Earle Myers, Jr. v. Richland County

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________

No. 04-3653
________________

Earle Myers, Jr., also known as *
“Bud,” *
*
Appellant, *
* Appeal from the United States
v. * District Court, District of North
* Dakota.
Richland County; Bryan L. Flaa; *
Don Holen; Lynn C. Larsen; Tim *
Campbell; Joel Dotzenrod, *
Richland County Commissioners, *
in their official capacities; Ray *
Ward; Steve Campbell; Merlin *
Berg; Dave Paulson, former *
Richland County Commissioners, *
in their individual and official *
capacities, *
*
Appellees. *

________________

Submitted: September 14, 2005
Filed: November 16, 2005
________________

Before MURPHY, HANSEN, and GRUENDER, Circuit Judges.
________________

GRUENDER, Circuit Judge.
 Earle Myers, Jr. (“Myers”) brought this action for breach of contract,
intentional infliction of emotional distress (“IIED”) and defamation arising from an
alleged violation of a settlement agreement. The district court granted the
defendants’ motion for summary judgment as to all three claims. For the reasons
discussed below, we affirm the district court’s grant of summary judgment on the
breach of contract claim, vacate the grant of summary judgment on the IIED and
defamation claims and remand with instructions to dismiss the IIED and defamation
claims for lack of jurisdiction.

I. BACKGROUND

Myers served as the elected State’s Attorney for Richland County, North
Dakota, from 1977 until 2003. In May 2000, a former Richland County employee,
Jewel Jones-Van Tassel (“Jones-Van Tassel”), filed an amended complaint against
Richland County and others in the District of North Dakota alleging claims including
gender discrimination in violation of Title VII of the Civil Rights Act.1 In that
litigation, Myers gave deposition testimony that was favorable to Jones-Van Tassel
concerning his knowledge of the behavior of Richland County Sheriff Harlan
Muehler and Richland County Commissioner Dave Paulson toward female employees
of Richland County. The parties settled the case, and Jones-Van Tassel received $1.2
million. The defendant-signatories of the Jones-Van Tassel settlement agreement
who are also defendants in the present action include Richland County and former
Richland County Commissioners Ray Ward, Dave Paulson, Merlin Berg and Steve
Campbell. Paragraph six of the settlement agreement, the “no-retaliation provision,”
provides:

6. No Retaliation. Defendants agree that they will not retaliate with
respect to any employment related matter against any former, present, or

1
Jones-Van Tassel v. Richland County, et al., No. 99-CV-60 (D.N.D.).
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 prospective City or County employee, or individual whose compensation
is paid, in whole or in part, by the City or County, who have provided
any support to Plaintiff, whether by affidavit, deposition testimony,
providing information to Plaintiff, or any other manner of support.

Furthermore, paragraph 17 of the settlement agreement provides, “The parties agree
that the Federal District Court for the District of North Dakota shall retain jurisdiction
of this matter to enforce the terms of this Settlement Agreement and Release.” The
district court expressly retained jurisdiction to enforce the settlement agreement in its
January 10, 2001, Order for Dismissal with Prejudice and Retaining Jurisdiction with
the statement that “this Court shall retain jurisdiction of this matter to enforce the
terms of the Settlement Agreement and Mutual Releases.”

On November 12, 2002, Myers instituted the present action against Richland
County and current and former members of the Richland County Board of
Commissioners in their individual and official capacities. Myers brought three
claims. The first was a breach of contract claim against Richland County.2 He
asserted that Richland County breached the Jones-Van Tassel settlement agreement
by retaliating against him for his deposition testimony and that the retaliation resulted
in his defeat in the November 2002 election for State’s Attorney. He also brought
claims for IIED and defamation against present Richland County Commissioners
Bryan L. Flaa, Don Holen, Lynn C. Larsen, Tim Campbell and Joel Dotzenrod, in
their individual capacities, and former Richland County Commissioners Ray Ward,
Steve Campbell, Merlin Berg and Dave Paulson, in their individual capacities.

