*1 i.e., panel the erred its petition, petitioner the failure to find waived his Gary’s Gary L. MONETTE d/b/a argument under the confronta- Bread, Amendment, we tion clause of Sixth Plaintiff-Appellee, petitioner filed his point out that the in corpus petition pro se and three habeas petitioner refers places petition in that COMPANY, LTD. BAKING AM-7-7 the failure of the state to accord to Company d/b/a petitioner right of confrontation under Malandruccolo, Defen Antonio Amendment, namely the Sixth twice on dants-Appellants. petition (App.6) and once on page 3 of the page petition (App.ll) in which the 8 of the No. 90-1413. petitioner alleges that the state “denied right appellant his constitutional of con- Appeals, United States prosecutor, frontation when it allowed the Circuit. Sixth objection, over defense hearsay to introduce the 30, 1990. Lang.” Argued of Mrs. These Nov. statement petition in the should suffi- references April Decided put pro on notice that cient to the state petitioner attempting se to raise a con- The District frontation issue. lieved that raise Court be- petition was sufficient to issue and reached the issue. Af- this ter the District Court had decided the con- frontation issue in its opinion July 1990, the record us does reflect before respondent requested that the the Court to grounds reconsider on the had not been that the issue raised, any way nor did it in indicate to the District Court that the issue taking had been waived. Thus into account language petition, of the the District opinion deciding Court’s of case favor petitioner ground this and the state’s failure to move for reconsideration or way other argument concerning indicate to the District waiver, Court its panel believes that the first round raised petition rehearing is not well taken. For the panel’s reasons stated decision, panel opinion is of the grounds petition second and third rehear should also be denied. Accordingly, it is ORDERED that
petition rehearing for en banc is denied. *2 Aretha, (argued), Keith M.
Jerry R. Swift & Wilcox, Bryant, Swift Eames, Mastej, Mich., plaintiff-appel- Riddell, Detroit, for lee. Rosenberg (argued), Rosenberg B. David Mich., Southfield, defen- Nelson,
& dants-appellants. NORRIS, Judge, Circuit
Before Judge, and WELLFORD,* Circuit Senior Judge. FORESTER,** District ** * Forester, States United S. Honorable Karl Harry sen- assumed W. Wellford The Honorable Ken- Judge Eastern District District tucky, January status on ior by designation. sitting judg- damages on November 1989.1 FORESTER, Judge. District as to the Defen- joint and several ment was a Memoran- appeal from a direct This is judgment for a moved dants. Defendants denying defen- Order Opinion and dum notwithstanding the verdict and for a new notwith- for a dants’ motions motions in trial court denied the trial. The *3 trial. and for a new standing the verdict dated opinion and order a memorandum L. d/b/a Plaintiff-appellee, Gary Monette 1990. On March March [“Monette”], Bread International Gary’s appeal their notice of filed Eastern District action in the filed an opinion and order testing the memorandum against defen- April Michigan on motions for a Defendants’ that denied Baking Compa- AM-7-7 dants-appellants, This affirms. and a new trial. JNOV Ontario, corporation Ltd., an Canada ny, Company Baking International d/b/a [“In- BACKGROUND FACTUAL Malan- Baking”] and Antonio ternational 30,1988, Monette September On or about Ma- [collectively druccolo “Defendants”]. by Sam route owned purchased bread president and sole share- is the landruccolo $28,000. Picarella had owned Picarella Baking. Monette’s International
holder of
years,
six and one-half
the route for about
of intentional
complaint alleged tort counts
from a former
having purchased the route
ad-
prospective
economic
interference
$30,000. Although the custom-
owner for
contractual re-
vantage;
interference with
change
time to
would
from
ers on the route
defamation;
lations;
misuse of trade
and
time,
since
route had been
existence
upon diversi-
Jurisdiction is based
secrets.
$28,000 price, Mon-
prior to 1977. For the
parties. Mon-
citizenship between the
ty of
custom-
a truck and a list of
purchased
ette
that Defendants
essentially
servicing.
claims
ette
that Picarella had been
ers
de-
and unlawful means to
improper
used
products that
of the bread
Two-thirds
so that De-
stroy his
route business
bread
to his retail customers were
Monette sold
usurp
could
that business
Baking, an
International
purchased from
their own benefit.
baking
located
business
Italian bread
Windsor,
in Canada. Other breads
Ontario
jury
tried to a
on No-
The matter was
Baking, Syrian or
from International
1989. Monette abandoned
vember
in Windsor and
pita
from Fran’s
bread
shortly before trial.
claim for defamation
dog
Brown’s
hamburger and hot
buns from
proof,
Monette’s
Defen-
At the close of
Detroit,
remaining
up
made
Bakery in
on the
for a directed verdict
dants moved
purchased the
the sales. Monette
third of
The trial court
remaining
three
counts.
