Soth v. Baltimore Sunpapers ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EDWARD D. SOTH, JR.,
Plaintiff-Appellant,
v.
BALTIMORE SUNPAPERS,
INCORPORATED, a Maryland
Corporation; THE BALTIMORE SUN
COMPANY, a Maryland Corporation;
DIANA M. MURPHY, formerly known
as Diana M. Zinda, individually and
in her corporate capacity as Vice
No. 96-2385
President for Advertising and
Marketing; JACK ROSS, individually
and in his official corporate
capacity as Classified Advertising
Manager; JOHN KIDWELL,
individually and in his corporate
capacity as Automotive Manager;
JAMES BORN, individually and in his
corporate capacity as Automotive
Supervisor,
Defendants-Appellees.
EDWARD D. SOTH, JR.,
Plaintiff-Appellant,
v.
BALTIMORE SUNPAPERS,
INCORPORATED, a Maryland
Corporation; THE BALTIMORE SUN
COMPANY, a Maryland Corporation;
DIANA M. MURPHY, formerly known
as Diana M. Zinda, individually and
in her corporate capacity as Vice
No. 96-2390
President for Advertising and
Marketing; JACK ROSS, individually
and in his official corporate
capacity as Classified Advertising
Manager; JOHN KIDWELL,
individually and in his corporate
capacity as Automotive Manager;
JAMES BORN, individually and in his
corporate capacity as Automotive
Supervisor,
Defendants-Appellees.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Joseph H. Young, Senior District Judge.
(CA-94-1349-Y, CA-94-1350-Y)
Argued: April 9, 1998
Decided: May 4, 1998
Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
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COUNSEL
ARGUED: Glen Marcus Fallin, Westminster, Maryland, for Appel-
lant. Darrell Robert VanDeusen, KOLLMAN & SHEEHAN, P.A.,
Baltimore, Maryland, for Appellees. ON BRIEF: Randi A. Klein,
KOLLMAN & SHEEHAN, P.A., Baltimore, Maryland, for Appel-
lees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
This consolidated appeal arises from two suits originally filed by
Edward D. Soth, Jr., in the Circuit Court for Baltimore City against
his former employer, Baltimore Sunpapers, Inc. and the Baltimore
Sun Company, and four of the Sunpapers' former or current managers
(collectively the Defendants). The two suits alleged identical state law
claims of abusive discharge, violations of the Maryland Antitrust Act,
tortious interference with contract, and civil conspiracy. One of the
suits, however, also contained a retaliation claim pursuant to 42
U.S.C.A. § 1981 (West 1994). The Defendants removed both suits on
the basis that Soth's state law claims were completely preempted by
§ 301 of the Labor Management Relations Act, 29 U.S.C.A. § 185(a)
(West 1978). The district court granted Soth's request to withdraw his
§ 1981 claim and consolidated the suits for consideration of Soth's
motion to remand and the Defendants' motion for summary judgment.
Soth appeals the district court's order denying Soth's motion to
remand and granting summary judgment in favor of the Defendants
on all of Soth's claims. Finding no error, we affirm.
We review a district court's grant of summary judgment de novo.
See Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167
(4th Cir. 1988). Summary judgment is appropriate"if the pleadings,
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depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judg-
ment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). In considering whether summary
judgment is proper, all inferences to be drawn from the underlying
facts must be viewed in the light most favorable to the non-moving
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Viewed in the light most favorable to Soth, the facts are as follows.
Soth was employed in September of 1987 by the Sunpapers as an
automotive advertising sales representative. His primary duty was
selling advertising space in the Baltimore Sun , the Evening Sun, and
the Sunday Sun to specific automotive dealership accounts within a
certain geographical area. Soth's immediate supervisor was James
Born. Born reported to automotive sales manager John Kidwell, who
reported to the classified advertising manager, Jack Ross, who
reported to the vice-president of advertising and marketing, Diana
Murphy -- the four individual defendants named in Soth's complaint.
Soth's employment was governed by a Collective Bargaining
Agreement (CBA) between the Washington-Baltimore Newspaper
Guild (the union) and the Baltimore Sun Company. Article VIII of the
CBA provided that an employee may not be discharged except for
just and sufficient cause. Article XX, § 20.1, governing conflicts of
interest and the right to engage in outside activities, provided:
Employees shall be free to engage in any activities out-
side their working hours which do not constitute service for
any interest or publication in competition with the[Sun]. No
employee, without permission of the [Sun], shall use in the
course of such activities any material or featured title of the
[Sun] or exploit in any way the employee's connection with
the [Sun].
(J.A. at 402.)
On July 30, 1990, the Sunpapers learned that Soth was engaging
in advertising in violation of the CBA's clause restricting employees
from engaging in outside activities in competition with the Sunpapers.
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Soth was seen at Brown's Toyota dealership by George Stinebaugh
who handled the Sunpapers' account there. Soth admitted that he was
meeting with the General Manager of Brown's to discuss the possibil-
ity of a future business relationship in case he ever left the Sunpapers.
Soth concedes that since 1989, he performed "print coordination" ser-
vices and prepared "rough layouts" for placement in newspapers other
than the Sunpapers for the Beal GMC Truck, Al Packer Lincoln-
Mercury, and Harco Oldsmobile dealerships. In exchange for these
advertising services, Beal provided Soth with a 1987 GMC Jimmy
Truck; Al Packer paid him $1,000 a month; and Harco paid him $750
per month. Soth earned the equivalent of approximately $24,000.00
per year for his outside advertising work.
