Bisbano, Sr. v. Strine Printing Company, Inc. , 737 F.3d 104 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 13-1722
RICHARD BISBANO, SR.,
Plaintiff, Appellant,
v.
STRINE PRINTING CO., INC., AND MICHAEL STRINE, SR.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Howard, Selya and Stahl,
Circuit Judges.
V. Edward Formisano and Formisano & Company on brief for
appellant.
Jeffrey S. Brenner, Steven M. Richard, and Nixon Peabody LLP
on brief for appellees.
November 27, 2013
SELYA, Circuit Judge. The practice of giving gifts as a
means of securing favors is as old as the hills. In ancient
Greece, for example, legend has it that Zeus asked Paris, a Trojan
prince, to decide which of three goddesses was the fairest of them
all. Paris chose Aphrodite, rejecting proffered bribes of kingly
power from Hera and military might from Athena. But Aphrodite too
had tendered a bribe, agreeing to help him win the hand of the most
beautiful woman alive.
A modern-day commercial equivalent of this practice is
the giving of a gratuity to a procurement officer, behind her
employer's back, for the purpose of steering a contract to the
donor. But sales techniques of this sort are by their nature
clandestine; they cannot withstand the sunlight. If the employer
learns about the kickback, the consequences are usually unpleasant.
This case, in which defendants Michael Strine and his eponymous
firm, Strine Printing Company (SPC), first hired and later fired
the plaintiff, Richard Bisbano, turns on such a revelation.
When he was cashiered, the plaintiff did not go quietly
into obscurity but, rather, brought suit for an oleaginous mass of
perceived wrongs, including unjust enrichment, tortious
interference with prospective contractual relations, breach of
contract, breach of an implied covenant of good faith and fair
dealing, and misrepresentation. The district court, deftly sorting
wheat from chaff, granted summary judgment in favor of the
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defendants. See Bisbano v. Strine Printing Co., No. 10-358, 2013
WL 1907455, at *12 (D.R.I. May 8, 2013). After careful
consideration, we affirm.
I. BACKGROUND
We assume the reader's familiarity with the district
court's factual account and, thus, start by tracing the genesis of
this appeal. To the extent that we discuss the facts, we take them
(and the reasonable inferences therefrom) in the light most
hospitable to the summary judgment loser (here, the plaintiff).
See Griggs-Ryan v. Smith, 904 F.2d 112, 114 (1st Cir. 1990).
The plaintiff is a veteran sales representative who
specializes in the sale of commercial printing services. For
nearly two decades, CVS (a powerhouse firm that owns and operates
thousands of drug stores) was a significant source of business for
him. Over the years, he carried that client with him from Winthrop
Printing Company to Allied Printing Services (Allied) and,
eventually, to SPC. During most of this odyssey, the plaintiff
used a broker, Vanco, as an intermediary to assist him in securing
CVS's business.
When the plaintiff shifted his allegiance to SPC in
December of 2006, he also took with him a secret. While working
for Allied, he had surreptiously helped to pay the car lease of a
CVS printing department employee.
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Allied was not happy about the plaintiff's departure and
his ensuing solicitation of CVS on his new employer's behalf. It
sued both the plaintiff and SPC, and these suits complicated the
parties' tug-of-war over CVS's patronage.
To complicate matters further, the suits apparently
spooked Vanco. As a result, the broker began to steer what CVS
business it could influence to other printers. On learning of
Vanco's perfidy, the plaintiff and SPC decided to forge a direct
relationship with CVS and, in mid-2007, cut all ties with Vanco.
The plaintiff's 2008 commissions dropped precipitously,
reflecting this parting of the ways. By the following year,
however, his commissions had rebounded to their 2007 level. They
continued to rise during the first half of 2010.
This story might have had a happy ending but for the
plaintiff's earlier indiscretion. In the course of an internal
review of its printing procurement practices, CVS learned of the
plaintiff's role, while at Allied, in the apparent kickback.
In April of 2010, the plaintiff confessed his complicity
to CVS executives. Shortly afterward, CVS's vice president for
strategic procurement decided that the company would not do
business with the plaintiff and that SPC would need to remove him
from the CVS account. Although the plaintiff contests whether this
decision was contemporaneously communicated to the defendants, it
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is undisputed that CVS made the decision and that, at the end of
June, SPC dismissed the plaintiff.
