Rowe v. DPI Specialty Foods et al

Filing 65

MEMORANDUM DECISION AND ORDER denying 38 Motion for Summary Judgment. Signed by Judge David Nuffer on 6/3/15 (alt)

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

MEMORANDUM DECISION AND ORDER
DENYING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
Case No. 2:13-cv-00708-DN
District Judge David Nuffer

Defendants.

Defendants DPI Specialty Food, Inc. (“DPI”) and Jami Floyd (collectively,
“Defendants”) move 1 for summary judgment dismissing Plaintiff Thomas Rowe’s Complaint 2 in
its entirety. The parties’ memoranda and supporting documentation have carefully been
reviewed. For the reasons set forth below, Defendants’ motion for summary judgment is hereby
DENIED. Oral argument is unnecessary. 3
BACKGROUND ............................................................................................................................ 2
STANDARD OF REVIEW ............................................................................................................ 3
UNDISPUTED FACTS .................................................................................................................. 3
ANALYSIS ..................................................................................................................................... 4
A.
Defamation .............................................................................................................. 4
a.
The statements are subject to privilege, but whether Defendants abused
their qualified privilege is genuinely disputed ............................................ 5
b.
Whether there is a causal link between Defendants’ defamatory
statements and Mr. Rowe’s injury is in genuine dispute .......................... 10
B.
Tortious Interference with Economic Relations ................................................... 14
a.
A qualified privilege applies to Mr. Rowe’s claim for tortious
interference ............................................................................................... 14
b.
Whether there is a causal link between Defendants’ interfering
statements and Mr. Rowe’s injury is in genuine dispute .......................... 15
CONCLUSION ............................................................................................................................. 16

1

Defendants’ Motion for Summary Judgment (“Motion”), docket no. 38, filed November 5, 2014.

2

Complaint, docket no. 2-1, filed July 29, 2013.

3

See DUCivR 7-1(f).

BACKGROUND
Mr. Rowe was terminated from his employment at Premier Sales Solutions (“Premier”).
Premier is a food broker that works with retailers and distributors. At the time of Mr. Rowe’s
termination, Robert Kinsella was Premier’s owner and president. Mr. Rowe was employed by
Premier for five years, during which time he worked with Smith’s Food & Drug Centers, Inc.
(“Smith’s”). Prior to joining Premier, Mr. Rowe worked with Smith’s in the deli category for
approximately fourteen years.
Premier had contracted with DPI to assist DPI with the sale of deli food products to
Smith’s. DPI is a distributor and manufacturer of various specialty food items and markets its
items to various retailers, including Smith’s. During the time period in which the alleged
defamatory statements occurred, Mr. Rowe was the lead of the Premier team that assisted and
supported DPI in supplying deli products to Smith’s, and Ms. Floyd was the head of the DPI
team responsible for deli sales to Smith’s.
Mr. Rowe’s Complaint asserts two causes of action—defamation and tortious
interference with economic relations (“tortious interference”). Mr. Rowe alleges that in August
2012, Ms. Floyd, within the course and scope of her employment with DPI, began to make
defamatory statements regarding Mr. Rowe. Mr. Rowe argues the defamatory statements caused
him to be removed from the Smith’s account in September 2012. And although Mr. Rowe
remained employed with Premier for several months after his removal from the Smith’s account,
his employment with Premier was ultimately terminated in January 2013. Mr. Rowe contends
that the termination was a result of Defendants’ defamatory statements.
Defendants argue that Mr. Rowe cannot sustain his two claims because he cannot prove
the causation element of each claim. That is, Defendants say there is no causal link between the
wrongs alleged by Mr. Rowe and his alleged injury—Premier’s decision to terminate his

2

employment. Defendants state that the decision to terminate Mr. Rowe’s employment with
Premier was made by Mr. Kinsella, the owner of Premier. And Defendants state that Mr.
Kinsella testified that nothing Defendants said or did factored into his decision to terminate Mr.
Rowe’s employment. Defendants also contend that summary judgment on both claims is
appropriate because all communications at issue fall under the common interest privilege.
STANDARD OF REVIEW
“The court 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.” 4 When
analyzing a motion for summary judgment, the court must “view the evidence and draw all
reasonable inferences therefrom in the light most favorable to the party opposing summary
judgment.” 5 However, “the nonmoving party must present more than a scintilla of evidence in
favor of his position.” 6 A dispute is genuine only “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” 7
UNDISPUTED FACTS 8
1.