On July 31, Soth was notified in writing that he was being placed
on a five-day suspension without pay. Jack Ross, one of Soth's super-
visors, reviewed the suspension letter with him. Defendants claim that
during his suspension, Soth placed two advertisements for his per-
sonal advertising clients. Soth claims that the work he did during the
suspension was for the Sunpapers and was in response to a telephone
call made by one of his coworkers, Rich Watkins, on behalf of Soth's
direct supervisor, Born. Soth concedes, however, that during his sus-
pension he called the Harford County Sun, one of the Sunpapers' sub-
urban editions, and instructed the newspaper to rerun a Harco
Oldsmobile dealership advertisement that he had prepared a week ear-
lier. On August 3, 1990, Soth was notified in writing that he was
being discharged immediately for gross insubordination for violating
the terms of his suspension by continuing to engage in the activity of
outside advertising by placing ads in the Baltimore Sun and the
Harford County Sun on behalf of Harco Oldsmobile.
Soth challenged his discharge through the grievance and binding
arbitration provisions of the CBA. On March 25, 1991, the arbitrator,
after a two-day hearing and testimony from fourteen witnesses, deter-
mined that the employer "had just and sufficient cause" for suspend-
ing and discharging Soth, and that Soth was not deprived of due
process by the employer. (J.A. at 399.) On August 19, 1991, Soth
filed an unfair labor practice charge with the NLRB, claiming that the
Sunpapers had terminated him and refused to reinstate him because
of his activities on behalf of the Washington-Baltimore News Guild.
The NLRB Regional Director determined that Soth's charge did not
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warrant the issuance of a complaint because it was untimely. Soth
appealed that decision, but the NLRB confirmed the Regional Direc-
tor's determination that the charge had not been timely filed and that
further proceedings were therefore barred. Soth next filed charges
with the EEOC and the American Arbitration Association which were
also dismissed as untimely.
Soth then filed a complaint in the United States District Court for
the District of Maryland. The district court dismissed Soth's com-
plaint on October 13, 1992, for lack of subject matter jurisdiction,
failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), and for
failure to serve the summons and complaint within 120 days from fil-
ing pursuant to Fed. R. Civ. P. 4(j). Soth then filed the two suits in
the Circuit Court for Baltimore City which were removed by the
Defendants and are presently before us. In those suits Soth claimed
that the real reason for his discharge was retaliation for his opposition,
six months prior to his termination, to the Sunpapers' decision to offer
one automobile dealership a full-page, front-of-section advertisement
at one-half of the price that another dealership had regularly paid for
it, which Soth believed violated Maryland's Antitrust Act. Specifi-
cally, Soth claims that the placement of this advertisement constituted
price discrimination and that he was discharged because he threatened
to tell the publisher of the Sunpapers and the FTC.
The district court denied Soth's motion to remand, determining that
federal jurisdiction over the consolidated suits was proper notwith-
standing Soth's withdrawal of his § 1981 claim because Soth's claim
for tortious interference with contract was completely preempted by
§ 301(a) of the Labor Management Relations Act of 1947, 29
U.S.C.A. § 185(a) (West 1978).* The district court exercised supple-
mental jurisdiction over Soth's remaining state law claims. See 28
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*These suits present an exception to the general rule that "federal pre-
emption defenses do not ordinarily permit federal courts to exercise sub-
ject matter jurisdiction over claims that a plaintiff predicates on state
law." See Custer v. Sweeney, 89 F.3d 1156, 1165 (4th Cir. 1996). The
exception is "complete preemption" and that has only been found in a
few cases, including § 301 of the Labor Management Relations Act. See
Avco Corp. v. Aero Lodge No. 735, Int'l Assoc. of Machinists, 390 U.S.
557, 560 (1968).
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U.S.C.A. § 1367 (West 1990). The district court held that Soth's
claim for tortious interference with contract was barred by the six-
month statute of limitations for § 301 claims. As to Soth's claims
under the Maryland Antitrust Act, the district court concluded that
Soth had not raised a genuine issue of material fact as to whether a
monopoly power existed and was maintained in the relevant market
through the Sunpapers' half-price discounting of one advertisement
on one day. Furthermore, the district judge stated that no evidence of
competitive injury had been introduced in support of Soth's price dis-
crimination claim. The district court noted that Soth's claim for abu-
sive discharge required Soth to demonstrate that he was discharged in
violation of a clear mandate of public policy, see Adler v. American
Standard Corp., 432 A.2d 464, 473 (Md. 1981), and that his conspir-
acy claim required a showing that the Sunpapers had agreed to com-
mit an unlawful act, see Yousef v. Trustbank Savings, 568 A.2d 1134,
1139 (Md. Ct. Spec. App. 1990). Because the district court concluded
that the Sunpapers did not violate the Maryland Antitrust Act, it fol-
lowed that there was no violation of public policy and no unlawful
act. Accordingly, the district court granted summary judgment for the
Defendants on all of Soth's claims.
We have reviewed the record, briefs, and pertinent case law in this
matter, and we have had the benefit of oral argument. Our careful
review persuades us that the rulings of the district court were correct.
Accordingly, we affirm on the reasoning set forth in the district
court's thorough opinion. See Soth v. The Baltimore Sun Co.,
No. Y-94-1349 (D. Md. July 18, 1996).
AFFIRMED
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