Baking
International
from
bread wholesale
interference with
dismissed the counts on
retail
suppliers, sold it to his
and the other
and misuse of trade
contractual relations
higher price, and earned a
at a
customers
jury
to the
on
secrets. The matter went
original own-
the difference. The
profit on
claim of intentional
the sole
route,
Piearel-
his successor
er of the bread
advantage. The
la,
a contract
Monette did not have
and
with the
joint jury
filed
instructions
parties
purchase
Baking for the
with International
day
jury
trial. The
re-
court on the
Thus,
products.
resale of the bread
and
Monette that
a verdict in favor of
obligation
turned
no
Baking had
International
jury
prod-
judgment was entered on the
Monette with bread
day
provide
and
or to
$60,000
ucts,
not commit-
and Monette was likewise
in favor of Monette for
verdict
appeal
appeal.
record on
an issue on
Judge
in his
such
Wellford contends
dissent
$60,000
any
jury
jury
Monette is
award.
award in favor of
indicate
error in
does not
grossly
unsupported
the evi-
designated
appeal
excessive and
this
record
Since the
However,
did not raise
error,
dence.
the Defendants
as-
the Court
to conclude
insufficient
a new
motions for a JNOV or
an issue in their
no
indifference that
the Defendants’
sumes from
any impropriety
court as to
trial in the district
verdict.
of the
exists with the amount
error
verdict,
they raise
nor do
in the amount
Bondy vis-
Malandruccolo
International
products
buy
ted
Unit-
ongo-
an
ited
merely had
parties
Baking. The
International
each that
voluntarily
told
States
ed
relationship in which
ing
route,
taking over the
purchase
sale
business—the
transacted
buy the bread
longer could
day.
they no
day to
products
of bread
—from
Monette, and
Baking from
after
weeks
three
about
Within
Baking would sell
Piearella, Malan-
route
When Monette
directly
them.
products
to determine
Piearella
approached
druccolo
tak-
Baking would be
if International
asked
route
the bread
would take
if Piearella
rival
buns from
pita
ing over the
stated
Piearella
from Monette.
back
purchas-
been
which
bakeries
Malandruccolo
the route.
did not want
“Hey, that is
*4
Bondy responded,
ing, Earl
like Monette
not
he did
that
replied
of the route.”
part
out of
him
going
boot
“I am
that
stated
effec-
Baking thereafter
International
here.”
route.
bread
Monette’s
tively assumed
he was harassed
that
testified
Monette
retail
to the
delivered
products were
Bread
of
personnel
other
by Malandruccolo
employed
Interna-
by a driver
customers
consist-
Baking. Harassment
International
addition, various bread
Baking.
In
tional
on some
to Monette
refusing to talk
ed of
purchased Monette
previously
products
occa-
on other
occasions,
Monette
yelling at
replaced by sim-
were
rival bakeries
demands
sions,
making unreasonable
by Internation-
products manufactured
ilar
that
claim
Defendants
upon Monette.
In-
that
learned
Monette
Baking. Once
al
down, although Mon-
were
sales
Monette’s
selling bread
had ceased
Baking
ternational
had
that sales
evidence established
ette’s
custom-
him,
retail
asked his
he
products
diminished.
not
accept an alternative
ers
a com-
Baking did not
International
Baking
International
place of
in
product
cus-
of Monette’s
names
plete list of
indicated
customers
While some
breads.
1988, International
November
In
tomers.
some
product and
an alternative
interest in
Earl
employees,
its
one of
Baking sent
could
that he
not,
concluded
Monette
did
the route
on
Monette
accompany
Bondy, to
in time
product
replacement
a
find
not
in-
Monette
helping
of
pretext
under
Monette
his customers.
serve
adequately
told
was
Monette
of bread.
sales
crease
route
his bread
that
accordingly concluded
on the
accompany Monette
was to
Bondy
failed,
was forced
and he
business
week,
Bondy actual-
although
one
for
route
evi-
Although some
the route.
abandon
day.
only one
accompanied Monette
ly
was
Monette
that
at trial indicated
dence
dis-
Monette
day
course
During the
route
the bread
getting out of
interested
compiling list
Bondy was
that
covered
he
that was
business,
testified
Monette
Mon-
Bondy assured
Monette’s customers.
aban-
than
route rather
selling the
sidering
list of
compiling
he was
that
ette
his
that
further testified
He
doning it.
to Interna-
merely as evidence
customers
due
selling
the business
interest
job
had done
Bondy
Baking that
tional
Defen-
received
he
harassment
Monette
the customers.
talking with
of International
personnel
other
dants
Defendants
intention
contends
Baking.
