ROSEMARY M. COLLYER, District Judge.
Charles Moseley Marshall, Jr., operates a direct-marketing business. He is a man of imagination and energy. He complains here that he spent months developing four new communications programs for The Salvation Army but was never paid for his work. Instead, he claims that The Salvation
Mr. Marshall does business as PsyDa Solutions, a small marketing firm based in Greensboro, North Carolina. A sole proprietor, he has been in business for over eleven years.
The Salvation Army (occasionally, TSA) is a worldwide religious and charitable organization. It utilizes a quasi-military command structure, and its officers are all trained ministers. In the United States, TSA is divided into four geographic Territories, each headed by a Commissioner who has both administrative and pastoral duties. The Southern Territory is headquartered in Atlanta, Georgia and encompasses nine Divisions, including the National Capital and Virginia (NCV) Division, headquartered in Washington, D.C. This Division serves the District of Columbia, the Commonwealth of Virginia, and two counties in Maryland — Montgomery and Prince George's Counties. The nine Divisions are each comprised of approximately 350 local commands, also called "Corps"; each of them is fiercely independent. Defendant Major Allison was the General Secretary for the National Capital and Virginia Division at the relevant time.
Mr. Marshall described the challenging business opportunity for PsyDa Solutions at The Salvation Army in what Defendants call the Marshall Narrative. See Reply [Dkt. 20], Ex. I (Marshall Narrative). The Marshall Narrative, prepared by Mr. Marshall prior to litigation, portrays his view of events. Mot. for Summ. J. [Dkt. 18] (Mot.) at 5 n. 2. Mr. Marshall does not challenge it here.
Mr. Marshall targeted The Salvation Army because of its complete lack of direct marketing and decided "to embark on the venture knowing full well it would be years to fruition." Marshall Narrative at 2. One problem was "the distributive decision making structure," whereby the 350 Corps make their own marketing decisions. Id. Another problem was "the fractured command structure of TSA Southern Territory," whereby Mr. Marshall had to first receive the support of officials from the Southern Territory Headquarters and the Divisions before he could present his marketing programs to the local commands. Id. In fact, Mr. Marshall recognized that the 350 local commands within the Southern Territory are "autonomous" and that they make "their own budgeting and marketing decisions." Id. at 3. Mr. Marshall noted in his Narrative that "[t]his inverse structure is so imbedded that the Territory [Headquarters] is loath to interfere (or even guide) local command decisions." Id.
The origin of the present dispute is a bit murky. As Mr. Marshall remembers it, in 2007 Dean Feener approached him about developing a series of donor management and marketing programs for TSA. Mr. Feener was employed at Southern Territory Headquarters, and Mr. Marshall knew before meeting Mr. Feener that Mr. Feener is the son of the then-Commissioner for the Southern Territory. Reply, Ex. F (Marshall Dep.) at 51. Mr. Marshall says that Mr. Feener "gave the impression that
The Salvation Army responds that Mr. Marshall did work for it in the donor research area from 2004 to 2008 pursuant to written contracts, that Mr. Marshall issued invoices for his work, and that TSA paid Mr. Marshall in full. See Marshall Dep. at 33; Def. Statement of Facts [Dkt. 18] ¶ 11. With regard to Mr. Feener, TSA states that in 2007 TSA hired Mr. Feener to work only on the development of a new donor database called Inter-change.
What is clear is that in the fall of 2008, Mr. Marshall was working hard to interest The Salvation Army in his products and was promoting a project called PURL, a Personalized URL.
Mr. Marshall met with Mr. Sears again in the spring of 2009, at which point Mr. Marshall indicated that he wanted to contact some of the Corps within the Nation's Capital and Virginia Division to sell them on his concept. Mr. Sears advised that the Corps make their own marketing decisions
In contrast, Mr. Feener and Mr. McGown became "champions" of Mr. Marshall's PURL program. Marshall Dep. at 20-21. By June 2009, after Mr. Marshall had been meeting with people within The Salvation Army for some months, Mr. Feener recognized that "some persons ... thought that the PURL idea was a good idea, [but] actually implementing it would have required a series of tests and, assuming successful testing, it would have [had] to be marketed to each of the 350 Corps in the Territory [because] [t]he Southern Territory does not mandate such selections centrally." Feener Decl. ¶ 9. Mr. Feener himself was "favorably inclined," and "Chris McGown was trying to assist Mr. Marshall in having his product presented to as many development staff as possible." Id. ¶ 10-11. Mr. McGown was also favorably disposed toward the Family Store Card Program, another of Mr. Marshall's products. Id. ¶ 9.
