Hoff v. Walco International, Inc.

Filing 30

ORDER GRANTING 23 Motion for Summary Judgment. Clerk is directed to enter final judgment against Hoff and in favor of Walco. Signed by Judge Larry R. Hicks on 1/23/2013. (Copies have been distributed pursuant to the NEF - JK)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 10 11 12 13 14 BRIAN HOFF, ) ) Plaintiff, ) ) v. ) ) WALCO INTERNATIONAL, INC., a foreign ) corporation ) ) Defendant. ) ) ) 03:11-CV-00623-LRH-WGC ORDER 15 16 This is a defamation action. Before the court is defendant Walco International, Inc.’s 17 (“Walco’s”) Motion for Summary Judgment (#231 ). Plaintiff Brian Hoff has responded (#26), and 18 Walco has replied (#28). 19 I. Facts and Procedural History 20 Walco is in the business of selling animal health products and services. (Walco’s Motion 21 for Summary Judgment (“MSJ”) #23, Ex. 2, p. 17:20-18:8.) In March 2006, Walco hired Hoff as a 22 salesman. (Id. at Exs. 3, 4.) In 2011, Walco incurred two complaints from his coworkers, one from 23 Kristen Ernst and one from Jennifer Welch.2 (Id. at Ex. 6, Attachments B, C.) These complaints 24 1 25 26 2 Refers to the court’s docket number. The parties address other complaints made against Hoff, but these complaints form the basis of the defamation claim. 1 alleged that Hoff had acted unprofessionally–coming to work with a hangover, disparaging 2 subordinates in front of one another, making inappropriate comments. (Id. at Ex. 6, Attachment E.) 3 Following an investigation into these complaints, Walco terminated Hoff on July 19, 2011. 4 Hoff alleges that Walco defamed him by repeating Ernst and Welch’s defamatory 5 complaints to other corporate employees. Walco now moves for summary judgment. 6 II. 7 Legal Standard Summary judgment is appropriate only when “the pleadings, depositions, answers to 8 interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 9 genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of 10 law.” Fed. R. Civ. P. 56(c). In assessing a motion for summary judgment, the evidence, together 11 with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable 12 to the party opposing the motion. Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 13 U.S. 574, 587 (1986); County of Tuolumne v. Sonora Community Hospital, 236 F.3d 1148, 1154 14 (9th Cir. 2001). 15 The moving party bears the burden of informing the court of the basis for its motion, along 16 with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 17 477 U.S. 317, 323 (1986). On those issues for which it bears the burden of proof, the moving party 18 must make a showing that is “sufficient for the court to hold that no reasonable trier of fact could 19 find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 20 1986); see also Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129, 1141 (C.D. Cal. 2001). 21 To successfully rebut a motion for summary judgment, the non-moving party must point to 22 facts supported by the record which demonstrate a genuine issue of material fact. Reese v. 23 Jefferson School District No. 14J, 208 F.3d 736 (9th Cir. 2000). A “material fact” is a fact “that 24 might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 25 477 U.S. 242, 248 (1986). Where reasonable minds could differ on the material facts at issue, 26 summary judgment is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A 2 1 dispute regarding a material fact is considered genuine “if the evidence is such that a reasonable 2 jury could return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248. The mere 3 existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient to 4 establish a genuine dispute; there must be evidence on which the jury could reasonably find for the 5 plaintiff. See id. at 252. 6 III. Discussion 7 In Nevada, the plaintiff bears the burden of proving four elements in a defamation claim: 8 “(1) a false and defamatory statement; (2) an unprivileged publication to a third person; (3) fault, 9 amounting to at least negligence; and (4) actual or presumed damages.” Clark County School 10 District v. Virtual Education Software, Inc., 213 P.3d 496, 503 (Nev. 2009). However, the 11 defendant bears the burden of proving that a publication is “privileged.” Pope v. Motel 6, 114 P.3d 12 277, 284 (Nev. 2005). Privileged publications include intracorporate communications that occur “in 13 the regular course of the corporation’s business.” Id. (quoting Simpson v. Mars Inc., 929 P.2d 966, 14 968 (Nev. 1997)). 