Henderson v. Food Lion, Inc., s. 90-2048
| Decision Date | 07 January 1991 |
| Docket Number | Nos. 90-2048,90-2076,s. 90-2048 |
| Citation | 922 F.2d 835 |
| Parties | Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Glada M. HENDERSON, Plaintiff-Appellant, v. FOOD LION, INC., Defendant-Appellee. Glada M. HENDERSON, Plaintiff-Appellant, v. FOOD LION, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. J. Calvitt Clarke, Jr., District Judge. (CA-89-687-N)
Robert Vincent Roussos, Roussos & Ford, Norfolk, Va., for appellant.
Robert William McFarland, McGuire, Woods, Battle & Boothe, Norfolk, Va., for appellee.
E.D.Va.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Before PHILLIPS, Circuit Judge, BUTZNER, Senior Circuit Judge, and HIRAM H. WARD, Senior United States District Judge for the Middle District of North Carolina, sitting by designation.
Glada Henderson appeals the dismissal by summary judgment of her state law claims against Food Lion, Inc. for defamation and intentional infliction of emotional distress by Food Lion employees. We affirm dismissal of the intentional infliction of emotional distress claim, but reverse dismissal of the defamation claim and remand that claim for further proceedings.
This case arises from an incident of mistaken identity and its unfortunate consequences. 1 Glada Henderson was standing in a check-out line in a Food Lion store where she was approached by Art Cash, a Food Lion security guard. The guard thought that he recognized her as a woman who earlier had been barred from the store for changing the marked prices on merchandise. Having checked with the store manager, the guard approached Henderson in the check-out line to accost her with his belief. He said to her, "Don't you remember the talk we had?" When Henderson denied ever talking to him, he said, "You do too remember," and asked her to step away from the line. Before she stepped away, Cash said to her that she was the woman who had "signed a paper not to come back in [the store] anymore." When Henderson denied this and asked to see any paper she had signed, Cash twice remarked "now you want to do it the hard way." When asked what this meant, he responded, "Go downtown."
Cash then escorted Henderson away from the check-out line and took her to Michael Warren, a store manager who, for the first time, asked her name. When she gave her name as Glada Henderson, the manager indicated some disbelief, observing that if Henderson wasn't "the one," then she "had a twin." Following this discussion, Henderson was allowed to leave the store.
Some time later store manager Warren called Henderson, conceded that there had been a mistake in identifying her as the woman earlier barred from the store, and apologized.
Henderson then brought this action in Virginia state court, alleging state law claims of defamation and intentional infliction of emotional distress arising from the conduct of Cash and Warren. Food Lion removed the case to federal district court on diversity grounds and, following discovery, moved for summary judgment. Based on the pleadings and discovery materials, the district court granted summary judgment as to both claims.
On the defamation claim, the court concluded that as a matter of law there had been no showing of publication to any third party of any allegedly defamatory speech by Food Lion employees. The court also declined to find a properly pleaded claim under Virginia's "insulting words" statute, Va.Code Sec. 8.01-45 (Michie 1984), despite Henderson's suggestion that the complaint should be so construed, or, later, that she should be allowed to amend to make the claim explicit.
As to the intentional infliction of emotional distress claim, the court concluded that as a matter of law on the summary judgment record, none of the Food Lion employees' conduct as described by Henderson rose to the level of outrageousness required to establish such a claim under Virginia law.
This appeal followed.
We first consider Henderson's contention that the district court erred in dismissing by summary judgment her defamation claim.
This contention has two prongs. The first is that Henderson's complaint should be construed, as pleaded, to state a claim under Virginia's "insulting words" statute, in addition to a common law claim for defamation by slander. Because an insulting words claim does not require publication, but only the utterance to a plaintiff of words having a sufficiently "insulting" quality, any failure to raise an issue of publication is immaterial. See Carwile v. Richmond Newspapers, 82 S.E.2d 588, 591 (Va.1954) ().
The other prong of the contention is that, contrary to the court's conclusion, there were genuine issues of material fact as to whether publication had occurred, making it also error to have dismissed her claim if considered as embracing only slander.
We consider these in turn, and agree with Henderson on both points.
As indicated, Henderson argued at the summary judgment hearing that her complaint should be construed to embrace a statutory "insulting words" claim as well as a common law defamation by slander claim, thereby saving that particular defamation claim from dismissal for want of a sufficient showing of publication.