Mr. Rowe alleges that DPI published the following allegedly defamatory

statements about him: (a) before September 6, 2012, Jami Floyd contacted the owner of Premier,
Rob Kinsella, and accused Mr. Rowe of misappropriating funds at a charity golf tournament; (b)
in August 2012, Ms. Floyd told Mr. Kinsella that Smith’s no longer wanted Mr. Rowe to help
with Smith’s cheese merchandising; (c) at some point, Ms. Floyd told Mr. Kinsella that Smith’s
no longer wanted Mr. Rowe to call on Smith’s; (d) in late 2012 or early 2013, Ms. Floyd told
4

Fed. R. Civ. P. 56(a).

5
Mathews v. Denver Newspaper Agency LLP, 649 F.3d 1199, 1204 (10th Cir. 2011) (citation and internal quotations
omitted).
6

Ford v. Pryor, 552 F.3d 1174, 1178 (10th Cir. 2008) (citations omitted).

7

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Kerber v. Qwest Group Life Ins. Plan, 647
F.3d 950, 959 (10th Cir. 2011).

8

Other undisputed facts not critical to the decision are discussed in the memorandum decision in context.

3

Christina Johnson that Mr. Rowe was barred from working with Smith’s because he was not
willing to work competitive product; and (e) in late 2012 or early 2013, Ms. Floyd told Robert
Schindler that Mr. Rowe was no longer in the food brokerage business. 9
2.

The same statements that form the basis of Mr. Rowe’s defamation claim also

form the basis of his tortious interference claim. 10
3.

Mr. Rowe claims that the alleged defamatory and interfering statements harmed

him by causing him to lose his job with Premier. 11
ANALYSIS
Defendants’ Motion does not separately address Mr. Rowe’s defamation and tortious
interference claims. Rather, Defendants simultaneously argue that summary judgment is
appropriate on both claims because: (1) all communications at issue fall under the common
interest privilege; and (2) the causation element of both claims has not been met. For the sake of
clarity, however, each claim is separated and addressed individually in this Order.
A. Defamation
“Defamation is the act of harming the reputation of another by making a false statement
to a third person.” 12 “Under Utah law, a statement is defamatory if it impeaches an individual’s
honesty, integrity, virtue, or reputation . . . .” 13 “A publication is not defamatory simply because
it is nettlesome or embarrassing to a plaintiff, or even because it makes a false statement about
the plaintiff.” 14 Although Defendants question whether all five alleged statements are

9

Motion at 7; Memorandum in Opposition to Defendants’ Motion for Summary Judgment at xlv (“Opposition”),
docket no. 53, filed December 18, 2014 (filed under seal).

10

Id.

11

Id.

12

Jensen v. Sawyers, 130 P.3d 325, 333 (Utah 2005).

13

West v. Thomson Newspapers, 872 P.2d 999, 1008 (Utah 1994).

14

Cox v. Hatch, 761 P.2d 556, 561 (Utah 1988).

4

defamatory, they state Mr. Rowe’s allegations as an undisputed fact. Thus, the motion does not
focus on the sufficiency of the statements as defamatory. Defendants simply raise the question of
whether the statements qualify as defamatory, but then proceed with their argument under the
assumption that the alleged statements are defamatory. 15 Naturally, Mr. Rowe does not dispute
the defamatory nature of the alleged statements. Because the parties did not provide any legal
analysis on the defamatory nature of the statements, for purposes of the present motion for
summary judgment, all five alleged statements are considered defamatory.
In order to establish a defamation claim, a plaintiff must demonstrate that “(1) the
defendant published the statements . . . [in print or orally]; (2) the statements were false; (3) the
statements were not subject to privilege; (4) the statements were published with the requisite
degree of fault; and (5) the statements resulted in damages.” 16
Only the third and fifth elements of Mr. Rowe’s defamation claim are at issue in this
motion for summary judgment. Each element is discussed in turn below.
a. The statements are subject to privilege, but whether Defendants abused their qualified
privilege is genuinely disputed
The third element of Mr. Rowe’s defamation claim requires him to show that no privilege
applies to the statements or that if a privilege exists, it has been abused. “[C]ommunications
between persons who share a common business interest are qualifiedly privileged and not
libelous in the absence of malice.” 17 ““[W]hether a communication is privileged is for a court to
determine.” 18 “If a qualified privilege exists, the burden is on the plaintiff to prove that the
privilege was abused. 19
15

Motion at 20–21.

