Anzaldua v. Northeast Ambulance & Fire Protection District

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 14-1850
___________________________

Stevon Anzaldua

lllllllllllllllllllll Plaintiff - Appellant

v.

Northeast Ambulance and Fire Protection District; Derek Mays, in his individual capacity

lllllllllllllllllllll Defendants - Appellees

Clarence Young, in his official capacity as the Northeast Ambulance and Fire
Protection District Board Member; Bridget Quinlisk-Dailey, in her official
capacity as the Northeast Ambulance and Fire Protection District Board Member

lllllllllllllllllllll Defendants

Robert Lee, in his individual capacity; Quentin Randolph, in his individual and
offical capacity as the Northeast Ambulance and Fire Protection District Fire
Chief; Kenneth Farwell, in his individual and official capacity as the Northeast
Ambulance and Fire Protection District Battalion Cheif

lllllllllllllllllllll Defendants - Appellees

Kate Welge, in her individual capacity

lllllllllllllllllllll Defendant
____________

Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
 Submitted: March 12, 2015
Filed: July 10, 2015
____________

Before MURPHY and SHEPHERD, Circuit Judges, and HARPOOL,1 District Judge.
____________

SHEPHERD, Circuit Judge.

Stevon Anzaldua worked for the Northeast Ambulance and Fire Protection
District (“Fire District”) as a full-time paramedic and firefighter. After the Fire
District suspended Anzaldua for purportedly failing to respond to a directive issued
by Chief Kenneth Farwell, Anzaldua emailed a newspaper reporter expressing
concerns about the Fire District and about Chief Farwell in particular. The email
“shocked” and “angered” many of Anzaldua’s co-workers. Two battalion chiefs
noted it “fostered division between Anzaldua and his co-workers, and between the
District firefighters and [Chief] Farwell.” As a result, the Fire District terminated
Anzaldua.

Anzaldua brought this action in federal district court, alleging that the Fire
District and the individuals involved in his termination violated his First Amendment
right to free speech by retaliating against him for emailing the reporter and that Chief
Farwell and Anzaldua’s ex-girlfriend violated federal and state computer privacy laws
by accessing his email account and obtaining his emails. The defendants moved to
dismiss Anzaldua’s complaint under Federal Rule of Civil Procedure 12(b)(6). The
district court denied the motion in part and granted the motion in part, allowing some
of Anzaldua’s First Amendment claims to proceed but dismissing all his other claims

1
The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri, sitting by designation.

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with prejudice. The district court subsequently denied Anzaldua leave to amend his
computer privacy law claims. The remaining defendants then moved for summary
judgment on the basis of qualified immunity. Anzaldua moved to defer ruling on
summary judgment or to grant additional time to conduct discovery. The district
court denied the motion to defer and then granted summary judgment to the
defendants on Anzaldua’s First Amendment claims. Anzaldua now appeals.

After careful review, we affirm the district court’s grant of summary judgment
to the defendants on Anzaldua’s First Amendment claims. We also affirm the denial
of leave to amend Anzaldua’s federal computer privacy law claims. We reverse the
district court’s denial of leave to amend Anzaldua’s state computer privacy law
claims.

I. Background

Anzaldua began working for the Fire District as a part-time paramedic in 2008.
In April 2011, he accepted a position as a full-time paramedic and firefighter.
Following standard practice established in its collective bargaining agreement with
the firefighters union (“Fire District CBA”), the Fire District subjected Anzaldua to
a one-year probationary period. In April 2012, before the probationary period
expired, Chief Farwell issued Anzaldua a written reprimand for neglect of equipment
and neglect of property after the Fire District found a hole in the interior wall of an
ambulance Anzaldua had worked in. Anzaldua signed the reprimand but denied
responsibility for the hole and stated he disagreed with the disciplinary action. In
conjunction with the reprimand, the Fire District extended Anzaldua’s probationary
period six months for “professional misconduct and general behavior.” J.A. 243. It
also warned him that “[a]ny further reprimands, verbal or written, or any conduct of
disciplinary action will subject you to immediate termination.” J.A. 243. The Fire
District CBA permitted the Fire District to terminate probationary employees with or
without cause.

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 On July 21, 2012, a Fire District lieutenant wrote Chief Farwell a memorandum
stating that Anzaldua and his partner had responded to a call but that their report for
the call was inexplicably missing from the Fire District’s reporting system. The
lieutenant copied Anzaldua on the memorandum. The Fire District suspended
Anzaldua’s partner, who was responsible for filing the report, but did not discipline
Anzaldua.

On July 24, 2012, Anzaldua drafted an email on his personal Gmail account to
Dr. David Tan, a university professor who provided medical oversight for the Fire
District but was not employed by the Fire District or within its chain of command.
The email stated, in pertinent part, “I am making you aware that there are some major
issues with the EMS side of operations. In starting, not everyone in this department
is operating under the same rules.” J.A. 246. Anzaldua claims he saved the email as
a draft but never sent it.

Nevertheless, the email was sent from Anzaldua’s Gmail account to Dr. Tan
on July 24, 2012. A week later, on July 31, 2012, a copy of the Dr. Tan email was
forwarded from Anzaldua’s Gmail account to Chief Farwell. After learning of the
email, Fire Chief Quinten Randolph directed Chief Farwell to investigate Anzaldua’s
concerns. On July 31, 2012, Chief Farwell sent an email to Anzaldua’s Gmail
account stating he was “concerned and obligated to inquire and investigate your
concerns,” and ordering Anzaldua to “provide for me in writing the Where, When,
How, What, and Who of your concerns by the end of the day on Aug 2, 2012.” J.A.
245. Anzaldua did not provide Chief Farwell the requested information. Anzaldua
maintains this is because he never received Chief Farwell’s email.

On August 7, 2012, the Fire District Board of Directors ordered Anzaldua to
appear at a disciplinary hearing on August 13, 2012. The Board explained:

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 On July 24, 2012, you forwarded an email to Dr. David K. Tan
suggesting that “major issues” existed within the District’s EMS
Division. You went on to suggest that the District was engaging in
“rule” bending for certain employees. Dr. Tan is not within your
department chain of command and he does not handle interdepartmental
grievances. Your public statements therefore appear to be divisive,
inflammatory, and without merit. When provided an opportunity by
[Chief Farwell] to elaborate on your statements, you failed to do so
within the time allotted. Such failure strengthened the belief that your
statements were intentionally perverse and improperly motivated. Such
behavior, if deemed true, is a direct violation of the District’s code of
conduct. The Board is hereby providing you an opportunity to be heard
on this matter before deciding whether disciplinary action is warranted.

J.A. 249-50. Though the Fire District CBA did not provide probationary employees
a right to union representation at disciplinary hearings, the Board advised Anzaldua
he would be allowed union representation if he desired, and Anzaldua accepted the
assistance of EMS Lieutenant and Shop Steward Jennifer Barbarotto.

