LOUISE W. FLANAGAN, District Judge.
This matter is before the court on defendants' motion for judicial notice (DE-59) and motion for summary judgment (DE-36). Plaintiff responded in opposition and defendants replied. In this posture, the issues raised are ripe for ruling. For the following reasons, the court grants defendants' motion for summary judgment and denies as moot the motion for judicial notice.
On October 16, 2014, plaintiff filed a complaint in North Carolina State court against defendant Branch Banking and Trust Company ("BB&T"), defendant Scott P. Evans ("Evans"), and former defendant Michael P. Southern ("Southern"). (DE 1-2). The complaint advanced six claims for relief: (1) tortious interference with contract; (2) tortious interference with economic relations and prospective economic relations; (3) civil conspiracy; (4) wrongful attachment; (5) malicious prosecution; and (6) negligent hiring, supervision, and retention. (
On November 25, 2014, the case was removed to this Court, where former defendant United States of America was substituted for former defendant Southern. (DE 1). On December 19, 2014, plaintiff voluntarily dismissed the claim against former defendant United States. (DE 4, 18). Defendants filed an answer to the complaint on January 12, 2015, to which plaintiff responded on March 27, 2015. (DE 19, 24).
On November 19, 2015, defendants filed the instant motion for summary judgment. (DE 36). In support of the instant motion, defendants rely upon internal BB&T documentation relating to plaintiff's termination, including emails, memos, interview notes (DE 37-1, -2); documents from the government investigations of plaintiff, including emails, memos, interview notes, and a seizure warrant (
Plaintiff responded on December 14, 2015, relying upon a declaration by plaintiff (DE 45-3); plaintiff's interrogatory responses (DE 45-4); internal BB&T documentation, including ethics investigation forms, memos, emails and performance reviews (DE 45 -5, -6); documentation from the government investigations against plaintiff, including a warrant, affidavit, settlement agreement, and emails (DE 45-6); depositions by plaintiff (DE 45-7), Bennett (DE 45-8), Candace Beverly ("Beverly") (DE 45-9), Daniels (DE 45-10), defendant Evans (DE 45-11), Lisa Golterman ("Golterman") (DE 45-12), and Greene (DE 45-13).
Defendants thereafter filed the instant motion on April 6, 2016, asking the court to take judicial notice of an ongoing action, to which plaintiff filed a response in opposition on April 20, 2016. (DE 59).
The facts viewed in the light most favorable to plaintiff are as follows:
Defendant BB&T is a national bank, ranked tenth in the county by assets. Evans Dep. (DE 45-9 at 5). Plaintiff worked for defendant BB&T as a corporate banker for approximately 27 years. Lamm Dep. (DE 45-6 at 118). In his role as a corporate banker, plaintiff was responsible for opening loans. (
Daniels retired, and was replaced as plaintiff's supervisor by defendant Evans in January 2011. Evans Dep. (DE 37-3 at 3). At this time, plaintiff was based in Greenville, North Carolina, but frequently traveled to other cities for business. Lamm Dep. (DE 45-6 at 5-6). In January 2011, plaintiff applied for a city executive position within BB&T. In March 2011, plaintiff learned that it had been awarded to somebody else, and spoke to defendant Evans about finding another position within the bank; defendant Evans did not object, but also did not offer support for this move. Lamm Decl. (DE 39-2 at 1); Lamm Dep. (DE 45-6 at 88).
Plaintiff asserts that after March 2011, defendant Evans took a negative approach to dealing with plaintiff. Lamm Dep. (DE 45-6 at 88). Plaintiff specifically points to a meeting with defendant Evans and a customer in which "it was a question asked in a meeting, and I had a solution to the problem, and instead of adding to my solution . . . it was pretty much kind of a — I took it as a scolding, that my answer was incorrect. And, then, he gave a different answer." Lamm Dep. (DE 45-6 at 88-89).
