Case 1:07-cv-00003-JL Document 37 Filed 01/16/09 Page 1 of 16
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW HAMPSHIRE
`
`George Tsiatsios
`v.
`Anheuser-Busch, Inc.
`
`Civil No. 07-CV-003-JL
`Opinion No. 2008 DNH 009
`
`O R D E R
`The plaintiff, George Tsiatsios, sued Anheuser-Busch, Inc.
`in New Hampshire Superior Court alleging intentional interference
`with contractual relations. Tsiatsios claimed that one of
`Anheuser-Busch’s managers intentionally and improperly interfered
`with his employment at Gauthier Farm Enterprises, Inc. (Gauthier
`Farm). Anheuser-Busch removed the case to this court, see 28
`U.S.C. § 1441, and moved for summary judgment. See Fed. R. Civ.
`P. 56. The court has jurisdiction under 28 U.S.C. § 1332
`(diversity). After oral argument, and for the reasons set forth
`below, the court grants Anheuser-Busch’s motion.
`
`I.
`
`APPLICABLE LEGAL STANDARD
`Summary judgment is appropriate where “the pleadings, the
`discovery and disclosure materials on file, and any affidavits
`show that there is no genuine issue as to any material fact and
`that the movant is entitled to judgment as a matter of law.”
`Fed. R. Civ. P. 56(c); see Dávila v. Corporación De P.R. Para la
`
`
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW HAMPSHIRE
`
`George Tsiatsios
`v.
`Anheuser-Busch, Inc.
`
`Civil No. 07-CV-003-JL
`Opinion No. 2008 DNH 009
`
`O R D E R
`The plaintiff, George Tsiatsios, sued Anheuser-Busch, Inc.
`in New Hampshire Superior Court alleging intentional interference
`with contractual relations. Tsiatsios claimed that one of
`Anheuser-Busch’s managers intentionally and improperly interfered
`with his employment at Gauthier Farm Enterprises, Inc. (Gauthier
`Farm). Anheuser-Busch removed the case to this court, see 28
`U.S.C. § 1441, and moved for summary judgment. See Fed. R. Civ.
`P. 56. The court has jurisdiction under 28 U.S.C. § 1332
`(diversity). After oral argument, and for the reasons set forth
`below, the court grants Anheuser-Busch’s motion.
`
`I.
`
`APPLICABLE LEGAL STANDARD
`Summary judgment is appropriate where “the pleadings, the
`discovery and disclosure materials on file, and any affidavits
`show that there is no genuine issue as to any material fact and
`that the movant is entitled to judgment as a matter of law.”
`Fed. R. Civ. P. 56(c); see Dávila v. Corporación De P.R. Para la
`
`
`
`Case 1:07-cv-00003-JL Document 37 Filed 01/16/09 Page 2 of 16
`
`Difusión Pública, 498 F.3d 9, 12 (1st Cir. 2007). "The object of
`summary judgment is to pierce the boilerplate of the pleadings
`and assay the parties' proof in order to determine whether trial
`is actually required." Id. (internal quotation omitted). A
`trialworthy issue of fact, however, “does not spring into being
`simply because a litigant claims that one exists.” Griggs-Ryan
`v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). “[T]he nonmoving
`party must produce hard evidence of a material factual dispute to
`survive a summary judgment motion.” U.S. v. 6 Fox Street, 480
`F.3d 38, 42 (1st Cir. 2007) (internal citation omitted).
`In making this determination, the “court must scrutinize the
`record in the light most flattering to the party opposing the
`motion, indulging all reasonable inferences in that party’s
`favor.” Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st
`Cir. 2003). The following facts are set forth in accordance with
`that standard.
