This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Linda K. Hinz,



REM-Minnesota, Inc.,


Filed April 7, 1998


Kalitowski, Judge

Hennepin County District Court

File No. 968461

Bradley D. Hauswirth, Stringer & Rohleder, Ltd., 1200 Norwest Center, 55 East Fifth Street, St. Paul, MN 55101 (for appellant)

Martin L. Garden, Jon S. Olson, Law Offices of Martin L. Garden, 2520 Centre Village, 431 Seventh Street, Minneapolis, MN 55415 (for respondent)

Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Kalitowski, Judge.



Prior to this action, the United States District Court determined that: (1) appellant Linda Hinz's whistleblower, breach of covenant of good faith and fair dealing, and breach of contract claims against respondent REM-Minnesota, Inc. (REM), arose in the context of a labor dispute and were therefore preempted by the NLRA; and (2) Hinz's defamation claim also arose out of a labor dispute, but because REM brought a motion under Fed. R. Civ. P. 12, and Hinz alleged actual malice, the defamation claim must be remanded to state district court. Hinz did not appeal.

In state district court, Hinz argued that REM defamed her in a complaint to the State of Minnesota Board of Social Work (BSW) and in certain other statements. The district court granted REM's summary judgment motion, concluding the alleged defamatory statements were either true or nonactionable opinions, and that even if there were false statements of fact, Hinz did not present sufficient evidence to establish the statements were made with actual malice. Hinz challenges this determination and the district court's denial of her motions to amend her complaint and to compel further discovery. We affirm.


On appeal from a district court's grant of summary judgment, this court reviews (1) whether any genuine issues of material fact exist; and (2) whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). In doing so, this court "view[s] the evidence in the light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). Further, the district court has "considerable discretion in granting or denying discovery requests and, absent abuse of that discretion," will not be reversed on appeal. Pearson v. Henkemeyer, 503 N.W.2d 504, 508 (Minn. App. 1993), review denied (Minn. Sept. 30, 1993). The decision whether to allow a party to amend its complaint is also within the district court's discretion, and we will not reverse that decision absent an abuse of that discretion. Dan's v. Midwest Discount Sec., Inc., 439 N.W.2d 383, 388-89 (Minn. App. 1989).


The elements of a defamation claim are: (1) communication to third party; (2) a false statement; and (3) resulting harm to the plaintiff's reputation and standing in the community. Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980). Employers may be liable for "compelled self publication" of a defamatory statement if they know or should know "of circumstances whereby the defamed person has no reasonable means of avoiding publication of the statement or avoiding the resulting damages." Lewis v. Equitable Life Assurance Soc., 389 N.W.2d 876, 888 (Minn. 1986).

Generally, if a tort claim arises in the context of a labor dispute, the state claim is preempted. Old Dominion Branch No. 496 v. Austin, 418 U.S. 264, 271-73, 94 S. Ct. 2770, 2775 (1974). State defamation claims are partially preempted to strike a balance between federal and state concerns. Beverly Hills Foodland, Inc. v. Union Food & Commercial Workers Union, Local 655, 39 F.3d 191, 194 (8th Cir. 1994). State defamation claims survive only if the alleged defamatory statements were made with actual malice, which is defined as "`with knowledge that it was false or with reckless disregard of whether it was false or not.'" Austin, 418 U.S. at 281, 94 S. Ct. at 2779-80 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S. Ct. 710, 726 (1964)). Generally, actual malice is a question of fact. Bauer v. State, 511 N.W.2d 447, 450 (Minn. 1994). There must, however, be sufficient evidence to support actual malice, as a matter of law. Milkovich v. Lorain Journal Co., 497 U.S. 1, 17, 110 S. Ct. 2695, 2705 (1990).

"Before the test of reckless or knowing falsity can be met, there must be a false statement of fact." Austin, 418 U.S. at 284, 94 S. Ct. at 2781. In a defamation action, the plaintiff must show that the published statements are false. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777, 106 S. Ct. 1558, 1564 (1986).

Hinz contends she presented sufficient evidence to establish a jury question on the issue of actual malice, and she was defamed by self-publication after having to reveal that she was investigated by the BSW for unethical conduct. We disagree.

