United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-1850

___________________________

Stevon Anzaldua

lllllllllllllllllllll Plaintiff - Appellant

v.

NortheastAmbulance andFireProtectionDistrict;DerekMays,in hisindividual capacity

lllllllllllllllllllll Defendants - Appellees

Clarence Young, in his official capacity as the Northeast Ambulance and Fire

Protection District Board Member; Bridget Quinlisk-Dailey, in her official

capacity as the Northeast Ambulance and Fire Protection District Board Member

lllllllllllllllllllll Defendants

Robert Lee, in his individual capacity; Quentin Randolph, in his individual and

offical capacity as the Northeast Ambulance and Fire Protection District Fire

Chief; Kenneth Farwell, in his individual and official capacity as the Northeast

Ambulance and Fire Protection District Battalion Cheif

lllllllllllllllllllll Defendants - Appellees

Kate Welge, in her individual capacity

lllllllllllllllllllll Defendant

____________

Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

____________
 Submitted: March 12, 2015

 Filed: July 10, 2015

____________

Before MURPHY and SHEPHERD, CircuitJudges, and HARPOOL, DistrictJudge. 1

____________

SHEPHERD, Circuit Judge.

Stevon Anzaldua worked for the Northeast Ambulance and Fire Protection

District (“Fire District”) as a full-time paramedic and firefighter. After the Fire

District suspended Anzaldua for purportedly failing to respond to a directive issued

by Chief Kenneth Farwell, Anzaldua emailed a newspaper reporter expressing

concerns about the Fire District and about Chief Farwell in particular. The email

“shocked” and “angered” many of Anzaldua’s co-workers. Two battalion chiefs

noted it “fostered division between Anzaldua and his co-workers, and between the

District firefighters and [Chief] Farwell.” As a result, the Fire District terminated

Anzaldua.

Anzaldua brought this action in federal district court, alleging that the Fire

District and the individuals involved in his termination violated his First Amendment

right to free speech by retaliating against him for emailing the reporter and that Chief

Farwell and Anzaldua’s ex-girlfriend violated federal and state computer privacylaws

by accessing his email account and obtaining his emails. The defendants moved to

dismiss Anzaldua’s complaint under Federal Rule of Civil Procedure 12(b)(6). The

district court denied the motion in part and granted the motion in part, allowing some

of Anzaldua’s First Amendment claims to proceed but dismissing all his other claims

The Honorable M. Douglas Harpool, United States District Judge for the

1

Western District of Missouri, sitting by designation.

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with prejudice. The district court subsequently denied Anzaldua leave to amend his

computer privacy law claims. The remaining defendants then moved for summary

judgment on the basis of qualified immunity. Anzaldua moved to defer ruling on

summary judgment or to grant additional time to conduct discovery. The district

court denied the motion to defer and then granted summary judgment to the

defendants on Anzaldua’s First Amendment claims. Anzaldua now appeals. 

After careful review, we affirm the district court’s grant ofsummary judgment

to the defendants on Anzaldua’s First Amendment claims. We also affirm the denial

of leave to amend Anzaldua’s federal computer privacy law claims. We reverse the

district court’s denial of leave to amend Anzaldua’s state computer privacy law

claims. 

I. Background

Anzaldua began working for the Fire District as a part-time paramedic in 2008. 

In April 2011, he accepted a position as a full-time paramedic and firefighter. 

Following standard practice established in its collective bargaining agreement with

the firefighters union (“Fire District CBA”), the Fire District subjected Anzaldua to

a one-year probationary period. In April 2012, before the probationary period

expired, Chief Farwell issued Anzaldua a written reprimand for neglect of equipment

and neglect of property after the Fire District found a hole in the interior wall of an

ambulance Anzaldua had worked in. Anzaldua signed the reprimand but denied

responsibility for the hole and stated he disagreed with the disciplinary action. In

conjunction with the reprimand, the Fire District extended Anzaldua’s probationary

period six months for “professional misconduct and general behavior.” J.A. 243. It

also warned him that “[a]ny further reprimands, verbal or written, or any conduct of

disciplinary action will subject you to immediate termination.” J.A. 243. The Fire

District CBA permitted the Fire District to terminate probationary employees with or

without cause.

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On July 21, 2012, a Fire District lieutenant wroteChief Farwell a memorandum

stating that Anzaldua and his partner had responded to a call but that their report for

the call was inexplicably missing from the Fire District’s reporting system. The

lieutenant copied Anzaldua on the memorandum. The Fire District suspended

Anzaldua’s partner, who was responsible for filing the report, but did not discipline

Anzaldua. 

On July 24, 2012, Anzaldua drafted an email on his personal Gmail account to

Dr. David Tan, a university professor who provided medical oversight for the Fire

District but was not employed by the Fire District or within its chain of command. 

The email stated, in pertinent part, “I am making you aware that there are some major

issues with the EMS side of operations. In starting, not everyone in this department

is operating under the same rules.” J.A. 246. Anzaldua claims he saved the email as

a draft but never sent it.

Nevertheless, the email was sent from Anzaldua’s Gmail account to Dr. Tan

on July 24, 2012. A week later, on July 31, 2012, a copy of the Dr. Tan email was

forwarded from Anzaldua’s Gmail account to Chief Farwell. After learning of the

email, Fire Chief Quinten Randolph directed Chief Farwell to investigate Anzaldua’s

concerns. On July 31, 2012, Chief Farwell sent an email to Anzaldua’s Gmail

account stating he was “concerned and obligated to inquire and investigate your

concerns,” and ordering Anzaldua to “provide for me in writing the Where, When,

How, What, and Who of your concerns by the end of the day on Aug 2, 2012.” J.A.

245. Anzaldua did not provide Chief Farwell the requested information. Anzaldua

maintains this is because he never received Chief Farwell’s email. 

On August 7, 2012, the Fire District Board of Directors ordered Anzaldua to

appear at a disciplinary hearing on August 13, 2012. The Board explained:

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On July 24, 2012, you forwarded an email to Dr. David K. Tan

suggesting that “major issues” existed within the District’s EMS

Division. You went on to suggest that the District was engaging in

“rule” bending for certain employees. Dr. Tan is not within your

department chain of command and he does not handle interdepartmental

grievances. Your public statements therefore appear to be divisive,

inflammatory, and without merit. When provided an opportunity by

[Chief Farwell] to elaborate on your statements, you failed to do so

within the time allotted. Such failure strengthened the belief that your

statements were intentionally perverse and improperly motivated. Such

behavior, if deemed true, is a direct violation of the District’s code of

conduct. The Board is hereby providing you an opportunity to be heard

on this matter before deciding whether disciplinary action is warranted.

J.A. 249-50. Though the Fire District CBA did not provide probationary employees

a right to union representation at disciplinary hearings, the Board advised Anzaldua

he would be allowed union representation if he desired, and Anzaldua accepted the

assistance of EMS Lieutenant and Shop Steward Jennifer Barbarotto. 

At the disciplinary hearing, Anzaldua explained to the Board that he did not

respond toChief Farwell’s directive because he never receivedChief Farwell’s email. 

