United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-3249

_____________ Heart of America Grain Inspection * Service, Inc.; Thomas J. Clatanoff; * Jack L. Covey; Stephen E. Plummer; * Monty M. Uptegrove, * * Plaintiffs, * * v. * * Missouri Department of Agriculture; * Appeals from the United States Stephen Bell; Tommy D. Hopkins, * District Court for the Western * District of Missouri. Defendants. *

-------------------------- * State of Missouri, ex rel John L. * Saunders, Director, Missouri * Department of Agriculture, * * Plaintiff - Appellant, * * v. * * Heart of America Grain Inspection * Service, Inc.; Thomas J. Clatanoff; * Stephen E. Plummer; Jack L. Covey; * Monty M. Uptegrove, * * Defendants - Appellees. *-2- ___________ No. 96-3263

___________ Heart of America Grain Inspection * Service, Inc.; Thomas J. Clatanoff; * Jack L. Covey; Stephen E. Plummer; * Monty M. Uptegrove, * * Plaintiffs - Appellants, * * v. * * Missouri Department of Agriculture; * Stephen Bell; Tommy D. Hopkins, * * Defendants - Appellees. *

-------------------------- * State of Missouri, ex rel John L. * Saunders, Director, Missouri * Department of Agriculture, * * Plaintiff - Appellee, * * v. * * Heart of America Grain Inspection * Service, Inc.; Thomas J. Clatanoff; * Stephen E. Plummer; Jack L. Covey; * Monty M. Uptegrove, * * Defendants - Appellants. *The Honorable Richard H. Kyle, United States District Judge for the District of 1 Minnesota, sitting by designation. The Honorable Howard F. Sachs, United States District Judge for the Western 2 District of Missouri. -3- _____________ Submitted: June 9, 1997 Filed: August 26, 1997

_____________ Be fore BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, an d KYLE, District Judge.

1

_____________ BOWMAN, Circuit Judge.
The Misso uri Department of Agriculture, ex rel John L. Saunders, Director , Missouri Department of Agriculture (the Department); Stephen Bell; and Tommy D. Hopkins ap peal from an order of the District Court granting summary judgment t o 2 Heart of Americ a Grain Inspection Service Inc., Thomas J. Clatanoff, Jack L. Covey, Ste phen E. Plummer, and Monty M. Uptegrove (collectively, HOA) on HOA' s counterclaim for declaratory and injunctive relief, and denying summary judgment to th e Department on its own claim for declaratory and injunctive relief. HOA cros s appeals from a number of decisions adverse to it. We affirm.

I.

In 199 2, HOA (some of whose employees were employed by the Departmen t before joining HOA) was per forming grain weighing, grading, and inspection services in grain warehouses in the Kansas City area th at were licensed under the United States Warehouse Act, 7 U.S.C. §§ 241-73 (1994) (the USWA or the Act). Among othe r services, HO A provided Class II certified weights. Such weights are a grain industry-4-

standard (not a matter of federal or state law) and are obtained by a licensed weigher, using an approved scale, under twenty-five per cent superv ision by a disinterested third party. HOA and the Department both offered Class II certification services in 1992, that is, they provided the supervisory, disinterested third party. HOA provided thi s service under authority of the Association of American Railroads, a trade group, and in Oct ober 1992 individuals working for HOA received federal licenses under th e USWA (after the Department notified the United States Department of Agricultur e (USDA) of HOA's grain certification activities).

In September 1992, the Department sent a letter to the grain industry over th e signa tures of Hopkins, who was then (and was from November 1981 through Jun e 1994) the Division Director of Gr ain Inspection and Warehousing for the Department, andMark Weaver, an assistant state attorney general. The letter related th e Departmen t's position that it had the exclusive right (subject to the rights of grai n exchanges and boards of trade) to weigh and supervise the weighing of grain in al l warehouses in the state of Missouri. The Department relied for its authority on th e Missouri Grain Warehouse Law (the MGWL):

