1

The Honorable Gary A. Fenner, United States District Judge for the Western

District of Missouri. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-3206

___________

Ken Hammer, *

*

Plaintiff-Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri 

The City of Osage Beach, Missouri, *

and Jim Schneider, *

*

Defendants-Appellees. *

*

___________

Submitted: March 14, 2002

Filed: January 31, 2003

___________

Before McMILLIAN, HEANEY and RILEY, Circuit Judges.

___________

McMILLIAN, Circuit Judge.

Plaintiff Ken Hammer (“Hammer”) appeals from an order entered in the United

States District Court for the Western District of Missouri1

 granting summary

judgment in favor of Defendants the City of Osage Beach (“the City”) and the City’s

Mayor, Jim Schneider (collectively “Defendants”). See Hammer v. City of Osage
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Beach, No. 00-4050-CV-4-ECF (W.D. Mo. Sept. 7, 2001) (hereinafter “slip op.”).

For reversal, Hammer argues that the district court erred in granting summary

judgment in favor of Defendants because there were genuine issues of material fact

in dispute as to (1) whether Defendants violated his procedural due process rights;

(2) whether he was wrongfully discharged; and (3) whether statements critical of his

job performance contained in a press release were non-actionable opinions protected

by the First Amendment. In addition, he argues that the district court erred in

granting summary judgment in favor of Mayor Schneider because only the City filed

a summary judgment motion. Hammer also argues that the district court abused its

discretion in denying his second motion to amend his complaint. For the reasons set

forth below, we affirm the judgment of the district court.

Jurisdiction in the district court was proper based on 28 U.S.C. §§ 1343 and

1367. Jurisdiction in this court is proper based upon 28 U.S.C. § 1291. The notice

of appeal was timely filed pursuant to Fed. R. App. P. 4(a). 

FACTS

Hammer was the City Administrator for the City of Osage Beach, Missouri.

As City Administrator, Hammer’s responsibilities included preparation of the City’s

personnel code and pay plan. Hammer was also the City budget officer and under

state statute and City ordinance was responsible for preparing the proposed budget

for the mayor and the board of aldermen (the “Board”). Hammer did not have a

written employment contract with the City. Under Osage Beach City Ordinance
2

At the time of Hammer’s hiring and termination, Osage Beach Ordinance 2-

123, provided:

(a) A qualified person shall be appointed city administrator by

the mayor; such appointment shall be approved by a

majority of the board of aldermen. The person so

appointed shall serve for an indefinite term.

(b) The city administrator shall serve at the pleasure of the

appointing authority. The mayor, with the consent of a

majority of the board of aldermen, may remove the city

administrator from office at will. If requested, the mayor

and board of aldermen shall grant the city administrator a

public hearing within thirty (30) days following notice of

such removal. 

3

Mo. Rev. Stat. § 79.240 provides in relevant part:

The mayor may, with the consent of a majority of all the members

elected to the board of aldermen, remove from office any

appointive officer of the city at will, and any such appointive

officer may be so removed by a two-thirds vote of all the

members elected to the board of aldermen, independently of the

mayor’s approval or recommendation. 

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2-123,2 the City Administrator position was for an indefinite term and could be

terminated by procedures set forth in Mo. Rev. Stat. § 79.240.3

On December 15, 1999, Mayor Schneider issued a press statement regarding

the general status of the City’s government (the “December 15 Press Statement”).

The December 15 Press Statement referred to certain recent conduct by Hammer and

two aldermen and contained accusations of general improprieties and illegalities

related to the City’s health insurance, contract bids, and Hammer’s termination of
4

Although Hammer never raised the issue of supplemental jurisdiction, the

district court nevertheless analyzed Hammer’s state law claims, presumably pursuant

to 28 U.S.C. § 1367. 

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another City employee. On January 10, 2000, at a closed meeting of the Board,

Alderman Sheely moved to terminate Hammer’s employment with the City. All six

members of the Board voted on the motion to terminate Hammer, with three aldermen

voting in favor of the termination and three opposed. Mayor Schneider broke the tie

by casting his vote in favor of the termination motion. In a letter dated January 11,

2000, Mayor Schneider advised Hammer that his employment was terminated

effective immediately. The letter did not state the reason for Hammer’s termination.

