Security Alarm Financing Enterprises, L.P. v. Alarm Protection Technology, LLC et al

Filing 532

ORDER: re Counterclaim Defendant's Motion for Summary Judgment 337 . Signed by Judge Sharon L. Gleason on 02/07/2017. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SECURITY ALARM FINANCING
ENTERPRISES, L.P., a California Limited
Partnership,
Plaintiff and Counterclaim Defendant,
Case No. 3:13-cv-00102-SLG
v.
ALDER HOLDINGS, LLC, a Utah Limited
Liability Company; ALARM PROTECTION
TECHNOLOGY, LLC, a Utah Limited
Liability Company; ALARM PROTECTION
TECHNOLOGY ALASKA, LLC, a Utah
Limited Liability Company; ALARM
PROTECTION ALASKA, LLC, a Utah
Limited Liability Company,
Defendants and Counterclaimants.
ORDER RE COUNTERCLAIM DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Before the Court is Plaintiff and Counterclaim Defendant SAFE’s Motion for
Summary Judgment at Docket 337. The motion is fully briefed, 1 and oral argument was
held on December 15, 2016. 2 Defendants’ 3 motion at Docket 351 for summary judgment
on SAFE’s claims has been addressed in a separate order. 4

1

See Docket 339 (Unredacted Mem.); Docket 396 (Opp.); Docket 413 (Reply).

2

See Docket 445 (Hr’g Mins.).

3

The Court will refer to Defendants Alder Holdings, Alarm Protection Technology, Alarm Protection
Technology Alaska, and Alarm Protection Alaska collectively as either “Defendants” or “Alarm
Protection.”

4

See Docket 520.

BACKGROUND
This is a dispute between two home alarm security companies. Many of the
pertinent facts are summarized in the Court’s recent order on Alarm Protection’s motion,
and are not repeated here. 5

The following additional facts are drawn from Alarm

Protection’s Answer to Amended Complaint and Counterclaim. 6
In response to SAFE’s concerns about Alarm Protection’s potential poaching of
SAFE’s customers, Alarm Protection conducted its own internal investigation. Alarm
Protection maintains that as a result of that investigation, it learned that SAFE had been
calling SAFE’s past customers that were now Alarm Protection customers—presumably
as part of SAFE’s investigation. According to Alarm Protection, SAFE told at least some
of these customers that Alarm Protection was engaging in illegal activity and was
defrauding its customers. 7 These alleged statements by SAFE to Alarm Protection’s
customers form the basis of Alarm Protection’s counterclaims, which are the subject of
this order. SAFE largely denied all of these allegations, and denied that Alarm Protection
was entitled to any relief. 8

5

See Docket 520 (Order) at 1–2.

6

Docket 325.

7

Docket 325 at 8–9.

8

See Docket 20 at 2.

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DISCUSSION
I. Jurisdiction
The Court has supplemental jurisdiction over each of Alarm Protection’s
counterclaims pursuant 28 U.S.C. § 1367 because each shares some “common nucleus
of operative fact” with SAFE’s Lanham Act claim, over which the court has original
jurisdiction pursuant to 28 U.S.C. § 1331. 9
II. Standard for Summary Judgment
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary judgment
if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” The Court’s recent order on Alarm
Protection’s Motion for Summary Judgment set out the controlling precedent for a trial
court to apply when considering a motion for summary judgment. 10 That precedent is not
restated here, but is again relied upon by the Court.
III. Analysis
Alarm Protection has asserted the following five counterclaims: (1) Tortious
Interference with Contractual Relationship; (2) Tortious Interference with Business
Relationship; (3) Defamation Per Se; (4) Defamation Per Quod; and (5) Violation of
Alaska’s Unfair Trade Practices Act (UTPA), AS 45.50.471. SAFE moves for summary
judgment on all of these counterclaims.

