Krile v. Lawyer

• Decision Date: 18 February 2022
• Docket Number: 20210138
• Citation: 970 N.W.2d 150
• Parties: Robyn KRILE, Plaintiff and Appellant v. Julie LAWYER, in her official and individual capacity as Assistant Burleigh County State's Attorney, Defendant and Appellee
• Court: North Dakota Supreme Court

970 N.W.2d 150

Robyn KRILE, Plaintiff and Appellant

v.Julie LAWYER, in her official and individual capacity as Assistant Burleigh County State's Attorney, Defendant and Appellee

No. 20210138

Supreme Court of North Dakota.

FILED FEBRUARY 18, 2022

Lynn M. Boughey, Mandan, ND, for plaintiff and appellant.

Bradley N. Wiederholt (argued) and Randall J. Bakke (on brief), Special Assistant State's Attorneys for Burleigh County, Bismarck, ND, for defendant and appellee.

VandeWalle, Justice.

[¶1] Robyn Krile appealed from a judgment dismissing her defamation claims against Julie Lawyer. Krile argues the district court erred by failing to consider all of the materials the parties submitted and thereby treat the motion to dismiss as a motion for summary judgment. She also argues the court erred in dismissing her defamation claims. We affirm, concluding Krile failed to plead a valid claim for defamation.

I

[¶2] On February 8, 2017, Assistant State's Attorney Julie Lawyer¹ received an anonymous letter concerning a Bismarck police officer's destruction of evidence. Lawyer reviewed the files of all active Bismarck police personnel. Lawyer asserted her decision to review the files was to ensure the state's attorney's office was fulfilling its disclosure obligations under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). "The Brady - Giglio line of cases requires the government to disclose to the defendant exculpatory material and impeachment evidence." Krile v. Lawyer , 2020 ND 176, ¶ 2, 947 N.W.2d 366 (quoting State v. Russell , 2016 ND 208, ¶ 6, 886 N.W.2d 677 ).

[¶3] During Lawyer's investigation, she reviewed the file of Sergeant Robyn Krile and concluded Krile had made false statements as a Bismarck police officer. On March 22, 2017, Lawyer sent a letter (" Giglio letter") to Bismarck Police Chief Dan Donlin summarizing her investigation into Krile's file and stating her belief that Krile had made false statements as a Bismarck police officer. Lawyer informed Chief Donlin that such information would have to be disclosed to the defense in cases in which Krile was involved pursuant to Giglio and, as a result, the Burleigh County State's Attorney's Office would no longer use Krile as a witness in its cases. The Bismarck Police Department terminated Krile's employment because the Burleigh County State's Attorney's Office was no longer willing to use Krile as a witness.

[¶4] Krile filed a complaint with the Department of Labor and Human Rights claiming the Bismarck Police Department discriminated against her based on race and sex. As part of the Department of Labor's investigation, the Bismarck Police Department submitted two affidavits of Lawyer in which she explained the circumstances and her reasoning for issuing the Giglio letter. The Department of Labor concluded the Bismarck Police Department did not unlawfully discriminate against Krile.

[¶5] Lincoln Police Chief Joe Gibbs contacted Lawyer about potentially hiring Krile after her employment with the Bismarck Police Department was terminated. Lawyer disclosed the Giglio letter to Chief Gibbs.

[¶6] In March 2019, Krile sued Lawyer in her official and individual capacity for defamation. The complaint alleged Lawyer defamed Krile by publishing the Giglio letter to the Bismarck Police Department, specifically Chief Donlin, and by publishing her affidavits to the Department of Labor in the course of its investigation. The complaint also alleged Lawyer defamed Krile by publishing the Giglio letter to the Peace Officer Standards and Training (POST) Board and by publishing the Giglio letter and related information to Krile's prospective employers.

[¶7] Lawyer moved to dismiss under N.D.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Krile opposed the motion. After a hearing, the district court granted Lawyer's motion to dismiss. Relying solely on the Giglio letter and Lawyer's affidavits submitted to the Department of Labor, the district court determined Lawyer's publication of the Giglio letter and her affidavits were absolutely privileged communications because Lawyer was acting in her official capacity as a prosecutor when she disclosed the alleged defamatory materials. The district court did not explicitly address Lawyer's disclosure of the Giglio letter to Chief Gibbs.