On January 25, 2000, Hammer submitted a written request for a public hearing

before the Board. Hammer requested advance notice of the date and time of the

hearing in order to prepare for the hearing and to inform any witnesses he might

choose to call. On January 27, 2000, Hammer received a letter from the City’s

attorney informing him that a public hearing would be held on February 7, 2000, and

that only he would be permitted to address the Board and the public. Hammer spoke

at the February 7, 2000, hearing and was given an unlimited amount of time to air his

concerns. Hammer’s attorney was also permitted to speak on his behalf. Nothing in

the hearing record indicates that Hammer attempted to call witnesses.

On March 28, 2000, Hammer filed this suit in the United States District Court

for the Western District of Missouri. On March 26, 2001, the district court granted

Hammer’s motion to amend his complaint. In his amended complaint, Hammer

alleged that Defendants: (1) deprived him of a property interest without due process

by failing to comply with Mo. Rev. Stat. § 79.240 when they terminated his

employment, in violation of 42 U.S.C. § 1983; (2) wrongfully terminated his

employment4

; and (3) defamed him through false and libelous statements in the
5

Hammer’s complaint also contained a count alleging that the City illegally

tapped his office phone and illegally recorded his conversations, depriving him of his

right to be free from unreasonable searches and seizures and his right to privacy, in

violation of the Fourth Amendment. On August 23, 2001, the district court dismissed

this count with prejudice by stipulation of the parties.

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December 15 Press Statement.5 On August 15, 2000, the district court denied

Hammer’s second motion for leave to amend his complaint to allege claims of

retaliation for whistleblower activities. On August 23, 2001, the district court

allowed the City to amend its answer to add the affirmative defense of sovereign

immunity. 

On September 7, 2001, the district court granted the City’s motion for summary

judgment. Slip op. at 14. The district court held that Defendants had complied with

the termination provisions contained in Mo. Rev. Stat. § 79.240, that Mayor

Schneider was authorized to break the tie vote of the Board under Mo. Rev. Stat.

§ 79.120, and that Hammer’s procedural due process rights were not violated. Id. at

5-10. In addition, the district court held that Hammer’s tort claim for wrongful

discharge was barred by sovereign immunity and that any potential claim for breach

of contract must fail because Hammer had no written employment contract with the

City or, in the alternative, because he failed to adequately plead a claim for breach of

contract. Id. at 11-12. The district court also held that Hammer failed to properly

plead a claim of First Amendment retaliation. Id. at 12. Finally, the district court

found that Hammer’s defamation claim was also barred by sovereign immunity, and,

in any event, the statements contained in the December 15 Press Statement were

privileged opinions protected by the First Amendment and, therefore, not actionable.

Id. at 13-14. Although Mayor Schneider had not joined the City’s motion for

summary judgment, the district court held that the mayor’s statements were privileged

and, therefore, non-actionable, and dismissed the defamation claim as to all parties.

Id. (citing Ribaudo v. Bauer, 982 S.W.2d 701, 703 (Mo. Ct. App. 1998) (Ribaudo)
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(dismissing libel claim against all parties where summary judgment was requested by

only one party because the statement at issue was privileged)). This appeal followed.

DISCUSSION

We review the district court’s decision to grant summary judgment de novo.

See Audio Odyssey, Ltd. v. United States, 255 F.3d 512, 516 (8th Cir. 2001) (citing

Do v. Wal-Mart Stores, 162 F.3d 1010, 1012 (8th Cir. 1998) (additional citations

omitted)). The question before the district court, and before this court on appeal, is

whether the record, when viewed in the light most favorable to the non-moving party,

shows that there are no genuine issues as to any material fact and that the moving

party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (Celotex); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249-50 (1986). The mere existence of a factual dispute is

insufficient alone to bar summary judgment; rather, the dispute must be outcome

determinative under the applicable law. See Celotex, 477 U.S. at 248. Having

reviewed the record as a whole, considering all facts and reasonable inferences that

can be drawn from them in the light most favorable to Hammer as the non-moving

party, we conclude that the district court correctly granted summary judgment in favor

of Defendants. 

I.

