The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
THOMAS R. McLEAN, M.D. et al., )
)
Plaintiffs, )
)
v. ) Case No. 20-0593-CV-W-BP
)
JEFFREY W. BRUCE, et al., )
)
Defendants. )
ORDER (1) DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE SECOND
AMENDED COMPLAINT AND (2) GRANTING MOTION TO DISMISS COUNTS IV
AND V FOR FAILURE TO STATE A CLAIM
Plaintiff filed this case in July 2020, asserting claims arising from Defendant Jeffrey
Bruce’s obligations as Plaintiff’s attorney. On June 28, 2021, Plaintiff filed his Amended
Complaint, (“the FAC”). (Doc. 92.) Bruce has filed a motion asserting that Counts IV and V of
the FAC fail to state a claim for which relief can be granted. Plaintiff opposed Bruce’s motion and
separately filed a motion seeking leave to file a Second Amended Complaint. For the reasons set
forth below, Plaintiff’s motion, (Doc. 141), is DENIED, Bruce’s motion, (Doc. 133), is
GRANTED, and Counts IV and V are dismissed.
I. BACKGROUND
The two motions – the Motion to Dismiss and the Motion for Leave to File Second
Amended Complaint – are related, so they are being addressed together. However, resolution of
the parties’ arguments requires an understanding of the case’s procedural history, details regarding
Counts IV and V, and the differences between FAC and the Proposed Second Amended
Complaint, (“the SAC”).
A. Procedural History
As stated earlier, the case was filed in July 2020, and the Court’s Scheduling Order and
Trial Order established a deadline of June 1, 2021, for filing motions to amend the pleadings.
(Doc. 61, ¶ 4.) Bruce sought a brief, six-day extension of the deadline, (Doc. 71), which Plaintiff
opposed, (Doc. 73); the Court granted the motion over Plaintiff’s opposition and extended the
deadline for filing motions to amend the pleadings to June 9, 2021. (Doc. 76.)
Despite opposing the extension, on June 9 Plaintiff sought leave to file an Amended
Complaint, (Doc. 78); on the same day, Bruce sought leave to file an Amended Answer, (Doc. 79),
which Plaintiff opposed, (Doc. 87). Bruce did not respond to Plaintiff’s request to file an Amended
Complaint, so the Court granted Plaintiff’s motion. (Doc. 89.) Once Plaintiff filed the Amended
Complaint, (Doc. 92), the Court found Defendant’s motion to file an Amended Answer to be moot
because with the filing of an Amended Complaint Bruce automatically had a right to file a new
Answer. (Doc. 94.)
Until this time, Plaintiff and Bruce had each been representing themselves. Bruce retained
counsel on August 9, (Doc. 118), and three days later counsel filed an Answer to the Amended
Complaint, (Doc. 123); the Answer includes several defenses, including one stating that the “First
Amended Complaint fails to state a claim upon which relief may be granted.” (Doc. 123, ¶ 51.)
On August 26, Bruce (through counsel) filed a motion to dismiss Counts IV and V for
failure to state a claim. On September 7, Plaintiff filed his motion seeking leave to file the SAC.
Two days later, Plaintiff responded to the Motion to Dismiss, contending (1) that it was untimely
and (2) that Counts IV and V stated claims for relief.
B. The Two Complaints, and Counts IV and V
Both the FAC and the SAC arise from similar factual allegations. Both allege that Plaintiff
was a staff surgeon for the Veterans’ Administration, (“the VA”), that he was suspended in May
of 2012, and that he was ultimately removed from his position in December 2014. Plaintiff
retained Bruce, then a practicing attorney, to represent him during this process and to challenge
the decision removing him from his position. However, after Plaintiff’s removal in December
2014 Bruce allegedly did not file a timely challenge with either the Office of Special Counsel,
(“the OSC”), or the Merit Systems Protection Board, (“the MSPB”).
The FAC asserts five claims. Counts I and II assert malpractice claims based on Bruce’s
failure to timely seek relief from either the OSC or the MSPB. Count III asserts a claim for breach
of contract. These three claims were previously asserted in Plaintiff’s original Complaint. Count
IV alleges a claim for intentional infliction of emotional distress, (“IIED”), based on these same
allegations about Bruce’s failure to appeal the adverse decision to either the OSC or the MSPB.
