Wylie & Sons Landscaping v. FedEx Ground Package Sys. , 696 F. App'x 717 ( 2017 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0376n.06
No. 16-4057
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
WYLIE & SONS LANDSCAPING, LLC, ) Jun 27, 2017
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE NORTHERN
FEDEX GROUND PACKAGE SYSTEM, INC., )
DISTRICT OF OHIO
)
Defendant-Appellee. )
)
BEFORE: BOGGS, McKEAGUE, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
Thomas Wylie, Sr., the majority owner of Wylie & Sons Landscaping, lost his son in a
car accident in 2012 and believed a line-haul driver for FedEx Ground was responsible for the
incident. Two years later, Wylie & Sons bid for a subcontract to work on a construction project
at FedEx’s Toledo facility. When FedEx learned of Wylie’s involvement, it urged the primary
contractor to terminate the agreement, citing security concerns over Wylie’s past interactions
with the line-haul driver. Plaintiff alleged FedEx’s conduct amounted to tortious interference
with a contract, but the district court disagreed and granted summary judgment in favor of
defendant. Finding no error requiring reversal, we affirm the district court’s judgment.
No. 16-4057, Wylie & Sons v. FedEx Ground Package Sys., Inc.
I.
Around 4:30 a.m. on June 23, 2012, Thomas Wylie, Jr. was traveling westbound in his
truck on Route 24 in Henry County, Ohio. See generally Wylie v. FedEx Ground Package Sys.,
Inc., 645 F. App’x 354 (6th Cir. 2016). Jonathan Shoemaker and Van Adams were also driving
on Route 24, hauling their FedEx Ground tractor-trailers in the opposite direction. “Adams
drove the lead truck, with Shoemaker drafting 200 to 300 feet behind him.” Id. at 355. As he
neared Adams and Shoemaker, Wylie, Jr. crossed the center line, sideswiping Adams’s trailer.
“The rear wheels on Wylie Jr.’s truck and Adams’s tractor-trailer hooked each other, spinning
Wylie Jr.’s truck into Shoemaker’s path. Shoemaker’s truck then crashed into Wylie Jr.’s pickup
and killed him.” Id.
Roughly a month after the accident, a distraught Wylie telephoned Adams using the
contact information Adams gave to the police. Between midnight and 2:00 a.m., Wylie left
Adams a series of “angry, threatening [voicemail] messages,” including threats of physical
violence and racial slurs. Wylie made it clear he blamed Adams for his son’s death, “kn[e]w
[Adams’s] address,” and would “come to [him].” Adams took the threats seriously. He obtained
an ex parte order for protection against Wylie in Allen County, Indiana, and reported the incident
to FedEx.
FedEx also took the threats seriously, assigning senior security specialist Kevin Talley to
investigate the matter. Looking into Wylie’s criminal history, Talley found past charges and
arrests for felony assault, aggravated trespassing, and intimidation. He also learned other FedEx
drivers were familiar with Wylie. One employee told Talley that Wylie had once allegedly been
involved in manufacturing a bomb—although (according to Wylie) “the police cleared him on
that and so did the jury.” Talley reported his findings to supervisor Robert Bilek, who concluded
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Wylie posed “a serious threat to the security of FedEx Ground” and its employees. At Bilek’s
direction, Talley implemented additional safety measures at FedEx, posting security guards at its
Fort Wayne and Toledo facilities; issuing warnings and circulating Wylie’s photograph;
conducting a “security awareness session” with FedEx management; and recommending that
line-haul drivers be re-routed off Route 24.
In 2013, Wylie sued Shoemaker, Adams, and FedEx, “alleging that both drivers were
negligent, that their negligence caused Wylie, Jr.’s death, and that FedEx was responsible for
their negligence.” Id. While the case was pending, Wylie posted large, visible signs on his
company’s dump trucks referring to the “2 Fed Ex Semis” that “end[ed]” his son’s life and
implying that FedEx was “stalling” the Henry County Sheriff Department’s resolution of the
case. He also circulated flyers and placed an ad in a local newspaper that, although primarily
intended to deride the Sheriff’s Department, again implicated FedEx in the death of Wylie, Jr.