9

The Court has insufficient information to determine the citizenship of the parties for diversity
purposes. Plaintiff is a limited partnership, but the Court cannot discern who its partners are and
where they are citizens. Defendants are four LLCs, but the Court cannot discern who their
members are and where they are citizens.
10

Docket 520 at 3–4.

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SAFE’s primary argument is that Alarm Protection’s claims—with the exception of
the defamation per se claim—cannot stand because Alarm Protection has no evidence
that it has suffered any damages. 11 SAFE also argues that, for various reasons, Alarm
Protection cannot prove the essential elements of its defamation per se claim. 12 And
SAFE asserts that it was privileged to interfere with Alarm Protection’s contracts with
SAFE’s former customers. 13 The Court will address each argument in turn.
A. Damages
In Alaska, each of the torts of interference with contract, interference with
prospective business relationship, defamation per quod, and the UTPA requires a plaintiff
to show actual damages to win monetary relief. 14 Here, SAFE maintains that Alarm
Protection has identified only four statements in discovery to support its claims. One of
these statements was to an Alarm Protection employee who still works for Alarm
Protection and the other three were to Alarm Protection customers who apparently have
not cancelled their services with Alarm Protection. 15

11

Docket 339 at 17–19.

12

Docket 339 at 19–24.

13

Docket 339 at 24–25.

14

See Oaksmith v. Brusich, 774 P.2d 191, 198 (Alaska 1989) (identifying damages as an essential
element of both interference with prospective business relationships and interference with
contract claims); Alaska Statebank v. Fairco, 674 P.2d 288, 295 (Alaska 1983) (“[E]vidence of
specific harm suffered must be adduced if the statement is not defamatory on its face.”); Garrison
v. Dixon, 19 P.3d 1229, 1235 n.22 (Alaska 2001) (affirming award of full attorney’s fees to UTPA
defendant who prevailed on summary judgment because “plaintiffs could show no monetary
losses, as required for a private action under AS 45.50.531(a)”); see also Alaska Civil Pattern Jury
Instrs., § 19.01A (interference with contract); § 19.01B (interference with prospective economic
advantage); § 16.03 (defamation per quod); § 10.01A (UTPA).
15

See Docket 339 at 12–14. There, SAFE explained that Alarm Protection did not produce any
contracts when asked to produce “all documents, including, but not limited to, all contracts,
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Alarm Protection responds that SAFE’s contention that “Alarm Protection cannot
show damages caused by the few statements that SAFE preserved” is “true so far as it
goes.” 16 But in Alarm Protection’s view, it does not go very far. Alarm Protection
maintains that SAFE’s spoliation of its customer call recordings 17 has prevented Alarm
Protection, and the Court, from knowing “how many other Alarm Protection customers
heard the same false statements from SAFE and decided to cancel their contracts.” 18
The Court agrees that the spoliation might make it difficult, perhaps very difficult, to
ascertain to whom SAFE made any improper statements. And for this reason, the Court
awarded sanctions against SAFE, including the sanction of instructing the jury that it may
consider the fact of the spoliation in reaching its verdict. 19
Alarm Protection contends that because of this spoliation and the possibility that
the jury will infer that the spoliated material was favorable to Alarm Protection’s claims,
the Court must deny summary judgment. Alarm Protection points to the Second Circuit’s
decision in two cases, Byrnie v. Cromwell 20 and Kronisch v. United States, 21 to support

correspondence, audio recordings and payment histories, relating to any and all customers that
[Alarm Protection] allege[s] to have cancelled their account based on any action taken by SAFE.”
See Docket 358 (Alarm Protection’s Interrogatory Responses) at 4.
16

Docket 396 at 7.

17

See Docket 429 (Order re Mot. for Spoliation Sanctions) at 8–9 (discussing the loss of these
recordings).

18

Docket 396 at 7.

19

See Docket 429 at 16.