This claim was also in Plaintiff’s original Complaint. The FAC added Count V, which asserts a
claim for defamation based on statements Bruce included in written filings in this case before he
retained counsel.
The SAC provides more details regarding Plaintiff’s employment, suspension, and
removal, Bruce’s involvement in those proceedings, and Bruce’s failure to pursue further review
of the removal. It also adds allegations that Bruce filed an EEOC case without Plaintiff’s
permission. However, the SAC asserts seven claims for relief; in so doing, it asserts claims that
were not included in the FAC and omits some claims that were asserted in the FAC. The seven
claims are:
Count I Malpractice, for failing to file a whistleblower complaint based on events
that occurred in 2010,
Count II Malpractice, for failing to file a whistleblower complaint based on events
that occurred in 2012,
Count III Malpractice, for failing to secure a copy of a transcript from an August 2013
hearing before the Disciplinary Advisor Board, (“the DAB”),
Count IV Malpractice, for failing to seek review of the removal decision before the
MSPB,
Count V Breach of Contract,
Count VI IIED, and
Count VIII Defamation.
II. DISCUSSION
Bruce seeks dismissal of the IIED and defamation claims, and Plaintiff seeks leave to file
the SAC. Both parties oppose the other’s motions. The issues are interrelated; the Court deems it
appropriate to begin by discussing Plaintiff’s motion and then discussing the viability of the IIED
and defamation claims.
A. Plaintiff’s Motion to File Second Amended Complaint
Analyzing Plaintiff’s motion requires the Court to ascertain the basis for his request. In
seeking leave to file the SAC, (see Doc. 141, p. 1), Plaintiff relies on Rule 15(a)(1)(B). That rule
permits a party to amend a pleading once as a matter of course “21 days after service of a
responsive pleading or 21 days after service of a [motion to dismiss], whichever is earlier.” FED.
R. CIV. P. 15(a)(1)(B). The purpose for allowing this amendment is to permit a party to rectify
issues raised about the complaint in the responsive pleading (i.e., the answer) or the motion to
dismiss. The Court concludes that Rule 15(a)(1)(B) does not justify granting Plaintiff’s motion.
Bruce filed his Answer to the FAC on August 12 – and Plaintiff sought leave to file the
SAC more than twenty-one days after that date. Thus, Plaintiff cannot rely on Rule 15(a)(1)(B)
as grounds to permit him to rectify deficiencies identified by Bruce’s Answer. Plaintiff did seek
leave to amend within twenty-one days after Bruce sought dismissal of the IIED and defamation
claims, but to the extent that Plaintiff intends the SAC to rectify errors identified in the Motion to
Dismiss, the SAC goes further by advancing completely new and unrelated claims. Specifically,
the new claims based on Bruce’s failures to file whistleblower complaints (Counts I and II in the
SAC) or to secure a copy of the transcript from the DAB hearing (Count III in the SAC) have
nothing to do with the IIED or defamation claims, so the attempt to add these new claims cannot
be justified by Bruce’s filing of the Motion to Dismiss. Rule 15(b)(1)(B) might permit Plaintiff’s
proposed amendments to the IIED and defamation claims, but as will be discussed below in Part
II(C)(1), the SAC’s allegations do not alter the Court’s conclusion that those two claims must be
dismissed.1
In his Reply Suggestions, (Doc. 149, pp. 8-9), Plaintiff seems to also justify his request to
file the SAC by relying on Rule 15(a)(2), which directs that the Court “should freely give leave”
to amend the pleadings “when justice so requires.” However, “[a] district court may appropriately
deny leave to amend where there are compelling reasons such as undue delay, bad faith, or dilatory
motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice
to the non-moving party, or futility of the amendment.” Moses.com Sec., Inc. v. Comprehensive
1 As will be explained, a possible resolution of Plaintiff’s argument that the Motion to Dismiss is untimely is to treat
it as a Motion for Judgment on the Pleadings under Rule 12(c) – and Rule 15(b)(1)(B) does not apply when a Rule
12(c) motion is filed.