16

DeBry v. Godbe, 992 P.2d 979, 982 (Utah 1999).

17

Lind v. Lynch, 665 P.2d 1276, 1278 (Utah 1983).

18

Alford v. Utah League of Cities and Towns, 791 P.2d 201, 205 (Utah 1990).

19

Brehany v. Nordstrom, Inc., 812 P.2d 49, 58 (Utah 1991).
5

The Statements at Issue are Qualifiedly Privileged
Defendants contend that all of the statements at issue “occurred while Ms. Floyd was
acting on behalf of DPI to further the shared business interests of DPI and the companies with
whom Ms. Floyd was communicating.” 20 Therefore, they would be subject to a qualified
privilege overcome only by malice. Mr. Rowe responds, in a footnote, that he
does not concede that the common interest privilege applies in this case. None of
Ms. Floyd’s communications about Mr. Rowe were meant to protect interests held
by both DPI and Premier. For example, no one at Smith’s made any complaint
regarding the fact that they didn’t receive raffle tickets, invalidating Ms. Floyd’s
stated reason for making her allegations regarding Mr. Rowe’s misappropriation.
Further, there was no “common interest” basis for forwarding the Mitch Alm
emails, since Mr. Alm no longer worked for Smith’s, and Mr. Rowe had not
worked for Premier at the time of the emails. Notwithstanding these points, Mr.
Rowe focuses here on the arguments regarding abuse of the privilege, so as not to
burden the Court with additional argument. 21
Notwithstanding Mr. Rowe’s argument and lack of concession, the alleged defamatory
statements at issue are qualifiedly privileged. Defendants had a legitimate business interest in
discussing with Mr. Kinsella (the owner of Premier) issues and concerns they had with Mr.
Rowe’s job performance. Similarly, Christina Johnson and Robert Schindler also had a
legitimate interest in receiving information about a broker affiliated with DPI because both Ms.
Johnson and Mr. Schindler worked for companies that have a business relationship with DPI. 22
Ms. Floyd’s forwarding certain “Mitch Alm emails” was not alleged by Mr. Rowe to be a
defamatory statement.
There is an Issue of Fact of Whether the Qualified Privilege was Abused
Because a qualified privilege applies, the burden shifts to Mr. Rowe to prove that the
privilege was abused. “The plaintiff can show abuse of the privilege by proving that the
20

Motion at 22.

21

Opposition at 13, n. 14.

22

Motion at 12; Opposition at liv–lv (Mr. Rowe attempts to dispute these facts, but his dispute is improper argument
without any legal or evidentiary support).

6

defendant acted with malice or that the publication of the defamatory material extended beyond
those who had a legally justified reason for receiving it.” 23 “The ‘malice’ required to overcome
the conditional privilege consists of proof that the utterances were made from spite, ill will, or
hatred towards plaintiff.” 24
According to Defendants, Mr. Rowe cannot overcome the privilege because he “has no
evidence that the statements were made with ill will or excessively published.” 25 Mr. Rowe
responds that malice exists because “both Ms. Floyd and DPI had expressed frustration with Mr.
Rowe and had reasons for wishing him gone from his position.” 26 Supporting malice on the part
of DPI, Mr. Rowe contends that DPI was paying Premier more than other brokerage companies
because of his strong relationship with Smith’s and the high level of service Premier provided. 27
Mr. Rowe points out that DPI had tried in the past to decrease Mr. Rowe’s compensation or
involvement but had been blocked from doing so by Smith’s. 28 Mr. Rowe’s involvement was a
matter of expense to DPI. Mr. Rowe also asserts that “DPI knew that Mr. Rowe’s role in the
relationship was a threat to its hopes to expand its own role, and had strong incentives to reduce

23

Brehany, 812 P.2d at 58.

24

Johnson v. Cmty. Nursing Servs., 985 F. Supp. 1321, 1329 (D. Utah 1997) (citing Combes v. Montgomery Ward &
Co., 228 P.2d 272, 276–77 (Utah 1951)).
25

Motion at 5; see also Declaration of Jami Floyd in Support of Defendants’ Motion for Summary Judgment ¶ 11,
docket no. 39, filed November 5, 2014.
26

Opposition at 16.

