Dale S. Rice v. Nova Biomedical Corporation and Robert Christopher

PART, AND IN VACATED PART, IN AFFIRMED

Remanded. Plaintiff-Appellee, RICE, S.

Dale

Cross-Appellant, CORPORATION BIOMEDICAL

NOVA Christopher, Defendants- Robert Cross-Appellees. Appellants, 93-1831, and 93-2685.

Nos. Appeals, Court States

United Circuit.

Seventh 7, 1994. Sept.

Argued 25, 1994. Oct.

Decided 5, 1995.

Rehearing Denied Jan. Liebman,

Vance L. Funkhouser, Levin & Chicago, IL, for Dale S. Rice. Stephen Poor, J. Mahoney, Marcia A. Sey- farth, Shaw, Geraldson, & Fairweather Chi- cago, IL, Robert W. Harrington (argued), Boston, MA, for Nova Corp. Biomedical and Robert Christopher. POSNER, Before Judge, Chief *

WELLFORD EASTERBROOK, Judges. Circuit POSNER, Judge. Chief In 1981 Nova Biomedical Corporation, instruments, manufacturer medical hired Dale Rice as a field representative, service installing servicing equipment Nova three states. He pro- midwestern was later regional moted to specialist, technical super- vising field service representatives all over the country. He worked out of his home in Illinois. His boss was Robert Christopher, Nova’s director of services, technical who works at Nova’s headquarters in Massachu- setts. fired Rice—an at will—in ostensibly because Rice had disobeyed instructions, calls, missed service and mismanaged the inventory parts Nova equipment that Rice stored in ga- his rage. responded following year with this diversity suit. The complaint charged Nova and Christopher with defama- tion and with retaliatory discharge for Rice’s workers’, having filed compensation claims, and Christopher with intentional interference with advantageous business relations. Four months fired, after being Rice obtained a higher-paying job and pres- later became the ident of a company at a higher still salary. (We were told argument that he has be- unemployed trial.) come since the Neverthe- less the $10,000 awarded in actual and $50,000 damages against Nova, $40,000 in punitive damages against Christopher, $100,000. a total of jury rendered a verdict for both defendants on the count, retaliatory-discharge however. This poor is rather a excuse for a lawsuit. trial, At the time of Mr. Rice improved Lawrence R. (argued), Levin Marc W. his position economic by being fired. The O’Brien, Vegosen, Jonathan Dunn, Damon E. allowed, defendants were all unavailingly, to * Harry Hon. W. Wellford of the Sixth Circuit.

