Sadid v. Idaho State University et al

Filing 135

MEMORANDUM DECISION AND ORDER granting in part and denying in part 83 MOTION for Summary Judgment; finding as moot 112 MOTION for Leave to File Sur-reply; denying 117 MOTION to Amend. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

HABIB SADID,

Case No. 4:11-cv-00103-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
ARTHUR VAILAS, RICHARD
JACOBSEN, GRAHAM GARNER, DAVID
BEARD, and JOHN/JANE DOES I through
Z, whose true identities are presently
unknown,
Defendant.

INTRODUCTION
In March 2013, this Court granted summary judgment to the defendants on all of
plaintiff Habib Sadid’s federal claims. The only remaining claims are Dr. Sadid’s statelaw claims for tortious interference with contract, defamation, and intentional
interference with emotional distress. Defendants seek summary adjudication of these
claims as well.
Before ruling on these state-law claims, the Court invited the parties to indicate
whether they wanted the Court to retain jurisdiction, now that the federal claims are gone.

Both parties asked the Court to retain jurisdiction. Accordingly, and for the reasons
further explained below, the Court will retain jurisdiction of the state-law claims and rule
on defendants’ pending motions for summary judgment of these claims. 1
The Court will grant defendants’ motions for summary judgment of plaintiff’s
claims for emotional distress and interference with contract. The Court will also
summarily adjudicate Dr. Sadid’s defamation claim against Dr. Beard, but will deny
defendant Garner’s motion for summary judgment on the defamation claim against him.
FACTS
A full recitation of the relevant facts can be found in the Court’s March 28, 2013
Order. 2 See Dkt. 128. A brief synopsis is as follows:
From 1994 until 2009, Dr. Sadid worked as a tenured professor at ISU in the
College of Engineering. First Amend. Compl., Dkt. 39, ¶¶ 14-15. During his tenure, Dr.
Sadid criticized the university’s and college’s administrations as inept, corrupt, and
secretive. After a particularly contentious faculty meeting in April 2009, Dean Richard
Jacobsen issued a notice of contemplated action (NOCA) to Dr. Sadid. Dkt. 91, Ex. F.
The NOCA informed Dr. Sadid that Dean Jacobsen was considering recommending Dr.

1

Plaintiff asks the Court to immediately rule on his April 2, 2013 Motion for District
Court to Certify a Final Judgment Per Federal Rule of Civil Procedure 54(b) or, in the
alternative, to Certify the Applicable Memorandum Decision and Order, Dkt. 128, Per 28 U.S.C.
§ 1292. The Court declines to do so. Assuming plaintiff still wishes to pursue that motion after
this decision is issued, the Court will address the motion when it ripens. At this point, the
motion is not fully briefed.
2

The legal standard governing motions for summary judgment is also set out in the
March 28 Order and will not be repeated here.
MEMORANDUM DECISION AND ORDER - 2

Sadid for dismissal, in part, because his “aggressive, angry, and hostile outbursts have
created tension and a sense of fear among much of the administrative staff.” Id. at 3.
Dean Jacobsen invited him to a private meeting to present “any reason, evidence, or
information in opposition to that contemplated action.” Id. The meeting, however, did
not change Dean Jacobsen’s mind, and he recommended to President Vailas that Dr.
Sadid be terminated from his position. See Dkt. 92, Ex. I.
On August 4, 2009, President Vailas informed Dr. Sadid of Dean Jacobsen’s
recommendation and placed Dr. Sadid on administrative leave until President Vailas
made the final decision. Id. at 2. President Vailas indicated, however, that he would
withhold his decision until Dr. Sadid presented his case to the university’s grievance
committee in accordance with ISU’s policies. See id. Attached to President Vailas’s
letter was a five-page memorandum prepared by Dean Jacobsen.
The memorandum stated that Dean Jacobsen believed Dr. Sadid should be
dismissed for cause and listed several examples of his behavior that contributed to Dean
Jacobsen’s conclusion. Id. at 15-20. For example, it stated that Dr. Sadid made “several
accusatory, threatening, and denigrating comments about [Dean Jacobsen] and other
individuals,” id at 16, and made “obscene gestures” at a provost and his spouse, id. at 19.
The letter also cites staff member Patricia Goldbeck’s need to be “hyper-sensitive around
Dr. Sadid” lest she end up on his “blacklist.” Id. at 18. The most specific example of the
tension allegedly caused by Dr. Sadid’s actions can be found in the following passage
describing the reaction of Annie Havlicak, a staff member, to an argument between Dr.

