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MSK EyEs LTD v. Wells Fargo Bank, N.A.: CIVIL PROCEDURE | CONTRACT | DEFAMATION - no Rooker-Feldman bar but claims fail on merits; release of one not release of all

United States Court of Appeals
No. 07-2825
Muhannah S. Kakish, *
Plaintiffs Appellants, **
Appeal from the United States
v. * District Court for the District
* of Minnesota.
Wells Fargo Bank, National *
Association, *
Defendant Appellee. *
Submitted: May 12, 2008
Filed: November 3, 2008
Before LOKEN, Chief Judge, BYE, and COLLOTON, Circuit Judges.
BYE, Circuit Judge.
MSK EyEs, LTD (MSK) and its founder, Muhannah S. Kakish (Kakish), appeal
from an order of the district court granting summary judgment to Wells Fargo Bank
(Wells Fargo). MSK and Kakish (Appellants) brought an action against Wells Fargo
on a myriad of claims arising from their banking relationship, including: breach of
contract, credit defamation, business disparagement, defamation, interference with
prospective business advantage and economic expectancy, violation of the Minnesota
Garnishment Statute, and negligence. Having jurisdiction under 28 U.S.C. 1291, we
This case has a lengthy, and somewhat complicated, factual background. We
recite it below, as simply and briefly as possible.
A. The Banking Relationship
Kakish incorporated MSK in the state of Minnesota in October 2000 to develop
a chain of retail eyeware stores. Kakish is the founder, president, chairman of the
board, and majority shareholder of MSK. MSK originally aspired to open fifty retail
stores in five years and 495 stores in ten years but has yet to open one store.
In April 2001, MSK signed a promissory note on a ,000 loan from Wells
Fargo. Kakish and his brother, Raed Kakish (Raed), personally guaranteed the MSK
loan. In June 2001, Wells Fargo dishonored a number of checks drawn on the MSK
account totaling in excess of ,000 because it had not yet deposited the funds
into MSK's checking account. According to Appellants, Wells Fargo led them to
believe the loan was processed when, in fact, it was not. When the third parties
contacted Wells Fargo regarding the dishonored checks, a loan officer made
disparaging remarks about Kakish's qualities as a businessman and suggested MSK
was a shady operation. As a result of the injury Wells Fargo allegedly inflicted on its
reputation, MSK claims it lost "several lucrative business opportunities" and began
to incur financial difficulties. MSK overdrew its Wells Fargo checking account,
causing checks issued to be returned without payment. Within three months, MSK
defaulted on the loan.
B. Previous Litigation
Prior to the current litigation, the parties were involved in two relevant lawsuits
in the state of Minnesota, one in Ramsey County and one in Hennepin County. In the
first suit, filed on November 2, 2001, in Ramsey County, Wells Fargo sought to
collect overdraft charges on the MSK checking account. In the second suit, filed one
week later in Hennepin County, Wells Fargo sought to recover the outstanding
principal, interest and attorneys' fees related to the defaulted MSK loan. We first
address the Hennepin County litigation.
1. Hennepin County Litigation
On November 9, 2001, Wells Fargo sued MSK, and Kakish and Raed as
guarantors, in Hennepin County court to recover the outstanding principal, interest
and attorneys' fees related to the defaulted MSK loan. In response, Appellants
asserted counterclaims against Wells Fargo for breach of contract, deceptive and
unlawful trade practices, libel and slander. Wells Fargo and Appellants settled the
Hennepin County litigation on July 11, 2002, pursuant to a document entitled Mutual
Release. Raed was not a party to this settlement.
The Mutual Release provides, in relevant part, in consideration for a ,000
payment from Kakish and the release of all claims asserted by Appellants against
Wells Fargo,
Wells Fargo does hereby release and forever discharge Muhannah S.
Kakish . . . of and from each and every claim, demand, liability and
cause of action . . . which Wells Fargo ever had, presently has or claims
to have against MSK EyEs Ltd., Muhannah Kakish or his agents, their
representatives, successors or assigns . . . that relate in any way to Wells
Fargo's April 5, 2001 claims against MSK EyEs, Ltd. pursuant to a
promissory note dated April 5, 2001 in the original principal amount of
,000 and the personal guaranty of Muhannah S. Kakish dated April
5, 2001 guarantying the obligations of MSK EyEs, Ltd. to Wells Fargo.
