KIRKMAN v. TISON et al
Filing
75
MEMORANDUM OPINION AND ORDER Signed by MAG/JUDGE L. PATRICK AULD on 10/15/2012, that Defendants' Motion to Strike or Alternatively Motion to Allow Surreply (Docket Entry 70 ) is GRANTED in that the portion of Plaintiff's Reply (Dock et Entry 66 ) that concerns Federal Rule of Evidence 901 is STRICKEN, further that Plaintiff's Motion to Strike the Affidavits [sic] of Cheryl Babineau, the Declaration of Dustin K. Adler, and the Deposition of James Tison (Docket Entry 51 ) is DENIED, further that Defendants' Motion to Strike the Affidavit of Thomas Kirkman (Docket Entry 57 ) is GRANTED, further that Defendants' Motion for Partial Summary Judgment (Docket Entry 39 ) is GRANTED IN PART< /b> in that the Court enters judgment as a matter of law for Defendants on Plaintiff's UDTPA claim, but reserves the question of whether to submit Plaintiff's request for punitive damages to the fact-finder; further that Plaintiff's Motion for Summary Judgment (Docket Entry 45 ) is DENIED. (Israel, Lisa)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
THOMAS KIRKMAN,
)
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiff and
Counter Defendant,
v.
THOMAS TISON, ALAN HUTCHINSON,
and CUSTOM ROD BUILDERS GUILD,
INC.,
Defendants and
Counter Plaintiffs.
1:09CV886
MEMORANDUM OPINION AND ORDER
This
case
comes
before
the
Court
for
rulings
on:
(1) Defendants’ Motion for Partial Summary Judgment (Docket Entry
39); (2) Plaintiff’s Amended Motion for Summary Judgment (Docket
Entry 45); (3) Plaintiff’s Motion to Strike the Affidavits [sic] of
Cheryl Babineau, the Declaration of Dustin K. Adler, and the
Deposition of James Tison (Docket Entry 51); (4) Defendants’ Motion
to Strike the Affidavit of Thomas Kirkman (Docket Entry 57); and
(5) Defendants’ Motion to Strike or Alternatively Motion to Allow
Surreply (Docket Entry 70).1
For the reasons that follow, the
Court will deny Plaintiff’s Amended Motion for Summary Judgment,
will grant in part Defendants’ Motion for Partial Summary Judgment,
1
The Parties consented to disposition of this case pursuant
to 28 U.S.C. § 636(c). (See Docket Entry 27.)
will deny Plaintiff’s Motion to Strike, and will grant Defendants’
Motions to Strike.
I.
BACKGROUND
Plaintiff commenced this case by filing a Complaint in state
court
asserting
state
law
causes
of
action
for
malicious
prosecution, libel per se, unfair and deceptive trade practices,
and civil conspiracy.
(Docket Entry 2.)2
Said claims all relate
to Defendants’ alleged procuring (on June 8, 2008) of a state
misdemeanor summons (the “Summons”) charging Plaintiff with sending
harassing e-mails.
(Id. at 1-4 and Ex. A.)
The Summons states:
[T]here is probable cause to believe that on or about
[August 8, 2006, to June 8, 2008] in [Guilford County]
[Plaintiff] unlawfully and willfully did electronically
mail or electronically communicate to another, Members of
the Custom Rod Builders Guild, repeatedly for the purpose
of abusing and annoying another, Members of the Custom
Rod Builders Guild. To Wit: [Plaintiff] has sent out emails to Advertisers of the Custom Rod Builders Guild
telling the Advertisers to withdraw their support of
Custom Rod Builders Guild. This act was in violation of
[N.C. Gen. Stat. § 14-196.3(b)].
(Id. at Ex. A.)3
According to the Complaint, as of June 8, 2008, Defendants
Thomas Tison and Alan Hutchinson served as officers (or agents) and
as board members of Defendant Custom Rod Builders Guild, Inc.
2
The Parties later stipulated to the dismissal of the libel
claim. (Docket Entry 11.)
3
The Summons set an appearance date for Plaintiff of June 18,
2008. (Docket Entry 2 at Ex. A.) The Complaint does not indicate
whether Plaintiff ever received service of the summons or appeared
in court to answer the charge. (See id. at 1-4.)
-2-
(“Defendant CRBG”) and “Plaintiff was the only ‘competitor’ of
[Defendant CRBG] in North Carolina.”
(Id. at 1, 2 and 4.)4
The
Complaint further alleges that Defendant Tison, acting on behalf of
Defendant CRBG and at the direction of Defendant Hutchinson,
obtained the Summons, that such action injured Plaintiff and his
business, and that, “[i]n their capacities as Board Members,
Defendants
Tison
[and]
Hutchinson
.
.
.
conspired
amongst
themselves to injure Plaintiff by taking out the spurious [Summons]
. . . .”
(Id. at 3-4.)
As support for that allegation, in the
Complaint and an attachment thereto, Defendant Tison is quoted as
stating that “the board [of Defendant CRBG] was directed [by a
conclave of the organization’s membership] to do something about
the anonymous e-mails that have been crippling our organization for
years” and that “[a]fter much soul searching and painstaking
research [the board members of Defendant CRBG] filed a criminal
complaint in the North Carolina Court System.”
(Id. at 2, Ex. B.)5
The Complaint further alleges that Defendants procured the
Summons “maliciously, without probable cause” and that it “was
subsequently dismissed by the District Attorney for failure to
4
The Complaint does not describe Defendant CRBG’s business,
except to state that it owns and publishes “a quarterly journal
called the Rod Crafters Journal.”
(Docket Entry 2 at 2.)
According to Defendants, Defendant CRBG “is a not-for-profit Kansas
corporation” that “provides educational services to its members on
how to build custom fishing rods.” (Docket Entry 41 at 1.)
5
Moreover, the Summons identifies Defendant Tison as the
“Complainant.” (Docket Entry 2 at Ex. A.)
-3-
state the elements of a crime.”
(Id. at 2-3.)
It also includes a
purported copy of that dismissal, on which (after the line stating
that “[t]he undersigned prosecutor enter[ed] a dismissal to the
above charge(s) and assign[ed] the following reasons”) the box for
“No crime is charged” bears a mark.