He told the Board that command staff typically issued directives through the Fire

District’s separate email system. He also explained the concerns he expressed in the

Dr. Tan email. However, the Board told Anzaldua the disciplinary hearing would

focus on his failure to respond to Chief Farwell’s directive, and not on his underlying

concerns. On August 20, 2012, the Board found Anzaldua “failed to respond to a

directive issued by a chief officer,” a failure it deemed “unacceptable,” and

unanimously voted to suspend Anzaldua for 10 days for conduct unbecoming of a

Fire District employee. J.A. 253. The union agreed with the suspension. The Fire

District also warned Anzaldua “that any future misconduct, without regard to the

severity, will result in your immediate termination.” J.A. 254. 

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On August 23, 2012, Anzaldua sent an email to Elizabethe Holland, a reporter

for the St. Louis Post-Dispatch. The email stated:

You have covered the Northeast Ambulance and Fire protection district

before on a variety of issues. I am currently employed there as a

Full-Time Firefighter/Paramedic. I am coming to you hoping to remain

anonymous. There are several issues that are new. Some pertain to

pension issues. Others pertain to public safety. I have tried to reach out

to the directors only to be disciplined for 10 days for an email sent to the

medical director with critical concerns regarding the service we provide

citizens as it pertains to medical emergencies. Any time a stand is taken

on this issue it leads to something punitive in the form of suspension or

termination. I have been employed there for almost 4 years now we

have new problems.

We have been shutting down Pumpers (Fire Apparatus) due to

staffing mishaps (Resulting from the CMO). We have SCBA’s

(Self-contained Breathing Apparatus) that are not compliant with NFPA

(National Fire Protection Association) 1971. This is a guideline to safe

practices, policies and equipment. We are told on the floor (The

workers actually responding to the calls) that we do not have the money. 

We have 6-7 WORKING SCBA’s right now in the department. This is

after 2 new Chevy Suburbans were purchased for command staff. The

vehicles totaled somewhere around 100000.00 after the addition of

things like Light-Bars and Sirens were added. One of these Command

vehicles is Administrative (Chiefs Vehicle). The other vehicle is used

on shift and DOES respond to calls and assumes command. This is a

“Working” vehicle. There was nothing wrong with the Chief’s vehicle

prior to this. In fact, That old Chief’s is now the “Triage” vehicle

equipped with ALS (Advanced Life Support) equipment which is staffed

by the Chief Medical Officer running at 4707 (Call sign). This vehicle

is “suppose” to respond to calls during the CMO’s duty hours. If you

call North Central dispatch (314-428-1133) you can actually get the

numbers of 4707 (Command Vehicle) responses. This point is simple. 

The safety of the men is secondary to command vehicles. We are

already understaffed and short on working SCBA’s which are not NFPA

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Sec. 1971 compliant which means the district assumes legal liability if

any Death/Disability occurs as a result of a structure fire/Fire. This is

a safety issue to ALL of my Peers on the floor. These Vehicles

somehow managed to be a priority over our safety.

I would like to address the issue of the Chief Medical Officer and

his vehicle. The vehicle leaves the district (Normandy) everyday with

him to go home (O’Fallon 30 miles away). This vehicle does NOT

respond to calls when he is gone. The numbers will show that. This

Vehicle has actually been parked outside of his bar. I have multiple

photo’s time-stamped and dated ofthe vehicle parked behind his bar (Da

Elite Bar/Grill). This District vehicle was being used for personal

business conducted at a bar with Tax-Payer gas. IT has since been

parked in the back of the firehouse. The CMO (Chief Medical Officer)

deals with the EMS (Emergency Medical Services) or Ambulance side

of operations. He has been sending out text discussing his bar specials

via district telephone. As of August 22nd, The DEA has pulled our

controlled substances because the CMO Failed to renew the license for

these substances. Now we have a PUBLIC safety issue. This affects the

people we serve as well as the Paramedics ability stabilize medical

emergencies such as seizures. No pain meds for Chest pain or fractures

prior to immobilization of the injury.

So you may ask why I come to you with this. I was recently

suspended for 10 days as a result of an email I was going to send

Medical Director (This is a Doctor) discussing supply issues. The CMO

was made aware of this email and put me in front of the board charged

with conduct unbecoming. He also charged me with breaking the chain

of command. I am currently serving my suspension. They (CMO and

a Bat. Chief) have extended my probation and written me up and tried

to fire me 3 times. They can do this because I am still currently on

probation and not entitled to union legal counsel or representation even

though I am a member. I have been a Paramedic going on 13 years. I

have been in the field for 15 years total. They have circumvented my

shift supervisor and gone directly to disciplinary action. My Shift

supervisors have saved my job. I love my job and Co-workers. I figure

if I get terminated and these problems get fixed to provide a better safer

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service to the people and the firefighter/paramedics...then it was worth

it. I would prefer for this to stay confidential. There is more to this if

you have any additional questions please reply if you see this as

something you could help change[.]

J.A. 255-56. 

After Anzaldua sent the email to Holland, a copy of the email was forwarded

from Anzaldua’s Gmail account to Chief Farwell. The email was subsequently

passed around the Fire District, although the record does not make clear by whom. 

Several Fire District employees reported their negative reactions to the Holland email. 

Lieutenant Barbarotto “was shocked both by the content of the email, which

contained numerousfalse statements, and that[Anzaldua] would send such an email.” 

J.A. 259. She stated “Anzaldua’s decision to send such an email angered many of his

co-workers, as we were concerned that it would make us a public laughing stock. We

knew he had written it for personal reasons and considered it to be a slap in the face

to the rest of us, and were troubled that he would put his own personal agenda above

the other firefighters in the District.” J.A. 259. Daniel Newberry, a battalion chief,

explained “[t]he email shocked and irritated many firefighters in the District (several

of whom expressed this sentiment in my presence) and fostered division between

Anzaldua and his co-workers, and between the District firefighters and [Chief]

Farwell.” J.A. 262. Philip Boling, another battalion chief, observed an identical

reaction to the Holland email. J.A. 266.

On September 13, 2012, the Board ordered Anzaldua to appear at a disciplinary

hearing scheduled for September 24, 2012. It explained:

On August 23, 2012, it is believed that you circulated a personal email

publicly defaming and denigrating the District. More significant is the

fact that it contained false and misleading statements. Such statements

appeared to be intentionally divisive, inflammatory, and without just

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cause. It is believed that such statements were also purposefully

perverse and improperly motivated. Such behavior, if deemed true, is

a direct violation of the District’s code of conduct.

Notice of Hearing, R. Doc. 34-25.

On September 24, 2012, the Board voted to terminate Anzaldua. Board

Members Robert Lee and Derek Mays voted for the termination, while Board

Member Bridget Quinlisk-Dailey voted against. The Board sent Anzaldua a

termination letter, which explained the basis for its decision:

The Board accepted your admission and there from concluded that you

circulated an email publicly defaming and denigrating the District

without just cause. It was also determined that your statements were

seditiously false and misleading as well as ill-intended, divisive, and

retaliatory for prior discipline issued by the Board in good faith. Even

though you admitted conveying such statements to, at least, one public

entity; the number of other people and entities that you actually

conveyed them to is unknown. The Board found your explanation for

publicly expressing and circulating false and misleading information to

others as not credible.

Letter of Termination, R. Doc. 34-26. Both Lee and Mays believed “Anzaldua’s

email to Elizabeth[e] Holland caused disruption within his department” and “had the

potential to cause further disruption if Anzaldua remained employed with the

District.” J.A. 220. In voting to terminate Anzaldua, they considered, among other

things, “the need for efficiency and loyalty within the workforce and the divisive

nature of Anzaldua’s email to Holland.” J.A. 216, 220. 