Hammer first contends that there were genuine issues of material fact in dispute

as to whether Defendants failed to follow proper termination procedures in violation

of City ordinance, state law, and his constitutional right to procedural due process.

Under Mo. Rev. Stat. § 79.240, which governs fourth class cities, including the City

of Osage Beach, an appointed city officer may be removed at will by the mayor with

a majority vote of all members of the board of aldermen. The board of aldermen may

also remove an appointed city officer independent of the mayor’s approval or

recommendation by a two-thirds majority vote. Hammer claims that a two-thirds
6

Hammer argues that his case may be distinguished from the case relied on by

the district court, State ex rel. Gorris v. Mussman, 612 S.W.2d 357 (Mo. Ct. App.

1980) (Gorris). Hammer maintains that the vote on the original termination motion

was tied, and it could not be assumed that Mayor Schneider would automatically

obtain approval for his own motion to terminate. Additionally, Hammer argues that

the official record does not show Mayor Schneider’s approval of the Board’s motion

or his official decision to exercise the removal power, so it is unclear whether the

mayor was simply approving the Board’s action or exercising his own removal power.

Therefore, Hammer argues that there were genuine issues of material fact in dispute

as to who exercised the termination power under the statute and whether the

termination was effective. Under Gorris, however, “[w]hich of the two procedures

under § 79.240 is to be followed does not depend on who ‘initiated’ the action to

remove the official but on who actually exercises the removal power.” Id. at 361. By

voting in favor of the motion to terminate, Mayor Schneider expressed his intent to

dismiss Hammer and was not required to once again obtain the consent of the Board

in order to effect the removal. Id.

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majority vote of the Board was required to effect his termination because Alderman

Sheely, not Mayor Schneider, made the original motion calling for his termination.

Because the Board’s original vote was tied three to three, Hammer claims that the

vote was merely an “attempted termination” which failed to effectively terminate his

employment. Hammer also argues that Mayor Schneider should not have been

allowed to vote on the motion to terminate his employment because his personal

enmity towards Hammer made him an interested party. 

The district court held that it was irrelevant whether Mayor Schneider or an

alderman first presented the motion to terminate Hammer’s employment to the Board,

citing State ex rel. Gorris v. Mussman, 612 S.W.2d 357 (Mo. Ct. App. 1980)

(Gorris)).6

 In order for Hammer’s termination to be effective under Mo. Rev. Stat.

§ 79.240, Mayor Schneider's recommendation and approval by a simple majority of

the Board was all that was required. After the Board’s vote on the motion to

terminate ended in a tie, Mayor Schneider properly cast the tie-breaking vote. In

exercising this power, Mayor Schneider expressed his intent to dismiss Hammer by

personally voting for his dismissal – a decision supported by a majority of the Board.
7

Mo. Rev. Stat. § 79.120 provides in relevant part: “[t]he mayor shall have a

seat in and preside over the board of aldermen, but shall not vote on any question

except in the case of a tie, nor shall he preside or vote in cases where he is an

interested party.”

8

Hammer conceded that he had not discovered evidence of Mayor Schneider’s

financial interest in the proceedings. Hammer v. City of Osage Beach, No. 00-4050-

CV-4-ECF at 6 (W.D. Mo. Sept. 7, 2001) (hereinafter “slip op.”). 

9

Hammer cites to Hall v. Missouri Highway & Transp. Comm’n, 235 F.3d 1065

(8th Cir. 2000), for examples of what “enmity” means in an employment context.

Such behavior includes: raising one’s voice at an employee, slamming doors, walking

out of the room while an employee is speaking, making disparaging comments, and

asking the employee to perform unnecessary work. Id. at 1068-69. Although the

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As in Gorris, “the actions of the board and the mayor, following one upon the other,

coalesced; together, these actions constituted a proper dismissal under the

requirements of § 79.240.” Id. at 362. Therefore, we hold the district court correctly

ruled that Hammer’s termination did not violate Mo. Rev. Stat. § 79.240 as a matter

of law. 

We similarly reject Hammer’s argument that there was a genuine issue of

material fact as to whether Mayor Schneider should have been disqualified from

casting the tie-breaking vote because he was an interested party. Under Mo. Rev.

