Janvrin v. Continental Resources, Inc.

Filing 24

ORDER denying 12 Motion for Summary Judgment. Signed by U.S. District Judge Karen E. Schreier on 6/27/16. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JERRY JANVRIN,
d/b/a J&J TRUCKING,

4:14-CV-04124-KES

Plaintiff,

ORDER DENYING MOTION FOR
SUMMARY JUDGMENT

vs.
CONTINENTAL RESOURCES, INC., an
Oklahoma corporation,
Defendant.
Defendant, Continental Resources, Inc., moves for summary judgment.
Plaintiff, Jerry Janvrin, d/b/a J&J Trucking, resists the motion. For the following
reasons, the court denies the motion.
BACKGROUND
The facts, viewed in the light most favorable to Janvrin, the non-moving
party, are as follows:
Janvrin is a resident of Harding County, South Dakota. He owns J&J
Trucking, a business that provides hauling services in South Dakota, North
Dakota, and Montana. Continental is an Oklahoma corporation with its principal
place of business in Oklahoma City, Oklahoma. It is an oil and gas exploration
company that, among other locations, is registered to do business in South
Dakota. Continental has oil wells located near Buffalo, South Dakota, which is
located in Harding County.
Non-party CTAP, Inc., is a supplier of pipeline, casings, tubing, and other
goods used by oil and gas companies. It is based in Lafayette, Colorado, and

maintains supply yards in Utah, Colorado, Montana, Ohio, and North Dakota.
Continental is a major customer of CTAP. CTAP employs its own haulers to deliver
oilfield material to its customers’ oil well locations. CTAP also hires independent
contractors to haul oilfield materials when CTAP does not have enough of its own
employees to make the deliveries.
CTAP maintains a list of the independent contractors who are qualified by
CTAP to deliver loads to its customers. Janvrin began hauling oilfield materials as
an independent contractor with CTAP in 2010, and he obtained approval to haul
oilfield materials from any of CTAP’s supply yards. Janvrin primarily hauled
pipeline from CTAP’s supply yards in Bowman, North Dakota, and Glendive,
Montana. Some of the shipments hauled by Janvrin were destined for delivery to
Continental.
Janvrin did not initially have a written agreement with CTAP for the
provision of his services. At some point, however, Janvrin and CTAP began
executing contracts on a yearly basis. CTAP and Janvrin executed their most
recent contract on December 21, 2012.
On February 20, 2014, an article appeared in a Harding County newspaper.
See Docket 16-7.1 The article was titled, “Pickup and Cows Collide with Dire
Results.” The pickup was owned by Continental and driven by a Continental

Newspaper articles are generally considered hearsay and thus inadmissible
for summary judgment purposes. Nooner v. Norris, 594 F.3d 592, 603 (8th Cir.
2010). Janvrin’s theory is that Continental retaliated against him after reading the
article, regardless of whether the article is true. Thus, the court finds that the
article is offered for the non-hearsay purpose of demonstrating its effect upon the
recipient. See Barrett v. Acevedo, 169 F.3d 1155, 1163 (8th Cir. 1999) (“A common
type of statement that falls outside the hearsay definition, because it is not offered
for its truth, is a statement that is offered to show its effect on the recipient.”).
1

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employee named Jess Wammen. The pickup collided with two cows on a county
road north of Buffalo. The cows belonged to David Niemi. Janvrin’s sister, Roxie, is
married to Niemi. Janvrin operates J&J Trucking out of his home, which is located
on the Clarkson Ranch. The Clarkson Ranch is situated along the same county
road as the Niemi property. A comment attributed to Janvrin appeared in the
newspaper article. Janvrin expressed his belief that many drivers on the county
road drive too fast for the road’s conditions. Janvrin did not, however, refer
specifically to Continental.
Gordon Carlson is an area supervisor for Continental. His office is located in
Harding County. He read the newspaper article and discussed it with Peter
MacIntyre. MacIntyre is an engineer with Continental for its Buffalo district.
Carlson felt that Janvrin’s comments were inappropriate. He equated Janvrin’s
actions to “biting the hand the feeds you.” Docket 16-2 at 5. Carlson informed
MacIntyre that he did not want Janvrin’s trucking company doing business in the
Buffalo district.
MacIntyre eventually spoke with Ollis Anderson. Anderson is the director of
Continental’s supply chain management. His duties include obtaining supplies
and materials necessary for some of Continental’s oil and gas operations. The
newspaper article was brought to his attention by MacIntyre. MacIntyre and
Anderson discussed how Continental was having problems with the Niemis, the
Clarksons, and the Janvrins. MacIntyre informed Anderson that he would prefer if
Janvrin did not make deliveries to Continental’s well locations in South Dakota.
Anderson called Michael “Stoney” McCarrell about a week later to facilitate
MacIntyre’s request. McCarrell is a senior vice president of CTAP’s operations,