(Id. at Ex. C.)
A mark also
appears in the box for “Other; (specify),” with this explanation:
“[I]n the interest of the fair administration of justice; complaint
is more civil in nature than criminal and lends itself more to
disposition in the civil courts[.]”
(Id.)
The box for “There is
insufficient evidence to warrant prosecution for the following
reasons:” does not have a mark.
(Id.)
Defendants removed this case to this Court based on diversity
jurisdiction.
(Docket Entry 1.)
After the Court denied a motion
to dismiss (see Docket Entry 22 (adopting Docket Entry 15)),
Defendants filed an Answer (Docket Entry 23), which included a
counterclaim for injunctive relief against Plaintiff in which
Defendants ask the Court to “prohibit[] Plaintiff from contacting
Defendants or any officer, director, member, sponsor, or any
company
or
person
associated
with
[Defendant
CRBG]”
and
to
“prohibit[] Plaintiff from accessing the website and message boards
of [Defendant CRBG]” (id. at 5-6).
Thereafter, Defendants filed the instant Motion for Partial
Summary Judgment.
(Docket Entry 39.)
Plaintiff simultaneously
responded and filed his own Amended Motion for Summary Judgment
-4-
(Docket Entry 45), to which Defendants responded (Docket Entry 47).
Plaintiff
also
filed
a
Motion
to
Strike
(Docket
Entry
51),
requesting that the Court strike several of the exhibits Defendants
submitted with their response to Plaintiff’s summary judgment
motion (see id. at 1).
striking
an
affidavit
Defendants, in turn, sought an order
Plaintiff
filed.
(Docket
Entry
57.)
Finally, Defendants moved the Court to strike part of Plaintiff’s
reply to their response to his earlier Motion to Strike or to
permit a surreply.
(Docket Entry 70.)
II.
A.
MOTIONS TO STRIKE
Defendants’ Motion to Strike or to Allow Surreply
In opposing Plaintiff’s summary judgment motion, Defendants
relied on various exhibits.
(See Docket Entry 47.)
moved to strike certain of those exhibits.
Plaintiff
(Docket Entry 51.)
In
so doing, Plaintiff argued the Court should strike paragraphs 11
and 12 of an affidavit by Cheryl Babineau, because “[t]here is no
foundation laid for [her] testimony” regarding “‘responses’ from
. . . a service called ‘DidTheyReadIt.’”
(Docket Entry 54 at 3.)6
He also raised hearsay, relevance, improper opinion, and undue
prejudice objections to her affidavit.
6
(See id. at 3-4.)
Ms. Babineau described “DidTheyReadIt” as a computer program
that notifies a sender that a recipient has viewed the sender’s
email and conveys certain information about that recipient to the
sender. (Docket Entry 47-2, ¶¶ 5, 6, 11, 14.)
-5-
Defendants’ Response did not directly address Plaintiff’s
conclusory “foundation” objection to paragraphs 11 and 12 of Ms.
Babineau’s affidavit, but instead focused on Plaintiff’s other
objections.
(See Docket Entry 59 at 2-10.)
Plaintiff replied, in
relevant part, by summarizing Defendants’ contentions regarding his
hearsay,
improper
opinion,
and
relevance
objections
and
then
stating:
“Assuming arguendo that [D]efendants’ arguments all have
merit, the testimony at issue is nevertheless inadmissible because
[D]efendants have failed to lay a proper foundation for their [sic]
admission.”
(Docket Entry 66 at 1-2 (emphasis added) (internal
footnote omitted).)
Plaintiff thereafter offered an extended
discussion of why certain parts of Ms. Babineau’s affidavit, as
well as testimony from two other witnesses, lacked an adequate
foundation under Federal Rule of Evidence 901.
(See id. at 2-4.)
By way of the instant Motion, Defendants ask the Court to
strike
Plaintiff’s
foregoing
arguments
(in
his
Reply)
about
authentication under Rule 901. (See Docket Entry 71 at 2-3.) More
specifically, Defendants assert that, “[a]s Plaintiff’s arguments
related to Rule 901 of the Federal Rules of Evidence were neither
raised in the Motion to Strike or Defendants’ response to that
Motion to Strike, raising them in the Reply is wholly improper and
[they] should not be considered by the Court.” (Docket Entry 71 at
3.)
Under this Court’s Local Rules, “[a] reply is limited to
discussion of matters newly raised in the response.”
-6-
M.D.N.C.
LR7.3(h).
Plaintiff argues that, in responding to his Motion to
Strike, “Defendants attempt for the first time to lay a foundation/
authenticate the ‘DidTheyReadIt’ program . . . .” (Docket Entry 72
at 2 (citing Docket Entry 59 at 4, 6, 7) (emphasis in original).)
Contrary to Plaintiff’s foregoing argument, Defendants did not
address
the
issue
of
foundation/authenticity
“DidTheyReadIt” program in the cited response.
59 at 2-10.)
as
to
the
(See Docket Entry
The briefing by Defendants to which Plaintiff points
(see Docket Entry 72 at 2 (citing Docket Entry 59 at 4, 6, 7))
addresses
hearsay,
not
foundation/authenticity.
Under
these
circumstances, the Court concludes that Plaintiff’s arguments about
Rule 901 go beyond the proper scope of a reply established by Local
Rule 7.3(h).
Accordingly, pursuant to Local Rule 83.4(a), the
Court will exercise its discretion to strike those portions of
Plaintiff’s Reply that address Rule 901.
B.
Plaintiff’s Motion to Strike the Affidavits [sic]
of Cheryl Babineau, the Declaration of Dustin K.
Adler, and the Deposition of James Tison
In the instant Motion, Plaintiff asks the Court to strike
averments from three witnesses that Defendants submitted with their
response to Plaintiff’s summary judgment motion.
at 1.)
(Docket Entry 51
“An affidavit or declaration used to support or oppose a
[summary judgment] motion must be made on personal knowledge, set
out facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters
-7-
stated.”
Fed. R. Civ. P. 56(c)(4).
Moreover, “[a] party may
object that the material cited [in a summary judgment motion] to
support or dispute a fact cannot be presented in a form that would
be admissible in evidence.”