At the disciplinary hearing, Anzaldua explained to the Board that he did not
respond to Chief Farwell’s directive because he never received Chief Farwell’s email.
He told the Board that command staff typically issued directives through the Fire
District’s separate email system. He also explained the concerns he expressed in the
Dr. Tan email. However, the Board told Anzaldua the disciplinary hearing would
focus on his failure to respond to Chief Farwell’s directive, and not on his underlying
concerns. On August 20, 2012, the Board found Anzaldua “failed to respond to a
directive issued by a chief officer,” a failure it deemed “unacceptable,” and
unanimously voted to suspend Anzaldua for 10 days for conduct unbecoming of a
Fire District employee. J.A. 253. The union agreed with the suspension. The Fire
District also warned Anzaldua “that any future misconduct, without regard to the
severity, will result in your immediate termination.” J.A. 254.

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 On August 23, 2012, Anzaldua sent an email to Elizabethe Holland, a reporter
for the St. Louis Post-Dispatch. The email stated:

You have covered the Northeast Ambulance and Fire protection district
before on a variety of issues. I am currently employed there as a
Full-Time Firefighter/Paramedic. I am coming to you hoping to remain
anonymous. There are several issues that are new. Some pertain to
pension issues. Others pertain to public safety. I have tried to reach out
to the directors only to be disciplined for 10 days for an email sent to the
medical director with critical concerns regarding the service we provide
citizens as it pertains to medical emergencies. Any time a stand is taken
on this issue it leads to something punitive in the form of suspension or
termination. I have been employed there for almost 4 years now we
have new problems.

We have been shutting down Pumpers (Fire Apparatus) due to
staffing mishaps (Resulting from the CMO). We have SCBA’s
(Self-contained Breathing Apparatus) that are not compliant with NFPA
(National Fire Protection Association) 1971. This is a guideline to safe
practices, policies and equipment. We are told on the floor (The
workers actually responding to the calls) that we do not have the money.
We have 6-7 WORKING SCBA’s right now in the department. This is
after 2 new Chevy Suburbans were purchased for command staff. The
vehicles totaled somewhere around 100000.00 after the addition of
things like Light-Bars and Sirens were added. One of these Command
vehicles is Administrative (Chiefs Vehicle). The other vehicle is used
on shift and DOES respond to calls and assumes command. This is a
“Working” vehicle. There was nothing wrong with the Chief’s vehicle
prior to this. In fact, That old Chief’s is now the “Triage” vehicle
equipped with ALS (Advanced Life Support) equipment which is staffed
by the Chief Medical Officer running at 4707 (Call sign). This vehicle
is “suppose” to respond to calls during the CMO’s duty hours. If you
call North Central dispatch (314-428-1133) you can actually get the
numbers of 4707 (Command Vehicle) responses. This point is simple.
The safety of the men is secondary to command vehicles. We are
already understaffed and short on working SCBA’s which are not NFPA

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Sec. 1971 compliant which means the district assumes legal liability if
any Death/Disability occurs as a result of a structure fire/Fire. This is
a safety issue to ALL of my Peers on the floor. These Vehicles
somehow managed to be a priority over our safety.

I would like to address the issue of the Chief Medical Officer and
his vehicle. The vehicle leaves the district (Normandy) everyday with
him to go home (O’Fallon 30 miles away). This vehicle does NOT
respond to calls when he is gone. The numbers will show that. This
Vehicle has actually been parked outside of his bar. I have multiple
photo’s time-stamped and dated of the vehicle parked behind his bar (Da
Elite Bar/Grill). This District vehicle was being used for personal
business conducted at a bar with Tax-Payer gas. IT has since been
parked in the back of the firehouse. The CMO (Chief Medical Officer)
deals with the EMS (Emergency Medical Services) or Ambulance side
of operations. He has been sending out text discussing his bar specials
via district telephone. As of August 22nd, The DEA has pulled our
controlled substances because the CMO Failed to renew the license for
these substances. Now we have a PUBLIC safety issue. This affects the
people we serve as well as the Paramedics ability stabilize medical
emergencies such as seizures. No pain meds for Chest pain or fractures
prior to immobilization of the injury.

So you may ask why I come to you with this. I was recently
suspended for 10 days as a result of an email I was going to send
Medical Director (This is a Doctor) discussing supply issues. The CMO
was made aware of this email and put me in front of the board charged
with conduct unbecoming. He also charged me with breaking the chain
of command. I am currently serving my suspension. They (CMO and
a Bat. Chief) have extended my probation and written me up and tried
to fire me 3 times. They can do this because I am still currently on
probation and not entitled to union legal counsel or representation even
though I am a member. I have been a Paramedic going on 13 years. I
have been in the field for 15 years total. They have circumvented my
shift supervisor and gone directly to disciplinary action. My Shift
supervisors have saved my job. I love my job and Co-workers. I figure
if I get terminated and these problems get fixed to provide a better safer

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 service to the people and the firefighter/paramedics…then it was worth
it. I would prefer for this to stay confidential. There is more to this if
you have any additional questions please reply if you see this as
something you could help change[.]

J.A. 255-56.

After Anzaldua sent the email to Holland, a copy of the email was forwarded
from Anzaldua’s Gmail account to Chief Farwell. The email was subsequently
passed around the Fire District, although the record does not make clear by whom.
Several Fire District employees reported their negative reactions to the Holland email.
Lieutenant Barbarotto “was shocked both by the content of the email, which
contained numerous false statements, and that [Anzaldua] would send such an email.”
J.A. 259. She stated “Anzaldua’s decision to send such an email angered many of his
co-workers, as we were concerned that it would make us a public laughing stock. We
knew he had written it for personal reasons and considered it to be a slap in the face
to the rest of us, and were troubled that he would put his own personal agenda above
the other firefighters in the District.” J.A. 259. Daniel Newberry, a battalion chief,
explained “[t]he email shocked and irritated many firefighters in the District (several
of whom expressed this sentiment in my presence) and fostered division between
Anzaldua and his co-workers, and between the District firefighters and [Chief]
Farwell.” J.A. 262. Philip Boling, another battalion chief, observed an identical
reaction to the Holland email. J.A. 266.

On September 13, 2012, the Board ordered Anzaldua to appear at a disciplinary
hearing scheduled for September 24, 2012. It explained:

On August 23, 2012, it is believed that you circulated a personal email
publicly defaming and denigrating the District. More significant is the
fact that it contained false and misleading statements. Such statements
appeared to be intentionally divisive, inflammatory, and without just

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 cause. It is believed that such statements were also purposefully
perverse and improperly motivated. Such behavior, if deemed true, is
a direct violation of the District’s code of conduct.

Notice of Hearing, R. Doc. 34-25.

On September 24, 2012, the Board voted to terminate Anzaldua. Board
Members Robert Lee and Derek Mays voted for the termination, while Board
Member Bridget Quinlisk-Dailey voted against. The Board sent Anzaldua a
termination letter, which explained the basis for its decision:

The Board accepted your admission and there from concluded that you
circulated an email publicly defaming and denigrating the District
without just cause. It was also determined that your statements were
seditiously false and misleading as well as ill-intended, divisive, and
retaliatory for prior discipline issued by the Board in good faith. Even
though you admitted conveying such statements to, at least, one public
entity; the number of other people and entities that you actually
conveyed them to is unknown. The Board found your explanation for
publicly expressing and circulating false and misleading information to
others as not credible.

Letter of Termination, R. Doc. 34-26. Both Lee and Mays believed “Anzaldua’s
email to Elizabeth[e] Holland caused disruption within his department” and “had the
potential to cause further disruption if Anzaldua remained employed with the
District.” J.A. 220. In voting to terminate Anzaldua, they considered, among other
things, “the need for efficiency and loyalty within the workforce and the divisive
nature of Anzaldua’s email to Holland.” J.A. 216, 220.

