Anderson et al v. Bigelow et al
Filing
31
ORDER Granting Bigelow's Motion for Summary Judgment 24 . Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NORTH POINT ADVISORS, INC.
and ADRIAN ANDERSON,
Plaintiff,
Case No. 15-13471
HON. DENISE PAGE HOOD
v.
THE DETROIT POLICE AND FIRE
RETIREMENT SYSTEM and
RYAN BIGELOW,
Defendants.
_________________________________________/
ORDER GRANTING BIGELOW’S
MOTION FOR SUMMARY JUDGMENT [#24]
I.
INTRODUCTION
On January 31, 2018, Ryan Bigelow, the only remaining Defendant
(“Bigelow”), filed a Motion for Summary Judgment [Dkt. No. 24]. Plaintiff Adrian
Anderson, the only remaining Plaintiff (“Anderson”), filed a response on April 13,
2018, after the Court rescheduled the hearing to be held on April 11, 2018. A hearing
on the Motion was held on April 16, 2018. For the reasons that follow, the Court
grants Bigelow’s Motion.
II.
BACKGROUND
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This action arises out of an employment relationship between the named
Plaintiffs and Defendant Detroit Police and Fire Retirement System (“PFRS”). PFRS
is a defined pension benefit plan and defined contribution plan, and the employer and
municipal plan sponsor for the system is the City of Detroit. PFRS exists to pay
benefits to its active members, retirees and beneficiaries.
Plaintiffs served as investment managers and due diligence advisors for PFRS,
managing certain investments including PFRS’s emerging manager portfolio.
Plaintiffs allege that their investment performance was satisfactory and had been
approved by PFRS’s Trustees’s investment consultant, Wilshire Associates, before
PFRS terminated the relationship due to comments made by Bigelow.
On June 29, 2016, Plaintiffs filed a three-count Second Amended Complaint
stemming from the alleged statements by Defendants: (1) Count I - business
defamation (libel and slander)/defamation per se; (2) Count II - false light; and (3)
Count III - intentional infliction of emotional distress. Plaintiffs alleged that they
provided satisfactory performance and work for PFRS but that:
Defendant PFRS, through Defendant Ryan Bigelow, made and published
false statements in the October 2014 board meetings against Defendants
[sic] which resulted in the PFRS Board of Trustees’ termination of
Defendants [sic]. The statements suggested that Plaintiffs had been
involved in illegal conduct and falsely associated Plaintiffs with recent
criminal convictions of City of Detroit public officials[,] including the
former Mayor of the City [of] Detroit, Mayor Kwame Kilpatrick[.]
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[Dkt. No. 12, PgID 48-49 at ¶12]
On March 22, 2017, the Court dismissed Counts I and II, in their entirety, and
Count III, as it related to PFRS and Plaintiff North Point Advisors, Inc. See Dkt. No.
17. As a result, the sole remaining claim is Anderson’s intentional infliction of
emotional distress claim against Bigelow. During discovery, the following evidence
became known.
On October 2, 2014, at the request of PFRS’s Board of Trustees (the “Board”),
Bigelow addressed the Board regarding PFRS’s Emerging Manager Program. Dkt.
No. 24, Ex. B at 19-55; Ex. C at 19-20; Ex. D; Ex. E; Ex. F. In a memorandum
addressed to the Board, Bigelow recommended that management of the Emerging
Manager Program be brought “in-house,” to be managed by PFRS’s investment staff,
rather than continue the relationship with Plaintiffs.
Bigelow’s memorandum
identified four reasons for the recommendation: (1) “the lack of continuity and control
between the broad investment program [of PFRS] and the Emerging Manager
Program,” (2) uncertainty as to PFRS’s “direct authority to hire/fire managers under
the Emerging Manager Program,” (3) cost-savings of “$400,000 per year should the
board decide to bring the program in-house,” and (4) “concerns with the retirement
system being the only (or a significantly large) client of a vendor or investment
manager/advisor.” Dkt. No. 24, Ex. D.
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There is no evidence that Anderson was present at the October 2, 2014 meeting,
and his deposition reveals that his understanding of what occurred at the meeting – at
least at the time Plaintiffs’ initiated this lawsuit – was based entirely on what
Anderson was told by Donald Tabron, an employee of North Point Advisors, Inc. Dkt.
No. 24, Ex. A, at 45-46. An audio of the October 2, 2014 Board meeting has been
submitted as evidence. See Dkt. No. 24, Ex. H. During discovery, Anderson identified
only one allegedly offensive statement made by Bigelow at the October 2, 2014 Board
meeting (the “IIED Statement”):
I think this board has a history … and to the extent that you can separate
yourself from some of that bad history … you make yourself look pretty
good. And I think that the individual that runs North Point is tied to
some of that bad history.
Dkt. No. 24, Ex. B, at 39.1
III.
APPLICABLE LAW & ANALYSIS
A.
Standard of Review
Summary judgment is appropriate in cases where “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317,
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See Dkt. No. 24, Ex. G (Plaintiffs’ Discovery Responses, Response to Interrogatory No.
1); Dkt. No. 24, Ex. A at 43, 66-69.
