Janvrin v. Continental Resources, Inc.

Filing 97

ORDER denying 93 Renewed Motion for Judgment as a Matter of Law and Motion for New Trial. Signed by U.S. District Judge Karen E. Schreier on 6/30/17. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
4:14-CV-4124-KES

JERRY JANVRIN
d/b/a J&J TRUCKING,
Plaintiff,

ORDER DENYING DEFENDANT’S
RENEWED MOTION FOR JUDGMENT
AS A MATTER OF LAW AND MOTION
FOR A NEW TRIAL

vs.
CONTINENTAL RESOURCES, INC., an
Oklahoma Corporation,
Defendant.

Plaintiff, Jerry Janvrin, sued defendant, Continental Resources, for
tortious interference with a business relationship alleging that Continental
intentionally interfered with Janvrin’s business relationship with CTAP, Inc.
After the close of Janvrin’s case in chief and again at the close of all the
evidence, but before the jury returned a verdict, Continental moved for a
judgment as a matter of law on Janvrin’s claim. The court heard oral
arguments and reviewed Continental’s written brief and denied Continental’s
motion. Docket 85. Continental filed a Renewed Motion for Judgment as a
Matter of Law and Motion for a New Trial.
BACKGROUND
Janvrin owned J&J Trucking, a business that provided hauling services
in South Dakota, North Dakota, and Montana. Continental Resources is an oil
and gas exploration company that owns well locations in South Dakota, North
Dakota, Montana, and other states. Continental’s well locations in Harding
County, South Dakota are referred to as the “Buffalo District” and make up a
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small number of its overall well locations. Non-party CTAP, Inc., is a supplier of
pipeline, casings, tubing, and other goods used by oil and gas companies. From
2010 to February of 2014, J&J Trucking was on a list of independent
contractors qualified by CTAP to deliver loads to its customers. J&J Trucking
only delivered to wells out of CTAP’s Bowman, North Dakota yard. The Bowman
yard delivered supplies to well locations in the Buffalo District and several
other locations in North Dakota. On February 19, 2014, CTAP informed
Janvrin that J&J Trucking was no longer on CTAP’s list of qualified
independent contractors and would no longer deliver loads to CTAP customers.
At trial, Janvrin presented evidence that on Wednesday, February 19,
2014, 1 an article appeared in the Harding County newspaper describing an
accident between a Continental employee who was driving a Continental
vehicle and two cows on a county road north of Buffalo, South Dakota. The
cows belonged to Roxy and David Niemi—Janvrin’s sister and brother-in-law.
Janvrin was paraphrased in the article expressing his belief that many drivers
on the county road drive too fast for the road’s conditions. Janvrin’s theory of
the case was that Continental induced or otherwise pressured CTAP to end its
business relationship with J&J Trucking in retaliation for Janvrin’s comment
in the newspaper article. Continental claimed that it only asked CTAP not to
have Janvrin deliver loads to its well locations in the Buffalo District, but that
Janvrin was welcome to deliver to Continental’s other well locations.