Software Sys., Inc., 406 F.3d 1053, 1065 (8th Cir. 2005) (quotations omitted); see also
Enervations, Inc. v. Minnesota Mining & Mfg. Co., 380 F.3d 1066, 1068-69 (8th Cir. 2004). The
Scheduling Order’s deadline of June 9, 2021, for amending the pleadings further establishes that
Plaintiff’s diligence is an important issue to be considered. Rule 16(b)(4) states that good cause is
required to amend a Scheduling Order, and the Court of Appeals has emphasized that there is
rarely good cause if the party requesting the scheduling change has not been diligent. E.g.,
Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716-17 (8th Cir. 2008); Bradford v. DANA Corp.,
249 F.3d 807, 809 (8th Cir. 2001).
Plaintiff contends that he did not know the full extent of Bruce’s failures until he received
certain discovery responses in September 2021, so the Court should allow him more time to amend
his pleadings. Setting aside the fact that this argument was not presented until Plaintiff’s Reply
Suggestions, the Court is not persuaded. This suit started with Plaintiff’s allegations about Bruce’s
failure to contest Plaintiff’s removal from his position in December 2014. He seeks to add claims
about Bruce’s failure to file unrelated claims on Plaintiff’s behalf based on events that occurred
before then – in 2010 and 2012. The Court finds it hard to believe that Plaintiff did not know until
September 2021 that Bruce failed to file the whistleblower claims in 2010 and 2012. With respect
to Count III’s allegation that Bruce was negligent for failing to obtain a transcript, this “claim”
appears to be a specific piece of evidence establishing the claims asserted in the FAC, and thus
serves no purpose as an independent claim.2 For these reasons, the Court finds that there is not
good cause under Rule 15(a) to permit the SAC to be filed.
2 Similarly, if Plaintiff is arguing that Bruce should have challenged Plaintiff’s removal from his position by arguing
that the removal was retaliation for events in in 2010 and 2012, this would also be a specific fact related to Plaintiff’s
already-asserted malpractice claims and has no function as an independent claim. Having alleged that Bruce failed to
pursue further action in December 2014, there is no need to assert, as a separate claim, each independent action Bruce
failed to take as part of his failure to appeal the removal.
B. Timeliness of the Motion to Dismiss
Before addressing the legal viability of the IEED and defamation claims, the Court must
address Plaintiff’s argument that Bruce’s Motion to Dismiss is untimely. Plaintiff relies on Rule
12(b), which lists defenses that may asserted in the responsive pleading or by motion; among them
is the defense that one or more claims fails to state a claim for which relief can be granted. Rule
12(b) then provides that “[a] motion asserting any of these defenses must be made before pleading
if a responsive pleading is allowed,” which suggests that Bruce’s filing of an Answer deprived him
of the opportunity to rely on Rule 12(b)(6) to challenge the legal viability of the IIED and
defamation claims. Indeed, the Eighth Circuit has recently observed that “[a] leading treatise has
opined that ‘[a] strict interpretation of the timing provision's language’ means that a district court
must deny a motion to dismiss . . . after the defendant files an answer.” Kaliannan v. Liang, 2
F.4th 727, 735 (8th Cir. 2021) (citing 5C Miller, Kane & Spencer, FEDERAL PRACTICE &
PROCEDURE CIVIL § 1361). However, the Eighth Circuit did not adopt this strict interpretation,
and the same treatise it cited goes on to say (in the very next sentence) that “federal courts have
allowed untimely motions if the defense has been previously included in the answer.” While Bruce
filed an Answer before filing the Motion to Dismiss, the Answer included (as an affirmative
defense) an assertion that the FAC failed to state a claim for which relief could be granted. (Doc.
123, ¶ 51.)
Regardless, the Eighth Circuit has previously instructed what should happen when a motion
to dismiss is filed after the Answer:
Technically . . . a Rule 12(b)(6) motion cannot be filed after an answer has been
submitted. See Fed.R.Civ.P. 12(b). But since Rule 12(h)(2) provides that “[a]
defense of failure to state a claim upon which relief can be granted” may be
advanced in a motion for judgment on the pleadings under Rule 12(c), we will treat
the [motion to dismiss] as if it had been styled a 12(c) motion. This distinction is
purely formal, because we review this 12(c) motion under the standard that governs
12(b)(6) motions.
Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990) (citations omitted).3
Thus, because the same standard governs motions filed under Rule 12(b)(6) and Rule 12(c),
and because a Rule 12(c) motion can be filed after an Answer is filed so long as the motion is filed
early enough that it does not delay the trial, the Court can consider Bruce’s arguments.
C. Bruce’s Motion
As indicated above, a motion for judgment on the pleadings is evaluated under the same
standard that is used to consider a motion to dismiss for failure to state a claim under Rule 12(b)(6).