Stat. § 79.120, the mayor has the authority to vote in matters before the board of

aldermen in case of a tie, but may not vote in cases where he or she is an interested

party.7

 The mayor is considered interested if he or she has either a pecuniary interest

in the proceedings, or a personal interest resulting from “deep personal enmity.”

State ex rel. Ciaramitaro v. Charlack, 679 S.W.2d 405, 408 (Mo. Ct. App. 1984)

(Ciaramitaro).8

 Although the record shows that Hammer had policy disagreements

with Mayor Schneider, we agree with the district court’s conclusion that Hammer

failed to present evidence showing a genuine issue of material fact as to whether these

disagreements rose to “the level of deep-rooted, mutual hatred, as is required to be an

interested party under Ciaramitaro.”9

 Slip op. at 7. These political disagreements,
record contains evidence of policy disputes between Hammer and Mayor Schneider,

Hammer fails to show that they rose to the level of personal enmity required to

disqualify the Mayor from voting. 

10Like Mo. Rev. Stat. §79.240, Osage Beach City Ordinance § 2-123(b)

provided at the time of Hammer’s termination that the mayor may, with the consent

of the majority of the board of aldermen, remove the city administrator from office

at will. Osage Beach City Ordinance § 2-123(b), however, provided an additional

provision not contained in Rev. Mo. Stat. §79.240 whereby, upon request, the mayor

and the board of aldermen were required to grant the city administrator a public

hearing within 30 days following notice of removal. The Ordinance is nevertheless

silent regarding the form and content of the requisite hearing. 

11To establish a due process violation, the plaintiff must show that he or she has

a protected liberty or property interest. Merritt v. Reed, 120 F.3d 124, 126 (8th Cir.

-9-

standing alone, were not sufficient to create a triable issue of material fact as to

whether Mayor Schneider was an interested party. Because Hammer failed to present

sufficient evidence of the mayor’s personal enmity towards Hammer, the district court

correctly held as a matter of law that Mayor Schneider was not disqualified from

breaking the tie vote of the Board under Mo. Rev. Stat. § 79.120. 

II.

Hammer also argues there were genuine issues of material fact as to whether

he received notice of the reasons for his termination and whether the hearing held on

February 7, 2000, was a constitutionally adequate name-clearing hearing. Hammer

contends that the February 7, 2000, hearing was insufficient to clear his name because

he was not allowed to call witnesses and the Board did not reconsider its decision to

terminate his employment.10 

An at-will public employee generally does not have a protected liberty interest

in continued employment which would obligate a government employer to provide

a hearing in connection with the employee’s discharge.11 See Speer v. City of Wynne,
1997) (citing Shands v. City of Kennett, 993 F.2d 1337, 1347 (8th Cir. 1993)). The

district court found that Hammer could not show that he had a property interest in his

continued employment because he was an at-will employee who could be terminated

at any time for any reason. Slip op. at 7 (citing Board of Regents v. Roth, 408 U.S.

564, 572 (1972) (Roth)) (additional citations omitted). Therefore, the district court

properly limited its analysis to the issue of whether Hammer had a protected liberty

interest. 

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276 F.3d 980, 984 (8th Cir. 2002) (Speer) (citing Bishop v. Wood, 426 U.S. 341, 348

(1976) (Bishop)). An exception exists, however, in cases where an employee is

terminated in connection with publicized allegations of illegal or improper conduct.

Id. In Board of Regents v. Roth, 408 U.S. 564, 573 (1972) (Roth), the Supreme Court

held that a government employee has a liberty interest in his or her good name and

reputation, which is entitled to protection when he or she is fired based on allegations

of dishonesty, immorality, or illegality. To establish the deprivation of a liberty

interest, a public employee must make a three-part showing: (1) that the public

employer’s reasons for the discharge stigmatized the employee, seriously damaging

his or her reputation or by foreclosing other employment opportunities; (2) that the

employer made the reasons for the discharge public; and (3) that they employee

denied the charges that led to the discharge. Speer, 276 F.3d at 984 (citing Coleman

v. Reed, 147 F.3d 751, 754-55 (8th Cir. 1998)) (additional citations omitted). Where

this showing has been made, under the Constitution’s procedural due process

protections, the employee must be provided with adequate notice and an opportunity

to dispute the charges in a “name-clearing” hearing. Id. (citing Codd v. Velger, 429

U.S. 624, 627-28 (1977) (per curiam) (Codd)) (additional citations omitted); Merritt

v. Reed, 120 F.3d 124, 126 (8th Cir. 1997) (citing Bishop, 426 U.S. at 349).

