This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1095

 

Erik Tweeton,
Appellant,

vs.

Cheri L. Frandrup, et al.,
Respondents.

 

Filed April 17, 2007

Affirmed

Collins, Judge*

 

Ramsey County District Court

File No. C0-06-001274

 

 

Erik Tweeton, P.O. Box 1663, Granby CO 80446 (pro se appellant)

 

Lori Swanson, Attorney General, Melissa V. Brettingen, Assistant Attorney General, 445 Minnesota Street, 1100 Bremer Tower, St. Paul, MN 55101 (for respondents)

 

            Considered and decided by Klaphake, Presiding Judge; Shumaker, Judge; and Collins, Judge.

U N P U B L I S H E D   O P I N I O N

 

COLLINS, Judge

            Appellant Erik Tweeton challenges the summary judgment entered in favor of respondents dismissing Tweeton’s 42 U.S.C. § 1983 and defamation claims, arguing that procedural irregularities and genuine issues of material fact preclude summary judgment.  But because (1) Tweeton’s various procedural challenges are without merit, (2) Tweeton fails to establish the existence of any genuine issue of material fact, and (3) respondents are entitled to judgment as a matter of law, we affirm. 

FACTS

            Following a traffic stop, Tweeton was charged by Sergeant Paul Gorski, of the Minnesota State Patrol, for reckless driving, using a prohibited flash device, and impersonating an officer.  Because Sergeant Gorski did not have a ticket book with him,  Tweeton was told to expect the summons and complaint by mail.  After sending the summons and complaint to the Apple Valley address listed on Tweeton’s driver’s license, Sergeant Gorski discovered that the address was that of Tweeton’s parents.  Following a jury trial, Tweeton was found guilty of reckless driving and acquitted of the other charges. 

            Shortly thereafter, Tweeton sent a letter to Sergeant Gorski’s residence, accusing him of committing various crimes and demanding payment of $2,442.58.  The letter accused Sergeant Gorski of “sen[ding] letters to [Tweeton’s] relatives . . . to falsely accuse crimes.”  According to the letter, if Sergeant Gorski complied with the settlement demand, Tweeton would forgo bringing a civil suit and would not “observe [Sergeant Gorski] driving home from a parking lot [or] report [Sergeant Gorski’s] speeding and following too closely,” would not “honk [his] horn outside [of the Gorski home,]” and would not “warn children about [Sergeant Gorski] on Halloween so they don’t trick or treat at [the Gorski home].”  The letter documented private details, including Sergeant Gorski’s unlisted home address, the license-plate numbers on his vehicles, his wife’s name, the assessed value of his home, the first names of four of his relatives, and knowledge that some of his relatives live in Florida.  The letter also stated that Tweeton would notify Sergeant Gorski’s “closest 67 neighbors” of Sergeant Gorski’s dangerousness and arrogance. 

            Because he feared for the safety of his family, Sergeant Gorski showed the letter to his supervisor, Captain Cheri Frandrup.  Because Captain Frandrup concluded that the letter evinced Tweeton’s intent to injure Sergeant Gorski, and also constituted stalking, she wrote a letter to Tweeton requesting that he discontinue correspondence with Sergeant Gorski.  Her letter noted that Tweeton’s letter to Sergeant Gorski was of a “harassing nature with the intent to intimidate.”  Captain Frandrup warned Tweeton that the state patrol would seek a restraining order and pursue criminal charges if he made further contact with Sergeant Gorski.  The letter also encouraged Tweeton to address his complaints “within the justice system.”  An assistant attorney general reviewed and approved Captain Frandrup’s letter before it was mailed.  Because she was unsure where Tweeton resided, Captain Frandrup sent two copies of the letter, one to the Apple Valley address shown on Tweeton’s driver’s-license records and the other to the Colorado address Tweeton had used in his mailing.  Return receipts indicate that Tweeton received both letters. 

            Sergeant Gorski then discovered that his neighbor had also received a letter from Tweeton.  The letter falsely stated that Sergeant Gorski was being sued for “theft, negligence, harassment, and defamation.”  It encouraged its recipients to take action if they agreed that Sergeant Gorski, a “crooked[,] arrogant trooper[,] should be fired.” 