20

243 F.3d 93 (2d Cir. 2001).

21

150 F.3d 112 (2d Cir. 1998).

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this position. In Byrnie, the Second Circuit, citing Kronisch, explained that “a party
seeking an adverse inference may rely on circumstantial evidence to suggest the contents
of destroyed evidence” and that once this is done, “[i]t then becomes a matter for the jury
to decide, based on the strength of the evidence presented, whether the documents likely
had such content.”22
The lost recordings might have been highly probative in proving that SAFE made
defamatory statements about Alarm Protection, or attempted to interfere in Alarm
Protection’s contracts or business relationships, or engaged in some sort of deceptive
practice. Because SAFE failed to preserve those recordings even in the face of an
obligation to do so, the jury might infer that the recordings were favorable to Alarm
Protection. 23 Thus, Alarm Protection is correct that the mere fact that the three customers
for whom it has recordings have not left Alarm Protection does not preclude Alarm
Protection from showing damages related to other customers, because “a reasonable jury
[could] conclude that the destroyed recordings would contain more of the same:
defamatory statements by SAFE . . . .”24
But the spoliation, and any inference that may be drawn from it, gets Alarm
Protection only so far. Alarm Protection bears the burden at trial of proving both SAFE’s
conduct and Alarm Protection’s damages.

22

The potential inference allows Alarm

Byrnie, 243 F.3d at 110.

23

See, e.g., Medical Lab. Mgmt. Consultants v. ABC, Inc., 306 F.3d 806, 824 (9th Cir. 2002)
(explaining that an inference may be available if the spoliation “indicated that the [evidence]
threatened [the spoliating party’s] legal position and needed to be covered up”).

24

Docket 396 at 8.

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Protection to avoid summary judgment as to SAFE’s conduct—the jury could infer that
there was additional conduct for which there is not direct evidence. But the recordings
that were spoliated would not contain evidence about Alarm Protection’s damages. 25
That evidence would have to come from some other source—such as Alarm Protection’s
own records. Indeed, as the Court of Appeals explained in Bynrie, “[t]he burden falls on
the ‘prejudiced party’ to produce ‘some evidence suggesting that a document or
documents relevant to substantiating his claim would have been included among the
destroyed files.’”26 Alarm Protection gives no reason to believe that there would be any
evidence of its damages on the spoliated recordings. No reasonable jury could infer that
the phone recordings contained evidence of Alarm Protection’s damages, and so Alarm
Protection cannot rely on the spoliation to escape its burden to produce evidence of such
damages. 27
Because Alarm Protection concedes that it has no actual evidence that it incurred
any damages as a result of SAFE’s conduct, the Court will grant SAFE’s motion for
summary judgment with regard to Alarm Protection’s claims for interference with contract,
interference with prospective business relationship, defamation per quod, and violations
of the UTPA, each of which requires a showing of damages. 28

25

Cf. Kronisch, 150 F.3d at 127 (explaining that once a court finds spoliation occurred, it must
consider “the likely contents of that evidence”).

26

Byrnie, 243 F.3d at 108 (quoting Kronisch, 150 F.3d at 128).

27

See Medical Lab. Mgmt., 306 F.3d at 825 (noting, in a parenthetical, that “when a party ‘has
produced no evidence—or utterly inadequate evidence—in support of a given claim’, ‘the
destruction of evidence, standing alone, is [not] enough to allow [the] party ... to survive summary
judgment on that claim’” (quoting Kronisch, 150 F.3d at 128) (alterations and omission in original)).
28

Alarm Protection also sought injunctive relief. See Docket 325 (Amended Answer) at 14. In

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B. Defamation per se
Defamation per se requires proof of four elements: (1) a false and defamatory
statement; (2) an unprivileged publication to a third party; (3) fault amounting at least to
negligence; and (4) the existence of per se actionability. 29 SAFE asserts that none of the
four statements for which Alarm Protection has a recording can satisfy these four
elements.

