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Zutz v. Nelson: US District Court : CIVIL PROCEDURE | DEFAMATION - defamation alone just a tort, not a Constitional reputation deprivation

Loren J. Zutz and Elden J. Elseth,
v. Civil No. 08-958 (JNE/RLE)
John Nelson, Arlyn Stroble, Nick Drees,
Douglas Kamrowski, RoughRider Legal
Support Services, Inc., and Danny Omdahl,
Paul A. Sortland, Esq., Sortland Law Office, appeared for Plaintiffs Loren J. Zutz and Elden J.
Lindsay G. Arthur, Jr., Esq., Arthur Chapman Kettering Smetak & Pikala, PA, appeared for
Defendants John Nelson and Arlyn Stroble.
Paula Duggan Vraa, Esq., Larson King, LLP, appeared for Defendants Nick Drees and Danny
Richard P. Mahoney, Mahoney Dougherty and Mahoney, PA, Esq., appeared for Defendants
Douglas Kamrowski and RoughRider Legal Support Services, Inc.
Plaintiffs Loren J. Zutz and Elden J. Elseth are board members of the Middle Snake
Tamarac Rivers Watershed District, and they bring this action against two other board members,
Defendants John Nelson and Arlyn Stroble; the Districts Administrator, Defendant Nick Drees;
an employee of the District, Defendant Danny Omdahl; and an investigator and investigative
agency, Defendants Douglas Kamrowski and RoughRider Legal Support Services, Inc.,
respectively. Plaintiffs assert claims under 42 U.S.C. 1983 (2000) for alleged violations of
their constitutional rights, as well as claims under state law for defamation per se, defamation,
and negligent defamation. Plaintiffs also seek a declaration that certain actions they have taken
did not violate Minnesota law. The case is before the Court on various dispositive motions filed
by Defendants. For the reasons below, the Court grants the motions and dismisses the case.
As best the Court is able to discern, the federal claims in Plaintiffs Complaint are based
on allegations of defamation, presumably in violation of Plaintiffs Fourteenth Amendment
rights to due process.1 Defamation, by itself, is a tort actionable under the laws of most States,
but not a constitutional deprivation. Siegert v. Gilley, 500 U.S. 226, 233 (1991). Before
damage to reputation will qualify as a liberty or property interest protected by the Fourteenth
Amendment right to procedural due process, [t]he loss of reputation must be coupled with some
other tangible element, Gunderson v. Hvass, 339 F.3d 639, 644 (8th Cir. 2003), such as loss of
public employment. See Siegert, 500 U.S. at 234-35; Paul v. Davis, 424 U.S. 693, 701-12
(1976); cf. Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 401 (3d Cir. 2000)
(stating that, while defamation-related procedural due process claims are cognizable, precedent
makes clear that [a defamation-type] claim cannot present a substantive due process violation
in the first place). In this case, neither the Complaint nor Plaintiffs memoranda allege some
other such tangible element. See Brown v. Simmons, 478 F.3d 922, 923 n.3 (8th Cir. 2007)
(indicating that, in connection with alleged defamation, transferring an employee to a different
position with less pay is insufficient to create a due process issue). Accordingly, the Court
concludes that Plaintiffs fail to state a claim with respect to their defamation-based allegations
regarding violation of their Fourteenth Amendment due process rights. See Frey v. City of
Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995) (indicating a motion to dismiss should be granted
1 To the extent that Plaintiffs assert any conspiracy claim pursuant to 42 U.S.C. 1985
(2000), the claim is conclusory and should be dismissed. See Snelling v. Westhoff, 972 F.2d 199,
200 (8th Cir. 1992). In addition, Plaintiffs memoranda indicate an intention to assert, pursuant
to section 1983, a First Amendment retaliation claim. However, Plaintiffs motion to amend the
Complaint to add, among other things, a First Amendment retaliation claim was denied on the
ground that the amendments would have been futile.
when the allegations that show on the face of the complaint that there is some insuperable bar to
relief (quotation marks omitted)).
Regarding Plaintiffs remaining claims, the Declaratory Judgment Act does not provide
an independent basis for federal jurisdiction, see Victor Foods, Inc. v. Crossroads Economic
Development, 977 F.2d 1224, 1227 (8th Cir. 1992), and a district court may decline to exercise
supplemental jurisdiction over state-law claims if it has dismissed all claims over which it has
original jurisdiction, 28 U.S.C. 1367(c)(3) (2006). Plaintiffs may pursue these claims in state
court. In the absence of complete diversity, the Court dismisses these claims without prejudice.
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
1. Defendants Nelson and Strobles Motion to Dismiss with Prejudice
[Docket No. 22] is GRANTED to the extent herein indicated.
2. Defendants Drees and Omdahls Rule 12 Motion to Dismiss [Docket No.
34] is GRANTED to the extent herein indicated.
3. Defendants Kawrowski and RoughRider Legal Support Services Motion
for Summary Judgment [Docket No. 39] is GRANTED to the extent
herein indicated.
4. Counts I, II, and VII of Plaintiffs Complaint [Docket No. 1] are
5. Counts III, IV, V, and VI of Plaintiffs Complaint [Docket No. 1] are
Dated: January 23, 2009
s/ Joan N. Ericksen
United States District Judge


  What day were you injured?

  / /

  What caused your injuries?
Traffic/Bicycle Accident
Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall

  How have your injuries affected

  your life?


  What kinds of medical care
  professionals have you seen?


  What has your treatment cost?


  Is Insurance Involved?
My insurance may cover

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement

I accepted a settlement

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report



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