McDonald v. Jane Lowe Davis, Innovative Commc'n Corp.
| Decision Date | 05 March 2009 |
| Docket Number | Civil No. 2004–93. |
| Citation | 51 V.I. 573 |
| Parties | Timothy McDONALD, Plaintiff, v. Jane Lowe DAVIS, Innovative Communication Corporation, The Daily News Publishing Company, Inc., and Jason Robbins, Defendants. |
| Court | U.S. District Court — Virgin Islands |
OPINION TEXT STARTS HERE
Lee J. Rohn, Esq. St. Croix, U.S.V.I., for plaintiff.
Kevin A. Rames, Esq. St. Croix, U.S.V.I., for defendants.
Before the Court is the motion of the defendants, Jane Lowe Davis, The Daily News Publishing Company and Jason Robbins (together, the “Defendants”), for summary judgment against the plaintiff, Timothy McDonald (“McDonald”). 1
The Daily News Publishing Company is a Virgin Islands corporation that publishes The Virgin Islands Daily News (“The Daily News”), a newspaper distributed throughout the U.S. Virgin Islands. At all times relevant, Jane Lowe Davis (“Davis”) and Jason Robbins (“Robbins”) were employed at The Daily News. Davis was the executive editor and Robbins was the deputy executive editor.2 McDonald is a news reporter with several years of journalism experience.
On April 1, 2003, Davis sent McDonald a letter, offering him employment as a reporter at The Daily News at a yearly salary of $37,500, plus $3,000 in moving expenses. McDonald accepted and moved to the Virgin Islands from Florida. His two-year term commenced on April 21, 2003. Over the next several months of his employment, McDonald reported on a number of stories for The Daily News.
In late November 2003, McDonald traveled from the Virgin Islands to Florida to address a family matter. On returning to the Virgin Islands several days later, he was summoned by Davis and Robbins to discuss his absence from work. After that meeting, McDonald went home and did not thereafter return to work. That day—in early December 2003—was his last at The Daily News.
This ten-count action followed. McDonald asserts the following claims: misrepresentation; breach of contract; constructive and wrongful discharge; defamation; assault; fraud; intentional and negligent infliction of emotional distress; and abuse of process. He also alleges violations of the federal and local Fair Labor Standards Act and has asserted a punitive damages claim.
The Defendants now seek summary judgment against McDonald on all ten counts in the complaint.3 McDonald has filed an untimely opposition.4
On February 17, 2009, the Court held a final pretrial conference with the parties. McDonald thereafter moved to amend his complaint to assert a constructive discharge claim and a wrongful discharge claim.
After reviewing the record, the Court determined that the second amended complaint, liberally construed, already asserts both a constructive discharge claim and a wrongful discharge claim. Accordingly, the Court denied McDonald's motion to amend.
The Court held another conference with the parties on February 24, 2009. At that conference, the Court ordered the Defendants to file any additional dispositive motions by February 27, 2009 and McDonald to respond to any such motions by March 2, 2009.
The Defendants have timely filed a supplemental dispositive motion. McDonald has filed a response to that motion.5
The Court will address both the original motion and the supplemental motion in this Opinion.
Summary judgment is appropriate if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Hersh v. Allen Products Co., 789 F.2d 230, 232 (3d Cir.1986).
The movant has the initial burden of showing there is no genuine issue of material fact, but once this burden is met it shifts to the non-moving party to establish specific facts showing there is a genuine issue for trial. Gans v. Mundy, 762 F.2d 338, 342 (3d Cir.1985). The non-moving party “may not rest upon mere allegations, general denials, or ... vague statements....” Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir.1991). “[T]here is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
“[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id . In making this determination, this Court draws all reasonable inferences in favor of the non-moving party. See Bd. of Educ. v. Earls, 536 U.S. 822, 850, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002); see also Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir.1994).
