Saul Benjamin v. Nicholas Sparks

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-2041
SAUL HILLEL BENJAMIN,
Plaintiff - Appellant,
v.
NICHOLAS SPARKS; EPIPHANY SCHOOL OF GLOBAL STUDIES;
NICHOLAS SPARKS FOUNDATION,
Defendants - Appellees,
and
MISSY BLACKERBY; TRACY LORENTZEN; KEN GRAY,
Defendants.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. James C. Dever III, District Judge. (4:14-cv-00186-D)
Argued: October 28, 2020 Decided: January 19, 2021
Before KING, WYNN, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge King and
Judge Thacker joined.
ARGUED: Lawrence M. Pearson, WIGDOR LLP, New York, New York, for Appellant.
Richard Leonard Pinto, PINTO, COATES, KYRE & BOWERS, PLLC, Greensboro, North
Carolina; Hayden J. Silver, III, WOMBLE BOND DICKINSON (US) LLP, Raleigh, North
Carolina, for Appellees. ON BRIEF: Michael J. Willemin, Hilary J. Orzick, WIGDOR
LLP, New York, New York; Kristen E. Finlon, ESSEX & RICHARDS, PA, Charlotte,
North Carolina, for Appellant. Theresa M. Sprain, Jonathon D. Townsend, WOMBLE
BOND DICKINSON (US) LLP, Raleigh, North Carolina, for Appellees Nicholas Sparks
and The Nicholas Sparks Foundation. Deborah J. Bowers, PINTO, COATES, KYRE &
BOWERS, PLLC, Greensboro, North Carolina, for Appellee Epiphany School of Global
Studies.
2
WYNN, Circuit Judge:
Saul Hillel Benjamin, the former headmaster of the Epiphany School of Global
Studies (“Epiphany School”), sued Epiphany School, its founder Nicholas Sparks, the
Nicholas Sparks Foundation (the “Sparks Foundation”), and Epiphany School Board of
Trustees members Missy Blackerby, Tracy Lorentzen, and Ken Gray (collectively
“Defendants”). Benjamin alleged various acts of unlawful discrimination and retaliation,
breach of contract, and tortious injuries. The district court dismissed some of Benjamin’s
claims and granted Defendants’ motions for summary judgment on others. At trial, the jury
returned a verdict for Defendants on Benjamin’s remaining claims.
On appeal, Benjamin asks this Court to find that the district court abused its
discretion in its evidentiary and trial-management rulings. He also appeals the district
court’s dismissal of his claims against Lorentzen and Gray as well as the court’s order
granting in part and denying in part Defendants’ motion for summary judgment. We affirm.
I.
A.
Epiphany School is a private, non-denominational, faith-based school in New Bern,
North Carolina serving students from kindergarten through twelfth grade. Sparks founded
Epiphany School in 2005. Defendants Blackerby, Gray, Lorentzen, and Sparks all serve on
Epiphany School’s Board of Trustees (the “Epiphany School Board”), and Sparks is the
chair of the Epiphany School Board. Separate from Epiphany School and the Epiphany
3
School Board is the Sparks Foundation, a non-profit corporation that raises scholarship
money for Epiphany School students and supports the school.
In 2012, the Epiphany School Board hired a recruiting firm to search for a new
headmaster. The firm recommended Benjamin as a candidate prompting Benjamin and his
wife at the time, Dr. Jennifer Dueck, to visit New Bern twice and meet with the Epiphany
School Board and Epiphany School students, parents, faculty, and staff.
During these meetings, Epiphany School community members “evaluated
Benjamin on various criteria[,] including ‘Christian Tradition.’” J.A. 3993–94. 1 Benjamin,
who describes himself as a Quaker of Jewish ethnicity, alleges that he was asked by the
Epiphany School Board members many times to explain and describe his religious
upbringing and beliefs. He further alleges that he was told by Lorentzen that members of
the Epiphany School community did not see him as a “true Christian” because “Quakers
are really not Christians.” J.A. 2769.
In February 2013, Benjamin was hired as headmaster of Epiphany School. Benjamin
entered into two contracts following his hiring: one with Epiphany School to serve as the
headmaster and one with the Sparks Foundation to serve as an independent contractor. Both
contracts were for a four-year term, but Defendants could terminate the contracts under
preset conditions. Benjamin’s employment agreement with Epiphany School noted that the
agreement would terminate if he resigned or if he was terminated with or without cause.
1
Citations to “J.A. __” refer to the Joint Appendix filed by the parties in this appeal.
4
Benjamin’s contract with the Sparks Foundation provided that the Sparks Foundation could
cancel the agreement upon thirty days’ written notice to Benjamin for any reason.
From the beginning, Benjamin’s time at Epiphany School was marked by conflicts
with Epiphany School students, parents, faculty, and staff. The parties disagree about the
role Benjamin played in causing these conflicts.
According to Defendants, Benjamin was condescending and hostile to faculty and
staff; inattentive to important deadlines and the school’s younger students; and frequently
absent from school events. According to Benjamin, however, his conflicts with the
Epiphany School community were driven by their hostility toward his Jewish background,
Quaker faith, and his efforts to promote diversity on campus. 2
In October 2013, the Epiphany School Board began to express frustration with
Benjamin. At their monthly meeting with Benjamin, the Epiphany School Board discussed
the challenges he had been experiencing at Epiphany School, as well as his successes, in
the hope that the situation would improve.
But in the weeks following that meeting, Benjamin’s relationship with the Epiphany
School community further deteriorated. Accordingly, on November 18, 2013, Sparks sent
2
Benjamin alleges that his tenure at Epiphany School included repeated efforts to support
and expand diversity amongst the student and faculty populations. Those efforts included
actively recruiting African-American students and faculty, including Epiphany School’s
first full-time African-American faculty member; supporting students being bullied on the
basis of their sexual orientations or gender identities; and advocating for a new and
comprehensive non-discrimination policy.
5
an email to the Epiphany School Board detailing the formal grievance process for
employees and noting that he did not want to pay the remainder of Benjamin’s salary.
The next day, the Epiphany School Board held a forum attended by faculty and
parents at which Benjamin gave a speech explaining his religious beliefs. The parties
disagree as to whether this speech was voluntary. Benjamin contends that giving the speech
went against his core religious obligation, as a Quaker, to practice his faith privately.
Following Benjamin’s speech, Epiphany School Board member Gray explained the
formal grievance process to the audience, and Benjamin alleges that Sparks solicited
grievances from Epiphany School parents. The same day, Sparks emailed the Epiphany
School Board saying that he needed “faculty evidence of terminable offenses.” J.A. 4000.