Wells Fargo did not release its claims against MSK or Raed, as a guarantor.
According to Wells Fargo, it intentionally did not release MSK because a release of
the underlying loan may have jeopardized its ability to obtain payments from Raed as
a personal guarantor.
The parties stipulated the terms of the settlement were confidential and not to
be disclosed to anyone except, among others, "the corporate directors, officers or
shareholders of Wells Fargo and MSK EyEs Ltd." The parties further agreed not to
comment on the resolution of their disputes if contacted by third parties, other than to
say "the parties in good faith disputed their liabilities thereunder and the matter was
resolved by mutual release." Following the settlement, Wells Fargo posted a note on
the MSK account that stated in all capitalized letters: "DO NOT GIVE ANY
Pursuant to a stipulation signed by Wells Fargo and Appellants, the Hennepin
County District Court dismissed all claims between the parties with prejudice on July
15, 2002. The parties acknowledged the stipulation did not constitute a waiver of
Wells Fargo's causes of action against Raed or an agreement to dismiss Wells Fargo's
claims against Raed. Raed ultimately defaulted in the Hennepin County litigation, and
the court entered a judgment against him in the amount of ,349.26. In June 2003,
Wells Fargo agreed to vacate the judgment, and Raed agreed to pay ,200 toward the
MSK loan in twenty-one monthly payments of 0 from July 15, 2003, until March
15, 2005. Wells Fargo and Raed further agreed the full outstanding balance on the
MSK loan would immediately become due and payable if Raed defaulted on his
Wells Fargo maintained the MSK account as active on its books, credited each
settlement payment, and adjusted the outstanding balance accordingly. According to
Wells Fargo, the MSK account remained active until the bank received Raed's final
settlement payment in March 2005. Wells Fargo claims it sent MSK monthly
statements detailing the outstanding balance, interest accrued, and payments received
from July 2002 until early 2005. Kakish acknowledges receiving statements from
May 2004 onward, but disputes receiving any before that time.
2. Ramsey County Litigation
Meanwhile, despite resolving the Hennepin County litigation, neither MSK nor
Kakish filed an answer to Wells Fargo's complaint in the Ramsey County collection
action for overdraft charges on the MSK checking account. On October 14, 2002
after Wells Fargo, Kakish and MSK settled the Hennepin County litigation and
executed the Mutual Release Wells Fargo requested a default judgment in the
Ramsey County litigation against only MSK, because the checking account was only
in MSK's name. On November 4, 2002, the Ramsey County District Court entered
judgment against MSK in the amount of ,634.02. MSK never challenged or
appealed the Ramsey County judgment. Between June 13, 2003, and June 5, 2006,
Wells Fargo served six garnishment summons on Community First National Bank
(Community First), another bank where MSK kept an account. Wells Fargo collected
a total of 8.13 towards the Ramsey County judgment.
C. Disputed Monthly Statements & Account Information
Leroy Miller (Miller) is Kakish's domestic partner, who cohabitated with
Kakish at times. Miller invested in MSK, served on its board of directors, and
allowed MSK to operate out of his property. He is also the sole owner, director, and
employee of Leroy Miller Design, Inc. On August 18, 2004, Leroy Miller Design
voluntarily petitioned for Chapter 7 Bankruptcy and reported owning only a 0.6%
interest in MSK.
In early 2004, Miller had power of attorney for Kakish during the several
months Kakish was out of the country. Miller, who was a board member, opened
MSK's mail while Kakish was away. At this time, Miller noticed Wells Fargo was
sending MSK statements, which referenced an outstanding balance as well as
garnishment notices Wells Fargo served on Community First.
In September 2004, Miller contacted Wells Fargo regarding the MSK account.
A Wells Fargo officer told Miller he needed signed authorization before the bank
could provide him any information regarding the MSK account. Miller informed
Kakish. Kakish wrote a letter to Wells Fargo, dated September 20, 2004, stating: "I
hereby authorize Wells Fargo Bank to release information relating to MSK EyEs Ltd.
and/or Muhannah S. Kakish and related accounts to Leroy Miller Design Inc." Miller
then faxed Wells Fargo the following request on the company letterhead of Leroy
Miller Design:
Please provide a reference for MSK EyEs Ltd. and/or Muhannah Kakish.