Alarm Protection counters that for the three statements SAFE made to

customers, such elements are disputed. Alarm Protection also maintains that it can base
its defamation per se claim on other statements for which the recordings were spoliated.
At oral argument, Alarm Protection acknowledged that the statements SAFE made to
Alarm Protection’s representative cannot support a claim of defamation per se because
those statements were not a “publication to a third party.” 30 Accordingly, the Court will
not address the statements to Mr. Jesclard. SAFE raises several points on which it seeks
summary judgment on Alarm Protection’s claim. The Court will address each in turn.

Alaska, a UTPA claim for injunctive relief can proceed even without a showing of actual damages.
See AS 45.50.535(a) (authorizing “any person who was the victim of the unlawful act, whether or
not the person suffered actual damages” to “bring an action to obtain an injunction prohibiting a
seller or lessor from continuing to engage in an act or practice declared unlawful”).
29

See DeNardo v. Bax, 147 P.3d 672, 678 (Alaska 2006).

30

See, e.g., Eggleston v. Klemp, 295 Fed. App’x 233, 234 (9th Cir. 2008) (“Publications made to
agents of the complaining party will not support an action for defamation when the complaining
party or his agents induced the publication.”).
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1. The Smith Call
SAFE contends that the statements made to Philip Smith 31 are not defamatory
because they are not clearly about Alarm Protection. 32

It is true that SAFE’s

representative did not mention Alarm Protection by name, but the reference to
“aggressive door-to-door salesmen” closely followed Mr. Smith’s statement that Alarm
Protection salesmen had been by his house. 33 There is at the very least a genuine
dispute as to whether this statement was about Alarm Protection; the Court will not grant
summary judgment on this basis.
2. The Esquiro Call
A statement of opinion or belief cannot be the basis of a defamation action because
such statements cannot be “false.”34 SAFE contends that the statements made to Ms.
Esquiro are statements of opinion, not statements of fact, and thus cannot support a
defamation claim. 35 In SAFE’s view, because the SAFE representative’s statements were
conditional, they are opinion.

But as the Alaska Supreme Court explained in

Alaskaland.com, “[e]ven if a statement is an opinion, it may give rise to a defamation claim

31

SAFE occasionally refers in its briefing to Mr. Smith as “Mr. Phillips.” At oral argument, SAFE
clarified that these references are to Mr. Smith.
32

Docket 339 at 19–20.

33

See Docket 345 (conventional filing), Ex. 17 to Docket 344 (Kunst Decl.) at 2:15 (“It was Alarm
Protection.”) & 3:45 (warning of “aggressive door-to-door salespeople”)

34

See Alaskaland.com, LLC v. Cross, 357 P.3d 805, 820 (Alaska 2015).

35

Docket 339 at 20.

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if its ‘expression contains an implied assertion of false fact and is sufficiently derogatory
as to cause harm to the subject’s reputation.’” 36
One portion of the conversation between the SAFE representative and Ms. Esquiro
is particularly relevant to this inquiry:
Ms. Esquiro:
SAFE:
Ms. Esquiro:
SAFE:

“But it’s not like a, this isn’t a fraud thing?”
“Well, that’s a good question, and it lends itself to be.”
“Because they’re misrepresenting you guys?”
“Correct.” 37

Although the Court may determine whether a statement was defamatory as a
matter of law, 38 Alaska courts also recognize that whether a statement is one of opinion
or fact is sometimes an appropriate question for the jury. 39 The Court finds that a rational
jury could conclude that the statements to Ms. Esquiro “contain an implied assertion” of
fact—for example, that Alarm Protection was “misrepresenting” SAFE, and was thus not
to be trusted. The Court will not grant summary judgment on this basis. 40
3. Vagueness of the Statements
SAFE contends that the recorded statements are too vague to support a claim of
defamation per se. 41 A statement is defamation per se if it is “so unambiguous as to be

36

Alaskaland.com, 357 P.3d at 820 (quoting State v. Carpenter, 171 P.3d 41, 51 (Alaska 2007)).

37

Docket 345 (conventional filing), Ex. 19 to Docket 344 at 5:45.

38

See Alaskaland.com, 357 P.3d at 820.

