Shepard v. Courtoise

• Decision Date: 29 August 2000
• Docket Number: No. 4:99 CV 559 DDN.,4:99 CV 559 DDN.
• Parties: Dave SHEPARD, Plaintiff, v. Willis COURTOISE, et al., Defendant.
• Court: U.S. District Court — Eastern District of Missouri

115 F.Supp.2d 1142

Dave SHEPARD, Plaintiff, v. Willis COURTOISE, et al., Defendant.

No. 4:99 CV 559 DDN.

United States District Court, E.D. Missouri, Eastern Division.

August 29, 2000.

COPYRIGHT MATERIAL OMITTED

Ferne P. Wolf, D. Eric Sowers, Sowers and Wolf, LLC, St. Louis, MO, for Dave Shepard, plaintiffs.

Gerald Kretmar, Partner, Appleton and Kretmar, St. Louis, MO, for Willis Courtoise, Intl Union, United Auto, Aerospace and Agricultural Implement Workers, Local 325 International Union of United Auto Workers of America, defendants.

MEMORANDUM

NOCE, United States Magistrate Judge.

This matter is before the court upon defendants' motion for summary judgment (Doc. No. 43), defendants' motion to strike plaintiff's additional statement of uncontroverted facts (Doc. No. 47) and plaintiff's motion to strike affidavits submitted by defendants with their reply memorandum in connection with their motion for summary judgment (Doc. No. 49). A hearing on defendants' summary judgment motion was held July 14, 2000. The parties have consented to the exercise of jurisdiction by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

Plaintiff Dave Shepard, employed by Ford Motor Co. as a supervisor, originally brought this libel action in the Circuit Court of St. Louis County against defendants Willis Courtoise; the International Union, United Auto, Aerospace and Agricultural Implement Workers (International Union); and Local 325 of the International Union of United Auto Workers of America (Local 325). Defendants removed the action to this court. Plaintiff alleged that defendant Courtoise, president of Local 325, published a document containing false and defamatory characterizations of plaintiff.

Defendants moved for summary judgment, arguing that since the statements were made in the context of a labor dispute, plaintiff must prove actual malice and plaintiff cannot do so. Defendant also argues that the statements were opinions and, as such, are privileged under the First Amendment and do not constitute actionable defamation. Defendants finally argue that there is no basis for liability as to the International Union¹ and that there is no basis for defendant Courtoise to be held personally liable.

Plaintiff argues that defendant Courtoise is subject to personal liability, that defendant Courtoise's statements are not protected by the First Amendment and that the statements were false and made with actual malice. Plaintiff further argues that whether the statements were made with knowledge of their falsity or with reckless disregard for the truth is for the jury to decide.

The court will first address the parties' additional motions, which pertain to defendants' motion for summary judgment.

A. Defendants' Motion to Strike Plaintiff's Statement of Uncontroverted Facts

Defendants argue that the court should strike plaintiff's additional statement of uncontroverted facts. Plaintiff argues that he was complying with Rule 56, which "obligates the nonmoving party to `set forth specific facts showing that there is a genuine issue for trial.'" Pl. Mem. in Opp., filed July 14, 2000 (Doc. No. 50), at 1 (quoting Fed.R.Civ.P. 56(e)).

Local Rule 7-4.01 provides as follows:

(E) A memorandum in support of a motion for summary judgment shall have attached a statement of uncontroverted material facts, set forth in a separately numbered paragraph for each fact, indicating whether each fact is established by the record, and, if so, the appropriate citations. Every memorandum in opposition shall include a statement of material facts as to which the party contends a genuine issue exists. Those matters in dispute shall be set forth with specific references to portions of the record, where available, upon which the opposing party relies. The opposing party also shall note for all disputed facts the paragraph number from movant's listing of facts....

L.R. 7-4.01(E). The court finds nothing in the rule to prohibit plaintiff from submitting the statement of facts that he did. The court determines that plaintiff was attempting to demonstrate his belief that there are genuine issues of material fact for trial and agrees with plaintiff that the rule does not dictate a title or caption for the nonmoving party's submission.

Defendants' motion to strike plaintiff's response to defendant's statement of uncontroverted facts and plaintiff's additional statement of uncontroverted facts is denied.