E.g., Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012). Under Rule 12(b)(6), the
Court “must accept as true all of the complaint=s factual allegations and view them in the light most
favorable to the Plaintiff[ ].” Stodghill v. Wellston School Dist., 512 F.3d 472, 476 (8th Cir. 2008);
see also Alexander v. Hedback, 718 F.3d 762, 765 (8th Cir. 2013).
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face. A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a probability requirement, but it
asks for more than a sheer possibility that a defendant has acted unlawfully. Where
a complaint pleads facts that are merely consistent with a defendant's liability, it
stops short of the line between possibility and plausibility of entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations and citations omitted). A claim is facially
plausible if it allows the reasonable inference that the defendant is liable for the conduct alleged.
E.g., Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Horras v. American Capital
Strategies, Ltd., 729 F.3d 798, 801 (8th Cir. 2013). In making this evaluation, the Court is limited
3 It is worth noting that Rule 12(c) specifies that a motion for judgment on the pleadings must be filed “[a]fter the
pleadings are closed – but early enough not to delay trial.” The Court further holds that Bruce’s motion is timely
under this standard.
to a review of the Complaint, exhibits attached to the Complaint, and materials necessarily
embraced by the Complaint. E.g., Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir.
2003). The Court can also consider matters that are amenable to judicial notice. E.g., Podraza v.
Whiting, 790 F.3d 828, 833 (8th Cir. 2015).
1. Count IV – IIED
“To state a claim for intentional infliction of emotional distress, a plaintiff must plead
extreme and outrageous conduct by a defendant who intentionally or recklessly causes severe
emotional distress that results in bodily harm.” Gibson v. Brewer, 952 S.W.2d 239, 249 (Mo.
1997). In addition, “[t]he conduct must be intended only to cause extreme emotional distress to
the victim.” Id. (quotation omitted; emphasis supplied). Bruce contends that several of these
elements cannot be satisfied. The Court agrees that Plaintiff has not described extreme and
outrageous conduct on Bruce’s part, making it unnecessary to consider the other elements
(including the requirement that Plaintiff allege facts demonstrating that Bruce’s sole intent was to
cause Plaintiff extreme emotional distress).
To support a claim for IIED, the challenged “conduct must have been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.” Id. (quotation omitted).
Under Missouri law, it is the court’s role to determine “whether the defendant’s conduct may be
reasonably regarded as so extreme and outrageous as to permit recovery [but] Missouri case law
reveals very few factual scenarios sufficient to support a claim for intentional infliction of
emotional distress. . . . [I]t is a rare occurrence when a defendant’s conduct is sufficiently extreme
and outrageous to warrant recovery.” Gillis v. Principia Corp., 832 F.3d 865, 874-75 (8th Cir.
2016) (cleaned up).
Plaintiff argues that Bruce’s conduct was outrageous in that he was paid $60,000 to file
Plaintiff’s appeal and did not do so despite being warned that the limitation period was expiring.
(Doc. 142-1, p. 2.) The Court disagrees; while these assertions might support a breach of contract
or malpractice claim, the conduct described is not so atrocious or contrary to the norms of civilized
society that an IIED claim can be maintained. In making this decision, the Court notes examples
of much more severe conduct that has been held insufficient. For instance, in Gillis the Eighth
Circuit surveyed Missouri cases and observed that the following conduct would not support an
IIED claim: (1) suffering insults, indignities, and threats, (2) being ridiculed and threatened with
termination, and (3) being harassed and threatened with termination. Gillis, 832 F.3d at 875 (citing
cases). In Gibson v. Hummel, 688 S.W.2d 4, 7 (Mo. Ct. App. 1985), the Missouri Court of Appeals
also surveyed Missouri cases and observed that conduct insufficient to support an IIED claim
included: (1) using a false statement to gain access to someone’s house and (2) attempting to settle
a lawsuit for wrongful death while the other party was in mourning over the death. Gibson itself
involved a claim that the plaintiff’s employer required her to take a polygraph and then fired her
based on the results; that too was held insufficient to support an IIED claim.
The Court’s conclusion would not be altered by the SAC. The SAC provides more details
about Bruce’s failure to seek review of Plaintiff’s removal and the unauthorized EEOC filing,
(Doc. 11, p. 16, ¶ 97(c)), but it does not demonstrate anything outrageous. This is not to say that
breach of contract and malpractice are not actionable wrongs; however, not everything that is
actionable is outrageous enough to give rise to an IIED claim. Neither the FAC or the SAC
describe conduct that is so outrageous and extreme that it goes “beyond all bounds of decency” or
can be “regarded as atrocious, and utterly intolerable in a civilized community.”