In fact, Mr. McGown "assisted Mr. Marshall by facilitating a number of meetings through on-line presentations, personal introductions, and, eventually, `Webinars' that [Mr. McGown] helped arrange," starting in November 2008. McGown Decl. ¶ 6. Having been told by Mr. Marshall that the PURL program needed a minimum of 250,000 donors to make it viable, a donor pool larger than in his Division, Mr. McGown introduced Mr. Marshall to other development personnel in other divisions in the Southern Territory. Id. ¶ 7. Additionally, "[t]o help support the PURL program," Mr. McGown drafted a letter to his Division Commander asking for development funds for PURL, but the Divisional Finance Board declined to send the letter to Southern Territory Headquarters and no funding was obtained. Id. ¶ 14. During the spring of 2009, Mr. McGown spoke on the telephone with Major Allison, answering Major Allison's questions about pricing the structure of the PURL program. Id. ¶ 16. Mr. McGown informed Major Allison what Mr. McGown "believed the program could accomplish for The Salvation Army." Id.
Mr. Marshall allegedly developed four custom programs for The Salvation Army that were ready to be implemented by July 2009: PURL; the Family Store Card Program; a Modeling/Analysis program; and a Constituent Loyalty Initiative. See Marshall Dep. at 18-19; Notice of Removal [Dkt. 1], Ex. A (Compl.) ¶ 8-9. Mr. Marshall claims that he had an enforceable oral agreement covering the PURL program with Mr. Feener and covering the other three programs with both Mr. Feener
Mr. Marshall's business development efforts hit a snag in October 2009. Just as Mr. Sears was reviewing the Family Store Card Program, at the request of the Charlottesville Corps, and finding it too expensive,
McGown Decl. ¶ 19. In full, Mr. Marshall's email to Major Allison, dated October 7, 2009, read:
Major:
Oct.2009 Email Exchange at SA00135. Mr. Marshall admits that he "should have postured" the offending statement within the email differently, as "`[w]e hope to' rather than `we'll' as if that it was a foregone conclusion." Marshall Narrative at 16.
Mr. Feener allegedly told Mr. Marshall that Major Allison "took great offence" at the email and it "incit[ed] a response from Maj. Allison of `like hell you will' or `over my dead body.'" Marshall Narrative at 16. More formally, Major Allison sent an email to Major Mark Brown, Development Secretary for the Southern Territory, explaining that he had permitted Mr. Marshall to visit the Corps in Charlottesville, Virginia, but had since realized that the Family Store Card program "would have to pick up a huge, almost impossible, amount of new quality donors to break even." Oct.2009 Email Exchange at SA00133. He added, "Before I go any further on the matter, I want to know whether this program is endorsed by [Territory Headquarters]? If the answer is not, "yes," I do not need to expound further and will inform Mr. Marshall accordingly." Id.
In late October 2009, Major Allison and Messrs. Feener and Sears met in Major Allison's office in Washington D.C. to discuss Mr. Marshall's PURL and Family Store Card Programs. No one else was present. Mr. Feener and Mr. Marshall discussed the meeting soon thereafter. Mr. Marshall states that Mr. Feener told him that Major Allison had made the alleged
Compl. ¶ 14. The Complaint also alleges that Major Allison's alleged defamatory comments interfered with Mr. Marshall's business relationship with TSA and the business relationship ended.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted "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." Fed.R.Civ.P. 56(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).
Federal courts sitting in diversity must apply the conflicts of law rules of the state in which they sit. Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 491, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Thus, to determine what law to apply, this Court must apply the District of Columbia's choice of law rules. YWCA v. Allstate Ins. Co., 275 F.3d 1145, 1150 (D.C.Cir.2002). To determine which jurisdiction's law applies in a tort case, the District of Columbia courts blend a "governmental interests analysis" with a "most
Citing only D.C. law in their briefs, the parties seem to agree that District of Columbia law applies. Notably, the alleged tortious conduct occurred here. If one of the parties had sought to apply foreign law, that party would have had the burden of establishing the content of the law of the foreign jurisdiction. In the absence of such proof, a court presumes that the foreign law is the same as the local law and thus that there is no conflict. In re Parmalat, 383 F.Supp.2d 587, 595 (S.D.N.Y.2005); Riffe v. Magushi, 859 F.Supp. 220, 223 (S.D.W.Va.1994). Accordingly, District of Columbia law applies.