27

Id. at xvi–xvii, ¶¶ 25-27, and 16–17.

28

Id. at xix, ¶ 35. Defendants object to all email exhibits submitted by Mr. Rowe on the basis that Mr. Rowe has not
given any foundation or provided any authentication. Rule 901 of the Federal Rules of Evidence states: “The
requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent claims.” A document may be
authenticated by “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in
conjunction with circumstances.” Fed. R. Evid. 901(b)(4). Mr. Rowe’s proffered email exhibits have distinctive
characteristics, such as the name of the person connected to the email address, and the names of the senders and the
recipients. The contents of the emails also authenticate them as being from the purported sender to the purported
recipient, because they contain discussions of identifiable matters, such as Mr. Rowe’s work for Smith’s. The
distinctive characteristics of the emails suggest that they are what they purport to be and thus are sufficiently
authenticated for consideration at summary judgment.

7

his stature.” 29 Mr. Rowe emphasizes that after he “was out of the picture, DPI succeeded,
negotiating a substantial reduction on its fees paid to Premier, which overturned a precedent that
ran all through Mr. Rowe’s tenure with Premier.” 30 Defendants reply that “[c]itations to an
attempt years earlier to reduce a commission to Mr. Rowe’s prior company, not even involving
Ms. Floyd, does not create malice on the part of DPI.” 31 Defendants further contend that
“negotiation of a new commission arrangement with Premier a year after Mr. Rowe was
terminated does not somehow evidence that DPI had malice towards Mr. Rowe.” 32
Supporting malice on the part of Ms. Floyd, Mr. Rowe points to evidence that he and Ms.
Floyd had experienced a number of personal conflicts shortly prior to his removal from the
Smith’s account. 33 As some examples of malice, Mr. Rowe points out that Ms. Floyd acted
“coolly to Mr. Rowe at a Smith’s store,” during an event; 34 Ms. Floyd started setting up meetings
with Smith’s personnel without including Mr. Rowe; 35 and Ms. Floyd forwarded old emails to a
Smith’s representative, which arguably reveal that Mr. Rowe had engaged in some improprieties
with a former Smith’s employee. 36
“[I]n addition to other common law means, such as excessive publication or common law
malice, a plaintiff can show abuse of a conditional privilege where the defendant (1) made a
defamatory statement knowing it to be false or (2) acted in reckless disregard as to its falsity.” 37

29

Id. at 16.

30

Id. at 17.

31

Reply Memorandum in Support of Defendants’ Motion for Summary Judgment (“Reply”) at 11, docket no. 59,
filed January 16, 2015.
32

Id.

33

Opposition at 17.

34

Id. at xxxv–xxxvi, at ¶ 125.

35

Id. at xxxvi, ¶ 127.

36

Id. at xxxii–xxxiii, ¶¶ 106-108.

37

Ferguson v. Williams & Hunt, Inc., 221 P.3d 205, 214–215 (Utah 2009).

8

Mr. Rowe argues that the common interest privilege was further abused because Defendants
acted in reckless disregard of the falsity of their alleged statement that “Smith’s no longer
wanted Mr. Rowe’s services.” 38 Mr. Rowe cites to deposition testimony of Smith’s employees to
demonstrate the falsity of the above statement. Specifically, Mr. Rowe cites to Zane Day’s (Vice
President of Sales Merchandising) and Shellie Hanson’s (Service Deli Merchandiser) deposition
testimony, where both individuals state that they did not discuss or request that Mr. Rowe be
removed from the Smith’s account. 39
Mr. Rowe concludes that “[i]n light of the actual truth expressed by these Smith’s
representatives[, that Mr. Rowe’s removal was never requested by Smith’s,] Defendants clearly
acted at least with reckless disregard of the truth of their statements that Smith’s no longer
wanted to work with Mr. Rowe . . . .” 40 Defendants reply that there is no evidence that Ms. Floyd
made the statements “without caring if they were true” 41 or any “evidence of a shoddy
investigation by Ms. Floyd into the statements at issue.” 42 For purposes of this summary
judgment motion, Defendants concede that Mr. Rowe is entitled to the assumption that the
alleged statement was made. 43 Assuming that the statement was made, Mr. Rowe has presented
deposition testimony from Smith’s employees creating a factual dispute with the validity of this
statement.
Viewing the evidence in the light most favorable to Mr. Rowe, as the non-moving party,
and drawing all reasonable inferences in Mr. Rowe’s favor, Mr. Rowe has presented sufficient
evidence to create a genuine issue of material fact of whether Defendants abused their qualified
38

Opposition at 19.

