Garrett v. Tandy Corporation, Civil No. 00-384-P-H (D. Me. 5/30/2003)

• Decision Date: 30 May 2003
• Docket Number: Civil No. 00-384-P-H.
• Parties: JOHN GARRETT, Plaintiff, v. TANDY CORPORATION d/b/a RADIOSHACK, Defendant.
• Court: U.S. District Court — District of Maine

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JOHN GARRETT, Plaintiff, v. TANDY CORPORATION d/b/a RADIOSHACK, Defendant.

Civil No. 00-384-P-H.

United States District Court, D. Maine.

May 30, 2003.

JEFFREY NEIL YOUNG, MCTEAGUE, HIGBEE, MACADAM, CASE, WATSON & COHEN TOPSHAM, ME., for JOHN GARRETT, Plaintiff.

MELINDA J. CATERINE, JONATHAN SHAPIRO, MOON, MOSS, MCGILL, HAYES & SHAPIRO, P.A., PORTLAND, ME., for TANDY CORPORATION, Defendant.

MEMORANDUM DECISION ON DEFENDANT'S MOTIONS TO STRIKE AND RECOMMENDED DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

DAVID M. COHEN, Magistrate Judge.

In the wake of a First Circuit remand, defendant Tandy Corporation d/b/a RadioShack ("Tandy") moves for summary judgment as to the two claims remaining against it in this action alleging that Tandy subjected plaintiff John Garrett to both racial discrimination and slander during and after a December 1998 shopping trip to a RadioShack store. See Defendant's Motion for Summary Judgment, etc. ("S/J Motion") (Docket No. 47) at 1; Garrett v. Tandy Corp., 295 F.3d 94, 96 (1st Cir. 2002).¹ In connection therewith, Tandy also moves to strike all or portions of three affidavits submitted by Garrett in opposition to summary judgment. See generally Defendant's Motion To Strike Affidavit of William Carter, Jr. ("Carter Motion") (Docket No. 69); Defendant's Motion To Strike Portions of the Affidavits of Jeffrey Neil Young and John Garrett ("Young/Garrett Motion") (Docket No. 70). For the reasons that follow, I grant Tandy's motion to strike the Carter affidavit, grant in part and deny in part its motion to strike portions of the Young and Garrett affidavits and recommend that its summary judgment motion be granted.

I. Summary Judgment Standards

Summary judgment is appropriate only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "In this regard, `material' means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant. By like token, `genuine' means that `the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party.'" Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir. 2001) (quoting McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)).

The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Nicolo v. Philip Morris, Inc., 201 F.3d 29, 33 (1st Cir. 2000). Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (citation and internal punctuation omitted); Fed.R.Civ.P. 56(e). "As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party." In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (citation and internal punctuation omitted).

II. Factual Context

A. Carter Motion

Tandy moves to strike, in its entirety, an affidavit of plaintiff's expert William M. Carter, Jr., on grounds that Carter is not qualified to offer the testimony in issue and that the testimony is, in any event, both unreliable and unhelpful to a trier of fact. See generally Carter Motion; Affidavit of William M. Carter, Jr. (Docket No. 62). I grant the motion, although on a different basis: that the affidavit is nowhere referenced in Garrett's statement of material facts. See generally Plaintiff's Opposition to Defendants' [sic] Statement of Material Facts and Plaintiff's Statement of Material Facts Not in Dispute ("Plaintiff's Opposing SMF") (Docket No. 56).² Hence, per Local Rule 56(e), it is not cognizable. See Loc.R. 56(e); see also, e.g., Pew v. Scopino, 161 F.R.D. 1, 1 (D.Me. 1995) ("The parties are bound by their [Local Rule 56] Statements of Fact and cannot challenge the court's summary judgment decision based on facts not properly presented therein."). Moreover, even assuming arguendo that the affidavit were cognizable, its inclusion would not be outcome-determinative.³

B. Young/Garrett Motion

Tandy also moves to strike portions of the affidavits of plaintiff Garrett and his attorney, Jeffrey Neil Young. See generally Young/Garrett Motion; Affidavit of Jeffrey Neil Young in Support of Plaintiff's Response to Defendant's Statement of Material Facts ("Young Aff."), Tab 3 to Plaintiff's Opposing SMF; Affidavit of John Garrett ("Garrett Aff."), Tab 1 to Plaintiff's Opposing SMF. With respect to this motion, I rule as follows:

1. Paragraph 3 of Young Aff.: Overruled. Although, as discussed below, I agree with Tandy that the Maine Human Rights Commission ("MHRC") finding issued in this case lacks probative value, I have found it necessary to take it into consideration for purposes of summary judgment analysis — a context in which there is no danger of unfair prejudice to the defendant or confusion on the part of a jury.