39

See Alaska Civil Pattern Jury Instr. 16.06.

40

SAFE does not separately address the statements made to the third customer, Mr. Erwin. In
those statements, SAFE is alleged to have said that Alarm Protection was not honoring its
promises to send buy out checks and was “not legitimate.” See Docket 339 (Mot.) at 13. SAFE
does allege that at least some of these statements were true, as discussed below.
41

Docket 339 at 21.

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reasonably susceptible to only one interpretation—that is, one which has a natural
tendency to injure another’s reputation.” 42 Statements that if true would “adversely affect
[Alarm Protection’s] fitness for the proper conduct of [its] lawful business, trade, or
profession” fall in this category. 43 The Court concludes, rather easily, that statements
that a company is “not legitimate” or “a fraud” are sufficiently unambiguous to constitute
defamation per se.
4. Falsity or Truth of the Statements
SAFE argues that the statements it made were not defamatory because they were
true. While it may be that some statements made by SAFE were indisputably true, there
is at the very least a genuine factual dispute as to whether Alarm Protection is “not
legitimate” or “a fraud.” The truth or falsity of the statements is for the jury to decide after
hearing the evidence; the Court will not grant summary judgment on this basis.
5. Privileged Statements
SAFE contends that its statements were privileged because they were made in the
context of a business relationship. 44 As the Alaska Supreme Court has explained, a
conditional privilege exists “when a person ‘having a common interest in a particular
subject matter believes that there is information that another sharing the common interest
is entitled to know.’” 45 Such a common interest may exist “when a legal relationship exists

42

Greene v. Tinkler, 332 P.3d 21, 39 n.72 (Alaska 2014) (quoting Alaska Statebank v. Fairco, 674
P.2d 288, 295 n.15 (Alaska 1983)).

43

Greene, 332 P.3d at 39 (quoting Restatement (Second) of Torts § 573).

44

Docket 339 at 22–23.

45

Briggs v. Newton, 984 P.2d 1113, 1121 (Alaska 1999) (quoting Schneider v. Pay ’N Save Corp.,

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between the defendant and the person on whose behalf he intervenes.” 46 SAFE contends
that because the customers were still technically under contract with SAFE, the
statements to them were privileged.
Alarm Protection responds that the SAFE representatives making the statements
did not know that the customers were still under contract with SAFE. 47 SAFE asserts in
its reply that there is no authority for requiring such knowledge. 48 The Court disagrees.
As noted above, a privilege exists when the person making the statement “believes that
there is information that another sharing the common interest is entitled to know.” 49 The
Alaska Supreme Court has subsequently elaborated that a privilege exists when “the
circumstances induce a correct or reasonable belief that (a) there is information that
affects a sufficiently important interest of the publisher, and (b) the recipient's knowledge
of the defamatory matter will be of service in the lawful protection of the interest.” 50 Thus,
if the SAFE representatives making the statements did not believe there was any such
common interest, then they cannot assert the privilege. The Ohio case that SAFE relies
on in its reply says nothing to the contrary. 51

723 P.2d 619, 623–24 (Alaska 1986)).
46

Briggs, 984 P.2d at 1121 (quoting Schneider, 723 P.2d at 624).

47

Docket 396 at 17.

48

Docket 413 at 2.

49

Briggs, 984 P.2d at 1121 (quoting Schneider, 723 P.2d at 623–24).

