Cutaia v. Radius Engineering International, Inc. et al
Filing
77
MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 2/16/2012. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
RORY J. CUTAIA,
Plaintiff,
v.
RADIUS ENGINEERING
INTERNATIONAL, INC., et al.,
Defendants.
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Civil Action No. 5:11cv00077
By:
Michael F. Urbanski
United States District Judge
MEMORANDUM OPINION
Before the court is plaintiff/counter-defendant Rory Cutaia’s (“Cutaia”) Motion to
Dismiss (Dkt. # 26) the defamation counterclaim filed by defendant/counter-claimant Radius
Engineering International, Inc. (“Radius”). The matter has been fully briefed, and the court
heard oral argument on December 19, 2011. The court finds that Cutaia’s statements are nonactionable expressions of opinion and are otherwise not defamatory as a matter of law.
Accordingly, the motion to dismiss must be granted.
I
This matter arises out of contracts between Cutaia, Radius, and Green Eye Technology,
LLC (“Green Eye”), to construct and install an underground shelter on Cutaia’s land in Augusta
County, Virginia. Radius manufactures, and Green Eye installs, underground weapons of mass
destruction (“WMD”) shelters designed to protect people from, during, and after large-scale
disasters, both natural and man-made. In 2008, Cutaia entered into a contract with Radius for the
construction of such a shelter. Under the agreement, Radius was to manufacture and assemble
an Ethos WMD Underground Community (“the Shelter”) capable of sustaining seventy-five to
two hundred and fifty people in the case of a large-scale disaster. The Shelter was to have the
following component parts: (1) one Earthcom Dome 60 with three connector ports; (2) one
Earthcom Dome 60 foundation pan; (3) one composite re-bar for foundation pan; (4) one CAT25 Luxury Mode (Living Pod); (5) one CAT-25 Generator Pod; and (6) three connector tunnels.
The purchase price for the Shelter was $1,648,560. Cutaia and Green Eye entered into a separate
contract for the installation of the Shelter, totaling approximately $786,513.75. Cutaia also
purchased several hundred acres of property in Augusta County, Virginia, on which to install the
Shelter.
During the course of the installation of the Shelter, numerous issues arose concerning the
installation, sustainability, and safety of the structure. In March 2011, Green Eye ceased
working on the Shelter without completing the installation. As a result of Green Eye’s failure to
complete the installation of the Shelter, Cutaia sought to engage the services of another
underground shelter engineering company, Utah Shelter Systems, Inc. (“Utah Systems”), to
repair and complete the Shelter. He also sought advice from Utah Systems as to whether he had
grounds for any legal recourse against Radius and Green Eye. On July 29, 2011, Cutaia filed suit
against Radius and Green Eye under various theories of liability related to the installation of the
Shelter, including breach of contract, breach of express warranties, breach of the implied
warranty of merchantability, breach of the implied warranty of fitness for a particular purpose,
negligence, vicarious liability, negligence through a joint business enterprise, fraud in the
inducement, and violations of the Virginia Consumer Protection Act.
Radius has filed a counterclaim against Cutaia alleging that Cutaia made a series of
defamatory statements about Radius during his meetings with Paul Seyfried (“Seyfried”),
President of Utah Systems, that have caused Radius injury in an amount of not less than
$5,000,000. Specifically, the counterclaim alleges that Cutaia made the following defamatory
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statements to Seyfried: (1) “he had spent ‘a lot of money’ on Radius’ system and that ‘nothing
works;’” (2) “the electrical system [of the Shelter] does not work;” (3) “the air handler [of the
Shelter] does not work;” (4) “the generator [of the Shelter] does not work;” and (5) Radius was
incompetent and did not properly perform its work under the contract. Counterclaim, Dkt. # 12,
at ¶ 18-20. Radius asserts that the Shelter’s electrical system, air handler, and generator were all
in working order when it delivered these components to Cutaia and that it performed all of its
obligations required under the contract. Cutaia denies making any defamatory statements about
Radius during his meetings with Seyfried and claims that the purpose and intent of the meetings
was to show Seyfried the current state of the installation and get information regarding the work
needed to correct and complete his investment in the Shelter. Accordingly, Cutaia has filed the
instant motion to dismiss Radius’ counterclaim for defamation.