9H first plausible, succeeded. are serendipitous jury that argue discharge claims—that implausible offset being fired gains ad interference a tortious incurred constituted income the loss perhaps relations —is vantageous business unemployment. period during brief it appeal merely peculiar, as its despite described argument, better this that true is bar by to dam defendants questioned relevant sense, not not was to common See, e.g., was Mittel it on which law. support in case the evidence of in fact ren and ages, 142 Ill.Dec. Witous, rebut only to Ill.2d 135 admitted man v. based 976-77, self- loss of experienced 235-36, N.E.2d had Rice could He being a case fired. sense in (1989). Still, of little a result as makes esteem that, though losses com employer for is not have recovered not this where such as but for occurred tortiously deprived have of not they having would been of plaining made loss of theory sort of the not the discharge, were services. plaintiffs Peters, F.3d it, by Brackett likely that Christo claim more tortious-interference DeShaney v. Winneba (7th rela 78, 79 Rice’s interfered with improperly pher Services, 812 F.2d Dept. employer, Social County go own Christopher’s tions of aff'd, Cir.1987), U.S. Nova; expect might plausible, one Were (1989); it L.Ed.2d a code- S.Ct. than rather coplaintiff to be Nova injured as a result had been disloyal as if he be employee’s its fendant, indignant way from his peel on aon banana slipping discharge fellow procuring act him. Christopher fired meeting at which and grounds, entirely personal employee on denied seren not be that he follows possible It as as much distance wanting place to they would while gains gains dipitous to avoid and itself — between not been had it accrued have not for his liability on it derivative imposition of likely it. more not made discharge were at all. tack not Nova’s That is wrongdoing. systemat be damages would tort Otherwise left its that Rice has complaining not Nova is Still, having suffered ically underestimated. discharge. with the content employ. It is law, no contemplation fact, in the not if firing Christopher’s act ratified has indeed (and discharged being injury from pecuniary act, an em and as its Rice, making it own diminution only a transient presumably any non- on fire Rice could at will ployer expected have self-esteem), been Rice perverse as as ground, even privileged advantage than to better time use his to animosity to him. employee’s another and years old four The suit litigating. run around end unlikely to successful other Rice is lawyers his paying after charge towas at will employment of return rate doctrine compensatory obtained have harm significant only Yet emotion of time defamation. the investment on only from defamation It is not have suffered in the suit. that he made must have dis- himself that Rice tranquillity fact from the emotional arises time his own ostensi- employers the by swollen bounteously. prospective Beset closed spent he has grounds look discharge, expected his dockets, grounds cannot judges ble professional not to re disparaged brought they upon lawsuits with favor other gener were, known indignation once made vent competence but to coup losses law. Illinois se under defamatory per gains. people, windfall ate 982; & Brown Id. at very hurt, being at least not Besides Jacobson, 713 Corp. v. Tobacco Williamson alleged sense, defendants’ by the palpable Cir.1983). aswas He 262, 267-69 the thinnest skating on wrongdoing, to turn defamer, able but his own it were suit; expected bringing this legal ice in a for the posture this curious suing value realized distinct as invoking advantage case defamation He had meager indeed. been must republication,” “compelled the doctrine complain contract, could so employment (underscoring its called it is sometimes three tried He as such. being fired about us) self-defamation. absurdity, it seems plausible Oddly, the most end runs. —retal- why he asked Rice employers two, Prospective and the discharge failed, iatory — fired; Fi honesty required Employee: him to Minimum Meet the Contacts (even (1986)— grounds Shield,” divulge duciary stated Nova’s 38 Stan.L.Rev. 813 Equitable though) As false. Lewis over an individu denies Life Society, 389 surance N.W.2d 886-88 activity presence al whose in the state (Minn.1986), and cases cited there. brought solely which the were of the doctrines of defamation combination employer of his principal. behalf or other gives employees per se self-defamation Ellwood, Ill.2d 244, 152 Rollins having regret negotiated employ who 384, 395-400, surrogate contract a it. But ment tort (1990); People Hartigan Kennedy, rel. ex Illinois, where the case address 438, 445-46, 159 Ill.Dec. compelled doctrine of self-defamation 107, police 576 N.E.2d 114-15 aSo rejected minority it is a view and noted that man sent into a state to an arrest serve it, Layne Plumbing Supply v. Builders ar warrant cannot be sued there for false 493, 966, 499-500, Ill.App.3d rest, him, although superiors, who sent (1991)—as 1104, 1110-11 569 N.E.2d the de having be virtue of his come into the lawyer fendants’ failed to inform the district state on their That business. was Rollins. view, very minority court. Since it is a a Christopher’s