He also told Gray that “we’re going to try to get Benjamin to resign voluntarily.” Id.
Two days later, Benjamin met with Sparks, Gray, and Lorentzen in a conference
room at Epiphany School. The parties are in considerable disagreement as to what
happened next.
Benjamin alleges that he was berated and prevented from leaving the conference
room during the entirety of the meeting, which lasted between ninety minutes and two
hours. According to Benjamin, he was told that he was being fired from Epiphany School;
that his contract with the Sparks Foundation was being terminated; and that if he left the
room, he would be terminated for cause. On the other hand, Sparks maintains that the
meeting was an attempt to negotiate the terms of Benjamin’s resignation, and contends that
6
Benjamin was offered the choice to either resign with severance 3 or risk being terminated
for cause.
Dueck—who at the time was Benjamin’s wife and was employed by the Sparks
Foundation—joined the meeting after approximately forty-five minutes. Defendants argue
that once Dueck joined the meeting, Benjamin negotiated the terms of his resignation and
signed his own handwritten letter of resignation. By contrast, Benjamin contends that Gray
instructed him to write the resignation letter and told him what to say in it.
Following that meeting, Benjamin emailed the recruiter who had recommended him
to Epiphany School to notify the recruiter of his “resignation as Headmaster & CEO of [the
school],” indicating that the position was not a good fit for either party and thanking the
recruiter for his efforts. J.A. 8435. The following day, the Epiphany School Board notified
Benjamin that his contract with the Sparks Foundation had been terminated. And on
November 25, the Epiphany School Board sent Benjamin an updated letter referring to his
“resignation” rather than his “termination.”
Benjamin alleges that Sparks subsequently began circulating rumors by telling the
Epiphany School Board that Benjamin “may be suffering from dementia or Alzheimer’s or
something along those lines because [Benjamin] just did not appear rational in his actions.”
J.A. 4002 (alteration in original). Additionally, he alleges that Sparks told an Epiphany
3
At trial, Benjamin acknowledged that financial compensation was offered, but “d[id not]
recall the word ‘severance’” being used, a word he considered to be a “term of art.” J.A.
7161.
7
School parent that he “had to terminate Mr. Benjamin because Mr. Benjamin had dementia
and bipolar disease” and that “bipolar disease runs in Mr. Benjamin’s family.” Id.
B.
On October 2, 2014, Benjamin sued Sparks, Epiphany School, the Sparks
Foundation, Blackerby, Lorentzen, and Gray in the Eastern District of North Carolina. On
May 28, 2015, he filed an amended complaint alleging sixteen counts: Count I (all
Defendants—unlawful discrimination in violation of 42 U.S.C. § 1981); Count II (all
Defendants—unlawful retaliation in violation of § 1981); Count III (Epiphany School—
religious discrimination in violation of Title VII); Count IV (Epiphany School—race
discrimination in violation of Title VII); Count V (Epiphany School—national origin
discrimination in violation of Title VII); Count VI (Epiphany School—discrimination in
violation of the Americans with Disabilities Act); Count VII (Epiphany School—unlawful
retaliation in violation of Title VII); Count VIII (Epiphany School—breach of contract);
Count IX (the Sparks Foundation—breach of contract); Count X (Sparks—defamation per
se); Count XI (Sparks—defamation); Count XII (Sparks—tortious interference with
prospective economic relations); Count XIII (Epiphany School and Sparks—tortious
interference with a contract); Count XIV (Sparks, Gray, and Lorentzen—false
imprisonment); Count XV (Sparks—assault); and Count XVI (all Defendants—retaliation
in violation of the School Violence Prevention Act, N.C. Gen. Stat. § 115C-407.15).
On March 23, 2016, the district court dismissed Count I and II as to defendants
Blackerby, Lorentzen, and Gray; Counts V, XII, and XIII in their entirety; Count XIV as
8
to Lorentzen and Gray; and Count XVI in its entirety. With no claims remaining against
Blackerby, Lorentzen, or Gray, the court dismissed them from the lawsuit.
The remaining defendants—Sparks, Epiphany School, and the Sparks Foundation—
moved for summary judgment on the outstanding claims. The district court granted in part
and denied in part their motion, leaving four claims to go to trial: discrimination in violation
of the Americans with Disabilities Act of 1990 against Epiphany School (Count VI); breach
of contract against Epiphany School (Count VIII); breach of contract against the Sparks
Foundation (Count IX); and defamation per se against Sparks (Count X).
In a case management order, the district court ordered that each party provide the
other party with pretrial disclosures required under Federal Rule of Civil Procedure
26(a)(3) by July 1, 2019. 4 In their timely filed disclosures, Defendants designated Dueck—
who is a Canadian citizen and who was, by that time, residing in Canada—as a witness by
deposition testimony, meaning she would not be called to testify at trial. Benjamin objected
to this designation because he anticipated calling Dueck to testify at trial via
videoconference. However, on July 15, 2019, he indicated that he would instead introduce
her deposition testimony. But the district court prevented Benjamin from introducing any
of Dueck’s deposition testimony, finding that Benjamin’s designation was not in
compliance with the time frame established by the case management order.
4
Rule 26(a)(3) governs pretrial disclosures of evidence and the timeline for such
disclosures.
9
A six-day trial commenced on August 14, 2019, and each side was allowed fourteen
hours to present its case. At trial, the district court admitted—over Benjamin’s objection—
evidence that Benjamin had misrepresented his employment history and credentials to
Epiphany School prior to being hired. The court also instructed the jury on the breach-of-
contract and defamation per se claims using instructions to which Benjamin objected.
The jury returned a verdict for Defendants on all claims. This appeal followed.
On appeal, Benjamin primarily asks this Court to find that the district court abused
its discretion by (1) preventing Benjamin from introducing Dueck’s deposition testimony;
(2) implementing time limits for each side’s presentation of its case; (3) admitting evidence
about Benjamin’s misrepresentations regarding his prior employment; and (4) declining to
adopt Benjamin’s proposed jury instructions and verdict form for the breach of contract
and defamation per se claims. We conclude that the district court did not abuse its
discretion regarding any of these decisions. Accordingly, we affirm.
II.
We first consider Benjamin’s challenge to the district court’s decision to exclude
the deposition testimony of one of his witnesses, his ex-wife Dueck. Federal Rule of Civil
Procedure 26(a) establishes the disclosures that parties must make prior to trial and the
timeline for those disclosures, including, as relevant here, that pretrial disclosures must be
made at least thirty days before trial. Fed. R. Civ. P. 26(a)(3)(B). Furthermore, under Rule
37, “[i]f a party fails to provide information or identify a witness as required by Rule
26(a) . . . , the party is not allowed to use that information or witness to supply evidence . . .
at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P.