The record contains declarations and documents bearing on the concerns
Anzaldua expressed in the Holland email. The Fire District had implemented
minimum staffing procedures at least by December 2011 because of strained financial

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resources. Mays stated that the use of “minimum manning” did not cause problems
for the Fire District’s provision of services. In 2012, the Fire District received far
more ambulance calls than fire calls and decided to use only one pumper because it
could not afford to run two pumpers and two ambulances.

Even before Anzaldua wrote to Holland, the Fire District had been interested
in purchasing new SCBAs. It tested different types of SCBAs in summer 2012 to
determine which type the firefighters preferred. Anzaldua participated in this testing,
which the Fire District completed before Anzaldua sent the Holland email. The
Board approved the purchase of new SCBAs in September 2012.

The Fire District purchased two new sport utility vehicles in 2012 because its
prior vehicles had difficulty driving through water at fire scenes. The Board
discussed the purchase at a public meeting in May 2012. The Fire District’s vehicle
use policy permitted Chief Farwell to use his vehicle for reasonable personal travel
within 60 miles of the Fire District.2 While the policy prohibited Chief Farwell from
using the vehicle “while engaged in any commercial endeavor,” it permitted him to
use the vehicle to drive to and from his place of work, so long as his place of work
was within 60 miles of the Fire District. R. Doc. 34-23, at 2. The record contains no
evidence suggesting Chief Farwell’s restaurant was more than 60 miles away. The
vehicle use policy enabled Chief Farwell to access his vehicle while away from the
firehouse in case he needed to respond to a call. In 2012, Chief Farwell issued
directions and commands to firefighters responding to fires. The record contains no
evidence of a policy prohibiting Chief Farwell from using his phone to text specials
to co-workers.

2
Anzaldua had access to all of the Fire District’s policies and procedures during
his employment.

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 On August 30, 2012, Fire Chief Randolph and Chief Farwell attended a public
meeting in Jefferson City, Missouri, regarding the Fire District’s expired narcotics
license. Holland published an article on August 31, 2012, which reported on the
Jefferson City meeting.

Anzaldua filed this lawsuit in July 2013, naming as defendants the Fire
District; Lee and Mays, in their individual and official capacities; Board Members
Clarence Young and Quinlisk-Dailey, in their official capacities; Fire Chief Randolph
and Chief Farwell, in their individual and official capacities; and Kate Welge,
Anzaldua’s ex-girlfriend, in her individual capacity. Anzaldua’s complaint contained
four counts. Count 1, which Anzaldua brought under 42 U.S.C. § 1983, alleged Lee,
Mays, Quinlisk-Dailey, Fire Chief Randolph, and Chief Farwell terminated Anzaldua
in violation of his First Amendment right to free speech. Count 2, also brought under
section 1983, alleged all the defendants conspired to terminate Anzaldua in violation
of his First Amendment right to free speech. Count 3 alleged Chief Farwell and
Welge accessed Anzaldua’s Gmail account and obtained the Dr. Tan and Holland
emails in violation of the Stored Wire and Electronic Communications and
Transactional Records Access Act (“SCA”), 18 U.S.C. § 2701. Count 4 alleged this
access violated the Missouri Computer Tampering Act (“MCTA”), Mo. Rev. Stat.
§ 569.095.

The defendants moved to dismiss Anzaldua’s complaint under Federal Rule of
Civil Procedure 12(b)(6). The district court granted the motion in part and denied the
motion in part, dismissing with prejudice all of Anzaldua’s claims except his Count
1 claims against Lee, Mays, and Chief Farwell in their individual capacities.
Anzaldua moved for reconsideration of the motion-to-dismiss ruling or for leave to
amend his complaint. The district court held that motion in abeyance to allow
Anzaldua to submit a proposed first amended complaint, which he subsequently did.
The proposed first amended complaint contained the same four counts as the original
complaint, but against the following defendants: Count 1 against the Fire District and

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Lee, Mays, Fire Chief Randolph, and Chief Farwell, in their individual capacities;
Count 2 against Lee, Mays, Fire Chief Randolph, and Chief Farwell, in their
individual capacities; and Counts 3 and 4 against Chief Farwell and Welge, in their
individual capacities.

While the district court considered Anzaldua’s proposed first amended
complaint, Lee, Mays, and Chief Farwell (later joined by Fire Chief Randolph) moved
for summary judgment on the basis of qualified immunity. In response, Anzaldua
filed a Rule 56(d) motion requesting that the district court defer ruling on the
summary judgment motion or grant additional time to conduct discovery before doing
so. The district court denied the Rule 56(d) motion. It then granted Anzaldua leave
to amend his claims under Counts 1 and 2 and denied him leave to amend his claims
under Counts 3 and 4. Anzaldua filed his first amended complaint on February 13,
2014, alleging only the First Amendment claims in Counts 1 and 2. The district court
subsequently granted the defendants’ summary judgment motion and dismissed the
first amended complaint in its entirety, finding the defendants were entitled to
qualified immunity under the Pickering balancing test. See Pickering v. Bd. of Educ.,
391 U.S. 563 (1968).

On appeal, Anzaldua challenges the district court’s (1) grant of summary
judgment to the defendants on the basis of qualified immunity, (2) denial of his Rule
56(d) motion to defer ruling on the summary judgment motion, (3) dismissal of the
Fire District, which never joined the summary judgment motion, (4) denial of leave
to amend the SCA claims, and (5) denial of leave to amend the MCTA claims.

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 II. Counts 1 and 2: First Amendment Claims

A. Qualified Immunity

We first address Anzaldua’s argument that the district court erred in finding the
defendants were entitled to qualified immunity. “We review the grant of summary
judgment de novo, viewing the evidence and drawing all reasonable inferences in the
light most favorable to [Anzaldua], the nonmoving party.” McCullough v. Univ. of
Ark. for Med. Scis., 559 F.3d 855, 860 (8th Cir. 2009). We will affirm “if the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

The two prongs of our qualified immunity analysis require us to answer
(1) whether the facts alleged demonstrate a violation of the employee’s constitutional
right and (2) whether that right was clearly established at the time of the employee’s
firing. Hemminghaus v. Missouri, 756 F.3d 1100, 1110 (8th Cir. 2014) (citing Tolan
v. Cotton, 134 S. Ct. 1861, 1865-66 (2014)). This case can be resolved solely under
the first prong. “The inquiry into the protected status of speech is one of law, not
fact.” Connick v. Myers, 461 U.S. 138, 148 n.7 (1983).

We use the first prong to determine whether a First Amendment violation
occurred. See Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (“[T]he First
Amendment protects a public employee’s right, in certain circumstances, to speak as
a citizen addressing matters of public concern.”). The heart of this determination is
the Pickering balancing test, under which we balance “the interests of the [employee],
as a citizen, in commenting upon matters of public concern and the interests of the
State, as an employer, in promoting the efficiency of the public services it performs
through its employees.” Pickering, 391 U.S. at 568.