coming If action in into Illinois questionable impossible one—it makes it for solely to fire and defame Rice done on employer grounds an to communicate his for Nova, fiduciary he is behalf under the employee an discharging regardless shield this ex whether he confidentially incurring grave even without a merely carry ercised discretion rather than being risk of sued for defamation—we be ing mechanically. out precise orders unlikely Supreme lieve Court Kennedy case shielded directors of a charita Illinois would take a different view from the organization ble under the doctrine. Marine appellate Layne. intermediate court Bank, Miller, v. Midland N.A. 664 F.2d 899 doctrine of Without the self-defamation Rice (2d Cir.1981), case, although is a similar it is significant could not that he show suffered impaired precedent an because defamation, although, harm from the interpretation of New York law and New se, a per it is case of defamation could still highest repudiated York’s court later the en general obtain an damages. Kole tire doctrine the Kreutter case. gas Broadcasting Corp., v. 154 Ill.2d Heftel 307, 312, 180 Ill.Dec. agent The shield is withdrawn if the Kresz, (1992); Girsberger v. acting also on or instead his own be 198 Ill.Dec. 633 N.E.2d interests,” half—to “serve his Rol (1993); Brown & Williamson Tobacco Ellwood, supra, v. lins 152 Ill.Dec. at Jacobson, Corp. supra, 713 F.2d at 268. interests, may 565 N.E.2d at 1318. we point But the has been waived. assume, pecuniary. need not be We can find The defendants base their attack on any jurisdiction no cases from discussing this on promising less why issue but can think of no reason first, grounds. The which is limited Chris exception interests should be topher, is that the district court did not pecuniary limited if Surely po ones. obtain over him under pure liceman Rollins had because of some statute, long-arm Illinois’ because of the “fi ly personal enmity person murdered the duciary doctrine, doctrine. This shield” rec on, whom he served the arrest warrant ognized many by the courts of states includ up would not have been allowed to set ing Illinois—though also much criticized and fiduciary-shield doctrine as defense to see, many jurisdictions rejected, e.g., wrongful death in Illinois. Corp., Kreutter v. McFadden Oil 71 N.Y.2d 195, 199-202, The record N.Y.S.2d contains evidence that (1988); Christopher.in firing 44-47 Briargate Columbia Rice was on frolic of Co. Bank, 1052, 1055-77 may First National his own. He if have disliked Rice but (4th Cir.1983); Comment, Koenig, policeman A. happened Robert had Rollins “Personal Corporate person Jurisdiction and the dislike the on whom he served the authorizing pro have lost statute nationwide service of he would not arrest warrant against a suit for false arrest. fiduciary shield cess. IUE AFL-CIO Pension Fund Herr (2d mann, hypothetical, the dislike our murder Unlike 1056-57 Werke, or G.m.b.H., have created exacerbated would not Oetiker Jurid present person, (D.C.Cir.1977). which on harm to But the do defendants assumption from the arrest alone. No came question the district court’s extension of might have induced interests” that “personal ease, principle to this so we need regardless of Nova’s Christopher to fire Rice it, beyond observing that the discuss court’s interests, Christopher’s conception probably action should viewed as an inter interests, have been identified. Nova’s pretation long-arm statute rather Illinois’ Christopher if Rice had had some not as free-standing than as some federal common one, or as relationship outside their business aside; point law doctrine. This is an Christopher trying to harm Nova had been made scope that even if Reed men pocket, if the two and line his own agency defamation cases broader than promotion, competing for same had been torts, involving cases other intentional job wanted Rice’s Christopher as if help Christopher, already who had nephew. Had for his fiduciary interposing succeeded in shield moreover, not, own, his Nova would frolic of against the defamation count. not, have found liable at should been least to A further wrinkle seem do jury. Intentional not fall torts place Christopher firmly under the responde- shield. scope of the doctrine of within the principal not agent Illinois does make the automati superior unless the (however cally punitive damages acting misguidedly) liable assessed in furtherance Kleiser, against agent if the act principal’s Gregor v. latter was his business. of 38, 42, 333, principal’s Ill.App.3d ing 67 Ill.Dec. 443 in furtherance of business. 111 (1982); 1162, requires principal’s complicity Founders in 1166 Illinois N.E.2d Smith, 269, Ill.App.3d giving 172 rise Ins. Co. tortious conduct assess (1992). 