            Sergeant Gorski showed Captain Frandrup his neighbor’s letter.  Because Captain Frandrup believed that this letter was also “an attempt to harass and intimidate Sergeant Gorski,” she and another officer went to the Apple Valley address to speak with Tweeton.  There, they learned from his father that Tweeton was in Colorado.  Captain Frandrup informed Tweeton’s father that the letters received by Sergeant Gorski’s neighbors were harassing and defamatory, and that Tweeton’s conduct could result in criminal charges.  Tweeton’s father was asked to persuade Tweeton to stop the harassment and to file his complaints with the Department of Public Safety’s Internal Affairs Division (IAD).  Later that day, Captain Frandrup offered the same information to Tweeton’s mother. 

            Tweeton subsequently filed a formal complaint against Captain Frandrup and Sergeant Gorski with the IAD.  But after completing an investigation, Captain Kent Matthews concluded that there was no cause for complaint against either officer. 

            Tweeton next brought a civil action against respondents Captain Frandrup, Major Kent O’Grady, and Commissioner of Public Safety Michael Campion in Ramsey County District Court.  First, Tweeton framed a cause of action under 42 U.S.C. § 1983 (2000), claiming that Captain Frandrup and Major O’Grady violated his rights under the First Amendment and the Fourteenth Amendment when Captain Frandrup, with Major O’Grady’s concurrence, sent the letter to Tweeton.  Second, Tweeton complained that Commissioner Campion defamed him by failing to condemn the two officers who notified his parents of the letters Tweeton had sent to Sergeant Gorski and his neighbors. 

            Respondents moved the district court for dismissal of the action or for summary judgment.  Tweeton moved the court for default judgment.  Tweeton then attempted to remove the case to federal district court by filing a “notice of removal.”  The Ramsey County district court denied Tweeton’s motion for default judgment, granted respondents’ motion for summary judgment, and granted respondents’ motion for an order striking Tweeton’s purported notice of removal.  This appeal follows. 

D E C I S I O N

I.

            Initially, we must consider whether the district court erred as a matter of law by determining that it had jurisdiction to enter judgment.  Tweeton contends that the district court did not have jurisdiction after he removed the claims to federal court. 

            Whether a district court had jurisdiction is a question of law, which we review de novo.  Bode v. Minn. Dep’t of Natural Res., 612 N.W.2d 862, 866 (Minn. 2000).  Removal of cases from state to federal court is governed by 28 U.S.C. §§ 1441-1453 (2000).  Those sections provide, in pertinent part: “Except as otherwise expressly provided . . . , any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants . . . .”  28 U.S.C. § 1441(a) (emphasis added).  “A defendant or defendants desiring to remove any civil action . . . shall file . . . a notice of removal . . . .”  28 U.S.C. § 14-46(a) (emphasis added). 

            Here, the district court granted respondents’ motion for an order striking Tweeton’s purported notice of removal.  We conclude that the district court correctly granted respondent’s motion and properly retained jurisdiction of the matter because the federal code provides for removal by a defendant only. 

II.

            The next issue is whether the district court abused its discretion by denying Tweeton’s motion for default judgment.  Tweeton claims entitlement to judgment because respondents failed to answer the complaint within the time allowed under Minn. R. Civ. P. 12.01. 

            The decision to grant or deny a motion for default judgment is within the district court’s discretion.  Coller v. Guardian Angels Roman Catholic Church, 294 N.W.2d 712, 715 (Minn. 1980).  This court will not reverse absent an abuse of that discretion.  Id. 

            The rules governing default judgment provide: “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend within the time allowed therefore . . . , judgment by default shall be entered against that party . . . .”  Minn. R. Civ. P. 55.01.  A defendant must “serve an answer within 20 days after service of the summons . . . .”  Minn. R. Civ. P. 12.01.  But the service of motions under Minn. R. Civ. P. 12 tolls the time: “If the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within ten days after service of notice of the court’s action.”  Id. 