10
37(c)(1). The district court concluded that Benjamin failed to comply with Rule 26(a), that
the failure was neither substantially justified nor harmless, and thus that exclusion was
proper.
“We review for an abuse of discretion both the district court’s finding of a disclosure
violation and its decision to exclude evidence as a discovery sanction.” Russell v. Absolute
Collection Servs., Inc., 763 F.3d 385, 396 (4th Cir. 2014). We adopt this deferential review
because “the district court has an intimate familiarity with the relevant proceedings and,
therefore, is in a superior[] . . . position to supervise the litigants and assess their good
faith.” Bresler v. Wilmington Tr. Co., 855 F.3d 178, 208 (4th Cir. 2017) (Wynn, J.,
concurring in part and dissenting in part) (citations and internal quotation marks omitted).
Here, despite a case management order establishing a July 1, 2019 deadline for
pretrial disclosures under Rule 26(a)(3)(A), Benjamin did not disclose his intention to rely
on Dueck’s deposition testimony until he circulated a draft Pretrial Order on July 15, 2019,
thirty days before the start of trial. Prior to the deadline, he disclosed only that he
anticipated calling Dueck to testify at trial, although Dueck lived in Canada. But, after
receiving confirmation on July 12, 2019 that Dueck was not willing to testify at trial,
Benjamin sought to introduce her deposition testimony instead. He expressed this intention
during a pretrial conference on July 31, 2019. Upon Defendants’ objection, the court
ordered supplemental briefing and noted that its case management order was “not [an] idle
11
piece[] of paper to be ignored” and that “it’s certainly very odd to [the court] that somebody
didn’t include their deposition designations in their pretrial disclosures.” J.A. 6511.
At an August 13, 2019 continuation of the pretrial conference, following the
submission of supplemental briefing, Benjamin argued that his disclosure did not violate
Rule 26(a). In his view, the rule simply requires the designation of witness testimony a
party expects to present by deposition—and he had no expectation that he would need to
present Dueck’s testimony by deposition until July 12, 2019 due to miscommunications
with Dueck’s attorney.
The district court was not persuaded. In support of its decision to exclude the
testimony, the court first noted that both parties were required under Rule 26(a)(3)(A)(ii)
to designate the witnesses they expected to present by deposition, and that those
designations were due by July 1, 2019—the date established in the case management order.
The court acknowledged Benjamin’s argument that he diligently sought to secure Dueck’s
live testimony, either in person or via videoconference, but nevertheless found Benjamin’s
disclosure “untimely under the case management order.” J.A. 6633. Finding no support in
the case law for Benjamin’s subjective-expectation interpretation of Rule 26, and seeing
no limiting principle to that interpretation, the court held that Benjamin violated Rule
26(a)(3)(A).
The court then considered whether Benjamin’s late designation was substantially
justified or harmless. Finding that it was neither, the court stated:
[H]ere I do think that defendants and the court cannot easily cure the surprise
at this late hour. I did read there were lateness designations and then counter-
objections. Again, if this had all been done on time, I would have gone
12
through all of this, but I am in the process of working on a lot of different
cases, as well as doing the charge in this case, and this is not something that
can easily be cured by the court or the defense. Allowing this would disrupt
the trial. I would then have to go through all of these objections and rule line
by line. And the trial starts tomorrow. This is extremely prejudicial.
J.A. 6635.
On appeal, Benjamin argues that the court abused its discretion by (1) finding that
Benjamin violated Federal Rule of Civil Procedure 26(a); and (2) finding that the alleged
violation was not substantially justified or harmless. We disagree.
Benjamin argues that “[t]he plain language of [Rule] 26 clearly limits parties’
requirement to designate deposition testimony to witnesses who the party expects to present
by deposition,” and that parties must do so at least thirty days before trial. Opening Br. at
42. Accordingly, he argues that he complied with the rule because he did not expect to
present Dueck’s testimony by deposition until July 12, and because he disclosed his
intention to do so on July 15, thirty days before trial began on August 14.
Benjamin cites no support for his claim that Rule 26’s designation requirement only
applies once a party subjectively forms the expectation to present deposition testimony,
and we are aware of none. Indeed, such an interpretation of the Rule would render its
deadlines meaningless. But in any event, by the plain language of the Rule, the dictated
timelines give way to a district court’s order establishing dates for disclosures. See Fed. R.
Civ. P. 26(a)(3)(B) (“Unless the court orders otherwise, these disclosures must be made at
least 30 days before trial.” (emphasis added)). Here, the district court plainly required the
13
disclosure in question to be made by July 1, 2019. Benjamin failed to abide by that
deadline.
Therefore, Benjamin was “not allowed” to use the deposition testimony unless his
failure to abide by Rule 26(a) “was substantially justified or . . . harmless.” Fed. R. Civ. P.
37(c)(1). This Court addressed what is required to demonstrate substantial justification or
harmlessness in Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d
592 (4th Cir. 2003). We identified five factors that should guide a district court’s analysis
“in exercising its broad discretion” regarding this question: “(1) the surprise to the party
against whom the evidence would be offered; (2) the ability of that party to cure the
surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the nondisclosing party’s explanation for its failure to
disclose the evidence.” Id. at 597. The first four factors primarily relate to the harmlessness
exception, while the fifth factor primarily relates to whether the violation was substantially
justified. Bresler, 855 F.3d at 190.
Notably, a district court is “not required to tick through each of the Southern
States factors,” Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014), and retains
“broad discretion in determining whether a party’s nondisclosure or untimely disclosure of
evidence is substantially justified or harmless,” Bresler, 855 F.3d at 190 (internal quotation
marks omitted). And “[t]he burden of establishing these factors lies with the nondisclosing
party.” Wilkins, 751 F.3d at 222.
Here, the district court properly considered the Southern States factors. Regarding
harmlessness, the court acknowledged that the late disclosure of deposition designations
14
may be less prejudicial than, for example, a failure to disclose an expert witness, but
nevertheless found that there would be prejudice to Defendants if the untimely designation
was permitted. The court also factored in its own high volume of cases and the need for
parties to abide by case management orders. It went on to find that the surprise of the late
disclosure could not be cured, noting the lack of time the court had to consider and respond
to Defendants’ objections. Further, the court concluded that allowing the late disclosure
would disrupt the trial because the court would “have to go through all of these objections
and rule line by line,” which it found “extremely prejudicial” on the eve of trial. J.A. 6635.