As a matter of law, Plaintiff’s allegations that Bruce breached a contract and committed
malpractice are insufficient to support a claim for IIED. Accordingly, Count IV must be dismissed.
2. Count V – Defamation
Bruce seeks dismissal of the defamation claim, arguing that his statements made in filings
in this case are privileged and cannot form the basis for a defamation claim. Plaintiff argues that
the privilege does not apply because the statements in question were “gratuitous and irrelevant” to
the litigation. As discussed below, the Court agrees with Bruce.
“Missouri law provides ‘that statements made during proceedings of a judicial or quasi-
judicial body are absolutely privileged if they are relevant to the issues before the body.’” Wunsch
v. Sun Life Assur. Co. of Canada, 92 S.W.3d 146, 156 (Mo. Ct. App. 2002) (quoting Li v. Metro.
Life Ins. Co., 955 S.W.2d 799, 803 (Mo. Ct. App. 1997) and citing Henry v. Halliburton, 690
S.W.2d 775, 780 (Mo. 1985) (en banc)). “Statements that are absolutely privileged are not
actionable as a matter of law.” Riley v. Riley, 340 S.W.3d 334, 338 (Mo. Ct. App. 2011).
Plaintiff does not contest that the statements at issue were made in documents filed with
the Court in this lawsuit. Instead, he argues that the statements in question are not privileged
because they were gratuitous, irrelevant, and designed to impugn Plaintiff. (Doc. 142-1, pp. 5-7.)
The Court disagrees.
The FAC (and the SAC) identify the following statements as the basis for the defamation
claim:
1. In opposing Plaintiff’s attempt to file an Amended Complaint that asserted claims against
Bruce’s wife (who was not a lawyer and did not enter a contract with Plaintiff), Bruce
argued that Plaintiff was “attempting to harass Defendant and his wife to extort a
settlement.” (Doc. 55, p. 6.)
2. The parties were unable to agree on a jointly proposed Scheduling Order, so they each
submitted one. In Bruce’s Proposed Scheduling Order, under the heading for Protective
Orders, Bruce “request[ed] a telephone conference with the Court and a protective order to
address the issue of Plaintiff’s continuing personal, slanderous and irrelevant attacks
against Defendant . . . based on false assumptions and speculation and conjecture.” (Doc.
60, ¶ 8(b).)
3. As stated earlier, Bruce sought, and Plaintiff opposed, a six-day extension of the deadline
to seek leave to amend the pleadings. Plaintiff opposed the extension, claiming that he
would be prejudiced. In his Reply Suggestions, Bruce characterized Plaintiff’s assertion
of prejudice as “ludicrous.” (Doc. 75, p. 1.)
4. In that same document, Bruce described Plaintiff’s opposition as “a continuation of
Plaintiff’s pattern of knee-jerk opposition to anything that Defendant proposes . . . .” (Doc.
75, p. 2.)4
“Missouri courts have not imposed a strict relevancy test in determining whether
statements made in the judicial or quasi-judicial process are entitled to absolute immunity, rather,
courts provide for absolute immunity if the statement made during the course of a proceeding has
some relation to the proceeding.” Li v. Metro. Life Ins. Co., 955 S.W.2d 799, 804 (Mo. Ct. App.
1997); see also Riley, 340 S.W.3d at 339. All the comments Plaintiff relies on have “some relation
to” the issues then pending before the Court and are therefore privileged.
III. CONCLUSION
For the reasons set forth above, Plaintiff’s Motion for Leave to File Second Amended
Complaint, (Doc. 142), is DENIED, and the First Amended Complaint, (Doc. 92), remains
4 The Court observes that Plaintiff has opposed several extensions that would ordinarily be regarded as routine.
Plaintiff’s operative pleading. Bruce’s Motion to Dismiss, (Doc. 133), is GRANTED, and
Defendant Jeffrey Bruce is granted judgment on Counts IV and V.
IT IS SO ORDERED.
/s/ Beth Phillips
BETH PHILLIPS, CHIEF JUDGE
DATE: October 13, 2021 UNITED STATES DISTRICT COURT