In Counts One and Six, McDonald asserts a misrepresentation claim 6 and a fraud claim, respectively. He alleges that the Defendants' false statements about the reputation of The Daily News and the nature of his position induced him to accept employment as a reporter. Specifically, he claims that the Defendants knowingly misrepresented that The Daily News was “the best small newspaper in America.” (Second Am. Compl. ¶ 8.) He further claims that the Defendants falsely represented that he would be hired as a “Sailing/Marine and Sportswriter[,]” (id. ¶ 10), when in fact he was assigned to cover relatively few nautical sporting events.
To prevail on a claim for intentional misrepresentation, a plaintiff must show: (1) that the defendant made a representation of a material fact; (2) knowing the representation to be false when it was made; (3) with the intent that the plaintiff would act on the statement; and that (4) the plaintiff reasonably relied upon the statement; (5) to his detriment. In re Tutu Water Wells Contamination Litig., 32 F.Supp.2d 800, 805 (D.Vi.1998) (citation omitted). Similarly, a plaintiff may succeed on a common law fraud claim by proving “(1) a false representation of material fact, (2) the defendant's intent that the statement be acted upon, (3) reliance upon such a statement by the persons claiming to have been deceived, and (4) damages.” Charleswell v. Chase Manhattan Bank, N.A., 308 F.Supp.2d 545, 568–69 (D.Vi.2004) (citations omitted).
The Defendants argue that the claims asserted in Counts One and Six are unsupported by any evidence in the record. They rely on email correspondence between McDonald and Davis in the months preceding McDonald's employment. In one such email, Davis wrote to McDonald, in part:
We are very interested in discussing the Sports position with you.... We also want you to carefully consider ... working for a hard-driving, high-production small daily ... and reporting such things as Biddy League basketball, adult recreation and other sports events in addition to the boating and marine events and other top-notch sports. Our bread-and-butter coverage is the minor stuff.
(Defs.' Mem. in Support of Mot. for Summ. J., Exh. 4, at 2) (emphasis supplied).
In response to that email, McDonald replied, in pertinent part:
The job sounds terrific. I don't mind covering the “ minor ” sports. I enjoy it. One of the reasons I switched from sports a few years back is I got tired of the pack mentality of Super Bowls, World Series, NBA Finals, etc. I've always thought one of the duties of a community paper is to get as many names in there as possible.
( Id. at 1) (emphasis supplied).
This correspondence leaves little doubt that the Defendants clearly informed McDonald of the panoply of topics he would be asked to cover if he were employed as a Daily News reporter. Those topics unequivocally encompass high-level, professional sporting events and low-profile, amateur sporting events. The parties' correspondence further demonstrates that McDonald, when apprised of this job description, enthusiastically responded that it appealed to him and that he enjoyed covering non-professional sporting events that he himself described as “minor.” Based on this evidence, the Court finds that the Defendants have met their initial summary judgment burden of showing the absence of a false representation. The burden of persuasion thus shifts to McDonald to show the existence of some genuine issue of material fact.
In an effort to meet his burden, McDonald first relies on a job advertisement that The Daily News posted on a website. That posting states:
The Virgin Islands Daily News, a Pulitzer–Prize winning newspaper, seeks a sports reporter/editor with experience in covering sailing, boating, deep-sea fishing plus scholastic and recreation league sports.
(Pl.'s Opp'n to Defs.' Mot. for Summ. J., Exh. 1 at 1.)
McDonald responded to The Daily News' posting by applying for a position via email on February 24, 2003. In that email, McDonald wrote:
Please consider this application for your sailing/marine and sports writer opening.... I started my career as a sportswriter, and I've reported on and written extensively about world-class sailing, deep-sea fishing and recreational boating.
( Id., Exh. 5 at 1.)
Several weeks after McDonald sent the above email, he received the email from Davis, partially reproduced above, in which Davis expressed an interest in discussing the position with him.
Significantly, none of the evidence on which McDonald relies demonstrates that the Defendants misrepresented any material fact about McDonald's duties and responsibilities as a reporter. The Daily News' job posting did not state any fact whatever other than the newspaper's interest in hiring a candidate who corresponded to the posting's description. See, e.g., Chambliss v. GMC, 108 F.3d 1176, 1181–82 (9th Cir.1997) (). Likewise, in her email to McDonald, Davis expressed her interest in discussing the possibility of...
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