A release for the information should be on file at this time. Please fax
information to Leroy Miller Design, Inc.
On October 11, 2004, Wells Fargo faxed the following information to the fax
number provided by Miller: the current balance (,750), opening balance (,000),
opening date (April 5, 2001), interest rate (7.75%), maturity date (July 31, 2001) and
the amount of monthly payments (0). Wells Fargo included the following
By accepting this information, you warrant that receipt by you is lawful,
you agree that it will not be disclosed to anyone else or used in an
unlawful manner, you acknowledge that its completeness and accuracy
is not guaranteed, it may not disclose the entire relationship of the
customer with the bank and is subject to change without notice, and you
agree to indemnify and hold the bank harmless against all loss resulting
from providing this information to you.
Wells Fargo is not responsible for the information included in this fax
being viewed by persons other than the intended recipient upon printing
at this fax number.
At the time Miller received the requested information, Leroy Miller Design had
already filed for Chapter 7 bankruptcy and, thus, Miller was personally unable to
invest additional funds in MSK. Miller stated in his deposition the only impact the
receipt of this information had on him was to dampen his enthusiasm to seek new
investors for MSK. He stated he did not know whether anyone new would have
invested in MSK had Wells Fargo not disclosed the above information to him.
After Miller received the account information from Wells Fargo, Kakish and
Miller told other individuals including directors, shareholders, consultants and
potential investors in MSK about the garnishment proceedings, which resulted from
the Ramsey County litigation. They volunteered also that Wells Fargo continued to
send MSK statements regarding the ,000 loan, and was attempting to collect the
debt. Appellants allege, as a result of their self-publication of Wells Fargo's actions
against them, they have incurred damages in excess of .2 million dollars in lost
D. Present Litigation
Appellants commenced this action against Wells Fargo alleging: credit
defamation, business disparagement, defamation, interference with prospective
business advantage and economic expectancy, negligence, and violation of the
1Specifically, they allege violations of Minn. Stat. 571.76, 571.90 (2000).
2D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid. Trust
Co., 263 U.S. 413 (1923).
Minnesota Garnishment Statute.1 Wells Fargo moved for, and the district court
granted, summary judgment on all claims. This appeal followed.
Appellants' claims are based on three primary contentions: (1) Wells Fargo
improperly obtained the Ramsey County default judgment and garnished funds from
Community First in violation of the Mutual Release; (2) Wells Fargo inaccurately
maintained the MSK credit-line account on its books because MSK had been relieved
from its obligation to pay the debt pursuant to the Mutual Release; and (3) Wells
Fargo wrongfully communicated MSK's account information to Leroy Miller Design.
The district court dismissed all claims premised on the first contention with prejudice,
concluding it lacked jurisdiction because the claims were barred under the Rooker-
Feldman2 doctrine. The district court granted summary judgment to Wells Fargo on
the surviving claims of breach of contract, defamation and credit defamation, business
disparagement, tortious interference with prospective economic advantage, and
negligence as they related to the second and third contentions. The court also granted
Wells Fargo summary judgment on the claim it violated the Minnesota Garnishment
Statute, Chapter 571.
A. Rooker-Feldman Doctrine
The Rooker-Feldman doctrine is applied to "cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the district
court proceedings commenced and inviting district court review and rejection of those
judgments." Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284
(2005). The doctrine does not apply to cases that raise independent issues. See Riehm
v. Engelking, 538 F.3d 952, 965 (8th Cir. 2008). The fact that a judgment was entered
on a party's default does not alter the applicability of the Rooker-Feldman doctrine.
Fielder v. Credit Acceptance Corp., 188 F.3d 1031, 1035 (8th Cir. 1999).