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 Before we reach the Pickering balancing test, though, we make two preliminary
inquiries to ensure that the employee and the employer each has an interest to
balance. The first inquiry is to determine “whether the employee spoke as a citizen
on a matter of public concern.” Garcetti, 547 U.S. at 418. “If the answer is no, the
employee has no First Amendment cause of action based on his or her employer’s
reaction to the speech. If the answer is yes, then the possibility of a First Amendment
claim arises.” Id. (citation omitted).

“[I]f the possibility of a First Amendment claim has arisen,” then our second
inquiry is to “‘ask whether [the employer] has produced evidence to indicate the
speech had an adverse impact on the efficiency of the [employer’s] operations.’”
Hemminghaus, 756 F.3d at 1111 (alterations in original) (quoting Lindsey v. City of
Orrick, Mo., 491 F.3d 892, 900 (8th Cir. 2007)). If the employer shows a sufficient
adverse impact, then we proceed to the Pickering balancing test. If it does not, then
the qualified immunity defense must fail. Sexton v. Martin, 210 F.3d 905, 913 (8th
Cir. 2000).

1. Matter of Public Concern

Anzaldua argues his Holland email was a matter of public concern because it
implicated the misuse of public monies and both firefighter and public safety. The
defendants respond that Anzaldua simply aired personal employment grievances.

“To determine whether speech qualifies as a matter of public concern, we must
examine the content, form and context of the speech, as revealed by the whole
record.” Sparr v. Ward, 306 F.3d 589, 594 (8th Cir. 2002). “‘When speech relates
both to an employee’s private interests as well as matters of public concern, the
speech is protected if it is primarily motivated by public concern.’” McCullough, 559
F.3d at 866 (quoting Altonen v. City of Minneapolis, 487 F.3d 554, 559 (8th Cir.
2007)). “If the main motivation for the speech was furthering [the employee’s]

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‘private interests rather than to raise issues of public concern, her speech is not
protected, even if the public would have an interest in the topic of her speech.’”
Altonen, 487 F.3d at 559 (quoting Bailey v. Dep’t of Elementary and Secondary
Educ., 451 F.3d 514, 518 (8th Cir. 2006)).

Here, we are skeptical that Anzaldua’s email was primarily motivated by public
concern, especially considering that he sent the email just days after being suspended
and that the email singled out Chief Farwell, with whom Anzaldua had, in the words
of the district court, “an already strained relationship.” However, we need not decide
whether Anzaldua’s email was primarily motivated by public concern because we
believe Anzaldua’s claims fail under the Pickering balancing test. See Waters v.
Churchill, 511 U.S. 661, 680 (1994) (plurality opinion) (declining to decide whether
employee’s speech was on a matter of public concern where the “potential
disruptiveness of the speech . . . was enough to outweigh whatever First Amendment
value it might have had”). Thus we proceed to the next step in our inquiry.

2. Adverse Effect on Fire District Operations

Anzaldua argues the defendants can satisfy this step only if they present
specific evidence of actual disruption. However, “‘[e]vidence of actual disruption . . .
is not required in all cases.’” Bailey, 451 F.3d at 521 (alterations in original) (quoting
Shands v. City of Kennett, 993 F.2d 1337, 1344 (8th Cir. 1993)); see also Tindle v.
Caudell, 56 F.3d 966, 972 (8th Cir. 1995) (“A showing of actual disruption is not
always required in the balancing process under Pickering.”). This is because “‘we do
not see the necessity for an employer to allow events to unfold to the extent that the
disruption of the office and the destruction of working relationships is manifest
before taking action.’” Hemminghaus, 756 F.3d at 1112 (quoting Connick, 461 U.S.
at 152). Thus “‘[w]e have consistently given greater deference to government
predictions of harm used to justify restriction of employee speech than to predictions
of harm used to justify restrictions on the speech of the public at large.’” Id. (quoting

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Waters, 511 U.S. at 673 (plurality opinion) (“Few of the examples we have discussed
involve tangible, present interference with the agency’s operation. The danger in
them is mostly speculative.”)). And “‘we have given substantial weight to
government employers’ reasonable predictions of disruption, even when the speech
involved is on a matter of public concern.’” Id. (quoting Waters, 511 U.S. at 673
(plurality opinion)).3

Further, a fire department, as a public safety organization, “has a more
significant interest than the typical government employer in regulating the speech
activities of its employees in order ‘to promote efficiency, foster loyalty and
obedience to superior officers, maintain morale, and instill public confidence’ in its
ability.” Shands, 993 F.3d at 1344 (quoting Hughes v. Whitmer, 714 F.2d 1407, 1419
(8th Cir. 1983)). “‘When lives may be at stake in a fire, an espirit de corps is
essential to the success of the joint endeavor.’” Id. at 1344-45 (quoting Janusaitis v.

3
We recognize some Eighth Circuit cases seem to support Anzaldua’s argument
that employers must always present specific evidence of actual disruption. See, e.g.,
Belk v. City of Eldon, 228 F.3d 872, 882 (8th Cir. 2000) (“Where, as here, the
employer has failed to demonstrate any disruption, there is no balancing to be done
and the evidentiary failure is fatal to the claim of qualified immunity.”). To the extent
these cases represent a split among panels in our circuit, we note that Anzaldua fails
to cite, and we have failed to locate, any case supporting his argument that predates
Germann v. City of Kan. City, 776 F.2d 761, 765 (8th Cir. 1985) (“It is not necessary
‘for an employer to allow events to unfold to the extent that the disruption of the
office and the destruction of working relationships is manifest before taking action.’”
(quoting Connick, 461 U.S. at 152 )); see Mader v. United States, 654 F.3d 794, 800
(8th Cir. 2011) (en banc) (“[W]hen faced with conflicting panel opinions, the earliest
opinion must be followed as it should have controlled the subsequent panels that
created the conflict.” (internal quotation marks omitted)). Moreover, we recently
observed that Supreme Court precedent places in question the soundness of the cases
that suggest employers must present specific evidence of actual disruption. See
Hemminghaus, 756 F.3d at 1112 n.10 (citing Waters, 511 U.S. at 673; and Connick,
461 U.S. at 152).

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Middlebury Volunteer Fire Dep’t, 607 F.2d 17, 26 (2d Cir. 1979)). Thus we give
“considerable judicial deference” to the defendants’ determination that Anzaldua’s
“speech had caused or would cause dissension and disruption.” Id. at 1345.

Moreover, although we do not require actual evidence of disruption in all
cases, it exists here. Three firefighters submitted declarations showing the disruption
Anzaldua’s email caused. Lieutenant Barbarotto explained she was “shocked both
by the contents of the email . . . and that [Anzaldua] would send” it. She stated the
email “angered” many firefighters, who worried it would “make [them] a public
laughing stock.” Two battalion chiefs similarly reported the email “shocked and
irritated many firefighters in the District” and “fostered division between Anzaldua
and his co-workers, and between the District firefighters and [Chief] Farwell.”
Anzaldua’s email also attacked Chief Farwell personally, accusing him of shutting
down pumpers, prioritizing his business over his firefighters’ safety, and violating the
Fire District’s vehicle use and cell phone policies. See Bailey, 451 F.3d at 521 (“The
letter accused Bailey’s superiors of fraud and legal and ethical violations. Such
accusations are sufficient evidence of potential workplace disruption.”). Thus this
is not a case where the Fire District had no supporting evidence of disruption or relied
on its own “[m]ere allegations of disruption.” Sexton, 210 F.3d at 912; see also
Connick, 461 U.S. at 151-52 (giving deference to supervisor’s determination of
disruption because “[w]hen close working relationships are essential to fulfilling
public responsibilities, a wide degree of deference to the employer’s judgment is
appropriate”). Viewed in light of the considerable deference we owe the Fire
District’s determination of actual or potential disruption, we find the defendants
satisfy this step.

