Bisbano v. Strine Printing Co.

• Citation: 737 F.3d 104
• Decision Date: 27 November 2013
• Docket Number: No. 13–1722.,13–1722.
• Parties: Richard BISBANO, Sr., Plaintiff, Appellant, v. STRINE PRINTING CO., Inc., and Michael Strine, Sr., Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

737 F.3d 104

Richard BISBANO, Sr., Plaintiff, Appellant,

v.STRINE PRINTING CO., Inc., and Michael Strine, Sr., Defendants, Appellees.

No. 13–1722.

United States Court of Appeals,First Circuit.

Nov. 27, 2013.

V. Edward Formisano and Formisano & Company, on brief for appellant.

Jeffrey S. Brenner, Steven M. Richard, and Nixon Peabody LLP, on brief for appellees.

Before HOWARD, SELYA and STAHL, Circuit Judges.

SELYA, Circuit Judge.

The practice of giving gifts as a means of securing favors is as old as the hills. In ancient Greece, for example, legend has it that Zeus asked Paris, a Trojan prince, to decide which of three goddesses was the fairest of them all. Paris chose Aphrodite, rejecting proffered bribes of kingly power from Hera and military might from Athena. But Aphrodite too had tendered a bribe, agreeing to help him win the hand of the most beautiful woman alive.

A modern-day commercial equivalent of this practice is the giving of a gratuity to a procurement officer, behind her employer's back, for the purpose of steering a contract to the donor. But sales techniques of this sort are by their nature clandestine; they cannot withstand the sunlight. If the employer learns about the kickback, the consequences are usually unpleasant. This case, in which defendants Michael Strine and his eponymous firm, Strine Printing Company (SPC), first hired and later fired the plaintiff, Richard Bisbano, turns on such a revelation.

When he was cashiered, the plaintiff did not go quietly into obscurity but, rather, brought suit for an oleaginous mass of perceived wrongs, including unjust enrichment, tortious interference with prospective contractual relations, breach of contract, breach of an implied covenant of good faith and fair dealing, and misrepresentation. The district court, deftly sorting wheat from chaff, granted summary judgment in favor of the defendants. See Bisbano v. Strine Printing Co., No. 10–358, 2013 WL 1907455, at *12 (D.R.I. May 8, 2013). After careful consideration, we affirm.

I. BACKGROUND

We assume the reader's familiarity with the district court's factual account and, thus, start by tracing the genesis of this appeal. To the extent that we discuss the facts, we take them (and the reasonable inferences therefrom) in the light most hospitable to the summary judgment loser (here, the plaintiff). See Griggs–Ryan v. Smith, 904 F.2d 112, 114 (1st Cir.1990).

The plaintiff is a veteran sales representative who specializes in the sale of commercial printing services. For nearly two decades, CVS (a powerhouse firm that owns and operates thousands of drug stores) was a significant source of business for him. Over the years, he carried that client with him from Winthrop Printing Company to Allied Printing Services (Allied) and, eventually, to SPC. During most of this odyssey, the plaintiff used a broker, Vanco, as an intermediary to assist him in securing CVS's business.

When the plaintiff shifted his allegiance to SPC in December of 2006, he also took with him a secret. While working for Allied, he had surreptiously helped to pay the car lease of a CVS printing department employee.

Allied was not happy about the plaintiff's departure and his ensuing solicitation of CVS on his new employer's behalf. It sued both the plaintiff and SPC, and these suits complicated the parties' tug-of-war over CVS's patronage.

To complicate matters further, the suits apparently spooked Vanco. As a result, the broker began to steer what CVS business it could influence to other printers. On learning of Vanco's perfidy, the plaintiff and SPC decided to forge a direct relationship with CVS and, in mid–2007, cut all ties with Vanco.

The plaintiff's 2008 commissions dropped precipitously, reflecting this parting of the ways. By the following year, however, his commissions had rebounded to their 2007 level. They continued to rise during the first half of 2010.

This story might have had a happy ending but for the plaintiff's earlier indiscretion. In the course of an internal review of its printing procurement practices, CVS learned of the plaintiff's role, while at Allied, in the apparent kickback.

In April of 2010, the plaintiff confessed his complicity to CVS executives. Shortly afterward, CVS's vice president for strategic procurement decided that the company would not do business with the plaintiff and that SPC would need to remove him from the CVS account. Although the plaintiff contests whether this decision was contemporaneously communicated to the defendants, it is undisputed that CVS made the decision and that, at the end of June, SPC dismissed the plaintiff.