The plaintiff repaired to a Rhode Island state court,
pressing a welter of contract, quasi-contract, and tort claims
against the defendants. Citing diversity of citizenship and the
existence of a controversy in the requisite amount, the defendants
removed the action to federal court. See 28 U.S.C. §§ 1332(a),
1441.
We fast-forward to the close of discovery. At that
point, the defendants moved for summary judgment. See Fed. R. Civ.
P. 56. Over the plaintiff's objection, the district court granted
the motion. See Bisbano, 2013 WL 1907455, at *12. This timely
appeal followed. We have jurisdiction under 28 U.S.C. § 1291.
II. ANALYSIS
Because this is a diversity case that has its center of
gravity in Rhode Island, that state's substantive law supplies the
rules of decision. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78
(1938); Gibson v. City of Cranston, 37 F.3d 731, 735 (1st Cir.
1994). We review the district court's entry of summary judgment de
novo. See Jones v. Secord, 684 F.3d 1, 5 (1st Cir. 2012).
A. Unjust Enrichment.
The plaintiff's unjust enrichment claim is the logical
starting point. In Rhode Island, a plaintiff who seeks to recover
for unjust enrichment must prove that he conferred a benefit on the
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defendant; that the defendant knew of the benefit and appreciated
it; and that it would be unfair for the defendant to retain the
benefit without paying for it. See Multi-State Restoration, Inc.
v. DWS Props., LLC, 61 A.3d 414, 418-19 (R.I. 2013); R & B Elec.
Co. v. Amco Constr. Co., 471 A.2d 1351, 1355-56 (R.I. 1984).
The plaintiff identifies three benefits that he claims to
have conferred on the defendants: he "brought the CVS print work to
[SPC];" "secured additional printing work from CVS during his
employment;" and "obtained 'preferred vendor status' for [SPC]."1
We can make short shrift of the first two "benefit" claims. It is
uncontroverted that the plaintiff received commissions for the CVS
business that he generated while with SPC. Where, as here, a
plaintiff is fully compensated for a benefit conferred, a claim for
unjust enrichment will not lie. See Narragansett Elec. Co. v.
Carbone, 898 A.2d 87, 99 (R.I. 2006) (explaining, with respect to
unjust enrichment, that "a benefit is conferred when . . . services
are rendered without payment" (emphasis supplied)).
At first blush, the plaintiff's claim with respect to
preferred vendor status looks more promising. He argues that SPC
attained this status through his efforts and, as a result, was put
"in a position to receive a substantial share of CVS's printing
1
In enumerating the benefits that he ostensibly conferred on
SPC, the plaintiff also mentions the work that he did with CVS
prior to his recruitment by SPC. This earlier work cannot
conceivably constitute an independent benefit conferred on SPC.
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work." Generously construed, the plaintiff's argument is that his
anticipated remuneration for these efforts was to be the
opportunity to pursue future commission-generating sales to CVS.
Having been denied that opportunity by reason of his ouster, he
seeks to recover its value.
This argument is incompatible with the evidence. The
record makes manifest that preferred vendor status is simply a pre-
qualification that clears the way for a supplier to bid on CVS's
emerging print orders. So viewed, the plaintiff's efforts to help
SPC achieve preferred vendor status were part and parcel of his
normal sales activities — work for which he was fully compensated.
The plaintiff's own characterization of his efforts
supports this conclusion. When asked in an interrogatory to
describe what he had done to obtain preferred vendor status for
CVS, he responded:
I provided CVS with the highest level and
quality of service. I filtered errors and
printing mistakes [SPC] made. I had several
meetings with CVS to ensure that the company
was satisfied and that its printing needs were
being met. I also provided valuable
information on how best to handle various
projects. I also sought additional printing
opportunities for [SPC] from different
departments at CVS.
These labors are precisely those that one would expect a sales
representative to undertake in the ordinary course of his duties.
The decision in Arrison v. Information Resources, Inc.,
No. 95-3554, 1999 WL 551232 (N.D. Cal. July 16, 1999), much bruited
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by the plaintiff, turns out to be a dead end. There, the
plaintiff's employer asked him to pursue a sales arrangement that
was outside the customary scope of his work. See id. at *3. As a
result, the plaintiff spent a year courting a prospective client.
See id. When he was on the verge of closing the deal, the rug was
pulled out from under him: the prospective client purchased his
employer outright, thus rendering the sales arrangement moot and
depriving the plaintiff of his anticipated commission. See id.