Fed. R. Civ. P. 56(c)(2).
For the
reasons that follow, the Court will deny the instant Motion.
i.
Affidavit of Cheryl Babineau
Defendants attached an affidavit from Ms. Babineau (Docket
Entry 47-2) to their Response (Docket Entry 47) to Plaintiff’s
Amended Motion for Summary Judgment (Docket Entry 45).
In that
affidavit, Ms. Babineau identified herself as “a member of the
Custom Rod Builders Guild, Inc. since approximately 2001” (Docket
Entry 47-2, ¶ 2) and stated that she received “annoying, harassing
and unwanted emails from names and email addresses [she] do[es] not
know since approximately 2003,” including from the email address
“rodmcguild@yahoo.com” (id. ¶¶ 3-4).
Ms. Babineau then explained
that she attached an internet service called “DidTheyReadIt” to a
response she made to a harassing email from rodmcguild@yahoo.com.
(Id. ¶¶ 5-6.)
According to Ms. Babineau, that service “allow[s] a
sender of emails to track approximately when, and by what Internet
Protocol (‘IP’) address an email was read.”
Babineau
further
reported
that
she
received
(Id. ¶ 5.)
an
alert
Ms.
from
DidTheyReadIt confirming the opening of the response she made to an
email from rodmcguild@yahoo.com and providing the IP address used
to do so (id. ¶ 11).
Finally, Ms. Babineau averred that, around
-8-
the same time, she also corresponded by email with Plaintiff (id.
¶¶ 7-10) and that Plaintiff used an IP address that matched the IP
address identified in the DidTheyReadIt alert (id. ¶¶ 14-15).
The Court need “only consider striking statements that [the
moving party] both specifically identif[ies] and support[s] with
authority for striking.”
Wilson v. Budco, 762 F. Supp. 2d 1047,
1058 (E.D. Mich. 2011).
Plaintiff’s brief in support of his
instant Motion describes Ms. Babineau’s affidavit as “rife with
hearsay,” but only points to paragraphs 11 and 12.
54 at 3.)
(Docket Entry
Those paragraphs state:
11. Within 10 minutes of receiving Mr. Kirkman’s email
containing the above comment, I received my first
response from the DidTheyReadIt program I had attached to
the email response to rodmcguild@yahoo.com.
See
DidTheyReadIt Notice, attached hereto as Exhibit “3.”
12. That was the first time the DidTheyReadIt program
alerted me to the fact that my email response to
rodmcguild@yahoo.com had been opened or read.
(Docket Entry 47-2, ¶¶ 11-12.) According to Plaintiff, “[t]here is
no foundation laid for this testimony, e.g., the service is not
identified in any way, and the responses allegedly received by Ms.
Babineau fall clearly within the hearsay rule.”
(Docket Entry 54
at 3 (emphasis added).)
Plaintiff’s hearsay objection fails because “‘nothing “said”
by a machine . . . is hearsay.’”
United States v. Washington, 498
F.3d 225, 231 (4th Cir. 2007) (quoting 4 Christopher B. Mueller &
Laird C. Kirkpatrick, Federal Evidence § 380 (2d ed. 1994)).
-9-
Hearsay is “a statement that: (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers
in evidence to prove the truth of the matter asserted in the
statement.”
Fed. R. Evid. 801(c).
“Only a person may be a
declarant and make a statement. . . . [T]he raw data generated by
[] machines do not constitute ‘statements,’ and [] machines are not
‘declarants.’” Washington, 498 F.3d at 231 (emphasis in original).
Ms. Babineau’s description of the automated alert she received from
DidTheyReadIt thus does not constitute hearsay.
Nor does Plaintiff’s “foundation” objection warrant striking
paragraphs 11 and 12 of Ms. Babineau’s affidavit.
Plaintiff did
not develop this objection in any meaningful way or cite any
authority to support it.
(See Docket Entry 54 at 3.)
By Local
Rule, all arguments “shall refer to all statutes, rules and
authorities
relied
upon.”
M.D.N.C.
LR7.2(a)(4).
“[j]udges are not expected to be mindreaders.
Moreover,
Consequently, a
litigant has an obligation to spell out its arguments squarely and
distinctly or else forever hold its peace.”
Rivera-Gomez v. de
Castro, 843 F.2d 631, 635 (1st Cir. 1988) (internal citation and
quotation marks omitted). In light of the foregoing authority, the
Court declines to strike the challenged portion of Ms. Babineau’s
affidavit based on Plaintiff’s conclusory “foundation” objection.
Next, Plaintiff argues that Ms. Babineau’s “conclusion” about
the “‘IP address, which [Plaintiff] was using to communicate with
-10-
[her]’ . . . is totally irrelevant to the question of whether
[Plaintiff] sent the anonymous emails [D]efendants complain of”
(Docket Entry 54 at 3 (quoting Docket Entry 47-2, ¶ 15)) and “has
no
‘tendency
to
make
the
existence
of
any
fact
that
is
of
consequence to the determination of the action more probable or
less probable than it would be without the evidence’” (id. at 3-4
(quoting Fed. R. Evid. 401)).
To the contrary, evidence that Ms.
Babineau received emails from Plaintiff originating from the same
IP address as the one apparently utilized by rodmcguild@yahoo.com
does have potential relevance in this case.
First, such evidence
(particularly in conjunction with other evidence) might support an
inference that Plaintiff did send harassing emails (as Defendants’
counterclaim contends).
Second, such evidence bears upon the
question (material to Plaintiff’s claims) of whether (at the time
they
procured
ultimately
the
proven
harassing emails.
Summons)
correct
or
Defendants
not)
to
had
a
believe
basis
(whether
Plaintiff
sent
The Court thus will not strike Ms. Babineau’s
affidavit based on Plaintiff’s relevance objection.
Plaintiff further argues that “the methodology used by Ms.
Babineau runs afoul of the prohibition set forth in evidentiary
Rule 701 which prohibits use of ‘technical, or other specialized
knowledge within the scope of Rule 702.’”
