                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                   ___________

                                No. 04-4073/05-1077
                                   ___________

Alternate Fuels, Inc., and
Larry W. Pommier,                      *
                                       *
       Appellees/Cross-Appellants,     *
                                       * Appeal from the United States
       v.                              * District Court for the
                                       * Western District of Missouri.
Tom Cabanas, officer and employee      *
of the Missouri Department of          *
Natural Resources,                     *
                                       *
       Appellant/Cross-Appellee,       *
                                       *
Richard Hall, officer and employee     *
of the Missouri Department of          *
Natural Resources,                     *
                                       *
       Cross-Appellee.                 *
                                  ___________

                              Submitted: October 14, 2005
                                 Filed: January 23, 2006
                                  ___________

Before LOKEN, Chief Judge, LAY, and BENTON, Circuit Judges.
                              ___________

BENTON, Circuit Judge.

     Alternate Fuels, Inc. (AFI) and its president, Larry W. Pommier, sued two
employees of the Missouri Department of Natural Resources (DNR), Thomas M.
Cabanas and Richard A. Hall, for denial of equal protection under 42 U.S.C. § 1983,
First Amendment retaliation, and tortious interference with contract. The Magistrate
Judge1 granted summary judgment to Hall on all claims, and to Cabanas on all but a
tortious interference claim.2 Cabanas appeals, arguing that he is shielded from
liability under Missouri's absolute privilege doctrine. AFI and Pommier attempt to
cross-appeal, seeking complete reversal of the summary judgment. This court affirms
the denial of summary judgment to Cabanas, and dismisses the cross-appeal for lack
of jurisdiction.



      1
      The Honorable John T. Maughmer, Chief United States Magistrate Judge for
the Western District of Missouri, to whom the case was referred for decision by
consent of the parties pursuant to 28 U.S.C. § 636(c).
      2
        After the magistrate's order, only a state-law claim for tortious interference
remains. There is no diversity of citizenship between the parties, because the
defendants were sued only in their official capacity, making the suit one against the
state. See Kentucky v. Graham, 473 U.S. 159, 166 (1985); Artis v. Francis Howell
N. Band Booster Ass'n, Inc., 161 F.3d 1178, 1181 (8th Cir. 1998). A state has no
citizenship for purposes of establishing diversity. Moor v. County of Alameda, 411
U.S. 693, 717 (1973).

       The magistrate judge apparently exercised supplemental jurisdiction over this
claim under 28 U.S.C. § 1367. See Lindsey v. Dillard's, Inc., 306 F.3d 596, 599 (8th
Cir. 2002). Neither party asserts that this court or the magistrate judge lacks
jurisdiction over the state-law claim. This court need not decide sua sponte whether
the magistrate judge abused its discretion in exercising supplemental jurisdiction over
the state-law claim. See, e.g., Voelker v. Porsche Cars N. Am., Inc., 353 F.3d 516,
522 (7th Cir. 2003); Lucero v. Trosch, 121 F.3d 591, 598 (11th Cir. 1997); Acri v.
Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997) (en banc); Doe v. District of
Columbia, 93 F.3d 861, 871 (D.C. Cir. 1996). It is enough to determine, as we do,
that the federal claims are not so devoid of merit as to vitiate supplemental jurisdiction
over the state-law claim in this case. See Hatch v. Town of Middletown, 311 F.3d 83,
85 n.2 (1st Cir. 2002), citing United Int'l Holdings, Inc. V. Wharf Holdings Ltd., 210
F.3d 1207, 1219-20 (10th Cir. 2000), aff'd, 532 U.S. 588 (2001).
                                           -2-
                                         I.

       The Land Reclamation Commission, as a sub-component of the DNR, oversees
compliance with the state's surface coal mining laws. See MO. REV. STAT. §§
444.800 - .970. DNR employs inspectors of active coal mines who may issue notices
of statutory violations (NOVs) and commence enforcement actions. Mine inspectors
are supervised by Richard Hall, who is supervised by Section Chief Tom Cabanas.

       AFI operates a surface coal-mining and reclamation project at the "Blue Mound
Mine" in southwestern Missouri. AFI is subject to regulation and inspection by DNR
officials. Since 1996, AFI's president, Larry Pommier, and other AFI employees have
complained about enforcement actions by Hall and Cabanas at the Blue Mound Mine.
Specifically, Pommier told Cabanas's supervisor that Cabanas engaged in
inappropriate sexual conduct during a mine inspection in 1996. Thereafter, AFI
representatives regularly spoke out at Commission meetings that Hall and Cabanas
were overzealous, ordering numerous NOVs at the Blue Mound Mine. Pommier also
notified the Commission that Hall and Cabanas made compliance demands that AFI
could not realistically meet.

      In April 1999, AFI began negotiating to sell the Blue Mound Mine to Midwest
Coal, which was interested in AFI's permits, coal mining leases, coal supply
agreements, and mining equipment. While the companies were negotiating, Cabanas
informed Michael King, president of Midwest Coal, of a water-quality problem at the
Blue Mound Mine. A "handshake agreement" reached in December 1999 later fell
through.