`
`II. BACKGROUND
`Anheuser-Busch, the defendant, brews beer at its Merrimack,
`New Hampshire plant. Beer fermentation, the process which gives
`beer its alcohol content and carbonation, creates a grain by-
`product commonly known in the industry as “spent grain.” To
`dispose of that grain, Anheuser-Busch contracted with Blue Sky Ag
`
`2
`
`
`
`Case 1:07-cv-00003-JL Document 37 Filed 01/16/09 Page 3 of 16
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`Marketing (Blue Sky)1 to purchase and oversee spent grain removal
`from the Merrimack brewery. Over the years, Blue Sky has
`subcontracted with various trucking companies to haul the spent
`grain from the brewery to its customers at local farms.
`Starting in 2000, George Tsiatsios worked for Elgin Cartage,
`Ltd., as a tractor-trailer truck driver, then for Milford
`Transportation, Inc., and then Gauthier Farm Enterprises, Inc. as
`each company assumed the hauling contract with Blue Sky. With
`each trucking company, Tsiatsios’ job responsibilities included
`driving onto Anheuser-Busch’s property, monitoring the grain
`levels in the brewery’s storage tanks, loading the spent grain
`onto his truck, and hauling the grain to Blue Sky’s customers.
`As Tsiatsios was repeatedly made aware, Anheuser-Busch
`promulgated safety and security rules requiring truck drivers
`such as himself to wear identification badges, hard hats, safety
`glasses, and earplugs while on brewery property. By his own
`concession, Tsiatsios understood that a failure to comply with
`these rules would result in his being banned from the brewery.
`For example, Tsiatsios acknowledges that in early 2004, soon
`after another grain driver suffered an eye injury at the brewery,
`
`1 Blue Sky is a grain by-products broker. It sold the
`spent grain to farmers throughout New England as cattle feed.
`3
`
`
`
`Case 1:07-cv-00003-JL Document 37 Filed 01/16/09 Page 4 of 16
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`
`
`
`
`Tsiatsios received a memo from his employer at the time, Milford
`Transportation, advising:
`Any driver that is observed not wearing safety
`equipment and their ID badge at the brewery will be
`banned from entering the brewery.
`If you are banned from the brewery, you will not have a job.
`We cannot load for you.
`This is a very serious matter and could result in loss of
`the contract by Milford Transportation or Blue Sky Ag North.
`No exceptions will be considered.
`In the four months preceding Tsiatsios’ termination alone, Blue
`Sky and Milford Transportation reminded him of Anheuser-Busch’s
`safety and security rules, and stressed the importance of
`adhering to them, on at least five separate occasions.
`Tsiatsios began driving for Gauthier Farm on July 1, 2004,
`but was terminated four days later following an altercation with
`Roland Vance, Anheuser-Busch’s resident health and safety
`manager. That morning, Tsiatsios drove his truck to the
`Anheuser-Busch brewery to pick up spent grain, just as he had on
`numerous prior occasions for Gauthier Farm and its predecessor
`haulers, and waited in a nearby control room for his truck to
`fill with grain. Soon thereafter, Vance entered this room and
`found Tsiatsios, who he did not know, without an identification
`
`4
`
`
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`Case 1:07-cv-00003-JL Document 37 Filed 01/16/09 Page 5 of 16
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`badge2 and wearing aviator sunglasses that did not comply with
`the brewery’s policy on protective eyewear.3 Vance introduced
`himself and explained that he worked for Anheuser-Busch. While
`the two men had not previously met, Tsiatsios was aware that a
`man named “Roland Vance” worked for Anheuser-Busch and had
`“something to do with safety.”
`Vance then asked Tsiatsios who he was, why he was on
`Anheuser-Busch property, and how he had gotten into the grain
`loading area. Tsiatsios repeatedly refused to identify himself
`to Vance, and would only reveal that he was at the brewery to
`load grain. Following a brief discussion regarding the
`appropriateness of the sunglasses he was wearing, Tsiatsios
`walked out of the room while Vance was still asking him
`
`2 Prior to his encounter with Vance, Tsiatsios claims to
`have spoken with a security guard at the brewery about obtaining
`an identification badge, but had been told that security
`personnel were out of “blanks.”
