Rice v. Comtek Mfg. of Oregon, Inc.

• Decision Date: 12 November 1990
• Docket Number: Civ. No. 89-1198-JU.
• Citation: 766 F. Supp. 1550
• Parties: La Vonne RICE, Plaintiff, v. COMTEK MANUFACTURING OF OREGON, INC., an Oregon corporation, and Tektronix, Inc., an Oregon corporation, Defendants.
• Court: U.S. District Court — District of Oregon

766 F. Supp. 1550

La Vonne RICE, Plaintiff, v. COMTEK MANUFACTURING OF OREGON, INC., an Oregon corporation, and Tektronix, Inc., an Oregon corporation, Defendants.

Civ. No. 89-1198-JU.

United States District Court, D. Oregon.

November 12, 1990.

Richard C. Busse, Donald B. Potter, Portland, Or., for plaintiff.

Charles F. Hinkle, Glenn J. Hovemann, Portland, Or., for defendants.

ORDER

REDDEN, Chief Judge:

Pursuant to 28 U.S.C. § 636(b)(1)(A) and Fed.R.Civ.P. 72(a), Judge Juba ruled on plaintiff La Vonne Rice's motion to amend. Plaintiff has requested a review of that ruling. "Pretrial orders of a magistrate under § 636(b)(1)(A) are reviewable under the `clearly erroneous and contrary to law' standard; they are not subject to de novo determination as are a magistrate's proposed findings and recommendations under section 636(b)(1)(B)." Merritt v. International Bro. of Boilermakers, 649 F.2d 1013, 1017 (5th Cir.1981) (per curiam). Accord U.S. v. Saunders, 641 F.2d 659, 663-64, n. 1 (9th Cir.1980), cert. denied 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981).

Plaintiff asserts that Judge Juba's Order denying plaintiff's motion to amend "is analogous to a decision dismissing a complaint for failure to state a claim for relief and therefore under 28 U.S.C. § 636 it instead should be treated as Findings and Recommendation." Plaintiff's Objections to Magistrate's Ruling Brief, p. 1. Motions for leave to amend a complaint are treated as nondispositive motions under § 636(b)(1)(A). U.S. Dominator v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1102 n. 1 (9th Cir.1985). Section 636(b)(1)(A) provides that "a judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate's order is clearly erroneous or contrary to law." Plaintiff's motion to amend is a pretrial motion, nondispositive in nature, to be scrutinized under the clearly erroneous or contrary to law standard of review.

Plaintiff has not demonstrated that Judge Juba's Order was clearly erroneous or contrary to law. Accordingly, I affirm.

IT IS SO ORDERED.

ORDER

GEORGE E. JUBA, United States Magistrate:

INTRODUCTION

I recently recommended granting the motion for summary judgment of defendants Tektronix, Inc., and Comtek Manufacturing of Oregon, Inc., against plaintiff's only remaining claims, wrongful discharge and negligent termination. Findings and Recommendation (Aug. 15, 1990) (docket # 49). Earlier I recommended granting defendants' motion to dismiss plaintiff's five other claims. Findings and Recommendation (March 6, 1990) (docket # 17), adopted Order (Mar. 27, 1990) (Redden, J.) (docket # 20). Plaintiff's original complaint had no meritorious claims. Now plaintiff La Vonne Rice moves to amend. Fed.R.Civ.P. 15.

STANDARDS

Rule 15 provides, in part, as follows:

A party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

Fed.R.Civ.P. 15(a).

Whether to grant or deny a motion to amend pleadings is a matter of the court's discretion. Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 765 (9th Cir. 1986). There is a strong policy favoring amendment. Howey v. United States, 481 F.2d 1187, 1190 (9th Cir.1973). The court should consider the following factors on a motion to amend pleadings: 1) undue delay, 2) bad faith, 3) prejudice to the opponent, and 4) futility of the amendment. Gabrielson, 785 F.2d at 766. Leave to amend may be denied "when the moving party knew about the facts on which the proposed amendment was based but omitted the necessary allegations from the original pleading." 6 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1488 at 688 (2d ed. 1990).

DISCUSSION

1. First and Second Claims

These claims are for wrongful discharge and negligent termination. They are the same as those in the original complaint. I recently recommended granting summary judgment against these claims. F & R (Aug. 15, 1990) (docket # 49). It would cause undue delay and be futile to allow plaintiff to replead these claims now. Gabrielson, 785 F.2d at 766.

2. Third Claim

This claim is for defamation and slander. Plaintiff alleges Gale Kingsbury, Comtek's President and CEO, told plaintiff he was being fired for "dealing in drugs." Kingsbury made this statement before Rena Mackie, Comtek's human resources director. The next day, Kingsbury allegedly told other Comtek employees he had fired plaintiff for "cause" based on "sufficient information."

