FINANCIAL FIDUCIARIES , LLC and THOMAS BATTERMAN v. Gannett C O., Inc .

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2016
F INANCIAL F IDUCIARIES , LLC and THOMAS BATTERMAN ,
Plaintiffs-Appellants,
v.
GANNETT C O., I NC .,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 19-cv-874 — Stephen L. Crocker, Magistrate Judge.
____________________
A RGUED F EBRUARY 9, 2022 — DECIDED A UGUST 22, 2022
____________________
Before F LAUM , BRENNAN , and S T. EVE, Circuit Judges.
BRENNAN , Circuit Judge. This dispute began when a Wis-
consin newspaper owned by Gannett Co., Inc. published an
article about Thomas Batterman and his business, Financial
Fiduciaries, LLC. The article described a judicial proceeding
in which several trust beneficiaries successfully removed Bat-
terman as de facto trustee of a $3 million fund. In that pro-
ceeding, the court concluded that Batterman violated his
fiduciary duties. And although the court did not rule on

-- 1 of 23 --

2 No. 21-2016
whether Batterman committed criminal acts, it ordered him
to pay the beneficiaries’ litigation expenses because his con-
duct “amounted to something of bad faith, fraud or deliberate
dishonesty.”
Batterman promptly sent a retraction letter to the newspa-
per. A few weeks later, the newspaper revised the article but
did not remove it. These revisions did not appease Batterman,
who then sued Gannett for defamation. After a series of rul-
ings, the district court entered judgment for Gannett. The
court reasoned that the allegedly defamatory statements were
substantially true and protected by Wisconsin’s judicial-pro-
ceedings privilege, which protects publishers that report on
court activity. See W IS . S TAT. § 895.05(1). Batterman asks us to
reverse several of the district court’s rulings and, ultimately,
its judgment. But because the district court decided correctly
at each step, we affirm.
I. Background
A. Facts
Gannett owns the Wausau Daily Herald, a local newspa-
per in central Wisconsin. In August 2018, the Herald
published an article titled Wisconsin financial advisor accused of
violating a dead man’s trust, mishandling $3 million. The article
portrayed Joseph Geisler as a frugal farmer who, with help
from Batterman, created a trust with assets that eventually to-
taled $3 million. Upon Geisler’s death, those funds were to be
distributed equally among four beneficiaries: the Catholic Di-
ocese of Superior, Wisconsin; Bruce High School; the Alz-
heimer’s Association; and the American Cancer Society.
When Geisler passed away, Batterman, through an entity

-- 2 of 23 --

No. 21-2016 3
called Vigil Asset Management Group (“Vigil”), became trus-
tee and was responsible for administering the trust.
After providing this background, the article relayed the
American Cancer Society’s allegations. The Herald put it this
way:
[T]he financial adviser Joe Geisler entrusted to
administer his trust put that money in jeopardy,
according to a lawsuit filed in Marathon
County. The adviser, Thomas Batterman of
Wausau, is accused of defrauding the charities,
committing numerous breaches of trust and
conspiring with his fiancée to milk the fund for
trustee fees.
The article also included the subheading “[w]hat has been
alleged.” Under that subheading, the article declared
“[a]ccording to accusations and judgments made in the court
documents, this is what happened.” In the ensuing para-
graphs, the article summarized the claims made by the Amer-
ican Cancer Society (later joined by the other beneficiaries) in
a petition it filed in state court. The article reproduced the core
allegations from that petition:
• Batterman’s fiancée, Deborah Richards,
worked for the American Cancer Society.
• An email exchange showed an agreement
between Batterman and Richards, under
which Batterman would disburse the Soci-
ety’s trust money in small annual sums ra-
ther than one lump sum.
• According to the Society, Richards profited
from this arrangement by obtaining salary