780, 785, 59, 64 Maga 596 N.E.2d Douglass Ill.Dec. be shown. v. Hustler ment Inc., (7th zine, 1128, 1145-46 Cir. It is a dictum in Reed v. North true that Co., 1985); 217 Ill. Kemner v. Monsanto 495, Co., Publishing 124 Ill.2d western 188, 192, 198-205, 576 App.3d 160 Ill.Dec. 316, 326, 530 N.E.2d (1991). jury, 1152-59 case, speaks “scope,” defamation another therefore, punitive should not have awarded “furtherance,” employment, the formu not damages against thought if it Christo Nova precise in But the la used accident cases. acting pher was reference Nova’s without this, in could not matter a case like wording punitive damages It did award interests. firing pursu Christopher Rice was Nova, against might think— implying—one ing purely private Nova would some vendetta acting on Christopher must have been concep not be hable under reasonable all, was not behalf after and therefore Nova’s events, At all respondeat superior. tion any personal pre serving interests. More the defamation count is involved interests, police like the cisely, personal issue, directly anyway, fiduciary-shield enmity, had no conse hypothetical man’s only respect the intentional- with anyway. quence; would have been fired held interference count that the district court not instructed accor But the pro Christopher was not entitled complicity doctrine. Once dance with F.Supp. doctrine. 763 tection of the again lawyer appears to have the defendants’ (N.D.Ill.1991). Having thus estab 964-66 ball, by permitting the dropped this time jurisdiction Christopher on that lished over damages punitive against Nova jury to award count, jurisdiction the court exercised wrongdoing having find on Nova’s without remaining him on the counts accordance can be drawn from part. So no inference juris pendent personal the doctrine of with against Nova has heretofore been That doctrine diction. not on jury thought Christopher was juris personal cases in which applied defaming firing Rice. on a federal frolic diction of claim was based yet Christopher probably pher might serving. enti And cases least, tled, protection prima casually, say, perhaps facie too the end of because, fiduciary-shield so far doctrine proved the trial the must have reveals, he as the record of the trial personal jurisdiction the court has over the inter fact in Illinois to serve v. First defendant. Serras Tennessee Bank say “prima ests. facie” the doc We (6th Ass’n, Nat’l 875 F.2d Cir. discretionary usually to be trine is said 1989); Enquirer, Sinatra v. National absolute, “equitable,” rather than an entitlement. Cir.1988); 854 F.2d Marine Equity nhope Mortgage Bur v. National Bank, Miller, N.A. v. supra, Midland rp., 153 Ill.Dec. 904; Co Forsythe Overmyer, F.2d at 576 F.2d cf. Watlow Electric party point. anything neither makes the. Mfg. v.Co. Patch Rubber that, however, For all Christopher booted his (8th Cir.1988); Bank, Savings Carteret opportunity applicability to establish the Shushan, (3d FA v. 1n. court, the doctrine in the district and it is Cir.1992). If these statements are taken lit now too late. When moved to dismiss They erally, wins. should not jurisdic him for want of with, literally. they begin be taken To are in tion, 12(b)(2), Fed.R.Civ.P. there was no rec tension the rule that the defendant must bearing personal jurisdiction ord on challenge at the earliest itself, complaint than the because Christo opportunity, pain of forfeiture if he fails to evidence, attempt pher did not to submit 12(h)(1). do so. Fed.R.Civ.P. Such chal otherwise, support form affidavits or lenges be resolved before rather than request of the motion. Nor did eviden- after trial in order off to head situations in tiary hearing opportunity present or other to defendant, if he thinks the trial is arguing evidence. He was thus reduced to him, plead going jurisdic will lack of complaint allege failed to that Chris tion in to order force the to start topher had acting other than for the court, another but if he thinks the exclusive benefit of Nova. But when the going objection trial well will waive his to complaint interpreted generously personal jurisdiction entry and await the of a plaintiff, principles as the pleading federal judgment final judicata that he can use res require, adequately alleges it that Christo prevent suing again. the him pher acting personal for benefit. It alleges Christopher in pursuit of his own purpose It would the requiring defeat goal retaliating against Rice caused Nova prompt assertion of the defense lack loyal competent employee. to fire a personal jurisdiction defendant, if having the objection personal jurisdiction an raised not, complaint true, did it is required, any the outset as could without specify personal Christopher’s the motive for it, penalty press fail or creating refuse the actions; explain did what not have led impression it, that he-had abandoned and not Christopher, loyalty, other than however mis impression seek ap- to correct that until he employer, placed, to his to fire a subordinate pealed from an adverse final on the filing compensation for a worker’s claim. merits. We understand the cases that do But an such omission is not critical in a tactic; we have cited to condone such regime pleading, respect of notice with Bank, we condemned in .Continental N.A. jurisdictional allegations. Fed.R.Civ.P. Meyer, Cir.1993), 10 F.3d 8(a)(1); Transmissions, Hammes AAMCO though 12(h)(1), we did so not (7th Cir.1994). under Rule 33 F.3d What only pleading, which concerns but under the may be critical is that the existence of waiver, applicable doctrine of which is to all Christopher’s motive conduct to subject-matter juris- except defenses lack of grave ward Rice was cast into doubt the diction. jury’s rejection of retaliatory-discharge the