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quality control, and technical sales. He oversees aspects of CTAP’s business at
CTAP’s supply yards. Although McCarrell did not decide which independent
contractors would be added to CTAP’s approved list, he testified that he had the
authority to order the removal of an independent contractor from the list.
Anderson asked McCarrell to no longer allow Janvrin to deliver to
Continental. McCarrell responded affirmatively. McCarrell then called Ron Spidahl,
the CTAP yard manager in Bowman, North Dakota. McCarrell told Spidahl to
remove Janvrin from CTAP’s list of approved independent contractors for CTAP’s
Bowman yard. Spidahl recalled that “Continental is the number one customer [for
CTAP]” with “the biggest account” in the Bakken Formation and that CTAP “did
everything for Continental.” Docket 16-6 at 4. Spidahl complied with McCarrell’s
request, and informed Janvrin that he could no longer haul materials for CTAP.
Janvrin testified that he had received periodic business from CTAP prior to
being notified that he would no longer be hauling materials for the company. He
explained that the frequency of CTAP’s requests depended on a number of factors:
the amount of drilling activity at the time, the availability of CTAP drivers, and
competition from other independent contractors. Janvrin testified that,
nonetheless, CTAP brought in a fairly consistent level of business over the last few
years.
Janvrin filed suit in state court alleging one claim for tortious interference
with a business relationship. See Docket 1-3 (complaint). Continental removed the
action to this court on August 11, 2014. Docket 1. Jurisdiction is premised on
diversity of citizenship.

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LEGAL STANDARD
Summary judgment on all or part of a claim is appropriate when 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.” Fed. R. Civ. P. 56(a); see also In re Craig,
144 F.3d 593, 595 (8th Cir. 1998). The moving party can meet its burden by
presenting evidence that there is no dispute of material fact or that the nonmoving
party has not presented evidence to support an element of its case on which it
bears the ultimate burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). Once the moving party has met this burden, “[t]he nonmoving party may
not ‘rest on mere allegations or denials, but must demonstrate on the record the
existence of specific facts which create a genuine issue for trial.’ ” Mosley v. City of
Northwoods, Mo., 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. Cty. of Le
Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). “Further, ‘the mere existence of some
alleged factual dispute between the parties is not sufficient by itself to deny
summary judgment. . . . Instead, the dispute must be outcome determinative
under prevailing law.’ ” Id. (quoting Get Away Club, Inc. v. Coleman, 969 F.2d 664,
666 (8th Cir. 1992)). The facts, and inferences drawn from those facts, are “viewed
in the light most favorable to the party opposing the motion” for summary
judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
In addition to the Federal Rules of Civil Procedure, this court has adopted
local rules in civil cases that are binding on the parties. Braxton v. Bi-State Dev.
Agency, 728 F.2d 1105, 1107 (8th Cir. 1984) (“Rules of practice adopted by United
States District Courts have the force and effect of law.”). Local Rule 56.1 is the

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local rule governing motions for summary judgment. See D.S.D. Civ. LR 56.1. The
purpose of local rules like Local Rule 56.1 “is to distill to a manageable volume the
matters that must be reviewed by a court undertaking to decide whether a genuine
issue of fact exists for trial. [They are] designed ‘to prevent a district court from
engaging in the proverbial search for a needle in the haystack.’ ” Jones v. United
Parcel Serv., Inc., 461 F.3d 982, 990 (8th Cir. 2006) (discussing W.D. Mo. LR
56.1(a)) (quoting Nw. Bank & Trust Co. v. First Ill. Nat'l Bank, 354 F.3d 721, 725
(8th Cir. 2003)). And “the application of local rules is a matter peculiarly within the
district court's province.” Yannacopoulos v. Gen. Dynamics Corp., 75 F.3d 1298,
1305 (8th Cir.1996) (internal quotations and citation omitted). Thus, the court is
vested with a large measure of discretion in applying its local rules. Silberstein v.
IRS, 16 F.3d 858, 860 (8th Cir. 1994).
DISCUSSION
I.