-- 3 of 23 --

4 No. 21-2016
increases for reaching fundraising goals
each year. A large payment, by contrast,
would have distorted the charity’s expecta-
tions for future years and hindered Rich-
ards’s advancement. Richards claimed her
salary increases were random.
• Batterman defended his decision on
grounds that a large gift was difficult for the
Society to handle, which he said was why he
agreed to submit smaller payments.
• He made this decision unilaterally with his
fiancée, a lower-level manager, rather than
speaking with Society leadership.
• As a result, he collected $30,000 in fees for
trust administration between Geisler’s death
and the day he was removed as de facto trus-
tee.
After presenting these allegations, the article opined that
“the essence of the charities’ case against Batterman” was that
“he sought to hold on to Geisler’s money for as long as he
could in order to profit from it through monthly fees.”
The article recounted the state court’s ultimate decision to
remove Batterman and install a successor trustee, who dis-
bursed all funds immediately, and the court’s order requiring
Batterman to pay the beneficiaries’ legal fees, based on a find-
ing that his conduct “amounted to something of bad faith,
fraud or deliberate dishonesty.” The Herald also included a
quote from the judge overseeing the case: “[S]o much of this
litigation could have been avoided had Vigil followed the
plain language of the trust, or if it had been attempted to

-- 4 of 23 --

No. 21-2016 5
communicate with the school district or other beneficiaries.”
(As noted above, the court found that Batterman operated
Vigil.)
Several other statements in the article put Batterman in a
less than positive light. Under the subheading, “Run-ins with
the law,” the article told readers about Batterman’s two alco-
hol-related arrests and disclosed that the Securities and
Exchange Commission had twice fined him for regulatory vi-
olations.1 Finally, when viewed online, the article contained
various “related” hyperlinks. One of those links directed the
reader to an article titled, “[f]ive ways to fight elder abuse,
financial exploitation.”
Batterman demanded that the Herald retract the article.2
Instead, the newspaper updated it the next month with two
important changes. First, it included a new paragraph clarify-
ing that “[a]lthough a judge later found that Batterman had
not committed fraud, theft or embezzlement, he ruled that the
financial adviser had engaged in multiple acts of ‘bad faith’
and ordered him to be removed from handling the Geisler
trust and to pay part of the charities’ legal fees.” Second, the
revised article added the modifier “criminal” before the noun
“wrongdoing” in the following sentence: “Neither Batterman
nor Richards has been charged with any criminal wrongdoing
in the Geisler case.”
1 Fin. Fiduciaries, LLC, Release No. 4863, 118 SEC Docket 4501, 2018
WL 1151582 (Mar. 5, 2018); Vigil Asset Mgmt. Grp., Inc., Release No. 1621,
64 SEC Docket 294, 1997 WL 120698 (Mar. 17, 1997).
2 Under W IS. S TAT. § 895.05(2), a person must give a newspaper a “rea-
sonable opportunity” to correct allegedly libelous statements before filing
a civil suit.

-- 5 of 23 --

6 No. 21-2016
B. Procedural History
In October 2019, Batterman sued Gannett in federal court
for defamation.3 Gannett moved to dismiss the complaint for
failure to state a claim. See F ED. R. C IV. P. 12(b)(6) Along with
its motion, Gannett attached copies of several key documents,
including the revised article, court documents from the Geis-
ler trust litigation, and the 1997 SEC order involving Batter-
man.
The district court set April 6, 2020 as the deadline for
amending pleadings and advised the parties: “After that, Fed-
eral Rule[] of Civil Procedure 15 applies, and the later a party
seeks leave of the court to amend, the less likely it is that jus-
tice will require the amendment.” The scheduling order also
stayed discovery until the court ruled on Gannett’s motion to
dismiss or until the deadline for amended pleadings arrived,
whichever came first.
3 The district court had diversity jurisdiction over the lawsuit because
Batterman is a Wisconsin resident, Financial Fiduciaries, LLC is owned by
a privately held Wisconsin corporation, and Gannett is a Delaware corpo-
ration with its principal place of business in Virginia. See 28 U.S.C. § 1332.
Under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938), we apply state
substantive law, including the choice-of-law rules of the forum state,
Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 498 (1941). In
Wisconsin, “the law of the forum should presumptively apply unless it
becomes clear that nonforum contacts are of the greater significance.”
Drinkwater v. Am. Fam. Mut. Ins. Co., 714 N.W.2d 568, 576 (Wis. 2006).
Here, the plaintiffs are domiciled in Wisconsin and the defendant pub-
lished the article in Wisconsin, so the presumption holds, and Wisconsin
law applies. Finally, we have appellate jurisdiction under 28 U.S.C.
§§ 636(c)(3) and 1291 because the parties consented to resolution by a mag-
istrate judge in the district court, and this is an appeal from a final decision
of that court.