The department shall have the exclusive right to officially weigh o r su pervise the actual weighing of grain in licensed terminal warehouse s subject to the provisions of this chapter, unless the owner or his agen t indicates th at no official weights are desired and may officially weigh or supervise the actual w eighing of grain in public or private warehouses or ind ustries upon application of the owners or operators thereof and thei r agreement to guarantee the operating costs.
Mo. Rev. Stat. § 411.030.2 (1986). In the Departme nt's view, or so it now claims, this statute gav e the Department the sole right (with the exceptions we have noted above) to certify Class II grain weights. The Department took this position, even as t o
wa rehouses licensed under the USWA, notwithstanding two other sections of th e MGWL. The first, concerning the scope of the MGWL, stated, "The provisions of theThe "Scope of law" section now reads, "The provisions of the [MGWL] shall 3 ap ply to all warehouses located within the state of Missouri." Mo. Rev. Stat

. § 411.015 (1994). Section 411.681 of the 1 994 Missouri Revised Statutes now states, "This c hapter shall not prohibit, infringe, or apply to any weighing or weighin g supervision in or i n connection with a federally licensed warehouse performed by any grain exchange or board of trade." -5- [MGWL] shall apply to all warehouses located within the state of Missouri not licensed under the provisions of the [USWA]." Id. § 411.015 (1986). The other relevan t section provided:
This chapter shall not app ly in any respect whatsoever to that part of any operation of any public or private warehouse, elevator, or structure in this state op erating under a federal warehouse act, except as suc h war ehouseman may make application for any of the services of th e Miss ouri grain warehouse department, nor shall this chapter prohibit , infri nge, or apply to any weighing or weighing supervision in or i n connection with a federally licensed warehouse performed by any grain exchange or board of trade.

Id. § 411.681 (1986).
In 1993, the Department found it nec essary to revise its regulations to reflect its position on the certification of grain weights. Also, during the 1993 Missour i legislative session, sections 411.015 and 411.681 were revised to eli minate the portions of those sections that prohibited state regulation of federally licensed warehouses. 3

On Augus t 2, 1993, HOA filed a complaint in the District Court seeking a declaratory judgment and injunctive relief against the Department (Count I), an d challeng ing certain actions taken by Hopkins and Bell as tortious interference with HOA's busin ess relationships (Count II) and as violations of HOA's rights under 4 2 U.S.C. § 1983 (1994) (Count III). The Department then filed suit in Missouri state-6-

court seeking an injunction against HOA, which responded with a co unterclaim in three counts, essentially reproducing its fe deral claims. The Department's suit was removed to federal court and consolidated with HOA's suit.
On July 21, 1994, the Departme nt as a state agency was dismissed from HOA's suit on Eleventh Amendment grounds. On January 25, 1995, HOA's claim agains t Hopkins for declaratory and injunct ive relief (Count I) was dismissed because he was
no longer an employee of the Department. The District Court also granted summary judgmen t to Hopkins on HOA's Count II, tortious interference with busines s relation ships, concluding that Hopkins was entitled to official immunity becaus e sending the September 1992 let ter was a discretionary act. In January 1996, the court grantedHopkins summary judgment on HOA's § 1983 claim (Count III), concluding tha t he was entitled to qualified immunity. Finally, on July 3, 1996, Bell, who wa s responsible for admin istering the Department's grain inspection program when HOA's cl aims were made, was granted summary judgment on all three counts: on Count I because he had no policy-making authority at the time the summary judgment wa s granted, on Count II because of privilege, and on Count III because of qualifie d immunity . The court granted summary judgment to HOA, however, on Count I of its counterclaim against the Department ex rel Saunders for declaratory and injunctiv e relief, having determined that the state law at issue was preempted by federal law.

The Department appeals, challenging the standing of the HOA individua l plaintiffs t o bring suit and the District Court's decision on preemption. HOA cros s appeals, challenging all of the court's decisions adverse to HOA (except for th e EleventhAmendment dismissal of the Department and the dismissal of Count I as to Hopkins and Bell) , and further claiming that the court erred in denying HOA's motion to compel discovery of certain Department files. We affirm.The Department's reliance on Lovett v. General Motors Corp. , 975 F.2d 518, 4 521 (8th Cir. 1992), for its proposition that the HOA individuals have no standin g bec ause their claims are derivative of the corporation's claims is misplaced. Th e in dividual plaintiff in Lovett was seeking standing under federal antitrust law fo r injuries suffered by his bankrupted business. This Court concluded that the individual plaintiff's damages were "i ncidental to the alleged antitrust activity and not the type of loss Congress intended to preve nt with the antitrust laws." Id. Lovett is limited by its facts and by the federal antitrust statutes upon which the jurisdiction of the federal court -7- II.
The Depar

tment argues that the individual HOA plaintiffs are without standing to sue, and that the District Court erred by not dismissing them. According to th e Depart ment, the claims of the individual plaintiffs are merely derivative of th e corporations's claims. We reject this argument.