Cutaia argues that Radius’ counterclaim should be dismissed because the alleged
defamatory statements regarding the amount of money spent on the Shelter and the failure of the
electrical system, the air handler, and the generator to work are all statements of opinion and,
therefore, not defamatory. Cutaia also asserts that the alleged defamatory statement regarding
Radius’ incompetence and failure to properly perform its contractual obligations lacks specificity
because the exact words spoken by Cutaia are not alleged; moreover, this statement is also an
expression of opinion that is not actionable under a cause of action for defamation. In its
memorandum in opposition, Radius argues that all five of Cutaia’s alleged defamatory
statements are not opinions, but rather statements of fact that, when considered in context, are
false and defamatory. Regarding Cutaia’s statement that Radius was incompetent, Radius asserts
that it adequately plead its defamation claim without the use of quotation marks and that the
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general statement of incompetence, when combined with Cutaia’s other specific statements of
fact, is defamatory.
II
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain a
“short and plain statement of the claim showing that the pleader is entitled to relief.” In
evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court
“accept[s] as true all well-pleaded allegations and view[s] the complaint in the light most
favorable to the plaintiff.” Phillips v. Pitt County Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.
2009). While the court must accept the claimant’s factual allegations as true, this tenet is
“inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 129
S. Ct. 1937, 1949 (2009). Rather, plaintiffs must plead enough facts to “nudge[] their claims
across the line from conceivable to plausible,” and if the claim is not “plausible on its face” it
must be dismissed. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Asking for
plausible grounds to infer” a claim’s existence “does not impose a probability requirement at the
pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery
will reveal evidence” supporting the plaintiff’s claim. Id. at 556. While Iqbal and Twombly
may have heralded a change in pleading dynamics, “the law has not transmuted the 12(b)(6)
procedural device into summary judgment. So long as a complaint establishes a plausible legal
and factual basis for each of the claims contained therein, the claims will stand.” Parker v. D.R.
Kincaid Chair Co., Inc., No. 5:10cv97-V, 2011 WL 3347905, at *1 (W.D.N.C. Aug. 2, 2011).
Determining whether a complaint states a plausible claim for relief is “a context-specific task
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that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal,
129 S. Ct. at 1950.
“A defamation complaint, like any other civil complaint in federal court, must provide ‘a
short and plain statement of the claim showing that the pleader is entitled to relief.’” Hatfill v.
N.Y. Times Co., 416 F.3d 320, 329 (4th Cir. 2005), reh’g en banc denied, 427 F.3d 253 (4th Cir.
2005), cert. denied, 547 U.S. 1040 (2006) (quoting Fed. R. Civ. P. 8(a)(2)). While Federal Rule
of Civil Procedure 9(b) requires more specific pleading in certain cases, this rule does not apply
to defamation claims. Id. See Fed. R. Civ. P. 9(b). “Thus, the usual standards of notice
pleading apply in defamation cases . . . .” Hatfill, 416 F.3d at 329.
III
Under Virginia law, a claim for defamation contains three elements: “(1) publication of
(2) an actionable statement with (3) the requisite intent.” Jordan v. Kollman, 269 Va. 569, 575,
612 S.E.2d 203, 206 (2005); see Hyland v. Raytheon Technical Services Co., 277 Va. 40, 46,
670 S.E.2d 746, 750 (2009); see Fleming v. Moore, 221 Va. 884, 889, 275 S.E.2d 632, 635
(1981). An actionable statement is one that is “both false and defamatory.” Jordan, 269 Va. at
575, 612 S.E.2d at 206. A defamatory statement is one that tends to “harm the reputation of
another [so] as to lower him in the estimation of the community or to deter third persons from
associating or dealing with him.” Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir.
1993) (internal quotations omitted). Defamatory words “make the plaintiff appear odious,
infamous, or ridiculous.” Id. On the other hand, “[m]erely offensive or unpleasant statements are
not defamatory.” Id. This means that “[t]o be actionable as defamation, a statement must
contain a defamatory ‘sting.’” Baylor v. Comprehensive Pain Mgmt. Centers, Inc., No.