Compliance with the Local Rules
Continental included in its summary judgment brief a statement of the facts

that it contends are material and undisputed. Janvrin filed a document
responding to Continental’s statement of facts. See Docket 17. He agreed that
some of Continental’s facts were undisputed but he objected to others. And
Janvrin filed a separate document consisting of the facts that he contends are
material and undisputed or, at least, that call some of Continental’s facts into
dispute. See Docket 18. Continental responded to Janvrin’s separate statement of
facts. See Docket 22. Continental agreed that some of Janvrin’s facts were
undisputed, but it objected to others and asserted that Janvrin’s separate
submission was improper under the court’s local rules.

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When a party moves for summary judgment, the moving party is required to
support its motion with “a separate, short, and concise statement of the material
facts as to which the moving party contends there is no genuine issue to be tried.”
D.S.D. Civ. LR 56.1(A). A party’s statement of material facts (SMF) must be
separated into paragraphs by number and must contain “an appropriate citation
to the record in the case.” Id. The party opposing the summary judgment motion
must respond to each assertion in the moving party’s SMF “with a separately
numbered response and appropriate citations to the record.” D.S.D. Civ. LR
56.1(B). The opposing party must also “identify any material facts on which there
exists a genuine material issue to be tried.” Id.
The court concludes that Janvrin’s separate statement complies with the
court’s local rules. A responding party is not limited to refuting only the facts that
the moving party relies on. Rather, the responding party should also identify other
facts in the record that call the moving party’s version of the facts into dispute.
Although some of the facts in Janvrin’s separate statement are immaterial or
duplicative of facts that he acknowledged previously as undisputed, the court finds
that Janvrin has substantially complied with Local Rule 56.1.
II.

Tortious Interference
Janvrin alleges that he had a valid business relationship or expectancy with

CTAP and that Continental tortuously interfered with that relationship. More
specifically, Janvrin argues that Continental retaliated against him for comments
attributed to him in the newspaper article and that Continental caused CTAP to
stop doing business with him. Continental contends that summary judgment

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should be granted in its favor because Janvrin cannot establish the essential
elements of his tortious interference claim.
In South Dakota, the elements of a tortious interference with business
relationships or expectancy claim are: (1) the existence of a valid business
relationship or expectancy; (2) knowledge by the interferer of the relationship or
expectancy; (3) an intentional and improper act of interference on the part of the
interferer;2 (4) proof that the interference caused the harm sustained; and (5)
damage to the party whose relationship or expectancy was disrupted. Tibke v.
McDougall, 479 N.W.2d 898, 908 (S.D. 1992). The South Dakota Supreme Court
has analogized this cause of action to “a ‘triangle’ [involving] a plaintiff, an
identifiable third party who wished to deal with the plaintiff, and the defendant
who interfered with the plaintiff and the third party.” Landstrom v. Shaver, 561
N.W.2d 1, 16 (S.D. 1997). This is a “factually driven cause of action” and is
“dependent on the plaintiff’s factual situation.” Hayes v. N. Hills Gen. Hosp., 590
N.W.2d 243, 250 n.6 (S.D. 1999).
A.

Intentional and improper act of interference

Continental does not dispute that Janvrin had a valid business relationship
or expectancy with CTAP or that Continental knew about that relationship. Rather,
Continental’s summary judgment motion focuses on the third element: whether it
intentionally and improperly interfered with Janvrin’s relationship with CTAP.

The South Dakota Supreme Court previously described the third element
as involving “unjustified” interference, which was recently modified to require a
showing of “improper” interference. See Gruhlke v. Sioux Empire Fed. Credit Union,
Inc., 756 N.W.2d 399, 408 (S.D. 2008).
2

8

i.