39

Id. at xli, ¶¶ 150–151.

40

Id. at 20.

41

Reply at 12.

42

Id.

43

Motion at 14, n. 3.

9

privilege. Specifically, as set forth above, Mr. Rowe’s evidence creates a reasonable inference
that Defendants, frustrated by Mr. Rowe both on a personal and financial level, acted out of
malice in their communications with others. Further, Mr. Rowe has presented evidence creating a
genuine issue of fact of whether Mr. Floyd acted in reckless disregard of the falsity of her alleged
statement that Smith’s no longer wanted Mr. Rowe’s services.
b. Whether there is a causal link between Defendants’ defamatory statements and Mr.
Rowe’s injury is in genuine dispute
Defendants assert that “Mr. Rowe cannot prove causation.” 44 Under Utah law, a claim for
defamation must establish causation, or resulting injury. Causation includes both actual and
proximate cause. To establish actual cause, Mr. Rowe must prove that “but for” the alleged
defamatory statements, Mr. Rowe’s injury would not have occurred. Proximate cause, on the
other hand, is “cause which, in natural and continuous sequence, (unbroken by an efficient
intervening cause), produces the injury and without which the result would not have occurred.” 45
Defendants argue that “[e]ven if DPI made the statements alleged by Mr. Rowe and even
if Mr. Rowe suffered the harm he claims, there is no evidence of a causal link between the
two.” 46 Defendants contend that “Mr. Rowe is responsible to show that, absent DPI’s allegedly
defamatory remarks, he would not have been fired.” 47 Defendants’ main contentions are that
“[b]eing pulled from the Smith’s account did not cause Mr. Rowe harm, as he kept his job for
nearly four months afterward[,]” 48 and “Mr. Kinsella testified unequivocally that the decision to
pull Mr. Rowe from the Smith’s account and the decision to terminate his employment were

44

Id. at 14.

45

Clark v. Farmers Ins. Exch., 893 P.2d 598, 601 (Utah Ct. App. 1995).

46

Motion at 14.

47

Id.at 15.

48

Reply at 7.

10

independent of each other.” 49 Mr. Rowe, in response, states that “[t]here is only one documented
reason for Mr. Rowe’s termination, which is that once he had been removed from working on the
Smith’s account, there was nothing left for him to do.” 50 And his removal, Mr. Rowe asserts,
was due to Defendants’ alleged defamatory statements. In reply, Defendants argue that “the
question here is whether there is any evidence at all demonstrating a causal link between DPI’s
alleged defamatory statements and Premier’s termination of Mr. Rowe.” 51 Defendants state that
the harm at issue is the loss of Mr. Rowe’s job with Premier, and there is no testimony from Mr.
Kinsella that DPI played any part in his decision to terminate Mr. Rowe’s employment. 52
Defendants further state that “even if Mr. Rowe’s story [that he was terminated because he was
removed from the Smith’s account] were true, it would show an intervening cause that had
nothing to do with DPI. 53 The fact that Mr. Rowe kept his job for four months after being
removed from the Smith’s account and was unable to provide any useful services to his employer
would be the actual cause of his claim damages.” 54
The record on this motion, taken in a light most favorable to Mr. Rowe, shows summary
judgment must be denied because the cause of Mr. Rowe’s removal from the Smith’s account
and the cause of the termination of his employment are in genuine dispute.
There is an issue of fact of whether the reason for Mr. Rowe’s removal was because
Smith’s no longer wanted to work with Mr. Rowe or because of Defendants’ alleged defamatory
statements. Defendants state it is the former reason, but Mr. Rowe cites to deposition testimony
of Smith’s management personnel stating they did not request Mr. Rowe’s removal from the
49

Id.

50

Opposition at 12.

51

Reply at 5.

52

Id. at 5–6.

53

Id. at 8.

54

Id.

