Rowe v. DPI Specialty Foods et al

Filing 197

MEMORANDUM DECISION ORDER Defendants Rule 50 motion for judgment as a matter of law is GRANTED in part as it relates to the fourth alleged defamatory statement and the punitive damages claim, and RESERVED in part as it relates to the remaining claims. Signed by Judge David Nuffer on August 29 2015. (DN)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
THOMAS ROWE,
Plaintiff,
v.
DPI SPECIALTY FOODS, INC., JAMI
FLOYD,

ORDER GRANTING IN PART AND
RESERVING IN PART DEFENDANTS’
RULE 50 MOTION FOR JUDGMENT
AS A MATTER OF LAW
Case No. 2:13-cv-00708-DN
District Judge David Nuffer

Defendants.

At the end of Plaintiff Thomas Rowe’s case, Defendants DPI Specialty Foods, Inc.
(“DPI”), and Jami Floyd (collectively, “Defendants”) made a motion for judgment as a matter of
law 1 on all claims. The parties argued the motion outside the presence of the jury. The pleadings,
evidence presented at trial, and the parties’ oral arguments have been carefully reviewed. For the
reasons stated below, Defendants’ motion is GRANTED in part and RESERVED in part.
ANALYSIS
Federal Rule of Civil Procedure 50(a) allows for judgment as a matter of law “[i]f a party
has been fully heard on an issue during a jury trial and the court finds that a reasonable jury
would not have a legally sufficient evidentiary basis to find for the party on that issue.” After Mr.
Rowe rested, Defendants moved under Rule 50(a), arguing, among other things, that Mr. Rowe
failed to prove that each of the alleged defamatory statements were made; that some of the
statements are not defamatory; that Mr. Rowe failed to prove that any of the alleged statements
proximately caused his alleged damages under the defamation or interference claims; that Mr.

1

FED. R. CIV. P. 50(a).

Rowe failed to prove malice necessary to overcome the privilege applicable to each claim; and
that Mr. Rowe failed to offer sufficient evidence to support an award of punitive damages.
Statement that Defendants were doing what Smith’s wanted
Mr. Rowe’s fourth alleged defamatory statement is not defamatory: “Defendants told
others in the industry that they were just doing what their customer, Smith’s wanted.” 2 The
statement plead does not identify or even refer to Mr. Rowe, 3 nor does it contain any words that
impeach anyone’s honesty, integrity, virtue, or reputation and thereby exposes no one to public
hatred, contempt, or ridicule, 4 nor does it “harm the reputation of [any] person so as to lower
that person in the estimation of the community or to deter others from associating or dealing with
[any] person.” 5 Based on both its lack of identification and lack of negative language, this
alleged statement cannot be considered by the jury as defamatory.
Mr. Rowe argued that “what . . . Smith’s wanted” was for Mr. Rowe to no longer call on
Smith’s. However, the statement plead contains no “words or words to that effect” 6 that could
reasonably convey that message. Nonetheless, to the extent the statement could be read to carry
that meaning, granting Defendants’ motion on this statement does not harm Mr. Rowe because

2

Complaint ¶ 47, at 8, docket no. 2-1, filed July 29, 2013.

3

Pratt v. Nelson, 164 P.3d 366, 381 (Utah 2007) (citing West v. Thomson Newspapers, 872 P.2d 999, 1007–08
(Utah 1994)) (“In order to establish a claim for defamation, a party ‘must show that [the] defendants published the
statements concerning [the party] . . . .”); Id. at 382 (citing Lynch v. Standard Publ'g Co., 51 Utah 322, 170 P. 770,
773 (1918)) (“Before defamatory statements may be regarded as actionable, a party must show that the statements
‘refer to some ascertained or ascertainable person.’ A party may show this ‘by directly being named, or so intended
from the extrinsic facts and circumstances.’”).
4

Jacob v. Bezzant, 212 P.3d 535, 545 (Utah 2009) (citing West v. Thomson Newspapers, 872 P.2d 999, 1008 (Utah
1994)).

5

Model Utah Jury Instructions 1st Ed. 10.5 Definition: Defamatory Meaning.

6

Dennett v. Smith, 445 P.2d 983, 984 (Utah 1968). See also Williams, 656 P.2d at 971.