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322 (1986). The moving party bears the burden of demonstrating that summary
judgment is appropriate. Equal Employment Opportunity Comm’n v. MacMillan
Bloedel Containers, Inc., 503 F.2d 1086, 1093 (6th Cir. 1974).
The Court must
consider the admissible evidence in the light most favorable to the nonmoving party.
Sagan v. United States of Am., 342 F.3d 493, 497 (6th Cir. 2003).
“At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.”
Scott v. Harris, 550 U.S. 372, 380 (2007) (emphasis added). To create a genuine issue
of material fact, the nonmovant must do more than present “some evidence” of a
disputed fact. Any dispute as to a material fact must be established by affidavits or
other documentary evidence. Fed. R. Civ. P. 56(c). “If the [nonmovant’s] evidence
is merely colorable, or is not significantly probative, summary judgment may be
granted.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249-50 (citations omitted).
Accordingly, a nonmovant “must produce evidence that would be sufficient to require
submission to the jury of the dispute over the fact.” Mathieu v. Chun, 828 F. Supp.
495, 497 (E.D. Mich. 1993) (citations omitted). “When opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Scott, 550 U.S. at 380.
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B.
Analysis
To prevail on a claim for intentional infliction of emotional distress, “a plaintiff
must prove the following elements: (1) extreme and outrageous conduct, (2) intent or
recklessness, (3) causation, and (4) severe emotional distress.” Hilden v. Hurley Med.
Ctr., 831 F.Supp.2d 1024, 1046 (E.D. Mich. 2011) (citing Hayley v. Allstate Ins. Co.,
262 Mich.App. 571, 577 (2004) (internal citation and quotations omitted)). “Liability
for the intentional infliction of emotional distress has been found only where the
conduct complained of has been so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be regarded as atrocious and
utterly intolerable in a civilized community.” Graham v. Ford, 237 Mich. App. 670,
674 (1999).
It is not sufficient to show that the defendant acted tortiously,
intentionally, or even criminally. Id. The test has been described as whether “the
recitation of the facts to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Roberts v. AutoOwners Ins. Co., 422 Mich. 594, 603 (1985).
Although the Court held that Plaintiffs conduct of Defendant, as alleged in the
Second Amended Complaint, could rise to the level of being “atrocious and utterly
intolerable in a civilized community” or would make an average member of the
community exclaim, “Outrageous!,” the Court finds that Plaintiffs have failed to
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submit any evidence to support their claim. Unlike Plaintiffs’ allegations, the IIED
Statement does not indicate that Plaintiffs: (1) “were charged with crimes relative to
the highly publicized public corruption charges;” or (2) “are corrupt crooks worthy
only of shunning and avoidance.” Anderson acknowledged that Bigelow never used
the word “crime” at the October 2, 2014 meeting and never stated that Anderson or
anyone affiliated with North Point Advisors, Inc. had been charged with any crime.
Dkt. No. 24, Ex. A at 68-69. Anderson testified only that he believed Bigelow’s
comment implied that Anderson was associated with certain criminal trials taking
place at the time of the October 2, 2014 Board meeting. Dkt. No. 24, Ex. A at 47,
67-68. The Court does not find that Anderson’s belief regarding that implication,
even if accurate, would arouse the average member of the community to “arouse his
resentment against” Bigelow. And, although Plaintiffs’ allegations indicated that
Defendants falsely stated that Plaintiffs were associated with well-known public
officials convicted of public corruption (specifically, former Detroit Mayor Kwame
Kilpatrick and others), no evidence has been submitted to the Court that Bigelow
falsely stated that Plaintiffs were associated with such persons.
For the stated reasons, the Court finds that the IIED Statement cannot be
categorized as “atrocious and utterly intolerable in a civilized community,” nor would
it make an average member of the community exclaim, “Outrageous!” The Court
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concludes that Anderson cannot satisfy the first element of his intentional infliction
of emotional distress claim.
The Court finds that there is no evidence that Bigelow intended to cause severe
emotional distress to Anderson or even that Bigelow’s statement could have caused
severe emotional distress for Anderson. Anderson testified at his deposition that he
has no knowledge or other evidence regarding what Bigelow intended by making the
IIED Statement. Dkt. No. 24, Ex. A at 68. Anderson testified that he has no
knowledge or other evidence as to whether the IIED Statement had any bearing on
how the Board voted at the October 2, 2014 meeting. Dkt. No. 24, Ex. A at 71-72, 7475. And, when asked at his deposition about his alleged emotional distress, Anderson
testified that he has never been diagnosed as depressed by any medical or other
professional, has not received treatment in connection with his alleged distress, and
has not suffered any other manifestation of the alleged distress in his life. Dkt. No. 24,
Ex. A at 85-86, 113, 115. Accordingly, the Court concludes that there is an absence
of material fact regarding the second, third, and fourth elements of Anderson’s
intentional infliction of emotional distress claim.
The Court concludes that Bigelow’s motion for summary judgment must be
granted.
IV.
CONCLUSION
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For the reasons stated above,
IT IS ORDERED that Bigelow’s Motion for Summary Judgment [Dkt. No. 24]
is GRANTED.
IT IS FURTHER ORDERED that this cause of action is DISMISSED WITH
PREJUDICE.
Judgment shall be entered accordingly.
IT IS ORDERED.
S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: September 11, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of
record on September 11, 2018, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager
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