The plaintiff repaired to a Rhode Island state court, pressing a welter of contract, quasi-contract, and tort claims against the defendants. Citing diversity of citizenship and the existence of a controversy in the requisite amount, the defendants removed the action to federal court. See28 U.S.C. §§ 1332(a), 1441.

We fast-forward to the close of discovery. At that point, the defendants moved for summary judgment. SeeFed.R.Civ.P. 56. Over the plaintiff's objection, the district court granted the motion. See Bisbano, 2013 WL 1907455, at *12. This timely appeal followed. We have jurisdiction under 28 U.S.C. § 1291.

II. ANALYSIS

Because this is a diversity case that has its center of gravity in Rhode Island, that state's substantive law supplies the rules of decision. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Gibson v. City of Cranston, 37 F.3d 731, 735 (1st Cir.1994). We review the district court's entry of summary judgment de novo. See Jones v. Secord, 684 F.3d 1, 5 (1st Cir.2012).

A. Unjust Enrichment.

The plaintiff's unjust enrichment claim is the logical starting point. In Rhode Island, a plaintiff who seeks to recover for unjust enrichment must prove that he conferred a benefit on the defendant; that the defendant knew of the benefit and appreciated it; and that it would be unfair for the defendant to retain the benefit without paying for it. See Multi–State Restoration, Inc. v. DWS Props., LLC, 61 A.3d 414, 418–19 (R.I.2013); R & B Elec. Co. v. Amco Constr. Co., 471 A.2d 1351, 1355–56 (R.I.1984).

The plaintiff identifies three benefits that he claims to have conferred on the defendants: he “brought the CVS print work to [SPC];” “secured additional printing work from CVS during his employment;” and “obtained ‘preferred vendor status' for [SPC].” ¹ We can make short shrift of the first two “benefit” claims. It is uncontroverted that the plaintiff received commissions for the CVS business that he generated while with SPC. Where, as here, a plaintiff is fully compensated for a benefit conferred, a claim for unjust enrichment will not lie. See Narragansett Elec. Co. v. Carbone, 898 A.2d 87, 99 (R.I.2006) (explaining, with respect to unjust enrichment, that “a benefit is conferred when ... services are rendered without payment ” (emphasis supplied)).

At first blush, the plaintiff's claim with respect to preferred vendor status looks more promising. He argues that SPC attained this status through his efforts and, as a result, was put “in a position to receive a substantial share of CVS's printing work.” Generously construed, the plaintiff's argument is that his anticipated remuneration for these efforts was to be the opportunity to pursue future commission-generating sales to CVS. Having been denied that opportunity by reason of his ouster, he seeks to recover its value.

This argument is incompatible with the evidence. The record makes manifest that preferred vendor status is simply a pre-qualification that clears the way for a supplier to bid on CVS's emerging print orders. So viewed, the plaintiff's efforts to help SPC achieve preferred vendor status were part and parcel of his normal sales activities—work for which he was fully compensated.

The plaintiff's own characterization of his efforts supports this conclusion. When asked in an interrogatory to describe what he had done to obtain preferred vendor status for CVS, he responded:

I provided CVS with the highest level and quality of service. I filtered errors and printing mistakes [SPC] made. I had several meetings with CVS to ensure that the company was satisfied and that its printing needs were being met. I also provided valuable information on how best to handle various projects. I also sought additional printing opportunities for [SPC] from different departments at CVS.

These labors are precisely those that one would expect a sales representative to undertake in the ordinary course of his duties.

The decision in Arrison v. Information Resources, Inc., No. 95–3554, 1999 WL 551232 (N.D.Cal. July 16, 1999), much bruited by the plaintiff, turns out to be a dead end. There, the plaintiff's employer asked him to pursue a sales arrangement that was outside the customary scope of his work. See id. at *3. As a result, the plaintiff spent a year courting a prospective client. See id. When he was on the verge of closing the deal, the rug was pulled out from under him: the prospective client purchased his employer outright, thus rendering the sales arrangement moot and depriving the plaintiff of his anticipated commission. See id.

On these idiosyncratic facts, the court found that “but for” the acquisition of the company, the plaintiff would have completed the product sale. Id. at *6. Relatedly, the court found that the plaintiff's“efforts were a significant factor that contributed to the ... acquisition.” Id. at *7. Thus, he was entitled to recover the reasonable value of his efforts on a theory of quantum meruit.²See id. at *7–9.

This case is a horse of a much different hue. The record contains nothing to indicate that SPC asked the plaintiff to perform additional, uncompensated services related to the CVS account—nor does the plaintiff offer any evidence that he did so. The holding in Arrison is, therefore, inapposite.

B. Intentional Interference.

We turn next to the...