            Tweeton served a summons and complaint on respondents on January 11, 2006.  Rather than answering, respondents served a motion to dismiss on January 31.  Service of this motion tolled the time within which respondents’ were required to answer.  The district court did not abuse its discretion by denying Tweeton’s motion for judgment by default. 

III.

            Next, we address Tweeton’s contention that “[t]he district court should not have demanded personal appearance [on April 25, 2006] without notice and [should] not [have] heard the motion[s] with oral argument.”  Tweeton points to his filed informational statement, in which he unilaterally inserted: “All motions must be heard without oral argument pursuant to Rule 7.02 unless the court directs otherwise.  Any motion may be heard by phone conference.” 

            Parties “may agree to written submission to the court for decision without oral argument unless the court directs otherwise.  Upon the request of a party or upon its own initiative, the court may hear any motion by telephone conference.”  Minn. R. Civ. P. 7.02(a).   

            Tweeton was not present for the April 25, 2006 hearing.  The district court noted that Tweeton had been served with: (a) a notice of motion and motion for summary judgment on March 24, 2006; (b) a notice of motion and motion for leave to withdraw imputed admissions on March 31; and (c) a notice of motion and motion for an order striking his purported notice of removal on April 5, each of which specified that the motion would be heard on April 25.  The district court also noted that Tweeton had made no contact with the court.  Respondents’ counsel made a record that he had contacted Tweeton by both letter and e-mail to inform him that “most judges would expect him to be here in person” and provided Tweeton with a telephone number to call to request leave to appear by telephone.  The court noted that it had “not been contacted by Mr. Tweeton seeking a phone conference” and proceeded with consideration of the pending motions.  Tweeton had due notice of the hearing date, and his argument on this issue is without merit. 

IV.

            Tweeton further contends that the district court erred in considering respondents’ summary-judgment motion, arguing that the motion (a) violated the rule requiring parties to attempt settlement and (b) did not give proper notice of the hearing.  Tweeton failed to raise either of these issues before the district court.  As a reviewing court, we “must generally consider only those issues that the record shows were presented and considered by the [district] court in deciding the matter before it.”  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  We therefore decline to address this claim of error. 

V.

            We now turn to whether the district court properly granted summary judgment to respondents on Tweeton’s 42 U.S.C. § 1983 (2000) claim.  “A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  “On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of the law.”  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  No genuine issue of material fact exists when “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quotation omitted).  We review the evidence in a light most favorable to the party against whom judgment was granted.  Fabio, 504 N.W.2d at 761. 

            In his complaint, Tweeton asserts that both Captain Frandrup and Major O’Grady violated his First Amendment free-speech rights.  The complaint specifically cites the letter Captain Frandrup sent to Tweeton, stating, “[i]f you initiate any contact with Sgt. Paul Gorski, with his family or his personal residence we will seek a temporary restraining order and follow up with criminal charges.”  Tweeton included Major O’Grady as a defendant because he concurred with the letter’s message.  The district court summarily dismissed this claim based on its determination that the letter Tweeton sent to Sergeant Gorski’s home amounted to “intimidation as well as extortion and coercion outside the protection of the First Amendment . . . it is retaliatory, intimidating and coercive, and, as a matter of law, not entitled to first amendment protection.”  We agree.

            The First Amendment provides, in pertinent part, that “Congress shall make no law . . . abridging the freedom of speech . . . .”  U.S. Const. amend. I.  Federal law provides a cause of action for a person whose civil rights have been violated by state actors.  42 U.S.C. § 1983.  To establish the elements of a 42 U.S.C. § 1983 retaliation claim, the complainant must demonstrate: (1) that he was “engaged in constitutionally protected activity”; (2) that the defendants’ “adverse action caused [him] to suffer an injury which would chill a person of ordinary firmness from continuing in that activity”; and (3) that “the adverse action was motivated in part by [appellant’s] exercise of [his] constitutional rights.”  Carroll v. Pfeffer, 262 F.3d 847, 850 (8th Cir. 2001) (quotation omitted). 

            Tweeton disputes the district court’s determinations that the letter he sent to Sergeant Gorski contains personal information and that the letter caused Sergeant Gorski to feel frightened.  But the letter undeniably contains personal information, as well as a payment demand.  And affidavits submitted by both Sergeant Gorski and Captain Frandrup state that Sergeant Gorski felt threatened by the letter.  Tweeton’s bare assertions to the contrary are insufficient to create a factual issue for trial. 