2
On appeal, Myers attempts to argue that the breach of contract claim was
brought against the individual commissioners as well as Richland County. Yet
paragraph 34 of his Complaint states that the breach of contract count “is brought
against the County,” and Myers’s Brief in Opposition to Defendant’s Motion for
Summary Judgment states, “Myers alleged three counts in his Complaint. The first
count, breach of contract, is only asserted against the County.”
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 The defendants moved to dismiss the action. The district court denied the
defendants’ motion to dismiss on October 23, 2003, rejecting the arguments that it
lacked subject matter jurisdiction, that Myers lacked standing to enforce the
settlement agreement and that Myers failed to state a claim upon which relief could
be granted. The district court later amended its order so as to dismiss the defendants
who were not signatories to the Jones-Van Tassel settlement agreement–Bryan L.
Flaa, Don Holen, Lynn C. Larsen, Tim Campbell and Joel Dotzenrod. Next, the
parties stipulated that Steve Campbell and Merlin Berg be dismissed from the suit.
The remaining defendants, Richland County, Ray Ward and Dave Paulson, moved for
summary judgment. On September 30, 2004, the district court granted the motion for
summary judgment as to Myers’s remaining claims for breach of settlement
agreement against Richland County, and for IIED and defamation against Ray Ward
and Dave Paulson. Myers appeals.

II. DISCUSSION

A. Subject Matter Jurisdiction

We first must address the defendants’ argument that this action should be
dismissed for lack of subject matter jurisdiction because “[a]ny party or the court
may, at any time, raise the issue of subject matter jurisdiction.” GMAC Commercial
Credit LLC v. Dillard Dept. Stores, Inc., 357 F.3d 827, 828 (8th Cir. 2004). We
review the question of subject matter jurisdiction de novo. Gilbert v. Monsanto Co.,
216 F.3d 695, 699 (8th Cir. 2000).

The district court found that the breach of contract claim, as well as the IIED
and defamation claims, fell within supplemental jurisdiction under 28 U.S.C. §
1367(a), and rejected the defendants’ request that the district court exercise its
discretion to decline jurisdiction based on the factors listed in 28 U.S.C. § 1367(c).
We hold that because the district court expressly retained jurisdiction to enforce the

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Jones-Van Tassel settlement agreement, it had ancillary enforcement jurisdiction over
the breach of contract claim. We also hold, however, that the district court lacked
supplemental jurisdiction pursuant to § 1367(a) over the IIED and defamation claims
because it did not possess original jurisdiction over the action, as required by §
1367(a).

1. Breach of Contract

“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life
Insurance Co. of Am., 511 U.S. 375, 377 (1994). The Supreme Court held in
Kokkonen that district courts do not have inherent power to enforce a settlement
agreement entered into by parties in federal court. 511 U.S. at 380-81. Because an
action to enforce a settlement agreement is a claim for breach of contract, it should
be heard in state court unless it has “its own basis for jurisdiction.” Id. at 378. While
the Court found no basis for jurisdiction where the district court’s order did not even
mention the settlement agreement, the Court explained that

if the parties’ obligation to comply with the terms of the settlement
agreement had been made part of the order of dismissal–either by
separate provision (such as a provision “retaining jurisdiction” over the
settlement agreement) or by incorporating the terms of the settlement
agreement in the order. . . . a breach of the agreement would be a
violation of the order, and ancillary jurisdiction to enforce the agreement
would therefore exist.

511 U.S. at 381; see also Adduono v. World Hockey Ass’n, 824 F.2d 617, 621-22 (8th
Cir. 1987) (holding that the district court lacked jurisdiction where it did not
incorporate the settlement agreement into the dismissal order or expressly retain
jurisdiction to enforce the settlement agreement).