It is true that the judiciary has created a prudential standing requirement "that a litigant must nor

mally assert his own legal interests rather than those of third parties." Phillips Petroleum Co. v. Shutts , 472 U.S. 797, 804 (1985). We believe, however, that the HOA individual plaintiffs are not third parties without standi ng merely because they are asserting claims along with HOA, their corporation. "[A] shareholder with a direct, personal interest in a cause of action [may] bring suit even if the corporation's rights are al so implicated." Franchise Tax Bd. v. Alcan Aluminium Ltd. , 493 U.S. 331, 33 6 (1990). The HOA individual plaint iffs have such direct and personal interests, as they are among those who personally are prevented from practicing their trade by virtue of the stat e's actions--as they would be regardless of their affiliation with HOA

. Moreover, each is licensed under the USWA, which is th e basis for the District Court's preemption decision; HOA, the corporation, does not itself hold a federal license but it does wish to do business with federally-licensed warehouses. Thus both th e individuals and the corporation are in a position to assert distinct claims chargin g violations of their rights. 4was inv oked. That is, it was the statute that limited standing to businesses, not an y

prudential considerations of the court. -8- But ev en if we were mistaken about the standing of the individual HO A plai ntiffs, our error would be of no consequence to our conclusion that the federa l courts have jurisdiction, because of our affirmance of the District Court on appeal. The Departme nt

does not claim that HOA, the corporation, lacks standing to see k declaratory and injunctive relief against the Department, and that is the only relief to which HOA is entitled in this case. Further, although th e Department thinks otherwise,
we b elieve it is of significance that the relief granted HOA was actually granted o n Count I of its counterclaim filed in answer to the Department's suit--which th e Depar tment

brought against HOA, the corporation, and the same four individual s
nam ed as plaintiffs in HOA's suit, and which sought, among other things, declaratory and injunctive relief against all of the plaintiffs.

III.
The Depart

ment also claims that the District Court erred in concluding that the Department's stance on third-party supervision of grain weighing and certification o f grain weights is preempted by the USWA. We disagree.

Under the Supremacy Clause, U.S. Const. art. VI, cl. 2, the United State s Constitution and federal laws and treaties are "the supreme Law of the Land." Thu s Congress, by passing certain legislati on, may act to preempt state law. "In the interest of avoidi ng unintended encroachment on the authority of the States, however, a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find pre-emption." CSX Transp., Inc. v. Easterwo od , 507 U.S. 658, 663-64 (1993 ). Grain warehousing is such an area of traditional state concern, an d when the USWA was enacted in 1916, Congress specifically "made federal regulation in this field subservient to state regulation." Rice v. Santa Fe Elevator Corp. , 331 U.S.-9-

218, 222 (1947). But the Act was amended in 1931 and now provides that, although the Secretary of Agriculture has authority to cooperate with states in the enforcement of state warehouse laws, "the power, jurisdiction, and authority conferred upon th e Secretary of Agriculture under this chapter shall be exclusive with respec t to all persons securing a license hereunder so long as said license remains in effect." 7 U.S.C. § 269 (1994). We think that this amendment portended preemption of the state law here in question.

There are several methods by which courts may discern that Congress intends to preempt state law when it enacts certain federal legislation. First, a federal law may expressly preempt a state law. See Wisconsin Pub. Intervenor v. Mortier , 501 U.S

. 597, 604-05 (1991). Next, preemption will occur of necessity if a state law and a feder al law are in direct conflict. When "'compliance with both federal and stat e regulations is a physical impossibil ity' or when a state law 'stands as an obstacle to the accomplishment a

nd execution of the full purposes and objectives of Congress,'" then the state law is preempted. Id. at 605 (quoting Flor ida Lime & Avocado Growers, Inc.
v. Paul , 373 U.S. 132, 142-43 (1963), and Hines v. Davidowitz , 312 U.S. 52, 6 7 (1941)) (citations omitted). Also, congressional intent to preem pt may be inferred from enactment

of federal laws that are "so pervasive as to make reasonable the inference that Congress left no room f or the States to supplement it." Rice , 331 U.S. at 230. In addition, preemption will be presumed if the subject matter of the legislation concerns "a field in w hich the federal interest is so dominant that the federal system will b e assumed to preclude enforcement of state laws on the sa me subject," or if the objective of the federal law or the duties it imposes "reveal the same purpose." Id.