The record contains declarations and documents bearing on the concerns

Anzaldua expressed in the Holland email. The Fire District had implemented

minimumstaffing procedures at least by December 2011 because ofstrained financial

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resources. Mays stated that the use of “minimum manning” did not cause problems

for the Fire District’s provision of services. In 2012, the Fire District received far

more ambulance calls than fire calls and decided to use only one pumper because it

could not afford to run two pumpers and two ambulances. 

Even before Anzaldua wrote to Holland, the Fire District had been interested

in purchasing new SCBAs. It tested different types of SCBAs in summer 2012 to

determine which type the firefighters preferred. Anzaldua participated in thistesting,

which the Fire District completed before Anzaldua sent the Holland email. The

Board approved the purchase of new SCBAs in September 2012. 

The Fire District purchased two new sport utility vehicles in 2012 because its

prior vehicles had difficulty driving through water at fire scenes. The Board

discussed the purchase at a public meeting in May 2012. The Fire District’s vehicle

use policy permitted Chief Farwell to use his vehicle for reasonable personal travel

within 60 miles of the Fire District. While the policy prohibited Chief Farwell from

2

using the vehicle “while engaged in any commercial endeavor,” it permitted him to

use the vehicle to drive to and from his place of work, so long as his place of work

was within 60 miles of the Fire District. R. Doc. 34-23, at 2. The record contains no

evidence suggesting Chief Farwell’s restaurant was more than 60 miles away. The

vehicle use policy enabled Chief Farwell to access his vehicle while away from the

firehouse in case he needed to respond to a call. In 2012, Chief Farwell issued

directions and commands to firefighters responding to fires. The record contains no

evidence of a policy prohibiting Chief Farwell from using his phone to text specials

to co-workers. 

Anzaldua had accessto all ofthe Fire District’s policies and procedures during

2

his employment.

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On August 30, 2012, Fire Chief Randolph and Chief Farwell attended a public

meeting in Jefferson City, Missouri, regarding the Fire District’s expired narcotics

license. Holland published an article on August 31, 2012, which reported on the

Jefferson City meeting. 

Anzaldua filed this lawsuit in July 2013, naming as defendants the Fire

District; Lee and Mays, in their individual and official capacities; Board Members

Clarence Young and Quinlisk-Dailey, in their official capacities; Fire Chief Randolph

and Chief Farwell, in their individual and official capacities; and Kate Welge,

Anzaldua’s ex-girlfriend, in her individual capacity. Anzaldua’s complaint contained

four counts. Count 1, which Anzaldua brought under 42 U.S.C. § 1983, alleged Lee,

Mays, Quinlisk-Dailey, Fire ChiefRandolph, and Chief Farwell terminated Anzaldua

in violation of his First Amendment right to free speech. Count 2, also brought under

section 1983, alleged all the defendants conspired to terminate Anzaldua in violation

of his First Amendment right to free speech. Count 3 alleged Chief Farwell and

Welge accessed Anzaldua’s Gmail account and obtained the Dr. Tan and Holland

emails in violation of the Stored Wire and Electronic Communications and

Transactional Records Access Act (“SCA”), 18 U.S.C. § 2701. Count 4 alleged this

access violated the Missouri Computer Tampering Act (“MCTA”), Mo. Rev. Stat.

§ 569.095. 

The defendants moved to dismiss Anzaldua’s complaint under Federal Rule of

Civil Procedure 12(b)(6). The district court granted the motion in part and denied the

motion in part, dismissing with prejudice all of Anzaldua’s claims except his Count

1 claims against Lee, Mays, and Chief Farwell in their individual capacities. 

Anzaldua moved for reconsideration of the motion-to-dismiss ruling or for leave to

amend his complaint. The district court held that motion in abeyance to allow

Anzaldua to submit a proposed first amended complaint, which he subsequently did. 

The proposed first amended complaint contained the same four counts asthe original

complaint, but against the following defendants: Count 1 against the Fire District and

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Lee, Mays, Fire Chief Randolph, and Chief Farwell, in their individual capacities;

Count 2 against Lee, Mays, Fire Chief Randolph, and Chief Farwell, in their

individual capacities; and Counts 3 and 4 against Chief Farwell and Welge, in their

individual capacities. 

While the district court considered Anzaldua’s proposed first amended

complaint, Lee,Mays, and Chief Farwell(later joined by Fire Chief Randolph)moved

for summary judgment on the basis of qualified immunity. In response, Anzaldua

filed a Rule 56(d) motion requesting that the district court defer ruling on the

summary judgment motion or grant additional time to conduct discovery before doing

so. The district court denied the Rule 56(d) motion. It then granted Anzaldua leave

to amend his claims under Counts 1 and 2 and denied him leave to amend his claims

under Counts 3 and 4. Anzaldua filed his first amended complaint on February 13,

2014, alleging only the First Amendment claims in Counts 1 and 2. The district court

subsequently granted the defendants’ summary judgment motion and dismissed the

first amended complaint in its entirety, finding the defendants were entitled to

qualified immunity under the Pickering balancing test. See Pickering v. Bd. of Educ.,

391 U.S. 563 (1968). 

On appeal, Anzaldua challenges the district court’s (1) grant of summary

judgment to the defendants on the basis of qualified immunity, (2) denial of his Rule

56(d) motion to defer ruling on the summary judgment motion, (3) dismissal of the

Fire District, which never joined the summary judgment motion, (4) denial of leave

to amend the SCA claims, and (5) denial of leave to amend the MCTA claims.

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II. Counts 1 and 2: First Amendment Claims

A. Qualified Immunity

We first address Anzaldua’s argument that the district court erred in finding the

defendants were entitled to qualified immunity. “We review the grant of summary

judgment de novo, viewing the evidence and drawing all reasonable inferencesin the

light most favorable to [Anzaldua], the nonmoving party.” McCullough v. Univ. of

Ark. for Med. Scis., 559 F.3d 855, 860 (8th Cir. 2009). We will affirm “if the movant

shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

The two prongs of our qualified immunity analysis require us to answer

(1) whether the facts alleged demonstrate a violation of the employee’s constitutional

right and (2) whether that right was clearly established at the time of the employee’s

firing. Hemminghaus v. Missouri, 756 F.3d 1100, 1110 (8th Cir. 2014) (citing Tolan

v. Cotton, 134 S. Ct. 1861, 1865-66 (2014)). This case can be resolved solely under

the first prong. “The inquiry into the protected status of speech is one of law, not

fact.” Connick v. Myers, 461 U.S. 138, 148 n.7 (1983). 

We use the first prong to determine whether a First Amendment violation

occurred. See Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (“[T]he First

Amendment protects a public employee’s right, in certain circumstances, to speak as

a citizen addressing matters of public concern.”). The heart of this determination is

the Pickering balancing test, under which we balance “the interests ofthe [employee],

as a citizen, in commenting upon matters of public concern and the interests of the

State, as an employer, in promoting the efficiency of the public services it performs

through its employees.” Pickering, 391 U.S. at 568. 