The date on the newspaper article is February 20, 2014, but testimony at trial
established that the newspaper was actually delivered on February 19, 2014.
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Continental further claimed that it did not want Janvrin delivering to its
locations in the Buffalo District because Janvrin was a safety risk.
Janvrin presented testimony from several witnesses to show the timeline
of events that led to his termination. After reading the article in the Harding
County newspaper, Gordan Carlson, Continental’s Buffalo District supervisor,
testified that he believed that Janvrin’s comments were disrespectful and he
called Continental’s Buffalo District unit engineer, Peter MacIntyre, and
requested that MacIntyre prohibit Janvrin from providing trucking services to
Continental. MacIntyre agreed to contact Ollis Anderson because Anderson was
responsible for arranging how materials were delivered to well locations. After
MacIntyre discussed the newspaper article with Anderson, Anderson called
Stoney McCarrell, Vice President of Operations for CTAP. Anderson testified
that he told McCarrell that he did not want Janvrin making deliveries to the
Buffalo District, but that J&J was free to deliver to the rest of Continental’s
wells. McCarrell testified that Anderson told him that Continental did not want
Janvrin to make deliveries to any of its well locations. Finally, Ron Spidahl
testified that McCarrell called Spidahl and told him to take J&J Trucking out of
the line up at the Bowman yard because McCarrell got a call from the “big
guy.” The effect of J&J being taken out of the line-up was that J&J would no
longer deliver any loads for CTAP out of the Bowman yard.
There was conflicting testimony as to how much time passed between
each communication. Carlson, MacIntyre, and Anderson all testified that
several days or a week passed between the day the newspaper was published
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and the day Anderson called McCarrell. But Spidahl testified that J&J
Trucking was removed from the list of haulers at the Bowman yard on
February 20, 2014, and Janvrin testified that he received the phone call from
Spidahl on the evening of February 19, 2014.
To support his theory that Continental retaliated against Janvrin for his
comments in the newspaper, Janvrin presented testimony from Spidahl that he
later received a phone call from Duke Ochellar of CTAP that “there would be
hell to pay” if Ochellar found out that Spidahl said something to Continental.
Also, David Tilus, a Continental employee, testified that he overheard Carlson
talking to another gentleman about J&J Trucking not delivering for CTAP
anymore and later called Justin Till, a former Continental and J&J Trucking
employee, to talk to him about it. While Tilus testified that he never said
Carlson boasted about putting J&J Trucking out of business, Till testified that
Tilus told him that Carlson boasted that he put J&J Trucking out of business.
Continental renews its motion for judgment as a matter of law and moves
for a new trial. Continental contends that the court improperly instructed the
jury on the law and applied the incorrect standard to determine whether to
submit punitive damages to the jury. Continental also argues that a reasonable
jury could not find that the interference was intentional or improper, that
Continental’s conduct was the legal cause of Janvrin’s injury, or that Janvrin’s
damages calculations were supported by competent evidence. Finally,
Continental claims that the evidence conclusively established that Janvrin

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failed to mitigate his damages and that there is legally insufficient evidence to
support an award of punitive damages.
LEGAL STANDARD
Judgment as a matter of law can be granted when “a party has been fully
heard on an issue and there is no legally sufficient evidentiary basis for a
reasonable jury to find for that party.” Fed. R. Civ. P. 50(a)(1). “The court views
the evidence in the light most favorable to the nonmoving party.” Sip-Top, Inc.
v. Ekco Group, Inc., 86 F.3d 827, 830 (8th Cir. 1996). “Judgment as a matter of
law is appropriate ‘[w]hen the record contains no proof beyond speculation to
support [a] verdict.’ ” Arabian Agric. Servs. Co. v. Chief Indus., Inc., 309 F.3d
479, 482 (8th Cir. 2002).
After a jury trial, the court may grant a new trial to any party on all or
some of the issues. Fed. R. Civ. P. 59(a). The court should grant a new trial
where “the verdict is against the ‘great weight’ of the evidence, so that granting
a new trial would prevent a miscarriage of justice.” Jacobs Mfg. Co. v. Sam
Brown Co., 19 F.3d 1259, 1266 (8th Cir. 1994).
I.

The court’s Jury Instruction No. 6 was a correct statement of the
law.
Continental contends that this court improperly instructed the jury as to

South Dakota law. In Tibke v. McDougall, 479 N.W.2d 898, 908 (S.D. 1992), the
South Dakota Supreme Court clarified the elements of a tortious interference
with a business relationship. The Court stated that the elements are as follows:
“(1) the existence of a valid business relationship or expectancy; (2) knowledge

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by the interferer of the relationship or expectancy; (3) an intentional and
unjustified act of interference on the part of the interferer; (4) proof that the
interference caused the harm sustained; and (5) damage to the party whose
relationship or expectancy was disrupted.” Id. The South Dakota Supreme
Court further explained that the previously stated elements more closely follow
Restatement (Second) of Torts §§ 766 and 766B. Id.
Continental argues that part of Jury Instruction No. 6 was an inaccurate
statement of the law. The relevant part of the instruction states, “(1)
Continental Resources has the right to refuse to do business with Jerry
Janvrin and to exclude Jerry Janvrin from its property; (2) But Continental
Resources cannot improperly interfere with Jerry Janvrin’s business interest
with CTAP.” Docket 77 at 8. Continental contends that the second part of the
instruction was improper because it suggested that its absolute right to
exclude Janvrin from its property and refuse to do business with Janvrin was a
conditional right.
Continental heavily relies on Johnson v. Schmitt, 309 N.W.2d 838, 839
(S.D. 1981), to support its argument that it had the absolute right to refuse to
do business with Janvrin. The proposed jury instruction in Johnson that
Continental relies on stated:
You are instructed that (appellants) have an absolute right to sell
or not to sell water to any person. You are further instructed that
there is no liability for procuring a breach of contract where such
breach is caused by the exercise of an absolute right, that is, by an
act which a person has a definite legal right to do.