`3 Tsiatsios acknowledges having read the specific portion
`of one memo advising him “that prescription eye glasses or
`sunglasses are not a substitute for safety glasses.” Milford
`Transportation had previously issued Tsiatsios the required
`safety glasses, but he was not wearing them at the brewery that
`day.
`
`5
`
`
`
`Case 1:07-cv-00003-JL Document 37 Filed 01/16/09 Page 6 of 16
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`questions, ignoring or disregarding Vance’s requests that he
`stop.4
`Don Paulson, Blue Sky’s director of operations, was at the
`brewery overseeing the transition from Milford Transportation to
`Gauthier Farm when he observed Tsiatsios exit the control room
`followed by Vance. While none of these men were familiar with
`one another prior to this incident, Paulson did believe that
`Tsiatsios was one of Gauthier Farm’s grain drivers. Paulson
`approached Tsiatsios and briefly spoke with him about what had
`just happened before advising him to put on a proper pair of
`safety glasses. As Blue Sky’s representative at the brewery,
`Paulson then introduced himself to Vance and asked for his
`version of the events. Vance relayed that when he came upon
`Tsiatsios in the control room he lacked proper safety equipment
`and, when confronted, refused to identify himself or adequately
`explain his presence before walking away. Vance then impressed
`upon Paulson the importance that Anheuser-Busch placed on
`drivers’ adherence to its safety policies and indicated that
`
`4 While claiming to have left the control room to check on
`the amount of grain in his trailer, Tsiatsios has been unable to
`provide any explanation for why he continually refused to
`identify himself. When directly and repeatedly questioned on
`this point at his deposition, Tsiatsios repeatedly testified only
`that “I was there to load grain,” and that he did not identify
`himself “[b]ecause I didn’t.”
`
`6
`
`
`
`Case 1:07-cv-00003-JL Document 37 Filed 01/16/09 Page 7 of 16
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`Tsiatsios’ behavior--failing to identify himself to an Anheuser-
`Busch employee and rudely responding when asked to do so--was
`unacceptable. Paulson informed Vance that he would contact
`Tsiatsios’ employer about the incident and rectify the situation.
`Paulson relayed Vance’s account and his own observations to
`Chris Gauthier, the vice president in charge of trucking at
`Gauthier Farm. Paulson informed Gauthier that he did not want
`Tsiatsios, whom Gauthier had confirmed was the employee in
`question, back on Anheuser-Busch property. Later, after
`confirming Paulson’s version of the events with Vance, Gauthier
`terminated Tsiatsios’ at-will employment with Gauthier Farm.5
`There is no evidence before the court that Vance ever excluded
`Tsiatsios from the brewery himself or instructed anyone at Blue
`Sky or Gauthier Farm to do so.
`
`III. ANALYSIS
`Under New Hampshire law, a plaintiff alleging intentional
`interference with contractual relations must show that “(1) the
`plaintiff had an economic relationship with a third party; (2)
`the defendant knew of this relationship; (3) the defendant
`
`5 At oral argument, Tsiatsios conceded that there was
`nothing improper about Gauthier Farm’s termination of his
`employment.
`
`7
`
`
`
`Case 1:07-cv-00003-JL Document 37 Filed 01/16/09 Page 8 of 16
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`intentionally and improperly interfered with this relationship;
`and (4) the plaintiff was damaged by such interference.” Singer
`Asset Fin. Co., LLC v. Wyner, 156 N.H. 468, 478 (2007).
`Anheuser-Busch argues that Tsiatsios has not only failed to
`present any evidence that it intentionally or improperly
`interfered with his employment at Gauthier Farm, but that, as a
`matter of law, it “cannot be held liable in tort where it was
`acting to protect its legitimate interests, requiring that
`[Tsiatsios, a business invitee] comply with its known safety and
`security rules.” Tsiatsios responds that summary judgment should
`be denied because the record “could support a jury finding that
`Vance acted intentionally and improperly toward plaintiff.”