7:09cv00472, 2011 WL 1327396, at * 7 (W.D. Va. Apr. 6, 2011). Because an actionable
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statement must be false, true statements do not give rise to an action for defamation. Thus, in
order to be actionable for defamation, “[t]he falsity of a statement and the defamatory ‘sting’ of
the publication must coincide . . . .” Chapin, 993 F.2d at 1092. Likewise, “statements of opinion
are generally not actionable because such statements cannot be objectively characterized as true
or false . . . .” Jordan, 269 Va. at 576, 612 S.E.2d at 206. An expression of opinion is a
statement that is “relative in nature and depend[s] largely upon the speaker’s viewpoint . . . .”
Gov’t Micro Res., Inc. v. Jackson, 271 Va. 29, 40, 624 S.E.2d 63, 69 (2006) (internal quotations
omitted). However, “[f]actual statements made in support of an opinion . . . can form the basis
for a defamation action.” Hyland, 277 Va. 47, 670 S.E.2d at 751. “Whether a statement is an
actionable statement of fact or non-actionable opinion is a matter of law to be determined by the
court.” Jordan, 269 Va. at 576, 612 S.E.2d at 206-07. Thus, “[i]n determining whether a
statement is one of fact or opinion, a court may not isolate one portion of the statement at issue
from another portion of the statement. . . . Rather, a court must consider the statement as a
whole.” Hyland, 277 Va. at 47, 670 S.E.2d at 751 (internal citations omitted).
IV
Evaluation of a defamation claim requires the court to consider the plain language of the
words spoken and the context and general tenor of the message. In order to determine whether
an alleged statement is defamatory, the court must “assess how an objective, reasonable reader
would understand a challenged statement by focusing on the plain language of the statement and
the context and general tenor of its message.” Snyder v. Phelps, 580 F.3d 206, 219 (4th Cir.
2009). Several Virginia Supreme Court cases, particularly those within the employment and
commercial contexts involving statements regarding matters of private concern, provide some
guidance on whether Cutaia’s alleged statements can support a defamation claim.
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In Fuste v. Riverside Healthcare Association, Inc., 265 Va. 127, 575 S.E.2d 858 (2003),
two pediatricians sued their former employer for allegedly defamatory statements made after the
pediatricians left their employment to start their own medical practice. Id. at 130, 575 S.E.2d at
860. The pediatricians alleged that their former co-workers told patients and other hospital
officials that the pediatricians were “‘unprofessional’ and ‘uncooperative,’ that they had ‘left
suddenly’ and ‘abandoned their patients,’ and that there were ‘concerns about their
competence,’” among other statements. Id. at 130-31, 575 S.E.2d at 860. The Virginia Supreme
Court held that the statements regarding the doctors abandoning their patients and as to whether
there were concerns about competence contained “provably false factual connotation[s],”
meaning that they “are capable of being proven true or false” because “evidence could be
presented to show whether there were, in fact, concerns about the . . . [pediatricians’]
competence.” Id. at 133, 575 S.E.2d at 861-62 (internal quotations omitted). Likewise, “since
the term ‘abandon’ has a particular connotation in the context of a doctor’s professional
responsibility to a patient,” the statement regarding abandonment “is demonstrably true or false.”
Id. The court then held that all of the remaining statements, including the statements regarding
being unprofessional, uncooperative, and leaving suddenly, were either “dependent on the
speaker’s viewpoint and . . ., therefore, expressions of opinion,” did not prejudice the
pediatricians in their new medical practice, or “taken in their plain and natural meaning,
[were] . . . not defamatory.” Id. (internal quotations omitted).
Hyland v. Raytheon Technical Services Company, 277 Va. 40, 670 S.E.2d 746 (2009),
concerned a claim for defamation brought against a plaintiff’s former employer for certain
statements made by her supervisor concerning the plaintiff’s job performance. Id. at 42, 670
S.E.2d at 748. During a performance evaluation, the supervisor made statements about how the
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plaintiff’s performance created “significant gaps in our strategic plans” and about how the
plaintiff was “significantly off plan on . . . financial targets. . . .” Id. at 44, 670 S.E.2d at 749.
The Virginia Supreme Court found that both of these statements were actionable for defamation
because they were “subject to empirical proof” regarding the plaintiff’s responsibility for
financial losses and underperformance in relation to stated financial percentage targets. Id. The
court also noted that the word “significantly” in the supervisor’s statements did not take away
from the verifiability of the relevant statements in order to make them opinions. Id.