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Id. at 840. The trial court in Johnson did not give the above instruction
because, while it found the legal theory was valid, it did not apply to the facts
of the case, and the South Dakota Supreme Court agreed. Id. The legal theory
relied on to formulate the above instruction is stated in Restatement (Second)
of Torts § 773. Section 773 applies where a defendant admits that he
intentionally and knowingly interfered with a contract or relationship but
alleges that he did so in good faith and to protect a legal right. 2
Here, the legal theory stated in § 773 and the proposed Johnson
instruction do not apply to these facts because Continental does not admit that
it intentionally interfered with the CTAP—J&J Trucking business relationship.
Instead, Continental adamantly denies that it intended to interfere with the
relationship. Thus, the defense contemplated in § 773 of the Restatement did
not apply to the facts of the case and was not relevant at trial. Instead this
court referenced sections 776 and 766B for Jury Instruction No. 6.

Section 773 is applicable where “(1)[the actor] has a legally protected interest,
and (2) in good faith asserts or threatens to protect it, and (3) the threat is to
protect it by appropriate means. Under these circumstances his interference is
not improper although he knows that his conduct will cause another to break
his contract or otherwise refuse to do business with a third person.”
Restatement (Second) of Torts § 773 cmt. a (Am. Law Inst. 1979)(emphasis
added). The Restatement includes illustrations where § 773 would be
applicable. For example, the first illustration states:
A enters into a contract to buy Blackacre from B. C honestly
believes that he has a right of way over Blackacre. With knowledge
of the contract, C in good faith informs A of his interest and
threatens to enforce it by legal proceedings if, as and when the
owner of Blackacre should deny his claim. A thereupon refuses to
perform his contract with B. C’s interference is not improper under
the rule stated in this Section.
Restatement (Second) of Torts § 773 cmt. a (Am. Law Inst. 1979).
2

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Continental argues that the court’s instruction is not supported by any
law in any jurisdiction and that it has an absolute right to refuse to do
business with Jerry Janvrin. But the court’s instruction is supported by law
and Continental misconstrues what the instruction states. There were three
different business relationships at play in this case. There was the J&J
Trucking—Continental Resources relationship, the J&J Trucking—CTAP
relationship, and the CTAP—Continental Resources relationship. The first part
of Jury Instruction No. 6 instructs the jury that, as to the J&J Trucking—
Continental relationship, Continental has a right to refuse to do business with
J&J Trucking and a right to exclude J&J Trucking from its property. The
second part of the instruction instructs the jury as to Continental’s rights in
relation to a different business relationship, i.e. the J&J Trucking—CTAP
relationship. As to the J&J Trucking—CTAP relationship, Continental cannot
improperly induce CTAP to refuse to do all business with J&J Trucking.
Jury Instruction No. 6 is supported by the law in South Dakota and
other jurisdictions. Because the South Dakota Supreme Court indicated that
South Dakota law is based on the Restatement, this court looked to the
Restatement for guidance on the elements of tortious interference with a
business relationship. The court derived Jury Instruction No. 6 directly from
the wording in comment b of § 766, which states the following:
The rule stated in this section does not apply to a mere refusal to
deal. Deliberately and at his pleasure, one may ordinarily refuse to
deal with another, and the conduct is not regarded as improper,
subjecting the actor to liability. . . . There is no general duty to do
business with all who offer their services, wares or patronage; but
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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 (Am. Law Inst. 1979) (emphasis
added). Jury Instruction No. 6 is a condensed version of comment b of § 766
and thus, is consistent with and supported by the law in South Dakota.
In Table Steaks v. First Premier Bank, N.A., 650 N.W.2d 829, 837 (S.D.
2002), the South Dakota Supreme Court found that the defendants improperly
interfered with the plaintiff’s business relationship with its customers when
one defendant unilaterally terminated its credit card processing agreement and
the other defendant placed plaintiff on a list that prevented plaintiff from
entering into a new agreement. The Court reasoned that there was sufficient
evidence to find the defendants liable because, even though the defendants
were protecting themselves from fraud liability, their conduct was improper. Id.
Thus, the South Dakota Supreme Court’s opinion is not consistent with
Continental’s argument that it had an absolute right to refuse to do business
with Janvrin. The Court expressly found that the defendant’s decision in Table
Steaks to terminate its processing agreement—to refuse to do business—was
still tortious interference because the defendant acted improperly and
interfered with plaintiff’s business relationship with a third party. Id.
Instruction No. 6 is also consistent with the law in other states. For
example, Continental relies heavily on DBI Services., Inc. v. Amerada Hess
Corp., 907 F.2d 506, 507 (5th Cir. 1990), because the facts are very similar to