As it litigated the negligence case, FedEx began laying the groundwork for a construction
project to expand its Toledo hub. It hired Rudolph/Libbe Inc. to perform the “Site Work” and
serve as the construction manager for the project. Rudolph/Libbe subcontracted a portion of the
site work to Wylie & Sons under a “zero-dollar, unit-price contract,” meaning Rudolph/Libbe
only had to pay plaintiff for the work it performed. The contract incorporated FedEx Ground’s
“Master Terms and Conditions for Subcontract Agreement,” which gave Rudolph/Libbe the
unilateral right to terminate its contract with Wylie & Sons “at any time,” “without cause.” At
the time his company bid for the project, Wylie was still pursuing the negligence action and
displaying the signs on his dump trucks. Rudolph/Libbe asked him to remove them before
starting work on FedEx’s property.
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At some point, Bilek, who had supervised the 2012 investigation, learned Wylie & Sons
would be involved in the construction. He contacted Paul Stritmatter, FedEx Ground’s
Managing Director of Protection and Preventative Services, to express his security concerns.
Stritmatter shared Bilek’s concerns and decided not to “take any chance[s].” He directed the
engineer overseeing the project to tell Rudolph/Libbe to use another subcontractor.
Rudolph/Libbe agreed. Approximately two weeks before Wylie & Sons began work on the site,
Rudolph/Libbe informed Wylie it could not use his company’s services. It subcontracted the
work to another contractor at an additional expense to FedEx of more than $138,000.
After losing the project, Wylie & Sons sued FedEx Ground for tortious interference with
a contract and tortious interference with a business relationship. Plaintiff alleged FedEx
interfered with its relationship with Rudolph/Libbe “out of a spirit of spite, malicious purpose,
and utter hatred” toward Wylie as the majority owner of the company. Following discovery,
FedEx moved for summary judgment. Plaintiff opposed the motion and moved to strike portions
of defendant’s supporting affidavits. The district court resolved both motions in a single opinion
and order, denying plaintiff’s motion to strike and granting defendant summary judgment. Wylie
& Sons timely appealed.1
II.
A.
“We review a district court’s discovery-related rulings under the highly deferential abuse-
of-discretion standard.” Ondo v. City of Cleveland, 795 F.3d 597, 603 (6th Cir. 2015) (quoting
Loyd v. St. Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014)). “This includes our
1
Plaintiff does not address its interference-with-a-business-relationship claim on appeal,
and, accordingly, neither do we. See White Oak Prop. Dev., LLC v. Washington Twp., 606 F.3d
842, 854 (6th Cir. 2010) (“[I]ssues not raised in appellate briefs are deemed waived.” (citation
and brackets omitted)).
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review of a district court ruling on a motion to strike an affidavit.” Id. “A district court abuses
its discretion when it relies on erroneous findings of fact, applies the wrong legal standard,
misapplies the correct standard when reaching a conclusion, or makes a clear error of judgment.”
Id. (internal quotation marks omitted).
Plaintiff argues that certain portions of Talley’s, Bilek’s, and Stritmatter’s affidavits
cannot be considered at summary judgment because they constitute hearsay and are not based on
the affiant’s personal knowledge. See Hoover v. Walsh, 682 F.3d 481, 491 n.34 (6th Cir. 2012)
(noting that a court cannot rely on inadmissible hearsay at summary judgment where the hearsay
cannot be “reduce[d] . . . to admissible form”); Fed. R. Civ. P. 56(c)(4) (stating that affidavits
used to support motions for summary judgment “must be made on personal knowledge”).
Neither claim has merit.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. See
Mich. First Credit Union v. CUMIS Ins. Soc., Inc., 641 F.3d 240, 251 (6th Cir. 2011); Fed. R.
Evid. 801(c). Wylie & Sons contends paragraphs 7, 11, and 13 of Talley’s affidavit fit this
definition. Paragraph 7 details the results of Talley’s investigation into Wylie’s criminal history,
while paragraphs 11 and 13 consist of statements other FedEx employees made to Talley during
his investigation—including the claim that Wylie “allegedly had made a bomb before and blew
up his house or a neighbor’s house.” Plaintiff also disputes the admissibility of paragraph 5 of
Bilek’s affidavit, in which Bilek recalled investigating a “workplace violence report” and
learning that “Mr. Wylie, Sr. intended to ‘amp it up’ on FedEx over the [December 2013]
holiday season.” The district court rejected both arguments. It concluded defendant offered the
challenged statements not to prove the truth of the matters they asserted, but to “provide relevant
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and probative evidence as to why FedEx believed the owner of Wylie & Sons, Thomas Wylie,
Sr., posed a threat to FedEx.”
“One of the key elements in a tortious interference claim is the question of whether a
defendant’s actions were privileged.” Super Sulky, Inc. v. U.S. Trotting Ass’n, 174 F.3d 733, 742
(6th Cir. 1999) (citing A & B-Abell Elevator Co. v. Columbus/Central Ohio Bldg. & Constr.