On September 2, 2011, defendant Evans met with plaintiff to review his performance for the first half of the year. Defendant Evans spoke in a raised tone of voice and castigated plaintiff regarding his performance. Lamm Dep. (DE 45-6 at 8). As the basis for the negative performance review, defendant Evans asserts that he used complaints from one or more of plaintiff's coworkers relating to plaintiff's attendance, his personal observations, concerns from BB&T clients to whom plaintiff was assigned, and plaintiff's poor performance on BB&T's "balance performance" metric. Evans Memo (DE 37-1 at 3-4.). While defendant Evans had previously received information that plaintiff had inappropriately managed his incentive matrix, he did not discuss this allegation to plaintiff during the September 2, 2011 meeting. (
Defendant Evans reported that on September 6, 2011, he noticed a $5.202 million deposit from United Healthcare Consortium ("UHC"), and asked Donna Astle ("Astle"), BB&T's Senior Vice President and Deposit Portfolio Administrator, about it. (
Plaintiff asserts that he took the check to Overton, who would have needed it to open the account, and that she accidentally keyed it as "new," which he was unaware of at the time, though he "may have helped her . . . fill out the deposit slip" and "may very well have carried it to the teller window." Lamm Dep. (DE 45-7 at 28-30). Plaintiff asserts both that he didn't "recall specific conversations" with Overton regarding those funds, and that he had a conversation with her in which she confessed to making a mistake regarding how she coded the deposit, and told her that he would take the blame for the incident. Lamm Dep. (DE 45-6 at 26, 31). On September 9, 2011, Astle was contacted up by plaintiff, who told her that "it is not new money, and that is my fault" and that it was a "[mis]communication." Lamm Case Summary, Phone Tr. (DE 37-1 at 38).
Subsequent to this incident, defendant Evans spoke to Blanton, an HR manager, and "they agreed to file a `Suspicious Incident Report'" ("SIR"). Evans Memo (DE 37-1 at 5). The SIR filing triggered an HR investigation by Inman, which was coordinated with a fraud investigation conducted by Greene. Inman emails, SIR documentation (DE 37-1 at 19-23).
On September 19, 2011, Greene discussed the SIR with defendant Evans, who addressed the incident, informed her of his suspicions, and referred her to Tommy Price, Goltermann, Beverly, and Kristen Ray. (
On October 17, 2011, defendant Evans met with Greene and Inman to discuss their findings. Evans Memo (DE 37-1 at 5-6). Greene noted that she had found several instances where plaintiff had issued a new note, rather than a note modification, which would allow the note to appear on the "new loan production report" for incentives. Evans Memo (DE 37-1 at 6).
On October 18, 2011, defendant Evans requested and reviewed MI-458 forms completed by plaintiff, which detailed his loan production for incentive credit for 2009 and 2010. (
On October 19, 2011, Greene interviewed plaintiff, with Inman as a witness. (
On October 20, 2011, defendant Evans recommended termination. (
On October 27, 2011, defendant Evans spoke with UHS to discuss the $5.202 million deposit. Evans Memo (DE 37-1 at 8-9). At that meeting, the UHS representative asked about certain representations made by plaintiff, and defendant Evans told her that plaintiff had been "utilizing our `sales campaign for his benefit.'" (
The United States applied for a seizure warrant, supported by special agent Southern's affidavit, which incorporated BB&T's corporate investigation. Lamm Case Summary (DE 37-1 at 44). The United States then used the warrant to seize $323,595.00 from plaintiff in a civil asset forfeiture action. The parties settled, with plaintiff receiving $69,358.22 of the seized assets, and the United States receiving $254,236.78 of the assets, which were transferred to defendant BB&T. (DE 32, 33).
The FDIC also instituted an action on a similar basis, for the remaining $69,358.22 in seized assets. This case is currently ongoing. FDIC Letter (DE 37-2 at 18).
In January 2012, plaintiff was hired at Select Bank & Trust ("Select Bank") as a business loan officer. Pl. Interrog. Resp. (DE 45-4 at 3). In May 2012, plaintiff resigned after the FDIC informed plaintiff that they were pursuing an administrative action to enjoin him from working at any federally insured deposit corporation. (
The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted is to eliminate claims that are factually or legally insufficient. Fed. R. Civ. P. 12(b)(6);
Plaintiff claims that defendant Evans tortiuously interfered with plaintiff's employment contract with BB&T by "knowingly making false accusations" with malice that resulted in the termination of plaintiff's employment contract. (DE 1-2 at 20). The North Carolina Supreme Court has recognized a claim under North Carolina law based upon tortious interference with contract, comprised of the following elements:
Interference is always considered justified when a "non-outsider" interferes with a contract to protect a legitimate business interest.
However, "it is not enough to show that a defendant acted with actual malice; the plaintiff must forecast evidence that the defendant acted with legal malice."
Plaintiff argues that non-outsider status can be defeated by simply showing "hostility and illwill," the language in
In other cases where the North Carolina Court of Appeals has found legal malice, defendants did not simply act through legal channels with an impure motive, but took measures beyond the scope of their authority, such as actively spreading defamatory information, falsely accusing plaintiff, withholding information, or otherwise injuring plaintiff.