Bondy
letting
into
to trick
so
of his
a list
compile
DISCUSSION
the route
steal
could
Monette.
away from
is whether
before
The issue
Defen-
denied
properly
district
Defendants, with-
February
On
notwith-
motions
dants’
Inter-
informed Monette
warning,
out
In
trial.
new
for a
standing the verdict
longer sell
Baking would no
national
words,
the issue whether
day, Defendants
him. On
same
at trial
evidence
sufficient
introduced
list
had obtained
the customer
used
interfered
intentionally
prove
Bondy to locate Monette’s
through
to the non-
advantage under
those inferences most favorable
economic
prospective
movant,
complete
either a
absence
there is
Michigan law.
or no controverted
proof
on the issues
theory
proved
is that he
all the
per-
upon
of fact
which reasonable
issues
intentional interfer-
tort of
elements of the
E.I.
sons could differ. Sawchik v.
DuPont
advantage.
ence with
(6th
Co., 783 F.2d
DeNemours &
arguments are that no
main
Defendants’
Cir.1986). The determination is one of law
at trial that De-
introduced
evidence was
instance
to be made in the first
Monette’s retail cus-
pressured
remains the
district court. The standard
buying bread from Mon-
to cease
tomers
re-
trial court’s decision is
same when the
event,
and,
ette,
appeal.
viewed
terminating
its rela-
justified
Baking was
he was not
tionship with Monette because
trial is
grant
or denial of a new
effectively.
servicing
route
of the trial
purely within the discretion
that,
Michigan
under
responds
court. The trial court’s decision will
law,
prove that Defen-
merely needed to
showing
except upon a
of abuse
reversed
intentionally
acts that
committed
dants
Logan
Dayton
Hudson
of discretion.
Monette’s customers to discontinue
caused
Cir.1989).
(6th
Corp.,
F.2d
*5
relationships with Monette
their business
as a definite
“Abuse of discretion is defined
by
interference
and that such
and firm conviction that
the trial court
improper
unjustified.
or
The evidence
was
judgment.” Id.
committed a clear error of
that,
after Feb-
uncontroverted
trial
ruary
re-
B.
Intentional
With
Interference
any
products.
fused to sell Monette
Prospective
Advantage
Economic
that this event caused his
Monette testified
Furthermore,
to fail.
evidence
bread route
in this case is based
Jurisdiction
presented that Defendants used fraud-
citizenship
upon diversity of
between
deceptive
to coerce Mon-
ulent and
means
cases,
parties.
diversity
In
a federal court
disclosing his customers to Defen-
ette into
“in accordance with
apply
must
state law
that Defendants could take over
dants so
controlling
highest
the then
decision of
route for their own benefit.
the bread
County,
state court.” U.S. v. Anderson
contends,
therefore,
that he
1169,
(6th Cir.1985), cert.
761 F.2d
1173
presented sufficient evidence for the trial
919,
248,
denied,
88
474 U.S.
106 S.Ct.
jury.
case to the
court to submit the
(1985)(quoting
L.Ed.2d 256
v.
Vandenbark
in-
jury having concluded that Defendants
538,
Co., 311
Glass
U.S.
Owens-Illinois
relationship
tentionally interfered with
(1941)).