B. Plaintiff's Motion to Strike Affidavits Submitted by Defendants with Reply Memorandum

Plaintiff argues that this court should strike the affidavits that defendants submitted with their reply memorandum in connection with their motion for summary judgment. Specifically, plaintiff requests that the court strike the Affidavits of Kenneth Rodgers, Joyce Smith, Donna Faerber, Kenny Bristol, Roger Anderson and James Ingram.

The court has considered the arguments of plaintiff and defendants and will deny plaintiff's motion to strike the affidavits attached to defendants' reply memorandum. The court agrees with defendants that they are permitted to reply to plaintiff's allegations that Courtoise lied when registering complaints about Shepard to Ford officials Kilbane and Spann. Furthermore, the court has reviewed defendants' Rule 26 Initial Disclosures and finds them adequate. See Def. Resp., filed July 17, 2000 (Doc. No. 51), at Exh. 1. Plaintiff should have raised the issue before if he felt the Rule 26 disclosures were not adequate.

Plaintiff's motion to strike affidavits submitted by defendants in their reply memorandum is denied.

C. Defendants' Motion for Summary Judgment

The court must grant defendants' motion for summary judgment if the pleadings, admissions, stipulations, depositions and affidavits demonstrate that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 863, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982). The moving party must initially demonstrate the absence of an issue for trial. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Any doubt as to the existence of a material fact must be resolved in favor of the party opposing the motion. Pico, 457 U.S. at 863, 102 S.Ct. 2799.

Once a motion is properly made and supported, the non-moving party may not rest upon the allegations in the pleadings but must instead set forth evidence of specific facts showing that there is a genuine issue of material fact for trial. Fed. R.Civ.P. 56(e); Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir.1984). Although the court views the facts in the light most favorable to the non-moving party, "in order to defeat a motion for summary judgment, the non-movant cannot simply create a factual dispute; rather, there must be genuine dispute over those facts that could actually affect the outcome of the lawsuit." Webb v. Lawrence County, 144 F.3d 1131, 1135 (8th Cir.1998).

The allegedly defamatory statements at issue in this case are as follows:

a. That [supervisors] "will pretend to be your friend and turn around and abuse — misuse — and literally screw you to death;"

b. That plaintiff is "the most useless individual I ever saw;"

c. "Out of all my years in this plant, I have never known a superintendent to mistreat employees — to abuse employees like Dave Shepard;"

d. "I have had so many conversations with management over Dave Shepard and still this stupid individual continues to abuse employees." and

e. That plaintiff "is a sarcastic, cocky, arrogant human being and I am tired of him, and so are the employees."

Def. Exh. 2, at 2 (quoting, Def.Exh. 3).

For the reasons discussed below, the court concludes that defendants are entitled to summary judgment as to statements (a), (b) and (e). However, the court further concludes that defendants are not entitled to summary judgment as to statements (c) and (d).

This court has already ruled that the statements were made in the context of a labor dispute. See Memorandum and Order, filed Dec. 3, 1999 (Doc. No. 29), at 5. As such, plaintiff's entitlement to state remedies is limited to situations where he can show that the defamatory statements were made with malice and caused him damage. Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 64-65, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966). The court in Linn adopted "by analogy" the same malice standard as defined in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).² Id. at 65, 86 S.Ct. 657.

However, before the court can apply the malice standard, it must first determine whether defendant made a false statement of fact. Beverly Hills Foodland, Inc. v. United Food and Commercial Workers Union, Local 655, 39 F.3d 191, 195 (8th Cir.1994); see also, Milkovich v. Lorain Journal Co. et al., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (court rejected the idea of creating a fact/opinion dichotomy; nevertheless a claimant still must prove a statement false before there can be liability under the malice standard). That court in Beverly Hills Foodland further elaborated:

While statements in the form of opinions or questions do not enjoy absolute protection as such, to be actionable such statements must be "reasonably read as an assertion of a false fact." Because the statement contained in the handbill was not a false statement of fact, nor could it reasonably be read as such, the statement must necessarily be characterized as nondefamatory in the context of the existing labor dispute.

Id. at 195-96 (quoting Chapin v. Knight-Ridder, Inc., 993 F.2d 1087 (4th Cir.1993)) (other citations omitted).

In Missouri, whether language is actionable as defamation is a question of law to be decided by the trial court. Rockwood Bank v. Gaia, 170 F.3d 833, 841 (8th Cir.), cert. denied, ___...