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 Kokkonen distinguished two “heads” of “ancillary jurisdiction (in the very
broad sense in which that term is sometimes used),” explaining that the Court has
asserted it “for two separate, though sometimes related, purposes: (1) to permit
disposition by a single court of claims that are, in varying respects and degrees,
factually interdependent; and (2) to enable a court to function successfully, that is, to
manage its proceedings, vindicate its authority, and effectuate its decrees.” 511 U.S.
at 379-80 (citations omitted). The exercise of jurisdiction to enforce a settlement
agreement serves the latter role. Id. at 380-81. This “ancillary enforcement
jurisdiction” is distinct from the type of ancillary jurisdiction exercised pursuant to
28 U.S.C. § 1367.3 Section 1367 “combines the doctrines of pendent and ancillary
jurisdiction under a common heading” of supplemental jurisdiction. City of Chicago
v. Int’l College of Surgeons, 522 U.S. 156, 165 (1997). It provides in part that “in
any civil action of which the district courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that they form part of the same
case or controversy under Article III of the United States Constitution.” 28 U.S.C.
§ 1367(a). Claims within the action are part of the same case or controversy if they
“derive from a common nucleus of operative fact.” City of Chicago, 522 U.S. at 165
(quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)).

3
Therefore, although we agree with the district court’s exercise of jurisdiction
over the breach of contract claim, we disagree with its rationale. In the October 23,
2003, order denying the defendants’ motion to dismiss, the district court discussed
Kokkonen and the express retention of jurisdiction to enforce the settlement
agreement. However, the district court improperly equated this ancillary enforcement
jurisdiction with supplemental jurisdiction under 28 U.S.C. § 1367(a), stating that §
1367(a) “allows state claims such as the plaintiff’s breach of contract claim to ride the
back of a federal claim as long as that claim has an independent basis for
jurisdiction.” Because ancillary enforcement jurisdiction is distinct from § 1367, we
do not analyze whether the breach of contract claim meets the statutory test for
supplemental jurisdiction under § 1367.
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 The existence of ancillary enforcement jurisdiction apart from the supplemental
jurisdiction embodied by § 1367 is evidenced by Kokkonen’s caveat that its use of the
term “ancillary jurisdiction” was in a “very broad sense” and by its lack of reliance
on § 1367.4 511 U.S. at 379-80. Furthermore, the distinction is supported by the
Supreme Court’s comment in Peacock v. Thomas that “Congress codified much of the
common-law doctrine of ancillary jurisdiction as part of ‘supplemental jurisdiction’
in 28 U.S.C. § 1367,” 516 U.S. 349, 354 n.5 (1996) (emphasis added), as well as by
statements from several of our sister circuits recognizing that ancillary enforcement
jurisdiction is a viable doctrine that was not codified in § 1367.5

4
The only mention of § 1367 in Kokkonen is a “cf. 28 U.S.C. § 1367” citation
following the description of the two heads of ancillary jurisdiction and accompanying
citations. Kokkonen, 511 U.S. at 380. The use of a “compare” signal indicates that
§ 1367 is not a complete embodiment of the “very broad” ancillary jurisdiction that
the Supreme Court was discussing.
5
See Fafel v. Dipaola, 399 F.3d 403, 412 n.10 (1st Cir. 2005) (“The first type
of ancillary jurisdiction has been described as ‘supplemental’ jurisdiction, and is
generally codified at 28 U.S.C. § 1367. The second type of ancillary jurisdiction has
been characterized as ‘enforcement jurisdiction’ and recognizes the ‘inherent power
of federal courts to exercise jurisdiction in order to enforce their judgments in certain
situations where jurisdiction would otherwise be lacking.’”) (citations omitted);
Hudson v. Coleman, 347 F.3d 138, 142 (6th Cir. 2003) (“The first category of
ancillary jurisdiction identified [in Kokkonen] has largely been codified in the
supplemental jurisdiction statute, 28 U.S.C. § 1367. The second category of ancillary
jurisdiction is generally referred to as ‘ancillary enforcement jurisdiction.’”);
Epperson v. Entertainment Express, Inc., 242 F.3d 100, 108 (2d Cir. 2001) (“[A]s the
Peacock Court noted, when Congress codified much of the common law of ancillary
jurisdiction as part of ‘supplemental jurisdiction’ in 28 U.S.C. § 1367, it included the
branch of ancillary jurisdiction premised on factual interdependence, but did not
codify enforcement jurisdiction.”); United States v. Alpine Land & Reservoir Co., 174
F.3d 1007, 1012 n.5 (9th Cir. 1999) (“Supplemental jurisdiction under § 1367 is
distinct from the equitable doctrine of ancillary jurisdiction, which allows a court to
adjudicate related claims ‘to manage its proceedings, vindicate its authority, and
effectuate its decrees.’”) (quoting Kokkonen, 511 U.S. at 380). This Court has noted
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 We are not persuaded by the defendants’ contention that jurisdiction fails
because Myers filed a separate action for damages instead of a motion to enforce the
settlement agreement in the prior action. As the Kokkonen Court noted,
“[e]nforcement of the settlement agreement, . . . whether through award of damages
or decree of specific performance, is more than just a continuation or renewal of the
dismissed suit.” 511 U.S. at 378. We agree with the Seventh Circuit that “where a
party to a settlement agreement approved by a federal court brings a new suit in
federal court alleging a breach of the agreement, federal jurisdiction exists over the
suit, provided the federal court incorporated the agreement into its final order or
reserved jurisdiction to enforce the agreement.” Montgomery v. Aetna Plywood, Inc.,
231 F.3d 399, 411 (7th Cir. 2000) (emphasis added); cf. Miener v. Missouri Dept. of
Mental Health, 62 F.3d 1126, 1127 (8th Cir. 1995) (holding that the district court
lacked jurisdiction over an “action . . . to enforce a settlement agreement reached in
an earlier federal lawsuit” where there was no provision retaining jurisdiction or
incorporating the settlement agreement into the order) (emphasis added). Because
Myers’s breach of contract claim satisfies the requirements for ancillary enforcement
jurisdiction, the district court had subject matter jurisdiction over it.