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Beforewe reach the Pickering balancing test, though, we make two preliminary

inquiries to ensure that the employee and the employer each has an interest to

balance. The first inquiry is to determine “whether the employee spoke as a citizen

on a matter of public concern.” Garcetti, 547 U.S. at 418. “If the answer is no, the

employee has no First Amendment cause of action based on his or her employer’s

reaction to the speech. If the answer is yes, then the possibility of a First Amendment

claim arises.” Id. (citation omitted).

“[I]f the possibility of a First Amendment claim has arisen,” then our second

inquiry is to “‘ask whether [the employer] has produced evidence to indicate the

speech had an adverse impact on the efficiency of the [employer’s] operations.’” 

Hemminghaus, 756 F.3d at 1111 (alterations in original) (quoting Lindsey v. City of

Orrick, Mo., 491 F.3d 892, 900 (8th Cir. 2007)). If the employer shows a sufficient

adverse impact, then we proceed to the Pickering balancing test. If it does not, then

the qualified immunity defense must fail. Sexton v. Martin, 210 F.3d 905, 913 (8th

Cir. 2000).

1. Matter of Public Concern

Anzaldua argues his Holland email was a matter of public concern because it

implicated the misuse of public monies and both firefighter and public safety. The

defendants respond that Anzaldua simply aired personal employment grievances. 

“To determine whether speech qualifies as a matter of public concern, we must

examine the content, form and context of the speech, as revealed by the whole

record.” Sparr v. Ward, 306 F.3d 589, 594 (8th Cir. 2002). “‘When speech relates

both to an employee’s private interests as well as matters of public concern, the

speech is protected if it is primarily motivated by public concern.’” McCullough, 559

F.3d at 866 (quoting Altonen v. City of Minneapolis, 487 F.3d 554, 559 (8th Cir.

2007)). “If the main motivation for the speech was furthering [the employee’s]

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‘private interests rather than to raise issues of public concern, her speech is not

protected, even if the public would have an interest in the topic of her speech.’” 

Altonen, 487 F.3d at 559 (quoting Bailey v. Dep’t of Elementary and Secondary

Educ., 451 F.3d 514, 518 (8th Cir. 2006)).

Here, we are skeptical that Anzaldua’s email was primarily motivated by public

concern, especially considering that he sent the email just days after being suspended

and that the email singled out Chief Farwell, with whom Anzaldua had, in the words

of the district court, “an already strained relationship.” However, we need not decide

whether Anzaldua’s email was primarily motivated by public concern because we

believe Anzaldua’s claims fail under the Pickering balancing test. See Waters v.

Churchill, 511 U.S. 661, 680 (1994) (plurality opinion) (declining to decide whether

employee’s speech was on a matter of public concern where the “potential

disruptiveness of the speech . . . was enough to outweigh whatever First Amendment

value it might have had”). Thus we proceed to the next step in our inquiry.

2. Adverse Effect on Fire District Operations

Anzaldua argues the defendants can satisfy this step only if they present

specific evidence of actual disruption. However, “‘[e]vidence of actual disruption . . .

is not required in all cases.’” Bailey, 451 F.3d at 521 (alterationsin original) (quoting

Shands v. City of Kennett, 993 F.2d 1337, 1344 (8th Cir. 1993)); see also Tindle v.

Caudell, 56 F.3d 966, 972 (8th Cir. 1995) (“A showing of actual disruption is not

always required in the balancing process under Pickering.”). This is because “‘we do

not see the necessity for an employer to allow events to unfold to the extent that the

disruption of the office and the destruction of working relationships is manifest

before taking action.’” Hemminghaus, 756 F.3d at 1112 (quoting Connick, 461 U.S.

at 152). Thus “‘[w]e have consistently given greater deference to government

predictions of harm used to justify restriction of employee speech than to predictions

of harm used to justify restrictions on the speech of the public at large.’” Id. (quoting

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Waters, 511 U.S. at 673 (plurality opinion) (“Few of the examples we have discussed

involve tangible, present interference with the agency’s operation. The danger in

them is mostly speculative.”)). And “‘we have given substantial weight to

government employers’ reasonable predictions of disruption, even when the speech

involved is on a matter of public concern.’” Id. (quoting Waters, 511 U.S. at 673

(plurality opinion)).3

Further, a fire department, as a public safety organization, “has a more

significant interest than the typical government employer in regulating the speech

activities of its employees in order ‘to promote efficiency, foster loyalty and

obedience to superior officers, maintain morale, and instill public confidence’ in its

ability.” Shands, 993 F.3d at 1344 (quoting Hughes v. Whitmer, 714 F.2d 1407, 1419

(8th Cir. 1983)). “‘When lives may be at stake in a fire, an espirit de corps is

essential to the success of the joint endeavor.’” Id. at 1344-45 (quoting Janusaitis v.

We recognize some Eighth Circuit cases seemto support Anzaldua’s argument

3

that employers must always present specific evidence of actual disruption. See, e.g.,

Belk v. City of Eldon, 228 F.3d 872, 882 (8th Cir. 2000) (“Where, as here, the

employer has failed to demonstrate any disruption, there is no balancing to be done

and the evidentiary failure isfatal to the claim of qualified immunity.”). To the extent

these cases represent a split among panels in our circuit, we note that Anzaldua fails

to cite, and we have failed to locate, any case supporting his argument that predates

Germann v. City of Kan. City, 776 F.2d 761, 765 (8th Cir. 1985) (“It is not necessary

‘for an employer to allow events to unfold to the extent that the disruption of the

office and the destruction of working relationshipsis manifest before taking action.’”

(quoting Connick, 461 U.S. at 152 )); see Mader v. United States, 654 F.3d 794, 800

(8th Cir. 2011) (en banc) (“[W]hen faced with conflicting panel opinions, the earliest

opinion must be followed as it should have controlled the subsequent panels that

created the conflict.” (internal quotation marks omitted)). Moreover, we recently

observed that Supreme Court precedent placesin question the soundness of the cases

that suggest employers must present specific evidence of actual disruption. See

Hemminghaus, 756 F.3d at 1112 n.10 (citing Waters, 511 U.S. at 673; and Connick,

461 U.S. at 152).

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Middlebury Volunteer Fire Dep’t, 607 F.2d 17, 26 (2d Cir. 1979)). Thus we give

“considerable judicial deference” to the defendants’ determination that Anzaldua’s

“speech had caused or would cause dissension and disruption.” Id. at 1345. 

Moreover, although we do not require actual evidence of disruption in all

cases, it exists here. Three firefighterssubmitted declarationsshowing the disruption

Anzaldua’s email caused. Lieutenant Barbarotto explained she was “shocked both

by the contents of the email . . . and that [Anzaldua] would send” it. She stated the

email “angered” many firefighters, who worried it would “make [them] a public

laughing stock.” Two battalion chiefs similarly reported the email “shocked and

irritated many firefighters in the District” and “fostered division between Anzaldua

and his co-workers, and between the District firefighters and [Chief] Farwell.” 

Anzaldua’s email also attacked Chief Farwell personally, accusing him of shutting

down pumpers, prioritizing his business over his firefighters’ safety, and violating the

Fire District’s vehicle use and cell phone policies. See Bailey, 451 F.3d at 521 (“The

letter accused Bailey’s superiors of fraud and legal and ethical violations. Such

accusations are sufficient evidence of potential workplace disruption.”). Thus this

is not a case where the Fire District had no supporting evidence of disruption or relied

on its own “[m]ere allegations of disruption.” Sexton, 210 F.3d at 912; see also

Connick, 461 U.S. at 151-52 (giving deference to supervisor’s determination of

disruption because “[w]hen close working relationships are essential to fulfilling

public responsibilities, a wide degree of deference to the employer’s judgment is

appropriate”). Viewed in light of the considerable deference we owe the Fire

District’s determination of actual or potential disruption, we find the defendants

satisfy this step. 