The Rooker-Feldman doctrine does not bar Appellant's claims premised on
Wells Fargo's activities in filing the Ramsey County action and in enforcing the
resulting judgment. Although Appellants complain of injuries caused by the state
court judgment, their claims do not seek review and rejection of that judgment. They
do not challenge the court's issuance of the judgment or seek to have that judgment
overturned. We have distinguished claims attacking the decision of a state court from
those attacking an adverse party's actions in obtaining and enforcing that decision:
If a federal plaintiff asserts as a legal wrong an allegedly erroneous
decision by a state court, and seeks relief from a state court judgment
based on that decision, Rooker-Feldman bars subject matter jurisdiction
in federal district court. If, on the other hand, a federal plaintiff asserts
as a legal wrong an allegedly illegal act or omission by an adverse party,
Rooker-Feldman does not bar jurisdiction.
Riehm, 538 F.3d at 965 (citing Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003)).
Appellant's claims fall into the latter category because they assert allegedly
unlawful conduct committed by adverse parties, which does not require the federal
district court to overturn the state court's order. Because the state court's judgment
would still be intact even if Wells Fargo breached the Mutual Release by obtaining
that judgment, Appellant's breach of contract claims do not seek "review and
rejection" of that judgment. Likewise, it is possible to conclude Wells Fargo
committed various torts in enforcing the judgment without concluding the judgment
itself is invalid. Appellant's claims are independent and not barred by Rooker3The
district court erred in dismissing these claims with prejudice based on the
Rooker-Feldman doctrine because a district court is generally barred from dismissing
claims with prejudice if it concludes subject matter jurisdiction is absent. County of
Mille Lacs v. Benjamin, 361 F.3d 460, 464 (8th Cir. 2004). Because we conclude,
nevertheless, that summary judgment should be granted in favor of Wells Fargo on
these claims, they should be dismissed with prejudice and we are not required to
reverse the district court.
Feldman because they allege unlawful conduct only "in seeking and executing the
[state] order." Riehm, 538 F.3d at 965.
Therefore, the district court erred in concluding it lacked subject matter
jurisdiction over this aspect of Appellant's claims. Reversal is not required, however,
since we may affirm on any basis supported by the record. Richmond v. Higgins, 435
F.3d 825, 828 (8th Cir. 2006). As discussed infra, summary judgment is appropriate
on Appellant's claims arising out of the Ramsey County litigation because they fail on
the merits.3
B. Standard of Review
We review de novo the district court's determination of state law, its
conclusions of law, and its grant of summary judgment and we can affirm on any
ground supported by the record. Gamradt v. Fed. Labs., Inc., 380 F.3d 416, 419 (8th
Cir. 2004). Summary judgment is appropriate when the evidence, viewed in the light
most favorable to the non-moving party, demonstrates there are no outstanding issues
of material fact and the moving party is entitled to judgment as a matter of law. Habib
v. NationsBank, 279 F.3d 563, 566 (8th Cir. 2001).
4With respect to the first element, Wells Fargo argues the agreement entitled
"Mutual Release" does not constitute a contract. It argues Minnesota law does not
recognize an affirmative claim for breach of a release, which it claims creates only a
defense for the person released and not a duty in the person granting the release.
Because this is a novel question of state law on which the Minnesota courts have
given us little or no prior guidance, we decline to address this argument.
5Pierringer v. Hoger, 124 N.W.2d 106 (Wis. 1963). The Pierrenger release was
designed to operate in comparative negligence cases where liability is apportioned
between defendants. Frey v. Snelgrove, 269 N.W.2d 918, 922 (Minn. 1978) (en
The basic elements of a Pierringer release are: (1) The release of the
settling defendants from the action and the discharge of a part of the
cause of action equal to that part attributable to the settling defendants'
causal negligence; (2) the reservation of the remainder of plaintiff's
causes of action against the nonsettling defendants; and (3) plaintiff's
agreement to indemnify the settling defendants from any claims of
C. Breach of Contract
Appellants argue Wells Fargo breached the Mutual Release by prosecuting the
Ramsey County litigation, by maintaining allegedly inaccurate records that reflected
a balance owed by MSK, by sending MSK account statements reflecting this balance,
and by disclosing the status of the MSK loan to Leroy Miller Design. Under
Minnesota law, to prevail on a breach of contract claim, Appellants must show "(1)
formation of a contract;4 (2) performance by [Appellants] of any conditions precedent;
(3) a material breach of the contract by [Wells Fargo]; and (4) damages." Parkhill v.