(quoting Fed. R. Evid. 701(c)).)
testimony by lay witnesses, states:
-11-
(Docket Entry 54 at 4
Rule 701, governing opinion
If a witness is not testifying as an expert, testimony in
the form of an opinion is limited to one that is:
(a)
rationally based on the witness’s perception;
(b)
helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and
(c)
not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.
Fed. R. Evid. 701 (emphasis added).
Plaintiff does not identify
the “methodology” to which he objects (see Docket Entry 54 at 4)
but, regardless, Rule 701 does not provide a basis for striking Ms.
Babineau’s affidavit because she has offered no statement that
constitutes
an
“opinion”
(see
Docket
Entry
47-2,
¶¶
1-15).
Instead, Ms. Babineau merely has relayed a factual account of her
use of the DidTheyReadIt program.
(Id. ¶¶ 5-15.)
Finally, Plaintiff asserts that “Ms. Babineau’s testimony is
‘substantially outweighed by the danger of . . . confusion of the
issues, or misleading the jury,’ [Fed. R. Evid. 403], given that
[D]efendants [sic] own expert has concluded that [Plaintiff] cannot
be
identified
as
the
author/sender
of
any
of
the
allegedly
offending emails.” (Docket Entry 54 at 4 (citing Docket Entry 46-4
at 2-3).)
The fact that the expert retained by Defendants to
examine Plaintiff’s computer for purposes of this litigation failed
to
find
evidence
that
permitted
him
to
positively
identify
Plaintiff as the sender of any specific harassing emails does not
make
inadmissibly
confusing
or
misleading
all
other
evidence
(regarding events prior to the procuring of the Summons) that
-12-
reasonably could have led Defendants to believe Plaintiff did send
harassing emails.
Accordingly, the Court rejects Plaintiff’s
objection under Rule 403.
In sum, Plaintiff has failed to provide a valid basis for the
Court to strike Ms. Babineau’s affidavit.7
ii.
Declaration of Dustin K. Adler
In support of his request that the Court strike the Adler
Declaration, Plaintiff simply states that “[t]he Adler Declaration
. . . relied on by [D]efendants suffer[s] from all the same
infirmities as the Babineau affidavit.
[Mr. Adler has not] been
designated as an expert, and [his] lay opinion employs the same
impermissible
‘cloak’
and
dagger
‘technical
knowledge’ as Ms. Babineau, except more so.”
4.)
or
specialized
(Docket Entry 54 at
The Court declines to undertake any analysis of Plaintiff’s
blanket evidentiary objections to the Adler Declaration based on
mere reference to his challenges to Ms. Babineau’s affidavit.
Wilson, 762 F. Supp. 2d at 1058.
See
Instead, the Court will consider
only Plaintiff’s somewhat more specific contention that Mr. Adler
offered impermissible expert opinions.
As to that matter, the Court notes that, in his Declaration,
Mr. Adler identified himself as the “author of the ZeroForum
software that powers the Custom Rod Builders Guild forum[s] at
7
Nonetheless, as the discussion below reflects, Plaintiff’s
summary judgment motion fails without consideration of Ms.
Babineau’s averments about the DidTheyReadIt alert.
-13-
http://forums.rodguild.com/.” (Docket Entry 47-8, ¶ 5.) According
to Mr. Adler, after Defendants began receiving harassing emails,
they asked him to “electronically log all accesses to the forums”
(id. ¶ 7) and, upon doing so, he noticed that one IP address,
72.11.37.181, regularly accessed Defendant CRBG’s forums (id. ¶ 8).
Mr. Adler further averred that, to see if the harassing emails came
from that IP address, he set up a fake forum that only the user of
that IP address could view.
(Id. ¶¶ 10-14.)
The log thereafter
reportedly showed that the suspected IP address did access the fake
forum (id. ¶ 17) and, within several days, members of Defendant
CRBG reportedly received anonymous emails that referenced matters
from the fake forum (id. ¶¶ 20-24).
Based on the foregoing circumstances, Mr. Adler drew a number
of conclusions:
18. Due to the technical restriction of the cloaking
feature, the logs show conclusively that only the IP
address 72.11.37.181 read the “Southeast Rodbuilding
Class” topic.
No other accesses to the topic ever
occurred.
19. It follows logically that only the person associated
with the 72.11.37.181 IP address could possibly know the
contents of the message.
. . .
25. Only the 72.11.37.181 IP address could read the
fictitious topic, hence the logs show that 72.11.37.181
is the only IP address that ever accessed the topic. The
information contained within this cloaked topic was only
available
to
the
user
associated
with
the
IP
72.11.37.181, hence the individual associated with this
address must have sent the five email messages mentioned
above.
-14-
26. I have reviewed the response of North State
Communications to a subpoena for the customer associated
with the 72.11.37.181 IP address at the time that the
fictitious topic was read, and the ISP reported the
customer as one “Tom Kirkman, 2420 English Road W, High
Point, NC, 27262.”
27. Hence, by sending anonymous
he and only he could possibly
show that this “Tom Kirkman”
author of the anonymous emails
emails about a topic that
view, the facts clearly
is the perpetrator and
in question.
(Id. ¶¶ 18-19, 25-27 (internal citations omitted) (emphasis in
original).)
Rule
701
“‘does
not
distinguish
between
expert
and
lay
witnesses, but rather between expert and lay testimony . . . .’”
United States v. Perkins, 470 F.3d 150, 155 (4th Cir. 2006)
(emphasis
in
original)
committee notes).
(quoting
Fed.
R.
Evid.
701
advisory
Moreover, “a person with specialized training
does not testify as an expert by giving first-hand participant
testimony,
even
though
it
appears
to
be
expert
testimony.”
Indemnity Ins. Co. of N. Am. v. American Eurocopter LLC, 227 F.R.D.
421, 424 (M.D.N.C. 2005) (Eliason, M.J.) (citing Gomez v. Rivera
Rodriguez, 344 F.3d 103, 113 (1st Cir. 2003)).
If that person
“played a personal role in the unfolding of the events at issue and
the anticipated questioning seeks only to elicit the witness’s
knowledge of those events,” a party need not identify that witness
as an expert.
Gomez, 344 F.3d at 113-14.