MEMORANDUM DECISION AND ORDER - 3

Sadid and Dean Jacobsen:
Also, [Havlicak] once overheard, from her office, Dr. Sadid yelling
in an angry voice at me in my office. Given her prior history in
witnessing Dr. Sadid loudly and angrily berating the former Dean in
a classroom – at a time when she was an engineering student some
years earlier – she experienced severe anxiety and fear of imminent
violence, to the extent that she prepared an escape plan from her
office, planning to crawl up through the drop ceiling in order to
avoid Dr. Saadid [sic].”
Id. at 17 (emphasis added).
In any event, Dr. Sadid’s grievance hearing lasted for several weeks as Dr. Sadid
and the administration presented their cases. Among the witnesses who testified during
the hearing process were Goldbeck, Havlicak, and a third staff member, Ronda Mahl.
Each woman testified that the confrontation between Dr. Sadid and Dean Jacobsen
referenced in the NOCA made them fear for their safety, although each also stated that
Dr. Sadid had never directly threatened them with violence. See Goldbeck Dep., Dkt. 871 at 4-5 and Dkt. 88-22 at 5; Havlicak Dep., Dkt. 87, Ex. 1 at 55-57 and Dkt. 88-21 at 36; Mahl Dep., Dkt. 87-1 at 2 and Dkt. 88-23 at 6. 3 At the conclusion of the hearing, the
grievance committee recommended that Dr. Sadid be reinstated. See Dkt. 88-11 at 2.
The committee’s recommendation, however, was not binding on President Vailas.
President Vailas rejected the committee’s recommendation and terminated Dr.
Sadid’s employment. See Dkt. 88-13. President Vailas explained his reasoning to Dr.

3

Goldbeck’s, Mahl’s, and Havlicak’s actual testimony before the grievance committee is
not part of the record. However, the parties seem to agree, or at least do not openly dispute, that
the women’s deposition testimony is consistent with their testimony before the grievance
committee.
MEMORANDUM DECISION AND ORDER - 4

Sadid in a letter dated October 29, which stated that Dr. Sadid’s termination was effective
“at the end of business” the next day – October 30, 2009. Id. at 10. “One of the most
compelling issues” to President Vailas was the abusive nature of and toxic atmosphere
created by Dr. Sadid’s behavior. Id. at 3. The strongest evidence for his conclusion was
Goldbeck’s, Mahl’s, and Havlicak’s testimony, id. ¶ 1, but their testimony was by no
measure the only evidence President Vailas cited to support his conclusion, id. ¶¶ 2, 4, 78, 12, 15.
Dr. Sadid’s discharge garnered a significant amount of attention in the local and
college press. The Idaho State Journal ran an article entitled “Prof. Fired.” The article
detailed the circumstances surrounding Dr. Sadid’s termination and quoted from the
portion of President Vailas’s termination letter that discussed Goldbeck’s, Mahl’s, and
Havlicak’s safety concerns. Dkt. 87 at 22. Following that story, the ISU Bengal
published an article suggesting that the decision to terminate Dr. Sadid was political. See
Dkt. 88-15. That article prompted Garner to issue a statement explaining Dr. Sadid’s
termination. The ISU Bengal published Garner’s statements in a second article on
November 18, 2009. The article quotes Garner as saying, “This firing was not politically
motivated . . . However, [Dr. Sadid] presented a lot of safety issues. There were many
individuals who filed reports where they claimed Sadid threatened them.” Id.
In March 2011, Dr. Sadid filed this action. As noted above, his complaint includes
claims for interference with contract, intentional infliction of emotional distress, and
defamation.

MEMORANDUM DECISION AND ORDER - 5

ANALYSIS
1.

Supplemental Jurisdiction of Dr. Sadid’s State-Law Claims
Even though all the federal claims in this action have been dismissed, the Court

has discretion to retain jurisdiction of the state-law claims. See Satey v. JP Morgan
Chase & Co., 521 F.3d 1087, 1091 (9th Cir. 2008). After reviewing the parties briefing
on this point, see Dkts. 132, 133, the Court has determined that retaining jurisdiction
would best accommodate the objectives of economy, convenience, fairness to the parties,
and comity. Trustees of Constr. Indus. & Laborers Health & Welfare Trust v. Desert
Valley Landscape & Maintenance, Inc., 333 F.3d 923, 925 (9th Cir. 2003). As
previously noted, this case has been on the Court’s docket for over two years and the
defendants have moved for summary judgment on all pending claims. The factual issues
giving rise to the state claims are closely related to the federal claims and the Court is
now familiar with the complicated factual and procedural history of this case. Further, as
the parties have explained, retaining jurisdiction likely will avoid piecemeal appeals from
this Court. The Court will therefore retain jurisdiction of the state-law claims. See, e.g.,
Munger v. Glasgow Police Dep’t, 227 F.3d 1082, 1089 n.4 (9th Cir. 2000) (district court
properly retained jurisdiction of state law claims where they were based on the same
factual allegations as the federal claims and the district court was fully familiar with the
record).
2.

Intentional Infliction of Emotional Distress
Turning to the merits of Dr. Sadid’s state-law claims, the Court concludes that the

