Spacecon Specialty Contractors, LLC v. Bensinger

• Decision Date: 15 April 2013
• Docket Number: No. 11–1139.,11–1139.
• Citation: 713 F.3d 1028
• Parties: SPACECON SPECIALTY CONTRACTORS, LLC, Plaintiff–Appellant, v. Richard BENSINGER, an individual, Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

713 F.3d 1028

SPACECON SPECIALTY CONTRACTORS, LLC, Plaintiff–Appellant,
v.
Richard BENSINGER, an individual, Defendant–Appellee.

No. 11–1139.

United States Court of Appeals,
Tenth Circuit.

April 15, 2013.

[713 F.3d 1031]

Lawrence W. Marquess (Christopher M. Leh, Danielle L. Kitson, and Allison R. Cohn, with him on the briefs), Littler Mendelson, P.C., Denver, CO, for Plaintiff–Appellant.

Thomas B. Kelley, Levine Sullivan Koch & Schulz, L.L.P., Denver, CO (Daniel M. Shanley and Jody Borrelli, DeCarlo, Connor & Shanley, A Professional Corporation, Los Angeles, CA; and Steven D. Zansberg, Levine Sullivan Koch & Schulz, L.L.P., Denver, CO, with him on the brief), for Defendant–Appellee.

Before HARTZ, MURPHY, and HOLMES, Circuit Judges.

MURPHY, Circuit Judge.
I. Introduction

Richard Bensinger produced and screened a film about Spacecon Specialty Contractors, LLC. Claiming the film conveyed several defamatory statements, Spacecon filed suit against Bensinger in the United States District Court for the District of Colorado, based on diversity jurisdiction, asserting a state-law claim for defamation per se. The district court granted Bensinger's motion for summary judgment, concluding the messages conveyed by the film involve matters of public concern and Spacecon did not show Bensinger published the film with actual malice.

[713 F.3d 1032]

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms.

II. Background

Richard Bensinger is a consultant for the United Brotherhood of Carpenters And Joiners of America. In 2008, Bensinger was asked by David Wilson, the Assistant Director of Organizing for the Carpenters District Council of Kansas City and Vicinity and its Local Union No. 55 (collectively the “Union”) to create a film about Spacecon. Bensinger agreed. During their initial conversations, Wilson made clear to Bensinger the Union was engaged in a campaign against Spacecon because Spacecon did not pay its employees area standards wages and benefits, i.e., those wages and benefits required by the Union's labor agreements with its signatory contractors.

The film was inspired by a series of local news reports about a group of approximately 100 workers from Mexico who were stranded in Glenwood Springs, Colorado, in late 2007 and early 2008 (the “Stranded Workers” and the “Glenwood Springs incident”). According to the news reports, the workers were brought to Colorado from Mexico by JNS Construction Services, LLC, to work at a hotel project for Midwest Drywall Company, Inc. After arriving in Colorado, the Stranded Workers were told they were no longer needed for the construction work they were promised. It appears some did find work but claimed they were paid below minimum wage. They were housed in a hotel for extended periods of time with as many as ten people per room and inadequately fed. In January 2008 many of the Stranded Workers filed suit against, inter alia, JNS, Midwest, and Leno & Company, a labor broker that allegedly recruited the workers for JNS. The complaint did not name Spacecon as a party or otherwise mention Spacecon.

The Union sent two of its representatives to conduct videotaped interviews of the Stranded Workers. According to the Union, several of the Stranded Workers stated that Leno told them they were brought to Colorado to work for Spacecon. After these interviews were conducted, Wilson contacted Bensinger about making the film.

The film is entitled “Looking the Other Way: Benefitting from Misery.” It is presented as a documentary and consists primarily of videotaped interviews of various individuals, including several foreign construction workers.¹ The film addresses alleged abuse and discrimination suffered by these workers, including under-payment, misclassification of employees as independent contractors, and trafficking of foreign workers from Mexico. Some of the alleged abuses are attributed directly to Spacecon. The majority of the alleged abuses, however, are attributed to Leno, which provided laborers to various companies, including Spacecon. The film explicitly represents that Spacecon used Leno to obtain workers for Spacecon projects. Spacecon does not dispute it used Leno to provide laborers to supplement its own workforce on three of its projects and was under contract with Leno at the time of the Glenwood Springs incident. Spacecon terminated its relationship with Leno in May 2008.