On these idiosyncratic facts, the court found that "but
for" the acquisition of the company, the plaintiff would have
completed the product sale. Id. at *6. Relatedly, the court found
that the plaintiff's "efforts were a significant factor that
contributed to the . . . acquisition." Id. at *7. Thus, he was
entitled to recover the reasonable value of his efforts on a theory
of quantum meruit.2 See id. at *7-9.
This case is a horse of a much different hue. The record
contains nothing to indicate that SPC asked the plaintiff to
perform additional, uncompensated services related to the CVS
account — nor does the plaintiff offer any evidence that he did so.
The holding in Arrison is, therefore, inapposite.
2
Quantum meruit is a species of unjust enrichment. See
ConFold Pac., Inc. v. Polaris Indus., Inc., 433 F.3d 952, 957-58
(7th Cir. 2006). For present purposes, we need not draw fine
distinctions among the various branches of the doctrine of unjust
enrichment.
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B. Intentional Interference.
We turn next to the plaintiff's claim of intentional
interference with prospective contractual relations. In order to
recover on such a claim, Rhode Island requires a plaintiff to
prove: "(1) the existence of a business relationship or expectancy,
(2) knowledge by the interferor of the relationship or expectancy,
(3) an intentional act of interference, (4) proof that the
interference caused the harm sustained, and (5) damages to the
plaintiff." L.A. Ray Realty v. Town Council of Cumberland, 698
A.2d 202, 207 (R.I. 1997). There is, moreover, a sixth
requirement: the act of interference must be "improper." Avilla v.
Newport Grand Jai Alai LLC, 935 A.2d 91, 98 (R.I. 2007).
We are skeptical that the plaintiff's claim satisfies any
of these elements, but we need not go beyond the first. The
plaintiff insists that the district court erred in holding that
because he did not have a bilateral contract with CVS, he did not
have a business relationship. This contention is premised on a
misreading of the district court's opinion. Although the court
observed as a matter of historical fact that "the contractual
relationship was between [SPC] and CVS," Bisbano, 2013 WL 1907455,
at *7, the basis for its decision was that the plaintiff's
relationship with CVS "was severed unilaterally by CVS," id. This
perspective comports with the reality of relevant events.
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The record makes pellucid that the plaintiff had a long-
standing relationship with CVS. It makes equally pellucid,
however, that CVS ended that relationship prior to the plaintiff's
discharge by SPC and that, from then on, CVS wanted no part of the
plaintiff. Thus, there was neither an existing nor a prospective
business relationship between the plaintiff and CVS when the
alleged act of interference took place. The first requirement of
the tort was, therefore, lacking. See, e.g., Gifford v. Sun Data,
Inc., 686 A.2d 472, 475 (Vt. 1996); see also New England Multi-Unit
Hous. Laundry Ass'n v. R.I. Hous. & Mortg. Fin. Corp., 893 F. Supp.
1180, 1193 (D.R.I. 1995).
In an attempt to efface this reasoning, the plaintiff
asserts that there is a genuine issue of material fact about
whether CVS's decision to exile him was communicated to the
defendants. But this is a red herring: the factual dispute to
which the plaintiff adverts, even if it exists, is not material.
After all, "a fact is 'material' only when it possesses the
capacity, if determined as the nonmovant wishes, to alter the
outcome of the lawsuit under the applicable legal tenets." Roche
v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 253 (1st Cir.
1996). Even if the defendants never learned of CVS's decision, it
remains undisputed that the decision was made and, thus, that any
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relationship between CVS and the plaintiff (current or prospective)
had evaporated.3
For essentially the same reason, the plaintiff cannot
make out the fourth element of the tort. The harm that the
plaintiff argues he suffered is "the cessation of [the plaintiff's]
relationship with CVS." As we have explained, this relationship
ended prior to the termination of the plaintiff's employment (and,
thus, prior to the alleged act of intentional interference).
That ends this aspect of the analysis. It is a matter of
chronology, not a question of disputed fact, that SPC could not
have induced CVS to break off a relationship that CVS already had
relegated to the scrap heap. Cf. Restatement (Second) of Torts
§ 766B (1979) (stating that liability attaches if "the interference
consists of (a) inducing or otherwise causing a third person not to
enter into or continue the prospective relation or (b) preventing
the other from acquiring or continuing the prospective relation").