In Ric e , the Court determined that "the special and peculiar history" of th e USWA as amended in 1931 precludes limiting preemption to circumstances where a state's actions "i n fact dilute[] or diminish[] the federal program." Id. at 232. That is, state grain warehouse laws can be preempted even when they do not collide with a specific federal law; no direct conflict is required. After reviewing the legislative-10-

history of the a

mendments, the Court concluded that the relevant 1931 changes to the USWA "say to us in plain

terms that a licensee under the Federal Act can do business 'without reg ard to State acts.' " Id. at 234 (quoting legislative history). That is, th e USWA preempts the field. Cf. Campbell v. Hussey , 36 8 U.S. 297, 313 (1961) (Black, J., dissenting) ("[T]he

[ Rice ] Court . . . concluded that Congress intended to pre-empt the sup plementary state regulation there involved only after demonstrating that th e lan guage of the Warehouse Act as amended, 'the special and peculiar history' of th e amendment to the Act, and the underlying purpose of the Act all manifested a clear congressional purpose to pre-empt all state action in the field ." ) (emphasis added). The question remains whether the third-party supervision of grain weighing and certification of grain weights in federally licensed grain warehouses, here purportedly monopolized by Missouri law, is within the field preempted by federal law.
Federal grain weighing licenses were issued to the indi vidual HOA plaintiffs and to other HOA employees pursuant to 7 U.S.C. § 252 (1994), which provides that the Secretary of Agriculture may issue a license to any competent individual "to weigh . . .
an d certificate the weight" of "any agricultural product or products, stored or to b e stored in a warehouse licensed under" the USWA, "upon condition that such perso n ag ree to comply with and abide by the terms of this chapter and of the rules an d regulat ions prescribed hereunder so far as the same relate to him." See also 7 C.F.R. § 736.64 (1997) (duties of inspector and weigher) . We agree with the Department and the Distric t Court that the scope of the USWA grain weighing license does no t necessarily incl ude the third-party supervision and certification function at issue here. Under the terms of the Act and its regulations, weighers can "certificate" their ow n grain weights and, as we noted above, Cl ass II certified weights are the creation of the grain industry, not the USWA. Nevertheless, this finding does not preclude preemption of the state law at issue.

Within the provisions of the USWA, Congress specifically subjects certai n aspects of the gr ain warehouse industry to state law. See Rice , 331 U.S. at 234 n.12;-11-

7 U .S.C. §§ 260, 261 (1994). Grain weighing and supervision are not among thos e aspects, and every indication f rom a careful reading of the Act is that the regulation of gr ainweighing in federally licensed warehouses is explicitly reserved to the federa l government. S ee 7 U.S.C. § 269 ("[T]he power, jurisdiction, and authority conferred upon the Secretary of Agr

iculture under this chapter shall be exclusive with respect to all persons securing a license hereunder so long as said license remains in effect.")

. G r ain weighing in federally licensed warehouses by persons holding USWA licenses clearly is a matter regulated by the Act, and supervision of grain weighing an d certification of grain weights are functions of grain weighing. We agree with th e District Court that, "[a]lthough the grain industry is free to adopt a practice of third

party supervision, as it apparently has, the State is not thereby per mitted to regulate this practice" in federal ly licensed warehouses. Heart of Am. Grain Inspection Serv., Inc.
v. Mi ssouri Dep't of Agric. , Nos. 93-0765, 93-1158, Memorandum and Order at 1 5 (W.D. Mo. Jan. 22, 1996) (citation omitted).

Because Congress intended the USWA to preempt the field of grain weighin g in federally licensed warehouses, and because the certification of grain weights comes wit hin the field of grain weighing, any regulation of grain certification that a stat e attempts must b e held to be preempted by the federal law. See Rice , 331 U.S. at 236 ("The test, therefore, is whether the matter on which the State asserts the right to act is in any way regulated by the Federal Act.") (emphasis added). Federally license d grain war ehouses and federally licensed grain weighers need only comply with th e terms of the USWA when any aspect of grain weighing is implicated. Missouri' s attem pt not only to regulate the certification of grain weights in federally license d warehouses, but to usur

p that function entirely, is an unconstitutional exercise of state power, notwithstanding that the USWA does not explicitly regulate Class II certified weights or the persons who provide them. Cf. Campbell , 368 U.S. at 302 ("We have then a case where the federal law excludes local regula tion, even though the latter does no more than supplement the former.").-12-

