Besett v. Wadena Cnty., Civil No. 10-CV-934 (JRT/LIB)

• Decision Date: 31 July 2012
• Docket Number: Civil No. 10-CV-934 (JRT/LIB)
• Parties: Anthony Joseph Besett et al, Plaintiffs, v. Wadena County et al, Defendants,
• Court: U.S. District Court — District of Minnesota

Anthony Joseph Besett et al, Plaintiffs,

v.Wadena County et al, Defendants,

Civil No. 10-CV-934 (JRT/LIB)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Dated: July 31, 2012

REPORT AND RECOMMENDATION

This matter came before the undersigned United States Magistrate Judge upon Defendants Shawn Alvin Hegg and Jennifer Katherine Hegg's Motion for Summary Judgment. The motion has been referred to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1. For the reasons outlined below, the Court recommends that Defendants' Motion for Summary Judgment be granted.

I. BACKGROUND

This lawsuit arises out of assertedly false allegations of sexual abuse that were advanced against Plaintiff Anthony Besett in January of 2009. The minor child in question, who will be referred to herein as L.H., is the son of Plaintiff Tiffany Hegg and Defendant Shawn Hegg, who were divorced in 2005. Tiffany Hegg cohabitates with Anthony Besett, with whom she has two children. Defendant Shawn Hegg was later remarried to Defendant Jennifer Hegg (collectively, the Hegg Defendants). In the divorce, Defendant Shawn Hegg was awarded physical custody of L.H. and his older brother Z.H., subject to Tiffany's right to parenting time.

On December 7, 2010, the undersigned issued a report and recommendation recommending that Plaintiffs be allowed to amend their Complaint to assert several new claims and that various claims against various Defendants be dismissed. (See Docket No. 69). On December 15, 2011, upon the parties' stipulation, the Court issued an order dismissing all claims against Defendants Wadena County, Wadena County Sheriff's Department, William Cross, Paul Sailer, Jane Erckenbrack, Karen Johnson, Hubbard County, Daryl Bessler, Toni Carlstrom and Rande Woodrum. (See Docket No. 114). Then, on December 20, 2011, the Clerk of Court entered judgment in favor of Plaintiffs for $5,000 against Defendants Larry Ellingson, Monica McConkey, and Natascha Smrekar. (See Docket No. 116).

The only Defendants that presently remain in this suit are Shawn Hegg and Jennifer Hegg. The only claims that remain against these two defendants are: 1) Defamation (Ninth Claim for Relief); 2) Knowing and Reckless False Reporting in Violation of Minn. Stat. § 626.556, subd. 5 (Eleventh Claim for Relief); and 3) Negligent Infliction of Physical and Emotional Distress (Twelfth Claim for Relief). (Second Am. Compl. [Docket No. 82] ¶¶ 201-22, 237-52, 253-59).

II. STANDARD OF REVIEW

Summary Judgment is appropriate when the evidence demonstrates that there is no genuine issue of material fact such that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pro. 56(a); Smutka v. City of Hutchinson, 451 F.3d 522, 526 (8th Cir. 2006). A disputed fact is "material" if it might affect the outcome of the case, and a factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The moving party bears the burden of bringing forward sufficient admissible evidence to establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The evidence must be viewed in the light most favorable to the nonmoving party, and the nonmoving party must be given the benefit of all reasonable inferences to be drawn from the underlying facts in the record. Mirax Chem. Prods. Corp. v. First Interstate Commercial Corp., 950 F.2d 566, 569 (8th Cir. 1991). However, the nonmoving party may not rest on mere allegations or denials in its pleadings, but must set forth specific admissible evidence-based facts showing the existence of a genuine issue. Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002). The movant is entitled to summary judgment where the nonmoving party has failed "to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322. No genuine issue of fact exists in such a case because "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.

III. DISCUSSION

Before addressing the motion for summary judgment, the Court must first address the question of jurisdiction raised by Defendants. In the last paragraph of their memorandum in support of their motion for summary judgment, Defendants provide that although they "would strongly prefer that this Court dismiss Plaintiffs' complaint on the merits," the Court could also "dismiss the case for lack of subject matter jurisdiction." (Defs.' Mem. of Law in Supp. of Mot. for Summ. J. [Docket No. 121] at 16). Defendants provide that all of the federal claims in this suit have been dismissed and that only the pendant state law claims against the Hegg Defendantsremain. (Id.) They assert that if the Court declines to dismiss the claims on the merits, it should in any event decline to exercise supplemental jurisdiction.