C. Contract Claims.
We come now to the plaintiff's contract claims. We begin
with the plaintiff's assertion that he had a contract guaranteeing
3
Of course, if the defendants never learned of the CVS
directive, one might wonder about their motive for terminating the
plaintiff's employment. But any such speculation would be
irrelevant: even assuming for argument's sake that the defendants
had an ulterior motive for ending the employment relationship, the
termination could not have had any influence on CVS's prior
decision (and, thus, could not have constituted intentional
interference).
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his continued employment with SPC. He describes this contract as
either an express oral contract or a contract implied in fact.
The plaintiff's version of this alleged contract has
varied from time to time. In an interrogatory answer, the
plaintiff suggested that SPC promised to employ him as long as he
continued to bring in CVS business. In his deposition testimony,
he suggested that SPC promised to employ him as long as it
continued to do business with CVS. We need not test the
inconsistency between these accounts. Either way, the plaintiff's
version can only be understood in the context of the plaintiff's
employment status.
When SPC hired the plaintiff, he was given an employee
handbook and acknowledged in writing that, consistent with the
provisions of the handbook, his "employment [was] at-will for an
indefinite period." This is of decretory significance because "the
firmly established rule in Rhode Island [is] that a contract to
render personal services to another for an indefinite term is
terminable at the will of either party at any time for any reason
or for no reason at all." Roy v. Woonsocket Inst. for Sav., 525
A.2d 915, 917 (R.I. 1987).
There are telling signs that this acknowledged status did
not change over time. The plaintiff conceded during his deposition
that he was always an at-will employee of SPC. Furthermore, he
admitted that he "had no contract."
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Before us, the plaintiff attempts to confess and avoid.
Without disputing the foregoing facts, he argues that SPC had the
power to alter his employment status and that, over the course of
time, it did just that.
To be sure, the district court canvassed two kinds of
evidence before rejecting this claim. See Bisbano, 2013 WL
1907455, at *9-10. The first category is composed of a series of
e-mails sent to the plaintiff by Strine, encouraging him to solicit
CVS business and emphasizing the long-term importance of CVS as a
client. After careful review of these e-mails, we conclude, as did
the district court, id. at *9, that they do not support the
plaintiff's contention that his at-will employment status was
altered. Regardless of whether the e-mails are read individually
or collectively, they do not suggest, let alone state, that SPC
purposed to employ the plaintiff on terms other than at will. Even
when stretched to their outer limit, the e-mails are "general
expressions of job longevity," insufficient to create a triable
issue of fact about the existence of a contract. Brooks v. Hilton
Casinos, Inc., 959 F.2d 757, 762-63 (9th Cir. 1992).
The remaining category of evidence is composed of the
plaintiff's own testimony regarding his interpretation of
assurances that SPC supposedly gave to him about his continued
employment. In our view, the plaintiff's interpretation of the
alleged assurances is objectively unreasonable and, thus, the
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statements cannot carry the weight that the plaintiff loads upon
them.
We need not tarry. On this point, the case at hand is on
all fours with the decision in Galloway v. Roger Williams
University, 777 A.2d 148 (R.I. 2001) (per curiam). There, a
university administrator had acknowledged in writing his receipt of
an employee manual detailing his at-will status. Id. at 148-49.
Subsequently, his superiors told him that he would be re-appointed
to his position, and he relied on that assurance in passing up a
potential job at another college. Id. at 149. The court affirmed
the trial court's summary judgment determination that, in light of
the notice that the university had given the plaintiff of his at-
will status, his "reliance on the so-called promises of [his
superiors] was neither reasonable nor actionable." Id. at 150.
The Rhode Island Supreme Court has taken Galloway to mean
that when an individual has received written notice that
contradicts a later oral promise, "any reliance on that oral
promise [is] unreasonable." Filippi v. Filippi, 818 A.2d 608, 627
(R.I. 2003). That is precisely the situation here.
The plaintiff strives to persuade us that SPC's
ostensible promise to continue to employ him "involved more" than
was present in Galloway. We are not convinced.
We have ransacked the record in search of such evidence.
That search has proven to be fruitless: in this respect, the record
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is as empty as Mother Hubbard's cupboard. We conclude, therefore,
that "the plaintiff's unilateral belief that he had job security is
insufficient as a matter of law to create a triable issue of fact."
DelSignore v. Providence Journal Co., 691 A.2d 1050, 1052 (R.I.
1997) (per curiam).
There is one loose end: the plaintiff has also asserted
a claim for violation of a covenant of good faith and fair dealing.