-- 6 of 23 --

No. 21-2016 7
The same day, Batterman moved for summary judgment
on liability. With that motion, he filed a “combined response,”
addressing both Gannett’s motion to dismiss and his motion
for partial summary judgment. He objected to the version of
the article Gannett provided as incomplete because it omitted
certain hyperlinks which he thought were defamatory. Batter-
man attached the online version of the revised article—which
included the hyperlinks—and an affidavit explaining that he
was unable “to locate a copy of the original publication of the
Article.” This was pertinent, he continued, because “[t]he
original Article contained a video clip which was also defam-
atory.”
Three weeks later, Gannett moved under Federal Rule of
Civil Procedure 56(d)(2) for a “continuance to respond to
Plaintiff’s premature Motion for Summary Judgment as to Li-
ability.” Batterman opposed this motion and prefaced his re-
sponse with a quote: “An old maxim warns: Be careful what
you wish for; you might receive it.” (quoting Kalamazoo Cnty.
Rd. Comm’n v. Deleon, 574 U.S. 1104 (2015) (Alito, J., dissenting
from denial of certiorari)). In his view, the extrinsic docu-
ments Gannett submitted with its motion to dismiss estab-
lished liability as a matter of law, so there was no reason to
delay adjudication. Despite Batterman’s objection, the court
granted Gannett an extension and reset the deadline for a re-
sponse brief to “60 days after the court rules on the pending
motion to dismiss or [60 days after] June 5, 2020, whichever
comes first.”
On June 1, 2020, the district court granted in part and de-
nied in part Gannett’s motion to dismiss. The court concluded
that it could review the extrinsic documents submitted by
Gannett, and it took judicial notice of the 2018 SEC order

-- 7 of 23 --

8 No. 21-2016
which Gannett had not provided. It then distilled Batterman’s
allegations into four statements:
• an implicit statement that Batterman com-
mitted criminal acts of fraud, theft, or em-
bezzlement;
• an implicit statement that Batterman com-
mitted “elder abuse”;
• an explicit statement that Batterman was
trustee of the Geisler Trust; and
• an explicit statement that Batterman was
“found guilty of wrongdoing by the SEC.”
Of these, the district court identified the second—the implicit
statement that Batterman committed elder abuse—as the only
plausible theory of defamation, and holding that the other
statements could not support a defamation claim.
With the bulk of his case dismissed, Batterman sought
leave to amend his complaint, three months after the deadline
for doing so. He contended, for the first time, that the original
article was more defamatory than the revised article because
the latter included the clarification that “a judge later found
that Batterman had not committed fraud, theft or embezzle-
ment.” Batterman declared he could not find the original arti-
cle, published in August 2018, until June 2020.
The district court denied Batterman’s motion. Interpreting
that motion as an attempt to amend its scheduling order, see
F ED. R. C IV. P. 16(b)(4), the court held that Batterman failed to
establish “good cause,” a requirement under that rule. The
court noted that Batterman moved for partial summary judg-
ment using the revised article, not the original article, and

-- 8 of 23 --

No. 21-2016 9
thus characterized his motion as an attempt at a “do-over.” In
the same opinion, the court denied Batterman’s motion for
partial summary judgment, remarking that it had been “effec-
tively denied” by its ruling on the motion to dismiss.4
Gannett then moved for summary judgment on what re-
mained of Batterman’s defamation claim—the allegation that
the article implicitly stated Batterman committed elder abuse.
The district court granted the motion. In particular, the court
held that court records rendered an implication that Batter-
man had engaged in “elder abuse” substantially true.
About one month later, Batterman moved to alter or
amend the judgment. See F ED. R. C IV. P. 59(e). He argued that
an email exchange he acquired (via a public-records request)
six days before the judgment was entered undermined the
district court’s rulings. These emails captured a discussion be-
tween two prosecutors—a district attorney and an attorney at
the Wisconsin Department of Justice. One of them read the
article in the Wausau Daily Herald and characterized Batter-
man’s actions as “criminal.” This observation, Batterman
claimed, contradicted the district court’s finding that the
4 At oral argument, Batterman’s counsel claimed that the district court
did not resolve Batterman’s “cross-motion” for partial summary judgment
because Gannett successfully moved under Rule 56(d) to have the dead-
line for its response delayed. Oral Arg. at 4:13–25. That is incorrect. To
begin, Batterman’s motion for summary judgment as to liability was not a
“cross-motion” because Gannett initially filed a motion to dismiss, not a
motion for summary judgment. And the court’s order did not moot Bat-
terman’s motion for partial summary judgment; it merely extended the
deadline for Gannett’s response. So, the motion remained active until the
court denied it.