To survive summary judgment, Mr. Marshall must demonstrate that there are genuine disputes of material fact that must be decided by a jury. See Greene, 164 F.3d at 675. In this case, that requires Mr. Marshall to produce competent evidence that Major Allison defamed him and/or that Major Allison interfered improperly with Mr. Marshall's valid business expectations with the Salvation Army. Mr. Marshall's efforts to demonstrate defamation ultimately fail: his allegations regarding what Mr. Feener told him was said at the October meeting among Major Allison and Messrs. Sears and Feener is inadmissible hearsay and none of the participants supports the defamatory twist Mr. Marshall wants to extract from their conversation. In addition, Mr. Marshall fails to show that the conversation was not privileged. Further, Mr. Marshall submits no evidence of a contract, a necessary element of a claim for tortious interference with contract, and submits no evidence of a commercially reasonable business expectancy, a prerequisite to a claim for tortious interference with prospective business advantage.
To recover on a claim for defamation, a plaintiff must prove four separate elements:
Mr. Marshall alleges that Major Allison made the following allegedly defamatory statements at the October 2009 meeting: (1) Mr. Marshall misrepresented support by Territorial Headquarters; (2) Mr. Marshall paid kickbacks to Mr. Feener; and (3) Mr. Marshall made unauthorized visits to local commands. Compl. ¶ 14. Mr. Marshal] also alleges that Mr. Marshall referred to him as "incompetent," based on Mr. Marshall's interpretation of emails authored by Major Allison. Marshall Dep. at 38.
In their motion for summary judgment, Defendants assert that the alleged statements either were not made or, if they were, that they were not "defamatory." To avoid Defendants' motion for summary judgment on the defamation claim, Mr. Marshall must present admissible evidence demonstrating a genuine dispute of material fact with regard to at least one of the alleged defamatory statements. He has not done so.
Mr. Marshall was not present at the October 2009 meeting whim Major Allison met with Mr. Sears and Mr. Feener to discuss the PURL and Family Store Card Programs. While Mr. Marshall testified at his deposition that Mr. Feener told him after the meeting that Major Allison had made defamatory statements, see Marshall Dep. at 39-40, Mr. Marshall's testimony as to what Mr. Feener said is inadmissible hearsay, insufficient to overcome summary judgment. See Fed.R.Evid. 801 (defining hearsay); Wilkerson v. Wmckenhut Protective Servs., Inc., 813 F.Supp.2d 61, 67 (D.D.C.2011) (personal belief, speculation, and hearsay are insufficient to defeat a motion for summary judgment). Mr. Marshall does not respond to the hearsay argument and thus the issue is deemed conceded. See FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir. 1997) (when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded).
Further, with regard to the statement that Mr. Marshall "misrepresented support by Territorial Headquarters," Mr. Marshall admitted that this was true. Mr. Marshall sent an email to Major Allison on October 7, 2009, stating that he had presented the Family Store Card program to Captain Matthews in Charlottesville and that "[f]ollowing a 12 month proof-of-concept, we'll roll out Territory-wide Oct.2009 Email Exchange at SA00135 (emphasis added). Mr. Marshall knew that each Corps was responsible for making its own budgeting and marketing decisions, see Marshall Narrative at 2-3, and he later noted that he "should have postured" the "offending" statement differently, as "`[w]e hope to' rather than `we'll' as if that it was a foregone conclusion." Id. at 16. For a statement to be the basis of a defamation claim, it must be false and defamatory. Mr. Marshall has acknowledged that he in fact did misrepresent his support from the Territory. Because the statement is true, it cannot give rise to a defamation claim. See Blodgett, 930 A.2d at 222.
In addition, Mr. Marshall offers no evidence to overcome the sworn testimony of all meeting participants that there was no intimation that he was actually paying or offering kickbacks. Mr. Feener
Feener Decl. ¶¶ 12-14. Mr. Feener's deposition testimony was consistent:
Feener Dep. at 85-86. Mr. Sears described the October 2009 meeting similarly:
Sears Decl. ¶¶ 12-14. Major Allison's recollection of the October 2009 meeting was the same:
Allison Decl. ¶¶ 12-13. As shown here, Mr. Marshall presents no evidence that Major Allison accused him of paying kickbacks. Moreover, the context of the conversation cannot be stepped from the words: a senior executive (Major Allison) cautioned a younger employee (Mr. Feener) to avoid even the appearance of impropriety. There is no defamation in such circumstances.