claim presented after the evidence at trial failed “personal to show what interests” or All that the cases we cited earlier corporate for that matter preliminary interests Christo- mean is that the of a denial ings sufficiently amply alleged personal if not jurisdiction, like the challenge jurisdiction. injunction, preliminary an denial of the of the motion bar to renewal automatic question The next is whether Massa bearing been ob has after evidence applies or Illinois under chusetts law discovery presented by pretrial tained Illinois, conflict of rules of which control laws Metallurgie Hoboken- Ball trial. also See diversity in this the suit was (2d S.A., Cir. Overpelt, brought in Illinois. Klaxon Co. v. Stentor 1990); Welinksy the World v. Resort of Mfg. Elec. 313 U.S. 61 S.Ct. (2d Cir.1988). D.N.V., (A point, L.Ed. 1477 basic but worth if it Certainly is infeasible inconvenient to repeating, lawyers in this cir because some a definitive determination of make impression cuit labor under erroneous jurisdiction on the basis of affidavits other automatically law of the forum state hearing, presented pretrial diversity furnishes the rules of decision in a can, judge preliminary district if the suit. does so forum state’s trial. Ser questions, defer resolution decree.) signifi conflict of rules so laws Ass’n, Bank Nat’l ras v. First Tennessee question cance of choice-of-law lies 1215; supra, Ben 875 F.2d at Stauffacher fact allow that Massachusetts does not (7th Cir.1992). nett, punitive damages expressly unless Presumably ride to he can let the matter statute, authorized Flesner v. Technical could a definitive determination trial even Corp., 410 Communications Mass. earlier, normally the although bet be made exception con dispositive threshold practice ter is to decide inapplicable to be ceded here. The tradition spare parties issues at outset al choice-of-law rule tort cases was that of a burden trial. in which the tort law the state oc apply. would Kaczmarek v. Allied curred is a case of waiver. Christo ours Corp., 836 F.2d Chemical pher the district court to base its did ask Cir.1987). And while under current Illinois applicability of the fidu determination of the pre place law “the accident retains ciary-shield doctrine on the evidence case, pre sumptive weight in a tort but concerning presented at trial 1058, overcome,” easily is sumption id. we ask firing Rice. He did not the motives might nothing of can think overcome to base determination on affidavits court its is a of the this case. The resident the motion to dis submitted and place where place that he contends is the the personal jurisdiction. As for want of we miss brought there. tort occurred. The suit mentioned, no such affidavits were sub suggested are And no circumstances by the court to renew the mitted. Invited Klein, might—as in 46 Ill.2d Ingersoll v. juris personal for want of motion dismiss parties 262 where both N.E.2d 593 discovery up turn material rel diction should the in which the suit of state were residents shield, fiduciary F.Supp. at evant to the 763 although had brought, the accident oc invitation, 966, Christopher the declined another state’s law elsewhere—make curred up. did use least never took He the tort did not occur apposite more the ample discovery try get pretrial tools of v. Maren in that other state. See Walters of personal his a better idea of what interests Ill.App.3d Engineering Corp., 246 might view have led to the dis (1993). 617 N.E.2d present charge and He did not defamation. presumption the whether So let us consider personal motive. He evidence he is, tort the oc applicable, is whether juris challenge did not renew his than in Massachu in Illinois rather curred he during diction or after trial. All ever rebuttal, setts; and for in the absence sought—or at least his actions inac- so none, this will determine there is silences, tions, implied until statements applies. law state’s by ruling the got he to this court—was the complete until vic got A tort is pleadings. He the district court on Co., injured. Stromberger v. 3M ruling plead- tim right: is ruling. And the Cir.1993). (7th place applies seem the of “the tort”. F.2d cannot be injury used; place; therefore that the state of must be the the tort has no instead it has Indianapolis contacts, in which the tort occurs. presumably offsetting, state with at least Colts, Metropolitan Inc. v. Baltimore Foot defamatory two states. If are statements Ltd., ball Cir. Massachusetts, Club uttered and the 1994). The tort defamation would there Illinois, place hurt in neither state is the fore occur in state or states in which the the tort. professional victim loses here as We would thus at a loss as to how to opportunities transactions or transactional question except decide the of law conflicts impairment reputation because his fortuity that while the defendants’ al- brought defamatory about statement. leged plot against Rice was hatched in Mas- Ordinarily this will be state in which the sachusetts, defamatory most state- published statement was and thus dissemi complains ments of which he were made to to potential nated transactors with the victim and, him in meeting in Illinois as Dugan, of the defamation. Jean noted, “republished” by we have him there. International Ad This that he was means defamed in Illinois as ministrators, Inc. Ins. Life injured (treating well as as these dis- (7th Cir.1985). 1376-77 n. far So state), tinct “contacts” with the he is a (if appears, injury any) Rice resident of Illinois there is reason not to Illinois, defamation occurred where Rice (“lex apply place-of-the-tort presumption sought eventually employment obtained delicti,” jargon premo- loci in the vanished being testified, after fired Nova. He it is law). dern applies, conflicts So Illinois law true, sought that he it elsewhere as well. seeking puni- and Rice was not barred from Illinois, presumably lives damages. tive path There is a shorter to this job there; search was concentrated some throwing up conclusion: their hands de- job this that he found new spair inoperability at the of modern conflicts there. Remember that this is a self-defama laws, the say Illinois cases that in multi- published tion ease. Rice the defamation to (which is, state defamation case prospective employers who interviewed every defamed himself state in which him, mainly where, in Illinois. That job) sought applicable law is that of where, places of the he was hurt. the tort So domicile, period, the victim’s E.g., Velle occurred there. Ass’n, Transcendental Research Inc. Es- neat, approach Too alas. The we have quire, describing determining of a site approach question tort is the taken when the Next argue the defendants Jones, personal jurisdiction. Calder “malice,” there was no evidence of without 783, 1482, U.S. 104 79 S.Ct. L.Ed.2d 804 punitive damages cannot be awarded (1984); Gray v. American & Radiator Stan in a for using defamation. In “malice” Sanitary Corp., 432, dard 22 Ill.2d 176 they without a modifier evince a lack (1961); Longo N.E.2d 761 