2. IIED and Defamation

Although the district court had ancillary enforcement jurisdiction over the
breach of contract claim, it did not have subject matter jurisdiction over the IIED and
defamation claims. The only possible source of jurisdiction over these two state tort
claims is the supplemental jurisdiction authorized by 28 U.S.C. § 1367, and
supplemental jurisdiction over Myers’s IIED and defamation claims is not proper.

that “[i]n 1990, Congress consolidated and codified the common law doctrines of
ancillary and pendant jurisdiction under the title ‘Supplemental jurisdiction,’ in 28
U.S.C. § 1367,” Motion Control Corp. v. SICK, Inc., 354 F.3d 702, 705 (8th Cir.
2003), but has not explicitly addressed whether supplemental jurisdiction under §
1367 includes all forms of ancillary jurisdiction.
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First, the claims are not supplemental to the Jones-Van Tassel discrimination claim.
While the district court did exercise original jurisdiction over the Jones-Van Tassel
discrimination claim pursuant to 28 U.S.C. § 1331, supplemental jurisdiction over
Myers’s tort claims fails because the IIED and defamation claims neither are part of
the same civil action as the Jones-Van Tassel discrimination claim nor stem from the
same nucleus of operative fact as does the Jones-Van Tassel discrimination claim.
See Peacock, 516 U.S. at 355-56.

Second, the IIED and defamation claims are not supplemental to the breach of
contract claim. Although there may be sufficient factual interdependence between
Myers’s tort claims and his breach of contract claim, the district court did not possess
original jurisdiction over the breach of contract claim. Supplemental jurisdiction only
applies to a “civil action of which the district courts have original jurisdiction.” 28
U.S.C. § 1367(a). Therefore, before a district court asks whether it can exercise
supplemental jurisdiction over some claims in an action, it must first determine that
it has original jurisdiction over the civil action within the meaning of § 1367(a); in
other words, it must have original jurisdiction over at least one claim in the
complaint. Exxon Mobil Corp. v. Allapattah Services, Inc., 125 S.Ct. 2611, 2620-21
(2005).