3. Pickering Balancing Test

We consider six interrelated factors when balancing Anzaldua’s interest in
speech against the Fire District’s interest in promoting the efficient operation of the

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fire department: (1) the need for harmony in the work place; (2) whether the
government’s responsibilities require a close working relationship; (3) the time,
manner, and place of the speech; (4) the context in which the dispute arose; (5) the
degree of public interest in the speech; and (6) whether the speech impeded the
employee’s ability to perform his or her duties. Hemminghaus, 756 F.3d at 1113-14.
“[T]he Pickering balance is flexible and the weight to be given to any factor varies
depending on the circumstances of the case.” Germann v. City of Kan. City, 776 F.2d
761, 764 (8th Cir. 1985).

Applying these factors, we agree with the district court that “the balance
weighs in favor of [the] defendants.” R. Doc. 63, at 18. Of critical importance is the
principle, discussed above, that we show substantial deference both to the Fire
District’s determination that Anzaldua’s email “had caused or would cause dissension
and disruption,” and to its “response to the actual or perceived disruption.” Shands,
993 F.2d at 1345. As noted, “‘[w]hen lives may be at stake in a fire, an espirit de
corps is essential to the success of the joint endeavor.’” Id. at 1344-45 (quoting
Janusaitis, 607 F.2d at 26). The Fire District also worked with other nearby fire
departments and needed those firefighters to trust Chief Farwell. Thus we find the
district court correctly concluded “Mays and Lee reasonably believed [Anzaldua’s]
speech was an attempt to undermine Farwell’s authority and had led, or would lead,
to disruption in the department.” R. Doc. 63, at 18.

Moreover, it is clear Anzaldua emailed Holland just days after being placed on
what he claims was an unjustified suspension and that Anzaldua’s relationship with
Chief Farwell had been contentious for months. See Connick, 461 U.S. at 153
(“When employee speech . . . arises from an employment dispute[,] . . . additional
weight must be given to the supervisor’s view that the employee has threatened the
authority of the employer to run the office.”). Although there is no suggestion
Anzaldua emailed Holland during work hours or from the fire station, see id. (finding
employee’s preparing and distributing questionnaire at office supported employer’s

-18-
conclusion that speech would endanger office functioning), Anzaldua did go outside
the chain of command when he secretly emailed a reporter. Fire District employees
reacted negatively to this exposure.

Further, the degree of public interest in Anzaldua’s statements was minimal.
The Fire District instituted minimum manning procedures due to budget constraints
and decided to run one pumper so it could operate two ambulances. There is no
evidence this choice affected the Fire District’s provision of services. The Fire
District was in the process of testing and purchasing new SCBAs. And neither of
these issues was “at the center of public debate.” Shands, 993 F.2d at 1346. The
purchase of new vehicles had been discussed at a public Board meeting, and the
expired narcotics licenses similarly had been discussed a public meeting in Jefferson
City. The public had even less interest in Anzaldua’s attack on Chief Farwell for
making permitted use of his work vehicle and in his complaint about not being
allowed union representation, which, while literally true, was misleading because he
had been offered and in fact accepted the help of a union representative. Although
there is no suggestion Anzaldua’s email impeded his ability to perform his duties as
a paramedic and firefighter, this factor does not outweigh the others. See id. (stating
that “this factor is not determinative” and finding Pickering factors favored employer
even though there was no evidence employees’ job performance had been hindered).

In sum, we find the Pickering factors favor the defendants and thus agree with
the district court that the defendants are entitled to qualified immunity because they
did not violate Anzaldua’s First Amendment right to free speech.

B. Rule 56(d) Motion

We next address Anzaldua’s argument that the district court erred in denying
his Rule 56(d) motion. Anzaldua argues the defendants’ qualified immunity
argument depended on their assertion that he made false statements in the Holland

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email and thus that it was essential for him to show those statements were true. He
argues he was unable to prove his statements’ veracity because the case management
order prevented him from conducting discovery before responding to the summary
judgment motion. He suggests that if he had been allowed to depose the defendants’
witnesses and discover documents in the defendants’ possession—he requested the
district court allow him an additional 4 to 5 months of discovery and 21 days on top
of that to respond to the summary judgment motion—then he could have proven his
statements’ truth.

We review the denial of a Rule 56(d) motion for an abuse of discretion. Toben
v. Bridgestone Retail Operations, LLC, 751 F.3d 888, 894 (8th Cir. 2014). Under
Rule 56(d), a court may defer considering a summary judgment motion or allow time
for discovery “[i]f a nonmovant shows by affidavit or declaration that, for specific
reasons, it cannot present facts essential to justify its opposition.” Fed. R. Civ. P.
56(d). However, Rule 56 “does not require trial courts to allow parties to conduct
discovery before entering summary judgment.” United States ex rel. Small Bus.
Admin. v. Light, 766 F.2d 394, 397 (8th Cir. 1985) (per curiam). Thus district courts
possess “wide discretion in denying” Rule 56(d) motions. Toben, 751 F.3d at 895.
“[A] district court’s [Rule 56(d)] discretion is further restricted when a summary
judgment motion based on qualified immunity is at issue.” Jones v. City & Cnty. of
Denver, Colo., 854 F.2d 1206, 1211 (10th Cir. 1988) (citing Martin v. Malhoyt, 830
F.2d 237, 256-57 (D.C. Cir. 1987)). This restriction reflects the concern “that
insubstantial claims against government officials be resolved prior to discovery and
on summary judgment if possible.” Anderson v. Creighton, 483 U.S. 635, 640 n.2
(1987) (internal quotation marks omitted); see also Janis v. Biesheuvel, 428 F.3d 795,
800 (8th Cir. 2005) (“Qualified immunity is an immunity from suit, not simply from
liability.”).

It is not enough for a party to “set forth some facts she ‘hope[s] to elicit from
further discovery.’” Toben, 751 F.3d at 895 (alteration in original) (quoting Cal. ex

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rel. Cal. Dep’t of Toxic Subs. Control v. Campbell, 138 F.3d 772, 779 (9th Cir.
1998)). And “the mere assertion that evidence supporting a party’s allegation is in
the opposing party’s hands is insufficient to justify a denial of a summary judgment
motion on [Rule 56(d)] grounds.” Jones, 854 F.2d at 1211. Instead, the party must
“show[] ‘that the facts sought exist.’” Toben, 751 F.3d at 895 (quoting Campbell,
138 F.3d at 779); see also Janis, 428 F.3d at 800 (“‘A party invoking [Rule 56(d)’s]
protections must do so in good faith by affirmatively demonstrating why he cannot
respond to a movant’s affidavits as otherwise required . . . and how postponement of
a ruling on the motion will enable him, by discovery or other means, to rebut the
movant’s showing of the absence of a genuine issue of fact.’” (quoting William
Poultry Co. v. Morton-Norwich Prods., Inc., 520 F.2d 289, 297 (8th Cir. 1975))).