v. AAA-Michigan, understanding of the use or rather uses of 543, 450, 455, 201 155 Ill.Dec. 569 in the word defamation cases. Under the N.E.2d 932 Consistent with the Sullivan, of New rule York Times v. highly particularistic, Co. 376 “all relevant factors” (called (1964), U.S. 84 11 S.Ct. L.Ed.2d 686 jargon in “contacts” the of conflict of laws) a public figure who a approach law, is cannot ob of modern conflicts when judgment tain a for the is defamation unless he issue which state’s law shall the apply, place shows wrongful place of the that the defendant either conduct and the knew injury the statement false or separate the are treated as “con was indifferent to tacts” whether it was between the lawsuit and true false. This is the the states question. E.g., requirement Engineer Walters Maren of “actual malice.” Sulli v. The ing Corp., here, supra, 186 van application Ill.Dec. at 617 case itself has no be result, at places N.E.2d 173. As a public figure. when the cause the is not a case, Welch, Inc., are different presumption the law of later v. Gertz Robert destroying the in without corrected 2997, 3012, L.Ed.2d 94 S.Ct. U.S. verdici&wkey;without, say, is to tegrity of the damages can- punitive holds from different parties giving defamation a suit for awarded not be verdict will nonpublic jury intended —the brought what the suit when Broadcasting Century v. EEOC malice. proof of actual stand. figure unless (7th Cir.1992); Corp. Corp., Tobacco F.2d & Williamson also Brown See 1063, 1068 Corp., F.2d Jacobson, v. Eaton at 273. There supra, Burlew F.2d v. Propane Stuckey Northern v. (7th sustain the it here to enough evidence (11th Co., Cir. 1573-74 Gas 874 F.2d jury’s verdict. Partridge, Thompson & Co. 1989); G.A. colloquial and more in another Malice Cir.1981). (5th That is the 636 F.2d being done something sense sense —the jury where here. is obvious situation “express person solely harm the defamed — punitive to assess astray. It wanted went id. at 272—forfeits called, malice,” it is see as Christopher well as damages against privilege including the privileges, various actual to award But it did want Nova. but to the defendants arguably available here damage done twice, since the damages references character for by them invoked Nova, any case Christopher Del corporate communications. internal itSo as liability, was the same. derivative Coal v. Consolidation loma par against damages actual law); sessed Cir.1993) Illinois (applying 168, 171 illogic of award ty, This created Nova. Minder, 806 F.2d Babb party against against a damages ing punitive malice Cir.1986) (same). actual Whether damages had been of. actual no award whom some of forfeit might also the Sullivan sense court’s the district But the fault was made. was de Illinois law under privileges these dam assess actual directing jury to Brown & open question as an scribed defendant, prac each Jacobson, su ages separately Corp. v. Tobacco Williamson example in disapproved, we have tice that 272-73, has since but at pra, 713 F.2d Inc., supra, Magazine, Douglass Hustler answer reasonably clear become be asked The at 1146. Witous, supra, yes. See Mittelman were, damages actual plaintiffs what 986; Babb v. at are liable for any defendants whether There was Minder, 755. supra, puni to assess them, wishes and whether express and actual of both some amount, against damages, what tive of “malice” denial malice, defendants’ so the liable. found defendants fails. sense undifferentiated in some object to the did in this case defendants vigor greatest and with Next jury was in in which form incorrect jury’s verdict argue that defendants hurt form structed, complain so cannot it awarded inconsistent hopelessly them, doubt. which we no Christopher but against injury, requires a tort damages. Since peripheral actual two raise defendants Christopher finding that jury’s court the district complain that They points. implies to Rice harm compensable attorney’s caused amount awarded excessive of a tort. guilty was not for a viola- them expenses fees liability derivative par- Nova’s They Since offer 11. of Fed.R.Civ.P. tion commit not have excessive, Christopher’s, Nova could why the amount toas ticulars tort either. they argue ted a that And complaint fails. so the his three only of two Rice won true, a defa- literally though this is All judg- smaller much obtained pretty counts be “injury” per case mation se dis- sought, the originally ment than jury in such invisible; that remember him his awarded not have court should trict general permitted award case de- argument of support this In costs. damages, no no actual are if there & Landau case, similar cite a re- fendants But that loss. monetizable demonstrable Trucking, v. Hribar Cleary, Ltd. side, of nature if the to one finement the dis- (7th Cir.1986), in which but reasonably discernible jury’s mistake triet court’s denial of upheld. costs was plaintiff over respects all They overlook the fact that the denial was purported to act on behalf of my Nova. In upheld expressly permissible view, as a exercise of whether Christopher’s disciplinary ac- the district court’s “unfounded,” discretion award tions were claims! They whether, costs. Id. at 94. make argument consequence, as a Nova “lost the court in district this case services long-standing its of a abused with an discretion in awarding record,” costs. When excellent an issue service Rice was an “at governed by a deferential will” employee subject standard of re- to discharge by his view, discretion, such as abuse of implica- superior. authorized Judge As Posner tion out, two judges points district who “[t]he reached record contains opposite result Christopher identical firing cases Rice on a frolic both be affirmed. The defendants over- his own.” It was alleged or shown elementary- looked this principle. that Christopher acted scope without the authority. Indeed, if that case, were the Their arguments about the amount of the it is hard to see how Nova responsi- would be sanction for their violation of Rule 11 and any ble for interference with Rice’s relation- about the costs fall ship or for defamation or for retaliatory dis- far below professional advocacy standards of charge. in this circuit. We do not tolerate blunder- Corporate officers are not in- appeals buss outsiders loaded with frivolous scatter- termeddling maliciously in shot the business af- that wastes our appellees’ time and fairs of the corporation. money. They privi- are The defendants are directed to show leged to act on corporations, behalf their cause days within why they fourteen using their judgment business not be and discre- sanctioned under Fed.R.App.P. 38 for tion. Loewenthal presenting Securities Co. v. grounds frivolous White appeal. Paving 285, 300, 351 Ill. judgment 184 N.E. district court is policy-mak- Since officers hold AFFIRMED. positions, ing “their freedom of action aimed corporate toward benefit should not WELLFORD, Judge, Circuit dissenting: be by curtailed fear of liabili- I would Reverse the of the dis- ty....” trict court grounds; on several therefore, I