Interference

Continental first argues that it did not “interfere” with Janvrin’s relationship
with CTAP as that word is defined under South Dakota law. According to
Continental, interference occurs only where a contracting party fails to perform or
is completely prevented from performing its contractual duties. Continental argues
that it did not commit interference because CTAP neither failed to perform nor was
prevented from performing any duty under its contract with Janvrin.
Under the terms of the Janvrin-CTAP contract, CTAP did not guarantee that
any specific number of loads would be assigned to Janvrin. Docket 13-3 at 5.
CTAP also reserved the right to use the services of any independent contractor it
chose. Id. And the agreement could be terminated upon thirty days’ written notice
by other party. Id. at 4.3 Continental argues that the Janvrin-CTAP relationship
was terminable at will and that Continental could, therefore, act with impunity
toward that relationship as long as it did not cause CTAP to breach the contract.
The South Dakota Supreme Court generally patterns its definition of
tortious interference after the Restatement (Second) of Torts. See, e.g., Tibke, 479
N.W.2d at 908; Gruhlke v. Sioux Empire Fed. Credit Union, Inc., 756 N.W.2d 399,
408 (S.D. 2008). According to the Restatement, a contract is merely one type of
business relationship protected by the law. See Restatement (Second) of Torts §
766 cmt. c (“The liability for inducing breach of contract is now regarded as but
one instance, rather than the exclusive limit, of protection against improper
interference in business relations”). Thus, the South Dakota Supreme Court has
It is unclear whether the contract was ever formally terminated. McCarrell,
for example, testified that he was unsure if the agreement was ever terminated.
Docket 13-2 at 15.
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explained that, “ ‘[f]or this tort to occur, the business relationship, if in existence,
need not be cemented by written or verbal contract and, whether or not it is in
existence, it need not be intended that there be a contract.’ ” Hayes, 590 N.W.2d at
248 (quoting 45 Am. Jur. 2d Interference § 50 (1969)). Contracts terminable at will
also provide some protection from improper, outside interference. Restatement
(Second) of Torts § 766 cmt. g (“A similar situation exists with a contract that, by
its terms or otherwise, permits the third person to terminate the agreement at will.
Until he has so terminated it, the contract is valid and subsisting, and the
defendant may not improperly interfere with it”). In other words, one party cannot
escape liability for intermeddling with a business relationship that otherwise
would have continued absent that party’s intervention. As the South Dakota
Supreme Court has held, “[t]he tort also protects a party’s interest in stable
economic relationships.” Hayes, 590 N.W.2d at 248 (citation omitted). “The
‘expectancies’ this tort protects . . . is the prospect or opportunity of repeat and
additional [business].” Id. at 250. And the Court in Gruhlke acknowledged, albeit
cautiously, that a plaintiff could state a claim for tortious interference even though
her “contract was essentially a one year employment-at-will agreement.” Gruhlke,
756 N.W.2d 405-06.
Additionally, Janvrin did not allege that Continental caused CTAP to breach
its contract with him. One species of a tortious interference claim alleges that a
defendant interfered with an existing contractual relationship. See Restatement
(Second) of Torts § 766. Another type of tortious interference claim alleges that a
defendant interfered more generally with a plaintiff’s business relations or
expectations. See Restatement (Second) of Torts § 766B. As the South Dakota

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Supreme Court has acknowledged, “[t]his tort has a variety of titles.” Hayes, 590
N.W.2d at 248 n.4. Here, Janvrin alleges that Continental committed the second
variety of this tort. See Docket 1-3 at 4 (alleging Continental interfered with
Janvrin’s “valid business relationship that Janvrin maintained with CTAP”).
Interference of this variety includes “inducing a third person not to enter into or
continue a business relation with another or by preventing a third person from
continuing a business relation with another.” Setliff v. Akins, 616 N.W.2d 878, 889
(S.D. 2000). More broadly stated, a plaintiff needs “to show that [his] relationship
with an identifiable third party was affected by [the defendant’s] actions.” Table
Steaks v. First Premier Bank, N.A., 650 N.W.2d 829, 835 (S.D. 2002) (emphasis
added). The question, therefore, is whether Continental induced CTAP not to
continue its business relationship with Janvrin.
South Dakota caselaw illuminates the contours of this element. In Tibke,
479 N.W.2d at 900, the plaintiff accused several defendants of tortuously
interfering with her business relationships or expectancies. Tibke was a horse
trainer by trade and the defendants were members of an equestrian society who
revoked Tibke’s membership rights and privileges in that society. Id. at 900-01.
Tibke later sought to deal with John and Elaine Thomas. Id. at 909. She offered to
train and prepare one of the Thomases’ horses for a horse show in Wyoming. Id.
One of the defendants, however, made a phone call to the Thomases and told them
that the equestrian society would forbid Tibke from showing their horse at the
event. Id. Summary judgment was denied as to whether the defendant interfered
with Tibke’s business relationship. Id.