The majority of Mr. Adler’s testimony concerns his personal
knowledge of the investigation into who sent the harassing emails,
-15-
including his use of the fake forum to uncover the sender of
harassing emails.
Rule 701.
No grounds exist to strike such evidence under
On the other hand, some of Mr. Adler’s deductions,
although rationally based on his observations, cross the line into
the territory of ultimate conclusions (see, e.g., Docket Entry 478, ¶¶ 25-27), which even an expert usually may not offer, see
United States v. Barile, 286 F.3d 749, 760 (4th Cir. 2002).
The
Court, however, can exclude any such ultimate conclusions from
consideration
as
to
summary
judgment
entering an order striking them.
issues
without
formally
See, e.g., Williams v. Computer
Scis. Corp., No. 1:08CV41, 2010 WL 3395293, at *4 (M.D.N.C. Aug.
23, 2010) (unpublished) (Sharp, M.J.) (“[T]he Court will not strike
these exhibits but will consider them only to the extent that they
comply with Fed. R. Civ. P. 56(c)(2).”).
iii.
Deposition of James Tison
Finally, Plaintiff objects to deposition testimony by James
Tison on the grounds that it too contains improper expert opinion.
(Docket Entry 54 at 4.)
Specifically, Plaintiff asserts:
James Tison’s technical and specialized investigation is
particularly suspect, given that he had no prior
experience in the investigation of anonymous emails or
trying to determine the author(s) of the same. Tison
Dep. p.74. [James] Tison says he was doing this for his
brother, Defendant Thomas Tison: “I may have just said
I was messing around - you know, doing this for my
brother.”
Id.p.23.
But his entire study, including
exhibits, was premised on “cutting and pasting” emails
sent to him by his brother. Tison Dep. pp. 45-49, 51.
(Id. at 4 (citing Docket Entry 47-6) (internal footnote omitted).)
-16-
James Tison testified that, in an effort to identify the
sender of the harassing emails, he registered an email address and
a fake name with Plaintiff’s website (Docket Entry 47-6 at 6; see
also Docket Entry 47-7 at 4) and also registered that fake name
with Defendant CRBG’s website (Docket Entry 47-6 at 9-10; see also
Docket Entry 47-7 at 5-6).
James Tison further averred that he
registered the email address in question on Plaintiff’s website as
“hidden from the public” (Docket Entry 47-6 at 7) and that he never
used
that
email
address
for
any
other
purpose
(id.
at
9).
According to James Tison, Defendant Tison thereafter would send
James Tison “paragraphs or things, and [James Tison] would just cut
and paste [them] into the . . . bulletin board” on Defendant CRBG’s
website under the fake name.
(Id. at 12-13; see also Docket Entry
47-7 at 9-27.) James Tison testified that, not long afterwards, he
began receiving emails from someone identifying himself as “Charlie
Burris” at the email address he registered on Plaintiff’s website.
(See Docket Entry 47-6 at 21-31; see also Docket Entry 47-7 at 2849.) Those emails reportedly referenced posts James Tison had made
on Defendant CRBG’s website.
(Docket Entry 47-6 at 22.)
The Fourth Circuit has noted that “a critical distinction
between Rule 701 and Rule 702 testimony is that an expert witness
must possess some specialized knowledge or skill or education that
is not in possession of the jurors . . . .”
155
(internal
citations
omitted).
-17-
Perkins, 470 F.3d at
Nothing
in
James
Tison’s
testimony suggests he has specialized knowledge or training beyond
that of a typical juror. Moreover, James Tison related information
about activities in which he participated. Plaintiff has not shown
that such evidence runs afoul of Rules 701 and 702.
The Court thus
will not strike James Tison’s deposition testimony.
C.
Defendants’ Motion to Strike Plaintiff’s Affidavit
Defendants have moved to strike an affidavit Plaintiff filed
(Docket Entry 49), citing various grounds, including untimeliness
and failure to comply with Local Rule 7.3(h) (see Docket Entry 58
at 2).
As Plaintiff appears to contend (see Docket Entry 69 at 1-
4), Plaintiff’s affidavit would qualify as timely if it constituted
a reply to Defendants’ Response (Docket Entry 47) to Plaintiff’s
Amended Motion for Summary Judgment (Docket Entry 45).
Plaintiff argues that:
Moreover,
(1) his affidavit authenticates documents
he previously submitted (apparently to show he suffered actual
damages to the extent he must make such a showing to establish
entitlement to summary judgment on his unfair and deceptive trade
practices claim) (Docket Entry 69 at 2); and (2) Leaven v. Philip
Morris USA Inc., No. 1:04CV00907, 2006 WL 1666741, at *3 (M.D.N.C.
June 6, 2006) (unpublished) (Beaty, J.), authorizes such a filing
as a reply (Docket Entry 69 at 3).
Under this Court’s Local Rules, “[a] reply is limited to
discussion of matters newly raised in the response.”
M.D.N.C.
LR7.3(h). In the case cited by Plaintiff, the Court found that the
-18-
“affidavit [in question] [wa]s responsive to issues newly raised in
[the
opposing
party’s]
Response
.
as
the
documents.”
Leaven, 2006 WL 1666741, at *3.
Defendants
did
not
of
.
question[ed]
contrast,
authenticity
.
[certain]
raise
[that
Response]
previously
filed
In this case, by
questions
concerning
the
authenticity of the documents Plaintiff’s affidavit/reply purports
to authenticate.
(See Docket Entry 47 at 9-14.)
Plaintiff’s
affidavit/reply thus does not address issues newly raised in a
response and the Court therefore will exercise its discretion under
Local Rule 83.4(a) to strike it.
III.
SUMMARY JUDGMENT MOTIONS
Defendants have moved for summary judgment “on Plaintiff’s
claim [under] the unfair and deceptive trade practices act and his
claim for punitive damages.”
(Docket Entry 39 at 1.)
Plaintiff,
in turn, seeks summary judgment on “Defendants’ Counterclaim, as
well as partial summary judgment (liability only) in his favor on
the Complaint.”
(Docket Entry 45 at 1.)
The Court will enter
summary judgment for Defendants on Plaintiff’s unfair and deceptive
trade practices claim, but otherwise will deny summary judgment for
either side; however, the Court expressly reserves the question of
whether any request for punitive damages can go to the fact-finder.