Original jurisdiction is equivalent to independent federal subject matter
jurisdiction.6 Ancillary enforcement jurisdiction, like supplemental jurisdiction under

6
As noted by the First Circuit, the phrase “civil action of which the district
courts have original jurisdiction” in 28 U.S.C. § 1367 “unambiguously invokes the
language that Congress has used for more than two hundred years to confer
jurisdiction on the federal district courts in civil cases. Nearly every jurisdictional
grant in Title 28 provides that ‘the district courts shall have original jurisdiction’ of
‘civil action[s]’ within the scope of the grant. See, e.g., 28 U.S.C. §§ 1331 (federal
questions), 1332 (diversity), 1335 (interpleader), 1337 (antitrust), 1338 (intellectual
property), 1339 (postal matters), 1340 (internal revenue).” Rosario Ortega v.
Star-Kist Foods, Inc., 370 F.3d 124, 135 (1st Cir. 2004), rev’d on other grounds sub
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§ 1367, is not original jurisdiction. Both the Supreme Court and the Eighth Circuit
have held that ancillary jurisdiction does not provide the original jurisdiction needed
for removal to federal court under 28 U.S.C. § 1441, which like § 1367 applies to a
“civil action . . . of which the district courts of the United States have original
jurisdiction.” 28 U.S.C. § 1441(a). See Syngenta Crop Protection, Inc. v. Henson,
537 U.S. 28, 34 (2002) (stating that ancillary enforcement jurisdiction “cannot
provide the original jurisdiction” required by the removal statute); Motion Control
Corp., 354 F.3d at 706 (following Syngenta and stating that ancillary jurisdiction
based on factual interdependence “does not authorize removal under § 1441” and “is
not original jurisdiction”). In addition, the Kokkonen Court indicated that ancillary
enforcement jurisdiction over a settlement agreement is not original jurisdiction.
After discussing the district court’s two options for preserving jurisdiction–either
embodying the settlement agreement in the dismissal order or expressly retaining
jurisdiction over the settlement agreement–Kokkonen stated, “Absent such action,
however, enforcement of the settlement agreement is for state courts, unless there is
some independent basis for federal jurisdiction.” 511 U.S. at 382. Here, because the
district court did not possess original jurisdiction over the breach of contract claim,
it could not exercise supplemental jurisdiction over the IIED and defamation claims.

Because the IIED and defamation claims are not part of the same civil action
as is the Jones-Van Tassel discrimination claim and the district court’s ancillary
enforcement jurisdiction over the breach of settlement agreement claim is not original
jurisdiction, the district court lacked supplemental jurisdiction pursuant to § 1367
over the IIED and defamation claims.

B. Standing

We next address the defendants’ argument that summary judgment should be

nom. Exxon Mobil Corp. v. Allapattah Services, Inc., 125 S.Ct. 2611 (2005).
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affirmed because Myers lacks standing to enforce the settlement agreement. We
agree with the district court that Myers has standing to sue as an intended third-party
beneficiary of the settlement agreement.

A federal court cannot hear Myers’s breach of contract claim unless he has
standing to sue under North Dakota state law. See Metropolitan Express Servs., Inc.
v. City of Kansas City, 23 F.3d 1367, 1369 (8th Cir. 1994) (applying state law of
standing in federal diversity case); Westborough Mall, Inc. v. City of Cape Girardeau,
693 F.2d 733, 747-48 (8th Cir. 1982) (analyzing standing to raise a state claim in
federal court under state law). We review the district court’s interpretation of state
law de novo. Salve Regina Coll. v. Russell, 499 U.S. 225, 231 (1991). Settlement
agreements are generally construed according to the principles of contract law. See
Vandal v. Peavey Co., 523 N.W.2d 266, 268 (N.D. 1994) (“When a settlement is
fairly made before trial, it ‘takes on the character of a contract . . . and is final and
conclusive, and based on good consideration.’”) (quoting Bohlman v. Big River Oil
Co., 124 N.W.2d 835, 837 (N.D. 1963)); In re Estate of Gustafson, 287 N.W.2d 700,
702-03 (N.D. 1980) (using rules of contract interpretation found in N.D. Cent. Code
chapter 9-07 to determine the intent of parties to a property-settlement agreement
incorporated in a judgment of divorce).