`Specifically, he argues that Vance’s characterization of
`Tsiatsios’ behavior as unacceptable contained an implicit
`directive to Blue Sky to ban Tsiatsios from the brewery.
`
`Intentional interference
`To establish that the defendant’s interference was
`intentional and improper, a “plaintiff ha[s] to ‘show that the
`interference with his contractual relations was either desired by
`the defendant or known by [it] to be a substantially certain
`result of [its] conduct.’” Demetracopoulos v. Wilson, 138 N.H.
`371, 374 (1994) (quoting Restatement (Second) of Torts § 767 cmt.
`
`A.
`
`8
`
`
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`Case 1:07-cv-00003-JL Document 37 Filed 01/16/09 Page 9 of 16
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`d). Here, the only interference alleged by Tsiatsios consists of
`Vance’s statements to Paulson regarding what transpired in the
`control room. The record shows only that Vance, when questioned
`by Paulson, relayed his version of the events, stressed the
`importance of following the brewery’s safety procedures in the
`future, and indicated that Tsiatsios’ actions and behavior were
`unacceptable. Assuming, arguendo, that affirmatively banning
`Tsiatsios from the plant would have constituted intentional
`interference, the record is bereft of any evidence that anyone
`from Anheuser-Busch actually excluded Tsiatsios from its brewery.
`Nor is there any evidence that an Anheuser-Busch representative
`asked anyone at Blue Sky or Gauthier Farm to do the same.
`Indeed, it is Paulson, Blue Sky’s man on site, who swears in his
`affidavit--the lone piece of evidence before the court that
`addresses this aspect of Tsiatsios’ claim--that “I told Mr.
`Gauthier . . . that I did not want Tsiatsios back on Anheuser-
`Busch property.” Paulson unilaterally made the decision to
`exclude Tsiatsios from the brewery, and there is nothing in the
`record to suggest the contrary.6 See Singer, 156 N.H. at 478
`
`6 Tsiatsios’ argument is further attenuated by the fact
`that Vance’s statements were not made to anyone at Gauthier Farm,
`but to a representative from Blue Sky.
`9
`
`
`
`Case 1:07-cv-00003-JL Document 37 Filed 01/16/09 Page 10 of 16
`
`(noting that element of claim is that interference must be
`intentional).
`Tsiatsios argues that Vance’s statements to Paulson were a
`“thinly veiled code for ‘get rid of that man,’” and, therefore,
`improper. He asks the court to infer that since the brewery’s
`rules were (according to Tsiatsios) only loosely enforced on
`drivers, and, because he “followed the well-known and long-
`standing practice of drivers to not wear the ID tags and safety
`equipment,” Vance’s statements must have been intended to effect
`his termination. The underlying premise of this argument,
`however--that since Anheuser-Busch made little effort to enforce
`its rules, a termination based upon a purported violation of
`these rules must have been improper--has no support in the
`record. Rather, the summary judgment record establishes that
`Anheuser-Busch made a consistent and concerted effort to ensure
`the grain drivers’ compliance with its policies. Tsiatsios
`acknowledges that he and other drivers received numerous notices
`in the months preceding his termination reminding them that it
`was necessary to follow the brewery’s safety policies, clarifying
`any confusion as to what safety equipment was deemed appropriate,
`and warning that any failure to comply would result in
`termination. (Defs.’ Mot. for Summ. J. Ex. D-I; Pl.’s Dep. 157,
`161, 166-67, 170, 171-72, 173-74, 179.)