3. Pickering Balancing Test

We consider six interrelated factors when balancing Anzaldua’s interest in

speech against the Fire District’s interest in promoting the efficient operation of the

-17-
fire department: (1) the need for harmony in the work place; (2) whether the

government’s responsibilities require a close working relationship; (3) the time,

manner, and place of the speech; (4) the context in which the dispute arose; (5) the

degree of public interest in the speech; and (6) whether the speech impeded the

employee’s ability to perform his or her duties. Hemminghaus, 756 F.3d at 1113-14. 

“[T]he Pickering balance is flexible and the weight to be given to any factor varies

depending on the circumstances of the case.” Germann v. City of Kan. City, 776 F.2d

761, 764 (8th Cir. 1985).

Applying these factors, we agree with the district court that “the balance

weighs in favor of [the] defendants.” R. Doc. 63, at 18. Of critical importance is the

principle, discussed above, that we show substantial deference both to the Fire

District’s determination that Anzaldua’s email “had caused or would cause dissension

and disruption,” and to its “response to the actual or perceived disruption.” Shands,

993 F.2d at 1345. As noted, “‘[w]hen lives may be at stake in a fire, an espirit de

corps is essential to the success of the joint endeavor.’” Id. at 1344-45 (quoting

Janusaitis, 607 F.2d at 26). The Fire District also worked with other nearby fire

departments and needed those firefighters to trust Chief Farwell. Thus we find the

district court correctly concluded “Mays and Lee reasonably believed [Anzaldua’s]

speech was an attempt to undermine Farwell’s authority and had led, or would lead,

to disruption in the department.” R. Doc. 63, at 18. 

Moreover, it is clear Anzaldua emailed Holland just days after being placed on

what he claims was an unjustified suspension and that Anzaldua’s relationship with

Chief Farwell had been contentious for months. See Connick, 461 U.S. at 153

(“When employee speech . . . arises from an employment dispute[,] . . . additional

weight must be given to the supervisor’s view that the employee has threatened the

authority of the employer to run the office.”). Although there is no suggestion

Anzaldua emailed Holland during work hours or from the fire station, see id. (finding

employee’s preparing and distributing questionnaire at office supported employer’s

-18-
conclusion that speech would endanger office functioning), Anzaldua did go outside

the chain of command when he secretly emailed a reporter. Fire District employees

reacted negatively to this exposure. 

Further, the degree of public interest in Anzaldua’s statements was minimal. 

The Fire District instituted minimum manning procedures due to budget constraints

and decided to run one pumper so it could operate two ambulances. There is no

evidence this choice affected the Fire District’s provision of services. The Fire

District was in the process of testing and purchasing new SCBAs. And neither of

these issues was “at the center of public debate.” Shands, 993 F.2d at 1346. The

purchase of new vehicles had been discussed at a public Board meeting, and the

expired narcotics licenses similarly had been discussed a public meeting in Jefferson

City. The public had even less interest in Anzaldua’s attack on Chief Farwell for

making permitted use of his work vehicle and in his complaint about not being

allowed union representation, which, while literally true, was misleading because he

had been offered and in fact accepted the help of a union representative. Although

there is no suggestion Anzaldua’s email impeded his ability to perform his duties as

a paramedic and firefighter, this factor does not outweigh the others. See id. (stating

that “thisfactor is not determinative” and finding Pickering factors favored employer

even though there was no evidence employees’ job performance had been hindered).

In sum, we find the Pickering factors favor the defendants and thus agree with

the district court that the defendants are entitled to qualified immunity because they

did not violate Anzaldua’s First Amendment right to free speech. 

B. Rule 56(d) Motion

We next address Anzaldua’s argument that the district court erred in denying

his Rule 56(d) motion. Anzaldua argues the defendants’ qualified immunity

argument depended on their assertion that he made false statements in the Holland

-19-
email and thus that it was essential for him to show those statements were true. He

argues he was unable to prove his statements’ veracity because the case management

order prevented him from conducting discovery before responding to the summary

judgment motion. He suggests that if he had been allowed to depose the defendants’

witnesses and discover documents in the defendants’ possession—he requested the

district court allow him an additional 4 to 5 months of discovery and 21 days on top

of that to respond to the summary judgment motion—then he could have proven his

statements’ truth. 

We review the denial of a Rule 56(d) motion for an abuse of discretion. Toben

v. Bridgestone Retail Operations, LLC, 751 F.3d 888, 894 (8th Cir. 2014). Under

Rule 56(d), a court may defer considering a summary judgment motion or allow time

for discovery “[i]f a nonmovant shows by affidavit or declaration that, for specific

reasons, it cannot present facts essential to justify its opposition.” Fed. R. Civ. P.

56(d). However, Rule 56 “does not require trial courts to allow parties to conduct

discovery before entering summary judgment.” United States ex rel. Small Bus.

Admin. v. Light, 766 F.2d 394, 397 (8th Cir. 1985) (per curiam). Thus district courts

possess “wide discretion in denying” Rule 56(d) motions. Toben, 751 F.3d at 895. 

“[A] district court’s [Rule 56(d)] discretion is further restricted when a summary

judgment motion based on qualified immunity is at issue.” Jones v. City & Cnty. of

Denver, Colo., 854 F.2d 1206, 1211 (10th Cir. 1988) (citing Martin v. Malhoyt, 830

F.2d 237, 256-57 (D.C. Cir. 1987)). This restriction reflects the concern “that

insubstantial claims against government officials be resolved prior to discovery and

on summary judgment if possible.” Anderson v. Creighton, 483 U.S. 635, 640 n.2

(1987)(internal quotation marks omitted); see also Janis v. Biesheuvel, 428 F.3d 795,

800 (8th Cir. 2005) (“Qualified immunity is an immunity from suit, not simply from

liability.”). 

It is not enough for a party to “set forth some facts she ‘hope[s] to elicit from

further discovery.’” Toben, 751 F.3d at 895 (alteration in original) (quoting Cal. ex

-20-
rel. Cal. Dep’t of Toxic Subs. Control v. Campbell, 138 F.3d 772, 779 (9th Cir.

1998)). And “the mere assertion that evidence supporting a party’s allegation is in

the opposing party’s hands is insufficient to justify a denial of a summary judgment

motion on [Rule 56(d)] grounds.” Jones, 854 F.2d at 1211. Instead, the party must

“show[] ‘that the facts sought exist.’” Toben, 751 F.3d at 895 (quoting Campbell,

138 F.3d at 779); see also Janis, 428 F.3d at 800 (“‘A party invoking [Rule 56(d)’s]

protections must do so in good faith by affirmatively demonstrating why he cannot

respond to a movant’s affidavits as otherwise required . . . and how postponement of

a ruling on the motion will enable him, by discovery or other means, to rebut the

movant’s showing of the absence of a genuine issue of fact.’” (quoting William

Poultry Co. v. Morton-Norwich Prods., Inc., 520 F.2d 289, 297 (8th Cir. 1975))). 