Based on the undisputed facts, the district court found that Hammer’s liberty

interests were implicated by the December 15 Press Statement. The December 15

Press Statement criticized Hammer’s job performance and accused him of conduct

that was “improper or even worse illegal” in connection with the City’s health

insurance program and the award of City contracts, and would therefore create the
12Hammer and Mayor Schneider also attended a closed session of the Board on

November 4, 1999, in which many of the same allegations contained in the December

15 Press Statement were discussed. See Minutes of the Closed Session of the Board

of Aldermen of the City of Osage Beach, Missouri (Nov. 4, 1999) (Joint App. at 176-

80). 

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type of stigma discussed in Roth. Slip op. at 8. In addition, Hammer presented

evidence that he was confronted with the allegations during his job search and refused

positions because of them, creating an issue of material fact as to whether the stigma

affected his ability to find future employment. Id. at 9. The charges were publically

disseminated when the December 15 Press Statement was released to the local media

in Osage Beach. Id. Hammer also repeatedly denied the truth of the allegations in

the December 15 Press Statement. Id. Therefore, the district court correctly held as

a matter of law that Hammer was entitled to an opportunity to clear his name. Codd,

429 U.S. at 627 (once a claim of stigmatization is properly made under Roth, plaintiff

must be given an opportunity to clear his or her name). See also Johnson v. Rogers,

621 F.2d 300, 306 (8th Cir. 1980) (deprivation of liberty interest found where news

release issued by the county sheriff in connection with the plaintiff’s termination

accused her of wrongdoing, damaged her reputation, and the plaintiff denied the

charges). 

Hammer maintains that he received insufficient notice of the reasons for his

termination and that the hearing he received was not a proper name-clearing hearing.

We disagree. The December 15 Press Statement, despite the fact that it was issued

nearly a month before Hammer was terminated, contained statements that were

“clearly made in connection with the Plaintiff’s subsequent discharge.” Slip op. at

8.12 In other words, Hammer cannot genuinely dispute the fact that he received

sufficient notice of the reasons his employment was terminated. Moreover, the Board

was not required to reconsider its decision to terminate Hammer in order for the

hearing to pass constitutional muster. See Codd, 429 U.S. at 627 (“[T]he hearing

required where a nontenured employee has been stigmatized in the course of a
13Although not directly raised, Hammer also argues that the district court

should not have dismissed Count III against Mayor Schneider. Hammer maintains

that because Defendants have taken the position that Mayor Schneider terminated

Hammer, pleading in the alternative, Mayor Schneider would be the proper defendant

under Count III. Federal district courts may “grant summary judgment sua sponte

when the losing party is given sufficient advance notice and an adequate opportunity

to submit evidence in opposition.” Chrysler Credit Corp. v. Cathey, 977 F.2d 447,

449 (8th Cir. 1992) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986))

(additional citations omitted). Here, Hammer knew that the district court was

considering the City’s summary judgment motion, and had a chance to present his

evidence. See id. Hammer also knew that Mayor Schneider’s right to judgment

turned on the same issues as the City’s right to judgment. See id. Having concluded

that Hammer’s claims against the City were either non-meritorious, improperly plead,

or barred by sovereign immunity, the district court was within its power to also enter

judgment in favor of Mayor Schneider. See id.

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decision to terminate his employment is solely ‘to provide the person the opportunity

to clear his name.’”) (quoting Roth, 408 U.S. at 573 n.12). All that is required is that

the aggrieved party be offered a chance to refute the charges against him or her. Id.

The February 7, 2000, hearing fulfilled the limited purpose of clearing Hammer’s

name, and did not need to preserve his interest in his job. Roth, 408 U.S. at 573 n.12

(“Once a person has cleared his name at a hearing, the employer, of course, may

remain free to deny him future employment for other reasons.”). Hammer was given

unrestricted time to speak at the hearing, and his attorney was also allowed to speak

on his behalf. Therefore, the district court did not err when it held as a matter of law

that the February 7, 2000, hearing was constitutionally adequate. 