Minn. Mut. Life Ins. Co., 174 F. Supp.2d 951, 961 (D. Minn. 2000) (citing Briggs
Trans. Co. v. Ranzenberger, 217 N.W.2d 198, 200 (Minn. 1974)).
By the plain language of the Mutual Release, Wells Fargo released only Kakish
from liability relating to the ,000 promissory note. Appellants argue the release
of Kakish also released the others because Wells Fargo did not execute a Pierrenger5
contribution made by the nonsettling parties and to satisfy any judgment
obtained from the nonsettling defendants to the extent the settling
defendants have been released.
Id. at 920 n.1.
release, which specifically preserves claims against the remaining defendants and
indemnifies the released defendants. "When a settlement agreement does not contain
a Pierringer release . . . the general rule is that the 'release of one alleged tortfeasor
will release all others if the settlement agreement manifests such an intent, or if the
plaintiff received full compensation in law or in fact for damages sought against the
remaining tortfeasors.'" Johnson v. Brown, 401 N.W.2d 85, 88 (Minn. Ct. App. 1987)
(quoting Bixler by Bixler v. J.C. Penney Co., Inc., 376 N.W.2d 209, 214-15 (Minn.
1985)) (emphasis in original).
The rule originates in Gronquist v. Olson, 64 N.W.2d 159 (Minn. 1954), where
a married couple defaulted on a promissory note. After a jury found them responsible
for the debt, the wife settled part of the debt with the plaintiffs, who then dismissed
their action against her before judgment was entered. Her husband argued the
agreement discharging her operated to discharge him as well. The Minnesota
Supreme Court applied the following rule: where a party "receives a part of the
damages from one of the wrongdoers, the receipt thereof not being understood to be
in full satisfaction of the injury, he does not thereby discharge the others from
liability." Id. at 164. The court stated:
We believe that the factors determinative of whether a release of one of
several joint tort-feasors will operate to release the remaining
wrongdoers should be and are: (1) The intention of the parties to the
release instrument, and (2) whether or not the injured party has in fact
received full compensation for his injury. If we apply that rule, then,
where one joint tort-feasor is released, [r]egardless of what form that
release may take, as long as it does not constitute an accord and
satisfaction or an unqualified or absolute release, and there is no
manifestation of any intention to the contrary in the agreement, the
injured party should not be denied his right to pursue the remaining
wrongdoers until he has received full satisfaction.
Id. at 165; see also Wall v. Fairview Hosp. and Healthcare Servs., 584 N.W.2d 395,
403-04 (Minn. 1998) (applying Gronquist and determining the intent of the parties
was not to release their claims against all of the defendants and opining "to hold
otherwise would also contradict our strong public policy of encouraging settlement.");
Johnson, 401 N.W.2d at 89 (applying Gronquist as "the modern rule" and noting
application of a more rigid rule, which released all other tortfeasors in the absence of
a Pierringer release, could prevent a plaintiff from being made whole); Luxenburg v.
Can-Tex Industries, 257 N.W.2d 804, 807-08 (Minn. 1977) (applying Gronquist and
rejecting the proposition that release of one joint tortfeasor automatically discharges
the others).
The Mutual Release states Wells Fargo releases only Kakish. The agreement
contains no manifestation of any intention to release MSK or Raed from the debt.
Where the language of an agreement is clear, courts are to enforce the plain meaning
of the agreement. Current Techn. Concepts, Inc. v. Irie Enter., Inc., 530 N.W.2d 539,
543 (Minn. 1995). Futhermore, the terms of the agreement required Kakish to pay
only ,000 toward the defaulted ,000 loan. Under these facts, there can be no
implied release of the other debtors; Wells Fargo was free to pursue the balance of the
debt from MSK and Raed. Since Wells Fargo did not release MSK from liability for
its debt, it did not breach the agreement by maintaining a record of the debt,
continuing to seek payment from Raed, and crediting his payments against MSK's
account. Moreover, since the Mutual Release covers only Kakish, Wells Fargo did
not breach the contract by initiating and enforcing the Ramsey County default
judgment against MSK.
Wells Fargo did agree to keep the terms of the settlement confidential. The
information it released to Leroy Miller Design, however, did not disclose the existence
of litigation history and did not include the terms of the parties' settlement. Thus,
Wells Fargo did not breach the agreement with respect to confidentiality of terms.