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In Setliff, 616 N.W.2d at 883, Setliff and Akins were working together at a
clinic in Sioux Falls, South Dakota. Their relationship began to sour and Akins
contemplated starting his own practice. Id. Stewart, a consultant for the clinic,
helped facilitate Akins’ desire to leave. Id. at 884. Setliff sued Stewart for tortious
interference. Id. at 889. Stewart persuaded Akins to leave the clinic, encouraged
Akins to start his own practice, leased office space to Akins, became a principal
stockholder in Akins’ company, and secured his own consulting agreement with
Akins’ company. Id. at 890. Stewart’s conduct was also sufficient to survive a
motion for summary judgment. Id.
Here, and viewing the facts in the light most favorable to Janvrin, the record
shows that Continental induced CTAP to not continue doing business with
Janvrin. Janvrin testified that his relationship with CTAP was fairly stable. Spidahl
confirmed that he previously had not received any complaints about Janvrin.
Docket 16-6 at 3. Thus, the Janvrin-CTAP relationship likely would have
continued. Like in Tibke, Continental’s act of interference involved a chain of
phone calls originating from Continental to CTAP. Continental was one of CTAP’s
major customers and CTAP would not ignore Continental. Similarly to Setliff, CTAP
was persuaded or encouraged not to do business with Janvrin. And those phone
calls ultimately resulted in Janvrin’s removal from CTAP’s list of approved
independent haulers. Thus, there is evidence that Continental interfered with
Janvrin’s relationship with CTAP.

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ii.

Intent

Continental argues that even if it did interfere with the Janvrin-CTAP
relationship, it did not do so intentionally. Specifically, Continental contends that
it did not intend for CTAP to stop using Janvrin’s trucking service.
In general, “[i]ntent in the law of torts means that the actor acts for the
purpose of causing an invasion of another's interest (invasion of privacy, for
example) or knows that such an invasion is resulting, or is substantially certain to
result from his conduct.” Kjerstad v. Ravellette Pubs., Inc., 517 N.W.2d 419, 429
(S.D. 1994) (citing 74 Am. Jur. 2d Torts § 6). Thus, the question is not whether
Continental acted with the specific design of causing CTAP to stop using Janvrin’s
trucking service. Cf. Frey v. Kouf, 484 N.W.2d 864, 868 (S.D. 1992) (“The jury was
instructed that, to find Kouf liable, it must find Kouf had a specific design to cause
the injury to Frey. That was an incorrect statement of the law”). Rather, the
question is whether Continental knew that interference of the Janvrin-CTAP
relationship was certain or substantially certain to occur as a result of its actions.
Kjerstad, 517 N.W.2d at 429; see also Restatement (Second) of Torts § 766B (“The
interference with the other’s [business] relation is intentional if the actor desires to
bring it about or if he knows that the interference is certain or substantially
certain to occur as a result of his action”).
Additionally, questions surrounding a party’s intent or state of mind are
typically questions of fact for the jury and, therefore, not suited for summary
adjudication. Ahl v. Arnio, 388 N.W.2d 532, 534 (S.D. 1986). Likewise, a person’s
description of his state of mind implicates his credibility, which is also an issue for
the jury to consider. See Gleason v. Peters, 568 N.W.2d 482, 489 (S.D. 1997) (“It is

