Diabate Amadou v. Hawkins & Parnell, LLP , 445 F. App'x 157 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12271 ELEVENTH CIRCUIT
Non-Argument Calendar JULY 20, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cv-01600-WSD
DIABATE AMADOU,
lllllllllllllllllllll Plaintiff-Appellant,
versus
HAWKINS & PARNELL, LLP,
lllllllllllllllllllll Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 20, 2011)
Before HULL, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Diabate Amadou, proceeding pro se, appeals the district court’s dismissal of
his suit against Hawkins & Parnell, LLP (H&P) for failure to state a claim upon
which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6). On appeal,
Amadou argues the district court erred when it dismissed his complaint alleging
defamation, collusion, and document forgery against H&P in connection with a
previous suit in the United States District Court for the District of Minnesota.1
Amadou also asserts H&P improperly denied him a pretrial conference pursuant to
Fed. R. Civ. P. 16, and failed to provide one or more documents in discovery, in
violation of Fed. R. Civ. P. 26 and 34. After review, we affirm the district court.2
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’
of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic
v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to
raise a right to relief above the speculative level.” Id. at 555.
1
H&P represented J.B. Hunt Transport, Inc. in Amadou’s wrongful termination action against
the company in the District of Minnesota.
2
“We review de novo the district court’s grant of a motion to dismiss under 12(b)(6) for
failure to state a claim, accepting the allegations in the complaint as true and construing them in the
light most favorable to the plaintiff.” Clark v. Riley, 595 F.3d 1258, 1264 (11th Cir. 2010) (citation
omitted).
2
Under Minnesota state law,3 the plaintiff must prove the following to
establish a defamation claim: (1) the alleged statements were made; (2) the
statements were communicated to someone other than the plaintiff; (3) the
statements were false; and (4) the plaintiff’s reputation was harmed. Ferrell v.
Cross, 557 N.W.2d 560, 565 (Minn. 1997). An attorney’s statements to the court,
even if defamatory, are protected by the litigation privilege. See Mahoney &
Hagberg v. Newgard, 729 N.W.2d 302, 306 (Minn. 2007) (holding that
“[s]tatements, even if defamatory, may be protected by absolute privilege in a
defamation lawsuit if the statement is (1) made by a judge, judicial officer,
attorney, or witness; (2) made at a judicial or quasi-judicial proceeding; and (3) the
statement at issue is relevant to the subject matter of the litigation”).
The district court did err in granting H&P’s motion to dismiss. With regard
to defamation, Amadou appears to have alleged H&P defamed him by stating
Amadou’s contract with J.B. Hunt was terminated because he failed a drug test.
Amadou does not specify what statements H&P made that he believed defamed
him or how he believed that he was injured by the statements. See Ferrell, 557
3
Because H&P’s alleged act of defamation occurred in Minnesota, Minnesota state law
applies here. See Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1232 (11th Cir. 2004)
(“Under the Erie doctrine, a federal court adjudicating state law claims applies the substantive law
of the state.”)
3
N.W.2d at 565. Furthermore, the statement would be barred by the litigation
privilege because it was made during H&P’s representation of J.B. Hunt during a
judicial proceeding. See Mahoney & Hagberg, 729 N.W.2d at 306.
With regard to his allegation that H&P colluded with the Minnesota district
court, Amadou simply alleged in conclusory terms that collusion occurred.
Similarly, Amadou provided no factual basis for his allegation that H&P submitted
a “fake” document. He did not allege how the document was inaccurate or on
what basis he believed the document was “fake.” Lastly, we will not consider
Amadou’s assertions that he was denied a Rule 16 conference or his discovery
claims, as those claims were not raised before the district court. See Bryant v.
Jones, 575 F.3d 1281, 1308 (11th Cir.2009), cert. denied, 130 S. Ct. 1536 (2010)
(“It is well established in this circuit that, absent extraordinary circumstances,
legal theories and arguments not raised squarely before the district court cannot be
broached for the first time on appeal.”). Accordingly, we affirm the district court’s
order.
AFFIRMED.
4