MEMORANDUM DECISION AND ORDER - 6

intentional infliction of emotional distress claim is not viable. To prove this claim, a
plaintiff must show that: “(1) the defendant’s conduct was intentional or reckless, (2) the
conduct was extreme and outrageous, (3) there was a causal connection between the
wrongful conduct and the plaintiff’s emotional distress, and (4) the emotional distress
was severe.” Johnson v. McPhee, 210 P.3d 563, 572 (Idaho Ct. App. 2009). “Liability
for this intentional tort is generated only by conduct that is very extreme. The conduct
must be not merely unjustifiable; it must rise to the level of ‘atrocious’ and ‘beyond all
possible bounds of decency,’ such that it would cause an average member of the
community to believe that it was outrageous.” Id. (citing Edmonson v. Shearer Lumber
Prods., 75 P.3d 733, 741 (Idaho 2003).
None of Dr. Sadid’s allegations about his termination, including his allegations
regarding defendants’ post-termination comments, approach the sort of extreme conduct
where plaintiffs have recovered for emotional distress in connection with a discharge.
See Holmes v. Union Oil Co. of Cal., 760 P.2d 1189, 1197 (Idaho Ct. App. 1988) (citing
Alcorn v. Anbro Engineering, Inc., 468 P.2d 216 (Cal. 1970) (supervisor made abusive
and racially motivated remarks when terminating employee) and Agis v. Howard Johnson
Co., 355 N.E. 2d 315 (Mass. 1976) (manager fired waitresses in alphabetical order to
coerce them into disclosing whether one was stealing from the restaurant)). As explained
in the Court’s March 28, 2013 Order, see Dkt. 128, Dr. Sadid’s firing did not violate any
of his civil rights and the fact that a university professor is fired, in and of itself, is not
“very extreme” conduct – even assuming it was unjustifiable. Similarly, Garner’s

MEMORANDUM DECISION AND ORDER - 7

comments to the newspaper reporter shortly after the termination were not “atrocious”
and “beyond all possible bounds of decency.” After all, Dr. Sadid had previously
published information about his termination; Garner was responding to Dr. Sadid’s
statements; and Garner’s comments were arguably based on the actual reasons for Dr.
Sadid’s termination.
Note, however, that “based on” is a key term here. That is, Dr. Garner said that
many individuals reported that Dr. Sadid threatened them and, indeed, Dr. Sadid’s
termination letter says he was terminated, in part, because some women felt threatened by
his behavior. It did not say, however, that Dr. Sadid directly threatened anybody, and,
viewing the facts favorably to the plaintiff, that is what Garner implied when he spoke to
the reporter. Nevertheless, although this factual dispute precludes summary judgment of
Dr. Sadid’s defamation claim, Garner’s conduct cannot be viewed as extreme and
outrageous enough to support Dr. Sadid’s emotional distress claim. In other words,
Garner may have defamed Dr. Sadid, but, viewed in context, his doing so cannot be seen
as “extreme and outrageous” conduct, particularly when there is a good argument that his
statements were substantially accurate. This point is discussed further below, in
connection with the Court’s ruling on Dr. Sadid’s defamation claim.
3.

Tortious Interference with Contract By A Third Party
Dr. Sadid’s tortious interference with contract claim also fails. A basic principle

underlying this claim is that “a party cannot tortiously interfere with its own contract.”
Ostrander v. Farm Bureau Mut. Ins. Co. of Idaho, Inc., 851 P.2d 946, 950 (Idaho 1993).

MEMORANDUM DECISION AND ORDER - 8

Dr. Sadid does not dispute that defendants were acting within the course and scope of
their employment with ISU in the alleged activities that led to Dr. Sadid’s termination. 4
As a result, Dr. Sadid is arguing that ISU, though its agents, interfered with its own
contract. Idaho Courts have squarely rejected such claims. See, e.g., id. (“Since “Hart’s
actions with respect to Ostrander were within the scope of his authority as an agent of
Farm Bureau, there was no third party to the contract.”); Jenkins v. Boise Cascade Corp.,
108 P.3d 233, 243 (Idaho 1993) (same). The Court will therefore grant defendants’
motion for summary judgment of Dr. Sadid’s interference with contract claim.
4.

Defamation
The Court cannot grant summary judgment on Dr. Sadid’s entire defamation

claim, however. There are two allegedly defamatory communications in this case: (1)
Dr. Beard’s forwarding the minority report to a newspaper; and (2) Garner’s comments
about Dr. Sadid’s termination to a newspaper reporter, as quoted in the November 18,
2009 ISU Bengal article entitled Administration Explains Firing.
The defamation claim against Dr. Beard is easily resolved because there is no
evidence that Dr. Beard sent the minority report to the press, as Dr. Sadid claims. See
Defendants’ Statement of Undisputed Facts, Dkt. 83-1, ¶ 16. Further, Dr. Sadid did not

4

Defendants argued that they were immune to suit on this claim under the Idaho Tort
Claims Act. See Mot. Mem., Dkt. 84, at 20-21. Within that argument, they said “there is no
evidence in the record showing that any of the Defendants acted outside the course and scope of
their employment or with malice or criminal intent . . . .” Id. In responding to this argument, Dr.
Sadid did not take issue with the “course and scope of employment” argument; instead he
focused on the “malice or criminal intent” issue. Resp., Dkt. 102, at 14-15.
MEMORANDUM DECISION AND ORDER - 9

meaningfully respond to defendant’s motion for summary judgment of the claim against
Dr. Beard. The Court will therefore grant summary judgment in favor of Dr. Beard on
this claim.
Defendants argue that Dr. Sadid’s claim against Garner should be dismissed as
well because plaintiff cannot make out a prima facie defamation claim and the claim is
barred by various affirmative defenses. The Court is not persuaded by either set of
arguments.
Turning first to the attack on the elements, Dr. Sadid correctly identifies the
elements of a defamation claim applicable here as follows: He must prove that (1)
Garner communicated information about him to others; (2) the information was
defamatory; and (3) he was damaged because of the communication. Clark v. The
Spokesman-Review, 163 P.3d 216 (Idaho 2007) (citing Gough v. Tribune-Journal Co.,
249 P.2d 192, 194 (Idaho 1952)) .
Defendants argue that the defamation claim against Garner fails on the second
element – that the communication be defamatory – because Garner’s statements were
either truthful or statements of opinion.
A.