Finally, the court recognized that Dueck’s deposition testimony would likely be
important evidence supporting Benjamin’s theory of the case because she was present at
the meeting where Benjamin was allegedly terminated. But the court also viewed the
importance of the testimony as weighing against Benjamin. In the court’s view, “if you’ve
taken a deposition of somebody and they’re outside the subpoena jurisdiction, I just don’t
see how you don’t designate that deposition testimony”—particularly if there is reason to
believe that the party will not voluntarily appear before the court. J.A. 6635–36. That
analysis aligns with our precedent. We have held that the fourth factor, the importance of
the evidence, “must be viewed from the perspective of both parties.” S. States, 318 F.3d at
598 (internal quotation marks omitted). “To that end, the more important the evidence, the
more important it is for the proponent to disclose [the evidence] in a timely manner because
15
it is more likely to prejudice the opposing party.” Bresler, 855 F.3d at 218 (Wynn, J.,
concurring in part and dissenting in part) (internal quotation marks omitted).
We conclude that the district court meaningfully engaged with the Southern States
factors on harmlessness. We find no abuse of discretion in the court’s determination that
the untimely disclosure was not harmless.
As to whether the late disclosure was substantially justified, the district court found
Benjamin’s explanation lacking. Benjamin claimed that he did not designate Dueck’s
deposition testimony because, as of the designation deadline, he still expected her to testify
live at trial. But the record reflects that on February 7, 2019—months before the deadline—
Dueck’s counsel responded to an email from Benjamin’s counsel and informed him that
Dueck was “generally available” during the trial dates, but that she was “not agreeing to
anything at th[at] point” and that they should schedule a telephone call later that month to
discuss specifics. J.A. 6220. That call was never scheduled.
Nor did Benjamin heed later warnings from Dueck. In a July 2, 2019 email, Dueck’s
counsel informed Benjamin’s counsel that Dueck was “not inclined to participate
voluntarily at the trial”—a fact that counsel had “intimated during [a] call” on June 27,
2019, several days before the court-ordered deadline. J.A. 6238. The record thus suggests
that Benjamin was, in fact, aware that Dueck did not want to testify at the trial before the
designation deadline.
Moreover, while Dueck’s counsel did indicate the possibility of Dueck testifying by
videoconference, her counsel aptly noted that Benjamin “would need to take the steps
necessary to secure an order permitting her testimony by video” pursuant to Rule 43(a).
16
J.A. 6238–39. Responding to Benjamin’s belief that Dueck would testify live, the district
court stated, “I don’t think anyone who looked at Rule 43(a) and researched it could . . .
have this notion of, well, I think the judge is probably going to let [Dueck] testify
remotely.” J.A. 6637.
Indeed, Rule 43(a) requires in-person testimony “unless a federal statute, the Federal
Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide
otherwise.” Fed. R. Civ. P. 43(a). Video testimony is only permitted “[f]or good cause in
compelling circumstances and with appropriate safeguards”—and then only at the district
court’s discretion. Id. We conclude that the district court did not abuse its discretion when
it rejected Benjamin’s explanation as insufficient to show substantial justification for his
failure to abide by Rule 26(a).
The deadlines set forth in a court’s case management order serve an important
function in the flow of litigation. See, e.g., Saudi v. Northrop Grumman Corp., 427 F.3d
271, 278 (4th Cir. 2005) (“A party that fails to provide [Rule 26(a)] disclosures unfairly
inhibits its opponent’s ability to properly prepare, unnecessarily prolongs litigation, and
undermines the district court’s management of the case.”). The district court properly found
that Benjamin was aware of the district court’s case management order, did not abide by
its deadlines, and provided no good reason justifying that failure. Accordingly, we
conclude that the district court did not abuse its discretion when it found that Benjamin
17
was in violation of its case management order and Rule 26, and that his violation was
neither substantially justified nor harmless.
III.
We next turn to Benjamin’s challenge to the imposition of a fourteen-hour time limit
for each side’s presentation of its case at trial. Before trial, the district court informed both
parties of a tentative time limit of fourteen hours for each side and stressed that each party
was to be a “steward of [its] own time.” J.A. 6517. Neither party objected.
At trial, Benjamin struggled to stay within these limits. In order to comply, he opted
not to call one of his witnesses. And as he neared the end of his allotted time, he requested
an extra forty-five minutes for his closing, a request the district court denied. Benjamin
argues that the district court abused its discretion by setting rigid fourteen-hour time limits
and by denying his request for additional time.
“[T]he district court has the authority in a civil case to limit the presentation of
evidence by imposing overarching time limits on each party, although . . . district courts
should not adopt this practice as a ‘matter of course.’” Raynor v. G4S Secure Sols. (USA),
Inc., 805 F. App’x 170, 178 (4th Cir. 2020) (quoting Duquesne Light Co. v. Westinghouse
Elec. Corp., 66 F.3d 604, 610 (3d Cir. 1995)). We review the district court’s imposition of
time limits for abuse of discretion, keeping in mind both the importance of efficiency in
the judicial system and the need for “fundamental fairness” at trial. Id.Benjamin was “[a]pprised of [the fourteen-hour time limit] in advance of trial,”
giving him “notice and adequate time to craft his case.” Id. at 179. That Benjamin chose
not to “craft his case” in such a way that allowed him to remain within the time limits while
18
calling all his witnesses does not demonstrate that the district court abused its discretion.
See id. at 178 (the fact that the plaintiff was unable to call several witnesses did not
demonstrate that the trial court abused its discretion).
Moreover, the district court’s denial of Benjamin’s request for more time in order
to ensure that both parties were bound by the same rules does not constitute an abuse of
discretion. And while overarching time limits may not be warranted in every case, “the
abuse of discretion standard requires a reviewing court to show enough deference to a
primary decision-maker’s judgment that the court does not reverse merely because it would
have come to a different result in the first instance.” Evans v. Eaton Corp. Long Term
Disability Plan, 514 F.3d 315, 322 (4th Cir. 2008).
It is within the authority of district courts to set time limits in civil cases. Because
both parties had adequate notice to be able to craft their cases within the district court’s
fourteen-hour limit, we conclude that the district court did not abuse its discretion.
IV.
Next, we consider Benjamin’s appeal of the district court’s decision to admit
evidence regarding his past employment.
During discovery, Defendants learned that Benjamin had misrepresented his
credentials and employment history to Epiphany School during the recruitment process.
Specifically, when describing his prior work experience, Benjamin failed to mention his
position as President of Deep Springs College (a position from which he resigned after less
19
than a year); misrepresented the dates associated with another position; and falsely
represented that he had a Doctor of Philosophy degree.