Initially, we note that because Hinz did not appeal the federal district court's determination that her defamation claim arose out of a labor dispute, this determination is law of the case. Further, there is ample evidence in the record to support this determination, including appellant's assertion to the BSW that her union activity was "the real issue which has motivated these charges." Thus, under Austin, Hinz must prove the alleged defamatory statements were both false and made with actual malice.

The district court determined that Hinz failed to meet her burden of showing that there is a genuine issue of material fact as to whether some of the alleged defamatory statements were in fact false. Hinz presented no corroborating evidence concerning: (1) whether Hennepin County "pulled" her foster care practice; (2) whether a client filed a complaint against her; and (3) how many times she was disciplined. Thus, the district court properly determined that Hinz did not present sufficient evidence to support her bare assertions that these statements were false.

Other statements Hinz alleges to be defamatory are as a matter of law subjective, unverifiable opinions and thus, not actionable. See Milkovich, 497 U.S. at 20, 110 S. Ct. at 2706 (stating opinions that do not imply false statements of fact are not actionable); Beverly Hills Foodland, 39 F.3d at 195 (concluding defamatory statements may be actionable if they are false statements of fact or opinions reasonably read as an assertion of false fact). Thus, alleged statements that: (1) Hinz pursued personal relationships with clients "to the point of dangerousness"; (2) residents "got upset" when Hinz was around; and (3) Hinz was "a troublemaker" are not actionable.

Even if Hinz established that one or more of the alleged defamatory statements were false, the district court determined, as a matter of law, that she failed to present sufficient evidence the statements were made with actual malice. We agree. Although Hinz relies on previous retaliation by REM during the labor dispute and REM's scheduling policy that negatively affected her work schedule, this evidence is relevant to common law malice, not to whether REM acted with actual malice.

Hinz also asserts that the filing of the complaint with the BSW establishes actual malice. We disagree. Although the BSW eventually dismissed the complaint, neither the BSW nor the district court found that the complaint was brought in bad faith. Significantly, while disputing that the allegations in the complaint constituted "unethical conduct," Hinz admitted in her response to the BSW that the factual allegations made in the complaint were true. Further, the BSW complaint requests the BSW to investigate and interpret the implications of the allegations in the context of social work practice. Statements that invite further inquiry are nonactionable. See Beverly Hills Foodland, 39 F.3d at 195 (holding statement asking readers to determine if hiring practices were illegal is not a false statement of fact). We conclude the district court properly determined that Hinz failed to present a genuine issue of material fact as to actual malice and that absent actual malice, Hinz cannot recover on her defamation claim as a matter of law. Cf. Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 25-26 (Minn. 1996) (stating "`it is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury'" (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S. Ct. 2997, 3012 (1974))).

Finally, Hinz argues she was defamed by her self-publication of the fact that she was investigated by the BSW. We conclude that because Hinz admitted the truth of the BSW complaint, the statement is true and nonactionable. See Austin, 418 U.S. at 285, 94 S. Ct. at 2781 (stating there must be a false statement of fact for recovery for defamation). Because Hinz has failed to show that REM acted with bad faith or falsely accused her in filing the complaint with the BSW, the alleged self-publication is nonactionable. We conclude the district court did not err in determining as a matter of law that there was no defamation, and thus, granting summary judgment to REM.


Hinz argues the district court erred in denying her request for additional discovery concerning REM's motives and conduct. We disagree. The district court properly determined that Hinz took the depositions of REM's employees, obtained documents from REM, and had ample opportunity to take the depositions of other REM employees. We conclude the district court did not abuse its broad discretion in denying Hinz's request for further discovery.


Hinz argues the district court erred in denying her request to amend her complaint for a third time to "include additional allegations" and to add a claim for punitive damages under Minn. Stat. § 549.20, subd. 1 (a) (1996) (allowing punitive damages if, by a showing of clear and convincing evidence, a party acts with "deliberate disregard of the rights or safety of others"). We disagree. The "additional allegations" were contained in the district court file and considered by the district court. Further, because Hinz has not produced sufficient evidence to establish REM's actual malice, she cannot show clear and convincing evidence to establish the necessary grounds for punitive damages as required by statute. We conclude the district court did not abuse its discretion in denying Hinz's motion to amend her complaint.