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Pommier v. Cabanas: CIVIL PROCEDURE | CORPORATIONS | TORT - no direct non-derivative injury, so no standing; no official immunity if not within duties

1The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.
United States Court of Appeals
Nos. 06-3794/07-1462
Alternate Fuels, Inc. and *
Larry W. Pommier, *
Appellant/Cross-Appellees, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Thomas M. Cabanas and *
Richard A. Hall, *
Appellee/Cross-Appellant. *
Submitted: November 15, 2007
Filed: August 18, 2008
Before WOLLMAN, and BENTON, Circuit Judges, and DOTY,1 District Judge.
BENTON, Circuit Judge.
Alternate Fuels, Inc. (AFI) and its President, Larry W. Pommier, sued two
officials of the Missouri Department of Natural Resources (DNR) Thomas M.
Cabanas and Richard A. Hall for denial of equal protection, tortious interference
with contract, and First Amendment retaliation. Summary judgment was granted to
Cabanas and Hall on all claims except part of AFIs tortious-interference-with2The
Honorable John T. Maughmer, Chief United States Magistrate Judge for
the Western District of Missouri, to whom the case was referred for decision by the
consent of the parties pursuant to 28 U.S.C. 636(c).
contract claim against Cabanas, who appealed. AFI and Pommier cross-appealed the
partial summary judgment, which was dismissed for lack of jurisdiction, as not
immediately appealable. See Alternate Fuels, Inc. v. Cabanas, 435 F.3d 855, 860
(8th Cir. 2006). This court affirmed the district courts2 denial of summary judgment
on the tortious-interference claim. Id. at 858-60.
This remaining claim was tried to a jury, with a verdict for AFI. Cabanas
appeals. Pommier appeals the summary judgment for Cabanas on his First
Amendment claim. Having jurisdiction under 28 U.S.C. 1291, this court affirms.
The Land Reclamation Commission, a sub-component of DNR, oversees
compliance with the surface coal-mining laws. See Mo. Rev. Stat. 444.800.970.
The Commissions mine inspectors were supervised by Hall, who was supervised by
Section Chief Cabanas.
AFI operated Blue Mound Mine, a surface coal mine that DNR regulated.
Pommier was president (but not a shareholder) of AFI.
In 1996, Pommier complained to Cabanass supervisor about his inappropriate
conduct while at Blue Mound. Following this complaint, Cabanas instructed the
inspector assigned to Blue Mound to cite the mine for numerous violations, even if
they did not exist. He also instructed him to issue violation notices before
determining if violations actually existed.
In May 1997, Pommier complained in writing about Cabanass abusive and
unfair conduct toward AFI, and treatment it received from the DNR section Cabanas
supervised. In 1999, DNR and AFI entered into a Consent Agreement that attempted
to resolve both the complaints against Cabanas and the alleged violations by AFI. It
included a provision that inspectors of Blue Mound would report directly to the
administrator of the Commission, bypassing Cabanas on regulatory matters.
Some time in 1998 or 1999, AFI and Midwest Coal, LLC, entered negotiations
for Midwest to buy AFIs assets and liabilities (Deal One). After engaging in due
diligence, Midwest decided the risk was too high. Deal One was not finalized. The
parties began to discuss the possibility of Midwest buying AFIs coal slurries and
using AFIs coal-washing facilities (Deal Two). Again, Midwest assessed the risks
and benefits, including issues at Blue Mound that needed to be resolved with DNR.
Deal Two did not materialize.
In early 2000, AFI began negotiating with Midwest for the sale of part of its
coal slurries to be processed elsewhere (Deal Three). While the companies were
negotiating and the Consent Agreement in effect, Cabanas made negative comments
to Midwest about the possible purchase of AFIs coal slurries. This deal would have
required a transfer of the DNR permit. Cabanas told Midwests president as long
as Im here, that wont happen. As a result, Midwest decided not to proceed with the
purchase. At trial, Midwest testified it would have purchased all of AFIs recoverable
slurries if Cabanas had not made this statement.