At a pretrial conference, Benjamin urged the district court to exclude evidence
related to these alleged misrepresentations or, in the alternative, bifurcate the trial. In
Benjamin’s view, evidence of employment misrepresentations he allegedly made decades
ago was not relevant, and to the extent it was, its probative value was heavily outweighed
by its prejudicial effect.
The district court allowed the evidence, concluding that it was relevant and that it
did not need to be excluded pursuant to Federal Rule of Evidence 403. Further, the court
denied Benjamin’s request to bifurcate the trial. The court stated, “I don’t think bifurcating
under Rule [42(b) of the Federal Rules of Civil Procedure] makes sense given that the
evidence is relevant. I think the [evidence is relevant to] liability and damages in
connection with the contract, obviously, [and] the damages in connection with the
[Americans with Disabilities Act] and defamation claim[s].” J.A. 6474.
“We review a trial court’s rulings on the admissibility of evidence for abuse of
discretion, and we will only overturn an evidentiary ruling that is arbitrary and irrational.
To that end, we look at the evidence in a light most favorable to its proponent, maximizing
its probative value and minimizing its prejudicial effect.” United States v. Cole, 631 F.3d
146, 153 (4th Cir. 2011) (citations and internal quotation marks omitted). Even if the
district court errs in admitting evidence, this Court will not reverse if the error was harmless
and had no prejudicial affect. Cisson v. C.R. Bard, Inc., 810 F.3d 913, 923 (4th Cir. 2016).
“To find [an] alleged error harmless, we need only be able to say with fair assurance, after
20
pondering all that happened without stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error.” Id. at 927 (internal quotation marks
omitted).
Benjamin argues that the court’s decision to admit evidence concerning his prior
employment was an abuse of discretion because “(a) [the evidence] was not relevant to the
issues at trial, (b) any arguable probative value was substantially outweighed by its unduly
prejudicial effect as ancient and largely hearsay evidence of decades-old events and (c) it
served as impermissible character evidence transparently intended to make Benjamin seem
a liar.” Opening Br. at 35. We find no abuse of discretion here.
Maximizing the probative value of the disputed evidence and minimizing its
prejudicial effect, as we are required to do on our review, Cole, 631 F.3d at 153, the district
court’s decision to admit the evidence was not unreasonable. At minimum, we agree with
the district court that the allegations of employment misrepresentations were relevant to
breach-of-contract liability. The evidence provided support for Defendants’ claim that they
would not have hired Benjamin had they known his complete, accurate employment record
and qualifications. Further, while some of the evidence was decades old, not all of it was.
The record demonstrates that Benjamin submitted a resume to the recruiting firm—which
was then considered by the Epiphany School Board—that incorrectly stated that he had a
Doctor of Philosophy degree from Oxford. And, while the evidence had a potential
prejudicial effect, the district court minimized the risk of prejudice by communicating
limiting instructions to the jury throughout the trial.
21
Accordingly, the district court acted within its discretion when it conducted the
required balancing test, refused to bifurcate the trial, and admitted the evidence.
V.
Finally, we consider Benjamin’s challenge to the district court’s verdict form and
jury instructions regarding his breach-of-contract claims against Epiphany School and the
Sparks Foundation, as well as his challenge to the verdict form related to his defamation
per se claim against Sparks.
We employ an abuse-of-discretion standard when reviewing a district court’s
verdict form and jury instructions, reviewing both holistically. See Horne v. Owens-
Corning Fiberglas Corp., 4 F.3d 276, 284 (4th Cir. 1993) (verdict forms); Noel v. Artson,
641 F.3d 580, 586 (4th Cir. 2011) (jury instructions). While the structure of the verdict
form is left to the discretion of the district court, we must consider whether the form
“adequately presented the contested issues to the jury when read as a whole and in
conjunction with the general charge, whether submission of the issues to the jury was fair,
and whether the ultimate questions of fact were clearly submitted to the jury.” Horne, 4
F.3d at 284 (quoting Klein v. Sears Roebuck & Co., 773 F.2d 1421, 1427 (4th Cir. 1985)).
And for jury instructions, we “simply determine whether the instructions construed
as a whole, and in light of the whole record, adequately informed the jury of the controlling
legal principles without misleading or confusing the jury to the prejudice of the objecting
party.” Noel, 641 F.3d at 586 (internal quotation marks omitted). If a district court declines
to give a party’s proposed instructions, the court will be reversed only if the requested
instructions “‘(1) w[ere] correct; (2) w[ere] not substantially covered by the court’s charge
22
to the jury; and (3) dealt with some point in the trial so important, that failure to give the
requested instruction[s] seriously impaired’ that party’s ability to make its case.” Id.(quoting United States v. Lighty, 616 F.3d 321, 366 (4th Cir. 2010)). “A set of legally
accurate instructions that does not effectively direct a verdict for one side or the other is
generally adequate.” Hardin v. Ski Venture, Inc., 50 F.3d 1291, 1294 (4th Cir. 1995).
Considering the jury charge as a whole, we conclude that the trial court adequately
informed the jury of the relevant issues and legal principles, and that its verdict form and
instructions did not prejudice Benjamin.
A.
Benjamin contends that the district court’s decision to draft the verdict form to
exclude termination as a potential element of his breach-of contract claim was an abuse of
discretion. And as to the jury instructions, he argues that the district court’s breach-of-
contract instructions were an unsuccessful—and ultimately prejudicial—attempt at
following this Court’s opinion in Stone v. University of Maryland Medical System Corp.,
855 F.2d 167 (4th Cir. 1988). We consider each argument in turn.
1.
In his proposed jury instructions, Benjamin suggested that the verdict form ask the
jurors to determine whether he was terminated or forced to resign from his positions with
Epiphany School and the Sparks Foundation. Instead, the district court instructed the jury
that Benjamin had to prove by a preponderance of the evidence that his resignations from
23
Epiphany School and the Sparks Foundation were involuntary. There was no mention of
termination.
The issues were presented to the jurors as follows:
1. Did plaintiff Saul Hillel Benjamin prove by a preponderance of the
evidence that his resignation from defendant the Epiphany School of Global
Studies was involuntary? . . .
3. Did plaintiff Saul Hillel Benjamin prove by a preponderance of the
evidence that his resignation from the Nicholas Sparks Foundation was
involuntary?
J.A. 8630–31. If the jurors found that Benjamin’s resignation in either case was
involuntary, they were instructed also to consider issues 2 and 4—any defenses Epiphany
School or the Sparks Foundation may have had. 5 But since the jury answered issues 1 and
3 in the negative, they never reached issues 2 and 4.