543,
347, 350,
In this plaintiff the routes because “improper induce- took over pute what constitutes he his deliveries and because late with Michigan law. Defendants was under ment” unsatisfactory con- milk in an delivered the evidence was un- argue appeal that the granted judgment a judge trial directly dition. The they did controverted upon his notwithstanding the verdict based encourage to Monette’s customers tact or superior a defendants had doing with view business them to discontinue supply of words, right to discontinue Monette; no absolute there was in other showing of and that no any time ar- milk at Defendants further solicitation. active necessary. Id. therefore justification prove any direct that Monette failed gue Monette, 541-42. of these inducement had not inter- milk if defendants their Court reversed. Supreme Michigan
The fered. per- right to court noted “[t]he reap profits proof of contract court held that Finally, form a Id. therefrom, right to com- complete upon resulting causation was proximate gen- party, purpose: is by unlawful proof of defendants’ performance pel right.” Id. property a erally regarded problem as of follows that the It therefore further stated consid- disappears “[a] The court proximate at 543. cause plain- when cannot is established in the case. Defendants prima facie case eration procurement of not be say that should the intentional proves tiff be heard and, proof, plaintiff it contract, upon injury such caused liable for held breach merely acts because their unlawful upon defendant incumbent becomes injury However, the same have caused they could at 542. Id. justification.” show act. lawful as can be formulated specific no definition it justification, “and will to what constitute Id. one for question is that this usually held is that the De Perhaps argument jury.” Id. no strongly is that most advance at trial indicated introduced direct evidence argu- rejected the defendants’ actively solicited Mon that Defendants “superior” or “abso- they had a ment doing to discontinue retail customers ette’s accept further de- right to refuse lute” words, In other Monette. business upon based milk from livery of prove that Defendants did not the evidence in our entrepreneur that an argument specifically told the agents or their buy system can refuse enterprise free Monette. How buy not to pleases: from whomever re is ever, of such solicitation proof no instant case If the defendants a claim Michigan to state under law quired delivery accept further merely refused prospec for intentional plaintiff, milk advantage. If the defen tive economic legal rights, al- their clearly within been plain with the interfered dant’s conduct in a have resulted though this would inter and if that expectancy tiff’s business plaintiff and between breach contract unjustified, such improper or ference did more. But defendants the farmers. to establish enough alone evidence 1st May 29th and June *7 Their letters interfer case for intentional prima facie the of a breach of solicitation show active Moreover, introduced evi Monette ence. accept deliv- refusal to their contract and the actively solicited Defendants dence that step in merely another ery milk was of buy from Monette. not to retail customers the breach. bringing about attempt to distance The Defendants that the The stated Id. at 542-43. by acts from the themselves deceitful accept deliv- to further defendants’ refusal customer they obtained Monette’s which wrongful plaintiff was by milk eries of acts the underhanded They argue that list. accomplish an un- to it done “because was contem the interference do constitute not i.e., bring a breach to about purpose, lawful instead, They argue, by the tort. plated at 543. Id. of contract.” relation with the business that interference soliciting that the busi actively court concluded the directly and by Wilkinson only did not have the conduct the customers is fact that ness of ir- of his customers the tort. some under tracts with actionable relevant: however, confident, after is This Michigan de- pertinent routes farmers on the reviewed having a few of the
That obtaining cisions, deceit utilized is signed the contracts beside had not sufficiently part customer list is certainly had an under- Monette’s point. Plaintiff proscribed them, of the interference parcel no testi- and and there is standing with entire Michigan law. The by the tort under they not have would mony to show as a viewed must be sequence of events haul employ plaintiff to continued to establishing supply direct Monette and of words, single block whole, as a in other If Defendants on lines to retail centers analysis then The tort conduct. Monette, there simply refused to sell and improper is un- conduct whether Wilkinson, 1 inquiry no cause action. con- would be regard, In this justified. If Defendants had utilized the mo- at 542. employed, N.W.2d the means centrates interferer, other, duplicity to and means besides proper intent of tive and Monette and relationship under cir- conduct end their of the the fairness competition, no enterprise in free engage cumstances. How- have been committed. tort would district agrees This Court ever, say heard to cannot be “[defendants which indi- that “conduct court’s conclusion for the held liable should they end their third-parties to rectly pressures plaintiff by their unlawful injury caused third satisfy the Plaintiff will dealings with have merely could acts because conduct im- element,” long as that so injury by act.” same lawful caused the case, In the instant unjustified. proper deceit, with use combined Id. their within may have been deceit, i.e., the fruits of that custom- dealing with Monette. cease legal rights to list, effectively with end interfere and er the decision However, made Malandruceolo business, of this forms the basis business, as evi- to oust tort violation. that he to Picarella comment by denced his though out busi- is no Alternatively, boot” Monette even there “going to Defendants, utilizing deceit and