Truth

Turning first to the “truth” argument, if Garner’s statements were indeed truthful,
then Dr. Sadid cannot make out a prima facie defamation claim. See, e.g., Steele v.
Spokesman-Review, 61 P.3d 606, 610 (Idaho 2002). Further, “[i]t is not necessary to
establish the literal truth of the precise statement made. Slight inaccuracies of expression

MEMORANDUM DECISION AND ORDER - 10

are immaterial provided that the defamatory charge is true in substance.” Id. (citing
Restatement (Second) of Torts § 581A, cmt. f (1977). Rather, “so long as the substance,
the gist, the sting of the allegedly libelous charge be justified,” minor inaccuracies do not
amount to falsity.” Id. (citations omitted).
Here, Garner says he accurately summarized the reasons the University fired Dr.
Sadid. As already noted, the article quotes Garner as saying “‘[Dr. Sadid] presented a lot
of safety issues. There were many individuals who filed reports where they claimed
Sadid threatened them.” Nov. 18, 2009 Article, Dkt. 87 at 22. The article also contains
the following quotes:
• “Garner also stated that several of these people who had filed reports went
before administrative committees, detailing the threats.” Id.
• “‘There are some facts we have that if they were made available to the
public, people might have a completely different view of Dr. Sadid,’ Garner
said.” Id.
• “‘As a good of a professor [as] Dr. Sadid was, there were a lot of concerns
for people’s safety.’ Garner said. ‘We’re stewards for the students and one
of our biggest obligations, along with making sure they get a great
education, is that they remain safe.’” Id.
The key problem with Garner’s statements is that if they are read favorably to the
plaintiff, they imply that Dr. Sadid directly threatened people and that these direct threats
are what triggered his termination. But there is no evidence that Dr. Sadid was fired
based on his direct threats to anyone. To be sure, there is evidence that his firing was
partly based on the fact that some women felt threatened by observing Dr. Sadid’s
interactions with others, as well as his demeanor. For example, as detailed above, one

MEMORANDUM DECISION AND ORDER - 11

female staff member said she experienced “severe anxiety and fear of imminent violence”
after witnessing Dr. Sadid yelling at Dean Jacobsen during an argument. See Dkt. 88-13,
¶ 1, at 2; Dkt. 92, Ex. I at 17.
But it is arguably an untruthful overstatement to say that “many individuals” filed
reports claiming Dr. Sadid threatened them, and that these threats are what triggered Dr.
Sadid’s firing. In other words, saying or implying that someone directly threatened other
people is different from saying that a person generally feels threatened by another’s
behavior. Consequently, the jury will have to determine whether Garner’s statements are
“substantially accurate.”
B.

Opinion

Defendants also argue that Dr. Sadid’s defamation claim fails because Garner was
merely expressing his personal opinions – not facts.
Preliminarily, Dr. Sadid argues that defendants waived this defense because
“opinion,” or “First Amendment” are not listed as affirmative defenses in defendants’
answer. This argument is not persuasive, however, because to be defamatory, a statement
must involve false statements of fact. See Wiemer v. Rankin, 790 P.2d 347, 353 (Idaho
1990). Opinions, on the other hand, are not facts and are protected speech under the First
Amendment. Id. Thus, in attacking the prima facie elements of a defamation claim,
defendants should be permitted to argue that the statements are opinions without raising
separate affirmative defenses. As this court has explained, “[a] defense which [merely]
demonstrates that plaintiff has not met its burden of proof [as to an element plaintiff is

MEMORANDUM DECISION AND ORDER - 12

required to prove] is not an affirmative defense.” Smith v. North Star Charter School,
Inc., Case No. 1:10-cv-618-WBS, 2011 WL 3505280, at *2 (D. Idaho July 26, 2011)
(citing Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002) (alterations
supplied by Smith).).
The Idaho Supreme Court has adopted the Second Circuit’s approach to
distinguish between factual statements and mere expressions of opinion, noting:
An assertion that cannot be proved false cannot be held libelous. A writer
cannot be sued for simply expressing his opinion of another person,
however unreasonable the opinion or vituperous the expressing of it may
be. Liability for libel may attach, however, when a negative
characterization of a person is coupled with a clear but false implication
that the author is privy to facts about the person that are unknown to the
general reader. If an author represents that he has private, first-hand
knowledge which substantiates the opinions he expresses, the expression of
opinion becomes as damaging as an assertion of fact.
Weimer, 790 P.2d at 352 (citing Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d Cir.
1977)). As such, “[o]pinions based on false facts are actionable only against a defendant
who had knowledge of the falsity or probable falsity of the underlying facts.” Hotchner,
551 F.2d at 913.
In reviewing Dr. Sadid’s defamation claim, this Court must ask, as a threshold
matter, “whether a reasonable factfinder could conclude that the statements ‘impl[ies] an
assertion of objective fact.’” Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir.
1990) (citation omitted). If the answer is no, the claim is foreclosed by the First
Amendment. Id.
Here, the Court easily concludes that a reasonable factfinder could conclude that

MEMORANDUM DECISION AND ORDER - 13

all of Garner’s contested statements are factual, rather than opinions. First, saying that
“many individuals” filed reports indicating that Dr. Sadid threatened them cannot
logically be construed as a mere opinion. Also, saying that Dr. Sadid presented “a lot of
safety issues” might be an opinion, but in context it could also be viewed as a factual
assertion. Accordingly, the Court finds that the First Amendment does not foreclose Dr.
Sadid’s defamation claim.
C.