-- 9 of 23 --

10 No. 21-2016
article did not reasonably convey to the reader that he com-
mitted criminal acts.
The district court denied Batterman’s Rule 59(e) motion,
reasoning that a discussion between prosecutors did not dis-
turb its finding that the article did not reasonably convey that
Batterman committed criminal acts. Moreover, the court ex-
plained, “even if some readers understood the published
statements as defamatory, the statements are not actionable
where the plain and ordinary meaning of the articles is sub-
stantially true.” Batterman now appeals.
II. Analysis
Batterman sees several errors in the district court’s rulings
and asks us to reverse and remand this case for “entirely new
proceedings.” First, he asserts the district court erred when it
dismissed the bulk of his case under Rule 12(b)(6). Second, he
challenges the district court’s denial of his untimely motion
for leave to amend. Third, he disputes the district court’s
grant of summary judgment to Gannett. And fourth, he as-
serts the district court erred when it denied his Rule 59(e) mo-
tion to alter or amend a judgment.
A. Motion to Dismiss
1. Incorporation-by-reference doctrine
We begin with the district court’s decision to rely on sev-
eral extrinsic documents. Ordinarily, when adjudicating a
motion to dismiss under Rule 12(b)(6), a district court is lim-
ited to the allegations in the complaint. Gen. Elec. Cap. Corp. v.
Lease Resol. Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). If a court
considers “matters outside the pleadings,” the “motion must
be treated as one for summary judgment.” F ED. R. C IV. P.
12(d).

-- 10 of 23 --

No. 21-2016 11
But there is an exception under which a court may
consider documents that are (1) referenced in the plaintiff’s
complaint, (2) concededly authentic, and (3) central to the
plaintiff’s claim. General Electric, 128 F.3d at 1080; Tierney v.
Vahle, 304 F.3d 734, 738 (7th Cir. 2002); see also Hecker v. Deere
& Co., 556 F.3d 575, 582 (7th Cir. 2009). This incorporation-by-
reference doctrine prevents a plaintiff from avoiding dismis-
sal by omitting facts or documents that undermine his case.
Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690
(7th Cir. 2012). We review a district court’s decision to con-
sider documents under the incorporation-by-reference doc-
trine for an abuse of discretion. General Electric, 128 F.3d at
1081.
Recall that when Gannett moved to dismiss Batterman’s
case, it attached the revised article, filings from the Geisler
trust litigation, and the 1997 SEC order involving Batterman.
The district court considered these documents and took judi-
cial notice of the 2018 SEC order. At the time, Batterman
objected to one document: the version of the revised article
supplied by Gannett. His concern was that it did not contain
hyperlinks. So, the court used Batterman’s version—the one
he submitted with his motion for partial summary judgment.
On appeal, Batterman objects only to the court’s reference
to the revised article—any objections to the SEC orders or
court records are forfeited. Scheidler v. Ind., 914 F.3d 535, 540
(7th Cir. 2019). He argues that “while the [original article] is
obviously central to the complaint, and was cited extensively
in the complaint, … the [revised article] is a stranger to the
complaint. It is not mentioned at all.” Thus, Batterman con-
tends, the district court “effectively rewrote [his]