Instead of presenting evidence that Major Allison made one of the alleged defamatory statements, Mr. Marshall attempts to paint Major Allison E.S untruthful by pointing to Mr. Feener's testimony that Major Allison had had an in-person meeting with Mr. Marshall, see Feener Dep. at 66-67, when the two never had such a meeting. Mr. Marshall argues that "these false statements by [Major] Allison ... were designed to defame [Mr.] Marshall by creating the impression that [Mr.] Marshall was misstating his support from Territorial Headquarters/Feener." Opp. at 6. The non sequitur in the argument renders it incomprehensible: Mr. Marshall does not explain how an erroneous statement about a Marshall/Allison meeting could possible convey any impression about the level of support to Mr. Marshall from Territory Headquarters or Mr. Feener. Nothing defamatory can be inferred from a statement that Major Allison did or did not have an in-person meeting with Mr. Marshall.
Mr. Marshall also relies on Mr. Feener's deposition to demonstrate that Major Allison defamed him by "accusing him of making unauthorized visits to the commands." Opp. at 6; Feener Dep. at 67 ("Major Allison indicated that he thought [Mr. Marshall] had made unauthorized visits to some of his local commands."); id. at 88. Notably, Mr. Marshall does not explain how a statement that he was visiting Corps without permission could be deemed defamatory; such a statement would not tend to "injure plaintiff in his trade, profession or community standing, or lower him in the estimation of the community." Smith, 399 A.2d at 220.
Mr. Marshall also alleges that Major Allison defamed him by stating that
June 29, 2009 Email (emphasis added). In sum, Major Allison raised concerns regarding the cost of PURL and questioned the nature and level of support for the program from Territory Headquarters.
Later, on October 16, 2009, Major Allison sent an email to Major Mark Brown, Community Relations and Development Secretary, Territory Headquarters, voicing concerns regarding the cost of the Family Store Card Program and questioning the nature and level of Territory Headquarters support for that program:
Dear Major Brown:
Oct.2009 Email Exchange at SA 00133. A few days later, on October 20, 2009, Major Allison wrote:
Id. at SA00127. Mr. McGown, a recipient of the email responded, "This is all fun, right?" to which Major Allison answered, "Loads and loads of fun. Almost as much fun as a trip to the dentist." Id.
Mr. Marshall merely points to these emails and, without further argument or explanation, claims that they derided him as "incompetent" even though they said no such thing. Major Allison was skeptical about whether the PURL program was workable because none of the Corps generated enough mater: al to populate and support PURLs. He wondered if the upfront cost of approximately $15,000 for the Family Store Card Program would be recouped via a sufficiently large number of new donors. He noted that the proposed receipt to be used in the Family Donor Card Program placed a value on the items for the donor and asked whether the receipt meets The Salvation Army guidelines. He also asked whether the Southern Territory itself supported the programs. Major Allison's statement that dealing with these matters was "[a]lmost as much fun as a trip to the dentist" appears to be meaningless banter and not a comment about Mr. Marshall. Contrary to Mr. Marshall's take on these emails, the Court does not see how they can be read objectively as disparaging of Mr. Marshall. Major Allison's email statements do not constitute actionable defamation.
Although Mr. Marshall does not articulate the point, expressing concern that an overly-involved employee may appear to be receiving kickbacks arguably conveys the idea that someone might be paying kickbacks. However, to the extent that Mr. Marshall intends to make such a claim, the claim would be precluded by the common interest privilege. The common interest privilege protects otherwise defamatory statements made (1) in good faith, (2) on a subject in which the party communicating has an interest, or in reference to which he has, or honestly believes he has, a duty to a person having a corresponding interest or duty, (3) to a person who has such a corresponding interest. Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 858 (D.C.Cir.2006) (citing Moss v. Stockard, 580 A.2d 1011, 1024 (D.C. 1990)). This privilege does not apply if the
In Mastro, the plaintiff alleged that his former employer defamed him when it published a memo suspending him for "serious/major incidents of lack of candor and a serious/major incident of unsatisfactory performance" and a second memo terminating him for the same reasons. 447 F.3d at 849. On summary judgment, the district court determined that the common interest privilege applied and there was no evidence of malice to defeat the privilege. The D.C. Circuit affirmed:
Id. at 859.