Damages

Defendants also argue that Dr. Sadid’s defamation claim fails as a matter of law
because he cannot prove the third element of his claim – damages. Dr. Sadid counters
that he does not need to prove damages because Garner’s comments are per se
defamatory.
Idaho follows the common law rule allowing plaintiffs to receive an award of
general damages without proof of special damages in defamation per se cases. See, e.g.,
Barlow v. Int’l Harvester, Inc., 522 P.2d 1102, 1117 (Idaho 1974). Statements are per se
defamatory if they impute to the plaintiff 1) a criminal offense; 2) a loathsome disease; 3)
a matter incompatible with his trade, business, profession, or office; or 4) serious sexual
misconduct. Yoakum v. Hartford Fire Ins. Co, 923 P.2d 416, 425 (Idaho 1996). If an
allegedly defamatory statement does not fall within one of these categories, a plaintiff
must allege and prove that some special harm resulted from the utterance. Id.
If the alleged statements are “plain and unambiguous,” then the Court determines
as a matter of law whether the statements constitute libel per se. See Weeks v. M–P

MEMORANDUM DECISION AND ORDER - 14

Publ’ns, 516 P.2d 193, 195 (Idaho 1973). If, on the other hand, the statements use
language that is not plain and unambiguous, then whether the statements are per se
defamatory is a factual question for the jury. Id.
Dr. Sadid contends that Garner accused him of criminal assault by saying that Dr.
Sadid “threatened individuals with physical and psychological harm.” See Response,
Dkt. 102, at 23. But Garner did not plainly say that Dr. Sadid made any specific threat.
He just said that Dr. Sadid “threatened many individuals” and “presented a lot of safety
issues.”
A mere threat is not a criminal assault, however. Idaho defines criminal assault to
include an intentional, unlawful threat – by word or act – to do violence to another person
coupled with an apparent ability to do violence, which induces a well-founded fear that
violence is imminent. See Idaho Code § 18-901. 5
Under this definition, the Court cannot conclude, as a matter of law, that Garner
accused Dr. Sadid of criminal assault. But the Court also cannot rule out the possibility
that someone reading Garner’s comments might understand that Garner had indeed

5

In full, Idaho Code § 18–901 reads:
Assault defined. – An assault is:

(a) An unlawful attempt, coupled with apparent ability, to commit a violent injury on the
person of another; or
(b) An intentional, unlawful threat by word or act to do violence to the person of another,
coupled with an apparent ability to do so, and doing some act which creates a well-founded fear
in such other person that such violence is imminent.

MEMORANDUM DECISION AND ORDER - 15

accused Dr. Sadid of criminal assault. As one court has explained, “[w]ith regard to false
accusations of a crime, ‘the words need not carry upon their face a direct imputation of
crime.’” Longbehn v. Schoenrock, 727 N.W.2d 153, 158 (Minn. Ct. App. 2007) (citation
omitted). Instead, “‘[i]t is sufficient if the words spoken, in their ordinary acceptance,
would naturally and presumably be understood, in the connection and under the
circumstances in which they are used, to impute a charge of crime.’” Id. at 159 (citation
omitted). In context, and particularly because Garner twice referred to safety concerns
raised by Dr. Sadid’s conduct, a person reading the article could reasonably understand
that Garner was accusing Dr. Sadid of criminal assault. Ultimately, then, his statements
are ambiguous, and the jury will have to decide whether they are defamatory per se.
Defendants do not dispute that a reasonable person might understand that Garner
was accusing Dr. Sadid of criminal assault, nor do they analyze Idaho’s criminal assault
statute to determine whether Garner’s statements amount to an assault. Instead,
defendants argue that Dr. Sadid did not plead a per se defamation case. This argument is
threadbare, however; defendants do not cite any supporting authority and the argument
itself consists of a single sentence. See Reply, Dkt. 110, at 11 (“While Sadid argues that
he need not prove damages because Garner’s statements are slanderous per se, he failed
to plead that cause of action.”). The Court is not persuaded by this conclusory argument.
The defamatory statement alleged in the complaint will speak for itself. If the plaintiff
has, in fact, alleged that defendant accused him of a crime, he has alleged per se
defamation and he will not need to prove special damages. Cf. Haynes v. Alfred A.