-- 11 of 23 --

12 No. 21-2016
complaint”—a peculiar argument since Batterman moved for
summary judgment based solely on the revised article.
In a defamation case, where the published material is cen-
tral to a plaintiff’s allegations, courts routinely look outside
the four corners of the complaint to view the entire publica-
tion. See, e.g., Law Offs. of David Freydin, P.C. v. Chamara, 24
F.4th 1122, 1126 n.1 (7th Cir. 2022). Here, the complaint refer-
enced the article without specifying that one version was ac-
tionable while the other was not. In fact, the complaint recog-
nized that the revised article republished essentially the entire
original article, thus it alleged the revised article was defam-
atory too. And although Batterman contends that the version
the court used was not “concededly authentic,” this argument
misses the mark because he submitted the document to the
court. In any event, his arguments pertain to which version of
the article should be used for analyzing his defamation claim,
not whether the copy submitted by Gannett was inauthentic.
Even if the district court erroneously considered matters
outside the pleadings, we must find that the error was reversi-
ble. That is, the district court’s consideration of extrinsic ma-
terials must adversely affect the losing party by depriving
him of notice and opportunity to develop the record. See
Fleischfresser v. Dirs. of Sch. Dist. 200, 15 F.3d 680, 685 (7th Cir.
1994) (“[I]f the district court’s decision to grant summary
judgment for the directors is correct, its decision to treat the
Rule 12(b)(6) motion as one for summary judgment without
giving the parties explicit notice was not improper.”). Here,
any error would be harmless. Before the district court ruled
on the motion to dismiss, Batterman moved for summary
judgment. This belies the notion that the district court’s deci-
sion to not convert the motion was harmful—Batterman

-- 12 of 23 --

No. 21-2016 13
himself functionally converted the motion by pressing ahead
to the summary-judgment stage. The district court therefore
properly rejected his attempt to rewind the litigation.
2. Merits
We next consider the district court’s decision on the mer-
its. To avoid dismissal, a complaint’s factual allegations, taken
as true, must “state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Our
review of a district court’s dismissal for failure to state a claim
is de novo. Mashallah, Inc. v. W. Bend Mut. Ins. Co., 20 F.4th
311, 319 (7th Cir. 2021).
Batterman’s complaint contained a table of twenty-one
statements he believed were defamatory. The district court
ruled that most of these were not actionable. Remember the
court’s distillation of potentially actionable statements:
• an implicit statement that Batterman com-
mitted criminal acts of fraud, theft, or em-
bezzlement;
• an implicit statement that Batterman com-
mitted “elder abuse”;
• an explicit statement that Batterman was
trustee of the Geisler Trust; and
• an explicit statement that Batterman was
“found guilty of wrongdoing by the SEC.”
On appeal, Batterman discusses only the implicit state-
ments, thus forfeiting any objections he may have as to the
explicit statements. Scheidler, 914 F.3d at 540. And because the
district court ruled in Batterman’s favor with respect to the
implied statement that he committed elder abuse, we focus on

-- 13 of 23 --

14 No. 21-2016
whether the article falsely implied Batterman committed
criminal acts.
Under Wisconsin law, a defamation plaintiff must show
that the defendant (1) published (2) a false, (3) defamatory,
and (4) unprivileged statement. See Torgerson v. J./Sentinel,
Inc., 563 N.W.2d 472, 477 (Wis. 1997). “The ‘statement’ that is
the subject of a defamation action need not be a direct affir-
mation, but may also be an implication.” Mach v. Allison, 656
N.W.2d 766, 772 (Wis. Ct. App. 2002) (citing Milkovich v. Lo-
rain J. Co., 497 U.S. 1, 22 (1990)). “If the challenged statements
as a whole are not capable of a false and defamatory meaning,
or are substantially true, a libel action will fail.” Torgerson, 563
N.W.2d at 477; see also Laughland v. Beckett, 870 N.W.2d 466,
473 (Wis. Ct. App. 2015) (“‘Substantial truth’ is a defense to a
defamation action.”).
Publication is undisputed. And if the article did in fact im-
ply Batterman committed criminal acts, that statement would
be defamatory,5 as Gannett recognized at oral argument.6 So,
Batterman must prove only falsity and the absence of privi-
lege.
To resolve those issues, we must first identify what exactly
the article implied. After all, it did not directly say that Batter-
man committed fraud, theft, or embezzlement. In a case of
5 Accusing an innocent person of committing a criminal act is tradi-
tionally considered defamatory per se. Teague v. Schimel, 896 N.W.2d 286,
299 (Wis. 2017). Moreover, such a statement would be defamatory because
it “tends to damage one’s reputation in the community or to deter other
persons from associating with the defamed individual.” Laughland 870
N.W.2d at 475.
6 Oral Arg. at 14:13–25.