“The [C]ourt shall 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.”
-19-
Fed. R. Civ.
P. 56(a).
Such a genuine dispute exists if the evidence presented
could lead a reasonable fact-finder to return a verdict in favor of
the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In making this determination, the Court must view
the evidence and any reasonable inferences therefrom in a light
most favorable to the non-moving party.
Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The party moving for summary judgment may discharge its burden
by identifying an absence of evidence to support the non-moving
party’s case.
(1986).
See Celotex Corp. v. Catrett, 477 U.S. 317, 325
The non-moving party then must “set forth specific facts
showing that there is a genuine issue for trial.”
Matsushita, 475
U.S. at 586-87 (citation omitted) (emphasis in original).
In this
regard, the non-moving party must convince the Court that evidence
exists upon which a finder of fact could properly return a verdict
in favor of the non-moving party.
Anderson, 477 U.S. at 252; see
also Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 308
(4th Cir. 2006) (“Mere unsupported speculation is not sufficient to
defeat
a
summary
judgment
motion
if
the
undisputed
evidence
indicates that the other party should win as a matter of law.”).
A.
Malicious Prosecution
Plaintiff moves for summary judgment in his favor on his
malicious prosecution claim.
(See Docket Entry 46 at 5-7.)
Under
North Carolina law, Plaintiff must prove the following elements to
-20-
make out this claim:
“‘(1) defendant initiated the earlier
proceeding; (2) malice on the part of defendant in doing so;
(3)
lack
of
probable
cause
for
initiation
of
the
earlier
proceeding; and (4) termination of the earlier proceeding in favor
of the plaintiff.’”
Swick v. Wilde, No. 1:10-cv-303, 2012 WL
3780350, at *26 (M.D.N.C. Aug. 31, 2012) (unpublished) (Schroeder,
J.) (quoting Best v. Duke Univ., 337 N.C. 742, 749, 448 S.E.2d 506,
510 (1994)).
As to the second and third elements, Plaintiff
asserts that “neither [Defendant] Tison, nor anyone else (including
Defendants [sic] ‘expert’) can establish that any of the e-mails
complained of came from Plaintiff Thomas Kirkman.
Probable cause
is therefore lacking, and malice is inferred.” (Docket Entry 46 at
7.) Plaintiff’s reasoning in this regard suffers from fatal flaws.
First, Plaintiff, not Defendant, bears the burden of proof on
the
lack
of
probable
cause
and
malice
elements.
Second,
a
determination of those elements could not turn on whether Plaintiff
actually sent the harassing emails.
In other words, to avoid
liability, Defendants do not have the burden of proving that
Plaintiff in fact sent the emails.
Rather, to the extent a
question related to the identity of the sender of the emails
constitutes a matter material to this claim, Plaintiff has the
burden of proving that, when Defendants procured the charge against
him, they lacked probable cause to believe he sent the emails.
-21-
“Where the claim is one for malicious prosecution, probable
cause has been properly defined as the existence of such facts and
circumstances, known to the defendant at the time, as would induce
a reasonable man to commence a prosecution.” Best, 337 N.C. at 750
(internal
brackets,
ellipses,
and
quotation
marks
omitted).
Plaintiff has made no argument that, given what Defendants then
knew, they lacked probable cause to initiate criminal proceedings
against him, let alone that the evidence, taken in the light most
favorable to Defendants, would require such a finding as a matter
of law.
(See Docket Entry 46 at 5-7.)8
8
The Court therefore will
In his brief in support of his instant Motion, Plaintiff
simply recounts almost verbatim a portion of the discussion of the
malicious prosecution claim in the undersigned’s memorandum
concluding that Defendants had not shown that said claim failed as
a matter of law. (Compare Docket Entry 15 at 5-8, with Docket
Entry 46 at 5-6.) That discussion does not entitle Plaintiff to
summary judgment. Although, as Plaintiff pointed out, “[o]ne may
reasonably view the prosecutor’s designation that ‘no crime is
charged’ (Docket Entry 2 at Exhibit C) as a declaration that the
criminal summons procured by Defendants wrongly asserted that
probable cause existed” (Docket Entry 46 at 6; see also Docket
Entry 15 at 8 (containing same language)), Plaintiff has offered no
argument to suggest that interpretation represents the only
reasonable view (see id.). Nor could he, given the other language
on the dismissal form reflecting the prosecutor’s statement that
Defendants’ “complaint is more civil in nature than criminal and
lends itself more to disposition in the civil courts” (Docket Entry
2 at Ex. C (emphasis added)). Moreover, as the undersigned made
clear immediately after the portion of the discussion selectively
cribbed by Plaintiff, given that a malicious prosecution claim
requires a plaintiff to prove that a defendant lacked information
that would cause a reasonable person to file a charge, a
substantial question exists as to “what, if any, relevance a
prosecutor’s [later] statement on a dismissal form has upon the
determination of the presence or absence of probable cause or
malice [at the time of the filing of a charge].” (Docket Entry 15
at 8 (internal parenthetical omitted).)
-22-
not
enter
summary
judgment
for
Plaintiff
on
his
malicious
prosecution claim.
B.
Defendants’ Counterclaim
Plaintiff’s argument for summary judgment in his favor on
Defendants’ counterclaim states (in its entirety):
“Defendants’
Counterclaim for injunctive relief rests entirely on Defendants’
claim that Plaintiff is the anonymous mailer of the allegedly
offensive
e-mails.
Without
proof
that
he
is,
Defendants’
Counterclaim should be dismissed under the standards set forth in
Celotex and Matsushita.” (Docket Entry 46 at 7 (internal citations
omitted).)
This conclusory argument fails because the record does
contain evidence which, if taken in the light most favorable to
Defendants, would permit a reasonable fact-finder to determine that
Plaintiff sent the emails at issue.