T he Department also suggests that the District Court should "have deferred its decision [on preemption] until it had received evidence on the implementing agency's interpretation of the statute." Department's Brief at 18. The court did have before it two letters from the United States Department of Agriculture (USDA), but the Missouri Department of Agriculture in its brief criticizes that correspondence because the court described it as "'in formally' presented" and "'conclusory.'" Id. at 19. The Department argues that it should be given th e opportunity to present evidence from the USDA that "wi llconfirm that the USWA had never been interpreted by them to include, eve n peri pherally, the third-party supervision of grain weighing." Id. Assuming for th e moment that the Department is correct in its own conclusory statement, and that in fact itwo uld be able to extract from someone at the USDA a statement of the natur e
asse rted, we think there was ample time during the long course of this litigation for it to have done

so before now. The Department will not now be heard to complain that itf iled its motions for summary judgment with what it considers, in hindsight, a n incomplete record.
Moreover, no one here is challenging the USDA's interpretation of a statute that the agency is charged to administer. It is not a USDA regulati on that is under fire here; it is the Missouri Department of Agriculture's enforcement of state law in the face of federal legi slation on the same subject. To the extent the two statements from th e USDA that are already in the record are so contrary to one another as to create an issue of fact (that is, whether or not the USDA thin ks the USWA preempts the Missouri law at issue here) , it is not a material issue of fact because the USDA's opinion would not be dispositive of the legal quest ion before us--whether federal law preempts state law, which is a question of congressional intent, not the regulating agency's intent.

IV.
We come now to HOA's cross appeal of the District Court's decisions regarding its Count II, the state law claim for tortious interference with business relationships.-13-

HOA challenged Hopkins's action in s ending to the grain industry the September 1992 letter declaring that only Department employees could certify weights, and Bell' s statements to individuals within the grain industry that HOA was in violation of state law and that HOA was unable, for financial reasons, to provide the services it wa s offering to the grain industry.
As to Hopkins, the District Court concluded that he had acted within the scope of his official duties in sending the letter and that, because it was a discretionary act, he was entitled to official immunity. The court therefore granted him summary judgment. We have reviewed de novo and conclude that HOA has demonstrated n o genuine issue of material fact on the question of whether Hopkin s's sending of the letter
was disc retionary or ministerial, and that Hopkins thus is entitled to judgment as a matter of law. We do not consider HOA's argument that Hopkins acted in bad faith by sending the letter and therefore waived his right to claim official immu nity, as this claim was not raised i n the District Court. See Smith v. City of Des Moines, Iowa , 99 F.3d 1466, 1473 (8th Cir. 1996) ( "We will not reverse a grant of summary judgment on the basis of an argument not presented below.").

HOA al so contends that the District Court improperly granted summar y judgment to Bell on the tortious interference claim against him. The court did no t address the distinction between discretionary and ministerial acts in Bell's case because HOA did not make the argument that Bell's actions were ministerial. The court als o found that it was unnecessary to decide the questi on of whether Bell acted in bad faith, a claim that HOA did raise as to Bell's actions. Instead the court concluded that, to the extent Bell's statements were u nlawful, they nevertheless were privileged, because the
same statements would be immune from a defamation claim. We hold that the court di d not err in its application of the law, and that summary judgment was properl y granted to Bell.-14- V.

The District Court also granted summary judgment to Hopkins and Bell on all claims HOA r aised under § 1983 in Count III of its complaint and counterclaim. The Court decided that both men were entitled to qualified immunity.

We first consid er HOA's § 1983 claim against Hopkins and Bell based on their al legedviolations of HOA's rights under the Contract Clause. The District Court determined that HOA di d not properly raise a claim under the Contract Clause. HOA assert s that its presentation to the court of materials "relevant to determining whether the letter affected a property interest of H OA" properly raised the claim, that "[i]t does not appear that the District Court considered" those materials, and that this clai m therefore should be remanded. HOA's Brief at 21. We have reviewed the record on this question and we are satisfied that HOA did not present a Contract Clause claim to the District Court. We turn to the claims that HOA did present to the District Court.