With respect to Kakish's claims, Wells Fargo did not break any promise it made
to Kakish. The breach of contract allegations made by Appellants relate only to MSK
and do not identify any wrong against Kakish in his personal capacity. Kakish has no
Because neither appellant has a viable claim for breach of contract, summary
judgment was properly granted to Wells Fargo.
D. Defamation Claims
We next address Appellants' claims for defamation, credit defamation and
business disparagement. As the district court recognized, neither party identified facts
or legal authority to distinguish the claims as separate. We therefore analyze the three
claims under the Minnesota law of defamation.
"In order for a statement to be considered defamatory it must be communicated
to someone other than the plaintiff, it must be false, and it must tend to harm the
plaintiff's reputation and to lower him in the estimation of the community."
Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980) (citing
Restatement (Second) of Torts 558-559 (1977); W. Prosser, Handbook of the Law
of Torts 111 at 739 (4th ed. 1971)). Defamation claims require a showing of
publication by the defendant to a third party. An exception to the rule applies if the
plaintiff is "compelled to publish a defamatory statement to a third person" and "it was
foreseeable to the defendant that the plaintiff would be so compelled." Lewis v.
Equitable Life Assurance Soc'y, 389 N.W.2d 876, 888 (Minn. 1986). Under this
exception, which must be cautiously applied, plaintiffs have a duty to mitigate and are
required "to take all reasonable steps to attempt to explain the true nature of the
situation and to contradict the defamatory statement." Id.
Appellant first allege defamation arising out of Wells Fargo's prosecution and
enforcement of the Ramsey County litigation. Appellants allege Wells Fargo defamed
them by disclosing to others a debt that had been released. First, to the extent
Appellants allege defamation based on Wells Fargo's disclosures made during the
Ramsey County litigation, such publication is protected by absolute privilege.
Mahoney & Hagberg v. Newgard, 712 N.W.2d 215, 219 (Minn. Ct. App. 2006).
Second, to the extent Appellants allege defamation based on Wells Fargo's disclosure
of that judgment to Community First, Wells Fargo is protected by the defense of truth.
Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980). Wells Fargo
was truthful when it communicated to Community First that it had obtained a
judgment against Appellants and was owed money pursuant to that judgment.
Appellants next allege defamation based on two additional communications,
both of which disclosed account information and reflected a balance owed by MSK.
First are the monthly account statements sent to MSK. Second is the October 11 fax
from Wells Fargo to Leroy Miller Design. At the outset, we find neither of these
communications defamed Kakish. "Defamatory words, to be actionable, must refer
to some ascertained or ascertainable person and that person must be the plaintiffs."
Brill v. Minn. Mines, 274 N.W. 631, 633 (Minn. 1937); see Schlieman v. Gannett
Minn. Broad., Inc., 637 N.W.2d 297, 306 (Minn. Ct. App. 2001) (holding jury
instructions in a defamation action were proper when they required "a false and
defamatory statement which actually refers to the plaintiff"). Neither the fax to Leroy
Miller Design, nor the MSK monthly account statements refer to Kakish.
Consequently, the district court properly granted summary judgment to Wells Fargo
on Kakish's claims for defamation, credit defamation and business disparagement.
6We note unsworn statements are ordinarily inadmissible hearsay and do not
constitute competent evidence that can be considered under Fed. R. Civ. P. 56(e).
However, "otherwise inadmissible documents may be considered by the court if not
challenged." 10A Charles Alan Wright et al., Federal Practice & Procedure 2722,
at 384-85 (3d ed. 1998).
We begin with the monthly account statements. The statements were mailed
to the attention of MSK only. MSK therefore relies on the theory of compelled
disclosure to meet the publication requirement. Although the record does not contain
any written communications or even meeting minutes demonstrating MSK's selfpublication,
Kakish's deposition testimony is he informed MSK's board of directors
and at least one investor, who was not on the board, that Wells Fargo was claiming
MSK owed a debt. The record does contain unsworn letters from MSK board
members and investors, who stated they were no longer willing to invest in MSK
when they found out Wells Fargo was pursuing MSK for the balance on the
promissory note, a matter Kakish had told them was settled.6 The letters reflect deep
distrust of Kakish and the authors' conclusions Kakish must have lied to them about
the settlement.