5
Issue 2 and Issue 4 of the Verdict Form read:
2. Did defendant the Epiphany School of Global Studies prove by a
preponderance of the evidence (1) that it would have terminated plaintiff Saul
Hillel Benjamin “for cause” under § 7(b) of the Employment Contract based
on information that it possessed in November 2013; or (2) that it would have
terminated plaintiff Saul Hillel Benjamin “for cause” under § 7(b) of the
Employment Contract based on after-acquired evidence of plaintiff Saul
Hillel Benjamin’s misconduct; or (3) that it never would have hired plaintiff
Saul Hillel Benjamin based on after-acquired evidence of plaintiff Saul Hillel
Benjamin’s misconduct? . . .
4. Did defendant the Nicholas Sparks Foundation prove by a preponderance
of the evidence (1) that it did or would have terminated plaintiff Saul Hillel
Benjamin “for cause” under § 6 of the Independent Contractor Agreement
based on information that it possessed in November 2013; or (2) that it would
have terminated plaintiff Saul Hillel Benjamin “for cause” under § 6 of the
Independent Contractor Agreement based on after-acquired evidence of
plaintiff Saul Hillel Benjamin’s misconduct; or (3) that it never would have
24
Benjamin argues that the district court abused its discretion by “presenting only the
question of whether or not [his] resignations from Epiphany [School] and the [Sparks]
Foundation were voluntary.” Opening Br. at 18. He argues that the formulation used in the
verdict form assumes that he resigned and does away with the argument that he was in fact
terminated. The facts and record, he argues, provided ample support for a finding that he
was involuntarily terminated. In Benjamin’s view, omitting the possibility that he was
terminated from the verdict form “greatly and inevitably circumscribed the jury’s factual
analysis, and constitutes an abuse of discretion.” Id. at 22. We disagree.
Our deferential standard of review of the district court’s instructions and
presentation of issues to the jury is rooted in an acknowledgment that the district court is
better positioned than we are to craft instructions that reflect the evidence produced at trial.
See Nelson v. Green Ford, Inc., 788 F.2d 205, 208–09 (4th Cir. 1986). Having heard the
evidence and the witnesses, the district court focused the jury on the issue of resignation.
That decision fell within the limits of the district court’s discretion. A review of the
record reveals that Benjamin signed a handwritten resignation note, subsequently referred
to the end of his employment with Epiphany School as a resignation, and informed the
Epiphany School Board of his plan to “strictly follow[] the letter and spirit of [their]
intended separation agreement.” J.A. 8434. Furthermore, the Sparks Foundation ultimately
hired plaintiff Saul Hillel Benjamin based on after-acquired evidence of
plaintiff Saul Hillel Benjamin’s misconduct?
J.A. 8630–31.
25
referred to Benjamin’s departure as a resignation after Dueck requested that Benjamin’s
separation from the Sparks Foundation be deemed a resignation rather than a termination.
In light of the record, we cannot say that the district court inadequately presented the issues
to the jury or abused its discretion in its verdict form.
Our role is not to ask how we would have drafted the verdict form given the
opportunity, but to determine whether the district court abused its discretion when it
presented the issues to the jury in the manner that it did. The record reflects evidence
supporting the district court’s framing of the issue as one of resignation as opposed to
termination. Because the district court did not abuse its discretion in drawing up the verdict
form, we affirm.
2.
Benjamin also contends that the district court abused its discretion in its jury
instructions on his breach-of-contract claim because the district court diverged from this
Court’s language in Stone. In Stone, we held that in deciding whether a resignation was
voluntary, we must “determine whether the employee was denied the opportunity to make
a free choice.” Stone, 855 F.2d at 174. Four factors guided our inquiry: “(1) whether the
employee was given some alternative to resignation; (2) whether the employee understood
the nature of the choice he was given; (3) whether the employee was given a reasonable
time in which to choose; and (4) whether he was permitted to select the effective date of
26
resignation.” Id. But we clarified that this is a “totality of [the] circumstances test,”
meaning that no single factor is dispositive. Id.Moreover, we noted that “the assessment whether real alternatives were offered
must be gauged by an objective standard rather than by the employee’s purely subjective
evaluation; that the employee may perceive his only option to be resignation—for example,
because of concerns about his reputation—is irrelevant.” Id. And we explained that “the
mere fact that [an employee’s] choice is between comparably unpleasant alternatives—
e.g., resignation or facing disciplinary charges—does not of itself establish that a
resignation was induced by duress or coercion, hence was involuntary.” Id.The district court recited our language from Stone in its jury instructions almost
verbatim. Where the question of voluntary resignation was relevant, the court instructed
the jury as follows:
You may find a resignation involuntary if, under the totality of the
circumstances, the employer’s conduct concerning the resignation deprived
the employee of free choice. Factors that you may consider include: (1)
whether plaintiff Saul Hillel Benjamin was given some alternative to
resignation (including a severance agreement or being terminated for cause);
(2) whether plaintiff Saul Hillel Benjamin understood the nature of the choice
he was given; (3) whether plaintiff Saul Hillel Benjamin was given a
reasonable time in which to choose whether to resign; (4) whether plaintiff
Saul Hillel Benjamin was permitted to select the effective date of resignation
or other terms of the resignation or severance agreement; and (5) statements
or actions by Saul Hillel Benjamin or the Epiphany School of Global Studies
during or after the meeting on November 21, 2013, concerning the alleged
resignation.
No one factor is controlling. You must consider the totality of the
circumstances in evaluating whether plaintiff Saul Hillel Benjamin proved
that his resignation was involuntary. In applying this totality of the
circumstances test, the assessment whether alternatives were offered must be
gauged by an objective standard rather than by plaintiff Saul Hillel
27
Benjamin’s purely subjective evaluation. The fact that plaintiff Saul Hillel
Benjamin may have perceived his only option to be resignation—for
example, because of concerns about his reputation or being terminated for
cause under the contract—is irrelevant. Similarly, the mere fact that the
choice is between comparably unpleasant alternatives—such as, resignation
or termination for cause under the contract—does not of itself establish that
a resignation was involuntary. This principle applies even where the only
alternative to resignation for the employee is facing possible termination for
cause, unless the employer actually lacked good cause to believe that a basis
for termination for cause existed.
J.A. 8592–93, 8601–02, 8610–11.