Here, we find unavailing Anzaldua’s argument that he needed additional
discovery to respond to the documents and declarations the defendants submitted in
support of their summary judgment motion. First, we note that Anzaldua failed to
show why it was essential for the court to determine whether each of his statements
was true or not. Second, we note that while the case management order did not
require initial disclosures be completed until after resolution of the summary
judgment motion, neither did it prohibit Anzaldua from conducting discovery. Third,
even assuming the truth or falsity of Anzaldua’s statements was essential to his
defense, Anzaldua fails to show he would benefit from further discovery because he
cannot show facts exist that would prove the veracity of his statements in the Holland
email. That is to say, he cannot state with specificity what evidence further discovery
would uncover. His Rule 56(d) affidavit simply asserted that if he could depose
witnesses and discover documents, then he could prove his statements were true and
thus that the defendants violated his First Amendment rights. Such an unspecific
assertion is insufficient under Rule 56(d). See Duffy v. Wolle, 123 F.3d 1026, 1041
(8th Cir. 1997) (“‘Rule 56([d]) does not condone a fishing expedition’ where a
plaintiff merely hopes to uncover some possible evidence of a constitutional
violation.” (quoting Gardner v. Howard, 109 F.3d 427, 431 (8th Cir. 1997))),

-21-
abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th
Cir. 2011) (en banc). We find the district court did not abuse its wide discretion in
denying Anzaldua’s Rule 56(d) motion.

C. Dismissal of Non-Moving Fire District

Because the individual defendants were entitled to qualified immunity, the
district court properly granted summary judgment to the Fire District although it
failed to join the summary judgment motion. Once the district court determined no
First Amendment violation had occurred, it was proper for the district court to enter
summary judgment for all defendants facing identical First Amendment claims. See
Madewell v. Downs, 68 F.3d 1030, 1050 (8th Cir. 1995).

III. Counts 3 and 4: SCA and MCTA Claims

A. SCA Claims

We next address Anzaldua’s argument that it was error for the district court to
deny him leave to amend his SCA claims. Anzaldua alleged in his proposed first
amended complaint that Chief Farwell and Welge, acting together or alone, accessed
his Gmail account through Gmail’s server and: (1) obtained the email Anzaldua had
prepared but not sent to Dr. Tan, which at the time was stored on Gmail’s server as
a draft message, and sent the email to Dr. Tan; and (2) obtained the email Anzaldua
had sent to Holland, which at the time was stored on Gmail’s server as a sent
message, and forwarded the email to Chief Farwell. Anzaldua further alleged Chief
Farwell and Welge deleted the Dr. Tan and Holland emails after they sent them.
Anzaldua alleged he believed Chief Farwell and Welge accessed his Gmail account
because he traced access of the account to an IP address at or near Chief Farwell’s
restaurant, where Welge worked. Anzaldua further explained how Chief Farwell and
Welge allegedly accessed his account:

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 While Defendant Welge and Anzaldua were in a romantic relationship,
on one occasion prior to the termination of that relationship, Anzaldua
gave Defendant Welge his Gmail password so that she could email his
resume on his behalf to prospective employers. Anzaldua did not give
Defendant Welge general permission to access his personal Gmail
account and did not realize she had continued to access his personal
Gmail account until he investigated how his personal emails were being
provided to the Fire District. [Anzaldua] and Defendant Welge’s
romantic relationship ended in July of 2011 and Anzaldua did not know,
nor did he authorize Defendant Welge to access his personal Gmail
account at any time before or after that relationship ended, except to
send the resumes on his behalf as set forth above.

First Amended Complaint, R. Doc. 29-1, at ¶ 50.

Finding Anzaldua’s proposed first amended complaint failed to state an SCA
claim, the district court denied leave to amend on the ground that amendment would
be futile. See United States ex rel. Roop v. Hypoguard USA, Inc., 559 F.3d 818, 822
(8th Cir. 2009) (“Futility is a valid basis for denying leave to amend.”). The district
court reasoned that “the alleged improper use of [Anzaldua’s] information was not
a SCA violation, because [Anzaldua] gave Welge access to his Gmail account.” R.
Doc. 49, at 19.

On appeal, Anzaldua argues he sufficiently alleged unauthorized access of his
Gmail account. Although we agree with Anzaldua that his proposed first amended
complaint sufficiently alleged unauthorized access, see Roop, 559 F.3d at 822 (stating
that we review the district court’s futility determination de novo and its denial of
leave to amend for abuse of discretion), we affirm the district court on the alternative
ground that amendment would be futile because neither of Anzaldua’s emails was in
“electronic storage” within the meaning of the SCA. See Interstate Bakeries Corp.
v. OneBeacon Ins. Co., 686 F.3d 539, 542 (8th Cir. 2012) (“‘We may affirm the
judgment of the district court on any basis disclosed in the record, whether or not the

-23-
district court agreed with or even addressed that ground.’” (internal quotation marks
omitted) (quoting Warner Bros. Entm’t, Inc. v. X One X Prods., 644 F.3d 584, 591
(8th Cir. 2011))).

The SCA provides a civil cause of action against anyone who “(1) intentionally
accesses without authorization a facility through which an electronic communication
service is provided; or (2) intentionally exceeds an authorization to access that
facility; and thereby obtains, alters, or prevents authorized access to a wire or
electronic communication while it is in electronic storage.” 18 U.S.C. § 2701; id.
§ 2707 (providing for civil cause of action). Contrary to the district court, we believe
Anzaldua’s proposed first amended complaint sufficiently alleged that Chief
Farwell’s and Welge’s access was without authorization or exceeded authorization.
Taking Anzaldua’s allegations as true, Anzaldua gave Welge his password so she
could access his Gmail account one time and for the limited purpose of sending
resumes on his behalf. Given these facts, we conclude Chief Farwell and Welge at
least exceeded the expressly limited authorization Anzaldua gave Welge when they
accessed Anzaldua’s Gmail account over a year later for wholly different purposes.
See Theofel v. Farey-Jones, 359 F.3d 1066, 1072 (9th Cir. 2004) (reasoning that
principles of common law trespass guide scope of access under SCA); Restatement
(Second) of Torts § 168 (1965) (“A conditional or restricted consent to enter land
creates a privilege to do so only in so far as the condition or restriction is complied
with.”); cf. Johnson v. U.S. Bancorp Broad-Based Change in Control Severance Pay
Program, 424 F.3d 734, 740 (8th Cir. 2005) (interpreting employment contract that
forbade unauthorized access and reasoning that “the district court’s determination that
‘Johnson was authorized to access the files,’ because ‘nothing prevented her access
whatsoever,’ mistakenly equated ability to access a file with authorization to access
the file”). This conclusion is supported by the fact that Chief Farwell and Welge
deleted the Dr. Tan and Holland emails after they sent them, which suggests they
knew they lacked authorization.