Here, the only element of tortious interference claim under dispute is whether defendant Evans acted "without justification" in causing plaintiff to be fired. Plaintiff concedes that, as plaintiff's supervisor, defendant Evans was a non-outsider to plaintiff's employment contract. Pl. Resp. (DE 45 at 19). Thus, the court turns to the question of whether defendant Evans acted in furtherance of a legitimate business interest, or whether he acted out of malice.
Plaintiff makes a myriad of assertions in order to prove malice. First, plaintiff asserts that malice is shown because defendant Evans should have been aware that the reports on which he based his decision required the approval of plaintiff's supervisor, and that defendant Evans "manipulated" the investigation "by allowing them to believe that Lamm had acted without his supervisor's permission." Pl. Resp. (DE 45 at 20-21). Second, plaintiff points to "negative treatment," wherein defendant Evans was "belligerent and unprofessional", specifically when plaintiff was corrected in front of a client, and when plaintiff was loudly reprimanded at length. (
Most of these claims, even if supported by evidence, do not show "legal malice" as used by the North Carolina Court of Appeals.
Plaintiff does, however, refer to two acts that, if supported by evidence, could be wrongful acts showing legal malice.
First, plaintiff asserts that defendant manipulated the investigation against him by intentionally withholding crucial information from Greene's and Inman's investigations. Defendant Evans' malice is proven, plaintiff asserts, by his failure to inform Greene and Inman that the 2009 and 2010 MI-458 forms discussed on October 18, 2011, required the approval of plaintiff's former supervisor, Daniels, which plaintiff asserts defendant Evans knew was necessary, "because Daniels' signature was on the reports." Pl. Resp. (DE 46 at 21). Plaintiff asserts that Daniels had instructed him to fill out the forms in a manner which did not reflect plaintiff's actual loan production, but instead to "max out this MI-458 report with the maximum utilization and not counting any refinances." Lamm Dep. (DE 45-7 at 50-51, 66-69).
While manipulation of an investigation could be evidence of malice, the evidence proferred by plaintiff is not evidence of manipulation by defendant Evans. Greene and Inman could have seen Daniels' signature, as they were provided with those very forms, shown by their possession of them when interviewing plaintiff the next day. Lamm Case Summary (DE 37-1 at 40). Moreover, assuming Daniels had instructed plaintiff on filling out the 2009 and 2010 MI-458 forms, this was immaterial to the reason defendant BB&T fired plaintiff. BB&T fired plaintiff for falsifying the MI-458 forms, and his assertions admit he intentionally filled them out with false information; that he did so following Daniels' instructions is immaterial to the basis of his firing. Lamm Dep. (DE 45-7 at 110-111); Termination Form (DE 37-1 at 2).
Second, plaintiff asserts that he was defamed when, after his termination, defendant Evans informed a UHS representative that plaintiff had been "using [BB&T]'s sales campaign for his own benefit." (DE 37-1 at 8-9). Plaintiff argues that such statement is defamatory because plaintiff did not receive a financial benefit from the UHS transaction. The court finds that a reasonable jury could not conclude that this was a defamatory statement. Simply because plaintiff did not ultimately receive a financial benefit does not make the statement defamatory. Plaintiff was, for some time, granted incentive credit from the transaction, and was unable to because the error was ultimately corrected. While plaintiff asserts that he intended to correct this error, and would never have received such a benefit, defendant Evans is and was not obligated to accept his explanation as true.
In sum, as plaintiff has failed to forecast sufficient evidence showing defendant Evans acted with malice, the claim for tortious interference with contract necessarily fails.
The elements of tortious interference with prospective economic relations are the same as tortious interference with contract, except that, "in order for a plaintiff to be successful on a claim of tortious interference with prospective advantage, plaintiff must show that [d]efendants induced a third party to refrain from entering into a contract with [p]laintiff without justification," and "the contract would have ensued but for [d]efendants' interference."
Plaintiff asserts that defendant Evans tortiously interfered with plaintiff's prospective economic relations when defendant Evans submitted reports to the U.S. secret service, causing difficulties for plaintiff in seeking employment. Compl. (DE 1-2 at 22). The complaint asserts that the secret service received a report prepared by Evans, and that Evans informed them it was a document prepared by plaintiff. Compl. (
As a threshold matter, because this claim requires the same showing that defendant acted "without justification" as the claim of tortious interference with contract, it fails for the same reasons.