Benjamin nevertheless contends that these instructions were an abuse of discretion
because the district court broke from the language in Stone by including factual examples
beyond those provided by Stone. 6 He argues that these examples both weighed in favor of
the Defendants and improperly influenced the jury to consider only the first Stone factor
6
The bolded language in the court’s jury instructions, copied below, constitutes the factual
examples the court included, which Benjamin alleges went beyond the mandate in Stone:
You may find a resignation involuntary if, under the totality of the
circumstances, the employer’s conduct concerning the resignation deprived
the employee of free choice. Factors that you may consider include: (1)
whether plaintiff Saul Hillel Benjamin was given some alternative to
resignation (including a severance agreement or being terminated for
cause) . . . . No one factor is controlling. You must consider the totality of
the circumstances in evaluating whether plaintiff Saul Hillel Benjamin
proved that his resignation was involuntary. … Similarly, the mere fact that
the choice is between comparably unpleasant alternatives—such as,
resignation or termination for cause under the contract—does not of itself
establish that a resignation was involuntary. This principle applies even
where the only alternative to resignation for the employee is facing
possible termination for cause, unless the employer actually lacked good
cause to believe that a basis for termination for cause existed.
J.A. 8592–93, 8601–02, 8610–11.
28
(whether he was given alternatives). He also contends that the district court’s examples
were suggestive and misleading.
We find no abuse of discretion in the court’s instructions. In ascertaining the
voluntariness of a resignation, the crux of the matter is whether the employee was denied
the opportunity to make a free choice. Stone, 855 F.2d at 174. To assist in that
determination, we rely on the four Stone factors, mindful that no one factor is
determinative. In its instructions, the district court properly homed in on the pertinent legal
principle without tilting the scales in favor of one party over the other. 7
We recognize that district courts are often well-advised not to comment on specific
evidence in their jury instructions. See Hardin, 50 F.3d at 1294. For “such comments may
carry unacceptable risks of removing from the jury its critical task of assigning weight to
the evidence presented.” Id. Nevertheless, the choice to comment on such evidence
ultimately belongs to the district court. Id. As long as the instructions, on the one hand,
“are not merely statements of abstract principles of law with no relation to the facts,” and
on the other, “do[] not effectively direct a verdict for one side or the other,” “the choice of
generality versus specificity in the charge is a matter left to the sound discretion of the trial
courts.” Id. at 1294–95.
7
Appellate opinions, like Stone “are not jury instructions, nor are they meant to be.” Noel,
641 F.3d at 588. Our opinion in Stone “may guide a district judge’s discretion when
formulating jury instructions . . . [b]ut [it is] by no means intended to preempt a district
judge’s discretion to formulate a suitable charge for a specific trial.” Id.29
We further note that Benjamin offered his own jury instructions on breach of
contract. Relevant here, those instructions read:
Under the case law in this Circuit, there are numerous factors that you
can consider in evaluating whether an individual was forced to resign due to
duress or coercion. For example, factors that may be considered under the
totality of all the circumstances include: (1) whether the employee was given
some alternative to the ending of the employment relationship; (2) whether
the employee understood the nature of the choice he was given; (3) whether
the employee was given a reasonable time within which to choose whether
to resign from the employment relationship (for example, whether he was
given time to consult with an attorney before making the decision); and/or
(4) whether the employee was permitted to select the effective date for
termination of the employment relationship.
J.A. 5407. Benjamin’s proposal also instructed the jury that it would be asked to determine
whether Benjamin proved by a preponderance of the evidence that “the [Sparks]
Foundation terminated the Independent Contractor Agreement” and that “Epiphany
[School] terminated the Employment Agreement.” J.A. 5407–08.
To reverse the district court, we must determine that Benjamin’s instructions were
correct, were not substantially covered by the district court’s given instructions, and “dealt
with some point in the trial so important, that failure to give the requested instruction[s]
seriously impaired [Benjamin’s] ability to make [his] case.” Noel, 641 F.3d at 586 (internal
quotation marks omitted). Even assuming that Benjamin’s proposed instructions were
correct, we decline to reverse the district court because Benjamin’s proposed instructions
were substantially covered by the instructions actually given to the jury.
Regarding the instructions’ discussion of the Stone factors, we note the substantial
similarity between Benjamin’s proposed instructions and the court’s actual instructions.
Each factor was addressed and, as noted above, the court’s instructions focused the jury on
30
the relevant legal principles. Further, while Benjamin’s instructions referred to
“termination,” a word omitted from the court’s actual instructions, we believe that the
court’s framing of the issue as one of voluntary or involuntary resignation substantially
covered Benjamin’s requested instructions. We acknowledge the difference between
termination and involuntary resignation, but as discussed above, the district court properly
focused the jury on the relevant legal issue.
3.
Our determination that the district court did not abuse its discretion in instructing
the jury or drafting the verdict form with regard to Benjamin’s breach-of-contract claims
allows us to quickly dispose of several other issues Benjamin raises on appeal.
First, Benjamin argues that the after-acquired evidence defense should not have
been available as a complete defense to breach of contract. 8 But the jury found no breach
of contract, so it never reached the issue of related defenses. We need not determine the
breadth of a defense that was never considered at trial.
Second, Benjamin also appeals the district court’s orders dismissing some claims
and parties and granting summary judgment to Defendants on other claims. We apply a de
novo standard of review for appeals of both motions to dismiss for failure to state a claim,
8
In its jury instructions, the district court referred to an after-acquired evidence defense as
an affirmative defense to breach-of-contract liability, stating that “[a]fter-acquired
evidence of an employee’s misconduct that would have resulted in termination for cause
under a contract (or the employee having never been hired) bars a claim for breach of
contract.” J.A. 8597.
31
Bonds v. Leavitt, 629 F.3d 369, 385 (4th Cir. 2011), and summary-judgment orders,
Reyazuddin v. Montgomery Cnty., 789 F.3d 407, 413 (4th Cir. 2015).
Benjamin’s appeal of these orders stems from what he alleges to be unlawful
discrimination in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of
1964. Under both causes of action, Benjamin must demonstrate some adverse employment
action to proceed with his claim. See Coleman v. Md. Court of Appeals, 626 F.3d 187, 190
(4th Cir. 2010), aff’d sub nom. Coleman v. Court of Appeals of Md., 566 U.S. 30 (2012)
(including “adverse employment action” as an element in a prima facie case of employment
discrimination under Title VII); Bing v. Brivo Sys., LLC, 959 F.3d 605, 616 n.8 (4th Cir.
2020) (finding the elements of an employment discrimination claim under Title VII and
§ 1981 identical). Here, there was no adverse action because the jury determined that
Benjamin resigned voluntarily. 9 Cf. Laird v. Fairfax Cnty., 978 F.3d 887, 894 (4th Cir.
2020) (finding no “actionable adverse action” to support an employment-discrimination
claim where the employee voluntarily requested a transfer). We therefore affirm the district
court’s orders disposing of Benjamin’s employment-discrimination claims.
