Faigin v. Kelly & Carucci

• Decision Date: 19 July 1999
• Docket Number: No. 98-1589,98-1589
• Parties: (1st Cir. 1999) A.J. FAIGIN, Plaintiff, Appellant, v. JAMES E. KELLY AND VIC CARUCCI, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 67

184 F.3d 67 (1st Cir. 1999)

A.J. FAIGIN, Plaintiff, Appellant, v. JAMES E. KELLY AND VIC CARUCCI, Defendants, Appellees.

No. 98-1589.

United States Court of Appeals for the First Circuit.

Argued June 11, 1999.

Decided July 19, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

A.J. Faigin, pro se ipso, for appellant.

Steven M. Gordon, with whom Lucy J. Karl, Shaheen & Gordon, P.A., and Linda Steinman were on brief, for appellee Kelly.

Before Selya, Boudin and Lipez, Circuit Judges.

SELYA, Circuit Judge.

This is a tale of an American icon. Jim Kelly attained great celebrity during an illustrious professional football career. By his own admission, however, he did not handle his newfound fame and fortune as well as he handled a pigskin. Looking back, Kelly believed that his adjustment had been retarded by a cluster of agents who put their own financial interests ahead of his.

Eventually, Kelly rid himself of these subalterns and made different arrangements. When he thereafter penned his autobiography, he made no bones about his contempt for his former mentors. One of these advisers, plaintiff-appellant A.J. Faigin, took umbrage and sued both Kelly and Vic Carucci, the journalist who assisted Kelly in writing the book. In due season, the nisi prius court granted Carucci's motion for summary judgment, but denied Kelly's parallel motion. Faigin's case against Kelly was tried to a jury over a 19-day span and resulted in a defendant's verdict. Faigin appeals. Deterrating no reversible error, we affirm.

I. BACKGROUND

We divide our canvass of background events into three segments. First, we sketch the contours of the association between Kelly and Faigin. Next, we discuss the book that Kelly wrote with Carucci's help. Third, we limn the travel of the case.

A. The Relationship.

In 1980, Faigin joined Greg Lustig and Ken Weinberger in forming what they conceived as a "full-service sports management" enterprise. This mini-conglomerate included three separate corporations that collectively offered tax, accounting, financial, and marketing services to professional athletes. Although these entities seemingly overlapped in practice, the founders' game plan was to furnish contract negotiation services through Lustig Pro Sports, Inc. (LPS); to furnish financial and investment advice through Consultants' Development Group, Inc. (CDG); and to use the third entity, known as Lustig Group (L-Group), as an investment vehicle. Lustig and Faigin also formed a law firm, Lustig & Faigin Co., LPA (L&F), to provide legal representation to athletes and to the three corporations. Faigin had an interest in each of these entities: he had capital invested in LPS and served as its president; he was a shareholder, director, and officer of both CDG and L-Group; and he a was a principal in L & F.

In 1983, Kelly capped a star-studded collegiate career as the quarterback of the University of Miami Hurricanes. Faigin recruited him that spring and Kelly signed contracts with LPS and CDG. Both the National Football League (the NFL) and the United States Football League (the USFL) drafted him in the first round. Kelly opted for the fledgling USFL. LPS negotiated a contract for him with the Houston Gamblers and CDG assembled and managed his investment portfolio. After the USFL folded in 1986, LPS helped Kelly secure a contract with the Buffalo Bills of the NFL -- a deal that, at the time, was thought to be the most lucrative in the league's history.

In 1987, Faigin and Lustig came to a rancorous parting of the ways. Faigin sent Kelly an audiotape describing the split and explaining that he no longer could work with Lustig because he feared for his own reputation. In this regard, Faigin noted that Lustig's investment advice and other business decisions were largely self-serving, and that LPS's clients, Kelly included, had been improperly billed. Kelly's investigation into these charges lent him no comfort and, in 1988, he severed his ties with his former agents. A new set of advisers took the helm.

B. The Book.

Carucci agreed to help Kelly write his autobiography, and the tome, entitled "Armed and Dangerous," was published in 1992. For the most part, the account (written in the first-person singular, despite Carucci's collaboration) lumped Faigin, Lustig, and Weinberger together. The passages relating to them were relatively brief. We reprint below the statements that sparked the instant action:

The draft began at eight o'clock in the morning. I was in Akron, Ohio, where my agents at the time -- Greg Lustig, A.J. Faigin and Ken Weinberger -- were based. (I wanted to use another word besides "agents" here, but that's better left for the lawsuit that is currently pending in Texas. My mother always said if you don't have anything good to say about somebody, don't say anything at all.)