[¶8] Krile appealed, and this Court affirmed in part, reversed in part, and remanded. Krile , 2020 ND 176, ¶ 40, 947 N.W.2d 366. We affirmed the dismissal of the defamation claim related to the disclosure of the Giglio letter and Lawyer's affidavits to the Department of Labor because the communications were absolutely privileged under N.D.C.C. § 14-02-05(2). Krile , at ¶ 40. We reversed the dismissal of the defamation claim for the disclosure of the Giglio letter to Chief Donlin, holding the communication to Chief Donlin was not an absolutely privileged communication, but it may be entitled to a qualified privilege under N.D.C.C. § 14-02-05(3). Krile , at ¶ 38. We also reversed the dismissal of the defamation claim related to disclosure of the Giglio letter to the POST Board because we were unable to determine from the record whether the alleged disclosure was a privileged communication.

Id. at ¶ 40. We said the district court may decide on remand whether the communications to Chief Donlin and the POST Board were entitled to a qualified privilege. Id. We also noted the district court had not previously addressed Krile's defamation claims related to the Giglio letter to Chief Gibbs and instructed the court to address the issue on remand. Id.

[¶9] On remand, Lawyer renewed her motion to dismiss under N.D.R.Civ.P. 12(b)(6). Both parties filed various materials in support of or in opposition to the motion. After a hearing, the district court dismissed Krile's defamation claims ruling all of the claims are barred by either absolute or qualified privilege under N.D.C.C. § 14-02-05 and are subject to dismissal under Rule 12(b)(6).

II

[¶10] Krile argues the district court erred by failing to consider all of the materials the parties submitted and thereby treat Lawyer's motion to dismiss as a motion for summary judgment.

[¶11] A party may move for dismissal under N.D.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Under N.D.R.Civ.P. 12(d), "If, on a motion under Rule 12(b)(6) ..., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." The district court may consider the pleadings, materials embraced by the pleadings, and materials that are part of the public record in deciding a motion to dismiss under N.D.R.Civ.P. 12(b)(6). Krile , 2020 ND 176, ¶ 13, 947 N.W.2d 366. Materials that are embraced by the pleadings may be considered without converting the motion to a Rule 56 motion because "a plaintiff ought not be permitted to defeat a motion to dismiss through the artifice of not attaching the critical document to the complaint." Nelson v. McAlester Fuel Co. , 2017 ND 49, ¶ 22, 891 N.W.2d 126 (quoting Riemers v. State , 2007 ND App 4, ¶ 8, 739 N.W.2d 248 ).

[¶12] We have said a motion to dismiss should be treated as a motion for summary judgment when "matters outside the pleadings are presented to and not excluded by the court." Podrygula v. Bray , 2014 ND 226, ¶ 7, 856 N.W.2d 791 (quoting Livingood v. Meece , 477 N.W.2d 183, 187 (N.D. 1991) ). However, a motion to dismiss under N.D.R.Civ.P. 12(b)(6) does not automatically convert to a motion for summary judgment when a party submits additional materials outside of the pleadings, and the district court has discretion in deciding whether to exclude the additional materials or convert the motion into a motion for summary judgment. See N.D.R.Civ.P. 12(d) (indicating the court may exclude submitted materials that are outside the pleadings); Casazza v. Kiser , 313 F.3d 414, 417-18 (8th Cir. 2002) (holding the court properly considered the motion as a motion to dismiss under Fed. R. Civ. P. 12(b)(6) when there was no evidence the court relied on a party's affidavit in granting the motion); Skyberg v. United Food and Commercial Workers Int'l Union, AFL-CIO , 5 F.3d 297, 302 n.2 (8th Cir. 1993) (stating the district court has wide discretion in electing to consider matters outside the pleadings); Aamot v. Kassel , 1 F.3d 441, 444-45 (6th Cir. 1993) (holding language of Rule 12(b) is directed at the court and conversion of a motion to dismiss into a motion for summary judgment takes place at the discretion of the court when the court decides not to exclude extraneous matters).

[¶13] Here, the parties submitted numerous documents in support of or in opposition to the motion to dismiss. The district court stated it would not consider most of the documents because those documents were not "embraced by the pleadings" and they were not a part of the public record. The court stated it would consider the complaint, the Giglio letter, Lawyer's affidavits to the Department of Labor, the public notice of Lincoln City Council meeting minutes dated August 6, 2020, Lawyer's and Krile's affidavits filed publicly in a related federal case, and certain documents provided to the POST Board. The court found these documents were either a part of the public record or embraced by the pleadings. The court stated it would not consider the parties’ remaining documents.

[¶14] We conclude the district court did not abuse its discretion by excluding the additional materials and declining to convert Lawyer's Rule 12(b)(6) motion to dismiss to a motion for summary judgment.

III

[¶15] Krile argues the district court erred in dismissing her defamation claims and concluding as a matter of law that it is impossible for her to prove a claim upon which relief can be granted. She contends there are genuine issues of material fact in dispute, the court did not consider...