`
`10
`
`
`
`Case 1:07-cv-00003-JL Document 37 Filed 01/16/09 Page 11 of 16
`
`Further, even if the court accepted that Anheuser-Busch had
`ordered Tsiatsios’ exclusion from the brewery, there is no
`evidence before the court that Anheuser-Busch desired, or was
`substantially certain, that doing so would result in his
`termination from Gauthier Farm. Tsiatsios argues that Anheuser-
`Busch must have been aware of this as “[i]t was common knowledge
`that trucking companies like Milford and Gauthier existed to
`service the [] brewery and that the drivers for Milford and then
`Gauthier, like plaintiff, worked exclusively hauling grain.” But
`his only evidence in support of that assertion is the affidavit
`of his brother, fellow spent grain hauler Charles Tsiatsios,
`stating: “It is common knowledge among the drivers, among the
`security staff at the brewery that we deal with every day, and
`among the companies that contract with the brewery that if a
`driver is banned from the brewery that person has just lost his
`job.” (Charles Tsiatsios Aff. ¶ 10.) Even crediting this
`affidavit, as generally required on a motion for summary
`judgment, see Mulvihill, 335 F.3d at 19; but see Schubert v.
`Nissan Motor Corp. in U.S.A., 148 F.3d 25, 30 (1st Cir. 1998)
`(noting that only affidavits based on personal knowledge should
`be considered by a court ruling on summary judgment); Fed. R.
`Civ. P. 56(e)(1); Fed. R. Evid. 602, Tsiatsios’ brothers speaks
`
`11
`
`
`
`Case 1:07-cv-00003-JL Document 37 Filed 01/16/09 Page 12 of 16
`
`only of grain drivers, security personnel,7 and trucking
`companies working at the brewery. He fails to ascribe this
`“common knowledge” to the only party whose knowledge is relevant
`to the inquiry; Anheuser-Busch. Thus, the Charles Tsiatsios’
`affidavit is not probative of whether the defendant’s conduct was
`intentional.
`As Tsiatsios has failed to present evidence that Anheuser-
`Busch’s alleged interference with his employment was intentional
`as that term is understood under the applicable law, Anheuser-
`Busch is entitled to judgment as a matter of law.
`
`B. Improper interference
`As an alternative basis for granting summary judgment, the
`court notes that even intentional interference, “in itself, is
`legally insufficient to state a claim. Rather, only improper
`interference is deemed tortious in New Hampshire.” Kilty v.
`Worth Dev. Corp., No. 05-2101 2006 WL 1606174, at *2 (1st Cir.
`June 13, 2006) (internal citation omitted) (emphasis in
`original). Under New Hampshire law, interfering with the
`contractual relations of another is not improper--and, thus, not
`
`7 It was established at oral argument that security
`personnel at the Merrimack plant are employed by an outside
`contractor, and are not Anheuser-Busch’s employees.
`12
`
`
`
`Case 1:07-cv-00003-JL Document 37 Filed 01/16/09 Page 13 of 16
`
`tortious--where the defendant merely relayed truthful information
`to a third party, or interfered as a means to protect its own
`legitimate interests.
`Citing the Restatement (Second) of Torts § 772, New
`Hampshire courts have long recognized the permissibility of
`interference with a contract by conveying “truthful information”
`or “honest advice” to a third person. See, e.g., Feeney v.
`Kressy, No. 05-CV-461-JD, 2006 WL 1081128, at *4 (D.N.H. Apr. 20,
`2006) (“New Hampshire . . . recognizes a privilege for a person
`to interfere with a contract by giving honest advice to a third
`person”; Riblet Tramway Co., v. Ericksen Assoc., Inc., 665 F.
`Supp. 81, 87 (D.N.H. 1987) (applying New Hampshire law); Montrone
`v. Maxfield, 122 N.H. 724, 726 (1982) (“any truthful information
`or honest advice given by the defendant cannot constitute
`wrongful interference”). As the Restatement explains, there is
`nothing improper about intentionally causing a third party to
`break off a contractual relationship by giving truthful
`information:
`There is of course no liability for interference
`with a contract . . . on the part of one who
`merely gives truthful information to another. The
`interference in this instance is clearly not
`improper. This is true even though the facts are
`marshaled in such a way that they speak for
`themselves and the person to whom the information
`is given immediately recognizes them as a reason
`
`13
`
`
`
`Case 1:07-cv-00003-JL Document 37 Filed 01/16/09 Page 14 of 16
`
`for breaking his contract or refusing to deal with
`another.