-- 14 of 23 --

No. 21-2016 15
defamation by implication, the court must decide “whether
an alleged defamatory implication is fairly and reasonably
conveyed by the words and pictures of the publication.”
Mach, 656 N.W.2d at 778. Batterman contends the article
“falsely implied that [he] and Fiduciaries had committed
criminal acts.” But the district court disagreed on this thresh-
old issue, holding that the article did not reasonably convey
to the reader an implication that Batterman committed crimi-
nal acts.7 Indeed, the revised article expressly declared: “Alt-
hough a judge later found that Batterman had not committed
fraud, theft or embezzlement, he ruled that the financial ad-
viser had engaged in multiple acts of ‘bad faith’ and ordered
him to be removed from handling the Geisler Trust to pay
part of the charities’ legal fees.”
By contrast, what the article did say was substantially true,
and this shields Gannett from liability. Lathan v. J. Co., 140
N.W.2d 417, 420 (Wis. 1966) (noting that a defamatory state-
ment is “not actionable if it is true, since truth is a complete
defense”). Batterman bears the burden of proof on this issue,8
yet as explained below, his allegations fall short.
7 Batterman suggests the district court found the article’s statements
were not “capable of defamatory meaning” as to accusations of fraud,
theft, or embezzlement. What Batterman misunderstands is that the dis-
trict court was resolving a predicate issue: whether a reasonable reader
would understand the article to imply that Batterman had committed
criminal acts, namely fraud, theft, or embezzlement. The court was not
commenting on whether any particular statement was defamatory—
merely a component of a defamation claim that is largely undisputed here.
8 Mach, 656 N.W.2d at 772 (“In a defamation action brought by a pri-
vate figure against a media defendant, the plaintiff has the burden of prov-
ing that the speech at issue is false.”). This procedural rule avoids a
“chilling effect that would be ‘antithetical to the First Amendment’s

-- 15 of 23 --

16 No. 21-2016
The article said Batterman was accused of mishandling
funds, committing wrongdoing, and putting Geisler’s money
in “jeopardy.” These statements, as the district court correctly
found, were fully supported by court records. They reflected
both the charities’ allegations and the state court’s ultimate
finding that Batterman committed what “amounted to some-
thing of bad faith, fraud or deliberate dishonesty.” The article
also prefaced its discussion of Batterman’s alleged conduct
with, “[w]hat has been alleged,” and similar qualifying
clauses. Because the article only relayed the court’s findings
about Batterman’s bad faith and dishonesty, its statements
were substantially true.
On that basis alone, Batterman’s complaint fails to state a
claim, at least as it relates to an implication of criminality. But
beyond that, the article is covered by Wisconsin’s judicial-
proceedings privilege, which shelters a newspaper from libel
actions based on “a true and fair report of any judicial … pro-
ceeding … or of any public statement, speech, argument or
debate in the course of such proceeding.” W IS . S TAT.
§ 895.05(1). The privilege does not extend to headlines, head-
ings, or “comments added or interpolated in any such re-
port.” Id.
The parties dispute the scope of Wisconsin’s judicial-pro-
ceedings privilege, particularly the application of Ilsley v. Sen-
tinel Co., 113 N.W. 425 (Wis. 1907). Batterman leans heavily on
Ilsley’s remark that there is “no right in the public to know
that A charges B with unworthy or criminal conduct, even in
protection of true speech on matters of public concern.’” Id. (quoting Phila.
Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986)).

-- 16 of 23 --

No. 21-2016 17
court, as a fact by itself; that is mere gossip or scandal.” Id. at
426.
But Ilsley clarified that the
public at most needs to kn[ow] what its court
does, and, since this cannot be intelligibly re-
ported without stating the charges and issues
upon which the court’s action is based, the latter
may be reported also, although as an incidental
result the fact of defamatory charges against
some individual becomes public to his injury.
Id. Later in the decision, the Wisconsin Supreme Court
affirmed the ability of newspapers to summarize the proceed-
ings rather than quote them. Id. at 427. The limitation, it
explained, was that a reporter may not characterize the alle-
gations in the pleadings as facts. Id. The reporter must declare
them for what they are: accusations subject to judicial review.
Id. Under Ilsley, Gannett’s summary of the Geisler trust litiga-
tion falls comfortably within the judicial-proceedings privi-
lege. Gannett was careful to describe the allegations as such,
not as facts, and the article provided Batterman’s own views
throughout.
At oral argument, Batterman’s counsel was asked how the
news media could ever cover newly filed lawsuits without
fearing legal ramifications under his reading of Ilsley and
§ 895.05(1).9 He responded they could not.10 This assures us
that Batterman’s position—that the privilege does not protect
news media coverage of newly filed pleadings—is incorrect.
9 Oral Arg. at 8:55–9:20
10 Oral Arg. at 9:25–29