A. George Fuller Co. v. College Chicago respectfully dissent. Osteopathic Medicine, (7th Cir.1983). I. PERSONAL JURISDICTION There is logic neither nor demonstrated OVER CHRISTOPHER any basis in Christopher’s assertion that ac- Judge Chief correctly Posner sets out tions were “to further goals.” [his] in Illinois in diversity case there is no Christopher Id. alleged, shown, jurisdiction “over an individual any to have substantial financial stake in presence whose activity in the ... state advance, Nova so as to fashion, in some were solely on behalf of his employer or goals. financial jury found principal.” Plaintiff concedes in his was no retaliation Christo- brief that “if an individual’s [Christopher’s] pher byor Nova. Such finding only contacts with a. forum are solely the is inconsistent claim of intentional result of corporate acts as a fiduciary, per- interference with employment against Chris- sonal may the individual topher. It should be noted that case grounded on such contacts.”1 by plaintiff cited in his support brief to question There is no but that proposition allegation that an that a corpo- was in Illinois at all pertinent times to this rate contrary officer acted best inter- case corporate as a officer with oversight est employer of his is sufficient to overcome concedes, _1. Plaintiff respect with to the fiducia- an individual whose forum contacts involve ry-shield Illinois, applicability doctrine’s in that in corporate, acts furtherance of per- rather than "it personal to jurisdiction sonal, unfair exercise interests." appropri- were deemed v. Lotus Zeman fiduciary-shield defense a with interference (D.Md.1989). of tortious purposes ate Inc., F.Supp. 373 Heart, find reversible I would employment, individual officer’s turned on case That district court respect to' other corporate with em- error in the stake financial direct Christopher. as to actions defendant ployer. fairness a sense violate would solicit, negotiate, Burrowses DE- permit AS TO ERRORS II. OTHER in Ma- corporate business and consummate CHRISTOPHER FENDANT had so they personally in which ryland in favor of Rice jury found Although the and then an interest and substantial direct interference intentional his defamation and Mary- in responding to avoid them allow damages. Un- claims, him zero it awarded to them charges addressed legal land to court, Affirm these I would like district from those transac- arise personally, contention is no jury verdicts. There tions. in- properly but that following out sets 378. Zeman Id. at of defama- to his claims respect with structed to the fiducia- respect in to consider factors ma- The interference. tion intentional doctrine: ry-shield that Rice doubt acknowledges serious jority (1) pur- has Therefore, when injury” that “pecuniary actually suffered solely the di- ” a state in conduct sued very palpable sense “hurt he was furtherance corporation rection terminating him. The actions defendants’ (2) interest; has not corporation’s dam- compensatory no jury specifically found in the state personal interest pursued Christopher, proven against defendant ages (3) substantial; was direct and that reaching this justified in it I believe was from the cor- significantly diverted has not been, may have verdict, as it inconsistent in the policies while purpose porate damages finding punitive respect to with not state should state, with the his contact against either defendant. a court jurisdiction of subject him the “where actual held that courts have Illinois the state.... recoverable, there can be damages are not at 376-77. Id. v. Mc damages.” Shrout punitive moreover, acknowl- majority opinion, Ill.App.2d System, Donald’s was enti- probably “Christopher edges denied, 393 U.S. cert. N.E.2d least, protection tled, facie prima (1968). This 21 L.Ed.2d 89 S.Ct. because, far so fiduciary-shield doctrine sub on this general law conformity reveals, he was trial of the the record (1966). Damages, § 118 ject. See C.J.S. personal inter- in Illinois serve in fact punitive Illinois is “The basic rule in equitable, I the doctrine Since ests.” may not be awarded damages exemplary above lan- only agree with the would This damages.... actual the absence be would add that I would guage, but consistently Illi followed rule has been a doctrine of such unfair and destructive Inc., 13 Equip., v. All-Steel Tonchen nois.” by simply plaintiff to overcome permit (1973). N.E.2d Ill.App.3d any particularity, asserting, without Furthermore, substance, con- acting, Christopher was repeatedly stat courts of Illinois employer. interests of trary the best damages are exemplary punitive ed that moreover, indeed, require the does The law Chicago City law. of the a favorite assert, merely prove, not plaintiff to 33, 196 N.E.2d Ill.App.2d Shayne, 46 a defen- jurisdiction over court has Loretto, 73 (1964); v. Ladies Wetmore dant. court erred district hold that the I would Illinois Tonchen, Under at 624. fiduciary shield doctrine applying in not Massachusetts then, under law, as weU jurisdiction over accepting and in recovery of law, not find Christo- I Christopher. person- if Christopher even defense. pher waived ever jurisdiction al over him existed. I respect would with to its own contractual relation- magistrate judge conclude that was in ship. granting plaintiffs error motion to amend simply proof There in this ease that Christopher jointly to hold Rice, Nova defamed and the defamation $10,000 severally liable for damages actual claim was inextricably also intertwined with jury against only. awarded Nova retaliation, the claim of which resulted in a I believe that a case cited verdict for defendants. actually support lends for this conclusion best, very At may Rice be entitled to a with respect liability damages: new trial on the defamation claim Illinois courts determined [have] clear that this verdict is inconsistent with the jury simply verdict which found one eode- retaliation verdict and the damage negligent fendant necessarily exculpated against Nova cannot stand. I am in defendant, remaining finding for the agreement with Judge Layne Posner that that the second defendant was not liable Plumbing Builders Supply “reasonably implicit” in the jury ver- 569 N.E.2d 1104 Saxe, dict. Sesterhenn v. 88 Ill.App.2d (1991), would indicate that “unlikely” 232 N.E.2d 277 that Illinois adopt the “doctrine of Musgrave v. Union Corp., Carbide compelled self-defamation.” Absent such a (7th Cir.1974). doctrine, there is no evidence that Nova de reasons, For these I would conclude that famed Rice to party. third I believe the personal jurisdiction was lack of better result as to Nova “in poor excuse Christopher, but if were found lawsuit,” for a would be to REVERSE appropriate, somehow enti- judgments against for damages Nova under damages tled to against Christopher un- all the circumstances. der the verdicts and Illinois law. I have Accordingly, I would REVERSE judg- assumed as to that Illinois ap- law ment of the district court as to both defen- plies; if Massachusetts applies law the result dants.