We agree with the district court MSK was not compelled to self-publish to
investors that Wells Fargo was pursuing it for the defaulted loan. First, Wells Fargo
was not pursuing MSK for the balance of the loan; it was keeping the defaulted loan
on its books until the conditions of its settlement with Raed were satisfied. As stated
in the background section, Wells Fargo had specifically retained its right to pursue
Raed for the full balance of MSK's loan in the event Raed missed any of his settlement
payments. There is no evidence in the record that Wells Fargo demanded payment
from MSK or suggested it would take legal action against MSK to recover the balance
owed. Second, Wells Fargo's Hennepin County action against MSK for the debt was
dismissed with prejudice and, by law, Wells Fargo could no longer collect from MSK.
Third, Wells Fargo could not have foreseen MSK would feel compelled to inform its
investors of actions Wells Fargo was not taking.
With respect to the inclusion of the debt on MSK's monthly account statements,
Appellants argue that information was material to investors because it related to the
financial strength and creditworthiness of the company. We disagree. The
information about the defaulted loan was irrelevant to the actual financial strength and
creditworthiness of MSK; Wells Fargo did not demand payment from MSK and gave
MSK no reason to believe it intended to take legal action to recover the debt. Thus,
no reasonable investor would have needed to know about what was, at base, a Wells
Fargo accounting issue. See Basic Inc. v. Levinson, 485 U.S. 224, 231-32 (1988)
(adopting standard that for information to be material, such that it must be disclosed
to investors, there must be a "substantial likelihood" that the disclosure will be
"viewed by the reasonable investor" as "significantly alter[ing] the 'total mix' of
information made available"); Robbins v. Moore Med. Corp., 894 F. Supp. 661,
672-73 (S.D.N.Y. 1995) (granting summary judgment on the issue of materiality
where reasonable minds could not differ as to whether the undisclosed facts would be
important to a reasonable investor). Again, Wells Fargo could not have foreseen MSK
would feel compelled to inform its investors of the method of Wells Fargo's
accounting when it had no effect on the finances of MSK.
Furthermore, even if MSK were compelled to disclose the format of its monthly
statements to investors, it had a duty to mitigate. The law required MSK to "take all
reasonable steps to attempt to explain the true nature of the situation." Lewis, 389
N.W.2d at 888. When disclosing the nature of Wells Fargo's accounting of the
defaulted loan, MSK was required to explain it had settled all its debts with Wells
Fargo, Wells Fargo dismissed its claims against MSK with prejudice and was not
threatening any further litigation over the loan. While the board and investor
statements indicate Kakish did inform them of the settlement, they also show MSK
falsely led them to believe Wells Fargo was, nevertheless, pursuing MSK for the debt.
The law does not allow MSK to create its own claims in this fashion. See id. (warning
the danger in recognizing self-publication is in discouraging plaintiffs from mitigating
We next turn to the October fax Wells Fargo sent to Leroy Miller Design
disclosing the account information of MSK. We find the fax to be absolutely
privileged because of MSK's express authorization. In Minnesota, "defamatory
statements are absolutely privileged if the plaintiff consents to their publication."
LeBaron v. Minn. Bd. of Pub. Def., 499 N.W.2d 39, 42 (Minn. Ct. App. 1993) (citing
Restatement (Second) of Torts 583 (1977)); see also Otto v. Charles T. Miller Hosp.,
115 N.W.2d 36, 40 (Minn. 1962) (quoting Restatement (Second) of Torts 583
(1977)). As the Restatement indicates, "[i]t is not necessary that the other know that
the matter to the publication of which he consents is defamatory in character. It is
enough that he . . . have reason to know that it may be defamatory." Restatement
(Second) of Torts, 583 cmt. d. By MSK's own admission, Wells Fargo sent it
monthly account statements containing information about the defaulted loan balance
for at least five months before MSK authorized Wells Fargo to release its account
information to Leroy Miller Design. At the time MSK consented to the release,
therefore, it had reason to know the account information disclosed to Leroy Miller
Design by fax would be the same as in the monthly account statements.
