... arbitrary, capricious, or in violation of state law.’ " " Young v. City of St. Charles , 244 F.3d 623, 628 (8th Cir. 2001) (first quoting Riley , 153 F.3d at 631 ; and then quoting Weiler v. Purkett , 137 F.3d 1047, 1051 (8th Cir.1998) (en banc) (alteration in original)), as corrected (May 1, 2001).
Olson does not clear this bar. Although one could critique Defendants' handling of Olson's termination, their actions do not "shock the conscience" or seem "outrageous." Young , 244 F.3d at 628. Municipalities certainly can—and sometimes must—fire employees for performance problems. Furthermore, it is not "truly irrational" for police officers to take interest in the mental health of their armed colleagues, even if one hopes they do so more tactfully than Defendants did here. Id. Olson's substantive due process claim thus fails.
2. Procedural Due Process
"Procedural due process claims require a two-step analysis." Krentz v. Robertson , 228 F.3d 897, 902 (8th Cir. 2000). First, a plaintiff must show he had "some ‘life, liberty, or property’ interest." Id. Second, "the plaintiff must then establish that the state deprived him of that interest without sufficient ‘process.’ " Id. Here, Olson alleges he had both a liberty and a property interest. The Court assesses each in turn.
a. Liberty Interest
"An employee's liberty interests are implicated where the employer levels accusations at the employee that are so damaging as to make it difficult or impossible for the employee to escape the stigma of those charges." Winegar v. Des Moines Indep. Cmty. Sch. Dist. , 20 F.3d 895, 899 (8th Cir. 1994) (citing Shands v. Kennett , 993 F.2d 1337, 1347 (8th Cir.1993) ). Courts have found accusations of dishonesty, immorality, criminality, racism, child abuse, and mental illness all can cause such a stigma. See id. (collecting cases); Green v. St. Louis Hous. Auth. , 911 F.2d 65, 69 (8th Cir. 1990) (quoting Harrison v. Bowen , 815 F.2d 1505, 1518 (D.C. Cir. 1987) ). However, the defendant must publish the accusations. Hogue v. Clinton , 791 F.2d 1318, 1322 (8th Cir. 1986). Publicizing the accusations to prospective employers can qualify as publication, while providing it to other public officials does not. Id. at 1322 n.7.
Courts give publication a broader reach in defamation claims than due process claims. Compare Hogue , 791 F.2d at 1322 n.7 (showing publication in due process claims means made public), with Huegerich , 547 N.W.2d at 221 (showing publication in defamation claims means shared with another).
Here, Defendants did not infringe on Olson's liberty interest because the record lacks evidence they publicized his mental health information. Olson makes no allegation anyone outside of the City's government—except for his and Shine's spouses—learned of this debacle. To be sure, the record contains evidence other City employees who worked on personnel matters learned of the ordeal. See ECF No. 32-1 ¶¶ 59–60. But this is insufficient to show stigma because Defendants gave this information to city employees "in [their] capacity as ... public official[s]." Hogue , 791 F.2d at 1322 n.7. Defendants thus did not infringe on Olson's liberty interest.
b. Property Interest
Olson's final due-process argument is that Defendants unlawfully deprived him of a property interest in his job. This theory hinges on Olson having a "property interest in continued employment under state law." Bennett v. Watters , 260 F.3d 925, 927 (8th Cir. 2001) (citing Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) ). "A property interest arises from a ‘legitimate claim of entitlement’ to continuing employment." Id. (quoting Bd. of Regents v. Roth , 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) ). A legitimate claim of entitlement can arise from " ‘contractual or statutory limitations on the employer's ability to terminate an employee,’ such as a contractual right to be terminated only for cause." Id. (quoting Winegar , 20 F.3d at 899 ). "A property interest in employment can also be created by implied contract, arising out of customs, practices, and de facto policies." Winegar , 20 F.3d at 899 (citing Perry v. Sindermann , 408 U.S. 593, 601–02, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) ).
Here, the parties do not cite a provision of Iowa law or Olson's contract that states when the City could discharge Olson. Regardless, at oral argument Defendants' counsel conceded due process attached to Olson's job—meaning he must have had a property interest. But see ECF No. 26-1 at 16 (declining to concede the City had to hold a hearing before firing Olson). At the very least, North Liberty's extensive warnings, reviews, improvement plans, and notices before discharging Olson suggest an "implied contract [limiting the City's ability to terminate police officers], arising out of customs, practices, and de facto policies." Winegar , 20 F.3d at 899. Therefore, Olson had a property interest.