plaintiff prove active that a requirement ness. allowing defendants, into duped trickery, then of his customers solicitation ride with employees to at trial in presented of Defendants’ evidence was one sufficient Ma- daily bread deliveries infer active solicitation. him as made this case compiling Bondy a list Mon- purpose of visited the for the landruccolo De- Inter- immediately their locations. after ette’s customers almost to them supplying to sell bread intended ceased national Bondy testified products. directly. with bread to inform of such visit was purpose result, accomplished this having After longer they could no retail customers sale of their ceased the Defendants then Baking products purchase immediately visit- products Monette for- any products from Monette did Defendants only Not his customers. ed from Monette merly purchased In- delivery of the direct seek establish directly from to be Bakery products previously de- ternational to evi- is similar This evidence Baking. Monette, pursued direct but also livered active as dence construed Wilkinson pre- products and bun supply pita bread solicitation, were mailed in which letters Mon- supplied other bakeries viously that, stating essentially farmers All this his route. delivery on *8 ette for milk, buy to their creamery wished cumulation, evidence, suggests conduct in creamery to use they would of business rela- cessation beyond the mere as tor- upheld the conduct trucks. Given could, jury The and with Monette. tions agree Wilkinson, must this Court in tious improperly and did, find that properly submitted court the district that Monette’s interfered with unjustifiably jury. to case customers. with his business relations court district The acts of Defen- way, the another Viewed AFFIRMED. fraudulently procuring Monette’s in dants step in an active were customer list WELLFORD, Judge, Circuit Senior soliciting eventually process Defendants’ dissenting: Monette’s retail acquiring verba- recited following are “facts” The Monette in this treatment of Defendants’ in this complaint the amended from tim right- their otherwise greatly tainted case author): by this (footnotes are added case terminating relations with process of ful 284 He 1988, of business. waited 30, going out before September or about
5. On $28,000 giving up it and of- for route before sell the approximately paid $15,- sale, unsuccessfully, route. a bread fered it for purchase therefore, Sam obvious, jury that a route was 000. It is bread in the compensatory relief Picarella.1 award $60,00.0 grossly excessive amount of evidence. Without unsupported by the rights proprietary had full 7. Monette remittitur, I find would very substantial no con- Monette had run. to the bread grant defen- not to it an of discretion abuse International relationship with tractual even if it on this account dants a new trial require Monette Baking would which fact, had, plaintiff that were determined Interna- products from purchase bread v. damages. Bahr made out a case for See Baking. tional 428, 415, Mich. Creamery, 365 Miller Bros. relation- had a contractual 8. (1963). 112 N.W.2d were resell- who ship his customers with Such at retail. contractual ing the bread further conclude I would established.2 relationships were well a case. The district to make out has failed granting a did not commit error 21, 1989, February Tuesday, of interfer- 10. On on the claims verdict directed Mon- informed misuse Earl and Malandruccolo relations and ence contractual truck was bread ette after Monette’s remaining claim was secrets. of trade delivery, loaded for “intentional any more going to sell Baking was not advantage,” vague and indefi- Monette, bread tort at nite kind of best. 21, 1989, February Malandruc- 11. On Michi- diversity case to look in this We route was for colo asked whether analysis of this gan for a definition law replied that he would sale. The act of cause of action. unusual replied $15,000.00. Malandruccolo it for intention- interfering must be defendant $15,000.00 money. too much al, purpose, accomplish an unlawful done to February Tuesday, 12. On Bahr, legal justification. See and without stopped Earl at all of Malandruccolo Mich, 463; 415, 112 N.W.2d at Wil- customers, of which the names Monette’s Powe, 300 Mich. N.W.2d kinson down, and previously written Earl had deceitfully (1942). ob- That defendants given they would them be told customers knowledge of tained they purchase price were reduced carry plain- enough my is not view Baking and from International suppliers Plaintiff tiff’s had burden. longer deliver- that Monette no showing no his route and there is on Baking ing their bread. sources not have obtained other he could Monette’s bread begun service has desired to he than AM-7-7 Co. driver. truck and route with own its showing route. is no There maintain family to a that due Monette testified away induced that defendants made deliveries situation Monette; simply exercised a admitted- February This absence inde- with an right discontinue business made dissat- upset who their ly defendants unsatisfac- routeman pendent deemed also testified that isfaction clear. Monette *9 tory. [February “a few weeks before 1989] upon by plaintiff involve relied The cases paper put it in the advertisement [an away complete source taking it was too much on because route] an unlawful complaining party operated therefore his nerves.” Monette sources and purpose. Monette had other four and a half months the route for about assuring any had no written contract 2. Monette 1. Picarella had route six $30,000. delivery. quantity for future years previously for half selling route anyway of desirous satisfactory price. obtain he could reverse, or in the I
Accordingly, would a remit-
alternative, new trial or grant a damages. on the amount
titur America, STATES
UNITED
Plaintiff-Appellee, DeLuna, and John FIALA
Orlando
Defendants-Appellants. 90-1489, 90-1551.
Nos. Appeals, Court of
United States Circuit.
Seventh 12, 1990.
Argued Dec. 28, 1991.
Decided March