15 Here, Walco asserts the defense of intracorporate privilege. The parties do not dispute that 16 all allegedly defamatory statements were made to management and human resources personnel at 17 Walco (and at Walco’s parent company). Furthermore, all allegedly defamatory statements were 18 made in the course of the investigation into the complaints against Hoff. (See Walco’s MSJ #23 at 19 Ex. 2, pp. 23:10-18; 108:20-25.) And such investigations complied with the company’s “policies 20 and procedures.” (Id. at Ex. 5, ¶ 5 (noting that “actions in investigating the complaints against Mr. 21 Hoff . . . were proper and complied with the Company’s policies and procedures”); id. at Ex. 6, 22 Attachment A (suggesting that “Company policy” includes investigating employee complaints); id. 23 at Ex. 9, ¶ 10 (stating that records of the investigation and termination were kept “in the regular 24 course of business”).) Therefore, the defamatory statements were privileged intracorporate 25 communications made “in the regular course of the corporation’s business.” Pope, 114 P.3d at 284. 26 See also Circus Circus Hotels, Inc. v. Witherspoon, 657 P.2d 101, 105 (Nev. 1983) (“A qualified or 3 1 conditional privilege exists where a defamatory statement is made in good faith on any subject 2 matter in which the person communicating has an interest, or in reference to which he has a right or 3 a duty, if it is made to a person with a corresponding interest or duty.”). 4 However, Hoff argues that Walco abused, and thus waived, the intracorporate privilege by 5 acting with “malice in fact.” “A conditional privilege [like the intracorporate privilege] may be 6 abused by publication in bad faith, with spite or ill will or some other wrongful motivation toward 7 the plaintiff, and without belief in the statement’s probable truth.” Circus Circus, 657 P.2d at 105 8 n. 2 (citing Gallues v. Harrah's Club, 491 P.2d 1276, 1277 (1971)). If Walco published the 9 allegedly defamatory statements with malice, there is a genuine issue of fact as to whether the 10 11 statements are protected by the intracorporate privilege. See id. at 105. Hoff has not provided evidence upon which a reasonable jury could find that Walco acted 12 with malice. See Liberty Lobby, 477 U.S. at 248. First, the gravamen of malice in fact is the 13 defamer’s reckless disregard for the truth–a “high degree of awareness of the statement’s probable 14 falsity.” Williams v. University Medical Center of Southern Nevada, 688 F. Supp. 2d 1134, 1147 15 (D. Nev. 2010). Hoff has presented no evidence that Walco had such an awareness.3 Furthermore, 16 the Ernst and Welch complaints themselves were not likely to trigger such an awareness since Hoff 17 had incurred similar complaints in the past.4 (See Walco’s MSJ #23 at Ex. 6, Attachment A.) 18 19 20 3 21 22 23 24 25 26 Hoff’s main evidence for “bad faith, [ ] spite or ill will” arises from an alleged 2006-era grudge held against him by his supervisor, Mark Ziller. Hoff stated that “[Ziller] offered me a job in 2006, and I turned him down, and I believe [the wrongful termination is] payback.” (Hoff’s Response #26, Ex. 2, p. 110:13-15.) But then Ziller’s “vendetta” goes to Hoff’s termination, not the publication of allegedly defamatory statements. Hoff also alleges that Ernst and Welch lodged their complaints against him in bad faith. More than bad faith is necessary to establish malice, however: “the [malice] inquiry concerns the defendant’s belief regarding truthfulness of the published material” rather than “the defendant’s attitude toward the plaintiff.” Williams, 688 F. Supp. 2d at 1147. 4 And, in fact, Hoff’s termination letter referenced these earlier complaints as contributing to his ultimate termination. (Walco’s MSJ #23 at Ex. 6, Attachment E.) 4 1 Without evidence of reckless disregard for the truth, Hoff cannot prove malice in fact.5 2 IV. 3 Conclusion For the foregoing reasons, Hoff has failed to rase a genuine issue of fact with respect to the 4 application of the intracorporate privilege.6 The privilege applies, and Hoff’s defamation claim 5 must fail. Summary judgment is therefore appropriate. 6 IT IS THEREFORE ORDERED that Walco’s Motion for Summary Judgment (#23) is 7 GRANTED. The Clerk of Court is directed to enter final judgment against Hoff and in favor of 8 Walco. 9 10 IT IS SO ORDERED. DATED this 23rd day of January, 2013. 11 __________________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5 Even assuming the doubtful proposition that Walco may be vicariously liable for Ernst and Welch’s alleged defamatory complaints, the intracorporate privilege would still apply for the reasons discussed above. See, e.g, Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 578 (Tex. 2002) (holding that workplace misconduct complaints do not give rise to respondeat superior liability). 6 Hoff has abandoned his prayer for injunctive relief and his claim for self-defamation by failing to respond to Walco’s motion for summary judgment on these issues. See Local Rule 7-2(d). 5

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