                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 06-2319
                                  ___________

Gerhardt List; Clara A. List, Guardian *
of Theresa E. List; Peggy Hines;       *
                                       *
             Plaintiffs,               *
                                       *
Manuel Machado, Jr.,                   *
                                       *
             Appellant,                * Appeal from the United States
                                       * District Court for the
      v.                               * Western District of Missouri.
                                       *
County of Carroll; Nelson Heil,        * [UNPUBLISHED]
Presiding Commissioner; Jim Stewart, *
Commissioner, District #1; David       *
Martin, Commissioner, District #2;     *
Peggy McGaugh, County Clerk, County *
of Carroll; Associated Electric        *
Cooperative, Inc.,                     *
                                       *
             Appellees.                *
                                  ___________

                            Submitted: May 30, 2007
                               Filed: June 6, 2007
                                ___________

Before SMITH, GRUENDER, and SHEPHERD, Circuit Judges.
                           ___________

PER CURIAM.
       Manuel Machado appeals the district court’s dismissal of the complaint he and
others filed against the County of Carroll and four County officials (the County
defendants) and the Associated Electric Cooperative, Inc. (AECI), alleging violations
of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132; Section
504 of the Rehabilitation Act (RA), 29 U.S.C. § 794; the Missouri Sunshine Law
(MSL), Mo. Rev. Stat. § 610.010-.035; the Missouri Human Rights Act (MHRA), Mo.
Rev. Stat. § 213.010-.137; and “civil rights and due process” (based upon alleged
violations of the MSL). The district court dismissed all of the claims for lack of
subject matter jurisdiction, which in effect was a dismissal without prejudice. Cf.
Kahn v. Kahn, 21 F.3d 859, 862 (8th Cir. 1994) (based upon determination that
district court lacked subject matter jurisdiction, no opinion was expressed as to merits
of claims or whether action could be brought in state court; case remanded for
dismissal without prejudice). For reversal, Machado argues that the district court
erred in concluding it lacked subject matter jurisdiction over the federal claims, erred
in dismissing the state law claims, and abused its discretion in denying a motion to
amend the complaint.

       Upon de novo review of the district court’s dismissal for lack of subject matter
jurisdiction, see Hansen v. United States, 248 F.3d 761, 763 (8th Cir. 2001) (standard
of review), we hold the district court erred in concluding that, under Randolph v.
Rogers, 170 F.3d 850 (8th Cir. 1999), it lacked subject matter jurisdiction over
plaintiffs’ ADA, RA, and civil rights and due process claims. In Randolph, id. at 858-
59, this court did not make a finding of lack of subject matter jurisdiction, but rather
held that state law was not dispositive of the federal claims.

       In the present case, we nevertheless affirm the dismissal of the federal claims,
but for other reasons and with modifications. See Mead v. Intermec Techs. Corp., 271
F.3d 715, 716 (8th Cir. 2001) (affirmance may be on any basis supported by record).




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       To the extent the ADA and RA claims against the County defendants were
based upon denial of access to “closed sessions,” we hold that plaintiffs failed to state
a claim upon which relief may be granted. Cf. Int’l Ass’n of Fire Fighters v. City of
Harrisonville, No. 06-0301-CV-W-ODS, 2006 WL 2062098 (W. D. Mo. June 19,
2006) (unpublished order) (dismissing for failure to state claim plaintiffs’ claim that
exclusion from city meetings was viewpoint discrimination: where plaintiffs alleged
that meetings were closed, plaintiffs were not treated differently from others because
of viewpoint; plaintiffs’ only recourse was with state law); see also Layton v. Elder,
143 F.3d 469, 472 (8th Cir. 1998) (to establish violation under Title II of ADA or
section 504 of RA, plaintiff must show (1) he is qualified individual with disability;
(2) he was excluded from participation in or denied benefit of public entity’s services,
programs, or activities, or was otherwise discriminated against; and (3) such
exclusion, denial, or discrimination was because of disability). The dismissal of these
claims is affirmed, but modified to be with prejudice.