Although Iowa law provides restrictions on removing police officers, Iowa Code § 400.18, these restrictions only apply to cities that registered a population of at least 8000 in the 1980 U.S. Census, id. § 400.1. North Liberty did not clear this threshold. See ECF No. 48 at 5–6. Another statute provides procedural protections for all police officers facing internal investigations but does not explicitly restrict a city's ability to fire an officer. See Iowa Code § 80F.1. At oral argument, Olson's counsel said this statute—also known as the Officer Bill of Rights, ECF No. 26-3 at 11—required the City to give an officer notice of allegations twenty-four hours before a termination hearing. Such a provision would not, on its own, create a property interest. See Winegar , 20 F.3d at 899. Regardless, the statute lacks such a provision. § 80F.1.
When a public employee has a property interest in his job, due process requires "that, prior to termination, the employee be given oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity to respond." Riggins v. Bd. of Regents of Univ. of Neb. , 790 F.2d 707, 710 (8th Cir. 1986) (citing Loudermill , 470 U.S. at 545–46, 105 S.Ct. 1487 ). Although an opportunity to respond means " ‘some kind of a hearing’ is necessary, it need not be a formal one." Id. (quoting Loudermill , 470 U.S. at 542, 105 S.Ct. 1487 ). Even "informal meetings with supervisors have been found sufficient." Id. (collecting cases).
Riggins 's facts are particularly instructive. There, a University of Nebraska employee, with a history of work troubles, got into a dispute with two supervisors, who claimed she walked away from them. Id. at 708–09. They suspended the employee following an initial discussion. Id. at 709. Two days later, they held a one-hour-and-forty-minute meeting with the employee, up to ten minutes of which they spent discussing her prior work troubles. Id. This detour caught the employee by surprise. See id. at 711. One week later, the university sent her a termination letter that only cited the "walking away" incident as the reason for termination. Id. at 709.
The former university employee argued her pre-discharge notice was insufficient "because she did not know that her past work history would be discussed at the meeting." Id. at 711. The Eighth Circuit disagreed because (1) the work-history discussion "was only a minor part of the meeting;" (2) she nevertheless had an opportunity to address the work-history complaints; and (3) she had more than adequate notice to respond to the ultimate reason for her discharge cited in the termination letter. Id.
Here, Olson similarly argues the notice of his due process hearing was insufficient because the City did not alert him the agenda would include questions about his mental health. Much like in Riggins , this argument fails because Olson had an opportunity to address the newly added complaints, see ECF No. 28 at 107, and these complaints were not included in the final notice of termination. Although the discussion about mental health took up a larger percentage of Plaintiff's seventeen-minute hearing, Riggins does not suggest the number of minutes spent on the new topic is dispositive. And regardless, the Eighth Circuit has "rejected the notion that pre-termination due process requires a delay between notice and a public employee's opportunity to respond." Christiansen v. W. Branch Cmty. Sch. Dist. , 674 F.3d 927, 936 (8th Cir. 2012) (citing Coleman v. Reed , 147 F.3d 751, 754 (8th Cir. 1998) ). Thus, Plaintiff's day-of notice of the mental health discussion was sufficient.
More importantly, with respect to the ultimate reason for his discharge—years of performance complaints—Olson received pre-termination process in spades. There were performance improvement plans and written reprimands beginning as early as September 2017. ECF No. 26-3 at 4–10, 21–37. There was Olson's unsuccessful appeal of his annual performance review in 2018. ECF No. 31-1 ¶ 7. There was the written notice of performance deficiencies and possible discharge before Olson's September 13 hearing. Id ¶ 13. There was Plaintiff's opportunity to give his side of the story at the hearing. Id. ¶¶ 17–18. As in Riggins , this process concerned the "ultimate reason[s]" for Plaintiff's firing and was more than adequate. 790 F.2d at 711. Summary judgment is thus appropriate for all of Olson's due process claims.