Inits January 1996 order, the court granted summary judgment to Hopkins on HOA's § 1983 claims charging violations of its rights under pro cedural due process and the dorma nt Commerce Clause. The court concluded that Hopkins was entitled t o qualified immunity, as his conduct did not viol ate rights he knew, or reasonably should have known, were cle arly established under either procedural due process or dormant Commerce Clause jurisprudence. HOA claims its right to procedural due process was violated because Hopkins did not meet with the HOA individual plaintiffs in person before sending the September 1992 letter to representatives of the grain industry. The District Court, assuming that HOA's inter

est in its business was protected by the Due Process Clause, held that the correspondence between the Department and HOA or its representatives that wa s exchangedbefore the letter was circulated was sufficient to provide any process due HOA, and therefore granted Hopkins's motion for summary judgment. We have-15-

reviewed de novo, and agre e with the District Court that HOA received protection for its interests that fully comports with any rights it may have had to procedural du e process, and that Hopkins was entitled to judgment as a matter of law.

HOA also argues that it has a cause of action against Hopkins under § 198 3 because Hopkins's actions violated HOA's rights under t he dormant Commerce Clause. The dormant, or negative, Commerce Clause "denies th e States the power unjustifiably to discriminate against or burden" interstate commerce. Oregon Waste Sys., Inc. v

. Depa rtment

of Envtl. Quality , 511 U.S. 93, 98 (1994); see also Fulton Corp. v

. Faulkner , 1 16 S. Ct. 848, 853-54 (1996). The District Court concluded that th e exercise of s tate power here in question was not discriminatory, as it affected in-state and out-of-state concerns equally. The court further found that it was unable to discern from the record whether or not the Missouri law violated the second aspect of dormant Co mmerce Clause jurisprudence, that is, whether the law placed an undue burden on interstate commerce that could not be justified by state interests. Still, the court granted summary judgment to Hopkins, holding that it could not "realisti cally find that Hopkins' actions violated HOA's clearly e stablished rights under the Commerce Clause." Heart of Am. Gr ain Inspection Serv., Inc. v. Missouri Dep't of Agric. , Nos. 93-0765, 93

- 1158, Mem orandum and Order at 20 (W.D. Mo. Jan. 22, 1996). The court noted the "inherent ly uncertain" nature of the balancing inquiry required in the undue burde n portion of dormant Commerce Clause analysis, and concl uded "that qualified immunity should normally

be available to officials whose actions are later judicially determined to have unduly burdened interstate commerce." Id. at 19 (citing Kassel v. Consolidated Frei ghtways Corp. , 450 U.S. 662, 670 (1981) (plurality opinion) ("The extent o f permissi ble state regulation is not always easy to measure.")). Again, we hav e reviewed de novo and, although we think it is a close question, we agree that Hopkins
was e ntitled to qualified immunity on HOA's Commerce Cause claim, and thu s summary judgment was properly granted.The Honorable Sarah W. Hays, United States Magistr ate Judge for the Western 5 District of Missouri. -16- The District Court's decision to grant summary judgment to Bell on HOA's Count III is affirmed for the reasons articulated above concerning Hopkins.

HOA also contends in its cross appeal that it was improperly denied summary judgment on a claim for injunctive relief brought against the Department under th e auspices of § 1983. Because we are affirming the court's decision to grant HO A declaratory and injunctive relief on Count I of its counterclaim, it is unnecessary for us to address this question.

The District Court's decisions on HOA's Count III are affirmed.

VI.
Finally, H OA argues that the District Court erred in denying its motion t o 5 compel pr oduction of certain Department files. We review for a "gross abuse o f discretion" on the part of the District Court. Kinkead v. Southwestern Bell Tel. Co. , 49 F.3d 454, 457 (8th Cir. 1995).
The Department produced certain responsive documents from its files pursuant to HOA's r equests, but HOA contends that the complete contents of the files wer e relevant an d should have been produced. The District Court noted that HOA ha d
c l aimed that it knew, based on certain deposition testimony, that the Department had withheld responsive documents. According to the District Court, however, HOA was unable to identify those documents (or any others) that they wanted and that th e Department had failed to produce. The court reviewed the motion to compel at length and in detail, and we see no abuse of discretion, much less a "gross" abuse, in its-17-

decision to deny the motion to compel. Therefore, we aff irm the District Court's denial of HOA's motion to compel.

VII.
The orders of the District Court are affirmed in all respects.
A true copy.

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