Plaintiff knew of these statements in February 1989. He waited until July 1990 to plead them for the first time, months after his original defamation claim had been dismissed. Plaintiff may not plead another defamation claim. Federal Practice and Procedure § 1488 at 688. Furthermore, there are numerous other reasons not to allow plaintiff to amend his complaint with a defamation clause.

A. Kingsbury's "Dealing in Drugs" Statement

Plaintiff failed to show defendant Comtek published any defamatory statements. Publication is an essential element of the tort of defamation. See State ex rel. Advanced Dictating Supply, Inc. v. Dale, 269 Or. 242, 247, 524 P.2d 1404 (1974). Plaintiff alleges Kingsbury's statement to him and Mackie was a publication. Kingsbury and Mackie were Comtek's employees acting within the scope of their duties as president/CEO and human resources director. While there is no controlling Oregon case, and other jurisdictions are split, the majority view holds that "statements made by one corporate employee during the performance of his duties within the hearing only of other corporate employees does not constitute publication." Messina v. Kroblin Transp. Sys., Inc., 903 F.2d 1306, 1309 (10th Cir.1990) (Okla. law); see also Jones v. Golden Spike Corp., 97 Nev. 24, 623 P.2d 970, 971 (1981) (citing cases and calling this majority rule).

This rule makes perfect sense here. Plaintiff is not attempting to place liability on the executive who made the statement. He is trying to punish a corporation because one executive spoke to another regarding matters within the scope of their employment. There is no publication by the corporation because it "cannot be held liable solely on the basis of its alleged defamatory communications to itself." Nelson v. Lapeyrouse Grain Corp., 534 So.2d 1085, 1094 (Ala.1988).

Finally, a qualified privilege protected Kingsbury's statement. Wattenburg v. United Medical Laboratories, 269 Or. 377, 380, 525 P.2d 113 (1974).

A statement is conditionally privileged if: (1) it was made to protect the interests of the defendants; (2) it was made to protect the interests of plaintiff's employer; or (3) it was on a subject of mutual concern to defendants and the persons to whom the statement was made.

Id. Kingsbury had been briefed on plaintiff since problems were first perceived with his behavior at the work place. Mackie consulted with Kingsbury regarding plaintiff's employment future with defendant. Kingsbury fired plaintiff after those consultations. Kingsbury made his statement to protect Comtek's interests as plaintiff's employer. The statement was on a subject of mutual concern to the president/CEO and the director of human resources. I conclude Kingsbury's statement was privileged. Id.

Defendants can be subject to liability only if they "abused the occasion which gave rise to the privilege." Benassi v. Georgia-Pacific, 62 Or.App. 698, 703, 662 P.2d 760, modified 63 Or.App. 672, 667 P.2d 532, rev. denied, 295 Or. 730, 670 P.2d 1035 (1983). The publisher abused the occasion if he 1) lacked reasonable grounds for believing the truth of the defamatory matter, 2) his publication was not made for a privileged purpose, 3) he published to someone unrelated to achieving the purpose of the particular privilege, or 4) his publication included matter unnecessary to achieve the purpose of the particular privilege. Id. (quoting Schafroth v. Baker, 276 Or. 39, 45, 553 P.2d 1046 (1976)). Plaintiff failed to show any of these exceptions to the privilege apply here.

B. Kingsbury's "Cause" and "Sufficient Information" Statements

Kingsbury's statements to other Comtek employees besides Mackie are also inactionable. As with the prior statement alleged, there was no "publication" because this statement was made to other Comtek employees. Messina, 903 F.2d at 1309 (no publication when statement made by supervisor to fellow employees). Even if the statements were published, they were privileged under the Wattenburg, Schafroth, and Benassi rules because they were made to plaintiff's former co-workers in an attempt to explain his termination.

In addition, the "cause" and "sufficient information" statements alleged are not capable of defamatory meaning. An at-will employee may be terminated "for any reason." Sheets v. Knight, 308 Or. 220, 223, 779 P.2d 1000 (1989). Plaintiff alleges the "innuendo" of Kingsbury's statements was that "plaintiff was a drug dealer." Proposed Amended Complaint at para. 15. Innuendo, however, cannot "establish a new charge or enlarge or charge the previous words." Marr v. Putnam, 196 Or. 1, 23, 246 P.2d 509 (1952). Plaintiff did not plead a viable claim for defamation, so allowing amended claim three would be futile.

C. Plaintiff's Response

Plaintiff contends defendants must plead the qualified privilege as a qualified defense. Viewing the simple facts of this action, such a requirement would be futile because defendants could move for and obtain dismissal or summary judgment on this claim.

Plaintiff also contends the matter of the privilege and intracorporate publication are best resolved in a Rule 21 motion. Plaintiff has made frequent references to Rule 21. Plaintiff forgets, however, that he has made a federal case out of his termination. Federal Rule of Civil Procedure 21 refers to misjoinder and is irrelevant here.

3. Fourth Claim

Plaintiff also alleges defendants' three confidential...