[713 F.3d 1033]

A significant portion of the film is devoted to the Glenwood Springs incident. The film includes videotaped interviews with the Stranded Workers and excerpts of television and newspaper coverage of the Glenwood Springs incident.

The film also includes interviews and statements from several other individuals. One of those individuals is Kevin Ott, President of Swinerton Builders, a general contractor that has worked with Spacecon. In the interview, Ott defends Spacecon. He states that Spacecon has always done a good job for Swinerton, and he has not seen any evidence indicating Spacecon violated the law by using illegal foreign workers. The film also includes statements made by Wilson, who says Spacecon can outbid other contractors because it uses labor brokers and is not paying taxes, which gives it an advantage. The film also includes an interview with Bud Stratton, President of E & K Construction in Denver, who says his company cannot bid projects as low as Spacecon because of how little Spacecon pays its workers, implying Spacecon pays less than E & K.

Bensinger relied on several sources in making the film. He consulted newspaper articles and television reports about the Glenwood Springs incident; newspaper articles about alleged abuse and discrimination suffered by foreign workers at the hands of Leno and Spacecon; the complaint filed by the Stranded Workers; videotaped interviews of the Stranded Workers conducted by members of the Union; interviews he conducted of two of the Stranded Workers; interviews he conducted of other workers alleging abuse and discrimination; and statements and information provided by Wilson, Stratton, and Ott.

Bensinger was compensated for his work on the film as part of a regular $7,500 monthly retainer from the United Brotherhood. The United Brotherhood also reimbursed the expenses Bensinger incurred in making the film. Spacecon claims Bensinger delegated all of the editing and much of the filming to members of the Union, including Wilson, who worked with a graduate film student paid by the United Brotherhood. Spacecon also claims all of the interviewees Bensinger relied on in making the film were recruited by the Union and that Bensinger, who does not speak Spanish, delegated the interviews in Spanish to Union members.

Shortly before the film was screened but after the screening had been scheduled and invitations distributed, Bensinger sent a letter to John Banks, Spacecon's then-President, and Kirk Lidell, CEO and President of Spacecon's parent company, asking to interview them on camera regarding “allegations made by [Spacecon's] employees and others that concern the abuse of [foreign] labor by Spacecon.” Banks responded by letter, stating he would be willing to review the film and provide information necessary to correct any false or misleading statements. Bensinger refused to allow Banks to view the film, but emailed Banks a list of questions regarding the allegations. In his response, Banks denied many of the allegations and provided information directly contradicting some of the messages Spacecon claims were conveyed by the film, e.g., that Spacecon was involved in or responsible for the Glenwood Springs incident.

Following these communications, the film was screened to an audience of approximately fifty people at the Tivoli Center in Denver in March 2009 (the “Tivoli screening”). Bensinger claims the screening was organized and sponsored by Union representatives along with members of the Denver City Council. Councilman Paul Lopez gave a speech at the screening. The screening was followed by a discussion

[713 F.3d 1034]

of the policy implications of the film, which was led by a panel of experts, including experts on human trafficking and misclassification of employees as independent contractors. A copy of Banks's responses to Bensinger's questions was distributed to the audience. The film was also screened on at least two other occasions, once at a monthly Union meeting attended by approximately twelve representatives of various signatory contractors and Union members, and again at a second meeting attended by approximately ten E & K employees and Union members.

Spacecon filed this diversity suit against Bensinger, alleging defamation per se under Colorado law based on the messages it claims were conveyed by the film, the invitation to the Tivoli screening, and a poster advertising the film. Bensinger filed a motion for summary judgment, which was granted by the district court. Spacecon appeals, arguing the alleged defamatory statements do not involve matters of public concern, and, even if they do, Spacecon has shown Bensinger published the film with actual malice.

III. AnalysisA. Matters of Public Concern

Spacecon argues the messages conveyed by the film do not involve matters of public concern and, therefore, it need not show Bensinger published the film with actual malice. Because the district court granted Bensinger's motion for summary judgment and because, under Colorado law, whether a matter is of public concern is a question of law for the court, this issue is reviewed de novo. Quigley v. Rosenthal, 327 F.3d 1044, 1057–58 (10th Cir.2003); Walker v. Colorado Springs Sun, Inc., 188 Colo. 86, 538 P.2d 450, 459 (1975).

The Supreme Court has declined to impose a federal standard of liability for allegedly defamatory statements about private individuals, instead giving that responsibility to the States. Gertz v. Robert Welch, Inc., 418 U.S. 323, 347, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (“[S]o long as they do not impose liability...