This opinion will be unpublished and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
A06-2449
 

Thomas R. Pressler,

Appellant,

vs.

Douglas A. Theis,

Respondent,

Mick Niess,

Respondent,

 

Jack Volz,

Respondent,

 

Todd Seitz,

Respondent,

 

Brian Staska,

Respondent,

 

Chris Hultengren,

Respondent,

 

George Magdal,

Respondent,

 

Mike Dobesh,

Respondent,

 

Jeremiah Anderson,

Respondent,

 

Unknown Defendant X, Y and Z, et al.,

Defendants.
 

Filed November 13, 2007

Affirmed

Klaphake, Judge

 

Hennepin County District Court

File No. 27-CV-05-19016

 

Richard A. Saliterman, Saliterman & Siefferman, P.C., 2000 U.S. Bank Plaza, 220 South Sixth Street, Minneapolis, MN  55402 (for appellant)

 

Thomas A. Gilligan, Jr., Nicholas J. O’Connell, Murnane Brandt, 30 East Seventh Street, Suite 3200, St. Paul, MN  55101 (for respondents)

 

            Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Crippen, Judge.*
 

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            In December 2005, appellant Thomas Pressler brought this action alleging defamation and related claims against respondents, Fire Instructors of Minnesota (FIAM) and its individual board members, after he was terminated from his position as “service chairman” of FIAM.  In July 2006, respondents moved for summary judgment on all claims; Pressler moved to amend the scheduling order and compel discovery.

            The district court thereafter granted summary judgment to the individual board members, determining that they were protected from suit by statutory immunity under Minn. Stat. § 317A.257, subd. 1 (2004) (providing statutory immunity to unpaid volunteers of nonprofit organizations).  The court further determined that FIAM was entitled to summary judgment on Pressler’s claims of defamation, intentional infliction of emotional distress, breach of contract, injunctive relief, and conversion, as it related to compensation for Pressler’s services.  The court denied respondents’ motion for summary judgment on Pressler’s remaining claims, which related to reimbursement of Pressler’s credit card expenses.  Finally, the court granted in part Pressler’s motion to amend the scheduling order to allow him to depose respondents Douglas Thies and Mick Niess, but only on the reimbursement claims; the parties have since entered into a settlement on those reimbursement claims, which are not part of this appeal.[1]

            Because the district court did not abuse its discretion or otherwise err in denying Pressler’s request to amend the scheduling order, in determining that the individual board members were entitled to statutory immunity and in concluding that FIAM is entitled to judgment as a matter of law on Pressler’s defamation claim, we affirm.[2]

D E C I S I O N

I.

            Pressler argues that the district court abused its discretion when it denied his motion to amend the scheduling order and compel discovery.  The district court granted the motion in part, but limited the scope of the requested depositions of respondents Thies and Niess to the claims related to reimbursement of Pressler’s credit card expenses, which were the only claims remaining after the district court granted partial summary judgment to FIAM and its board members.

            We review a district court’s decision on whether to amend a scheduling order for an abuse of discretion.  Mercer v. Andersen, 715 N.W.2d 114, 123 (Minn. App. 2006).  Similarly, “the district court has the discretion whether to grant a continuance for further discovery[,]” and we will reverse only for an abuse of discretion.  Cherne Contracting Corp. v. Wausau Ins. Cos., 572 N.W.2d 339, 346 (Minn. App. 1998), review denied (Minn. Feb. 19, 1998).

            Pressler claims that had he been allowed to fully depose these two respondents, he would have been able to produce evidence of “malice and ill will” and could have successfully rebutted respondents’ motion for summary judgment.  But Pressler never argued to the district court that he could not properly oppose the summary judgment motion because he had not yet deposed respondents Thies and Niess.  See Minn. R. Civ. P. 56.06 (if party opposing summary judgment submits affidavit stating that it cannot present “facts essential to justify the party’s opposition,” court may order “continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had”).  Nor did Pressler request a continuance or otherwise make a record to establish the basis for his claim that he needed more time for discovery.  Absent such a motion, the district court had no duty to grant a continuance and did not abuse its discretion by not doing so. 

            In addition, Pressler has failed to show that he acted with due diligence prior to expiration of the discovery deadline.  See Minn. R. Gen. Pract. 111.04 (“Except in unusual circumstances, a motion to extend deadlines under a scheduling order shall be made before the expiration of the deadline.”); Minn. R. Civ. P. 16.02 (district court may amend scheduling order on showing of good cause).  By the time Pressler moved to amend the scheduling order, the deadline for discovery had passed, respondents’ motion for summary judgment had been filed and was scheduled to be heard, and trial was less than two months away.  Pressler had at least six months within which to depose respondents or to obtain other discovery.  We therefore conclude that the district court did not abuse its discretion in denying appellant’s motion to amend this scheduling order and compel discovery, or in considering respondents’ motion for summary judgment, despite fact that Pressler had not yet deposed two of the respondents.  See Cargill, Inc. v. Jorgenson Farms, 719 N.W.2d 226, 231 (Minn. App. 2006) (affirming grant of summary judgment despite fact that no written discovery or depositions had been taken, when party had seven months to conduct discovery).

II.