In Chaves v. Johnson, 230 Va. 112, 335 S.E.2d 97 (1985), an architect brought a claim
against one of his competitors for alleged defamatory statements included in the competitor’s
competing bid for an architectural project funded by the city. Id. at 114, 335 S.E.2d at 98-99. In
a letter addressed to the city council, the competitor stated that he thought the city should hire
him over the other architect because the other architect “has had no prior experience in this type
of project” and is charging “over 50% more than what could be considered a reasonable fee.” Id.
at 115, 335 S.E.2d at 99. The Virginia Supreme Court held that these statements “were, as a
matter of law, mere statements of opinion, and thus were not actionable as defamatory words”
because “a charge of inexperience is in its nature a relative statement, depending for its import
largely upon the speaker’s viewpoint.” Id. at 118-19, 335 S.E.2d at 101. Likewise, “a charge
that professional fees are excessive is largely dependent upon the speaker’s viewpoint,” and,
“[i]n the world of commercial competition, statements by competitors that they can undersell
others fall on prospective customers’ ears like repetitive drumbeats.” Id. at 119, 335 S.E.2d at
101.
In Tronfeld v. Nationwide Mutual Insurance Company, 272 Va. 709, 636 S.E.2d 447
(2006), Jay Tronfeld (“Tronfeld”), a personal injury attorney, filed a claim for defamation
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against an insurance company. Id. at 711-12, 636 S.E.2d at 448-49. An insurance adjuster met
with an injured man after an accident to discuss settlement of the man’s personal injury claim.
Id. During the meeting, the injured man and the insurance adjuster discussed the selection of an
attorney to represent the man in his claim against the insurance company. Id. at 712, 636 S.E.2d
at 449. When the man mentioned selecting Tronfeld as his attorney, the insurance adjuster
responded by stating that Tronfeld “just takes peoples’ money” and that clients of Tronfeld
“would receive more money [for their claims] if they had not hired [him] and had dealt with the
adjuster [directly].” Id. Tronfeld alleged that these statements were defamation per se, but the
trial court sustained the insurance company’s demurrer and held that the statements were nonactionable expressions of opinion. Id. On appeal, the Virginia Supreme Court distinguished its
decisions in Fuste and Chaves and held that the insurance adjuster’s “statements ‘are capable of
being proven true or false’ and thus are actionable in defamation.” Id. at 715, 636 S.E.2d at 451
(quoting Chaves, 230 Va. at 118, 335 S.E.2d at 101). The court found that the insurance
adjuster’s statement regarding Tronfeld taking peoples’ money “is capable of disproof by
evidence, if adduced, that Tronfeld’s clients received monetary or other relief as a result of his
legal services.” Tronfeld, 272 Va. at 715, 636 S.E.2d at 451. Likewise, the insurance adjuster’s
statement that Tronfeld’s clients would receive more money for their claims by dealing directly
with the insurance adjuster “would not be opinion if the evidence showed a settlement or
judgment Tronfeld obtained for a client which exceeded the offer made by an insurance company
to the client prior to the retention of Tronfeld as his or her legal counsel.” Id. at 716, 636 S.E.2d
at 451.
Certain cases from the Virginia Circuit Court regarding alleged defamation within the
employment and commercial contexts are also instructive. In Jarrett v. Goldman, 67 Va. Cir.
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361, 2005 WL 1323115 (City of Portsmouth Cir. Ct. May 31, 2005), a plaintiff sued his former
employer for defamation for statements made by his supervisors in connection with the
plaintiff’s termination. Id. at *1. The plaintiff alleged that his supervisors told third-persons that
the plaintiff was terminated because “‘he sent the wrong information,’” that the plaintiff “‘was
incompetent and did not know what he was doing,’” and that the plaintiff was fired “‘for not
making his budget.’” Id. The court held that the statement about the plaintiff being incompetent
and not knowing what he was doing was “not speech which contains a provably false factual
connotation, and therefore, cannot be interpreted as stating actual facts about . . . [the plaintiff]
that can form the basis of a common law defamation action.” Id. at *10. However, the court
found that the statement regarding the plaintiff not making his budget “can be objectively tested
and proven to be true or false” and “is therefore capable of being defamatory . . . .” Id. at *1011.