Plaintiffs argue that the Court already made the decision to retain supplemental jurisdiction. In support, Plaintiffs cite to a letter to the Honorable John R. Tunheim, in which they requested guidance on whether the Court would be willing to exercise jurisdiction over the state law claims and retain the case, and an email response by Holly McLelland, Judge Tunheim's calendar clerk, that "Judge Tunheim has reviewed the letter submitted by plaintiffs and has indicated that he will be keeping this case." (Aff. of Attorney Brian D. Chmielewski [Docket No. 125], Ex. 3 at 10). In their reply, Defendants argue that "[t]he Court neither issued an order nor made a docket entry regarding jurisdiction." (Defs. Shawn and Jennifer Hegg's Reply Mem. [Docket No. 127] at 19).

"The Court has broad discretion in deciding whether to continue hearing state claims following dismissal of federal claims." Shimer v. Shingobee Island Water and Sewer Com'n, No. 02-953 (JRT/FLN), 2003 WL 1610788, at *8 (D. Minn. Mar. 18, 2003) (explaining that "[w]hen a case has been properly removed to the federal district court, this Court is reluctant to remand the case back to state court after hearing and resolving dispositive motions."). "In determining whether to exercise supplemental jurisdiction, courts consider factors such as judicial efficiency, convenience, and fairness to the litigants." Hylla v. Transp. Commc'n Int'l Union, No. 06-4700 (JRT/RLE), 2007 WL 2892021, at *4 (D. Minn. Sept. 28, 2007). It appears that Judge Tunheim has already decided the issue, though, perhaps, not in the form of a typical formal written order. Even if Judge Tunheim's "indication" was not a formal order, the undersigned believes that because previous dispositive motions have already been heard in the case and it has been more than two years since the complaint was filed, with many of the similarclaims against other parties resolved in his forum, the Court should exercise its supplemental jurisdiction over the remaining state law claims. Thus, to the extent Defendants continue to argue that the Court should not exercise supplemental jurisdiction over the remaining pendant state law claims, the undersigned recommends that the Court retain jurisdiction over the state law claims.

Having addressed the question of jurisdiction, the Court proceeds to the merits of Defendants' motion.

A. Plaintiffs' claim for defamation

In Plaintiffs' initial complaint, the defamation claim against the Hegg Defendants alleged that "Defendants communicated false statements specifically alleging it was a fact that Anthony was engaged in criminal activity, to wit, sexual assault of a child . . . when defendants spoke and wrote them to LaPorte Elementary School, WCSS, HCSS and WCSD on multiple occasions." (Compl. [Docket No. 1] ¶ 174). Plaintiff failed to initially allege when these multiple defamations took place. As part of their proposed amended complaint, Plaintiffs' made the following allegations in their defamation claim:

On or about January 7, 2009, Jennifer Hegg told a third party, Natascha Smrekar, that Besett sexually assaulted L.H. Jennifer had no reasonable believe that the story was accurate when she slandered Besett.

On or about January 9, 2009, when Defendants learned that L.H. had not communicated information that convinced Smrekar that sexual abuse had occurred, Jennifer contacted Smrekar and repeated the fabricated story to her and assisted Smrekar in drafting a written report based on her slander. Jennifer had no reasonable believe that the story was accurate when she slandered and assisted in libeling Besett.

Defendants have repeated their false and derogatory statements to others and continue to repeat their false and derogatory statements to others in an attempt to further ridicule and disparage Plaintiffs.

Defendants communicated false statements specifically alleging it was a fact that Anthony was engaged in criminal activity, to wit, sexual assault of a child . . . knowing them to be false or with reckless disregard for the truth of the statements when Defendants spoke and wrote them to LaPorte Elementary School, WCSS, HCSS and WCSD on multiple occasions.

(Redline Version of Am. Compl. [Docket No. 34, Ex.1] ¶¶ 211, 215, 220, 224). Although Plaintiffs asserted that Defendants "sometime prior to January 9, 2009 developed a story to advance their personal scheme to totally alienate Plaintiffs, terminate Tiffany's parental rights and obtain sole custody of Z.H. and L.H.," they made no specific allegations in their defamation claim that any defamations took place prior to January 7, 2009. (See id. ¶ 210).

Before considering, in the context of a futility argument, whether Plaintiffs proposed allegations could survive a motion to dismiss, the Court advised and cautioned Plaintiffs regarding...