North Dakota law provides that intended, but not incidental, beneficiaries have
standing to enforce an agreement. N.D. Cent. Code § 9-02-04 states, “A contract
made expressly for the benefit of a third person may be enforced by him at any time
before the parties thereto rescind it.” This statute has been construed “to mean that
a party only incidentally benefitted by performance of a contract is not entitled to
maintain an action to enforce it.” Hellman v. Thiele, 413 N.W.2d 321, 325 (N.D.
1987). To determine whether Myers is an intended beneficiary, “we must look to the
intentions of the parties to the contract. The intentions of the parties to a contract
must be ascertained from the written contract alone, if possible, but where the
contract is ambiguous it may be explained by reference to the circumstances under

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which it was made.” O’Connell v. Entm’t Enters., Inc., 317 N.W.2d 385, 388 (N.D.
1982) (emphasis added); see also N.D. Cent. Code § 9-07-02 (“The language of a
contract is to govern its interpretation if the language is clear and explicit and does
not involve an absurdity.”).

Here, the words of the contract alone govern because the language of the Jones-
Van Tassel settlement agreement is not ambiguous. The no-retaliation provision
prohibits the signatories from “retaliat[ing] with respect to any employment related
matter against any former, present, or prospective City or County employee, or
individual whose compensation is paid, in whole or in part, by the City or County,
who have provided any support to Plaintiff, whether by . . . deposition testimony . .
. or any other manner of support.” As Richland County State’s Attorney, Myers was
an individual whose compensation was paid by Richland County. Myers also
provided deposition testimony in the Jones-Van Tassel suit. Therefore, Myers is an
intended beneficiary of the no-retaliation provision. The district court did not err in
holding that Myers has standing to enforce the settlement agreement.

C. Breach of Contract Claim

We review de novo the district court’s grant of summary judgment to Richland
County on the breach of contract claim. Martin v. Am. Airlines, Inc., 390 F.3d 601,
606 (8th Cir. 2004). Summary judgment is proper if, viewing the record in the light
most favorable to Myers, there is no genuine issue of material fact and Richland
County is entitled to judgment as a matter of law. See id.; Fed. R. Civ. P. 56(c). We
may affirm the district court’s grant of summary judgment on any ground supported
by the record. Russell v. Hennepin County, 420 F.3d 841, 847 (8th Cir. 2005). After
reviewing the record, we hold that Myers did not produce sufficient evidence from
which a reasonable jury could conclude that Richland County breached the settlement
agreement.

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 First, Myers challenges the district court’s holding that in order for Richland
County to be liable for breach of the settlement agreement, the actions constituting
the breach must have been accomplished by formal action of the Richland County
Board of Commissioners (“the Board”) or lawfully authorized by the Board.7 We
agree with the district court. North Dakota law provides that “[e]ach organized
county is a body corporate for civil and political purposes only. As such, the county
may sue and be sued, contract and be contracted with . . . .” N.D. Cent. Code §
11-10-01; see also N.D. Cent. Code § 11-11-29 (“A contract shall be entered into .
. . only after it has been approved by the vote of a majority of the members of the
board of county commissioners. The contract . . . may be signed on behalf of the
board by the chairman thereof and the county seal affixed thereto.”). The actions of
individual commissioners are not tantamount to actions of Richland County.
According to the North Dakota Supreme Court, “[T]he board of county
commissioners shall act collectively and as a board, and . . . consequently the county
is not bound by any action taken by the county commissioners as individuals.”
Rolette State Bank v. Rolette County, 218 N.W. 637, 639 (N.D. 1928); see also Hart
v. Bye, 86 N.W.2d 635, 638 (N.D. 1957) (“The county is not bound by any action
taken by a commissioner or commissioners acting individually.”); City of Minot v.
Johnston, 379 N.W.2d 275, 278 (N.D. 1985) (“The Water Board must act collectively
and neither it nor the City as assignee of the easement is bound by any act of an
individual member.”).