III.

Hammer next argues that there were genuine issues of material fact in dispute

as to the nature of the relationship between the parties. Hammer argues that Count

III of his amended complaint is a breach of contract claim or a First Amendment

retaliation claim or both.13 The district court, however, was “confused as to exactly
14The district court dismissed Hammer’s First Amendment whistleblower claim

as improperly plead. Slip op. at 12.

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what cause of action [Hammer] attempts to bring under Count III,” slip op. at 10-11,

and therefore examined Count III under both state tort and contract theories.14 

We review the district court’s interpretation of Missouri law de novo. Toney

v. WCCO Television, Midwest Cable & Satellite, Inc., 85 F.3d 383, 386 (8th Cir.

1996) (Toney) (citing Farr v. Farm Bureau Ins. Co., 61 F.3d 677, 679 (8th Cir. 1995)

Farr)). The district court found that Count III properly stated a state tort claim for

wrongful discharge. Under Missouri law, political subdivisions have sovereign

immunity from state tort claims under Mo. Rev. Stat. § 537.600, except in three

enumerated circumstances. Sovereign immunity may be waived (1) where public

employees are involved in an automobile accident, or (2) where injuries are caused

by the condition of public property if the land is kept in dangerous condition. Mo.

Rev. Stat. § 537.600. Sovereign immunity may also be waived (3) when a political

subdivision purchases liability insurance. Mo. Rev. Stat. § 537.610. Although the

City purchased liability insurance, the policy expressly stated that it did not expand

the City’s liability beyond that which is established in Mo. Rev. Stat. §§ 537.600 and

537.610. See slip op. at 12. The district court therefore correctly held that none of

these exceptions applied and properly dismissed Hammer’s wrongful discharge claim.

Id. See, e.g., State ex rel. Ripley County v. Garrett, 18 S.W.3d 504, 508-09 (Mo. Ct.

App. 2000) (granting summary judgment where endorsement in the county’s general

commercial liability insurance policy expressly preserved sovereign immunity),

overruled on other grounds by Amick v. Pattonville-Bridgeton Terrace Fire

Protection Dist., No. SC 84677, 2002 WL 31863859, at *2 (Mo. Dec. 24, 2002).

We agree with the district court that Hammer failed to adequately plead a

breach of contract claim under Count III. Count III did not contain either the word

“breach” or “contract.” Only after the City raised the defense of sovereign immunity

to the state tort claim did Hammer first argue his claim was actually for breach of
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contract. We also agree with the district court that Hammer did not have an implied

contract of employment with the City. Hammer acknowledges that he did not have

a written contract of employment with the City, and the district court properly

concluded that, despite city ordinances requiring certain procedures before the city

administrator could be terminated, Hammer remained an at-will employee. See Fidler

v. Personnel Comm. for the City of Raytown, 766 S.W.2d 158, 160 (Mo. Ct. App.

1989) (“[A] public employer, particularly a municipality . . . , has no authority to limit

by contract or ordinance the power granted the public body [under Mo. Rev. Stat.

§79.240] to hire and discharge at will its appointed officers.”) (citing Russell v. City

of Raytown, 544 S.W.2d 48 (Mo. Ct. App. 1976)). The City could therefore

terminate Hammer “without reason or for no reason at all.” Id. See also Armer v.

City of Salem, 861 F.2d 514, 516 (8th Cir. 1988) (holding police officers were at-will

employees under Mo. Rev. Stat. § 79.240 and thus were removable “for any reason

or no reason.”).

IV.

Regarding his state law defamation claim, Hammer next argues that there were

genuine issues of material fact in dispute as to whether criticisms of his job

performance contained in the December 15 Press Statement were non-actionable

opinions protected by the First Amendment. See Press Statement, Jim Schneider,

Mayor, City of Osage Beach, Missouri (Dec. 15, 1999) (Joint App. at 31-32).

Hammer also argues that the district court erred in granting summary judgment in

favor of Schneider on the defamation claim because only the City filed a motion for

summary judgment. 

We again review the district court’s interpretation of Missouri law de novo.