MEMORANDUM DECISION AND ORDER - 16

Knopf, Inc., 8 F.3d 1222, 1226 (7th Cir. 1993) (if defendants allege that plaintiffs made
statements which impute that the defendants have committed crimes, then the defendants
adequately plead defamation per se).
Finally, Dr. Sadid alleged that he “has suffered in regard to his livelihood, career,
and professional reputation.” First Am. Compl., Dkt. 39, ¶ 95. As noted, one of the four
categories of per se defamation include statements that impute “a matter incompatible
with [a person’s] trade, business, profession, or office.” Yoakum, 923 P.2d at 425.
Garner commented that Dr. Sadid presented a lot of safety concerns and that the
university needed to keep its student safe. These statements, at the very least, imply that
Dr. Sadid does not have the requisite character to teach students. See, e.g., Swengler v.
ITT Corp., 993 F.2d 1063 (4th Cir. 1993) (to be defamatory per se under this category,
the statement must relate to the “skills or character required to carry out the particular
occupation of the plaintiff.”) (citation omitted). Thus, damages could be presumed under
this category as well. Defendants’ argument that Dr. Sadid cannot prove damages lacks
merit for this additional reason.
D.

Affirmative Defense: Immunity Under the Idaho Tort Claims Act

The Court is also not persuaded by Garner’s argument that he is immune from suit
under Idaho Code § 6-904(3). This section immunizes government employees from
being sued for libel or slander (among other torts) so long as they act within the course
and scope of their employment and without malice or criminal intent. Idaho Code § 6904(3). Malice, as used in this statute, is defined as “the intentional commission of a

MEMORANDUM DECISION AND ORDER - 17

wrongful or unlawful act, without legal justification or excuse and with ill will, whether
or not injury was intended.” Anderson v. City of Pocatello, 731 P.2d 171, 182-83 (Idaho
1987). 6 There is a rebuttable presumption that any act or omission by an employee
within the time and at the place of his employment is within the course and scope of his
employment and without malice or criminal intent. Idaho Code § 6-903(5); Anderson v.
Spalding, 50 P.3d 1004, 1013 (Idaho 2002).
Defendants are not entitled to summary judgment based on this defense because
factual disputes exist regarding whether Garner acted in the course and scope of his
employment.
On the surface, it would seem that Garner – the university’s public relations
director – would indeed be acting in the course and scope of his employment when he
answered questions from a newspaper reporter about Dr. Sadid’s termination. But
President Vailas flatly denied that Garner was speaking for the university. He testified as
follows:
Q:

. . . Now, when Mr. Garner was speaking to the press, whether he was
quoted correctly or not, was he speaking on behalf of the University when
he was giving that interview?

A.

No.

6

Typically, in the defamation context, “actual malice” refers to a defendant’s knowledge
of the falsity of the defamatory statements or a reckless disregard concerning their truth, not to
any subjective ill will it may have borne the plaintiff. See Masson v. New Yorker Magazine, 501
U.S. 496, 510 (1991) (“Actual malice under the New York Times standard should not be confused
with the concept of malice as an evil intent or a motive arising from spite or ill will.”).
Nevertheless, the Idaho Supreme Court has generally stated that the term “malice,” as used in
Idaho Code § 9-403 refers to commission of a wrongful act, without justification, and with ill
will. See Anderson, 731 P.2d at 182-83.
MEMORANDUM DECISION AND ORDER - 18

Q.

He was speaking for himself then?

A.

Q.

Whatever he spoke with the -- first of all, you've got to assume that the
reporter got the facts right. Second of all, he had an exchange with the
reporter. What Mr. Garner has observed on his own or whether – he wasn’t
speaking for the vice president for advancement nor the President.
He wasn’t speaking for you.

A.

No.

Q.

He wasn’t speaking for the University.

A

No.

Vailas Dep., Dkt. 102-4, at 77:1-16.
Two competing inferences can be drawn from this testimony. The first inference,
most favorable to Dr. Sadid, is that Vailas meant Garner was not acting in the course and
scope of his employment. The second inference, more favorable to Garner, is that
President Vailas was not commenting in any detail on Garner’s job description, but was
instead stating that he did not think Garner’s statements accurately reflected his or the
university’s view. The defendants effectively ask the Court to adopt this second
inference, but the Court cannot do so in ruling on a motion for summary judgment –
especially when President Vailas has not submitted any affidavit further explaining what
he meant. As it stands, President Vailas’ unvarnished deposition testimony is sufficient
to overcome the presumption that Garner was acting in the course and scope of his
employment. The jury will therefore need to decide this question.
The jury will not need to decide whether Garner acted maliciously, however. As
noted, Garner enjoys a rebuttable presumption that he did not act maliciously. Dr. Sadid
has not pointed to anything in the record that would overcome this presumption.

MEMORANDUM DECISION AND ORDER - 19

Dr. Sadid attempts to rebut this presumption by pointing to three things: First, he
says that before Garner made his comments, his lawyer sent a letter to defendants
instructing them not to tell anyone Dr. Sadid was a safety risk. Second, he says Garner
breached ISU’s “established policy” of not commenting on personnel matters. Third, he
says Garner violated Idaho’s public records laws – specifically, Idaho Code §§ 9-338 and
9-340C – by disclosing “employee records” to the public. See Response, Dkt. 102, at 1718. As will be discussed, even assuming Garner deviated from ISU’s regular policy and
further assuming he violated Idaho statutory law, these facts do not show that he also
acted with ill will. As noted above, to disqualify themselves from immunity, government
employees must not only act wrongfully, they must also act with ill will. See Anderson,
731 P.2d at 182-83
Here, there is no direct evidence of Garner’s ill will, and the three things Dr. Sadid
points to do not circumstantially permit a conclusion that Garner acted maliciously.
As for the letter warning defendants , there is no evidence Garner received it.
Regarding ISU’s policy of not commenting on personnel matters, there is no
evidence that such a policy was in place at the time Garner made his comments. To the
contrary, Garner testified that there was no such policy in place. See Garner Dep. at
66:14-23.
Finally, Dr. Sadid’s argument that Garner violated Idaho’s public records act does
not fit these facts very well. By its terms, this act applies to “public records,” which are
defined as “writings.” See Idaho Code § 9-337(13) (defining public records) & (16)