The district court rejected this argument, relying on an old line of Virginia cases which apparently required that to proceed on both these "defamation" claims, they must be separately and specifically pleaded. See, e.g., Sun Life Assurance Co. v. Bailey, 44 S.E. 692 (Va.1903).
Henderson later made another effort to save this claim by moving conditionally, in conjunction with a motion to reconsider the grant of summary judgment, for leave to amend specifically to plead the "insulting words" claim. The district court declined to permit an amendment, but specifically noted that the dismissal was "without prejudice" as to any claim under the insulting words statute.
We conclude that the district court erred in declining either to treat Henderson's defamation claim as one which, as pleaded, sufficiently stated an insulting words cause of action, or to permit an amendment to state such a claim if that was thought necessary. The primary error, and one which might well be dispositive, was the court's perception that the complaint should be construed under state pleading requirements. Instead, as the court seemed at times to recognize, once the action was removed, the complaint should have been construed, whether for sufficiency or other purposes, under the liberal notice pleading requirements of the federal rules. See Fed.R.Civ.P. 81(c). Under those requirements, it is almost certain that the complaint should have been construed as alleging claims both of common law slander and of "insult" under Virginia law. See id. 8(a), (e)(2). Under such a construction, the insulting words claim was not subject to dismissal on the ground relied upon by the district court--want of publication. An amendment to the complaint, though it might have been required by the court following removal if thought helpful, see id. 81(c) (), probably was not necessary to save the claim from dismissal.
Though probably not necessary to save the claim as pleaded, once Henderson expressly sought leave to "replead" in order to allege the claim specifically, leave certainly should have been granted. At this early stage in the litigation, no possible prejudice could have resulted to the defendant from the allowance of such an amendment; under the circumstances it would have been only a technical one that added no factual element to the defamation by slander claim of which the defendant obviously was already on plain notice. See id. 15(a); Ward Electronics Serv. v. First Commercial Bank, 819 F.2d 496 (4th Cir.1987). Indeed, the court seemed to recognize that fairness dictated a dismissal which would leave Henderson free to prosecute such a claim in another action. 2
At this point, nothing is to be gained by our requiring such a purely technical amendment to accomplish the end result to which Henderson is entitled. Instead, we will simply hold that the complaint should upon remand be considered to have stated a claim under Virginia's insulting words statute in addition to a claim for defamation by slander.
As indicated, the district court dismissed Henderson's defamation claim, construed as embracing only slander, on the basis that, assuming the defamatory nature of the employees' speech, there was no showing of its publication to a third party. See The Gazette, Inc. v. Harris, 325 S.E.2d 713, 720 n. 1 (Va.1985) (). We agree with Henderson that summary judgment as to the slander claim was not warranted on this basis, because there were genuine issues of material fact respecting whether publication had occurred.
We note preliminarily that the district court's dismissal by summary judgment on this basis was probably caused in large part by Henderson's counsel's failure properly to respond to Food Lion's motion for summary judgment. Food Lion supported its motion by appending selected portions of Henderson's deposition which tended to suggest that no one but Cash and Warren overheard any of the allegedly defamatory statements made by either. In particular, Food Lion appended and relied upon a portion in which Henderson described her concluding conversation with Warren in Cash's presence. Asked whether anyone was then "around" besides the two employees, Henderson responded only that "[p]eople was walking by shopping." J.A. at 82....
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Cook v. Nationwide Ins. Co.
...removed, the complaint should be construed under the liberal pleading requirements of the Federal Rules. Henderson v. Food Lion, Inc., 922 F.2d 835, 1991 WL 644 at *2 (4th Cir.1991); see also Frank B. Hall Co., Inc. v. Rushmore Ins. Co., Ltd., 92 F.R.D. 743, 745 (S.D.N.Y.1981) (“After remov......
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Cook v. Nationwide Ins. Co.
...removed, the complaint should be construed under the liberal pleading requirements of the Federal Rules. Henderson v. Food Lion, Inc., 922 F.2d 835, 1991 WL 644 at *2 (4th Cir. 1991); see also Frank B. Hall Co., Inc. v. Rushmore Ins. Co., Ltd., 92 F.R.D. 743, 745 (S.D.N.Y. 1981) ("After rem......