Toney, 85 F.3d at 386 (citing Farr, 61 F.3d at 679). Under Missouri law, there is a

two-part test for reviewing allegedly defamatory statements to determine whether a

plaintiff can survive summary judgment: (1) whether the statement is capable of

having a defamatory meaning and, if so, (2) whether one or more privileges shields
15Allegations of specific criminal conduct are considered statements of fact.

Diez v. Pearson, 834 S.W.2d 250, 252 (Mo. Ct. App. 1992) (citing Henry v.

Halliburton, 690 S.W.2d 775, 790 (Mo. 1985) (Henry)). A statement merely referring

to criminal conduct, however, must be examined in context to determine “whether the

reader would be left with the impression that the plaintiff was being accused of a

crime or that the defendant disagreed with the plaintiff’s conduct and used pejorative

statements or vituperative language to indicate his or her disapproval.” Id. (citing

Henry, 690 S.W.2d at 788-89).

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the defendant from legal action. Ribaudo, 982 S.W.2d at 704 (citations omitted);

Pape v. Reither, 918 S.W.2d 376, 380 (Mo. Ct. App. 1996) (Pape) (citations omitted).

Statements of opinion, even if made maliciously or insincerely, are afforded absolute

privilege under the free speech clause of the First Amendment and cannot be

actionable libel. Pape, 918 S.W.2d at 380 (citing Diez v Pearson, 834 S.W.2d 250,

253 (Mo. Ct. App. 1992) (Diez)). Whether a purportedly defamatory statement is a

protected opinion or an actionable assertion of fact is a question of law for the court.

Pape, 918 S.W.2d at 379 (citations omitted); Diez, 834 S.W.2d at 252 (citations

omitted). The test for determining whether a statement is an opinion is “‘whether a

reasonable factfinder could conclude that the statement implies an assertion of

objective fact.’” Ribaudo, 982 S.W.2d at 705 (quoting Nazeri v. Missouri Valley

College, 860 S.W.2d 303, 314 (Mo. 1993)). The court must examine “the totality of

the circumstances to determine whether the ordinary reader would have interpreted

the statement as an opinion.” Diez, 834 S.W.2d at 252 (citing Henry v. Halliburton,

690 S.W.2d 775, 788 (Mo. 1985) (Henry)). The privilege does not apply, however,

where the statement of opinion implies the existence of undisclosed defamatory

facts.15 Ribaudo, 982 S.W.2d at 704 (citing Pape, 918 S.W.2d at 380). 

The district court found that the statements made by Mayor Schneider appeared

capable of having a defamatory meaning, but held that the statements were nonactionable privileged opinions expressed by the mayor as part of an ongoing political
16The district court also held that Hammer’s defamation claim could be

dismissed because the City had not waived sovereign immunity. Slip op. at 14.

Hammer does not dispute this issue on appeal. 

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dispute.16 Slip op. at 13-14. Examining the circumstances surrounding the issuance

of the December 15 Press Statement, the district court noted that numerous comments

had been circulating regarding the present state of the City’s government and the

conduct of City officials. Id. at 13. It was in response to these concerns, and to

defend his own actions, that Mayor Schneider issued the press statement commenting

on the actions of Hammer and two aldermen. Id. As noted by the district court,

statements regarding political issues are generally afforded greater protection than

other types of speech. Id. at 13 (citing New York Times v. Sullivan, 376 U.S. 254

(1964)). See also Ribaudo, 982 S.W.2d at 705 (“[T]he fact that the [allegedly

libelous] statements were made in the course of a political campaign is entitled to

great weight in determining whether there is actionable libel.”). The district court

found that Mayor Schneider supported the allegations in his statement by referring

to specific facts, noting that “even falsely or insincerely held opinions regarding

criminal conduct are privileged, so long as the facts supporting the opinions are

included.” Slip op. at 13-14 (citing Diez, 834 S.W.2d at 253). The December 15

Press Statement referred to the fact that the City’s budget information was only stored

on a single computer with no back up, that an alderman was illegally on the City’s

insurance policy, that Hammer applied for loans on behalf of the City without first

consulting Mayor Schneider or the Board, and that Hammer acted outside his

authority to award contract bids in cases where there was only one bidder or to a party

with the second lowest bid. Slip op. at 13-14. Therefore, the district court held that