50

DeNardo v. Bax, 147 P.3d 672, 679 (Alaska 2006) (quoting Restatement (Second) of Torts
§ 594).
51

See Docket 413 at 2–3 (discussing Hahn v. Kotten, 331 N.E.2d 713 (Ohio 1975) (recognizing
a special relationship between an insurer and insured giving rise, in some contexts, to a qualified
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At trial, it will be SAFE’s burden to prove the existence of a privilege. 52 SAFE’s
burden on this issue at summary judgment is to show that the undisputed facts show that
every reasonable jury would conclude by a preponderance of the evidence that its
statements were privileged. SAFE has not produced sufficient evidence to meet this
burden, and the Court will not grant summary judgment on this basis. Moreover, there is
at least a dispute of fact as to whether, if any such privilege existed, it was abused. The
fact that the SAFE representatives apparently did not believe there was any existing legal
relationship with the customers but nonetheless (allegedly) made defamatory comments
about Alarm Protection is potentially potent evidence that the statements were made for
a purpose other than that protected by the privilege. 53
6. Proof of at least Negligence
To prove defamation, Alarm Protection must show at least negligence; SAFE
contends that Alarm Protection cannot do so. SAFE asserts that it heard from some of
its former customers that Alarm Protection salespeople “had been falsely informing
SAFE’s customers that SAFE had gone out of business, was going out of business, or
that [Alarm Protection] had purchased SAFE’s contracts in Alaska, among other things.” 54

privilege).
52

See DeNardo, 147 P.3d at 679 & n.20 (citing Briggs, 984 P.2d at 1121). For claims of privilege
in the tortious interference context, it is the plaintiff’s burden to prove interference was not
privileged. See Sisters of Providence in Washington v. A.A. Pain Clinic, Inc., 81 P.3d 989, 997
(Alaska 2003).

53

See Briggs, 984 P.2d at 1121 (noting that the privilege may be abused if the statement is “not
reasonably believed to be necessary to accomplish the purpose for which the occasion is
privileged” (quoting Schneider, 723 P.2d at 625)).
54

Docket 339 at 8.

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SAFE specifically cites to communications between one of its customers and SAFE’s Vice
President for Acquisitions. 55
On its motion for summary judgment, SAFE must show that the undisputed facts
entitle it to judgment as a matter of law—in this context because no reasonable jury could
find that SAFE acted negligently.

SAFE has shown that it had some information

suggesting that Alarm Protection had told one customer that Alarm Protection was “‘taking
over’ responsibility for monitoring [the customer’s] security system,” 56 but it will be for the
jury to determine whether, in light of this information, SAFE’s subsequent conduct
“create[d] an unreasonable risk of harm.” 57 One aspect of this inquiry will be precisely
what conduct SAFE engaged in, as the amount of investigation that a reasonable person
would conduct could depend on how widely a person intended to publish the statement.
Because the scope of SAFE’s conduct is disputed (and subject to a possible inference
from spoliation), the Court cannot assess the reasonableness of SAFE’s actions as a
matter of law.
C. Privileged Interference
SAFE contends that it was privileged to interfere with Alarm Protection’s contracts
because it had an interest in its own customers. However, because the Court will grant
summary judgment to SAFE on the tortious interference claims based on Alarm

55

See Docket 340 (Ratcliffe Decl.) at 2, ¶¶ 4–6; Docket 340-1 (email exchange confirming
substance of conversation).

56

Docket 340-1 at 1.

57

Restatement (Second) of Torts § 580B cmt. g (defining the negligence standard in defamation
cases).
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Protection’s failure to produce evidence of actual damages, the Court does not reach this
issue.
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
SAFE’s Motion for Summary Judgment at Docket 337. 58
The Court GRANTS the motion as follows:
•

SAFE is entitled to summary judgment on Alarm Protection’s first cause of action
(tortious interference with contract), second cause of action (tortious interference
with prospective business relationship), and fourth cause of action (defamation per
quod).

•

SAFE is entitled to partial summary judgment on Alarm Protection’s fifth cause of
action (violation of UTPA). SAFE is entitled to a judgment that it is not liable for
damages to Alarm Protection for the alleged violation of the UTPA.
The Court DENIES the motion as to Alarm Protection’s third cause of action

(defamation per se), and DENIES the motion as to Alarm Protection’s cause of action for
an injunction pursuant to the UTPA.
DATED this 7th day of February, 2017 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

58

SAFE filed an unredacted but otherwise identical version of the motion at Docket 339; that
motion is also disposed of by this order.

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