13

the jury, not the court, which . . . judges the credibility of witnesses[.]”) (quoting
Fajardo v. Cammack, 322 N.W.2d 873, 878 (S.D. 1982) (Wollman, C.J., concurring
specially)); Strassburg v. Citizens State Bank, 581 N.W.2d 510, 517 (S.D. 1998).
The issue of intent as a jury question is demonstrated by Tibke. There, all of
the defendants gave sworn statements that “they have never said or done anything
intend[ing] to interfere with any business relations of [Tibke], nor have they ever
discouraged or tried to dissuade anyone from using Tibke as a horse trainer.”
Tibke, 479 N.W.2d at 902. Summary judgment was denied, nonetheless, with
respect to one of the defendants because of “a phone call he made may have
affected an alleged agreement between” Tibke and the Thomases. Id. at 903.
Here, the evidence shows that Carlson told MacIntyre that he did not want
Janvrin’s trucking company doing business in the Buffalo area. MacIntyre relayed
to Anderson that Continental did not want Janvrin to make deliveries to
Continental’s well locations in South Dakota. Ultimately, Janvrin was removed
from CTAP’s list of haulers. Thus, there is evidence that a phone call made by
Continental may have affected an alleged agreement between CTAP and Janvrin
and the intent of Continental in making the phone call is a question of fact for the
jury to determine.
iii.

Impropriety

Continental also argues that it did not act improperly. The South Dakota
Supreme Court in St. Onge Livestock Co., Ltd. v. Curtis, 650 N.W.2d 537, 542 (S.D.
2002), outlined the factors courts should consider to determine if an actor’s
conduct is improper. The factors are patterned on the Restatement (Second) of
Torts § 767, and consist of the following:

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(a) the nature of the actor's conduct;
(b) the actor's motive;
(c) the interests of the other with which the actor's conduct interferes;
(d) the interests sought to be advanced by the actor;
(e) the social interests in protecting the freedom of action of the actor
and the contractual interests of the other;
(f) the proximity or remoteness of the actor's conduct to the
interference; and
(g) the relations between the parties.
Id. (quoting Restatement (Second) of Torts § 767)). The Court also cautioned that
“these instructions are neither exhaustive nor determinative.” Id. n.2.
Like determining a party’s intent, determining whether a party’s conduct
was improper is generally a question of fact that is not readily subject to summary
adjudication. See Gruhlke, 756 N.W.2d at 408 (“What constitutes improper
interference will depend on the particular facts of each case with consideration of
the elements above”). The Court in St. Onge considered the factors outlined in the
Restatement and analyzed whether the defendant’s conduct was improper. St.
Onge, 650 N.W.2d at 542. It then cited with approval several cases dealing with
the impropriety criteria. See id. A case from the Tenth Circuit was cited for the
proposition that “balancing of [the] factors to determine whether conduct was
justified is [a] task for [the] fact finder.” Id. (citing Q.E.R. v. Hickerson, 880 F.2d
1178, 1183-84 (10th Cir. 1989). Another case was quoted for its rationale that
“ ‘whether or not interference with [business] relations is justified is basically a
question of fact.’ ” Id. (quoting Hennum v. City of Medina, 402 N.W.2d 327, 336
(N.D. 1987)). And as the Restatement explains, “[t]he decision [whether conduct is
improper] depends upon a judgment and choice of values in each situation.”
Restatement (Second) of Torts § 767 cmt. b.

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Here, Continental argues that it acted in accordance with its own legitimate
interests and that it had the right to forbid anyone at all onto its well locations. It
cites the Restatement for the proposition that “[d]eliberately and at one’s pleasure,
one may ordinarily refuse to deal with another, and the conduct is not regarded as
improper.” Docket 13 at 14 (quoting Restatement (Second) of Torts § 766 cmt. b).
The same section cautions, however, that “there is a general duty not to interfere
intentionally with another's reasonable business expectancies of trade with third
persons, whether or not they are secured by contract, unless the interference is
not improper under the circumstances.” Restatement (Second) of Torts § 766
cmt. b.
Continental also relies on a case from the Fifth Circuit, DBI Servs., Inc. v.
Amerada Hess Corp., 907 F.2d 506 (5th Cir. 1990). The plaintiff in that case, like
Janvrin, was a trucking company. The defendant, like Continental, was an oil
producer. The defendant “decided to cease dealings with [the plaintiff] as of
December 17, 1986.” Id. at 507. And “it had made it amply clear that it did not
wish to be served by [the plaintiff].” Id. at 509. The plaintiff, nonetheless,
attempted on three separate occasions to bypass the defendant’s mandate by
subcontracting with third-parties. See id. at 507-08. Those third-parties
contracted with the defendant for trucking services and then subcontracted the
work to the plaintiff. The defendant, however, forbade the plaintiff from making
deliveries. The Fifth Circuit held that the defendant’s “refusal to allow [the plaintiff]
to provide it with services and water indirectly through third parties was a
legitimate exercise of its common law right to choose with whom to deal, rather
than an improper interference with [the plaintiff’s] contracts.” Id. at 509.