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this case and Texas’s tortious interference law is also based on the
Restatement (Second) of Torts. In DBI, the Fifth Circuit upheld the district
court’s grant of judgment n.o.v. because the defendant properly exercised its
common law right to refuse to do business with the plaintiff. Id. at 509. The
court explained that the defendant did not extend beyond its common law right
because it simply requested not to be served by the plaintiff. Id. It did not
induce or request third parties to cease doing business with the plaintiff. Id.
(“[T]he undisputed facts indicate that Amerada Hess refused only to allow DBI
to provide water or services on Amerada Hess projects. It never demanded that
contractors refrain from dealing with DBI in other matters.”).
Continental also relies on Landess v. Borden, Inc., 667 F.2d 628, 632
(7th Cir. 1981), in its motion. In Landess, the Seventh Circuit also upheld the
district court’s judgment as a matter of law in favor of the defendant. Id. The
court found that the defendant induced third parties not to do business with
the plaintiff but that the defendant’s conduct was not improper, so the
defendant was not liable for tortious interference. Id. (“While it is true that
Borden induced the farmers to terminate their contracts with Landess, we
believe that Borden’s conduct was privileged.”). Here, the court’s instruction
was consistent with the law in DBI and Landess. The decision in DBI stated
that a business has a right to refuse to do business with a party and a right to
exclude a party from its property, but clarified that a business cannot
improperly induce third parties to refuse to do business with another party.
And Landess clarified that a business can induce third parties not to do
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business with another party, so long as it is “privileged” or “not improper.”
Landess, 667 F.2d. at 632. Thus, this court’s instruction is consistent with
South Dakota law, as well as the law in other states with statutes based on the
Restatement (Second) of Torts § 766.
II.

There was legally sufficient evidence for a jury to find that
Continental’s conduct was intentional and improper.
A.

Continental’s Intent.

Continental argues that Janvrin did not present “any evidence that
Continental asked, demanded, or otherwise induced CTAP to stop doing
business with [Janvrin]” and instead that “the evidence conclusively proved
that Continental merely asked CTAP not to send [Janvrin] to Continental’s well
locations in Buffalo, South Dakota.” Docket 94 at 12. To succeed on a claim for
tortious interference of a business relationship, Janvrin had to prove that
Continental’s actions were intentional. Selle v. Tozser, 786 N.W.2d 748, 753
(S.D. 2010). An action is intentional where the actor “knows that the
interference is certain or substantially certain to occur as a result of his
action.” Restatement (Second) of Torts § 766 cmt. j (Am. Law Inst. 1979).
Janvrin presented sufficient evidence to prove Continental’s intent.
Anderson and McCarrell gave conflicting testimony as to the contents of their
phone call regarding J&J Trucking. Anderson testified that he only requested
that Janvrin not be permitted to deliver in the Buffalo District. But McCarrell
testified twice that he believed Anderson asked whether CTAP would still be
able to make its deliveries if it didn’t allow J&J Trucking to deliver to