            Pressler challenges the district court’s determination that the individual board members were entitled to statutory immunity under Minn. Stat. § 317A.257, subd. 1 (2004).  Under that statute, volunteers of nonprofit organizations are entitled to immunity for their actions “if the act or omission was in good faith, was within the scope of the person’s responsibilities as a director, officer, trustee, member [or] agent, . . . and did not constitute willful or reckless misconduct.”  Id.

            “[T]he application of an immunity typically is a matter of law that is best resolved before the parties engage in lengthy discovery.”  Rehn v. Fischley, 557 N.W.2d 328, 332 (Minn. 1997).  “Because the determination of an immunity’s application is best decided by the trial court at the earliest possible juncture . . . the trial court’s determination necessarily will include mixed questions of law and fact.”  Id. at 333.  Accordingly, the reviewing court “will correct erroneous applications of the law, but accord the trial court discretion in its ultimate conclusions and review such conclusions under an abuse of discretion standard.”  Id.

            Here, it is undisputed that the individual respondents were board members of FIAM and that they fell within the class of persons entitled to immunity under the statute.  And there is no dispute that respondents were acting within the scope of their responsibilities as directors when they voted to remove Pressler as a director and as service chairman.

            Rather, Pressler argues that respondents were not entitled to immunity because their actions were not taken in good faith, and were reckless and willful.  Pressler insists that when Theis “stripped [him] of his positions in front of the board,” he “had not ordered an audit of FIAM’s financial records nor had he requested a list of accounts receivable.”  Pressler further insists that “without making any inquiries or conducting any investigation, Thies accused Pressler of theft and unceremoniously banished Pressler from FIAM’s premises, keeping a significant quantity of Pressler’s personal property.”  Pressler claims that “this lack of care before acting means that respondents did not act in good faith before taking action against Pressler” and that their conduct is reckless, as it was taken “without any regard for the facts and knowing full well that their statements may well be false.”

            But Pressler’s own evidence, such as the November 23, 2005 e-mail from Thies to Pressler, contradicts Pressler’s claim that respondents’ actions were not taken in good faith.  The e-mail demonstrated that respondents made bank inquiries regarding Pressler’s money transfers.  The e-mail also referenced the fact that several board members had been going through and accounting for everything in the offices of FIAM, where they found volumes of unopened mail, including payment requests and past due invoices.  These statements show that respondents’ actions were based on concrete information, not recklessness or willfulness.

            In addition, nothing in the record suggests that respondents’ motives were improper or questionable.  In his November 10, 2005 e-mail, Thies praised Pressler’s service to FIAM and inquired if Pressler would allow the board to publicly show its appreciation at a conference the following February.  In his November 11, 2005 memorandum to the FIAM membership, Thies repeated his praise for Pressler and his work with FIAM.  These statements further demonstrate that respondents were not acting recklessly when they removed Pressler from his position.

            Given these facts, we conclude that the district court acted within its discretion when it determined that respondents’ actions were taken in good faith and were not willful or reckless misconduct.  See Rehn, 557 N.W.2d at 333 (reviewing court accords district court discretion on ultimate issues involving statutory immunity under Minn. Stat. § 317A.257).  We therefore affirm the district court’s determination that the individual board members were entitled to statutory immunity.

III.

            Pressler challenges the district court’s grant of summary judgment on his defamation claim.  Pressler alleged that Thies defamed him in his November 23, 2005 and November 28, 2005 e-mails.

            A statement is defamatory if it is false, published to a third party, and harmed the victim’s reputation.  Weinberger v. Maplewood Review, 668 N.W.2d 667, 673 (Minn. 2003).  A defamatory statement must state a fact rather than an opinion.  Marchant Inv. & Mgmt. Co. v. St. Anthony W. Neighborhood Org., Inc., 694 N.W.2d 92, 95-96 (Minn. App. 2005).  “If the statement is true in substance, inaccuracies of expression or detail are immaterial.”  Jadwin v. Minneapolis Star & Tribune Co., 390 N.W.2d 437, 441 (Minn. App. 1986).

            Pressler insists that the clear implications of the statements made by Thies in his November 23, 2005 e-mail were that Pressler was a thief and embezzler, and that Pressler personally and intentionally dismantled FIAM for his own greed.  But Thies merely pointed out that Pressler had been conducting financial transactions that the board’s November 10, 2005 letter specifically forbade him from doing.  Thies accused Pressler of not following the orders of the board, and he backed up his accusations with specific examples.  The only implication to be drawn from the e-mail was that Pressler violated the directions of the board and the terms of the November 10, 2005 letter removing him from his position as service chairman.

            Similarly, the statements in the November 28, 2005 e-mail accusing Pressler of “dismantl[ing]” FIAM are true in substance because Thies backed up his statements with specific facts that were true and verifiable:  Pressler left the FIAM offices in disarray and in a disorganized state.  Moreover, nothing in the record suggests that this November 28, 2005 e-mail was published to any third party:  while Pressler claims it was distributed to others, he provides no evidence to support this claim.

            We therefore conclude that the district court did not err in granting summary judgment to respondents on Pressler’s defamation claim.  Cf. Metge v. Cent. Neighborhood Improvement Assoc., 649 N.W.2d 488, 498 (Minn. App. 2002) (concluding that statements that director of neighborhood association had “manipulate[ed]” board members to accomplish her own goals and that she had “wast[ed] . . . staff time and resources on a personal goal” were not actionable because they were “without precision and specificity,” and “not verifiable”).

            Affirmed.