Here, we find unavailing Anzaldua’s argument that he needed additional

discovery to respond to the documents and declarations the defendants submitted in

support of their summary judgment motion. First, we note that Anzaldua failed to

show why it was essential for the court to determine whether each of his statements

was true or not. Second, we note that while the case management order did not

require initial disclosures be completed until after resolution of the summary

judgment motion, neither did it prohibit Anzaldua fromconducting discovery. Third,

even assuming the truth or falsity of Anzaldua’s statements was essential to his

defense, Anzaldua fails to show he would benefit from further discovery because he

cannot show facts exist that would prove the veracity of his statementsin the Holland

email. That isto say, he cannot state with specificity what evidence further discovery

would uncover. His Rule 56(d) affidavit simply asserted that if he could depose

witnesses and discover documents, then he could prove his statements were true and

thus that the defendants violated his First Amendment rights. Such an unspecific

assertion is insufficient under Rule 56(d). See Duffy v. Wolle, 123 F.3d 1026, 1041

(8th Cir. 1997) (“‘Rule 56([d]) does not condone a fishing expedition’ where a

plaintiff merely hopes to uncover some possible evidence of a constitutional

violation.” (quoting Gardner v. Howard, 109 F.3d 427, 431 (8th Cir. 1997))),

-21-
abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th

Cir. 2011) (en banc). We find the district court did not abuse its wide discretion in

denying Anzaldua’s Rule 56(d) motion.

C. Dismissal of Non-Moving Fire District

Because the individual defendants were entitled to qualified immunity, the

district court properly granted summary judgment to the Fire District although it

failed to join the summary judgment motion. Once the district court determined no

First Amendment violation had occurred, it was proper for the district court to enter

summary judgment for all defendants facing identical First Amendment claims. See

Madewell v. Downs, 68 F.3d 1030, 1050 (8th Cir. 1995).

III. Counts 3 and 4: SCA and MCTA Claims

A. SCA Claims

We next address Anzaldua’s argument that it was error for the district court to

deny him leave to amend his SCA claims. Anzaldua alleged in his proposed first

amended complaint that Chief Farwell and Welge, acting together or alone, accessed

his Gmail account through Gmail’s server and: (1) obtained the email Anzaldua had

prepared but not sent to Dr. Tan, which at the time was stored on Gmail’s server as

a draft message, and sent the email to Dr. Tan; and (2) obtained the email Anzaldua

had sent to Holland, which at the time was stored on Gmail’s server as a sent

message, and forwarded the email to Chief Farwell. Anzaldua further alleged Chief

Farwell and Welge deleted the Dr. Tan and Holland emails after they sent them. 

Anzaldua alleged he believed Chief Farwell and Welge accessed his Gmail account

because he traced access of the account to an IP address at or near Chief Farwell’s

restaurant, where Welge worked. Anzaldua further explained how Chief Farwell and

Welge allegedly accessed his account:

-22-
While Defendant Welge and Anzaldua were in a romantic relationship,

on one occasion prior to the termination of that relationship, Anzaldua

gave Defendant Welge his Gmail password so that she could email his

resume on his behalf to prospective employers. Anzaldua did not give

Defendant Welge general permission to access his personal Gmail

account and did not realize she had continued to access his personal

Gmail account until he investigated how his personal emails were being

provided to the Fire District. [Anzaldua] and Defendant Welge’s

romantic relationship ended in July of 2011 and Anzaldua did not know,

nor did he authorize Defendant Welge to access his personal Gmail

account at any time before or after that relationship ended, except to

send the resumes on his behalf as set forth above.

First Amended Complaint, R. Doc. 29-1, at ¶ 50.

Finding Anzaldua’s proposed first amended complaint failed to state an SCA

claim, the district court denied leave to amend on the ground that amendment would

be futile. See United States ex rel. Roop v. Hypoguard USA, Inc., 559 F.3d 818, 822

(8th Cir. 2009) (“Futility is a valid basis for denying leave to amend.”). The district

court reasoned that “the alleged improper use of [Anzaldua’s] information was not

a SCA violation, because [Anzaldua] gave Welge access to his Gmail account.” R.

Doc. 49, at 19. 

On appeal, Anzaldua argues he sufficiently alleged unauthorized access of his

Gmail account. Although we agree with Anzaldua that his proposed first amended

complaintsufficientlyalleged unauthorized access, see Roop, 559 F.3d at 822 (stating

that we review the district court’s futility determination de novo and its denial of

leave to amend for abuse of discretion), we affirm the district court on the alternative

ground that amendment would be futile because neither of Anzaldua’s emails was in

“electronic storage” within the meaning of the SCA. See Interstate Bakeries Corp.

v. OneBeacon Ins. Co., 686 F.3d 539, 542 (8th Cir. 2012) (“‘We may affirm the

judgment of the district court on any basis disclosed in the record, whether or not the

-23-
district court agreed with or even addressed that ground.’” (internal quotation marks

omitted) (quoting Warner Bros. Entm’t, Inc. v. X One X Prods., 644 F.3d 584, 591

(8th Cir. 2011))).

The SCA provides a civil cause of action against anyone who “(1) intentionally

accesses without authorization a facility through which an electronic communication

service is provided; or (2) intentionally exceeds an authorization to access that

facility; and thereby obtains, alters, or prevents authorized access to a wire or

electronic communication while it is in electronic storage.” 18 U.S.C. § 2701; id.

§ 2707 (providing for civil cause of action). Contrary to the district court, we believe

Anzaldua’s proposed first amended complaint sufficiently alleged that Chief

Farwell’s and Welge’s access was without authorization or exceeded authorization. 

Taking Anzaldua’s allegations as true, Anzaldua gave Welge his password so she

could access his Gmail account one time and for the limited purpose of sending

resumes on his behalf. Given these facts, we conclude Chief Farwell and Welge at

least exceeded the expressly limited authorization Anzaldua gave Welge when they

accessed Anzaldua’s Gmail account over a year later for wholly different purposes. 

See Theofel v. Farey-Jones, 359 F.3d 1066, 1072 (9th Cir. 2004) (reasoning that

principles of common law trespass guide scope of access under SCA); Restatement

(Second) of Torts § 168 (1965) (“A conditional or restricted consent to enter land

creates a privilege to do so only in so far as the condition or restriction is complied

with.”); cf. Johnson v. U.S. Bancorp Broad-Based Change in Control Severance Pay

Program, 424 F.3d 734, 740 (8th Cir. 2005) (interpreting employment contract that

forbade unauthorized access and reasoning that “the district court’s determination that

‘Johnson was authorized to access the files,’ because ‘nothing prevented her access

whatsoever,’ mistakenly equated ability to access a file with authorization to access

the file”). This conclusion is supported by the fact that Chief Farwell and Welge

deleted the Dr. Tan and Holland emails after they sent them, which suggests they

knew they lacked authorization.