       In early 2000, Midwest Coal inquired about purchasing coal fines (microscopic
coal particles) from AFI's slurry pit. After King and Pommier reached another initial
agreement, Cabanas told King – viewing the facts favorably to AFI and Pommier –
that any sale of slurry from the Mine would require a permit change, which would

                                         -3-
never happen as long as Cabanas worked for DNR. Midwest Coal did not proceed
with the sale.

       AFI and Pommier sued Hall and Cabanas, alleging denial of equal protection
and First Amendment retaliation. They also brought pendent state-law claims for
tortious interference with contract, asserting Hall and Cabanas intentionally interfered
with the sales to Midwest Coal.

       After discovery, Hall and Cabanas moved for summary judgment. The
magistrate judge granted their motions on the constitutional claims. As to the state-
law tortious interference claims, the magistrate judge granted Hall's motion, but
questioned whether Cabanas would be justified in saying, "a permit change will never
happen as long as I work at DNR." Cabanas appeals the magistrate judge's denial of
summary judgment on AFI's tortious interference claim, arguing he made the
contested statement in the course of his duties as a state mine regulator and in
anticipation of administrative proceedings.

                                           II.

      As an initial matter, this court must consider its jurisdiction of the interlocutory
appeal. See Ward v. Moore, 414 F.3d 968, 970 (8th Cir. 2005). The denial of
summary judgment is not generally a final order subject to immediate appeal. See 28
U.S.C. § 1291; Herts v. Smith, 345 F.3d 581, 585 (8th Cir. 2003). In this case,
however, this court has jurisdiction under the collateral order doctrine. Under this
doctrine, an interlocutory appeal lies from a denial of absolute immunity. See
Mitchell v. Forsyth, 472 U.S. 511, 525 (1985) (a denial of absolute immunity is
appealable before final judgment because "the essence of absolute immunity is its
possessor's entitlement not to have to answer for his conduct in a civil damages
action"); Brown v. Griesenauer, 970 F.2d 431, 434 (8th Cir. 1992); State ex rel. Bd.
of Trustees v. Russell, 843 S.W.2d 353, 355 (Mo. banc 1992) (a trial court's denial of

                                           -4-
immunity defense in Missouri is subject to immediate writ of prohibition or
mandamus). An interlocutory appeal also lies from a denial of absolute privilege. See
Boice v. Unisys Corp., 50 F.3d 1145, 1148-49 (2d Cir. 1995) ("immunity and
privilege serve the same purpose: to encourage the possessor to execute his
responsibilities fully, without fear of being sued later for civil damages"); Smith v.
McDonald, 737 F.2d 427, 428 (4th Cir. 1984), aff'd, 472 U.S. 479 (1985).

                                          III.

     This court reviews de novo a district court's denial of immunity. See White v.
Holmes, 21 F.3d 277, 279 (8th Cir. 1994).

        Tortious interference with contract occurs when the defendant, without
justification, causes damage by intentionally interfering with a business relationship
of which the defendant has knowledge. See Chandler v. Allen, 108 S.W.3d 756, 760
(Mo. App. 2003). Justification exists if the defendant has a legal right to interfere
with the contract (or an economic interest in the outcome of the business relationship),
so long as the defendant does not employ improper means in causing the interference.
See Kruse Concepts, Inc. v. Shelter Mut. Ins., 16 S.W.3d 734, 737-38 (Mo. App.
2000). The plaintiff bears the burden of proving that the defendant acted without
justification. Id.

       In this case, the magistrate judge found that AFI and Pommier sufficiently
established one claim of tortious interference against Cabanas, based on his alleged
"never happen" statement. In denying summary judgment to Cabanas, the magistrate
judge focused on the lack of justification for the comment, relying on the deposition
testimony of Cabanas's supervisor. Cabanas's supervisor testified that such a
subjective statement by Cabanas would be inappropriate, because it was not within
Cabanas's discretion to decide whether to allow a permit transfer. Moreover, the
supervisor testified that the Land Reclamation Commission supported the proposed

                                          -5-
contract between AFI and Midwest Coal, and that he anticipated no problems with the
necessary permit transfer.

       On appeal, Cabanas asserts an absolute privilege. See Heart of Am. Grain
Inspection Serv., Inc. v. Mo. Dep't of Agric., 123 F.3d 1098, 1105-06 (8th Cir. 1997)
(applying the absolute privilege defense to a claim of tortious interference with
contract under Missouri law). Absolute privilege forecloses liability for even
intentionally false statements. Laun v. Union Elec. Co., 166 S.W.2d 1065, 1068-69
(Mo. 1943). It is, however, a limited defense under Missouri law. See id. Absolute
privilege applies only where it is in the public interest that the defendant speak freely,
without fear of litigation for false statements. Id. (indicating an absolute privilege
applies to judicial officers, attorneys, parties, witnesses and jurors in judicial
proceedings, legislators during legislative proceedings, and certain executive
officials). This court has recognized that statements by public officials performing
their official duties are absolutely privileged from state-law tort claims, including
tortious interference. See Heart of Am., 123 F.3d at 1105-06. The circumstances,
rather than the defendant's title, afford the privilege to speak freely. Laun, 166
S.W.2d at 1069.

