                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-1907
                                   ___________

Joseph Hamilton,                        *
                                        *
            Appellant,                  * Appeal from the United States
                                        * District Court for the Eastern
      v.                                * District of Missouri.
                                        *
Gregory Palm; Toni Palm,                *       [UNPUBLISHED]
                                        *
            Appellees.                  *
                                   ___________

                             Submitted: November 22, 2011
                                Filed: December 14, 2011
                                 ___________

Before LOKEN, BYE, and SHEPHERD, Circuit Judges.
                            ___________

PER CURIAM.

       In this diversity damage action, Joseph Hamilton sued Gregory and Toni Palm
for injuries incurred when Hamilton fell while performing roofing work on the Palms’
property. The critical issue under Missouri law is whether Hamilton was working as
the Palms’ employee, as he alleged, or as an independent contractor. The district
court initially dismissed the complaint, concluding Hamilton had not plausibly
alleged employee status. We reversed and remanded for further proceedings,
concluding the “complaint raised plausible inferences of both employee and
independent contractor status” that should not be determined by a motion to dismiss.
Hamilton v. Palm, 621 F.3d 816, 819 (8th Cir. 2010). On remand, after full
discovery, the district court1 granted the Palms summary judgment, concluding “that
the undisputed facts establish that [Hamilton] was not an employee of the Palms.”
Hamilton appeals, arguing that genuine issues of material fact preclude summary
judgment on this issue.

       As the district court recognized, in determining whether a person acted as an
employee or as an independent contractor, Missouri courts apply the multi-factor
common law test set forth in Restatement (Second) of Agency § 220, under which
“the critical right-to-control issue is affected by many factors ‘none of which is itself
controlling.’” Hamilton, 621 F.3d at 818, citing Howard v. Winebrenner, 499 S.W.2d
389, 395 (Mo. 1973). Whether that ultimate issue is one of fact or of law has
engendered considerable debate in various contexts. See Ernster v. Luxco, Inc., 596
F.3d 1000, 1004-07 (8th Cir. 2010). Missouri courts quite clearly consider it an issue
of fact, but one that is often suitable for summary judgment resolution. See Trinity
Lutheran Church v. Lipps, 68 S.W.3d 552, 559 (Mo. App. 2001). This is consistent
with a Restatement comment that, if its multiple relevant factors provide a clear
inference that there was, or was not, an employer-employee relationship, the issue is
properly determined by the court. Restatement § 220 cmt. c.

       Here, the district court applied the undisputed facts to the relevant Restatement
factors and concluded that summary judgment was appropriate. Having reviewed this
determination de novo, we agree for the reasons stated in the court’s thorough
Memorandum Opinion. Accordingly, we affirm. See 8th Cir. R. 47B.
                         ______________________________




      1
       The Honorable Mary Ann L. Medler, United States Magistrate Judge for the
Eastern District of Missouri, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
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