This court now reviews the denial of Pommiers claim for First Amendment
retaliation. See AFI, 453 F.3d at 860 (grant of partial summary judgment is not
immediately appealable). This court reviews de novo a district courts ruling on a
motion for summary judgment. Canady v. Wal-Mart Stores, Inc., 440 F.3d 1031,
1034 (8th Cir. 2006).
Cabanas asserts that Pommier does not have standing to assert this First
Amendment claim. Pommier relies on International Assn of Firefighters v. City of
Ferguson, 283 F.3d 969 (8th Cir. 2002), where this court held that an employees wife
had standing to present a First Amendment attack on the employers prohibition on
employee involvement in city politics (which clearly did not apply to her). Id. at 973.
The wife alleged she was prevented from participating in political activities for fear
of hurting her husbands position. Id. at 972. This court held that because of the
economic effect on her (a joint bank account and the level of spousal support), she
was asserting her own rights and thus had standing. Id. at 973.
Similarly, a corporate officer cannot maintain a personal action against a third
party for harm caused to the corporation, unless the officer alleges a direct injury not
derivative of the companys injury. Potthoff v. Morin, 245 F.3d 710, 717-18 (8th Cir.
2001) (sole shareholder and principal employee has no standing to enforce a First
Amendment claim because he did not personally suffer a direct, nonderivative injury).
The complaint here alleges only injury to the corporation AFI:
In retaliation for the Plaintiffs [AFI and Pommier] exercising their First
Amendment rights, Defendants [Cabanas and Hall] engaged in an
intentional and continuing course of retaliation against Plaintiffs,
including but not limited to, improper enforcement actions against AFI,
issuing numerous Notices of Violations to AFI, and interference with
Plaintiffs business relationship with Midwest.
Plaintiffs summary judgment motion also does not allege any direct nonderivative
injury to Pommier. On appeal, Pommier emphasizes that the summary judgment
exhibits include Cabanass statement that this sale of [AFI] was an attempt by Larry
Pommier to try to get out of this on his feet, and thats unacceptable to us. Even
this statement does not reflect a direct injury to Pommier that is distinct from the harm
suffered by AFI. Pommier has no standing to assert the First Amendment claim. See
Jaffke v. Dunham, 352 U.S. 280, 281 (1957) (district courts decision may be
affirmed for any reason supported by the record).
Twice during trial, Cabanas moved for judgment as a matter of law: at the close
of the plaintiffs evidence, and at the close of all evidence. Neither motion was in
writing nor included any relevant law or facts.
This court reviews de novo the denial of motions for judgment as a matter of
law. Walsh v. Natl Computer Sys., Inc., 332 F.3d 1150, 1158 (8th Cir. 2003).
However, if the movants legal theories are not articulated before the verdict, review
is limited to whether the judgment sought is required to prevent manifest injustice.
Conseco Fin. Servicing Corp. v. N. Am. Mortgage Co., 381 F.3d 811, 821 (8th Cir.
Cabanas argues that a specific basis was not required in the motions for
judgment as a matter of law. Rule 50(a)(2) refutes this. It says that the motion must
specify both the law and the facts that entitle the moving party to the judgment. Fed.
R. Civ. P. 50(a)(2). If the motion for judgment as a matter of law is not specific
enough to give notice to the opposing party of the issues underlying the motion, it
cannot be granted or upheld on appeal. See Conseco, 381 F.3d at 821. If the
conversation between the parties and the judge provides sufficient insight into the
grounds on which it is based, the issues could be preserved for appeal. See id. While
technical precision in stating grounds is not necessary, some basis for the motion has
3Cabanas does not argue on appeal that the alleged insufficiency of evidence of
damages requires reversal in order to prevent manifest injustice. See Conseco, 381
F.3d at 821.
to be apparent to the court and the parties. See Rockport Pharmacy, Inc. v. Digital
Simplistics, Inc., 53 F.3d 195, 197 (8th Cir. 1995).