First, the testimony of Mr. Adler indicates that the IP
address from which at least some of the harassing emails originated
is likely the same IP address that accessed the fake forum he set
up (see Docket Entry 47-8, ¶¶ 15-24) and, according to North State
Communications, LLC (“North State”), that IP address is associated
with a “Tom Kirkman” (see Docket Entry 47-9 at 6).9
Second, James
Tison testified that he received emails from a “Charlie Burris”
(Docket Entry 47-6 at 21), one of the names Ms. Babineau identified
9
Ms. Babineau also averred that Plaintiff used that same IP
address to communicate with her. (See Docket Entry 47-2, ¶ 15.)
-23-
as a sender of “annoying, harassing and unwanted emails” (Docket
Entry 47-2, ¶ 4). Mr. Tison further averred that he received these
“Burris emails” at an email address only the owner or moderator of
Plaintiff’s website could view.
(Docket Entry 47-6 at 7, 21-22.)
Given this evidence, a material factual dispute exists, precluding
summary judgment for Plaintiff on Defendants’ counterclaim.
C.
According
to
Civil Conspiracy
Plaintiff,
North
Carolina
law
defines
a
conspiracy as “‘an agreement between two or more individuals to do
an unlawful act or to do a lawful act in an unlawful way.’”
(Docket Entry 46 at 8 (emphasis added) (quoting State v. Dalton,
168 N.C. 204, 205, 83 S.E. 693, 694 (1914)).) Plaintiff appears to
view his alleged malicious prosecution as the “unlawful act” or
“unlawful way” of acting at the core of Defendants’ alleged
conspiracy.
As discussed above, Plaintiff has not shown an
entitlement to judgment as a matter of law for any such malicious
prosecution.
The Court therefore denies summary judgment on
Plaintiff’s civil conspiracy claim because its resolution depends
on the same material fact question that forecloses summary judgment
on his malicious prosecution claim.
D.
Unfair and Deceptive Trade Practices
Both Defendants and Plaintiff have moved for summary judgment
on Plaintiff’s claim under North Carolina’s Unfair and Deceptive
Trade Practices Act (the “UDTPA”).
-24-
(See Docket Entry 39 at 1;
Docket Entry 41 at 6-8; Docket Entry 45 at 1; Docket Entry 46 at 910.)
“To recover under the UDTPA, [a plaintiff] must show:
(1) the defendant engaged in conduct that was in or affecting
commerce, (2) the conduct was unfair or had the capacity or
tendency to deceive, and (3) the plaintiff suffered actual injury
as a proximate result . . . .”
Belk, Inc. v. Meyer Corp., U.S.,
679 F.3d 146, 164 (4th Cir. 2012) (internal quotation marks
omitted) (construing North Carolina law).
i.
Plaintiff’s Motion
To satisfy the second element of his UDTPA claim, Plaintiff
again relies on Defendants’ alleged malicious prosecution of him.
(See Docket Entry 46 at 9.)
For reasons previously stated, the
Court has denied summary judgment for Plaintiff on his malicious
prosecution claim and thus the Court will deny summary judgment for
Plaintiff on his UDTPA claim.
ii.
Defendants’ Motion
Defendants argue that Plaintiff has “utterly failed to produce
any evidence to support one of the necessary elements of the
[UDTPA] tort - that Plaintiff has suffered ‘actual damages.’”
(Docket Entry 47 at 9-10.) Plaintiff first responds to Defendants’
claim by alleging that his UDTPA claim “is premised entirely on the
claim
for
malicious
prosecution,
and
claims
for
malicious
prosecution require no showing of actual damage.” (Docket Entry 46
at 10.) That assertion does not alter the fact that North Carolina
-25-
law requires proof of actual damages as an element of a UDTPA
claim. See Belk, Inc., 679 F.3d at 164 (defining elements of UDTPA
claim under North Carolina law to include proof by the plaintiff of
“actual injury” proximately caused by conduct of the defendant);
accord Southwestern Life Ins. Grp. v. Morehead, 245 F. App’x 304,
307 (4th Cir. 2007) (“[T]he district court properly rejected [the
plaintiff’s] unfair trade practices claim [under North Carolina
law] because she was unable to prove any actual damages resulting
from the violation.”); Simaan, Inc. v. BP Prods. N. Am., Inc., 395
F. Supp. 2d 271, 277 (M.D.N.C. 2005) (Tilley, C.J.) (“In North
Carolina claims of . . . unfair and deceptive trade practices
require actual damages.”); Piedmont Inst. of Pain Mgmt. v. Staton
Found., 157 N.C. App. 577, 589-90, 581 S.E.2d 68, 76 (2003)
(“Certain torts require as an essential element that plaintiff
incur actual damage.
Relevant to the present case, these torts
include . . . unfair and deceptive trade practices.” (internal
citations, ellipses, and quotation marks omitted)).10
Next, Plaintiff responds that, “even if a showing of actual
damages is required, [he] has made that showing, at least for
summary judgment purposes.”
(Docket Entry 46 at 10.)
As support
for that conclusory assertion, Plaintiff cited an affidavit he
executed, as well as an affidavit from Steve Holden (see id. at 10
10
Nor, in light of this authority, can Plaintiff avoid summary
judgment by proposing to substitute nominal damages for actual
damages. (See Docket Entry 46 at 10.)
-26-
(citing Docket Entries 46-2, 46-3), and pointed back to an earlier
portion of his brief (see id. (citing id. at 8)).
The affidavits
by Plaintiff and Mr. Holden make no mention of damages.
Docket Entries 46-2, 46-3.)
Plaintiff’s brief states:
(See
The cross-referenced passage of
“The damages caused by acts committed
pursuant to the conspiracy was [sic] a substantial decrease in
gross receipts in the year of the [S]ummons down from a high in
2007 of $122,518.00 to a low in 2008 of $91,568.00.”
(Id. at 8
(citing Docket Entries 46-5, 46-6) (emphasis added).)11
“The fallacy in this method of proof is that it mistakes loss
of gross receipts for loss of profits, which is the actual damage.”
Electric Furnace Corp. v. Deering Milliken Research Corp., 325 F.2d
761, 766 (6th Cir. 1963) (emphasis added). As another court put it
(in evaluating another tort requiring proof of “actual” damages):
With respect to its alleged business losses, the
plaintiff has provided a flawed itemization. [The
plaintiff’s] calculation of damages is based on the
erroneous assumption that the defendants may be held
liable for the plaintiff’s forgone gross receipts, not
By failing to
merely its forgone profits. . . .
delineate its actual losses, [the plaintiff] has
necessarily failed to link its purported losses to the
defendants’ alleged deeds.