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Continental’s well locations and that CTAP not allow J&J Trucking to deliver to
any of Continental’s well locations. When defense counsel asked McCarrell how
he interpreted Anderson’s statement that J&J Trucking not deliver to
Continental “down here anymore,” McCarrell stated that he interpreted “down
here” as referring to the Bowman yard—not to the Buffalo District.
Also, Till testified that Tilus, a Continental employee, told him that
Carlson was boasting about putting a local trucking firm out of business.
Spidahl testified that McCarrell told him to take J&J Trucking out of the line
up in the Bowman yard because he received a call from “the big guy.”
McCarrell and Spidahl both testified that Continental was CTAP’s largest
customer in the Bowman yard in February 2014, and McCarrell testified that
he and Anderson hunted together on his ranch. Finally, Spidahl also testified
that, after he left employment at CTAP and a few months after he removed J&J
Trucking from the line up, he received a phone call from Duke Ochellar of
CTAP that “there would be hell to pay” if he said anything to Continental.
The court acknowledges that Continental presented evidence that
disputed Janvrin’s evidence. Anderson testified that he only asked CTAP not to
send J&J Trucking to the oil wells in the Buffalo District, but that J&J was free
to deliver elsewhere. Also, McCarrell testified on cross examination that it was
his decision to remove J&J Trucking from the Bowman line up and not
Continental’s decision. Both parties presented a conflicting set of facts, and it
is for a jury to determine the credibility of witnesses and find the facts of a
case. Viewing the evidence in the light most favorable to Janvrin, a reasonable
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jury could have found that Continental asked, demanded, or otherwise induced
CTAP to stop doing business with Janvrin and knew that the interference of the
CTAP—J&J Trucking relationship was certain or substantially certain to occur.
B. Continental’s interference was improper.
Continental argues that Janvrin failed to present sufficient evidence to
support a finding that the alleged interference was improper because the
evidence “conclusively proved Continental merely asked CTAP not to send
[Janvrin] to Continental’s well locations in Buffalo, South Dakota. . . [t]hus, the
evidence established that Continental was only exercising its legal rights.”
Docket 94 at 14. Determining whether a party’s conduct is proper is generally a
question of fact. Gruhlke v. Sioux Empire Fed. Credit Union, Inc., 756 N.W.2d
399, 408 (S.D. 2008). The Restatement (Second) of Torts § 767 lays out the
following factors to consider when determining if an actor’s conduct is
improper:
(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.
Janvrin’s theory of the case was that Continental’s interference was
improper because it was in retaliation for Janvrin’s comments in the Harding
County newspaper article and because Janvrin’s family and employer had
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previously been embroiled in litigation with Continental. To support this
theory, Janvrin presented evidence at trial that Janvrin’s sister and employer
had been involved in extensive litigation with Continental and that Janvrin’s
brother-in-law had an altercation with a Continental employee. Janvrin also
presented evidence that he was removed from CTAP’s Bowman yard line-up one
day after the February 19, 2014 article was delivered. Finally, Continental
claimed that it did not want to continue to have Janvrin deliver to the Buffalo
District for safety reasons, but Janvrin pointed out that Continental did not
have any documentation of safety violations. Continental presented evidence to
contradict Janvrin’s theory, but it was for the jury to decide which witnesses
were credible and which were not. Making all reasonable inferences in favor of
Janvrin, the court finds that there was sufficient evidence for a reasonable jury
to find that Continental’s interference was improper.
III.

There was legally sufficient evidence to find that Continental’s
conduct was the legal cause of plaintiff’s injuries.
Continental argues that Janvrin failed to prove that Continental’s action

was the legal cause of his injuries. Docket 94 at 18. To prove a claim for
tortious interference of a business relationship, Janvrin must show that, but
for Continental’s actions, the harm would not have occurred. St. Onge Livestock
Co. v. Curtis, 650 N.W.2d 537, 542 (S.D. 2002); Hayes v. N. Hills Gen. Hosp.,
590 N.W.2d 243, 250 (S.D. 1999). Continental contends that Janvrin did not
present any evidence that Continental’s action was the cause of Janvrin’s harm
because Janvrin’s removal from the line-up was not a foreseeable consequence

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of Continental’s request that Janvrin not be permitted to deliver to the Buffalo
District. Docket 94 at 19.
First, the evidence was not conclusive as to what Anderson told
McCarrell during that phone call, and that issue was left to the jury to decide.
Second, McCarrell testified at trial that “but for” the phone call from Anderson
he would not have called Spidahl and directed him to remove Janvrin from the
line-up at Bowman. Third, there was testimony at trial that Continental was
CTAP’s largest customer at the Bowman yard, so it was foreseeable that
Janvrin would be removed from the Bowman yard’s list of independent haulers
if Continental improperly induced CTAP to stop sending Janvrin to all of
Continental’s well locations.
Continental confuses conclusive evidence and contradictory evidence.
The court acknowledges that McCarrell testified that it was his decision to
remove Janvrin from the list of independent haulers at Bowman, which refuted
Janvrin’s evidence. Similar to the other issues discussed, both parties
presented testimony to support their theory of the case and to refute the other
side’s theory, and it was for the jury to evaluate the credibility of the witnesses
and find the facts. Thus, viewing the evidence in the light most favorable to
Janvrin, there was sufficient evidence for a reasonable jury to conclude that
Continental was the legal cause of Janvrin’s injuries.