Next, we address the meaning of the word “retaliate” in the settlement
agreement’s statement that the signatories “will not retaliate with respect to any
employment related matter.” The district court agreed with Myers that it should use

7
Myers also argues that the district court erred in dismissing the commissioners
who were not signatories to the settlement agreement and that they may be held
individually liable for breach of the settlement agreement. This argument fails
because Myers brought the breach of contract claim against only Richland County,
not against the commissioners in their individual capacities. See supra note 2.
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the plain meaning of the word, but then the court improperly relied on the burden-
shifting analysis applicable to retaliation claims as developed under Title VII case law
in the Eighth Circuit. North Dakota law directs us to “construe contractual
agreements to give effect to the parties’ intent, which, if possible, must be ascertained
from the writing as a whole. The clear and explicit language of a contract governs
its interpretation and words are construed in their ordinary sense.” In re Estate of
Littlejohn, 698 N.W.2d 923, 925-26 (N.D. 2005) (citation omitted); see also N.D.
Cent. Code § 9-07-09 (“The words of a contract are to be understood in their ordinary
and popular sense rather than according to their strict legal meaning, unless used by
the parties in a technical sense, or unless a special meaning is given to them by usage,
in which case the latter must be followed.”).

The no-retaliation provision in the settlement agreement is not ambiguous, and
we will use the ordinary meaning of the word “retaliate.” The Supreme Court of
North Dakota looks to the dictionary to ascertain the ordinary meaning of a term in
a contract, “the definition a non law-trained person would attach to the term.” Martin
v. Allianz Life Ins. Co. of N. Am., 573 N.W.2d 823, 826 (N.D. 1998). The dictionary
defines “retaliate” as “to repay (as an injury) in kind; to return like for like; to get
revenge.” Merriam-Webster’s Collegiate Dictionary 1063 (11th ed. 2005).
Therefore, as applicable to this case, the settlement agreement provides that Richland
County cannot seek revenge on Myers with respect to any employment-related matter
because he “provided any support” to Jones-Van Tassel “by . . . deposition
testimony.”

Using the ordinary meaning of “retaliate” and taking into account the actions
that could possibly be construed as formal actions of the Board or lawfully authorized
by the Board, we hold that Myers has not presented sufficient evidence to overcome
summary judgment on the breach of contract claim. Myers has failed to present
material evidence upon which a reasonable jury could find that Richland County took
certain actions because of Myers’s deposition testimony in the Jones-Van Tassel

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lawsuit and that those actions caused Myers to lose the election. The voters, not
Richland County, decided that Myers would no longer serve as State’s Attorney.
Moreover, the record contains evidence that prior to Myers’s deposition testimony,
the Board had disagreements with Myers and was unsatisfied with Myers’s work as
State’s Attorney.

Myers alleges, as an incident of retaliation, the participation of several
commissioners in persuading Warren Stokes to stand against Myers in the election
for Richland County State’s Attorney. Myers argues that this interference with the
2002 election converted an uncontested race for Myers into a contested one, which
caused Myers to lose the election. After the Jones-Van Tassel settlement,
Commissioner Lynn C. Larsen asked an attorney if he knew of anyone who would be
interested in running against Myers, and Commissioners Bryan L. Flaa and Don
Holen spoke to Warren Stokes. Commissioner Flaa asked Stokes why nobody would
run against Myers for State’s Attorney. Stokes told him it was because the position
was full-time. Flaa did not discuss the matter with Stokes again until he stopped at
Stokes’s house on March 31, 2002, to pick up a letter that Stokes wrote to the Board
informing them that he would not run if the position was to remain full-time. These
actions of individual commissioners were not authorized by the Board and thus
cannot be attributed to Richland County.

As part of this claim of retaliation, Myers argues that the conversion of the
State’s Attorney position to part-time, a formal action of the Board, was part of the
inducement for Stokes to run against him for the office. At board meetings on April
1 and April 4, 2002, the commissioners discussed the 1977 resolution making the
State’s Attorney position full-time, but they failed to rescind the resolution at that
time. Nevertheless, Stokes entered the campaign for State’s Attorney and defeated
Myers. When Stokes was sworn in on January 6, 2003, the Board rescinded the 1977
resolution, thereby changing the position to part-time, and voted not to reduce
Stokes’s salary. However, this change upon Stokes taking office could not constitute

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retaliation with respect to an employment-related matter because it had no impact on
Myers. Myers already had been defeated in the election and was no longer in office.