-- 17 of 23 --

18 No. 21-2016
In summary, the district court correctly ruled that the only
plausible defamation claim in Batterman’s complaint per-
tained to the implication that he committed elder abuse. The
other defamatory statements were substantially true and
privileged.
B. Motion for Leave to Amend
In the wake of the district court’s ruling on the motion to
dismiss, Batterman moved for leave to amend his complaint.
He said he acquired an original version of the article, which
he had been unable to do earlier. The district court did not
allow Batterman to amend his complaint, noting his choice to
move for summary judgment with the revised article, and
that substituting a different version of the article would not
matter. Batterman appeals this ruling so that he may restart
the litigation based on the original version of the article.
There is some confusion about which procedural rule ap-
plied. The district court used Rule 16’s good-cause standard
because it perceived Batterman’s request as an attempt to
modify its scheduling order. That rule provides that a sched-
uling order “may be modified only for good cause and with
the judge’s consent.” F ED. R. C IV. P. 16(b)(4). The district court
concluded Batterman had failed to establish “good cause.”
But the scheduling order did not need to be modified be-
cause it provided that after the deadline for amending plead-
ings, “Federal Rules of Civil Procedure 15 applies, and the
later a party seeks leave of the court to amend, the less likely
it is that justice will require the amendment.” So, Batterman
was not requesting a modification of the scheduling order. He
was requesting that the court apply the standard it said it
would apply for late amendment requests: Rule 15’s “interest

-- 18 of 23 --

No. 21-2016 19
of justice” standard. We agree that the court should have ap-
plied Rule 15, not Rule 16. But as discussed below, this error
was harmless because Batterman fares no better under Rule
15.
The Federal Rules of Civil Procedure grant district courts
“broad discretion to deny leave to amend where there is un-
due delay, bad faith, dilatory motive, repeated failure to cure
deficiencies, undue prejudice to the defendants, or where the
amendment would be futile.” Arreola v. Godinez, 546 F.3d 788,
796 (7th Cir. 2008) (discussing Rule 15(a)(2)). We review deni-
als of leave to amend for abuse of discretion. Heng v. Heavner,
Beyers & Mihlar, LLC, 849 F.3d 348, 354 (7th Cir. 2017). But
“our review for abuse of discretion of futility-based denials
includes de novo review of the legal basis for the futility.” Id.
(internal quotation marks omitted).
Although the district court mistakenly cited Rule 16, its
justifications for denying Batterman’s motion ultimately
support the same outcome under Rule 15. The district court
criticized Batterman’s attempt to reset the litigation after he
submitted the online version of the revised article (with hy-
perlinks) to the court in his response to Gannett’s motion to
dismiss and then moved for summary judgment based on
that version. Batterman asserts the court merely disapproved
of his “litigation strategies.” But those strategies included a
dispositive motion, on which the court and Gannett spent sig-
nificant resources. He cannot now escape the consequences of
his choice. Batterman’s attempt to claim a “mulligan” would
cause undue delay and prejudice to Gannett and waste the
district court’s resources. See Johnson v. Cypress Hill, 641 F.3d
867, 873 (7th Cir. 2011).

-- 19 of 23 --

20 No. 21-2016
Moreover, replacing the revised article with the original
article would be futile because the differences between the
two are immaterial. Most significant is the “insertion,” or
“disclaimer language,” as the parties refer to it. Even without
this disclosure (that the state judge did not find Batterman
guilty of fraud, theft, or embezzlement), the article was sub-
stantially true. It neither reported that Batterman committed
a criminal act, nor implied it, because its summary of the Geis-
ler trust litigation always contained qualifying language. The
district court correctly denied Batterman’s motion for leave to
amend.11
C. Motion for Summary Judgment
The district court left one path open for Batterman to es-
tablish a defamation claim: that a “related” hyperlink falsely
implied he committed elder abuse. Gannett moved for sum-
mary judgment on this final thread. After considering the ma-
terials before it, the court held “that plaintiffs cannot meet
their burden of proving that the implication they were in-
volved in ‘elder abuse, financial exploitation’ is false.” In sup-
port of its ruling, the court relied on the state court’s finding
that Batterman breached his fiduciary duties to the Geisler
trust, which was created to administer an elderly man’s
wealth upon his death. “We review de novo a district court’s
grant of summary judgment, viewing the facts in the light
most favorable to the non-moving party.” Ludwig v. United
States, 21 F.4th 929, 931 (7th Cir. 2021).
11 The district court also denied Batterman’s motion for partial sum-
mary judgment. That decision was correct because the bulk of his case had
been dismissed under Rule 12(b)(6) and Batterman conceded he did not
seek summary judgment on the portion that remained.