Here, the topics of conversation at the October 2009 meeting between Major Allison, Mr. Feener, and Mr. Sears were: the PURL and Family Store Card initiatives; concern regarding cost and populating PURL; concern regarding the appearance created when Mr. Marshall repeatedly used Mr. Feener's name in his program sales campaign; and concern that Mr. Marshall was overstating his backing by Territory Headquarters. Allison Decl. ¶¶ 12-13. Because the conversation was only among three individuals with common interests on matters within their common interest, Defendants have demonstrated that the common interest privilege applies.
Mr. Marshall contends that Major Allison made the statement regarding kickbacks with malice, relying only on the "tone" of Major Allison's June and October 2009 emails, which are quoted extensively above. See Opp. at 10. But the inference of a negative "tone" in these emails is not justified, as can be plainly seen by reviewing the emails. Moreover, allegation of a mere "tone" does not constitute sufficient evidence to support a claim of malice. A negative "tone" is not enough to show that Major Allison acted with "a conscious indifference or reckless disregard as to ... results or effects upon the rights or feelings of others." Moss, 580 A.2d at 1025. Such an unsupported allegation of malice cannot defeat the common interest privilege, which bars Mr. Marshall's defamation claim.
Mr. Marshall also claims that Major Allison's allegedly defamatory remarks constituted tortious interference with Mr. Marshall's oral contracts with The Salvation Army and with his business relationship with The Salvation Army. Compl. ¶¶ 21-24.
Mr. Marshall alleges that he had oral contracts with The Salvation Army, entered into by Messrs. Feener and McGown and worth more than $1,000,000. But Messrs. Feener and McGown state unequivocally that they had no authority to enter into such contracts on behalf of The Salvation Army, and Mr. Marshall presents no evidence to the contrary. Further, Mr. Marshall's assertion that such oral agreements existed is belied by his explicit recognition that the local commands make their own marketing decisions, and that those decisions are not made by Territory Headquarters where Mr. Feener was employed or by the Divisions where Mr. McGown was employed. See Marshall Narrative at 2-3.
The claim that there were valid oral contracts also is undermined completely by the dearth of evidence regarding any of the key terms of such alleged contracts. To be valid, a contract must include all material terms, including subject matter, price, and duration. Rosenthal v. Nat'l Produce Co., 573 A.2d 365, 370 (D.C.1990). Mr. Marshall has not presented evidence setting forth key contract terms such as the alleged cost to The Salvation Army, the scope of work, or the duration of the oral contracts. Because there were no valid contracts between Mr. Marshall and The Salvation Army, there were no valid million dollar contracts with which Major Allison could have interfered, and summary judgment must be granted in favor of Defendants on the claim for tortious interference with contract.
The elements of a successful claim for tortious interference with a prospective business advantage are (1) the existence of a valid business relationship or other expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference causing termination of the relationship or expectancy or causing a failure of performance by one of the parties; and (4) resultant damage. McNamara v. Picken, 866 F.Supp.2d 10, 15 (D.D.C.2012) (describing D.C. law); Libya, 889 F.Supp.2d at 156-57 (same). A plaintiff must allege a business expectancy, not grounded in a present contractual relationship, which is commercially reasonable to expect. McNamara, 866 F.Supp.2d at 15. "A valid business expectancy requires a probability of future contractual or economic relationship and not a
Mr. Marshall fails to submit any evidence supporting his claim that a future contract or economic relationship with The Salvation Army was actually probable. His avid belief that he could/would sell the four programs that he claims to have developed specifically for The Salvation Army (the PURL program, the Family Store Card program, the Modeling/Analysis program, and the Constituent Loyalty Initiative) is not supported by the facts. After a full year of sales efforts, Mr. Marshall had not made a single sale of these untried marketing programs to a single local command. At the time Mr. Marshall was deposed, PsyDa had only one customer. Marshall Dep. at 13. Because he has not presented anything showing that the alleged expectancy was commercially reasonable, the claim for tortious interference with business expectancy fails.
For the reasons stated above, Defendants' motion for summary judgment [Dkt. 18] will be granted and judgment will be entered in favor of Defendants. A memorializing Order accompanies this Opinion.