       Cabanas argues that he was acting in the scope of his official duties as a state
regulator in telling King that he would not approve a permit transfer upon the sale of
AFI's coal fines to Midwest Coal. Cabanas's expansive view of "official duties" is
refuted by his supervisor's testimony that Cabanas did not have the authority to make
decisions regarding permit transfers, and that the Commission supported the contract
and likely would have approved the AFI transfer. This court finds that Cabanas was
not acting within the scope of his official duties and is not entitled on this basis to an
absolute privilege for making a false statement.

     Cabanas also argues that the statement was made in anticipation of
administrative proceedings. Missouri recognizes an absolute privilege for

                                           -6-
communications related to judicial and quasi-judicial proceedings. See, e.g., Barge
v. Ransom, 30 S.W.3d 889, 891 (Mo. App. 2000); Li v. Metro. Life Ins. Co., 955
S.W.2d 799, 803 (Mo. App. 1997) ("statements made during proceedings of a judicial
or quasi-judicial body are absolutely privileged if they are relevant to the issues before
the body"). Cabanas argues that this privilege also includes statements made in
anticipation of administrative proceedings. As the magistrate judge found, however,
no administrative proceeding was anticipated when Cabanas told King he would not
approve the permit transfer. Any administrative proceeding about a permit transfer
at the Blue Mound Mine would occur only if Midwest purchased AFI's coal fines and
the permit was denied. This court finds that administrative proceedings were not
anticipated at the time Cabanas made the statement, and thus, he is not entitled to the
benefit of the absolute privilege. See Murphy v. A.A. Mathews, 841 S.W.2d 671, 677
(Mo. banc 1992) ("immunity is granted in very limited situations only when the
underlying public policy considerations so demand"); Barge, 30 S.W.3d at 891
("Missouri courts generally decline to extend absolute privilege to proceedings not
fitting within the legislative, executive, or judicial categories"), citing Hohlt v.
Complete Health Care, Inc., 936 S.W.2d 223, 224 (Mo. App. 1996).


                                           IV.


       AFI and Pommier cross-appeal the magistrate judge's grant of summary
judgment to Cabanas and Hall. After oral argument, Cabanas and Hall moved to
dismiss the cross-appeal for lack of jurisdiction. A grant of partial summary judgment
is not immediately appealable. See Consul Gen. of the Rep. of Indonesia v. Bill's
Rental's, Inc., 251 F.3d 718, 720 (8th Cir. 2001). This court has pendent jurisdiction
to consider issues that are "closely related" or "inextricably intertwined" with an issue
properly on appeal. See Neb. Beef, Ltd. v. Greening, 398 F.3d 1080, 1083 & n.2 (8th
Cir. 2005), petition for cert. filed, 73 U.S.L.W. 3719 (U.S. May 31, 2005) (No. 04-
1611); Murphy v. State of Arkansas, 127 F.3d 750, 453-54 (8th Cir. 1997).

                                           -7-
       The issues presented in AFI and Pommier's cross-appeal do not meet this
standard. The equal protection and First Amendment retaliation claims that AFI and
Pommier seek to appeal – focusing on overly zealous enforcement and a course of
retaliation – present issues separate and distinct from those in Cabanas's appeal. See
McCoy v. City of Monticello, 342 F.3d 842, 849 (8th Cir. 2003). AFI and Pommier
assert that Cabanas's "never happen" tortious-interference claim is inextricably
intertwined with their cross-appeal because all the claims arose during the course of
retaliation. In order to have meaningful review of the appeal, however, it is not
necessary to address the complete course of retaliation alleged.


       Similarly, AFI and Pommier's appeal of the tortious interference claim
regarding a water-quality problem at the Blue Mound Mine – which concerns a
different contract – presents separate and distinct facts than those in Cabanas's appeal.
See id. Finally, resolution of the cross-appeal is not necessary for "meaningful
review" of Cabanas's appeal. See Kincade v. City of Blue Springs, 64 F.3d 389, 394-
95 (8th Cir. 1995), citing Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th Cir.
1995). This court lacks jurisdiction of the cross-appeal.3


                                           V.


     The magistrate judge's denial of summary judgment is affirmed, and the case
remanded. The cross-appeal is dismissed for lack of jurisdiction.
                        ______________________________



      3
        After oral argument, AFI and Pommier moved to stay this case pending the
Supreme Court's decision in Moore v. Hartman, 388 F.3d 871 (D.C. Cir. 2004), cert.
granted, 125 S. Ct. 2977 (U.S. June 27, 2005) (No. 04-1495). As this court lacks
jurisdiction over the cross-appeal, the motion is denied.
                                           -8-