MEMORANDUM DECISION AND ORDER - 20

(defining writings to include, nonexclusively, “handwriting, typewriting, printing,
photostating, photographing and every means of recording . . . .”). There is no evidence
that Garner turned over any of writings to the press. But more importantly, even
assuming that public employees violate public records laws by orally disclosing
employee information contained in written records, Dr. Sadid still cannot show that
Garner acted maliciously when his comments are viewed in context. Garner testified that
before he commented to the press about Dr. Sadid’s termination, he verified that Dr.
Sadid had already provided documents about his termination to the press. Garner’s
efforts to make sure that the media already had information about Dr. Sadid before
commenting strengthens the notion that he did not act maliciously – particularly when he
already enjoys a rebuttable presumption that he did not act maliciously. Under these
circumstances, Dr. Sadid has failed to put forth any facts to rebut the presumption Garner
enjoys.
In sum, at trial the jury will be called upon to determine whether Garner was
acting in the course and scope of his employment. If they determine that he was, Garner
will be immune from suit.
5.

Defendants’ Motion to Amend
In their reply brief, defendants asserted additional affirmative defenses. Dr. Sadid

objected to defendants’ late assertion of the new defenses, which prompted defendants’
motion to amend their answer. Defendants ask to assert five new affirmative defenses:
(1) consent; (2) “absolute privilege, including but not limited to quasi-judicial privilege

MEMORANDUM DECISION AND ORDER - 21

and that found under I.C. §§ 9-346, as well as qualified and/or common interest
privilege” (3) the First Amendment; (4) opinion; 7 and (5) statutory immunity for
newspaper publications under Idaho Code §§ 6-702 and 6-713. See Dkt. 117-1.
Because they moved to amend after the established scheduling deadline for
amending pleadings, this Court must apply the good-cause standard set forth in Federal
Rule of Civil Procedure 16(b). See, e.g., Johnson v. Mammoth Recreations, Inc., 975
F.2d 604, 607 (9th Cir. 1992). Unlike Rule 15(a)’s liberal amendment policy, which
focuses on the bad faith of the party seeking an amendment and the prejudice to the
opposing party, the “good cause” standard set forth in Rule 16 primarily focuses upon the
diligence of the party requesting the amendment. Id. “If that party was not diligent, the
inquiry should end.” Id. at 609 (citations omitted).
Defendants have not established the requisite diligence. They did not file their
motion to amend until roughly ten months after the scheduling-order deadline, three
months after the extended discovery cutoff, and two months after the parties filed their
summary-judgment motions. 8 They make no real effort to explain this lengthy delay.

7

For the reasons discussed above, the Court has ruled that defendants are entitled to
assert their “opinion” and First Amendment defenses, given that these defenses go directly to the
elements of the defamation claim. The following discussion does not apply to these defenses.
8

Defendants filed their motion to amend on September 7, 2012. See Dkt. 117. The
deadline for amending pleadings, per the Court’s scheduling order, was November 10, 2011. See
Dkt. 21. The parties filed cross-motions for summary judgment on June 29, 2012. See Dkts. 83,
88.The extended fact discovery period closed, after Court-approved extensions, on May 31,
2012. See Dkts. 77, 78. The Court also approved the parties’ stipulation to conduct additional
depositions in June 2012, see Dkt. 82, but defendants indicate that the “depositions of
Defendants” were concluded on May 30, 2012. See Mot. Mem., Dkt. 117-2, at 3.
MEMORANDUM DECISION AND ORDER - 22

Defendants do point out that the parties did not conduct any depositions until the last 30
days of the discovery period. But they do not explain why they waited so long to conduct
depositions, and, more significantly, they do not say that they unearthed any specific new
fact during the depositions that caused them to realize they could raise additional
affirmative defenses. To the contrary, defendants only generally assert that they did not
discover the “factual basis” for their new defenses until after the depositions. Mot. Mem.,
Dkt. 117-2, at 3. The Court is not persuaded by such a general argument, particularly
when defendants are also arguing that the facts supporting their new affirmative defenses
are the same facts they used to support affirmative defenses raised in their original
answer – which they filed in January 2012. See Dkt. 48.
Defendants offer two additional reasons for not asking to amend their answer
earlier. Neither establishes diligence or excuses a lack of diligence.
First, defendants say they believed their original answer adequately raised the new
affirmative defenses. They point to the following catch-all phrase within their original
answer: “Defendants are immune from liability pursuant to Idaho Code § 6-904 and/or
any other applicable immunity.” Answer, Dkt. 48, at 6 (emphasis added). This phrase
does not, by any stretch, fairly notify plaintiff of the new affirmative defenses defendants
now seek to raise. Construing the answer so liberally would not do justice to the plaintiff.
See Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do justice.”). Rather, it
would effectively permit defendants to “‘lie behind a log’ and ambush a plaintiff with an
unexpected defense.” Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir. 1987).