            Moreover, an officer may advise an individual on how to comply with the law and avoid prosecution without infringing on the individual’s First Amendment rights.  Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 72, 83 S. Ct. 631, 640 (1963).  Here, Captain Frandrup’s letter advised Tweeton that he could, and should, lawfully pursue his complaints through the justice system.  For these reasons, we conclude that the district court correctly granted summary judgment dismissing Tweeton’s section 1983 claim. 

            Tweeton also argues that neither defendant is entitled to qualified immunity.  But because the district court did not reach the issue of whether qualified immunity bars appellant’s claim, we decline to address the issue.  See Thiele, 425 N.W.2d at 582. 

VI.

            Next, we consider whether the district court erroneously granted summary judgment for respondents on Tweeton’s defamation claim.  The court granted the judgment based on its determination that Tweeton failed to show that Captain Frandrup’s statements to his parents were false.    

            Defamation consists of three elements: (1) a false and defamatory statement about the plaintiff; (2) publication of that statement to a third party; and (3) harm to the plaintiff’s reputation.  Weinberger v. Maplewood Review, 668 N.W.2d 667, 673 (Minn. 2003).  Truth is a complete defense to a claim of defamation.  Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980). 

            Tweeton contends that Captain Frandrup and the accompanying officer defamed him by informing his parents that his actions were cause for criminal charges and that the letters Tweeton sent to Sergeant Gorski’s neighbors constitute harassment.  Minnesota law defines harassment as: “intentional conduct which: (1) the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated; and (2) causes this reaction on the part of the victim.”  Minn. Stat. § 609.749, subd. 1 (2006).  An individual who uses repeated mailings to harass another is guilty of a gross misdemeanor.  Id., subd. 2(a)(6) (2006).

            Captain Frandrup told Tweeton’s father that the letters sent to Sergeant Gorski’s neighbors constitute harassment or defamation.  She also advised that the state “might” bring criminal charges if Tweeton persisted in his behavior.  Captain Frandrup reiterated this information to Tweeton’s mother.   

            Because Tweeton’s conduct meets the description of harassment under the statute, the statements made by Captain Frandrup and the other officer to Tweeton’s parents were true and therefore cannot be defamatory.  Thus we conclude that the district court correctly granted summary judgment on this claim.  And because the district court did not reach the issue of whether the statements were protected by qualified immunity, we too decline to address the issue.  See Thiele, 425 N.W.2d at 582. 

VII.

            Finally, we address whether the district court erred by granting summary judgment based on the assumption that respondents’ allegations were true and Tweeton’s were false.  Tweeton contends that “[t]he judges [sic] order and recital of facts section is a parroting almost verbatim of the lies the defense claimed in their memorandum for summary judgment.” 

            Tweeton correctly argues that when considering a summary judgment motion, “a court may not weigh the evidence or make factual determinations, but must take the evidence in a light most favorable to the nonmoving party.”  Fairview Hosp. & Health Care Servs. v. St. Paul Fire & Marine Ins. Co., 535 N.W.2d 337, 341 (Minn. 1995).  The Minnesota Rules of Civil Procedure provide, in pertinent part:

When a motion for summary judgment is made and supported as provided in Rule 56, an adverse party may not rest upon the mere averments or denials of the adverse party’s pleading but must present specific facts showing that there is a genuine issue for trial.  If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. 

 

Minn. R. Civ. P. 56.05.  “Speculation, general assertions, and promises to produce evidence at trial are not sufficient to create a genuine issue of material fact for trial.”  Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995). 

            Respondents supported their motion for summary judgment with the affidavits of Sergeant Gorski, Captain Frandrup, and Captain Matthews, along with the correspondence at issue.  Tweeton failed to submit any affidavits or evidence in opposition to respondents’ motion.  Therefore, he failed to “present specific facts showing that there is a genuine issue for trial,” as required by Minn. R. Civ. P. 56.05, and we conclude that summary judgment was proper. 

            Affirmed.