would be the same. III. LIABILITY OF NOVA against

The claims Nova essentially are

liability by respondeat reason of superior for alleged wrongful activity of agent, its Anthony

Christopher, retaliating SCARIANO, G. by. Plaintiff-Appellant, termination because Rice filed workman’s compensation jury found, claims. The how- there, ever, that was no retaliation against JUSTICES OF the SUPREME COURT OF Rice. magistrate judge was correct in the STATE OF INDIANA and Members at least respect in this denying case— State Board Law Examiners of for a motion new trial on the adverse Indiana, Defendants-Appel State verdict retaliatory on the discharge claim. lees. (“The jury could have found that ... Christo- pher decided to fire Mr. Rice because of his No. 94-1783. him.”) dislike magistrate judge is States Appeals, United Court of also noting jury’s correct inconsistent Seventh Circuit. verdict on the claim, intentional interference always “the claims have been treated Argued Sept. 1994. as inter-related.” I disagree with magis- Decided Oct. 1994. trate judge her conclusion that as de- Nova, fendant the verdicts can be reconciled.

Nova cannot be held liable for intentional Rice)

interference party (employee with a

Case Details

Case Name: Dale S. Rice v. Nova Biomedical Corporation and Robert Christopher

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 5, 1995

Citation: 38 F.3d 909

Docket Number: 93-1831, 93-2018 and 93-2685

Court Abbreviation: 7th Cir.