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 Even if Anzaldua sufficiently alleged unauthorized access, though, the SCA
also required him to allege that the emails were in “electronic storage.” This he failed
to do. See William Jeremy Robison, Note, Free at What Cost?: Cloud Computing
Privacy Under the Stored Communications Act, 98 Geo. L.J. 1195, 1206 (2010)
(“[The ‘electronic storage’] requirement is commonly misunderstood because the
statutory definition of ‘electronic storage’ is much narrower than its name suggests.”);
see also Orin S. Kerr, A User’s Guide to the Stored Communications Act, and A
Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1214 (2004)
(“[T]here are many problems of Internet privacy that the SCA does not address. The
SCA is not a catch-all statute designed to protect the privacy of stored Internet
communications; instead it is narrowly tailored to provide a set of Fourth
Amendment-like protections for computer networks.”). Under the statute, “electronic
storage” means (1) “any temporary, intermediate storage of a wire or electronic
communication incidental to the electronic transmission thereof,” or (2) “any storage
of such communication by an electronic communication service for purposes of
backup protection of such communication.” 18 U.S.C. § 2510(17).4 5

4
We recognize authorities are divided on whether these two definitional
provisions must be read together or apart. Compare Jennings v. Jennings, 736 S.E.2d
242, 247-48 (S.C. 2012) (Toal, C.J., concurring in result) (together); with Theofel,
359 F.3d at 1075-76 (apart). Although we present the provisions in the disjunctive,
in part because that is how the parties argued them, we express no opinion on this
issue.
5
It is not always easy to square the decades-old SCA with the current state of
email technology. One commentator has observed that the definition of “electronic
storage” “is better understood in light of the e-mail delivery system in place at the
time [of the SCA’s enactment in the mid-1980s], which required multiple service
providers to store communications briefly before forwarding them on to their next
destination or while awaiting download by the recipient.” Robison, Free at What
Cost?, 98 Geo. L.J. at 1206. By contrast, today’s predominant web-based email
services, like Gmail, allow users to “access their email over the web from any
computer, and [users] do not automatically download their messages to their own

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 Anzaldua first claims his draft email to Dr. Tan was in “temporary,
intermediate storage.” While this argument appeals to our everyday understanding
of a “draft,” it fails to meet the statutory definition. Even assuming an unsent draft
email qualifies as an electronic communication, see 28 U.S.C. § 2510(12)
(“‘[E]lectronic communication’ means any transfer of signs, signals, writing, images,
sounds, data, or intelligence of any nature transmitted in whole or in part . . . .”)
(emphasis added), because the email had not been sent, its storage on the Gmail
server was not “temporary, intermediate,” and “incidental to the electronic
transmission thereof.” 18 U.S.C. § 2510(17)(A); see United States v. Councilman,
418 F.3d 67, 81 (1st Cir. 2005) (en banc) (“The first category . . . refers to temporary
storage, such as when a message sits in an e-mail user’s mailbox after transmission
but before the user has retrieved the message from the mail server.”); In re
Doubleclick Inc. Privacy Litig., 154 F. Supp. 2d 497, 512 (S.D.N.Y. 2001) (“[The
SCA] only protects electronic communications stored ‘for a limited time’ in the
‘middle’ of a transmission, i.e. when an electronic communication service temporarily
stores a communication while waiting to deliver it.”).

Anzaldua next claims his sent Holland email was stored “for purposes of
backup protection.”6 Courts most often discuss the backup protection provision as

computers as non-web-based email service users do. Instead, if [web-based] users
save a message, they generally leave it on the [web-based email] server and return to
[the email service] via the web to access it on subsequent occasions.” United States
v. Weaver, 636 F. Supp. 2d 769, 772 (C.D. Ill. 2009) (citation omitted). Of course,
web-based email users may still download emails to their computers through email
client programs, which complicates the picture. See Cheng v. Romo, 2013 WL
6814691, at *4-5 (D. Mass. Dec. 20, 2013) (slip copy).
6
Anzaldua does not argue that his draft email was stored for backup protection
purposes or that his sent email was in temporary, intermediate storage, and we note
he did not allege the sent email was unopened when Chief Farwell and Welge
allegedly obtained it. Thus we decline to consider these arguments.

-26-
it pertains to copies of opened emails that remain on email servers. A principal case
in the area—and the case Anzaldua relies on—is Theofel, where the Ninth Circuit
held that such copies would be deemed stored for backup protection purposes until
“the underlying message . . . expired in the normal course” because “[a]n obvious
purpose for storing a message on an [internet service provider’s (“ISP”)] server after
delivery [from the server to the user] is to provide a second copy of the message in
the event that the user needs to download it again—if, for example, the message is
accidentally erased from the user’s own computer.” 359 F.3d at 1075-76.

Although several courts have followed Theofel, see, e.g., Pure Power Boot
Camp v. Warrior Fitness Boot Camp, 587 F. Supp. 2d 548, 555 (S.D.N.Y. 2008)
(citing cases); Bailey v. Bailey, No 07-11672, 2008 WL 324156, at *6 (E.D. Mich.
Feb. 6, 2008), the decision has been subject to criticism. See United States v.
Warshak, 631 F.3d 266, 291 (6th Cir. 2010) (noting criticism); Kerr, A User’s Guide,
72 Geo. Wash. L Rev. at 1217 (“[T]he Ninth Circuit’s analysis in Theofel is quite
implausible and hard to square with the statutory text.”).7

Some cases openly disagree with Theofel’s reasoning. See Lazette v.
Kulmatycki, 949 F. Supp. 2d 748, 758 & n.13 (N.D. Ohio 2013) (“E-mails which an

7
Kerr further explained: “An understanding of the structure of the SCA
indicates that the backup provision of the definition of electronic storage exists only
to ensure that the government [or the defendants, as relevant here,] cannot make an
end-run around the privacy-protecting [electronic communication service (“ECS”)]
rules by attempting to access backup copies of unopened e-mails made by the ISP for
its administrative purposes. ISPs regularly generate backup copies of their servers
in the event of a server crash or other problem, and they often store these copies for
the long term. Section 2510(17)(B) provides that backup copies of unopened e-mails
are protected by the ECS rules even though they are not themselves incident to
transmission; without this provision, copies of unopened e-mails generated by this
universal ISP practice would be unprotected by the SCA.” Kerr, A User’s Guide, 72
Geo. Wash. L. Rev. at 1217 n.61 (citation omitted).

-27-
intended recipient has opened may, when not deleted, be ‘stored,’ in common
parlance. But in light of the restriction of ‘storage’ in [the SCA] solely for ‘backup
protection,’ e-mails which the intended recipient has opened, but not deleted (and
thus which remain available for later re-opening) are not being kept ‘for the purposes
of backup protection.’”); Jennings v. Jennings, 736 S.E.2d 242, 245 (S.C. 2012) (“We
decline to hold that retaining an opened email constitutes storing it for backup
protection under the [SCA]. The ordinary meaning of the word ‘backup’ is ‘one that
serves as a substitute or support.’ Thus, Congress’s use of ‘backup’ necessarily
presupposes the existence of another copy to which this e-mail would serve as a
substitute or support. We see no reason to deviate from the plain, everyday meaning
of the word ‘backup,’ and conclude that as the single copy of the communication,
Jennings’ e-mails could not have been stored for backup protection.” (citation
omitted) (quoting Merriam-Webster Dictionary,
http://www.merriam-webster.com/dictionary/backup)).