These deficiencies alone
provide grounds for summary judgment against the
plaintiff on this claim.
11
The cited documents consist of tax records showing the
cited gross receipts figures. (See Docket Entries 46-5, 46-6.)
-27-
Western Meat Co., Inc. v. IBP, Inc., 683 F. Supp. 415, 421
(S.D.N.Y. 1988) (internal citations and footnote omitted) (emphasis
added).
In other words, Plaintiff effectively would have the factfinder speculate that a reduction in gross receipts as between 2007
and 2008 reflected a reduction in profits (without any proof of
year-to-year expenses).
Such an approach does not suffice:
“The principle which will not allow the recovery of
damages when their existence rests solely on speculation
applies both to the fact of damages and to their cause.
Thus, a plaintiff cannot recover damages by proving only
that the defendant has unlawfully violated some duty
owing to the plaintiff, leaving the trier of fact to
speculate as to the damages; he must go further and prove
the nature and extent of the damage suffered by the
plaintiff and that the breach of duty was the legal cause
of that damage. Leaving either of these damage questions
to speculation on the part of the trier of fact will
prevent recovery.”
Food Lion, Inc. v. Capital Cities/ABC, Inc., 964 F. Supp. 956, 960
(M.D.N.C. 1997) (quoting People’s Center, Inc. v. Anderson, 32 N.C.
App. 746, 748, 233 S.E.2d 694, 696 (1977)) (emphasis added), aff’d
in relevant part, 194 F.3d 505, 512-14 (4th Cir. 1999); see also
Nixon v. Alan Vester Auto Grp., No. 1:07CV839, 2008 WL 4544369, at
*6 n.7 (M.D.N.C. Oct. 8, 2008) (unpublished) (Eliason, M.J.)
(“[Under
North
Carolina
law,]
[t]o
recover
actual
damages,
Plaintiff must identify the damage or loss and show they are the
natural and probable result of the tortfeasor’s conduct, and be
based on a standard which will allow calculation of the amount.”),
-28-
recommendation adopted in relevant part, 2009 WL 382743 (M.D.N.C.
Feb. 12, 2009) (unpublished) (Tilley, C.J.).
Under
these
circumstances,
Plaintiff
has
failed
to
come
forward with sufficient evidence of actual damages to permit a
reasonable fact-finder to render judgment in his favor on his UDTPA
claim.12
The Court therefore will enter summary judgment for
Defendants on said claim.
E.
Punitive Damages
Finally, Defendants argue that Plaintiff has “utterly failed
to produce any evidence that Defendants acted with ‘actual malice’
. . . [which] is required if Plaintiff is seeking punitive damages
in a malicious prosecution claim.”
(Docket Entry 47 at 14-15.)
Plaintiff responds by claiming that “the groundlessness of the suit
may, in many instances, be so obvious and palpable that the
existence
of
malice
may
be
inferred
from
it.
.
.
.
[Alternatively,] maliciously prosecuting a civil [sic] action
surely evinces wilful or wanton conduct . . . [which] is defined as
conscious and intentional disregard of and indifference to the
rights and safety of others, which the defendant knows or should
know is reasonably likely to result in injury, damage, or other
12
Plaintiff’s failure on this point is only heightened by his
concessions, in his deposition, that:
(1) he would not
characterize his business as having suffered a “loss of income,”
but rather “stagnation of income” or “a leveling off” (Docket Entry
41-1 at 35); and (2) the national economic “trouble” occurring
around the same time “had some impact” in that regard (id.).
-29-
harm.” (Docket Entry 46 at 10-11 (internal citations and quotation
marks omitted).)
The Court concludes that it would benefit from
further argument from the parties regarding exactly what showing
beyond that necessary to a malicious prosecution claim will suffice
to support an award of punitive damages under North Carolina law.
Accordingly, the Court will reserve determination of whether to
allow Plaintiff’s request for punitive damages to go to the factfinder. See generally Speedway Promoters, Inc. v. Hooter’s of Am.,
Inc., 123 F. Supp. 2d 956, 965 (W.D.N.C. 2000).
IV.
CONCLUSION
Because one of Plaintiff’s filings and part of another violate
the Court’s Local Rules regarding the scope of a permissible reply,
the Court will grant Defendants’ Motions to Strike.
Plaintiff,
however, has not established an adequate basis for his Motion to
Strike evidence Defendants tendered in opposition to his summary
judgment motion.
In addition, Plaintiff has failed to produce
sufficient evidence of actual damages and the Court therefore will
enter summary judgment for Defendants on Plaintiff’s UDTPA claim.
As
to
the
remainder
of
Plaintiff’s
claims
and
Defendant’s
counterclaim, the Court concludes that Plaintiff has not shown an
entitlement to judgment as a matter of law and thus denies his
summary judgment motion.
Finally, the Court declines to enter
summary judgment for Defendants on Plaintiff’s request for punitive
damages, pending further argument from the Parties.
-30-
IT IS THEREFORE ORDERED that Defendants’ Motion to Strike or
Alternatively Motion to Allow Surreply (Docket Entry 70) is GRANTED
in that the portion of Plaintiff’s Reply (Docket Entry 66) that
concerns Federal Rule of Evidence 901 is STRICKEN.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike the
Affidavits [sic] of Cheryl Babineau, the Declaration of Dustin K.
Adler, and the Deposition of James Tison (Docket Entry 51) is
DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion to Strike the
Affidavit of Thomas Kirkman (Docket Entry 57) is GRANTED.
IT IS FURTHER ORDERED that Defendants’ Motion for Partial
Summary Judgment (Docket Entry 39) is GRANTED IN PART in that the
Court
enters
judgment
as
a
matter
of
law
for
Defendants
on
Plaintiff’s UDTPA claim, but reserves the question of whether to
submit Plaintiff’s request for punitive damages to the fact-finder.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary
Judgment (Docket Entry 45) is DENIED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 15, 2012
-31-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?