This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Ole Savior,


Hubert H. Humphrey, III, et al.,

Filed November 23, 1999
Harten, Judge

Hennepin County District Court
File No. 9816867

Ole Savior, 1905 Elliot Avenue South, Minneapolis, MN 55404 (pro se appellant)

John P. Borger, Eric E. Jorstad, Faegre & Benson LLP, 2200 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402-3901 (for respondents)

Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Ole Savior challenges the dismissal of his lawsuit for failure to state a claim upon which relief can be granted and the denial of his motion to amend the pleadings. Because the district court did not err, we affirm.


On November 2, 1998, appellant, an unsuccessful candidate for governor of Minnesota, filed a complaint for damages under the Fair Campaign Practices Act against Timothy J. McGuire, Editor, Star Tribune Newspaper.[1] The complaint alleged that the Star Tribune deliberately did not state appellant’s "views to the voters of Minnesota" because of its systematic "favoritism to Hubert H. Humphrey, III."

Respondent McGuire moved to dismiss the complaint for insufficiency of service of process and for failing to state a claim upon which relief can be granted. On January 16, 1999, appellant moved to amend his pleadings. The time to amend as of right under Minn. R. Civ. P. 15.01 had expired.

On March 1, 1999, the district court granted respondent’s motion to dismiss and denied appellant’s motion to amend, noting that service was "clearly insufficient" under Minn. R. Civ. P. 4.05.


1. Failure to state a claim upon which relief can be granted

Appellant argues that the district court erred by dismissing pursuant to Minn. R. Civ. Proc. 12.02(e) his claim for failure to state a claim upon which relief can be granted. In reviewing a dismissal under this rule, the only question before this court is whether the complaint sets forth a legally sufficient claim for relief. Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980). A claim is legally sufficient if it is possible on any evidence that might be produced, consistent with the plaintiff’s theory, to grant the relief requested. Northern States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963). All assumptions, conclusions, and inferences must be drawn in favor of the plaintiff. Id. at 396, 122 N.W.2d at 30.

Appellant advances two arguments to support his position. First, he claims that respondent violated the Fair Campaign Practices Act (FCPA), Minn. Stat. §§ 211B.01-.21 (1998). However, the FCPA does not create a private cause of action; it provides only gross misdemeanor or misdemeanor criminal penalties against a violator, and, in the case of violation by a candidate, forfeiture of nomination. These FCPA remedies are exclusive. Derus v. Higgins, 555 N.W.2d 515, 517 (Minn. 1996). Accordingly, the district court did not err in concluding that appellant’s complaint required dismissal for failure to state a justiciable claim.

Second, appellant argues that the district court erred by dismissing his claim for damages because respondent violated appellant’s First Amendment right to free speech.[2] But

[t]he choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with the First Amendment guarantees of a free press as they have evolved to this time.

Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258, 94 S. Ct. 2831, 2840 (1974). The First Amendment protects the editorial choice of the Star Tribune to limit coverage of appellant’s candidacy.

2. Motion to Amend the Pleadings

Appellant argues that the district court abused its discretion by denying his motion to amend the pleadings to add a claim for defamation. After a response is filed, as it was here, a party may amend only with the consent of the adverse party or by leave of the court. Minn. R. Civ. P. 15.01. Appellant failed to obtain either; accordingly, the motion was procedurally defective.

Appellant also argues that the district court abused its discretion by denying as futile his motion to amend. The denial of a motion to amend pleadings is proper when the movant fails to offer evidence in support of the new allegations. Eustis v. David Agency Inc., 417 N.W.2d 295, 299 (Minn. App. 1987). In order to establish a defamation claim, the plaintiff must show that (1) a statement about the plaintiff was made; (2) the statement was communicated or published to someone other than the plaintiff; (3) the statement was false; and (4) the statement harmed plaintiff’s reputation. Ferrel v. Cross, 557 N.W.2d 560, 565 (Minn. 1997).

Here, the district court found that "[t]he best [appellant] can establish is that the Star Tribune said nothing about him." We agree and conclude that the district court did not abuse its discretion by denying appellant’s motion to amend.


[1] Appellant also included Hubert H. Humphrey, III, as a defendant, but later stipulated to dismissing him.

[2] Because appellant did not raise this issue in the district court it is not properly before us. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Nevertheless, because the district court sua sponte addressed this issue in its order and both parties briefed it on appeal, it is included in this opinion.