-- 20 of 23 --

No. 21-2016 21
We agree with the district court. In the end, Batterman’s
defamation claim fares no better on the elder-abuse theory
than it does on his other theories. Although the district court
permitted Batterman to proceed to summary judgment on
this issue, the record shows that this implication was substan-
tially true. Mishandling a deceased person’s estate may not
always constitute elder abuse, but a reasonable jury could not
conclude that observing the relationship between Batterman’s
conduct and elder abuse constituted a false statement.
Another basis for affirming summary judgment is that the
implication Batterman committed elder abuse is not reasona-
bly drawn from the words of the article. A “related” article
hyperlinked on the sidebar of a webpage is common. Readers
understand that the connection between the content of a
webpage and “related” hyperlinks is attenuated. Either way,
the district court correctly granted summary judgment to
Gannett.
D. Motion to Alter or Amend a Judgment
Finally, Batterman asked the district court to amend its
judgment based on an email exchange he acquired through a
public records request. Batterman claims this exchange
“[t]opple[d]” all the district court’s rulings as to defamatory
meaning.
Federal Rule of Civil Procedure 59(e) allows a court to
amend a judgment “no later than 28 days” after its entry, but
only “if the petitioner can demonstrate a manifest error of law
or present newly discovered evidence.” Obriecht v. Raemisch,
517 F.3d 489, 494 (7th Cir. 2008). We review Rule 59(e) rulings
for an abuse of discretion, although “embedded legal

-- 21 of 23 --

22 No. 21-2016
questions are reviewed de novo.” Avery v. City of Milwaukee,
847 F.3d 433, 438 (7th Cir. 2017).
Six days before the district court entered its judgment, Bat-
terman obtained results from a public records request, which
contained an email exchange. Batterman argues these emails
are newly discovered evidence and undermine the district
court’s analysis. In the emails, an assistant district attorney
and an attorney with the Wisconsin Department of Justice dis-
cussed the article. One of them commented, “[i]nteresting …
[s]ounds criminal to me.” To which the other replied, “[t]hat’s
what I said. … I think there some criminal acts have abso-
lutely happened.”
This exchange does not help Batterman. First, we doubt
whether these emails constitute “newly discovered evidence”
when Batterman obtained them six days before the district
court entered its judgment. If the dialogue truly upended the
district court’s decisions in the way Batterman contends, one
would expect more urgency on his part. Instead, he waited
over a month after receiving the emails and over twenty days
after the district court entered judgment to present the court
with this evidence.
But there is a second problem: it is unclear which part of
the defamation analysis the emails implicate. Batterman ar-
gues that the emails contradict the district court’s finding that
the article “was not capable of defamatory meaning that Bat-
terman committed criminal acts.” Remember that the district
court did not express a view on whether such a statement
would be defamatory (presumably, it would be). The court
held that the article did not reasonably convey the implication
that Batterman committed criminal acts.

-- 22 of 23 --

No. 21-2016 23
Even if the emails are understood as evidence to counter
that conclusion, they do not undermine the court’s ruling.
This exchange is between two prosecutors who are trained
and commissioned to identify potential criminal activity. So,
the inferences drawn from these professionals should not be
imputed to the article’s general audience: the Wausau Daily
Herald subscribers. The district court properly denied the
Rule 59(e) motion.
∗ ∗ ∗
In conclusion, Batterman’s defamation claim fails because
the article published by Gannett was substantially true and
largely protected by the judicial-proceedings privilege. We
A FFIRM the district court’s judgment.

-- 23 of 23 --