Unique Paving Materials Corp. v. Anthony Fargnoli

361 F. App'x 689

6th Cir.

2010

Check Treatment

Docket

UNIQUE PAVING MATERIALS CORP., et al., Plaintiffs-Appellants, v. Anthony J. FARGNOLI, et al., Defendants-Appellees.

No. 08-4638

United States Court of Appeals, Sixth Circuit.

Jan. 20, 2010.

361 F. App‘x 689

BEFORE: BATCHELDER, Chief Judge; GRIFFIN, Circuit Judge; and TARNOW, District Judge.*

* The Honorable Arthur J. Tarnow, United States District Court for the Eastern District of Michigan, sitting by designation.

elements one and two—that is, the adverse action was motivated at least in part by the plaintiff‘s protected conduct. Thaddeus-X, 175 F.3d at 394.

Appellants satisfy the first requirement, as their criticisms of TWRA‘s permit system is protected speech under the First Amendment. See New York Times Co. v. Sullivan, 376 U.S. 254, 276, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (holding restraints “upon criticism of government and public officials ... inconsistent with the First Amendment”). And we can assume for the purposes of this appeal that, if an adverse action was taken against Appellants, it was motivated at least in part by this constitutionally protected criticism. See Ctr. for Bio-Ethical Reform v. City of Springboro, 477 F.3d 807, 823 (6th Cir. 2007) (“[C]laims involving proof of a defendant‘s intent seldom lend themselves to summary disposition.”) (internal quotation marks omitted). Therefore, the sole question is whether TWRA‘s threats were sufficiently “adverse” to give rise to a retaliation claim. They were not.

The only adverse actions Appellants alleged were TWRA‘s threats of legal process to defend its good-faith claims to the disputed property. Appellants stress that on one occasion, there was a verbal threat not to simply settle the property dispute, but to sue Appellants “for fraud if [they] attempted to sell this land.” We have stated that “[m]ere threats ... are generally not sufficient to satisfy the adverse action requirement.” Mitchell v. Vanderbilt Univ., 389 F.3d 177, 182 (6th Cir.2004). This is not a hard and fast rule, as there are no doubt stand-alone threats that would deter a person of ordinary firmness from exercising their protected rights. We do not apply the adverse action inquiry mechanically, as “each step of the analysis is flexible enough to take into account the various contexts in which retaliation claims might be made.” Thaddeus-X, 175 F.3d at 395. But in the context of this case, where the alleged threats were made by repeated offers and attempts to resolve the underlying property dispute, we have little doubt that they would not deter a person of ordinary firmness from criticizing TWRA‘s permit process. We adhere to the general rule that bare threats are insufficient to constitute adverse actions, and uphold the district court‘s dismissal of Appellants’ First Amendment retaliation claim.

III.

We AFFIRM the district court‘s judgment.

ALICE M. BATCHELDER, Chief Judge.

Unique Paving Materials Corp. (hereinafter “Unique”) and Unique Paving Materials of California (together hereinafter “Plaintiffs”) appeal the district court‘s order granting summary judgment to Anthony Fargnoli, Don Nathan, Lloyd Folsom, Lafarge North America, Inc., and the QPR Division of Lafarge North America (hereinafter “Defendants”) on the Plaintiffs’ claims for injunctive relief to prevent Defendants from using Plaintiffs’ trade secrets, breach of contract and contract damages, conversion, misappropriation of trade secrets, tortious interference, unfair competition, tortious inducement, and violation of Ohio‘s Uniform Trade Secrets Act, Ohio Rev. Code Ann. § 1333.61, et seq. (LexisNexis 2006). All these claims arise out of Fargnoli‘s leaving Unique for QPR after being encouraged to do so by Nathan and Folsom, and Unique‘s subsequent attempts to enforce the non-competition clause of its contract with Fargnoli.

The district court held that Plaintiffs failed to adduce sufficient evidence of misappropriation or threatened or inevitable misappropriation of trade secrets to withstand summary judgment on those claims. The district court also held that Plaintiffs’ conversion, misappropriation of trade secrets, tortious interference, and unfair competition claims were preempted by Ohio‘s Uniform Trade Secrets Act, Ohio Rev. Code Ann. § 1333.67 (LexisNexis 2006), and evidence Plaintiffs sought to rely on to raise new claims under Ohio‘s deceptive trade practices statute, Ohio Rev. Code Ann. § 4165.02 (LexisNexis 2007) was not properly before the court. The district court further held that the contract‘s non-compete clause was unenforceable in Ohio and Pennsylvania, and that Plaintiffs did not present sufficient evidence of a breach by Defendants’ activities in New York. Finally, the district court held that because Plaintiffs failed to present sufficient evidence of a breach of contract, their tortious interference claims also failed.

After carefully reviewing the record, the applicable law, the parties’ briefs and counsels’ arguments, we are convinced that the district court did not err in its conclusions. As the district court‘s opinion correctly sets out the law governing the issues raised and clearly articulates the reasons underlying its decision, issuance of a full written opinion by this court would serve no useful purpose. Accordingly, for the reasons stated in the district court‘s opinion, we AFFIRM the district court‘s order granting summary judgment in favor of Defendants.