Cabanass motions for judgment as a matter of law gave no legal or factual
basis. There was no discussion between the parties or the court that indicates any
insufficiencies in the proof. Cabanass motions for judgment as a matter of law
cannot be the basis of an appeal.3
After trial, Cabanas filed a written motion for judgment as a matter of law and
in the alternative, a motion for new trial which did include legal theories. Cabanas
outlined separate grounds for the motion for new trial. The new trial portion was
based on the district courts refusal of two proffered instructions. A denial of a
motion for new trial and the refusal to give proffered jury instructions are both
reviewed for abuse of discretion. Shaw Group, Inc. v. Marcum, 516 F.3d 1061,
1067-68 (8th Cir. 2008); Otting v. J.C. Penney Co., 223 F.3d 704, 712 (8th Cir.
2000); Peerless Corp. v. United States, 185 F.3d 922, 927 (8th Cir. 1999).
Cabanas objected to the district courts refusal to give his official duties and
official immunity verdict-directing instructions. Cabanas cites this courts footnote
that Cabanas was being sued in his official capacity, making the suit one against the
state. AFI, 435 F.3d at 857 n.2. Cabanas promotes this argument as the law of the
case that bars suit against him personally.
Cabanass argument ignores that after this court ruled in the earlier appeal, the
district judge allowed AFI and Pommier to amend the complaint in order to sue him
individually. Allowing or denying the amendment of a complaint is reviewed for
abuse of discretion. Hammer v. City of Osage Beach, 318 F.3d 832, 844 (8th Cir.
2003) citing Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998). Leave
to amend should be freely granted unless there are compelling reasons such as undue
delay, bad faith, or dilatory motive . . . undue prejudice to the non-moving party, or
futility of the amendment. Brown v. Wallace, 957 F.2d 564, 566 (8th Cir. 1992).
Cabanas opposed the amendment when requested. He argues that the motion
should have been denied because of the inordinate amount of time between the
original complaint and the request for leave to amend. The district court found that
because of the intervening appeal, there was no undue delay. The court also ruled that
the amendment was not futile because it related back to the date of the initial filing
and allowed Cabanas to be sued individually. The court found no prejudice to
Cabanas because throughout the suit, the parties had assumed the defendants were
sued individually. The district court did not abuse its discretion by granting leave to
amend the complaint.
This court previously held as a matter of law that Cabanas was not acting
within the scope of his official duties. AFI, 435 F.3d at 859. An employee must be
performing official duties in order to receive official immunity. Davis v. Lambert-St.
Louis Intern. Airport, 193 S.W.3d 760, 765 (Mo. banc 2006). The district court
properly refused Cabanass official duties and official immunity instructions.
Cabanas continues to object that the district court did not have jurisdiction
because the plaintiffs failed to exhaust their administrative remedies. In Missouri,
failure to exhaust administrative remedies in a contested case divests courts of
subject matter jurisdiction. See Strozewski v. City of Springfield, 875 S.W.2d 905,
906 (Mo. banc 1994) (describing state constitutional right to administrative review,
and types of cases that require exhaustion); Mo. Rev. Stat. 444.850.5 (land
reclamation permit proceeding is a contested case). Subject matter jurisdiction can be
raised at any time. Bueford v. Resolution Trust Corp., 991 F.2d 481, 485 (8th Cir.
Exhaustion applies if a contested-case remedy is available. See Hamby v. City
of Liberty, 20 S.W.3d 515, 518 (Mo. banc 2000); Pessin v. State Tax Commn, 875
S.W.2d 143, 146 (Mo. App. 1994). In this case, the sale was not finalized due to
Cabanass comments. No one was required to apply for a permit transfer. See AFI,
435 F.3d at 859; Mo. Rev. Stat. 444.840 (Commission approval required for
revision, transfer, assignment or sale of rights under permit). The district court had
subject matter jurisdiction of the tortious-interference claim.
The judgment of the district court is affirmed.


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