-24-
Even if Anzaldua sufficiently alleged unauthorized access, though, the SCA

also required him to allege that the emails were in “electronic storage.” This he failed

to do. See William Jeremy Robison, Note, Free at What Cost?: Cloud Computing

Privacy Under the Stored Communications Act, 98 Geo. L.J. 1195, 1206 (2010)

(“[The ‘electronic storage’] requirement is commonly misunderstood because the

statutory definition of‘electronic storage’ is much narrowerthan its name suggests.”);

see also Orin S. Kerr, A User’s Guide to the Stored Communications Act, and A

Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1214 (2004)

(“[T]here are many problems of Internet privacy that the SCA does not address. The

SCA is not a catch-all statute designed to protect the privacy of stored Internet

communications; instead it is narrowly tailored to provide a set of Fourth

Amendment-like protectionsfor computer networks.”). Under the statute, “electronic

storage” means (1) “any temporary, intermediate storage of a wire or electronic

communication incidental to the electronic transmission thereof,” or (2) “any storage

of such communication by an electronic communication service for purposes of

backup protection of such communication.” 18 U.S.C. § 2510(17). 

4 5

We recognize authorities are divided on whether these two definitional 4

provisions must be read together or apart. Compare Jennings v. Jennings, 736 S.E.2d

242, 247-48 (S.C. 2012) (Toal, C.J., concurring in result) (together); with Theofel,

359 F.3d at 1075-76 (apart). Although we present the provisions in the disjunctive,

in part because that is how the parties argued them, we express no opinion on this

issue. 

It is not always easy to square the decades-old SCA with the current state of 5

email technology. One commentator has observed that the definition of “electronic

storage” “is better understood in light of the e-mail delivery system in place at the

time [of the SCA’s enactment in the mid-1980s], which required multiple service

providers to store communications briefly before forwarding them on to their next

destination or while awaiting download by the recipient.” Robison, Free at What

Cost?, 98 Geo. L.J. at 1206. By contrast, today’s predominant web-based email

services, like Gmail, allow users to “access their email over the web from any

computer, and [users] do not automatically download their messages to their own

-25-
Anzaldua first claims his draft email to Dr. Tan was in “temporary,

intermediate storage.” While this argument appeals to our everyday understanding

of a “draft,” it fails to meet the statutory definition. Even assuming an unsent draft

email qualifies as an electronic communication, see 28 U.S.C. § 2510(12)

(“‘[E]lectronic communication’ means anytransfer ofsigns, signals, writing, images,

sounds, data, or intelligence of any nature transmitted in whole or in part . . . .”)

(emphasis added), because the email had not been sent, its storage on the Gmail

server was not “temporary, intermediate,” and “incidental to the electronic

transmission thereof.” 18 U.S.C. § 2510(17)(A); see United States v. Councilman,

418 F.3d 67, 81 (1st Cir. 2005) (en banc) (“The first category . . . refers to temporary

storage, such as when a message sits in an e-mail user’s mailbox after transmission

but before the user has retrieved the message from the mail server.”); In re

Doubleclick Inc. Privacy Litig., 154 F. Supp. 2d 497, 512 (S.D.N.Y. 2001) (“[The

SCA] only protects electronic communications stored ‘for a limited time’ in the

‘middle’ of a transmission, i.e. when an electronic communication service temporarily

stores a communication while waiting to deliver it.”).

Anzaldua next claims his sent Holland email was stored “for purposes of

backup protection.” Courts most often discuss the backup protection provision as 6

computers as non-web-based email service users do. Instead, if [web-based] users

save a message, they generally leave it on the [web-based email] server and return to

[the email service] via the web to access it on subsequent occasions.” United States

v. Weaver, 636 F. Supp. 2d 769, 772 (C.D. Ill. 2009) (citation omitted). Of course,

web-based email users may still download emails to their computers through email

client programs, which complicates the picture. See Cheng v. Romo, 2013 WL

6814691, at *4-5 (D. Mass. Dec. 20, 2013) (slip copy).

Anzaldua does not argue that his draft email was stored for backup protection

6

purposes or that his sent email was in temporary, intermediate storage, and we note

he did not allege the sent email was unopened when Chief Farwell and Welge

allegedly obtained it. Thus we decline to consider these arguments.

-26-
it pertains to copies of opened emails that remain on email servers. A principal case

in the area—and the case Anzaldua relies on—is Theofel, where the Ninth Circuit

held that such copies would be deemed stored for backup protection purposes until

“the underlying message . . . expired in the normal course” because “[a]n obvious

purpose for storing a message on an [internet service provider’s (“ISP”)] server after

delivery [from the server to the user] is to provide a second copy of the message in

the event that the user needs to download it again—if, for example, the message is

accidentally erased from the user’s own computer.” 359 F.3d at 1075-76. 

Although several courts have followed Theofel, see, e.g., Pure Power Boot

Camp v. Warrior Fitness Boot Camp, 587 F. Supp. 2d 548, 555 (S.D.N.Y. 2008)

(citing cases); Bailey v. Bailey, No 07-11672, 2008 WL 324156, at *6 (E.D. Mich.

Feb. 6, 2008), the decision has been subject to criticism. See United States v.

Warshak, 631 F.3d 266, 291 (6th Cir. 2010) (noting criticism); Kerr, A User’s Guide,

72 Geo. Wash. L Rev. at 1217 (“[T]he Ninth Circuit’s analysis in Theofel is quite

implausible and hard to square with the statutory text.”).

7

Some cases openly disagree with Theofel’s reasoning. See Lazette v.

Kulmatycki, 949 F. Supp. 2d 748, 758 & n.13 (N.D. Ohio 2013) (“E-mails which an

Kerr further explained: “An understanding of the structure of the SCA

7

indicates that the backup provision of the definition of electronic storage exists only

to ensure that the government [or the defendants, as relevant here,] cannot make an

end-run around the privacy-protecting [electronic communication service (“ECS”)]

rules by attempting to access backup copies of unopened e-mails made by the ISP for

its administrative purposes. ISPs regularly generate backup copies of their servers

in the event of a server crash or other problem, and they often store these copies for

the long term. Section 2510(17)(B) providesthat backup copies of unopened e-mails

are protected by the ECS rules even though they are not themselves incident to

transmission; without this provision, copies of unopened e-mails generated by this

universal ISP practice would be unprotected by the SCA.” Kerr, A User’s Guide, 72

Geo. Wash. L. Rev. at 1217 n.61 (citation omitted).

-27-
intended recipient has opened may, when not deleted, be ‘stored,’ in common

parlance. But in light of the restriction of ‘storage’ in [the SCA] solely for ‘backup

protection,’ e-mails which the intended recipient has opened, but not deleted (and

thus which remain available for later re-opening) are not being kept ‘for the purposes

of backup protection.’”);Jennings v. Jennings, 736 S.E.2d 242, 245 (S.C. 2012) (“We

decline to hold that retaining an opened email constitutes storing it for backup

protection under the [SCA]. The ordinary meaning of the word ‘backup’ is ‘one that

serves as a substitute or support.’ Thus, Congress’s use of ‘backup’ necessarily

presupposes the existence of another copy to which this e-mail would serve as a

substitute or support. We see no reason to deviate from the plain, everyday meaning

of the word ‘backup,’ and conclude that as the single copy of the communication,

Jennings’ e-mails could not have been stored for backup protection.” (citation

o m i t t e d ) ( q u o t i n g M e r r i a m - W e b s t e r D i c t i o n a r y ,

http://www.merriam-webster.com/dictionary/backup)).

