Opinion
NO. 3-02-CV-1623-BD (D).
June 12, 2003.
MEMORANDUM OPINION AND ORDER
Defendant Federal Express Corporation ("FedEx") has filed a motion for summary judgment in this case alleging tortious interference with contractual relations and intentional infliction of emotional distress. For the reasons stated herein, the motion is granted.
I.
Plaintiff Forrest Murphy was employed as an account manager in the Dallas office of Princeton Information, Ltd. (Def. App. at 34, ¶ 3.01; Plf. App. at 367, ¶ 2). On May 13, 2002, plaintiff's payroll check was shipped from the company's main office in New York City to the Dallas branch office via Federal Express overnight delivery. (Def. App. at 34, ¶ 3.02; Plf. App. at 368, ¶ 3). However, due to mechanical problems, the check did not arrive in Dallas until May 15, 2002. (Def. App. at 9 34, ¶ 3.02). As a result of this delay, several checks written by plaintiff bounced and he incurred overdraft fees in the amount of $250.00. ( Id. at 34, ¶ 3.02; Plf. App. at 368, ¶ 3).
On May 15, 2002, plaintiff filed a claim with FedEx for reimbursement of the overdraft charges. (Def. App. at 34, ¶ 3.03). FedEx subsequently agreed to pay $100.00 to settle this claim, and plaintiff received a check in that amount on June 6, 2002. ( Id. at 35, ¶ 3.05; Plf. App. at 365 368, ¶ 6). During this process, plaintiff repeatedly called FedEx to express his dissatisfaction with the way in which his claim was being handled. (Plf. App. at 75). In one of those conversations, plaintiff threatened to pull his company's business from FedEx. (Def. App. at 62, 68). This prompted Annie Stewart, an Executive Services Assistant at FedEx, to call Jeff Zuckerman, the Accounts Payable Administrator for Princeton Information, to determine whether plaintiff had authority to pull the account and to ask "if somebody could be there to try and calm him down." (Plf. App. at 300-01). Zuckerman reported this conversation to plaintiff's supervisor, Carolyn Brown, who said she "would take care of it." ( Id. at 299). Zuckerman also informed his regional manager, Mark Nugent, of the telephone call from FedEx. ( Id. at 301). Shortly thereafter, Brown fired plaintiff. ( Id. at 368, ¶ 7).
On July 3, 2002, plaintiff sued FedEx in Texas state court for tortious interference with contractual relations and intentional infliction of emotional distress. FedEx timely removed the case to federal court and filed a motion for summary judgment. As grounds for its motion, FedEx argues that: (1) plaintiff's state tort claims are preempted by the Airline Deregulation Act ("ADA"), 49 U.S.C. § 41713, et seq., and (2) plaintiff cannot adduce legally sufficient evidence to prove the elements of his claims. The motion has been fully briefed by the parties and is ripe for determination.
Federal jurisdiction is proper because the parties are citizens of different states and the amount in controversy exceeds $75,000, exclusive of interest and costs. See 28 U.S.C. § 1332(a)(1).
II.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
A movant who does not have the burden of proof at trial must point to the absence of a genuine fact issue. Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995). The burden then shifts to the non-movant to show that summary judgment is not proper. Duckett v. Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 113 S.Ct. 82 (1992). All evidence must be viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir. 1993). However, conclusory statements, hearsay, and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Topalian, 954 F.2d at 1131.
III.
Assuming arguendo that the ADA does not preempt plaintiff's state tort claims, FedEx is nevertheless entitled to summary judgment because plaintiff cannot establish the essential elements of tortious interference or intentional infliction of emotional distress under Texas law. Both claims require proof of intentional or willful conduct on the part of the defendant. See Powell Industries, Inc. v. Alien, 985 S.W.2d 455, 456 (Tex. 1998) (reciting elements of tortious interference with contract); GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999) (reciting elements of intentional infliction of emotional distress). Here, there is no evidence that Annie Stewart, or any other FedEx employee, called Princeton Information with the intent or for the purpose of interfering with plaintiff's employment relationship or inflicting emotional distress on him. Rather, the summary judgment evidence shows that Stewart contacted Princeton Information, a valued customer, to determine whether plaintiff had authority to pull the account and to ask for help in calming him down. At his deposition, Jeff Zuckerman, the accounts payable administrator who spoke with Stewart, was asked:
The ADA provides, in pertinent part:
[A] State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.49 U.S.C. § 41713(b)(1). See also Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384, 112 S.Ct. 2031, 2037, 119 L.Ed.2d 157 (1992) (state enforcement actions having "a connection with or reference to airline `rates, routes, or services'" are preempted by federal law). Here, plaintiff's claims do not relate to any pricing, routes, or services provided by FedEx. Rather, he sues for tortious interference and intentional infliction of emotional distress because of statements allegedly made by FedEx to his employer after his underlying contract claim was settled.
Q: When the representative from Federal Express called you, did they ever ask or demand that Forrest Murphy be fired?
A: No, they did not.
Q: Did they ever ask you — that Princeton Information take any kind of disciplinary action against Mr. Murphy?
A: They just asked that somebody speak to him to try to calm him down.
(Plf. App. at 301).
Plaintiff counters this lack of evidence by arguing that Stewart showed "guilty intent" by giving evasive answers at her deposition. When asked if she recalled talking with someone at Princeton Information about plaintiff, Stewart responded:
A: I have a vague recollection of this.
* * * *
Q: Okay. What do you recall.
A: About . . .
Q: About the call to Princeton.
A: I don't know.
* * * *
Q: Do you have anything other than just a vague recollection of what you may have discussed with somebody from Princeton about Mr. Murphy?
A: Not specifically, sir. I was just — you know, it was just in the spirit of probably trying to make his customer experience better. I think that he'd had a difficult time trying to get his situation resolved.
Q: Okay. So in the spirit of trying to get his situation resolved, did you — did you call the Princeton New York office?
A: You know, I may have.
Q: And what would you have called them about?
A: Well, now, you know, I kind of don't have a recollection of specifically, but as I recall, they were the shipper . . . And the only thing that anyone would do would be try to, you know, help — get help with FedEx as far as making the situation better, you know, for the customer. It seems like there was something about trying to get him another check.
( Id. at 289). Because of Stewart's inability to recall the details of a lone telephone conversation that occurred five months before her deposition was taken, plaintiff surmises that she must have intended to interfere with his employment relationship and inflict emotional distress on him. ( See Plf. Resp. Br. at 11-12). The court cannot infer such a sinister motive based on Stewart's lapse of memory. Without more compelling evidence of intentional conduct on the part of FedEx, plaintiff cannot prove his state tort claims.
The court also notes that plaintiff cannot prove that his termination, and therefore his resulting emotional distress, was proximately caused by the telephone call made by FedEx to his employer. Both Carolyn Brown and Mark Nugent testified that plaintiff was fired for lack of production and insubordination, not because of any statements made by FedEx. ( See Def. App. 44-44a, 45-47, 74-76, 77-78). Although plaintiff maintains that Brown told him "FedEx called the corporate offices in New York today and complained about you," any statements made by Brown to plaintiff are inadmissible hearsay. See FED. R. EVID. 801.
CONCLUSION
Plaintiff has failed to adduce legally sufficient evidence to create a genuine issue of material fact that defendant intentionally or willfully interfered with his employment contract or acted intentionally or recklessly to cause emotional distress. Accordingly, defendant's motion for summary judgment is granted. The court will enter a final judgment in favor of defendant by separate order.SO ORDERED.