`Restatement (Second) of Torts § 772 cmt. b (1979). Here, the
`uncontroverted evidence is that Paulson asked Vance what had
`happened in the control room. In response, Vance merely provided
`what he believed--and what Tsiatsios concedes--was truthful
`information. Apart from the characterization of his behavior as
`unacceptable, Tsiatsios does not dispute the conclusion that the
`substance of Vance’s statements was truthful; his argument,
`instead, is that Vance improperly intended for his comments to
`result in Tsiatsios’ termination from Gauthier Farm. As
`explained supra Part III(A), however, this argument has no
`evidentiary support.
`But even assuming, arguendo, that Anheuser-Busch intended to
`cause Tsiatsios’ termination, New Hampshire law provides that
`certain conduct, which would otherwise amount to tortious
`interference with contractual relations, is justified where an
`employer has acted to protect its own legitimate interests. See,
`e.g., Emery v. Merrimack Valley Wood Prods., Inc., 701 F.2d 985,
`989 (1st Cir. 1983) (enforcing former employee’s covenant not to
`compete); Donovan v. Digital Equip. Corp., 883 F. Supp. 775, 788
`(D.N.H. 1994) (same); Nat’l Employment Serv. Corp. v. Olsten
`Staffing Serv., 145 N.H. 158, 160 (2000) (enforcing restrictive
`
`14
`
`
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`Case 1:07-cv-00003-JL Document 37 Filed 01/16/09 Page 15 of 16
`
`covenant); Roberts v. General Motors Corp., 138 N.H. 532, 541
`(1994) (recognizing franchisor’s legitimate interest in selecting
`its franchisees); Technical Aid Corp. v. Allen, 134 N.H. 1, 10
`(1991). The Restatement, which is cited as authority in a number
`of the above cases, explains that:
`One who, by asserting in good faith a legally
`protected interest of his own . . . intentionally
`causes a third person not to perform an existing
`contract . . . does not interfere improperly with
`the other’s relation if the actor believes that
`his interest may otherwise by impaired or
`destroyed by the performance of the contract or
`transaction.
`Restatement (Second) of Torts § 773. Here, Vance’s statements to
`Paulson manifested nothing more than Anheuser-Busch’s interest in
`enforcing its safety and security policies. This interest
`involves numerous legitimate concerns including public safety,
`workplace safety, its own economic interests, and, as often is
`the case, insulation from civil liability.
`Tsiatsios has failed to establish a genuine issue of
`material fact warranting trial. The undisputed facts of this
`case establish that Anheuser-Busch neither intentionally nor
`improperly interfered with the employment relationship between
`Tsiatsios and Gauthier Farm, both of which he must prove to
`support his claim. See Singer, 156 N.H. at 478. Anheuser-Busch,
`
`15
`
`
`
`Case 1:07-cv-00003-JL Document 37 Filed 01/16/09 Page 16 of 16
`
`therefore, is entitled to judgment as a matter of law. See Fed.
`R. Civ. P. 56(c).
`
`IV. CONCLUSION
`For the foregoing reasons, the court grants Anheuser-Busch’s
`motion for summary judgment (document no. 29) on Tsiatsios’ claim
`for intentional interference with contractual relations. The
`clerk shall enter judgment accordingly and close the case.
`
`SO ORDERED.
`
`Dated: January 16, 2009
`cc: Michael J. Sheehan, Esq.
`Arthur G. Telegen, Esq.
`Lawrence S. Smith, Esq.
`
`____________________________
`Joseph N. Laplante
`United States District Judge
`
`16
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