GLN Compliance Group, Inc. v. Naekel , 482 F. App'x 313 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 2, 2012
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
GLN COMPLIANCE GROUP, INC.,
Plaintiff,
v. No. 11-1246
(D.C. No. 1:01-CV-02313-JLK-CBS)
JONATHAN ROSS, (D. Colo.)
Defendant/Third-Party
Plaintiff/Appellee
v.
GERALD NAEKEL,
Third-Party Defendant/
Appellant.
ORDER AND JUDGMENT *
Before LUCERO, McKAY, and GORSUCH, Circuit Judges.
This case has a lengthy and complicated procedural history. Our focus on
appeal is limited to the district court’s judgment against third-party defendant
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Gerald Naekel 1 for conducting himself outrageously toward and defaming
third-party plaintiff Jonathan Ross. Reviewing the district court’s legal
conclusions de novo and its factual findings for clear error, as is appropriate
following a bench trial, Chavez v. City of Albuquerque, 630 F.3d 1300, 1306
(10th Cir. 2011), we affirm.
I
Naekel’s company, GLN Compliance Group (“GLN”), contracted to
support United Airlines (“United”) in United’s effort to secure operating
certifications from the Federal Aviation Administration (“FAA”). Ross, an
independent contractor under Naekel’s supervision, served as the chief pilot on
the project. As the district court’s opinion sets out in detail, the relationship
between GLN and United soured during May and June 2001, and finally
terminated effective July 12, 2001.
1
Naekel is the only recognized appellant on appeal. Although he purports to
represent himself and GLN Compliance Group, the rule in this circuit is that a
corporation may appear in federal court only through an attorney. See Tal v.
Hogan, 453 F.3d 1244, 1254 (10th Cir. 2006). Naekel claims that GLN
transferred to him all rights, obligations, and responsibilities relating to this civil
action; however, courts have rejected such assignments as “no more than a
procedural subterfuge to avoid court rules prohibiting corporations from
appearing without legal representation.” 9A Fletcher Cyclopedia of the Law of
Corporations § 4463 (2012); see, e.g., Pridgen v. Andresen, 113 F.3d 391, 393
(2d Cir. 1997); Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1385-86 (11th Cir.
1985). We therefore limit our review to rulings involving Naekel personally.
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Ross and several other individuals accepted United’s offer to stay on the
project until the certification process was completed. Naekel acknowledges that
Ross was free to contract with United. However, he viewed Ross’ choice as a
betrayal. For the next eight years, Naekel “undertook a concerted, systematic
campaign of malicious misinformation, threats, and hyperbolic statements against
Ross . . . through emails, telephonic messages, and postings on GLN’s website.”
Among other things, Naekel accused Ross of theft. These actions form the basis
of Ross’ eventual cross-claim against Naekel for defamation and outrageous
conduct.
II
A
Naekel does not deny making the statements attributed to him; instead he
claims that these statement were truthful. The district court, however, found that
Naekel’s accusations against Ross were false. Our review of such a factual
finding is limited and deferential:
In an appeal from a bench trial . . . [i]t is not the role of an
appellate court to retry the facts, because the court below has the
exclusive function of appraising credibility, determining the weight
to be given testimony, drawing inferences from facts established, and
resolving conflicts in the evidence. That the record supports a view
of the evidence that is permissible but contrary to the trial court’s
findings is not sufficient to warrant upsetting the lower court’s
findings. Instead, findings of fact are clearly erroneous when they
are unsupported in the record, or if after our review of the record we
have the definite and firm conviction that a mistake has been made.
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Holdeman v. Devine, 572 F.3d 1190, 1192 (10th Cir. 2009) (alterations omitted).
Upon consideration of the record evidence, we readily affirm the district court’s
finding that Naekel defamed Ross. We agree, moreover, that Naekel’s
indiscriminate dissemination of defamatory statements concerning a non-public
figure and matters outside the scope of public concern did not implicate any
privileges from liability. Naekel made additional statements relating to an
allegedly improper relationship between United and the FAA which may be of
public interest, but as the district court noted, those statements are not at issue in
this case.
B
We agree with the district court that Naekel’s conduct included not only
publicly defamatory statements about Ross, but also outrageous private
harassment of him. The district court’s assessment of the evidence was in
keeping with relevant precedent, see generally Lee v. Colo. Times, Inc., 222 P.3d
957, 963-65 (Colo. App. 2009), and we affirm its judgment making Naekel liable
to Ross for the intentional infliction of emotional distress.
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III
Naekel has not aided his case by submitting rambling briefs advancing
ill-founded criticisms of the district court judge, the legal system, and various
members of the bar. Notwithstanding the inadequacies of his briefing, we have
thoroughly reviewed the substantial evidentiary record and are confident the
district court properly resolved this case.
The judgment of the district court is AFFIRMED. Naekel’s motion for
leave to proceed in forma pauperis on appeal is DENIED because his filings do
not “show a financial inability to pay the required filing fees.” DeBardeleben v.
Quinlin, 937 F.2d 502, 505 (10th Cir. 1991).
Entered for the Court
Carlos F. Lucero
Circuit Judge
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