2. Paragraph 4 of Young Aff.: Sustained. Garrett offers a newspaper article publicizing the MHRC decision in his case as evidence that he suffered reputational harm by virtue of Tandy's allegedly defamatory statements. See Young Aff. ¶ 4 & Exh. B thereto; Plaintiff's Opposition to Defendant's Motion To Strike Portions of the Affidavits of Jeffrey Neil Young and John Garrett (Docket No. 73) at 3-4; Plaintiff's Opposing SMF ¶ 31. However, there is no evidence that Tandy had anything to do with the article in question, which purports to report, inter alia, Garrett's own comments. See Exh. B to Young Aff. Under Maine law, a plaintiff may not be compensated for damages flowing from voluntary self-publication of allegedly defamatory statements. See, e.g., Carey v. Mt. Desert Island Hosp., 910 F. Supp. 7, 11-12 (D.Me. 1995) (applying Maine law); Farrell v. Kramer, 159 Me. 387, 390-91 (1963).

Concededly, Garrett himself may not have responsible for the entire content of this article, and courts have recognized liability for damages flowing from foreseeable republication (apart from voluntary self-publication). See, e.g., Carey, 910 F. Supp. at 12 & n. 5; Oberman v. Dun & Bradstreet, Inc., 586 F.2d 1173, 1175 (7th Cir. 1978) (noting that "in many jurisdictions, the author of a libelous statement may be held liable for a republication that is a natural and probable consequence of the original publication") (citations and internal quotation marks omitted). However, Garrett neither argues, nor is it clear to me, that the republication in question (describing the MHRC ruling) fairly can be described as the natural and probable consequence of Tandy's original report to the police.

3. Paragraph 7 of Young Aff.; Paragraph 3 of Garrett Aff.: Sustained. The web-page printouts to which Young and Garrett refer constitute inadmissible hearsay inasmuch as they are offered for the truth of the matter contained therein and fit no discernible hearsay exception.

B. Factual Background

Taking into account the above disposition of Tandy's motions to strike, the parties' statements of material facts, credited to the extent either admitted or supported by record citations in accordance with Local Rule 56 and viewed in the light most favorable to Garrett as the non-moving party, reveal the following relevant to this recommended decision:

Garrett is a black male. Plaintiff's Additional SMF ¶ 1; Defendant RadioShack Corporation's Opposition to Plaintiff's Statement of Material Facts ("Defendant's Reply SMF/Additional") (Docket No. 67) ¶ 1. On December 21, 1998, unaccompanied by anyone else, Garrett visited RadioShack's Cook's Corner store in Brunswick, Maine in the hope of purchasing a police scanner and a telephone answering machine. Id. ¶ 2.⁴

Upon entering the store, Garrett was immediately greeted by store clerk Adam Rinko. Id. ¶ 3. While Garrett was in the store two other employees were working there: store manager Steven Richard and another unidentified store clerk. Id. Garrett was within sight of the store clerks and manager at all times. Id. While Garrett was in the store, several other patrons were shopping there. Id. ¶ 4.⁵ It was Christmas season, and the store was busy. Defendant RadioShack Corporation's Statement of Material Facts in Support of Motion for Summary Judgment ("Defendant's SMF") (Docket No. 43) ¶ 3; Plaintiff's Opposing SMF ¶ 3. Garrett was the only black individual in the store. Plaintiff's Additional SMF ¶ 4; Deposition of John Garrett ("Garrett Dep."), attached to Defendant's SMF, at 54-55.⁶

Rinko accompanied Garrett throughout his fifteen- to thirty-minute visit to the store. Plaintiff's Additional SMF ¶ 5; Defendant's Reply SMF/Additional ¶ 5.⁷ Garrett considered it unusual that Rinko did not attempt to assist any other customers. Plaintiff's Additional SMF ¶ 6; Garrett Dep. at 57. Although Garrett did not see other customers asking questions, he could hear them asking questions. Plaintiff's Additional SMF ¶ 7; Defendant's Reply SMF/Additional ¶ 7.⁸

Prior to Garrett's visit to the store, he had learned that the manufacturer had discontinued making a Pro-64 police scanner model. Id. ¶ 8. He believed that RadioShack discounted discontinued models and went there hoping to purchase the scanner to replace a broken model he had at home. Id. ¶ 9. He asked Rinko if the store had the model in stock. Id. ¶ 10. Rinko said he knew nothing about it and asked Richard. Id....