       To the extent the ADA and RA claims against the County defendants were
based upon allegations of disability discrimination in connection with “public
hearings,” the viability of such claims, as well as the “civil rights and due process”
claim against all defendants, depends (at a minimum) on whether, under the MSL, the
hearings and notices in question had to be made available to the public. That
uncertain determination is within the exclusive jurisdiction of the “circuit court for the
county in which the public governmental body has its principal place of business,”
Mo. Rev. Stat. § 610.027.1. We therefore conclude that the federal courts should
abstain from addressing these claims. See R.R. Comm’n of Tex. v. Pullman Co., 312
U.S. 496, 501 (1941) (where complaint raised federal claim which could have been
avoided by state court’s definitive ruling on state law issue, district court should have
exercised “wise discretion by staying its hands”); Robinson v. City of Omaha, 866
F.2d 1042, 1043 (8th Cir. 1989) (this court may sua sponte raise the issue of
appropriateness of abstention; for Pullman abstention to be appropriate, (1) controlling
state law must be unclear, and (2) tenable interpretation of state law must be

                                           -3-
dispositive of case); Coley v. Clinton, 635 F.2d 1364, 1372-73 (8th Cir. 1980)
(Pullman applies where case involves unsettled question of state law which concerns
important state interests and which may be resolved in such a way as to avoid need for
decision of federal constitutional question). Accordingly, we affirm on abstention
grounds the dismissal without prejudice of the ADA and RA claims against the
County defendants related to alleged “public hearings,” and the dismissal without
prejudice of the “civil rights and due process” claim against all defendants. Cf.
Metzger v. Village of Cedar Creek, 370 F.3d 822, 822-24 (8th Cir. 2004) (affirming
district court’s dismissal without prejudice for lack of subject matter jurisdiction
where plaintiff’s complaint alleged conspiracy to take property without just
compensation in violation of federal constitution and state law, Supreme Court
precedent expressly declared that property owner could not bring constitutional
takings claim absent prior use of available state court procedure and denial of
compensation, and plaintiff had not pursued available state court remedies).

       As to the ADA and RA claims against AECI, we hold that the plaintiffs failed
to state a claim upon which relief may be granted, because an alleged “quasi-
governmental entity by virtue of project ownership by the County” is plainly not
within the applicable definition of “public entity,” see 42 U.S.C. § 12131(1) (“public
entity” means, as relevant, “any State or local government” or “any department,
agency, special purpose district, or other instrumentality of a State or States or local
government”), and because plaintiffs did not allege that AECI had received federal
funds, see 29 U.S.C. § 794(a) (prohibiting disability discrimination “under any
program or activity receiving Federal financial assistance”). Thus the dismissal of
these claims is affirmed, but modified to be with prejudice.

      We affirm the dismissal without prejudice of the MSL claim for lack of subject
matter jurisdiction, in light of Mo. Rev. Stat. § 610.027.1 (“Suits to enforce sections
610.010 to 610.026 shall be brought in the circuit court for the county in which the
public governmental body has its principal place of business.”). As to the MHRA

                                          -4-
claim, we affirm the dismissal without prejudice, under 28 U.S.C. § 1367(c)(3)
(district court may decline to exercise supplemental jurisdiction over pendent state law
claims if court has dismissed all claims over which it has original jurisdiction). See
Meade, 271 F.3d at 716.

       Finally, we hold that the district court did not abuse its discretion in summarily
denying the motion to amend the complaint. See United States ex. rel. Joshi v. St.
Luke’s Hosp., Inc., 441 F.3d 552, 555-59 (8th Cir.) (denial of plaintiffs’ motion for
leave to amend complaint is reviewed for abuse of discretion; however, underlying
legal conclusion that amendment would have been futile is reviewed de novo;
affirming denial of motion for leave to amend complaint on basis of futility where
proposed amendments would not have eliminated complaint’s deficiencies), cert.
denied, 127 S. Ct. 189 (2006).

       The judgment of the district court is affirmed subject to the modifications
specified herein. The requests for attorneys’ fees and costs, filed separately by the
County defendants and AECI, are denied.
                      ______________________________




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