allegations contained in the December 15 Press Statement were privileged opinions

and not actionable. Id. Although Hammer maintains that the Press Statement did not

contain facts which would allow a reader to decide independently whether Hammer’s

alleged conduct was illegal, we agree with the district court and hold that as a matter

of law Mayor Schneider’s comments in the December 15 Press Statement were

privileged opinions protected by the First Amendment. See Pape, 918 S.W.2d at 381
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(dismissing libel action for allegedly defamatory statements accusing plaintiff of

fraud, noting that “allegations of fraudulent or illegal conduct are conclusions about

the consequences that should attach to certain conduct, and as such they too are

[privileged] opinions”). 

We also hold that the district court correctly granted summary judgment in

favor of Mayor Schneider on the defamation claim, even though the City’s motion

was the only summary judgment motion filed. A judgment entered by the court on

a libel claim may dispose of all counts against all parties if the resolution of one issue

in favor of one defendant necessarily resolves the same claims against the other

parties. See Ribaudo, 982 S.W.2d at 703 (upholding the dismissal of a libel claim

against all parties where only one party requested summary judgment and the

statement was found to be privileged). Because Hammer’s defamation claims against

both the City and Mayor Schneider were based on the December 15 Press Statement,

and the district court found that the statements at issue were not actionable as a matter

or law, it was proper for the district court to grant summary judgment in favor of

Mayor Schneider as well as the City. 

V.

Finally, Hammer argues that the district court erred in denying his second

motion to amend his complaint to raise new claims of retaliation for whistleblowing

activities, in violation of state law, the First Amendment, and 42 U.S.C. § 1983.

Hammer argues that the district court should have granted his second motion for leave

to amend his complaint in response to the City’s newly pleaded defense of sovereign

immunity and that the district court erred in denying leave to amend without

explanation. 

We review the district court’s decision to grant or deny leave to amend for

abuse of discretion. Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998)

(Bell) (citing Humphreys v. Roche Biomedical Labs., Inc., 990 F.2d 1078, 1081 (8th
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Cir. 1993)) (additional citations omitted). Leave to amend under Federal Rule of

Civil Procedure 15(a) “shall be freely given when justice so requires.” Fed. R. Civ.

P. 15(a). There is, however, no absolute right to amend a pleading. Becker v. Univ.

of Nebraska, 191 F.3d 904, 908 (8th Cir. 1999) (citing Williams v. Little Rock

Municipal Water Works, 21 F.3d 218, 224 (8th Cir. 1994) (Williams)). Leave should

be denied where there are compelling reasons “such as undue delay, bad faith, or

dilatory motive, repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the non-moving party, or futility of the amendment.” Id.

at 907-08 (quoting Brown v. Wallace, 957 F.2d 564, 566 (8th Cir. 1992)). 

Reviewing the record, we find that the district court did not abuse its discretion

in denying Hammer’s second motion for leave to amend his complaint. Hammer did

not plead, or even mention, the First Amendment in his original complaint or his

amended complaint; nor were his First Amendment claims reasonably related to the

pleaded allegations such that Defendants would have been placed on notice that

Hammer was pursuing such a claim. See Bell, 160 F.3d at 454 (“[W]hen late

tendered amendments involve new theories of recovery and impose additional

discovery requirements, courts are less likely to find an abuse of discretion due to the

prejudice involved.”) (citing Dover Elevator Co. v. Arkansas State Univ., 64 F.3d

442, 448 (8th Cir. 1995)). Morever, Hammer filed his second motion to amend nearly

fifteen months after the filing of his original complaint. The district court had already

granted leave to amend once, and the second motion for leave to amend was filed

after discovery had closed and the City had moved for summary judgment on the

pleaded theories. Therefore, the district court had adequate reasons to deny

Hammer’s motion. See id. (upholding district court’s denial of a motion to amend

where the issues raised by the proposed amendment involved different legal and

factual issues from those in the original complaint); Williams, 21 F.3d at 224-25

(holding no abuse of discretion in denying motion to amend where plaintiff filed

motion to amend fourteen months after filing of original complaint and six days after

the discovery period ended). 
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CONCLUSION

Accordingly, the judgment of the district court is affirmed.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.