11

Smith’s account. 55 Whether Mr. Rowe was terminated for behavioral issues or because of his
removal from the Smith’s account and other reasons related to the alleged defamatory statements
is also an issue of fact. The termination letter that Mr. Rowe received states that his
“employment with Premier Sales Solutions is terminated effective immediately due to behavior
issues that have interfered with . . . [his] ability to perform . . . [his] duties on multiple
occasions.” 56 On the other hand, Mr. Kinsella’s deposition testimony states a different reason for
Mr. Rowe’s termination:
Q. Okay. So the reason for him to be terminated was there just wasn’t work that
he could do at Premier?
A. Yes.
...
Q. Is that true?
A. There wasn’t anything for him to do. 57
Defendants rely heavily on Mr. Kinsella’s testimony—stating that the decision to remove
Mr. Rowe from the Smith account and the decision to terminate his employment were
independent of each other—but Mr. Kinsella’s testimony is disputed by other evidence in the
record. For example, Mr. Kinsella testified that the reason he removed Mr. Rowe from the
Smith’s account is because he had a conference call with Smith’s employees (Shellie Hanson,
Zane Day, and Smith’s HR department) and was lead to understand during the conference call
that Smith’s wanted Mr. Rowe removed from their account. 58 Mr. Kinsella’s testimony is
disputed by deposition testimony from Mr. Day and Ms. Hanson, who both state that they did not
discuss or request that Mr. Rowe be removed from the Smith’s account.

55

Opposition at xli, ¶¶ 150–151.

56

Docket no. 38-4.

57

Robert Kinsella Deposition 187:17–25, docket no. 38-4, filed November 5, 2014.

58

Robert Kinsella Deposition, 126:20–128:25, docket no. 52-5, filed December 17, 2014.

12

Defendants’ corollary argument that Mr. Rowe’s inability to provide any useful services
to his employer is an intervening cause to Mr. Rowe’s employment termination is also disputed.
“An intervening cause is an independent cause that intervenes between defendant's original
negligent act or omission and the final result and is necessary in bringing about that result.” 59 “A
superseding cause, sufficient to become the proximate cause of the final result and relieve
defendant of liability for his original negligence, arises only when an intervening force was
unforeseeable and may be described with the benefit of hindsight, as extraordinary.” 60 Not all
intervening forces are superseding causes. Premier’s termination of Mr. Rowe’s employment
because there was nothing else Mr. Rowe could do for Premier, though perhaps intervening, does
not necessarily break the chain of legal causation if the termination was reasonably foreseeable.
Ultimately, the viability of Mr. Rowe’s defamation claim depends on which view of the
above facts is accepted. Both sides have produced at least some evidence in support of their
factual scenarios. If Defendants’ view is accepted, then the termination of Mr. Rowe’s
employment was due to behavioral issues and reasons unrelated to any alleged defamatory
statements by Defendants. And if Mr. Rowe’s employment termination was due to behavioral
issues, then there is no causal link between any of the alleged defamatory statements and Mr.
Rowe’s termination. In contrast, Mr. Rowe’s view of the facts would indicate that Defendants’
defamatory statements caused Mr. Rowe to be removed from the Smith’s account. Mr. Rowe
contends that had he not been removed from the Smith’s account, he would not have been
terminated from Premier—thus creating a causal link between Defendants’ defamatory
statements and Mr. Rowe’s injury.

59

Robertson v. Sixpence Inns of Am., Inc., 789 P.2d 1040, 1047 (Arizona 1990).

60

Steffensen v. Smith's Mgmt. Corp., 820 P.2d 482, 488 (Utah Ct. App. 1991) (citing Robertson, 789 P.2d at 1047)
aff'd, 862 P.2d 1342 (Utah 1993).