Other authorities dispute Theofel by insisting that the two definitional

provisions in section 2510(17) be read together. See Jennings, 736 S.E.2d at 248

(Toal, C.J., concurring in result) (“[E]lectronic storage refers only to temporary

storage, made in the course oftransmission, by an [electronic service communication]

provider, and to backups of such intermediate communications.”); Kerr, A User’s

Guide, 72 Geo. Wash. L. Rev. at 1214 (“[The SCA] defines ‘electronic storage’ as

‘any temporary, intermediate storage of a wire or electronic communication incidental

to the electronic transmission thereof,’ plus any backup copies of files in such

temporary storage.” (footnote omitted) (quoting 18 U.S.C. § 2510(17))). 

Still other cases distinguish Theofel on the ground that it addressed

non-web-based email technology:

[Theofel] held that once a user receives an email, any version on the

ISP’s server is a copy that is being stored for backup until the user’s

-28-
version expiresin the normal course. [Theofel] relies on the assumption

that users download emailsfroman ISP’s server to their own computers. 

That is how many email systems work, but a Hotmail account is

web-based and remote. Hotmail users can access their email over the

web from any computer, and they do not automatically download their

messages to their own computers as non-web-based email service users

do. Instead, if Hotmail users save a message, they generally leave it on

the Hotmail server and return to Hotmail via the web to access it on

subsequent occasions. The distinction between web-based email and

other email systems makes Theofel largely inapplicable here.

United States v. Weaver, 636 F. Supp. 2d 769, 772 (C.D. Ill. 2009) (internal quotation

marks, citations, and footnote omitted); see also Crispin v. Christian Audigier, Inc.,

717 F. Supp. 2d 965, 984-85 (C.D. Cal. 2010) (acknowledging that Weaver and

Theofel are not inconsistent because Weaver “confronted a situation not previously

considered by” Theofel); but see Cheng v. Romo, 2013 WL 6814691, at *5 (D. Mass.

Dec. 20, 2013) (slip copy) (noting that under Weaver’s reasoning a defendant’s legal

liability for accessing a plaintiff’s emails “turn[s] on what piece ofsoftware (i.e., web

browser vs. email client) [the plaintiff] happened to use to access his email account”);

Jennings, 736 S.E.2d at 246-47 (Toal, C.J., concurring in result) (same). If we

adopted the reasoning of any of the cases criticizing Theofel, we likely would not find

that the Holland email was stored for backup protection purposes.

Ultimately, however, we need not decide whether Theofel or one of its critics

is correct because even if we adopted Theofel’s reasoning we still would conclude

that the sent Holland email was not stored on the Gmail server for backup protection

purposes. Theofel acknowledged “the mere fact that a copy could serve as a backup

does not mean it is stored for that purpose.” 359 F.3d at 1076. Thus its holding

relied on a functional distinction that tied “the lifespan of a backup . . . to that of the

underlying message.” Id. And “[w]here the underlying message has expired in the

normal course, any copy is no longer performing any backup function.” Id. 

-29-
Here, Anzaldua simply alleged that his sent email remained on Gmail’s server

as a matter of course. We hold that once Anzaldua successfully sent the email to

Holland, as he alleged he did, the copy Gmail retained on its server as a sent message

did not perform a backup function. See id. (“An [email service] that kept permanent

8

copies of temporary messages could not fairly be described as ‘backing up’ those

messages.”); see also Kerr, A User’s Guide, at 1218 (“Although it is unclear what

‘normal course’ the Ninth Circuit has in mind, the apparent test is whether the user

or employees of the service provider have reason to believe that they may need to

access an additional copy of the file in the future.”). If Theofel has any application

here, it would be to protect a copy of the email stored with Holland’s email service,

not Anzaldua’s. See Theofel, 359 F.3d at 1075 (stating that a backup copy would

“provide a second copy of the message in the event that the user needs to download

it again—if, for example, the message is accidentally erased from the user’s own

computer”). 

Accordingly, neither the draft of the Dr. Tan email nor the sent Holland email

falls within the protection afforded by the SCA.9

B. MCTA

Finally, we address Anzaldua’s argument that it was error for the district court

to deny him leave to amend his MCTA claims. In advancing these claims,

Anzaldua’s proposed first amended complaint relied on the same factual allegations

Other provisions of the SCA, see 18 U.S.C. §§ 2702(a) and 2703(b), protect 8

copies of emails held by remote computing services, which “provi[de] to the public

. . . computer storage or processing services by means of an electronic

communications system.” Id. § 2711(2).

Anzaldua argues the district court erred in dismissing his SCA claims in the 9

original complaint. Because those claims suffer the same defect as the SCA claims

in the proposed first amended complaint, there was no error.

-30-
as his SCA claims. He additionally alleged that he owned the Dr. Tan and Holland

emails, that Chief Farwell and Welge took and disclosed the emails from a computer,

computer system, or computer network, and that Chief Farwell and Welge received,

retained, used, or disclosed the emails, which they knew or believed had been

obtained in violation of the MCTA. 

As it did with Anzaldua’s SCA claims, the district court found amendment of

Anzaldua’s MCTA claims would be futile because Anzaldua failed to allege

unauthorized taking, disclosure, or use of the emails, as required by the MCTA. On

appeal, Anzaldua argues he sufficiently alleged such unauthorized conduct. We

agree. See Kingman v. Dillard’s, Inc., 643 F.3d 607, 615 (8th Cir. 2011) (“‘When

determining the scope of Missouri law, we are bound by the decisions of the Supreme

Court of Missouri. If the Supreme Court of Missouri has not addressed an issue, we

must predict how the court would rule, and we follow decisions fromthe intermediate

state courts when they are the best evidence of Missouri law.’” (quoting Eubank v.

Kan. City Power & Light Co., 626 F.3d 424, 427 (8th Cir. 2010))).

Under the MCTA, a person commits the crime of computer tampering if he

“knowingly and without authorization or without reasonable grounds to believe that

he has such authorization: . . . (3) Discloses or takes data . . . residing or existing

internal or external to a computer, computer system, or computer network; or . . . (6)

Receives, retains, uses, or discloses any data he knows or believes was obtained in

violation of this subsection.” Mo. Rev. Stat. § 569.095. The statute provides a civil

cause of action for “the owner . . . of the . . . data.” Id. § 537.525. 

Few cases discuss the MCTA, and the ones that do are not relevant here. 

Nevertheless, for the reasons provided in our discussion of Anzaldua’s SCA claims,

we have no difficulty predicting that the Missouri Supreme Court would find that

Anzaldua sufficiently alleged Chief Farwell and Welge acted “knowingly and without

authorization or without reasonable grounds to believe that [they had] such

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authorization.” We further find that Anzaldua’s proposed first amended complaint

satisfies the other elements of the MCTA because Anzaldua alleged facts supporting

that he owned the emails and that Chief Farwell and Welge took and later disclosed

the emails, which they knew had been obtained without authorization.

Accordingly, we find the district court erred in denying Anzaldua leave to

amend his MCTA claims.10

IV. Conclusion

For the foregoing reasons, we affirm the grant of summary judgment to the

defendants as to Anzaldua’s First Amendment claims, the dismissal of Anzaldua’s

SCA claims in his original complaint, and the denial of leave to amend Anzaldua’s

SCA claims. We reverse the denial of leave to amend Anzaldua’s MCTA claims. We

remand to the district court with instructions that the district court grant Anzaldua

leave to file an amended complaint asserting his MCTA claims.

______________________________

Anzaldua also argues the district court erred in dismissing the MCTA claims

10

in his original complaint. Because we hold that the district court erred in denying

leave to amend these claims, we need not address their original dismissal. 

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