Trades Council, 651 N.E.2d 1283, 1294 (Ohio 1995)). “[E]ven if an actor’s interference with
another’s contract causes damages to be suffered, that interference does not constitute a tort if the
interference is justified.” Fred Siegel Co. v. Arter & Hadden, 707 N.E.2d 853, 858 (Ohio 1999).
The Ohio Supreme Court’s decision in Fred Siegel sets out seven factors the courts consider in
determining whether a defendant’s interference is justified, the second of which is “the actor’s
motive.” Id. at 860.
FedEx argued that its interference with the Rudolph/Libbe contract was justified based on
these factors, citing Talley’s and Bilek’s affidavits not to prove the truth of the matter asserted,
but to demonstrate that its motive “was entirely based on security.” Talley and Bilek kept
Stritmatter “very informed” of their investigation into Wylie’s threats, his arrest history, and
ongoing hostility toward FedEx Ground “in the form, among other things, of banners o[n] his
trucks.” Stritmatter testified that he “deal[s] with hundreds of workplace violence cases every
year,” yet Wylie’s case “particularly stands out” to him. He was “extremely concerned” about
Wylie and “wasn’t going to take any chance[s].” Given what he learned from Talley and Bilek,
Stritmatter believed requesting a different subcontractor was the best decision for the safety of
FedEx Ground’s employees and property, even if it cost the company an additional $138,000.
Thus, the comments in Talley’s and Bilek’s affidavits go not to prove the truth of their
assertions—i.e., that Wylie has a particular criminal history, or “allegedly . . . blew up his house
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or a neighbor’s house”—but to show their effect on Stritmatter and explain why defendant asked
Rudolph/Libbe to hire a different subcontractor. See Biegas v. Quickway Carriers, Inc.,
573 F.3d 365, 379 (6th Cir. 2009) (“A statement that is not offered to prove the truth of the
matter asserted but to show its effect on the listener is not hearsay.”); see also Bush v.
Dictaphone Corp., 161 F.3d 363, 366–67 (6th Cir. 1998) (employee comments stating the
plaintiff was “abusive or unstable” and had “gone off the deep end” were admissible to show the
non-discriminatory reasons for the employer’s decisions to demote and then discharge the
plaintiff).
Plaintiff’s other argument—that Talley, Bilek, and Stritmatter lack personal knowledge
of the facts mentioned in their affidavits—misunderstands the personal-knowledge requirement.
For example, Wylie & Sons claims Talley “cited no facts to support [his] personal knowledge”
of the information in paragraph 7, which summarizes the alleged charges and arrests in Wylie’s
criminal history. “Clearly,” says plaintiff, Talley “possesses no[] facts to substantiate any of the
alleged crimes,” and “the validity of the arrests and charges . . . for which [Wylie] was not
convicted is beyond [Talley’s] personal knowledge.” But plaintiff misconstrues the affidavit.
Talley does not claim personal knowledge of whether these arrests or charges are valid; he
claims personal knowledge of the fact that they are included in Wylie’s criminal history.
Further, Talley cites facts explaining the basis of his knowledge. He swears that “[i]n August
2012, [he] investigated Mr. Wylie Sr.’s criminal history.” No doubt Talley has personal
knowledge of the matters he personally investigated.2
2
Plaintiff likewise disputes paragraph 2 of Talley’s affidavit, stating “On July 30, 2012, I
learned that a line-haul driver who drove trucks for FedEx Ground, Van Adams, was involved in
a fatal[] accident and the victim’s father had been calling Van Adams [and] leaving death
threats.” Plaintiff does not explain how Talley lacks personal knowledge of information he
“learned.”
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The same goes for plaintiff’s arguments regarding paragraphs 11 and 13 of Talley’s
affidavit and paragraph 5 of Bilek’s affidavit, all of which refer to other employees’ statements
regarding Wylie. Talley and Bilek do not claim to know whether Wylie actually “intended to
‘amp . . . up’” his campaign against FedEx in December of 2013, or whether he actually “made a
bomb,” as the statements profess. Instead, they claim personal knowledge of conversations with
the FedEx employees who made these allegations. Both are therefore qualified to endorse
affidavits recounting these statements.
Finally, in Stritmatter’s case, Wylie & Sons complains his affidavit “provides for a legal
conclusion when [it] states, ‘Because Mr. Wylie, Sr. represented a security threat . . . to the
people, employees and property of FedEx Ground, I decided that his company . . . should not be
used on the FedEx Ground Project.’” Plaintiff is incorrect. This is not a legal conclusion; it is an
opinion. Stritmatter has personal knowledge of his own opinions.