In Xtreme 4X4 Center, Inc. v. Howery, 65 Va. Cir. 469, 2004 WL 2709602 (City of
Roanoke Cir. Ct. Sept. 13, 2004), Xtreme 4X4 Center, Inc. (“Xtreme”), filed a claim for
defamation against several defendants for various comments posted on an internet message board
sponsored by one of Xtreme’s competitors in the four-wheeler industry. Id. at *1. The message
board comments talked about the owner of Xtreme overcharging for his products, the business
practicing poor customer relations and being unfriendly to customers, and a comparison of goods
and prices with Xtreme’s competitors. Id. at *1-2. Xtreme claimed that these statements were
defamatory and injured Xtreme’s reputation and business, but the court dismissed Xtreme’s
claim on summary judgment and held that all of the statements were either statements of opinion
or were non-defamatory because they did not injure Xtreme’s reputation or business. Id. at *3.
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Finally, in John C. Holland Enterprises, Inc. v. Hadfield and the Southeastern Public
Service Authority of Virginia, 74 Va. Cir. 288, 2007 WL 5969401 (Chesapeake County Cir. Ct.
Nov. 29, 2007), the plaintiff, the owner of a landfill and founding investor of a wetlands
restoration organization, sued the defendant, the executive director of a company providing for
the disposal of waste in an environmentally sensitive manner, for alleged defamatory statements
made during a board meeting. Id. at *1. During an awards portion of the meeting, the defendant
stated, “Our customers . . . come to us because of our environmental record; they don’t go to our
nearby competitors. You won’t find our . . . customers going to . . . the John Holland’s of the
world; they come to SPSA.” Id. The plaintiff claimed that the defendant “knew these words
would be transcribed in the minutes [of the board meeting] and made public on the [i]nternet,”
thereby injuring the plaintiff’s wetlands restoration business, which depends on the plaintiff’s
environmental reputation in order to obtain financing. Id. at *1-2. The court, however, sustained
the defendant’s demurrer and held that the alleged defamatory statements “are expressions of
opinion because they cannot reasonably be interpreted as stating actual facts about a
person . . . .” Id. at *3.
V
Considering Cutaia’s five statements to Seyfried in light of the cases described above, the
court finds that the statements are not defamatory as a matter of law. As a whole, the statements
represent nothing more than the opinion of a disgruntled customer seeking to salvage his
substantial investment in the Shelter. Plainly, Cutaia’s statement about spending a lot of money,
concern over Radius’ competence, and assertion that Radius did not properly perform its
contractual duties are wholly dependent on Cutaia’s viewpoint and not subject to objective
verification. To be sure, they are, from Radius’ perspective, both offensive and unpleasant.
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However, as expressions of Cutaia’s opinion, they are not defamatory. As such they are similar
to other non-actionable expressions of opinion found in the cases, including statements about
physicians being unprofessional and uncooperative in Fuste,1 statements regarding the
inexperience and pricing of a competitor in Chaves, statements about an employee being
incompetent and not knowing what he was doing in Jarrett, statements by customers on internet
message boards in Howery, and statements about a business competitor while receiving an award
in Holland Enterprises.
Even Cutaia’s statements that are arguably subject to verification, specifically his
statements regarding the failure of the Shelter and its electrical system, air handler, and generator
to work, are not defamatory as a matter of law. Viewed in the light most favorable to Radius, it
does not appear from the face of the pleadings that these statements can be considered to be
false. Indeed, in paragraphs 12-15 of the counterclaim, Radius alleges that Green Eye failed to
properly install the Shelter and did not complete the installation. The specific allegations are as
follows:
12.
After the delivery of the Shelter at Cutaia’s property in
Virginia, Green Eye began installing the Shelter.
13.
Green Eye failed to follow instructions provided by Radius
with respect to the installation, including failing to use the proper
gravel as backfill for two pods that were part of the Shelter and
failing to make the excavated hole wide enough to compact the
backfill to properly support the structure.
1
In Fuste, the Virginia Supreme Court held that a statement regarding whether there were concerns about the
plaintiffs’ competence was actionable for defamation because such a statement is “capable of being proven true or
false. For example, evidence could be presented to show whether there were, in fact, concerns about the plaintiffs’
competence.” 265 Va. at 133, 575 S.E.2d at 862. However, a statement about the existence of concerns of
competence is different from a general statement about competence itself, which is a non-actionable expression of
opinion. The court in Jarrett held that a general statement about the plaintiff being incompetent and not knowing
what he was doing was “not speech which contains a provably false factual connotation, and therefore, cannot be
interpreted as stating actual facts about [the plaintiff] that can form the basis of a common law defamation action.”