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The DBI Services case is distinguishable. In DBI Services, the plaintiff
alleged that the defendant tortuously interfered with several contracts the plaintiff
entered into after the defendant gave the plaintiff notice that it no longer wanted to
be served by the plaintiff. Here, Janvrin alleged that Continental interfered with an
existing business relationship. Additionally, the plaintiff in DBI Services did not
argue that the defendant’s initial decision or notice was improper. Rather, the case
turned on the application of a specific privilege under Texas law applicable to
tortious interference claims: “a party is privileged to interfere with another’s
contract if (1) it is done in a bona fide exercise of his own rights, or (2) he has an
equal or superior right in the subject matter to that of the other party.” Id. at 508
(quoting Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). Continental
has not identified an analogous privilege in South Dakota law. Instead, the South
Dakota Supreme Court has held that “self interest is not a defense where a party’s
conduct is improper.” Table Steaks, 650 N.W.2d at 837 (finding that the jury
“reasonably concluded that [the defendant] exceeded its rightful authority”); see
also Restatement (Second) of Torts § 767 cmt. b. (explaining that the inquiry “is
expressed in terms of whether the interference is improper or not, rather than in
terms of whether there was a specific privilege to act in the manner specified”).
And whether Continental’s actions were improper or not depends on the factors
identified above.
Continental primarily focuses on the motivation factor. It contends that
there were a number of permissible reasons underpinning its actions. For
example, Carlson felt that Janvrin’s comments in the newspaper article were
improper and akin to “biting the hand that feeds you.” Docket 16-2 at 5. Carlson

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also recalled negative comments Janvrin allegedly made toward the oil field that
were not reproduced in the newspaper article. MacIntyre testified that Janvrin had
arrived at Continental’s locations in the past without wearing a hardhat, safety
glasses, boots, or other required equipment. Docket 16-4 at 3. MacIntyre also
explained that Janvrin was twice told that he could not come on Continental’s well
locations without donning proper safety gear. MacIntyre also noted the lawsuit
instigated against Continental by Niemi–a relative of Janvrin–as another reason
why Continental did not want Janvrin’s trucking company making deliveries to it.
And there is no evidence that Continental was rude or that it directly threatened
CTAP. These reasons, if believed by a jury, suggest that Continental did not act
improperly.
The court must view the facts in the light most favorable to Janvrin,
however, and make all reasonable inferences in his favor. Through that lens, a jury
may also decide that Continental acted improperly. For example, Janvrin’s
comments as reported in the newspaper article were not directed at Continental or
any of its employees. Rather, Janvrin expressed a general frustration with the
drivers on the county road going too fast for the road’s conditions. Continental
may have taken offense to those comments, but a jury may wonder whether
Continental’s decision to retaliate against Janvrin was appropriate. Likewise,
although Carlson testified that he heard of additional comments made by Janvrin
that were not reported in the article, he could not recall who told him about those
comments or anything more specific other than that Janvrin was “very upset” with
oil field traffic. Docket 16-2 at 3. A jury may also question MacIntyre’s recollection
of Janvrin’s safety policy compliance if there are no records kept of Janvrin’s two

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prior reprimands (and here there are none). Related to this point, Spidahl testified
that he previously had not received any complaints about Janvrin. And the lawsuit
between Niemi and Continental did not involve Janvrin except for the fact that
Janvrin was the brother of Mrs. Niemi. But the fact that two people from a small
town in rural South Dakota are related may not surprise members of a South
Dakota jury.
Whether Continental’s actions were improper depends on an assessment of
choices and values applied to the specific circumstances of the case. That type of
assessment is a province of the jury and not the court. The jury will also likely
need to see and judge the veracity of live testimony to reach its decision.
CONCLUSION
The court concludes that whether Continental improperly and intentionally
interfered with Janvrin’s relationship with CTAP presents questions of fact for the
jury. Accordingly, it is
ORDERED that Continental’s motion for summary judgment (Docket 12) is
denied.
Dated June 27, 2016.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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