As evidence of retaliation, Myers next points to an investigation regarding his
conduct as State’s Attorney that was unrelated to the Jones-Van Tassel lawsuit. After
the Jones-Van Tassel settlement, some Richland County residents sought recall of
Sheriff Harlan Muehler, Commissioner Dave Paulson and Myers. Myers himself
urged the Board to appoint special counsel to investigate the allegations and decide
whether to file a complaint with the governor seeking removal of any county officials.
The Board and Myers agreed not to limit the scope of the investigation to sexual
harassment and discrimination. The Board hired James M. Vukelic. In the course of
the subsequent investigation, Vukelic met personally with citizens and examined their
complaints about Myers: that Myers refused to prosecute certain individuals,
improperly urged the Commission to destroy county records, misused county funds
and failed to enforce the county’s sexual harassment policy. Vukelic concluded in
a June 1, 2001, report that none of Myers’s behavior constituted misconduct,
malfeasance or neglect of duty. There is no evidence that this investigation into
Myers’s conduct as State’s Attorney constituted retaliation for his deposition
testimony.

Third, Myers argues that the Board interfered with his role as State’s Attorney
in various ways. Myers asserts that the Board ignored his legal advice and sought
advice from others who were not legally trained, such as the County Auditor.
However, the record shows that Myers rarely attended Board meetings. Myers also
argues that the Board submitted legal questions directly to the North Dakota Attorney
General’s office instead of channeling them through Myers. Regarding one such
incident raised by Myers, Flaa explained that the employee who asked Flaa to submit
a request to the Attorney General’s office involving a Sheriff’s Department slush fund
also told Flaa not to involve Myers or the sheriff. Although Myers took issue with
Flaa’s explanation, Myers admitted that ultimately he allowed the Attorney General’s

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office to proceed with that investigation. Finally, Myers asserts that the Board
submitted two civil complaints that had been filed against Richland County directly
to the North Dakota Insurance Reserve Fund (NDIRF) instead of to him. Myers
agreed, however, that civil complaints properly went to the NDIRF for appointment
of outside counsel and that it was important for NDIRF to receive the complaints as
soon as possible. Furthermore, on those two occasions when the complaints were
given directly to the NDIRF, Myers received a copy of the complaints within a week.
None of these “interferences” raises a genuine issue of material fact that the Board
retaliated against Myers with respect to any employment-related matter as a result of
his testimony in the Jones-Van Tassel lawsuit.

Finally, Myers points to a letter given to Richland County employees that he
believed implicitly threatened all County individuals who gave support to or testified
on behalf of Jones-Van Tassel. Richland County Engineer, Tim Schulte, wrote a
letter to Commissioner Flaa, discussing his opinions about the aftermath of the Jones-
Van Tassel lawsuit and the gossip and infighting in Richland County. In February
2001, Commissioner Flaa disseminated a portion of Schulte’s letter to county
employees at a meeting of the Board, with his own introductory paragraph stating in
part that he had received a letter that he wanted to share, that it “points to the problem
as the author sees it,” and that “if it strikes a nerve with you as you read this, you may
want to think about your involvement in these issues.” Several days later, counsel for
Jones-Van Tassel informed the Board that the letter could be construed as a violation
of the settlement agreement, and Schulte forwarded his original letter in its entirety
to all county employees to give context to his message. We do not find this letter to
constitute retaliation against Myers with respect to any employment-related matter.
The letter disseminated at the meeting was not written by the Board but by the County
Engineer as an expression of his thoughts and opinions. Even if the Board did ratify
the letter as its own, the letter does not make any reference to Myers and there is no
evidence that Myers suffered any negative employment consequences as a result of
the letter.

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 In sum, Myers failed to raise a triable question of material fact as to whether
Richland County retaliated with respect to any employment-related matter against
Myers because of his deposition testimony in the Jones-Van Tassel lawsuit. Myers
lost the election because he did not receive more votes than his opponent, not due to
any actions of the Board. Accordingly, summary judgment on Myers’s breach of
contract claim is appropriate.

III. CONCLUSION

For the reasons discussed above, we affirm the district court’s grant of
summary judgment in favor of Richland County as to the breach of contract claim.
We vacate the district court’s judgment on the IIED and defamation claims and
remand to the district court with directions to dismiss those two claims for lack of
jurisdiction.

______________________________

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