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IV.

There was legally sufficient evidence to support an award of
plaintiff’s claimed damages.
Continental contends that Janvrin’s testimony about his lost income

was not competent evidence. Docket 94 at 20. Lay witness testimony given in
the form of an opinion must be: “(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. A
witness must also have personal knowledge of the matter about which a
witness testifies. Fed. R. Evid. 602. “Personal knowledge or perception acquired
through review of records prepared in the ordinary course of business . . . is a
sufficient foundation for lay opinion testimony. Burlington N. R.R. Co. v.
Nebraska, 802 F.2d 994, 1004 (8th Cir. 1986).
Continental argues that Janvrin’s testimony as to his lost income from
February 19, 2014, through April 1, 2015, does not constitute competent
evidence because “it was not based on personal knowledge, was improperly
based on specialized knowledge, and was inadmissible hearsay.” Docket 94 at
20. Continental specifically objects to Janvrin’s testimony about why he added
depreciation and Section 179 expense deductions back into his annual income.
Id. And Continental asks this court to reconsider its ruling on Continental’s
Second Motion in Limine (Docket 44) that Janvrin has personal knowledge of
his tax returns.

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Janvrin’s testimony about his lost income satisfies the requirements set
out in the Federal Rules of Evidence. His testimony helped the jury determine a
fact in issue because it explained the accurate measure of Janvrin’s earned
income. Also, Janvrin testified that his CPA had prepared his tax returns in the
course of regularly conducted business activities and explained that he
provided his CPA with the documents underlying his tax returns. Thus, the
court reasserts its ruling on Continental’s Second Motion in Limine that
Janvrin had personal knowledge of his tax returns that was not based on
specialized knowledge. See Burlington N. R.R. Co. v. Nebraska, 802 F.2d 994,
1004 (8th Cir. 1986)(“Personal knowledge or perception acquired through
review of records prepared in the ordinary course of business . . . is a sufficient
foundation for lay opinion testimony.”). Continental’s objection that Janvrin did
not explain his reasoning well enough is a credibility determination that was
properly left to the jury to determine. Thus, the court finds that a reasonable
jury could determine the amount of Janvrin’s lost income after considering
Janvrin’s testimony.
V.

There was sufficient evidence to conclude that Janvrin exercised
reasonable diligence to mitigate his damages.
Continental claims that Janvrin is not entitled to collect damages as a

matter of law because “[Janvrin] produced no evidence at trial that would
support a finding that [Janvrin] exercised reasonable diligence and effort to
mitigate his damages.” Docket 94 at 21. In South Dakota, a person has a duty
to exercise reasonable effort to mitigate his damages. Sun Mortg. Corp. v. W.
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Warner Oils, 567 N.W.2d 632, 635-37 (S.D. 1997). “Reasonable diligence has
been described as acting ‘with such care and diligence as a person of ordinary
prudence would under the circumstances,’ applying ‘rules of common sense,
good faith, and fair dealing.’ ” Id. at 637 (citing 22 Am. Jur. 2d Damages § 498,
at 583).
At trial, Janvrin testified that he placed multiple phone calls to CTAP and
offered to apologize to whomever he needed to in order to get back on CTAP’s
list of independent haulers. Janvrin also testified that he inquired into other
trucking jobs in the region and explained why they were not feasible. It was for
the jury to determine whether Janvrin acted “with such care and diligence as a
person of ordinary prudence.” Id. at 637. Viewing the evidence in the light most
favorable to Janvrin, the court finds that there was sufficient evidence for a
reasonable jury to conclude that Janvrin exercised reasonable diligence in
mitigating his damages.
VI.