The district court did not rely on erroneous findings of fact, apply the wrong legal
standard, misapply the correct legal standard, or render a clear error of judgment. Ondo,
795 F.3d at 603. Accordingly, it did not abuse its discretion in denying plaintiff’s motion to
strike.
B.
We review the district court’s grant of summary judgment de novo. Keith v. Cty. of
Oakland, 703 F.3d 918, 923 (6th Cir. 2013). “Summary judgment is proper ‘if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). A dispute is “genuine” if the
evidence permits a reasonable jury to return a verdict in favor of the nonmovant, and a fact is
“material” if it may affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S.
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242, 248 (1986). Viewing the evidence in a light most favorable to the nonmoving party, our
task is to determine “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Id. at 251–52.
To succeed on its claim of tortious interference with a contract, Wylie & Sons must
demonstrate: (1) the existence of a contract; (2) FedEx’s knowledge of the contract; (3) FedEx’s
intentional procurement of the contract’s breach; (4) lack of justification; and (5) resulting
damages. Paramount Farms Int’l, LLC v. Ventilex B.V., 61 N.E.3d 702, 707 (Ohio Ct. App.
2016). The district court granted defendant summary judgment on this claim because plaintiff
“stall[ed] on the third and fourth elements, breach and lack of justification.” (R. 43, ID 782).
We agree.
Under the “zero-dollar, unit-price” subcontract, Rudolph/Libbe was free to use Wylie &
Sons as much or as little as it pleased, and only had to pay for the work plaintiff actually
performed. And plaintiff did not perform any work. Rudolph/Libbe exercised its unilateral right
to terminate the subcontract “at any time . . . without cause” approximately two weeks before
construction began. The termination clause also warned Wylie & Sons that “[i]n no event shall
Subcontractor be entitled to lost or anticipated profits on unperformed Work.” FedEx
acknowledges that Rudolph/Libbe acted at its direction. But “any interference with [an at-will
contract] that induces its termination is primarily an interference with the future relation between
the parties, and the plaintiff has no legal assurance of them. As for the future hopes he has no
legal right but only an expectancy”; thus, “when the contract is terminated by choice of the third
person[,] there is no breach of it.” Hoyt, Inc. v. Gordon & Assocs., Inc., 662 N.E.2d 1088, 1097
(Ohio Ct. App. 1995) (first alteration in original) (citation omitted).
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Plaintiff evidently agrees. Instead of disputing the district court’s no-breach finding,
Wylie & Sons insists “it is not necessary . . . to prove . . . an actual breach” of the contract in
order to establish FedEx’s interference with the contract. Yet, Ohio’s Supreme Court has said
just the opposite: “We . . . hold that in order to recover for a claim of intentional interference
with a contract, one must prove . . . the wrongdoer’s intentional procurement of the contract’s
breach.” Kenty v. Transamerica Premium Ins., Co., 650 N.E.2d 863, 866 (Ohio 1995); see also
Fred Siegel, 707 N.E.2d at 858 (reaffirming the elements announced in Kenty).
Plaintiff also contends that the at-will termination clause is irrelevant where the
interfering party does not invoke the privilege of fair competition—a privilege FedEx Ground
cannot invoke because it does not compete with Wylie & Sons in the construction industry. See
Ginn v. Stonecreek Dental Care, 30 N.E.3d 1034, 1045 (Ohio Ct. App. 2015) (noting the
“privilege of fair competition . . . will defeat a claim of tortious interference with [a] contract
when a contract is terminable at will,” and the interfering party is a market competitor). But
regardless of privilege, tortious interference with a contract requires that there be a breach of a
contract, and here, there was none. See Fred Siegel, 707 N.E.2d at 858. This fact alone justifies
granting summary judgment in favor of defendant.
Nor do we agree with plaintiff’s suggestion that FedEx must be an industry competitor in
order to demonstrate that its interference was privileged. See, e.g., Paramount Farms, 61 N.E.3d
at 707–11 (examining the seven privilege factors in the context of a non-competitor defendant).
What matters is whether the relevant Fred Siegel factors favor the interfering party, and, in this
case, the district court reasonably concluded that they do. Plaintiff’s arguments to the contrary
minimize Wylie’s conduct and do not warrant discussion. Nothing in Ohio’s tortious-
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interference case law compels FedEx to employ on its own property a company that sued it for
negligence or an individual who admittedly threatened one of its line-haul drivers.
III.
For the foregoing reasons, we affirm the district court’s judgment.
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