Other authorities dispute Theofel by insisting that the two definitional
provisions in section 2510(17) be read together. See Jennings, 736 S.E.2d at 248
(Toal, C.J., concurring in result) (“[E]lectronic storage refers only to temporary
storage, made in the course of transmission, by an [electronic service communication]
provider, and to backups of such intermediate communications.”); Kerr, A User’s
Guide, 72 Geo. Wash. L. Rev. at 1214 (“[The SCA] defines ‘electronic storage’ as
‘any temporary, intermediate storage of a wire or electronic communication incidental
to the electronic transmission thereof,’ plus any backup copies of files in such
temporary storage.” (footnote omitted) (quoting 18 U.S.C. § 2510(17))).

Still other cases distinguish Theofel on the ground that it addressed
non-web-based email technology:

[Theofel] held that once a user receives an email, any version on the
ISP’s server is a copy that is being stored for backup until the user’s

-28-
 version expires in the normal course. [Theofel] relies on the assumption
that users download emails from an ISP’s server to their own computers.
That is how many email systems work, but a Hotmail account is
web-based and remote. Hotmail users can access their email over the
web from any computer, and they do not automatically download their
messages to their own computers as non-web-based email service users
do. Instead, if Hotmail users save a message, they generally leave it on
the Hotmail server and return to Hotmail via the web to access it on
subsequent occasions. The distinction between web-based email and
other email systems makes Theofel largely inapplicable here.

United States v. Weaver, 636 F. Supp. 2d 769, 772 (C.D. Ill. 2009) (internal quotation
marks, citations, and footnote omitted); see also Crispin v. Christian Audigier, Inc.,
717 F. Supp. 2d 965, 984-85 (C.D. Cal. 2010) (acknowledging that Weaver and
Theofel are not inconsistent because Weaver “confronted a situation not previously
considered by” Theofel); but see Cheng v. Romo, 2013 WL 6814691, at *5 (D. Mass.
Dec. 20, 2013) (slip copy) (noting that under Weaver’s reasoning a defendant’s legal
liability for accessing a plaintiff’s emails “turn[s] on what piece of software (i.e., web
browser vs. email client) [the plaintiff] happened to use to access his email account”);
Jennings, 736 S.E.2d at 246-47 (Toal, C.J., concurring in result) (same). If we
adopted the reasoning of any of the cases criticizing Theofel, we likely would not find
that the Holland email was stored for backup protection purposes.

Ultimately, however, we need not decide whether Theofel or one of its critics
is correct because even if we adopted Theofel’s reasoning we still would conclude
that the sent Holland email was not stored on the Gmail server for backup protection
purposes. Theofel acknowledged “the mere fact that a copy could serve as a backup
does not mean it is stored for that purpose.” 359 F.3d at 1076. Thus its holding
relied on a functional distinction that tied “the lifespan of a backup . . . to that of the
underlying message.” Id. And “[w]here the underlying message has expired in the
normal course, any copy is no longer performing any backup function.” Id.

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 Here, Anzaldua simply alleged that his sent email remained on Gmail’s server
as a matter of course. We hold that once Anzaldua successfully sent the email to
Holland, as he alleged he did, the copy Gmail retained on its server as a sent message
did not perform a backup function.8 See id. (“An [email service] that kept permanent
copies of temporary messages could not fairly be described as ‘backing up’ those
messages.”); see also Kerr, A User’s Guide, at 1218 (“Although it is unclear what
‘normal course’ the Ninth Circuit has in mind, the apparent test is whether the user
or employees of the service provider have reason to believe that they may need to
access an additional copy of the file in the future.”). If Theofel has any application
here, it would be to protect a copy of the email stored with Holland’s email service,
not Anzaldua’s. See Theofel, 359 F.3d at 1075 (stating that a backup copy would
“provide a second copy of the message in the event that the user needs to download
it again—if, for example, the message is accidentally erased from the user’s own
computer”).

Accordingly, neither the draft of the Dr. Tan email nor the sent Holland email
falls within the protection afforded by the SCA.9

B. MCTA

Finally, we address Anzaldua’s argument that it was error for the district court
to deny him leave to amend his MCTA claims. In advancing these claims,
Anzaldua’s proposed first amended complaint relied on the same factual allegations

8
Other provisions of the SCA, see 18 U.S.C. §§ 2702(a) and 2703(b), protect
copies of emails held by remote computing services, which “provi[de] to the public
. . . computer storage or processing services by means of an electronic
communications system.” Id. § 2711(2).
9
Anzaldua argues the district court erred in dismissing his SCA claims in the
original complaint. Because those claims suffer the same defect as the SCA claims
in the proposed first amended complaint, there was no error.

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as his SCA claims. He additionally alleged that he owned the Dr. Tan and Holland
emails, that Chief Farwell and Welge took and disclosed the emails from a computer,
computer system, or computer network, and that Chief Farwell and Welge received,
retained, used, or disclosed the emails, which they knew or believed had been
obtained in violation of the MCTA.

As it did with Anzaldua’s SCA claims, the district court found amendment of
Anzaldua’s MCTA claims would be futile because Anzaldua failed to allege
unauthorized taking, disclosure, or use of the emails, as required by the MCTA. On
appeal, Anzaldua argues he sufficiently alleged such unauthorized conduct. We
agree. See Kingman v. Dillard’s, Inc., 643 F.3d 607, 615 (8th Cir. 2011) (“‘When
determining the scope of Missouri law, we are bound by the decisions of the Supreme
Court of Missouri. If the Supreme Court of Missouri has not addressed an issue, we
must predict how the court would rule, and we follow decisions from the intermediate
state courts when they are the best evidence of Missouri law.’” (quoting Eubank v.
Kan. City Power & Light Co., 626 F.3d 424, 427 (8th Cir. 2010))).

Under the MCTA, a person commits the crime of computer tampering if he
“knowingly and without authorization or without reasonable grounds to believe that
he has such authorization: . . . (3) Discloses or takes data . . . residing or existing
internal or external to a computer, computer system, or computer network; or . . . (6)
Receives, retains, uses, or discloses any data he knows or believes was obtained in
violation of this subsection.” Mo. Rev. Stat. § 569.095. The statute provides a civil
cause of action for “the owner . . . of the . . . data.” Id. § 537.525.

Few cases discuss the MCTA, and the ones that do are not relevant here.
Nevertheless, for the reasons provided in our discussion of Anzaldua’s SCA claims,
we have no difficulty predicting that the Missouri Supreme Court would find that
Anzaldua sufficiently alleged Chief Farwell and Welge acted “knowingly and without
authorization or without reasonable grounds to believe that [they had] such

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authorization.” We further find that Anzaldua’s proposed first amended complaint
satisfies the other elements of the MCTA because Anzaldua alleged facts supporting
that he owned the emails and that Chief Farwell and Welge took and later disclosed
the emails, which they knew had been obtained without authorization.

Accordingly, we find the district court erred in denying Anzaldua leave to
amend his MCTA claims.10

IV. Conclusion

For the foregoing reasons, we affirm the grant of summary judgment to the
defendants as to Anzaldua’s First Amendment claims, the dismissal of Anzaldua’s
SCA claims in his original complaint, and the denial of leave to amend Anzaldua’s
SCA claims. We reverse the denial of leave to amend Anzaldua’s MCTA claims. We
remand to the district court with instructions that the district court grant Anzaldua
leave to file an amended complaint asserting his MCTA claims.
______________________________

10
Anzaldua also argues the district court erred in dismissing the MCTA claims
in his original complaint. Because we hold that the district court erred in denying
leave to amend these claims, we need not address their original dismissal.

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