Much of the Eighth Circuit's due process case law assumes there are more robust review procedures that a public employee can exercise following termination. E.g. , Krentz v. Robertson , 228 F.3d 897, 903 (8th Cir. 2000) (citing Loudermill , 470 U.S. at 547 n.12, 105 S.Ct. 1487 ). It is unclear what post-termination procedures were available to Olson and have since been waived. Regardless, the Court need not consider what procedures—if any—would have been required because Olson does not challenge the adequacy of post-termination review.
D. Civil Conspiracy Under 42 U.S.C. § 1983
Plaintiff's lone federal claim is a civil conspiracy under § 1983. Such a claim requires a plaintiff to "show: that the defendant conspired with others to deprive him or her of a constitutional right; that at least one of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and that the overt act injured the plaintiff." Askew v. Millerd , 191 F.3d 953, 957 (8th Cir. 1999) (citing Simpson v. Weeks , 570 F.2d 240, 242–43 (8th Cir. 1978) ). And just as a civil conspiracy requires a plaintiff to prove the commission of a tort, a § 1983 conspiracy requires a plaintiff to "prove a deprivation of a constitutional right or privilege." Id. (citing Villanueva v. McInnis , 723 F.2d 414, 416 (5th Cir. 1984) ).
Plaintiff's § 1983 conspiracy claim thus fails because, as discussed above, Defendants did not violate his due process rights under the U.S. Constitution. Olson alleges no other "deprivation of a constitutional right or privilege" under federal law. Id. Summary judgment thus is appropriate here, too.
E. Plaintiffs' Motion to Amend
Finally, Olson recently moved to amend his complaint—more than fifteen months after filing suit—to add an Iowa law employment-discrimination claim. ECF No. 43-1 at 13. When a motion to amend the pleadings if filed after the deadline set forth in a Court's Rule 16(b) Scheduling Order has passed, Federal Rule of Civil Procedure 16(b)'s "good cause" requirement governs, "not the more liberal standard of Rule 15(a)." Sherman , 532 F.3d at 716 (citing Popoalii v. Corr. Med. Servs. , 512 F.3d 488, 497 (8th Cir. 2008) ); see also Fed. R. Civ. P. 16(b) (stating a Rule 16(b) scheduling order must limit the time to amend the pleadings and that the "schedule may be modified only for good cause and with the judge's consent").
"The primary measure of good cause is the movant's diligence in attempting to meet the order's requirements." Sherman , 532 F.3d at 716–17 (quoting Rahn v. Hawkins , 464 F.3d 813, 822 (8th Cir. 2006) ). If the movant lacked diligence, generally that is the end of the matter. See id. at 717 (collecting cases). In Barstad v. Murray County , the district court did not abuse its discretion in finding the movant lacked diligence because (1) the movants had months to request a scheduling change; (2) "knew of the claims they sought to add when they filed the original complaint[;]" and (3) the new "claims did not hinge on the concluding depositions." 420 F.3d 880, 883 (8th Cir. 2005).
Much the same could be said of Plaintiff's motion. First, Olson had months to request a change to its scheduling order, which set January 22, 2019, as the deadline to amend the pleadings. That is more than a year before Olson filed this motion. Compare ECF No. 9 ¶ 5, with ECF No. 43. Olson responds that his discrimination claim was not ripe until September 15, 2019, sixty days after he submitted his claim to the Iowa Civil Rights Commission (ICRC), as required by state law. ECF No. 43 at 5 n.1. But this is only so because Olson waited until July 15, 2019, to file a complaint with the ICRC, more than nine months after initiating this action in state court. Id. ¶¶ 1, 8. When asked at oral argument why Olson waited so long to file with the ICRC, counsel responded that Olson wished to exercise the 300-day window permitted by Iowa law. See Iowa Code § 216.15(13). That is insufficient. Olson knew of the basis for the claims he "sought to add when [he] filed the original complaint[,]" and the record does not suggest these new claims "hinge[d] on the concluding depositions." Barstad , 420 F.3d at 883. Plaintiff's motion to amend thus is denied.
IV. CONCLUSION
For the foregoing reasons, Defendants' Motion for Summary Judgment (ECF No. 28) is GRANTED in part and DENIED in part. The Court DENIES summary judgment for Defendants as to Adam Olson's defamation claim. The Court GRANTS summary judgment for Defendants as to all other claims. Plaintiffs' Motion to Amend (ECF No. 43) is DENIED.
IT IS SO ORDERED.