MEMORANDUM DECISION AND ORDER - 23

Defendants’ reliance on this Court’s decision in Vista Engineering Technologies,
LLC v. Premier Technology, Inc., Case No. CV09-00008-BLW, 2010 WL 2103960 (D.
Idaho May 25, 2010) is unavailing. Vista did not hold or suggest that a catch-all phrase
similar to defendants’ sufficiently raised a host of additional, unrelated affirmative
defenses. Id. at *3 (defenses not specifically listed answer were sufficiently raised by
factual allegations in a counterclaim that invoked the same concerns as the defenses,
though in more general terms). Similarly, defendants’ reliance on Idaho law is
misplaced. Although state substantive law governs Dr. Sadid’s defamation claim, the
“Federal Rules of Civil Procedure determine the manner and time in which defenses may
be raised and when waiver occurs.” Taylor v. United States, 821 F.2d 1428, 1432 (9th
Cir. 1987).
Defendants’ second reason for not seeking to amend their complaint earlier
implicates Federal Rule of Civil Procedure 8(c). Rule 8(c) requires affirmative defenses
to be pleaded in the answer. See Fed. R. Civ. P. 8(c)(1) (“In responding to a pleading, a
party must affirmatively state any avoidance or affirmative defense . . . .”). The Ninth
Circuit has liberalized this rule, however, holding that affirmative defenses can be raised
for the first time in summary judgment motions so long as the plaintiff is not prejudiced.
See, e.g., Han v. Mobil Oil Corp., 73 F.3d 872 (9th Cir. 1995).
Relying on these Rule 8(c) cases, defendants say it was not necessary to amend
their complaint at all. Rather, they believed they could raise their new defenses in a
motion for summary judgment – even after the scheduling-order deadline to amend had

MEMORANDUM DECISION AND ORDER - 24

passed. But the cases defendants rely on do not address how a scheduling order impacts
a defendant’s ability to raise new affirmative defenses. Certainly, they do not hold that
defendants may disregard scheduling orders in asserting new affirmative defenses. If that
were the case, defendants could ignore court-ordered amendment deadlines. Instead, they
could raise new affirmative defenses in later-filed motions for summary judgment so long
as the new defenses would not prejudice the plaintiff. The upshot is that they could
escape Rule 16(b)’s diligence requirement.
The Court cannot accept this argument. The Rule 8(c) cases teach that defendants
do not necessarily waive affirmative defenses by failing to assert them in an answer. See
id. Rather, defenses can be raised in other ways – including in motions for summary
judgment. Id. Accordingly, if a defendant files a motion for summary judgment before
the deadline to amend the pleadings has passed, the defendant will not be barred from
raising new affirmative defenses so long as plaintiff is not prejudiced. Cf. Sweet v. Sec’y,
Dep’t of Corrs., 467 F.3d 1311, 1322 n.4 (11th Cir. 2006) (defendant did not waive
affirmative defense by raising for the first time in motion for summary judgment motion,
which was filed 36 days after defendant’s first pleading and defendant could have
amended as a matter of course).
The Ninth Circuit has not expressly grappled with the interplay between Rules
8(c), 15 and 16. This may be because litigants have not raised Rule 16(b) and the
scheduling-order issue presented here, or it may be that the defendants moved for
summary judgment before the deadline to amend the pleadings has passed. Cf. Magana

MEMORANDUM DECISION AND ORDER - 25

v. The Northern Mariana Islands, 107 F.3d 1436, 1446 (9th Cir. 1997) (defendant raised
affirmative defense in motion for summary judgment filed three months after answer was
filed 9). Regardless, the issue is squarely presented here. The Court concludes that if a
defendant seeks to assert new affirmative defenses in a motion for summary judgment
after the scheduling-order deadline for amending pleadings has passed, then Rule 16(b)’s
good-cause standard applies. Accord Sherman v. Winco Fireworks, Inc., 532 F.3d 709,
715-18 (8th Cir. 2008) (holding that the district court erred by failing to apply good-cause
standard in ruling on defendants’ motion to amend; discussing the interplay between
Federal Rules of Civil Procedure 8, 15, and 16). For the reasons already discussed,
defendants cannot satisfy this standard because they have not established diligence.
Their motion to amend will therefore be denied.
CONCLUSION
For the foregoing reasons, IT IS ORDERED THAT:
1.

Defendant’s Motion for Summary Judgment (Dkt. 83) of Dr. Sadid’s state-

law claims is GRANTED in part and DENIED in part.
2.

Plaintiff’s Unopposed Motion for Leave to File a Sur Reply (Dkt. 112) is

MOOT.

9

The Magana case does not clarify whether the deadline to amend the pleading had
passed, but it is certainly feasible that it had not. This Court typically sets the deadline to amend
the pleadings around three months after the case is at issue.
MEMORANDUM DECISION AND ORDER - 26

3.

Defendant’s Motion to Amend (Dkt. 117) is DENIED.

DATED: May 2, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 27