9
We recognize that constructive-discharge claims, where an employee feels compelled to
resign because of sufficiently intolerable workplace conditions, are actionable under Title
VII. Perkins v. Int’l Paper Co., 936 F.3d 196, 205–06 (4th Cir. 2019). But Benjamin never
alleged a constructive adverse action, nor does he raise such an argument on appeal.
Accordingly, any such argument is waived. United States v. Bartko, 728 F.3d 327, 335 (4th
Cir. 2013). This means that Benjamin’s Title VII claims rise or fall with the existence of a
directly (not constructively) adverse action. The jury’s conclusion that Benjamin
voluntarily resigned resolves that question.
32
B.
Finally, we consider Benjamin’s arguments related to his claim for defamation per
se. While Benjamin based his defamation per se claim on several statements Sparks
allegedly made about Benjamin’s mental health, only two of those statements were
ultimately submitted to the jury: (1) Sparks’s statement to the Epiphany School Board that
Benjamin “may be suffering from dementia or Alzheimer’s or something along those lines”
because “he just did not appear rational”; and (2) Sparks’s statement to two parents of
Epiphany School students that Sparks had to terminate Benjamin because Benjamin “had
dementia and bipolar disease” and that “bipolar disease runs in Benjamin’s family.” 10 J.A.
8633.
The verdict form assumed these two statements were slander per se and simply
tasked the jury with determining whether Benjamin had proved by a preponderance of the
10
Benjamin also claimed that: (3) Sparks told Dueck in “a series of communications” that
Benjamin was “suffering from a mental illness;” and (4) Sparks told the recruiter who
recommended Benjamin to Epiphany School that Sparks “thought [Benjamin] was
insane . . . [and] that he may have had a stroke or something” and that Benjamin was no
longer the man Sparks originally hired. J.A. 4027–28 (second alteration in original). At the
summary-judgment stage, the district court held that Sparks’s statements to Dueck—
Benjamin’s wife at the time—“[we]re personal and d[id] not reflect on or relate to
Benjamin as a professional,” and thus were not defamatory per se. J.A. 4032. With that
claim gone, only three of the alleged defamatory statements (numbers 1, 2, and 4) were
discussed at trial. At the close of Benjamin’s evidence, Sparks moved for a directed verdict
under Rule 50 of the Federal Rules of Civil Procedure on Benjamin’s defamation per se
claim. Finding that Sparks’s comment to the recruiter was a statement of opinion and given
the context of the comment and the “reasonable belief of [the] recipient,” the district court
granted Sparks’s Rule 50 motion as to that statement (number 4). J.A. 7610.
33
evidence that Sparks actually made the statements. Specifically, the issues presented in the
verdict form were:
(a) Did the plaintiff, Saul Hillel Benjamin, prove by a preponderance of the
evidence that the defendant, Nicholas Sparks, slandered him by saying to the
Board of Trustees of the Epiphany School of Global Studies that Saul Hillel
Benjamin “may be suffering from dementia or Alzheimer’s or something
along those lines” because “he just did not appear rational” in his actions in
their meeting on November 21, 2013? . . .
(b) Did the plaintiff, Saul Hillel Benjamin, prove by a preponderance of the
evidence that the defendant, Nicholas Sparks, slandered him by saying to [an
Epiphany School parent] and her husband that he terminated Saul Hillel
Benjamin because Saul Hillel Benjamin “had dementia and bipolar disease”
and that “bipolar disease runs in Benjamin’s family?”
Id. The jury answered both questions in the negative.
Benjamin claims that the district court erred by using quoted language in the verdict
form because the “[u]se of quotations without qualifying language . . . incorrectly directed
the jury to find whether or not Plaintiff had proven those precise, quoted statements in
order to prevail on his defamation claims, rather than similar statements testified to by
witnesses that also would be defamatory.” Opening Br. at 28.
Again, we review the district court’s choices in drafting the verdict form for abuse
of discretion. Horne, 4 F.3d at 284. In North Carolina, a claim of slander per se requires,
as relevant here: “(1) [the] defendant spoke base or defamatory words which tended to
prejudice [the plaintiff] in his reputation, office, trade, business or means of livelihood or
hold him up to disgrace, ridicule, or contempt; (2) the statement was false; and (3) the
statement was published or communicated to and understood by a third person.” West v.
King’s Dep’t Store, Inc., 365 S.E.2d 621, 624 (N.C. 1988). The plaintiff must allege
34
statements “substantially in haec verba, or with sufficient particularity” to allow the trial
judge to determine as a matter of law that the statements were defamatory. Andrews v.
Elliot, 426 S.E.2d 430, 432 (N.C. Ct. App. 1993). As the determination that the statements
were defamatory is a question of law left to the trial judge, the jury’s sole task on the first
prong of North Carolina’s slander per se test is determining whether the defendant in fact
made the defamatory statements. See id.Benjamin’s assertion that the jury should have been allowed to consider whether he
proved statements “similar” to those quoted on the verdict form is incorrect. The trial judge
determined, as a matter of law, that the quoted statements were defamatory; no such
determination was made for “similar” statements. And the court properly limited the jury’s
inquiry by quoting only those defamatory statements. Without this limitation, even the
most diligent and well-intentioned jury could have improperly returned a verdict finding
that Sparks had made some slanderous statement, without knowing if the district court
would have found that statement defamatory as a matter of law.
Furthermore, the use of pattern instructions is the preferred method of jury
instruction in North Carolina—and North Carolina’s pattern jury instructions recommend
quoting the allegedly defamatory claims to the jury. N.C.P.I.–Civil, 806.65 (2012); see In
re Will of Leonard, 323 S.E.2d 377, 379 (N.C. Ct. App. 1984). The district court’s language
aligned with the pattern instructions. 11
11
Benjamin points out that the pattern instructions “state the issue for the jury simply as:
‘Did the defendant slander the plaintiff?’” Reply Br. at 13 (quoting N.C.P.I.–Civil, 806.65
(2012)). He argues that, although the pattern instructions allow the trial court to quote the
35
The formulation of the language on a verdict form falls within the discretion of the
district court. Here, the district court did not abuse its discretion when it drafted the form,
in reliance on North Carolina’s pattern jury instructions, in such a manner that properly
limited the jury’s consideration to the narrow question before it.
VI.
For the reasons given above, the judgment of the district court is affirmed.
AFFIRMED
defamatory language in its instructions, they do not permit the court to include the language
in the verdict form. He claims this distinction is “for good reason,” but he provides none.
Id. We do not read the pattern instructions as limiting trial courts to only those six words
in drafting their verdict forms.
36