Boyd v. Camardo , 65 F. App'x 326 ( 2003 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No.02-1979
DON BOYD,
Plaintiff, Appellant,
v.
ANTHONY CAMARDO,
Defendant, Appellee.
____________________
JOSEPH BALDI, ET AL.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joyce L. Alexander, U.S. Magistrate Judge]
Before
Lipez, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Don Boyd on brief pro se.
May 2, 2003
Per Curiam. Pro se plaintiff-appellant Don Boyd
appeals the grant of summary judgment in favor of pro se
defendant-appellee Anthony Camardo. We affirm.
Boyd alleges that he was misled to believe that
Camardo's employer, a music instrument and equipment retailer
named E.U. Wurlitzer Sound and Music, Inc. ("EUW"), was
associated with Wurlitzer, Inc. ("Wurlitzer"), a well-known
piano and jukebox manufacturer. Boyd contends that, as a
result of EUW's misrepresentations in certain magazine
advertisements, he purchased $14,000 worth of defective music
equipment from EUW. The district court concluded that Boyd had
not established that any misrepresentations were made.
We review the grant of summary judgment de novo,
examining the record independently and drawing any factual
inferences in the light most favorable to the non-movant. See,
e.g., Gu v. Boston Police Dep't, 312 F.3d 6, 10 (1st Cir.
2002). Summary judgment is appropriate if "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show 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." Straughn
v. Delta Air Lines, Inc., 250 F.3d 23, 33 (1st Cir. 2001)
(citing Fed. R. Civ. P. 56(c)).
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Where the party moving for summary judgment does not
bear the burden of proof at trial, that party must merely
demonstrate "an absence of evidence to support the nonmoving
party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). If the moving party satisfies this requirement, the
burden shifts to the non-movant, who cannot rely on bare
allegations but must specify facts showing that a genuine
controversy is presented for trial. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-49 (1986). A genuine factual
dispute exists only when there is sufficient evidence for a
reasonable jury to return a verdict for the non-moving party.
See F.D.I.C. v. Elder Care Servs., Inc., 82 F.3d 524, 526 (1st
Cir. 1996).
Boyd makes three arguments in this appeal. His first
argument that the lower court's findings of fact were erroneous
and unreasonable has no merit. In his brief, Boyd provides
seven paragraphs of "background facts" that purportedly reflect
the error in the court's findings. The majority of Boyd's
recitations, however, are consistent with the court's findings,
and any discrepancies or omissions are either irrelevant or not
supported by the record. For the most part, Boyd merely
disputes the legal significance of, and inferences to be drawn
from, those facts. See Anderson, 477 U.S. at 248 (noting that
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factual disputes that are irrelevant or unnecessary should not
be counted for summary judgment).
Next, Boyd argues that the lower court erred in
finding that EUW did not make any misrepresentations in its
advertisements. We need not resolve this issue because we
affirm the court's grant of summary judgment for Camardo on a
different ground, which is discussed below. See, e.g., Four
Corners Serv. Station, Inc. v. Mobil Oil Corp., 51 F.3d 306,
314 (1st Cir. 1995) (noting that appellate court is free to
affirm district court judgment on any ground supported by the
record).
Finally, Boyd argues that the lower court erred in
concluding that Camardo could not be held personally liable for
the misrepresentations, or, in the alternative, that the
court's opinion regarding Camardo's lack of liability was
unconstitutionally vague. Boyd misunderstands the court's
ruling regarding Camardo's personal liability for the
misrepresentation claims. The court assumed, for purposes of
summary judgment on these claims, that Camardo was personally
responsible for the advertisements. However, because the court
had determined that there were no misrepresentations in the
advertisements, the court concluded that there was nothing for
which Camardo could be held liable, and, accordingly, rendered
summary judgment for Camardo on the misrepresentation claims.
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We conclude that summary judgment for Camardo was appropriate
on the alternative ground that Boyd failed to meet his burden
of showing a genuine issue of material fact as to Camardo's
personal liability for the alleged misrepresentations. In
other words, even assuming that EUW made fraudulent
misrepresentations in its advertisements, there is no basis in
the record for holding Camardo personally liable for them.
Camardo was a corporate officer of EUW. Under both
Massachusetts and South Carolina law,1 a corporate officer may
be held liable for the tortious conduct of the corporation if
he personally participated in the tort by, for example,
directing, controlling, approving or ratifying the act that
injured the aggrieved party. See Rowe v. Hyatt, 321 S.C. 366,
369, 468 S.E.2d 649, 650 (1996); Townsends, Inc. v. Beaupre, 47
Mass. App. Ct. 747, 751-52, 716 N.E.2d 160, 164 (1999) (citing
Refrigeration Discount Corp. v. Catino, 330 Mass. 230, 235, 112
N.E.2d 790, 793 (1953)). In this case, there is no evidence
that Camardo participated in the creation or submission of the
advertisements that allegedly harmed Boyd. The mere fact that
Camardo held various positions at EUW (including director,
chief executive officer and president) is not enough to render
1
This was a diversity action. Boyd is a resident of South
Carolina. Camardo is a resident of Massachusetts and was
employed by EUW, a Massachusetts corporation. Boyd did not
challenge the court's decision to apply both Massachusetts
and South Carolina law to his misrepresentation claims.
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him liable for EUW's alleged misrepresentations in the
advertisements. See, e.g., Rowe, 321 S.C. at 369, 468 S.E.2d
at 650 (holding that person who was sole shareholder, president
and director of corporation could not be held personally liable
for fraud without evidence that he had made misrepresentations,
or that he had directed, authorized or encouraged
misrepresentations); Addis v. Steele, 38 Mass. App. Ct. 433,
439, 648 N.E.2d 773, 776 (1995) (holding that president of
corporation could not be held personally liable without
evidence that he participated in acts causing injury to
plaintiffs). Nor is there any basis in the record to justify
"piercing the corporate veil." See Evans v. Multicon Constr.
Corp., 30 Mass. App. Ct. 728, 732-33, 574 N.E.2d 395, 398
(1991); Sturkie v. Sifly, 280 S.C. 453, 457-59, 313 S.E.2d 316,
318-19 (Ct. App. 1984) (listing factors for piercing corporate
veil in order to hold corporate officer liable for
corporation's acts). Lastly, we are not persuaded that
Camardo's statement that "Plaintiff does not offer any evidence
of wrongdoing on the part of Defendant other than the
submission of paid advertisements that were placed by E.U.
Wurlitzer Co., Inc. in various musical retailers' publications"
constitutes an admission of Camardo's personal liability for
the alleged misrepresentations.
The judgment of the district court is affirmed.
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