Hugen v. New England Retail

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIAN HUGEN,
Plaintiff-Appellant,
v.
No. 95-2889
NEW ENGLAND RETAIL EXPRESS,
INCORPORATED; DAVID JONES,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Richard Kellam, Senior District Judge.
(CA-95-252-2)
Argued: September 23, 1996
Decided: October 25, 1996
Before MURNAGHAN and LUTTIG, Circuit Judges, and
HALLANAN, United States District Judge for the Southern District
of West Virginia, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Thomas E. Lacheney, DEAL & LACHENEY, P.C., Rich-
mond, Virginia, for Appellant. Temple Witt Cabell, SCHAFFER &
CABELL, P.C., Richmond, Virginia, for Appellees. ON BRIEF:
Heidi E. Henderson, SCHAFFER & CABELL, P.C., Richmond, Vir-
ginia, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Plaintiff-appellant Brian Hugen appeals from the district court's
summary judgment dismissal of his state law slander claim against
defendants-appellees New England Retail Express ("NER") and
David Jones. Finding no error in the district court's opinion, we
affirm.
I.
NER entered into a contract with Haynes Furniture, Inc., whereby
NER agreed to deliver furniture sold by Haynes to various customers.
NER employed several independent contractors, including Hugen, to
perform the actual delivery services for Haynes. These independent
contractors in turn employed "helpers" to assist them. David Jones
was the NER employee charged with supervising the independent
contractors and their helpers.
In May of 1992, while Hugen was repossessing certain of Haynes'
furniture from an abandoned apartment in the Holly Point apartment
complex, he took for personal use a mirror that he found in the apart-
ment. Believing that the mirror was the company's and that Hugen
had stolen it, Haynes undertook an investigation. Hugen denied steal-
ing the mirror, claiming that Haynes had not listed it as one of the
items Hugen was to repossess, and that the apartment manager gave
him permission to take the mirror.
On July 28, 1992, Haynes security personnel, Victor Morkunas and
Charles Narducci, both former Virginia Beach Police Department
police officers, informed Jones that Haynes had concluded that Hugen
stole the mirror. Morkunas and Narducci informed Jones that the mat-
ter had been referred to the Virginia Beach Police Department, and
that Haynes had barred Hugen from its property and no longer con-
2
sented to Hugen delivering Haynes' furniture. See J.A. at 324 (district
court opinion).1
On July 28 or 29, Jones terminated NER's contract with Hugen,
and then held a meeting with all of the other independent contractors
and their helpers. At this meeting, Jones stated that Hugen's contract
had been terminated because Haynes believed he had stolen a mirror
and would not allow him on its property, and Jones also stated the
consequences of stealing furniture from Haynes. The next day, a sec-
ond meeting was held at which Jones repeated these statements. One
week later, on August 6, the Virginia Beach Police Department con-
cluded that the case against Hugen was "unfounded."
On April 11, 1995, Hugen filed this action against NER and Jones
in the United States District Court for the Eastern District of Virginia,
invoking federal diversity jurisdiction pursuant to 28 U.S.C. § 1332.2Hugen claimed that the statements made by Jones at the two meetings
constituted slander under the laws of Virginia. The parties filed cross-
motions for summary judgment.
On September 26, 1995, the district court granted summary judg-
ment in favor of NER and Jones, and denied Hugen's summary judg-
ment motion. The district court first held that Jones' statements at the
meetings were qualifiedly privileged under Virginia law. See Smalls
v. Wright, 399 S.E.2d 805, 807 (Va. 1991). In Virginia, "[a] commu-
nication, made in good faith on a subject in which the communicating
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1 Hugen concedes that Haynes told Jones that they were investigating
Hugen, but Hugen denies that Haynes told Jones that it had concluded
that Hugen stole the mirror. Hugen offers no record support for this
assertion except for Morkunas' inability to recall whether he made this
statement to Jones. J.A. at 170. Morkunas did, however, testify that "[he]
could have made that statement" to Jones. J.A. at 170-71. Furthermore,
in a July 18 memorandum written by "Narducci via Morkunas," Narducci
and Morkunas did in fact conclude that "Brian Hugen has committed a
GRAND LARCENY." J.A. at 183. Jones' handwritten notes recording a
conversation he had with Morkunas indicate that Morkunas relayed this
information to him. J.A. at 230.
2 Hugen is a resident of North Carolina, and NER is a New York corpo-
ration.
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party has an interest or owes a duty, is qualifiedly privileged if the
communication is made to a party who has a corresponding interest
or duty." Id. The district court concluded that Jones' statements met
the requirements for the privilege because all of the participants at the
meetings at which Jones spoke -- Jones, the independent contractors
and their helpers -- had a common pecuniary interest in preventing
theft from Haynes and other NER customers.
The district court then held that Jones' qualified privilege was not
abrogated by common law malice. Id. at 808. In Virginia, Jones' qual-
ified privilege would be "lost if [Hugen] prove[d] by clear and con-
vincing evidence that the defamatory words were spoken with
common-law malice." Id. Common law malice exists where:
(1) the defendant knew the statement was false or made it
with reckless disregard of whether it was false or not; or
(2) the statement was deliberately made in such a way that
it was heard by persons having no interest or duty in the
subject of the statement; or
(3) the statement was unnecessarily insulting; or
(4) the language used was stronger or more violent than
was necessary under the circumstances; or
(5) the statement was made because of hatred, ill will or
a desire to hurt the plaintiff rather than as a fair comment
on the subject.
Id. at 807-08. The district court concluded that "[n]one of the facts
argued by [Hugen] . . . begin to give a reasonable jury the facts it
would need to find malice by clear and convincing evidence." J.A. at
340.
Finding no error in the district court's opinion, we affirm the opin-
ion of the district court.
AFFIRMED
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