13

B. Tortious Interference with Economic Relations
Defendants argue that summary judgment is also appropriate for Mr. Rowe’s tortious
interference claim because, similar to the defamation claim, (1) the allegedly wrongful actions
fall under the common interest privilege and (2) the causation element of the claim is missing. In
order to establish a tortious interference claim, “a plaintiff must prove (1) that the defendant
intentionally interfered with the plaintiff’s existing or potential economic relations, (2) . . . by
improper means, (3) causing injury to the plaintiff.” 61 “Improper means are present ‘where the
means used to interfere with a party’s economic relations are contrary to law, such as violations
of statutes, regulations, or recognized common-law rules.’” 62 “Improper means include
‘violence, threats or other intimidation, deceit or misrepresentation, bribery, unfounded
litigation, defamation, or disparaging falsehood. Means may also be improper or wrongful
because they violate an established standard of a trade or profession.”’ 63
a. A qualified privilege applies to Mr. Rowe’s claim for tortious interference
Mr. Rowe argues that Utah law does not “recognize[] that the common interest privilege
protects a defendant from a claim for tortious interference,” and “Mr. Rowe’s review of Utah
cases has uncovered no instance where a Utah court has applied the common interest privilege to
a tortious interference claim.” 64 In response, Defendants contend that “[w]hen a privilege
applies, it extends to ‘all claims arising from the same statements.’” 65 Defendants conclude that
because “Mr. Rowe has conceded that his tortious interference claim is based on the same

61

Eldridge v. Johndrow, 345 P.3d 553, 565 (Utah 2015) (abandoning improper-purpose liability).

62
St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 201 (Utah 1991) (quoting Leigh Furniture & Carpet
Co. v. Isom, 657 P.2d 293, 304 (Utah 1982) overruled on other grounds by Eldridge v. Johndrow, 2015 UT 21, 345
P.3d 553)).
63

Id.

64

Opposition at 20.

65

Reply at 12 (citing Debry v. Godbe, 992 P.2d 979, 986 (Utah 1999)).

14

alleged defamatory statements as his defamation claim . . . . [his] tortious interference claim fails
for the same reasons as his defamation claim.” 66
Mr. Rowe is incorrect. “Utah courts have recognized a conditional privilege, also known
as a qualified privilege, in . . . intentional interference with prospective economic relations
cases[.]” 67 The qualified privilege is an affirmative defense. 68 Not only is qualified privilege
available for a claim for tortious interference, Defendants are correct that under Utah law, “a
privilege extends not only to defamation claims but to ‘all claims arising from the same
statements.’” 69 The rationale is that a qualified privilege arises from the necessity for full and
unrestricted communication concerning the matter in which the parties have a common interest.
If the privilege did not apply to all claims arising from the same defamatory statements, then
plaintiffs could circumvent the privilege by recasting their claims as other torts.
Accordingly, because qualified privileged applies to the defamation claim, 70 it also
applies to Mr. Rowe’s tortious interference claim because it is based on the same operative
defamatory statements.
b. Whether there is a causal link between Defendants’ interfering statements and Mr.
Rowe’s injury is in genuine dispute
Just as Defendants argue Mr. Rowe cannot show causation on his defamation claim,
Defendants argue that Mr. Rowe cannot prove the causation element of his tortious interference
claim. It is undisputed that the same statements that form the basis of Mr. Rowe’s defamation
66

Reply at 13.

67

Agee v. Morton Thiokol, Inc., 977 F.2d 595 (10th Cir. 1992) (unpublished opinion) (referencing Leigh Furniture
& Carpet Co. 657 P.2d at 304). Although Leigh Furniture involved the tort of interference with prospective
economic relations instead of the tort of interference with economic relations, the distinction is immaterial.
68

Leigh Furniture & Carpet Co., 657 P.2d at 303.

69

Debry, 992 P.2d at 986 (quoting Price v. Armour, 949 P.2d 1251 (Utah 1997) (applying the judicial proceeding
privilege to an intentional interference with business relations claim)); see also Russell v. Thomson Newspapers, Inc,
842 P.2d 898 (Utah 1992) (applying the qualified privilege of [the statute] to claims of emotional distress and
invasion of privacy).
70

Supra at 6.

15

claim also form the basis of his tortious interference claim. Therefore, Defendants’ argument
fails for the same reasons Defendants’ causation argument on the defamation claim failed. Mr.
Rowe has submitted evidence and made allegations that Defendants directed improper means,
through defamatory statements, towards him. Viewing the record in the light most favorable to
Mr. Rowe, there is a genuine issue of material fact regarding whether the alleged improper
means were the cause of Mr. Rowe’s removal from the Smith’s account and the subsequent
termination of his employment.
CONCLUSION
For the reasons set forth above, Defendants’ Motion for Summary Judgment 71 is
DENIED.
Dated June 3, 2015.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

71

Docket no. 38.

16