Tsiatsios v . Anheuser-Busch CV-07-003-JL 1/16/09 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

George Tsiatsios

v. Civil N o . 07-CV-003-JL Opinion N o .

Anheuser-Busch, Inc.

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

, and moved for summary judgment. See Fed. R. Civ.

P. 5 6 . The court has jurisdiction under

(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 Difusión Pública,

(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."

(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,

(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,

8 , 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.,

5 , 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 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 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 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 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 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 s o .

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 intentionally and improperly interfered with this relationship;

and (4) the plaintiff was damaged by such interference.” Singer

Asset Fin. Co., LLC v . Wyner,

(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.

A. 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,

(1994) (quoting Restatement (Second) of Torts § 767 cmt.

8 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,

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 (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 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,

9 ; but see Schubert v .

Nissan Motor Corp. in U.S.A.,

5 , 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 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., N o . 05-2101

, at *2 (1st Cir.

June 1 3 , 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 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, N o . 05-CV-461-JD,

, at *4 (D.N.H. Apr. 2 0 ,

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.,

1 , 87 (D.N.H. 1987) (applying New Hampshire l a w ) ; Montrone

v . Maxfield,

(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 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.,

(1st Cir. 1983) (enforcing former employee’s covenant not to

compete); Donovan v . Digital Equip. Corp.,

(D.N.H. 1994) (same); Nat’l Employment Serv. Corp. v . Olsten

Staffing Serv.,

(2000) (enforcing restrictive

14 covenant); Roberts v . General Motors Corp.,

(1994) (recognizing franchisor’s legitimate interest in selecting

its franchisees); Technical Aid Corp. v . Allen,

, 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,

. Anheuser-Busch,

15 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 n o . 29) on Tsiatsios’ claim

for intentional interference with contractual relations. The

clerk shall enter judgment accordingly and close the case.

SO ORDERED.

Judge

Dated: January 1 6 , 2009

cc: Michael J. Sheehan, Esq. Arthur G. Telegen, Esq. Lawrence S . Smith, Esq.

16