* * *

I learned my lesson the hard way about whom to trust and whom not to trust in business. I had had complete faith in my first agents, Greg Lustig and A.J. Faigin. . . .

Then Danny and the Trevino brothers started taking a closer look at my business affairs. And the more they looked, the more they didn't like what they found.

Finally, I saw the light. In 1988, I fired Lustig and Faigin and put my brother [Danny] and the Trevinos in charge of all my business dealings. Then I filed a major lawsuit against my former agents, as well as the former owners of the Gamblers for defaulting on the payment of my signing bonus.

Fortunately, I was able to catch the problem before it was too late, which made me luckier than a lot of other pro athletes. When you come out of college, you're so trusting, so vulnerable when it comes to finding people to handle your money. I'm just glad that I had a brother and a couple of close friends who cared enough to slap me upside the head and get my attention.

The funny thing is, my mother never liked Lustig from Day One. There was something about him that told her he couldn't be trusted.

I should have followed Mom's intuition.

Jim Kelly and Vic Carucci, Armed and Dangerous 57, 159-60 (1992).

C. Travel of the Case.

Invoking diversity jurisdiction, 28 U.S.C. § 1332(a), Faigin initiated a libel action against Kelly and Carucci in New Hampshire's federal district court.¹ Extensive pretrial discovery ensued. In the course of the proceedings, the district court, for reasons to which we shall return, granted summary judgment in Carucci's favor.

Faigin's case against Kelly was tried to a jury. The court permitted Kelly and Faigin to argue competing views of the gist of the disputed passages. For his part, Kelly maintained both that his comments were not defamatory (but indicated merely that he had "lost trust in his agents generally") and that they were true. Faigin disagreed. He argued that the statements falsely implied that he was dismissed for unlawful conduct, thus damaging his reputation and jeopardizing his career. The court submitted the case on special interrogatories. See Fed. R. Civ. P. 49(a). In response to the first question, the jury concluded that the relevant passages contained defamatory statements, i.e. implications of fact that tended to harm Faigin's reputation.

The second question went to the statements' objective truth. It read: "Based on a preponderance of the evidence, do you find that the defamatory statements or implications of fact in the defendant's book were false?" The jury found that Faigin had failed to prove falsity and, pursuant to the court's instructions, returned a take-nothing verdict.

This appeal followed. Faigin, who was represented by experienced counsel below, proceeds pro se in this court. He assigns error to a plethora of rulings. Many of his arguments so clearly lack persuasive force that we reject them out of hand. In this opinion, we examine only the residuum of Faigin's asseverational array.

II. ANALYSIS

We start our trek through the issues by scrutinizing the summary judgment ruling. Moving to the trial, we next consider Faigin's sufficiency-of-the-evidence challenge and his insistence that the district court improperly declined to apply collateral estoppel to his behoof. We then survey a number of evidentiary issues and proceed from there to ponder an alleged discovery violation and the lower court's denial of Faigin's request to mount a rebuttal. We conclude by addressing the jury instructions.

A. The Entry of Summary Judgment.

Faigin asserts that the trial court erred in granting Carucci an exit visa under the aegis of Fed. R. Civ. P. 56. See, e.g., Garside v. Osco Drug, Inc., 895 F.2d 46, 48-49 (1st Cir. 1990) (explicating summary judgment standard). We explain briefly why we regard this assertion as moot.

In this diversity case, New Hampshire law supplies the substantive rules of decision. See Fitzgerald v. Expressway Sewerage Constr., Inc., 177 F.3d 71, 74 (1st Cir. 1999) ; Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148, 1151 (1st Cir. 1996). To prove defamation under New Hampshire law, a plaintiff ordinarily must establish that the "defendant failed to exercise reasonable care in publishing, without a valid privilege, a false and defamatory statement of fact about the plaintiff to a third party." Independent Mechanical Contractors, Inc. v. Gordon T. Burke & Sons, Inc., 635 A.2d 487, 492 (N.H. 1993), citing Restatement (Second) of Torts § 558 (1977). A statement is defamatory if "it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Restatement (Second) of Torts § 559 (1977). Consequently, a libel plaintiff customarily bears the burden of proving that the defendant (1) lacked due care (2) in publishing a false statement of fact (3) which was defamatory in nature.

Most rules admit of exceptions,...