Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Technical Security Integration, Inc. v. Philadelphia Indemnity Insurance Co.

United States District Court, D. Oregon

March 18, 2019

TECHNICAL SECURITY INTEGRATION, INC., Plaintiff,
v.
PHILADELPHIA INDEMNITY INSURANCE COMPANY, Defendant.

          Jonathan M. Radmacher, McEwen Gisvold LLP, Of Attorneys for Plaintiff.

          Guy Keating, Schulte, Anderson, Downes Aronson & Bittner, P.C., and Thomas H. Nienow, Nelson, Haley & Abbott LLP, Of Attorneys for Defendant.

          OPINION AND ORDER

          MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE

         United States Magistrate Judge Stacie F. Beckerman issued Findings and Recommendation in this case on January 10, 2019. ECF 70. Judge Beckerman recommended that the Court (1) grant Plaintiff's motion for partial summary judgment, to the extent it argues that Defendant breached its duty to defend Plaintiff against Tharp's second and fifth counterclaims for defamation; and (2) deny Defendant's motion for summary judgment.

         STANDARDS

         Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate judge's findings and recommendations, “the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id.; Fed.R.Civ.P. 72(b)(3).

         For those portions of a magistrate judge's findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report to which no objections are filed.”); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must review de novo magistrate judge's findings and recommendations if objection is made, “but not otherwise”). Although in the absence of objections no review is required, the Act “does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b) recommend that “[w]hen no timely objection is filed, ” the Court review the magistrate judge's recommendations for “clear error on the face of the record.”

         Defendant timely filed an objection (ECF 73), to which Plaintiff responded. ECF 74. Defendant objects to the portion of Judge Beckerman's recommendation finding that Swankosky's defamatory statements did not clearly arise out of Tharp's employment.

         BACKGROUND

         Judge Beckerman's Findings and Recommendation comprehensively details the factual background in this case. This dispute stems from Defendant's refusal to defend and indemnify Plaintiff for defamatory statements made by Plaintiff's employee Craig Swankosky, regarding a former employee, Tharp. On November 20, 2012, Plaintiff terminated the employment of Corey Tharp, and both Tharp and Plaintiff signed a severance agreement that included non-compete and non-disparagement clauses. Within a month of Tharp's termination, rumors started that Plaintiff was going out of business-rumors that Swankosky imputed to Tharp. Tharp began working for S&S, one of Plaintiff's competitors, on January 7, 2013. In early January 2013, two of Plaintiff's customers decided without prior notice not to renew their contracts with Plaintiff, which Plaintiff believed was due to interference by Tharp and S&S. Tharp began working on quotes for contracts with several of Plaintiff's customers. At a trade show in February 2013, Swankosky made defamatory statements about Tharp to employees of one of the customers who failed to renew its contract with Plaintiff. Also at that same trade show, Swankosky made defamatory statements about Tharp to an individual in their industry.[1]

         Plaintiff sued Tharp for breach of contract and intentional interference with contractual advantage. Tharp counterclaimed for, among other things, defamation. Tharp's second and fifth counterclaims for defamation alleged that:

On or about February 25, 2013, Mr. Swankosky published false statements to [Plaintiff's former clients] that Mr. Tharp was let go [by Plaintiff] for time management issues, project management issues, and for falsifying time sheets. Mr. Swankosky also stated that Mr. Tharp was being investigated by the Florence Police Department for grand theft, and would probably do jail time. Mr. Swankosky further stated that Mr. Tharp stole equipment from [Plaintiff's] office including a handful of cameras and a small digital recording system. Mr. Swankosky described how Mr. Tharp removed cameras from boxes ad replaced them with cans of soup, then left the boxes on the shelf. Mr. Swankosky stated, ‘I know he did it and he's being investigated.'
On or about February 25, 2013, Mr. Swankosky published false statements to Mr. Katnic [an individual in the industry], telling Mr. Katnic to watch out for Corey Tharp, because he (Mr. Tharp) was about to be in some very big trouble. Mr. Swankosky warned Mr. Katnic to stay clear of Mr. Tharp because Mr. Tharp had stolen some equipment, was being investigated for theft, and he would never work in the state again.

         ECF 54-8 at 7-9. Plaintiff timely tendered to defendant the defense of Tharp's counterclaims. Defendant refused, however, to defend ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.