2

he has plead that very meaning in another statement that will go to the jury for a verdict:
“Defendants told Mr. Kinsella that Smith’s no longer wanted Mr. Rowe to call on them.” 7
Therefore, Defendants are entitled to judgment as a matter of law 8 on Mr. Rowe’s fourth
alleged defamatory statement. When a transcript is available it will be possible to determine
whether any evidence supports the other three alleged defamatory statements 9 and their potential
for use as improper means in the tortious interference claim.
Punitive Damages
In addition, Mr. Rowe has not sufficiently proven his claim for punitive damages.
[P]unitive damages may be awarded only if compensatory or general damages are
awarded and it is established by clear and convincing evidence that the acts or
omissions of the tortfeasor are the result of willful and malicious . . . conduct, or
conduct that manifests a knowing and reckless indifference toward, and a
disregard of, the rights of others. 10
Utah courts have not yet solidified a consistent definition for “willful and malicious”
conduct. 11 However, Mr. Rowe argued that it would have been reckless for the Defendants to
make the alleged statements without first confirming their truth with Smith’s. However, that
failure to confirm would be negligence, and “evidence of simple negligence alone does not
support an award of punitive damages.” 12 Furthermore, while reckless disregard for the truth of

7

Complaint ¶ 44, at 8.

8

FED R. CIV. P. 50(a).

9

Complaint ¶¶ 44–47, at 8.

10
Utah Code Ann. § 78B-8-201; see also Crookston v. Fire Ins. Exch., 817 P.2d 789, 807 (Utah 1991) (citing
Behrens v. Raleigh Hills Hosp., Inc., 675 P.2d 1179, 1186 (Utah 1983)) (“punitives are allowed only where there is
wilful and malicious conduct . . . or . . . conduct which manifests a knowing and reckless indifference toward, and
disregard of, the rights of others.” (internal quotations omitted)).
11

See, e.g., Gleave v. Denver & Rio Grande W. R. Co., 749 P.2d 660 (Utah Ct. App. 1988) (discussing whether
actual malice is required for punitive damages or whether implied malice is sufficient) Johnson v. Rogers, 763 P.2d
771 (Utah 1988) (same); Biswell v. Duncan, 742 P.2d 80, 84 (Utah Ct. App. 1987) (same); Clayton v. Crossroads
Equip. Co., 655 P.2d 1125 (Utah 1982) (referring to non-Utah case law); and State v. Larsen, 865 P.2d 1355, n.3
(Utah 1993) (discussing the definition of “willful”).

12

Gleave, 749 P.2d at 670.

3

the statement is evidence of malice that could overcome the common interest privilege at play in
this case, 13 for punitive damages Mr. Rowe must prove a “reckless indifference toward, and a
disregard of, the rights of others.” 14
But most importantly, the proof offered by Mr. Rowe could not be taken by the jury as
clear and convincing. Mr. Rowe offered only shreds of evidence to support his primary claims of
defamation and interference, and much of the evidence fell outside the scope of the allegations in
his complaint, leaving his allegations weakly supported, if at all. For example, in the testimony
closest to supporting an alleged defamatory claim, Mr. Rowe’s witness Angie Hayes testified
that defendant Jami Floyd stated to Ms. Hayes that Mr. Rowe misappropriated money; however,
she then pushed this alleged statement outside the pleadings. Unlike the allegation in the
complaint, 15 Ms. Hayes clearly stated that alleged misappropriation had nothing to do with the
charity golf tournament, and she did not testify that this statement was made to Robert Kinsella.
Through only the presentation of Mr. Rowe’s case, witnesses have offered conflicting
and incomplete testimony of the alleged defamatory statements and their truth and motivation.
Whether there is any evidence of willful and malicious or reckless indifference and disregard
required to support punitive damages can only be shown by careful examination of transcripts,
which are not available now. But the evidence is surely legally insufficient to be clear and
convincing.

13

Ferguson v. Williams & Hunt, Inc., 221 P.3d 205, 212 (Utah 2009) (citing O'Connor v. Burningham, 165 P.3d
1214, 1224 (Utah 2007)) (“a plaintiff can show abuse of a conditional privilege where a statement is made with
knowledge of its falsity or with reckless disregard as to its falsity”).
14

Utah Code Ann. § 78B-8-201.

15

Complaint ¶ 45, at 8.

4

Therefore, Defendants are entitled to judgment as a matter of law 16 on Mr. Rowe’s claim
for punitive damages.
ORDER
For the reasons set forth above, Defendants’ Rule 50 motion for judgment as a matter of
law is GRANTED in part as it relates to the fourth alleged defamatory statement and the punitive
damages claim, and RESERVED in part as it relates to the remaining claims.
Signed August 29, 2015.
BY THE COURT

________________________________________
David Nuffer
United States District Judge

16

FED R. CIV. P. 50(a).

5