67 Va. 361, 2005 WL 1232115 at *10. In this case, Cutaia made a general statement to Seyfried about Radius’
incompetence, which, as his opinion, is not legally cognizable as slander.
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14.
As a result of Cutaia’s failure to make the required
payments in a timely manner, Green Eye ceased work on the
installation.
15.
The installation of the Shelter was never completed.
Counterclaim, Dkt. # 12, at ¶¶ 12-15.
It is plain from these allegations that even Radius agrees that the Shelter was not working
when Cutaia talked to Seyfried in March 2011. Radius asserts that the problems with the Shelter
are due to the failings of Green Eye, the installer, rather than with the component parts supplied
by Radius. Regardless at whose hands the problem lies, it is clear from Radius’ own allegations
that the Shelter was not working in March 2011. As such, Cutaia’s alleged statements to
Seyfried to that effect cannot be considered to be false. In that regard, it is critical to note what is
not alleged in the defamation counterclaim. Radius does not allege that Cutaia told Seyfried that
the Radius component parts, when delivered, did not work. Rather, the substance of the
allegations in paragraphs 18 and 19 of the counterclaim is that Cutaia told Seyfried in March
2011, after Green Eye quit installing the Shelter, that “nothing works.” Given the timing of these
statements and Radius’ own allegations that “Green Eye failed to follow instructions provided by
Radius with respect to the installation” and “[t]he installation of the Shelter was never
completed,” it cannot be plausibly maintained that statements to the effect that the Shelter and its
components do not work are false. As such, they cannot be defamatory as a matter of law.
Further, given their context, these statements are more appropriately categorized as nonactionable statements of opinion rather than assertions of verifiable fact. In assessing Cutaia’s
statements that various component parts of the Shelter did not work, the court must focus on
“how an objective, reasonable reader would understand a challenged statement by focusing on
the plain language of the statement and the context and general tenor of its message.” Snyder,
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580 F.3d at 219. Considering Cutaia’s statements regarding the malfunctioning of the Shelter
and its various component parts, it is clear that an objective, reasonable person would interpret
the general tenor of those statements to represent the non-actionable frustrations of a dissatisfied
customer expressing his opinion on the quality of the product he purchased.
The context of Cutaia’s statements to Seyfried is most like that of the statements of
opinion in Chaves regarding competition for an architectural project, the non-defamatory
statements by customers on an internet message board in Howery, and the statements regarding a
competitor in the waste management industry in Holland Enterprises. The courts in those cases
recognized that statements made by business competitors regarding their products and services,
as well as statements made by customers regarding their satisfaction with a certain product or
service, are a natural part of commercial interactions. Thus, even if these types of statements can
be verified as true or false, a reasonable interpretation of the statements within the commercial
context in which they are offered indicates that they are merely expressions of opinion of an
upset consumer lacking the necessary defamatory sting to make them actionable under Virginia
law. As long ago as 1935, the Virginia Supreme Court held that a statement made about a
contractor “doing such slow work,” even if regarded as a statement of fact and untrue, was not
defamatory. James v. Haymes, 163 Va. 873, 885, 178 S.E. 18, 23 (1935). The same can be said
about similar statements alleged to have been made by Cutaia to Seyfried to the effect that the
Shelter and its various component parts did not work. Such statements, made by a consumer to a
shelter supplier in an effort to remedy the problems with the Shelter, simply do not render Radius
“odious, infamous, or ridiculous.” Chapin, 993 F.2d at 1092. As such, the court finds that
Cutaia’s statements are non-actionable expressions of opinion for which Radius has failed to
state a claim for relief as a matter of law.
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Accordingly, it is ORDERED that Cutaia’s Motion to Dismiss (Dkt. # 26) is
GRANTED, and Radius’ counterclaim is DISMISSED. The Clerk is directed to send a copy of
this Memorandum Opinion and accompanying Order to all counsel of record.
Entered: February 16, 2012
/s/ Michael F. Urbanski
Michael F. Urbanski
United States District Judge
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