Because the fax to Leroy Miller Design was made with the express
authorization of MSK, Wells Fargo is absolutely privileged against MSK's defamation
claim. Summary judgment was appropriately granted.
E. Tortious Interference
Appellants also bring claims for tortious interference with prospective
economic advantage arising from Wells Fargo's enforcement of the Ramsey County
judgment and the October 11 fax to Leroy Miller Design. Claims arising out of
purported defamatory statements, such as tortious interference, are properly analyzed
under the law of defamation. Mahoney & Hagberg v. Newgard, 729 N.W.2d 302,
309-10 (Minn. 2007). "Absolute privilege also bars claims sounding in defamation
that is claims where the injury stemmed from and grew out of the defamation." Id.;
see, e.g., Pinto v. Internationale Set Inc., 650 F. Supp. 306, 309 (D. Minn. 1986) ("[I]n
Minnesota, a plaintiff cannot elude the absolute privilege by relabeling a claim that
sounds in defamation.") Appellants' claims for tortious interference with prospective
economic advantage fail for the same reasons their defamation claims fail.
F. Negligence
Appellants contend Wells Fargo negligently collected, investigated and retained
inaccurate data about MSK. The district court concluded Appellants' negligence claim
stemmed from the allegedly defamatory communications, and granted summary
judgment to Wells Fargo on the same basis as the defamation claims. Appellants urge
us to find their negligence claims are based on more than just the defamatory
communications; they contend the claims are based on Wells Fargo's negligent
handling of information contained in its internal accounting systems and its billing
systems. We are not persuaded.
Negligence requires "(1) the existence of a duty of care; (2) a breach of that
duty; (3) an injury; and (4) the breach of the duty being the proximate cause of the
injury." Engler v. Ill. Farmers Ins. Co., 706 N.W.2d 764, 767 (Minn. 2005). We
know of no authority holding a company has a duty to its clients to maintain accurate
internal data. Furthermore, Wells Fargo's retention of inaccurate data was not the
proximate cause of Appellants' alleged injury; if anything, disclosure of the
information to third parties produced the alleged injury. Like the district court, we
conclude Appellants have inappropriately dressed their defamation claim in the garb
of negligence. Summary judgment was properly granted in favor of Wells Fargo on
the negligence claim.
7Appellants' only allegation of bad faith was its argument Wells Fargo breached
the mutual release by collecting the Ramsey County judgment.
G. Garnishment
Appellants contend Wells Fargo violated the Minnesota Garnishment Statute
by acting in bad faith when it garnished MSK's account at Community First. Under
the Minnesota Garnishment Statute, they argue the garnishment is therefore void.
Minn. Stat. 571.90 (2000). Appellants also argue Wells Fargo violated the statute
by failing to provide the required fee to the garnishee, Community First. Id.
The district court properly found Wells Fargo's efforts to collect the Ramsey
County judgment through garnishment was legal and, therefore, not in bad faith.7
With respect to Appellants' second argument, pertaining to the Section 571.76
violation, Appellants do not have standing to enforce Section 571.76, which requires
Wells Fargo to make payment to Community First.
The district court properly granted summary judgment to Wells Fargo on
MSK's garnishment claims.
H. Motion to Amend
Appellants argue the district court committed reversible error by not expressly
ruling on its motion for leave to file a second amended complaint. A denial of a
motion to amend is reviewed for abuse of discretion. Thomas v. Corwin, 483 F.3d
516, 532 (8th Cir. 2007). It is not an abuse of discretion for the district court to
implicitly deny a motion for leave to amend by entering final judgment inconsistent
with the relief sought in the motion. Cohen v. Curtis Pub. Co., 333 F.2d 974, 977 (8th
Cir. 1964).
We find it was not an abuse of discretion for the district court to deny
Appellants' motion to amend. Appellants brought their motion nearly three months
after the Rule 16 deadline for amendment, nearly two years after the action was
commenced, and after Appellants were notified Wells Fargo was moving for summary
judgment. See Baptist Health v. Smith, 477 F.3d 540, 544 (8th Cir. 2007) (holding
"there is no absolute right to amend and a court may deny the motion based upon a
finding of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies
in previous amendments, undue prejudice to the non-moving party, or futility.")
Accordingly, we affirm the district court's grant of summary judgment to Wells


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