It is axiomatic, however, that such a covenant only comes into
existence ancillary to a binding contract. See Centerville
Builders, Inc. v. Wynne, 683 A.2d 1340, 1342 (R.I. 1996) (per
curiam). Inasmuch as we have rejected the plaintiff's contract
claims, it follows inexorably that we must likewise reject his
claim for breach of an implied covenant of good faith and fair
dealing. See, e.g., Crellin Techs., Inc. v. Equipmentlease Corp.,
18 F.3d 1, 10 (1st Cir. 1994) (construing Rhode Island law).
D. Misrepresentation.
This leaves the plaintiff's claims for intentional
misrepresentation and negligent misrepresentation. These claims
bear a strong family resemblance to each other, especially as
presented here. Consequently, we treat them together.
To recover for intentional misrepresentation — also known
in Rhode Island as the tort of deceit — a plaintiff must prove that
the defendant knowingly made a false statement, intending to
deceive, and induced the plaintiff to rely on it to his detriment.
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See Francis v. Am. Bankers Life Assur. Co. of Fla., 861 A.2d 1040,
1046 (R.I. 2004) (per curiam); Katz v. Prete, 459 A.2d 81, 84 (R.I.
1983). To recover for negligent misrepresentation, a plaintiff
must prove that the defendant made an untrue statement of material
fact that he either knew or should have known was false (or, at
least, made it heedless of its truth or falsity); that the
defendant intended the plaintiff to act on the false statement; and
that the plaintiff, acting in justifiable reliance on the
statement, was injured. See Zarrella v. Minn. Mut. Life Ins. Co.,
824 A.2d 1249, 1257 (R.I. 2003).
In support of his misrepresentation claims, the plaintiff
relies on the same evidence — the e-mails and the oral assurances
— that we previously surveyed in connection with his contract
claims. For this purpose, the evidence is equally impuissant.
To begin, none of Strine's e-mails contained false
assertions. So, too, Strine's alleged statements to the effect
"that as long as [the plaintiff] continued to secure CVS's printing
work for [SPC] . . . he would remain employed at the company" were
not false: SPC kept the plaintiff on the payroll for as long as he
was able to secure CVS business. It was not until CVS decided that
it would no longer traffic with the plaintiff that SPC cut him
loose.
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Three additional considerations reinforce our conclusion
that the plaintiff's misrepresentation claims fail as a matter of
law.
First, the plaintiff has not proffered any facts to
support his conclusory statement that he relied on Strine's alleged
misrepresentation. What actions he took — such as trying to secure
preferred vendor status for SPC — were entirely consistent with
doing the job for which the plaintiff was hired and remunerated.
Put another way, there is nothing in the record that suggests that
the plaintiff would have acted differently had the defendants not
made the representations. This, in itself, suffices to defeat his
claim of detrimental reliance. See, e.g., Hinchey v. NYNEX Corp.,
144 F.3d 134, 146 (1st Cir. 1998); Asermely v. Allstate Ins. Co.,
728 A.2d 461, 464 (R.I. 1999) (per curiam).
Second, the plaintiff has wholly failed to show that any
such reliance would have been reasonable. See supra Part IIC; see
also Galloway, 777 A.2d at 150. As one court put it in analogous
circumstances involving an at-will employee, "[the employers] did
no more than express their expectation that the person hired would
enjoy long-term employment. Their representation was made to
'sell' [the plaintiff] on their company, not to guide him with
professional employment advice. The tort of negligent
misrepresentation simply has no application under these
circumstances." Fry v. Mount, 554 N.W.2d 263, 267 (Iowa 1996).
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Third, even if the plaintiff had reasonably relied on
SPC's statements — and we emphasize that there is no basis for
concluding that he did — he has not adduced a shred of proof that
such reliance was detrimental. In this regard, he argues only that
his reliance caused him "the loss of his relationship with CVS as
well as the loss of prospective commissions." But these losses, by
any leap of even the most agile imagination, cannot be said to flow
from the plaintiff's reliance on SPC's representations. The losses
unarguably flowed from CVS's discovery of the plaintiff's corrupt
relationship with a CVS official and CVS's ensuing decision to
sever all ties with the plaintiff. Seen in this light, the
plaintiff was the author of his own misfortune.4
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
4
The mere fact that Strine's representations may have induced
the plaintiff to continue working for SPC does not prove that the
representations were the cause of the losses about which he now
complains. See, e.g., Sparks v. Fid. Nat'l Title Ins. Co., 294
F.3d 259, 273 (1st Cir. 2002); Restatement (Second) of Torts § 548A
(1977).
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