There is sufficient evidence to support an award of punitive
damages.
Continental alleges that this court erroneously ruled that SDCL § 21-1-

4.1 is a procedural statute, and thus, the federal rules govern whether to
submit punitive damages to the jury. Docket 94 at 24. Courts within this
district differ on whether SDCL § 21-1-4.1 applies in federal court. This court
has adopted the district court’s rationale in Ammann v. Massey-Ferguson, Ltd.,
933 F.Supp 840, 843 (D.S.D. 1996). See e.g., Lillibridge v. Nautilus Ins. Co., No.
10-4105-KES, 2013 WL 870439, *7 (D.S.D. Mar. 7, 2013)(holding that
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SDCL § 21-1-4.1 is procedural so the federal rules apply). In Ammann, the
district court found that, because SDCL § 21-1-4.1 is a procedural statute as
determined by the South Dakota Supreme Court, the federal rules should
apply when a federal court sits in diversity. Ammann, 933 F.Supp. at 843
(citing Dahl v. Sittner, 474 N.W.2d 897, 902 (S.D. 1991)). Thus, Janvrin did not
have to meet the heightened standard in SDCL § 21-1-4.1 to present the issue
of punitive damages to the jury. Instead, this court evaluates whether “there is
a reasonable basis to believe there has been willful, wanton, or malicious
conduct” by Continental. Lillibridge, 2013 WL 870439 at *7.
Continental argues that Janvrin failed to present any evidence that
“Continental consciously disregarded [Janvrin’s] rights” and that “[t]he
evidence conclusively established that Continental merely asked CTAP not to
send [Janvrin] to Continental’s well locations in the Buffalo District.” Docket 94
at 24-25. As previously discussed, the evidence in this case was not conclusive.
McCarrell’s testimony contradicted Anderson’s testimony as to the phone
conversation regarding J&J Trucking, various witnesses contradicted each
other as to the timeline of events, and Till’s testimony contradicted Tilus’s
testimony as to their conversation about Carlson’s comments. Thus, the jury
was tasked with the responsibility of determining the credibility of each witness
and finding the facts.
Janvrin’s theory of the case was that Continental retaliated against him
because of his comment in the Harding County newspaper. To support his
theory, Janvrin presented evidence that: the article was published, Gordan
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Carlson of Continental forwarded the article to Peter McIntyre, McIntyre
forwarded the article to Anderson, Anderson called McCarrell, Anderson and
McCarrell’s testimony as to their phone call was inconsistent, McCarrell called
Ron Spidahl and told him to terminate Janvrin’s trucking contract, Janvrin
was fired by CTAP on the same day the article was published, Anderson and
McCarrell were friends and business associates who had previously hunted
together, Continental was CTAP’s largest customer at CTAP’s Buffalo yard,
Gordan Carlson was overheard boasting that he put a local trucking company
out of business, and Continental claimed at trial that Janvrin was terminated
due to safety violations but had no physical evidence of Janvrin’s alleged safety
violations. Based on that evidence, the court finds that there was a reasonable
basis to believe that Continental intentionally and maliciously induced CTAP to
stop doing business with Janvrin. Also, the court reasserts its previous ruling
during trial that the testimony presented at trial established by clear and
convincing evidence that there was a reasonable basis to believe that
Continental acted with willful, wanton, or malicious conduct. Thus, if Janvrin
had been required to meet the heightened burden in SDCL § 21-1-4.1, he did.
VII.

The verdict was not against the great weight of the evidence.
Continental contends that it is entitled to a new trial because the jury’s

verdict was against the great weight of the evidence, and that both the actual
and punitive damage awards were “unfounded and excessive.” Docket 94 at 11.
A court should grant a new trial under Fed. R. Civ. P. 59(a) where “the verdict
is against the ‘great weight’ of the evidence, so that granting a new trial would
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prevent a miscarriage of justice.” Jacobs Mfg. Co., 19 F.3d at 1266. The verdict
was not against the great weight of the evidence. Both parties presented
evidence to support their version of events and contradict the other side’s
version. Also, Janvrin properly testified as to his lost income because he had
personal knowledge of his tax returns and his testimony helped the jury
determine a fact in issue. Finally, Janvrin presented sufficient evidence to
support presenting punitive damages to the jury. Thus, Continental is not
entitled to a new trial.
CONCLUSION
In conclusion, the court finds that Janvrin presented sufficient evidence
for a reasonable jury to find in Janvrin’s favor. And the court finds that the
jury’s verdict was not against the great weight of the evidence. Thus,
Continental’s Renewed Motion for a Judgment as a Matter of Law and Motion
for a New Trial (Docket 93) is denied.
DATED June 30, 2017.
BY THE COURT:

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

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