Moreover, plaintiff's asserted lost prospective economic advantages are unavailing. First, plaintiff cannot rest a claim of interference with prospective economic advantage on his stock options or his position with Select Bank, as asserted in his brief. These were existing contracts, and cannot serve as the basis for a claim of tortious interference with prospective economic advantage.
Second, plaintiff's assertions in his brief that the ongoing investigations prevented plaintiff from seeking out or obtaining any other positions are insufficient. To support a claim of tortious interference with prospective economic advantage, plaintiff must point to a specific opportunity with which defendant interfered.
Finally, to the extent that plaintiff claims prospective interference with economic relations due to the defendants' report to the FDIC and secret service, federal law provides financial institutions and their employees with immunity from liability for such reports:
31 U.S.C. § 5318(g)(3)(A).
This safe harbor provision exempts member banks from liability, whether the report is required under the law or filed on a voluntary basis.
Plaintiff does not discuss the Act directly in his response, nor argue that the act does not apply to any of claims two, three, four, or five, or any other theory of law that would overcome this defense. Plaintiff does state defendant Evans "is not insulated from liability because of false or fraudulent statements to an investigator `within the jurisdiction of any department of the United States.'" Pl. resp. (DE 45 at 24) (quoting 18 U.S.C. § 1001). The meaning of this sentence is not clear, but assuming it was meant to address the safe harbor provision, it does so ineptly, as plaintiff's explanation is vacuous and the statute quoted does not refer to 31 U.S.C. § 5318 specifically or immunity generally. Therefore, claims two, three, four, and five, where premised on defendants' disclosures to the FDIC and SS, are barred by this provision and fail.
In sum, claim two fails as a matter of law, because plaintiff has failed to demonstrate that the acts were without justification, because plaintiff failed to assert prospective economic opportunities, with which defendants interfered, and because this claim is otherwise barred by immunity.
Plaintiff's briefing at summary judgment makes no mention of either of these claims, let alone defendant's arguments addressing them, and is therefore deemed to have conceded that summary judgment is appropriate as to claims three and five.
Therefore, claims three and five must fail.
Claim four asserts that through their "statements before the U.S. District Court and to the U.S. Attorney's office, [d]efendants Evans and Southern caused an encumbrance of [p]laintiff's personal bank assets." Compl. (DE 1-2 at 26). Plaintiff's briefing instead refers to the documents and reports made by defendant Evans. (DE 45-1 at 25). As above, modification via briefing is not appropriate. In any case, in either of the versions plaintiff has presented, these disclosures are the sort protected by the safe harbor provision, in 31 U.S.C. § 5318, something plaintiff does not dispute.
This claim is therefore barred by the immunity enjoyed by defendants, and must fail.
Under North Carolina Law, "to support a claim of negligent retention and supervision against an employer, the plaintiff must prove that the incompetent employee committed a tortious act resulting in injury to the plaintiff, and that prior to the act, the employer knew or had reason to know of the employee's incompetency."
"An essential element of a claim for negligent retention of an employee is that the employee committed a tortious act resulting in plaintiffs' injuries."
Moreover, even if such a tortious act could be demonstrated, the second element of the tort requires plaintiff to show that, prior to the acts alleged, "the employer knew or had a reason to know of the employee's incompetency."
Instead of putting forward any evidence of such knowledge on the part of defendant BB&T, plaintiff urges the court to utilize a test from medical malpractice cases. In these cases, an on-call defendant had an established duty to supervise resident physicians who were still in training, but failed to do so, and harm resulted.
In sum, plaintiff's claim of negligent retention and supervision does not meet the necessary elements and fails.
Based on the foregoing, defendant's motion for summary judgment is GRANTED. (DE 35). The motion to take judicial notice is DENIED. (DE 59). The clerk is DIRECTED to close this case.
SO ORDERED.
Defendants ask this court to judicially notice the fact that the FDIC has instituted an administrative enforcement action against plaintiff based on facts and circumstances which are the subject of this judicial action. The FDIC proceeding is discussed by plaintiff in his deposition. (DE 45-4 at 74-78). The fact that the FDIC has instituted such an enforcement action can be accurately and readily determined from sources, such as FDIC filings, whose accuracy cannot reasonably be questioned. However, plaintiff does not dispute the existence of the FDIC proceeding, or that it originated with disclosures from defendants, and it is not otherwise necessary in determining the disposition of the claims on summary judgment. Accordingly, the motion is denied as moot.