ATAMU MATAMUA, Plaintiff
v.
CARIBBEAN FISHING CO. and CARLOS
SANCHEZ, Defendants.
High Court of
Trial Division
CA No. 34-99
April 11, 2000
[1]
Trial court properly denied plaintiff’s motion, at close of case, to add
corporate entity as party defendant because such motion was tardy, company
would not have had opportunity to defend against plaintiff’s claims, and
consequently joinder would have been unjust. [4ASR3d127]
[2] Libel is a form of defamation and is defined as a false and unprivileged publication by writing which exposes any person to hatred, contempt, ridicule, or obloquy or which causes him to be shunned or avoided or which has a tendency to injure him in his occupation.
[3] The following elements are required in order to
establish liability for defamation: (1) A false; (2) and defamatory; (3)
statement concerning the plaintiff; (4) that is unprivileged; (5) made to a
third party; (6) with fault amounting to at least negligence on the part of the
publisher; (7) and either actionability of the
statement irrespective of special harm or the existence of special harm caused
by the publication of the statement.
[4] In the case of a private plaintiff in a matter not of public concern and not involving the news media, the defendant has the burden of proving the truth of a defamatory statement as an affirmative defense.
[5] Where a defendant repeats a statement attributed to another, he must establish the truth of the statement repeated because one who repeats a defamatory statement endorses it.
[6] To discern whether a statement is defamatory, a court looks to the impression it would naturally produce in the average reader among whom it was intended to reach.
[7] Statements made by employers that attack the honesty, integrity, or competence of employees are defamatory, and can give rise to an action for defamation if not true or protected by privilege.
[8] The common interest privilege is a defense to defamation and applies where a statement contained in a communication is made without malice to a person interested therein by one who is also interested.
[9] The common interest privilege is conditional, and may be lost upon a showing of abuse, malice, or a reckless disregard for the truth.
[10] The common interest privilege applies to statements made concerning a current or former employee, but only when the statement is reasonably calculated to protect a common interest of the employer and employees.
[11] The common interest privilege is forfeited when the statement includes matters that have no bearing on the interest sought to be protected.
[12] Where supervisor saw employee in a truck with fish and heard from employee’s coworker that employee had taken some fish, but made no effort to ascertain whether employee or driver of truck had actually taken [4ASR3d128] fish, how many fish were taken, or whether any of the fish were sold, Court found that supervisor’s subsequent statement that employee had illegally taken and sold fish was done with a reckless disregard for its truth.
[13] There are three categories of damages to which victims of defamation may be entitled: compensatory, nominal, and punitive.
[14] In an ordinary action for defamation, special damages must be proven before the plaintiff is allowed any recovery.
[15] A statement that is libel per se is actionable without proof of special damages.
[16] In the employment context, an attack on the honesty or competence of an employee endangers his position, and is actionable per se.
[17] Irrelevant matter in a communication otherwise privileged may be held libelous per se.
[18] Where a statement is libelous per se, general damages are presumed.
[19] Where a statement is libelous per se, punitive damages may be awarded without a showing of actual malice on the part of the defendant.
[20] Where plaintiff had shown that defendant had published a defamatory statement, which was libelous per se, with a reckless disregard for its truth, Court held such recklessness justified imposition of punitive damages.
Before
Counsel:
For Plaintiff, William H. Reardon
For Defendants, Roy J.D. Hall, Jr.
OPINION AND ORDER
Procedural History
Plaintiff Atamu Matamua (“Matamua”) filed a
complaint on April 28, 1999, alleging that defendant Caribbean Fishing Company
(“CFC”), through its manager defendant Carlos Sanchez (“Sanchez”) defamed him.
CFC and Sanchez answered on May 14, 1999, and the trial began on November 30,
1999. The trial record was held open in
order to admit, by deposition or testimony, evidence provided by witnesses who
were [4ASR3d129] then at sea on
fishing trips. Captain George Souza’s
deposition was taken on December 13 and 21, 1999 and added to the trial
record. Trial closed on February 22,
2000, with closing arguments from both parties. Matamua
submitted a written summation on the same day.
CFC and Sanchez replied in writing on February 25, 2000.
Facts
CFC manages a fleet of purse seiner
fishing vessels that are owned by StarKist Samoa
(“SKS”) and supply its cannery with fish for packing. Sanchez is CFC’s General
Manager. At the time of the events at
issue, Matamua was employed as a winch operator on
the F/V Taimane (‘the Taimane”),
a purse seiner vessel managed by CFC. It appears that
Matamua had worked between three and five trips on
the Taimane at the time he left that vessel’s employ.
The alleged defamatory statement was published in a
fax authored and distributed by Sanchez on CFC’s behalf to SKS’s
vessels on December 12, 1998. This
statement was published by fax to all the boats in the SKS fleet to inform crew
members that they were allowed to take only one fish from the vessel when it
arrived in port. The following sentences
comprised the allegedly defamatory statement: “For example, I was told recently
that a Taimane crewmember by the name of Atamu took two truck loads of fish and sold this fish. This
is an illegal practice.”
Although the statement only relays what Sanchez was
purportedly told by a Taimane crewman, Sanchez
testified at trial that he saw Matamua riding in a
pickup truck, with an unspecified number of fish in the bed, as it left the
port compound. The truck was allegedly
pointed out to him by a member of the American Samoa Government’s Department of
Port Administration. After seeing the
truck, Sanchez proceeded to the Taimane and asked if
anyone had taken fish off the boat. It
was then that a crewmember allegedly told him that Matamua
had done so.
Matamua asserts that he was fired as of the date of the
alleged defamatory statement, while CFC and Sanchez argue that Matamua was simply not rehired for another contract. Matamua last fished
on the Taimane on the trip begun approximately
October 2, 1998, during which he was paid $6.50 per ton as a winch man. Matamua testified
that all the fish had been unloaded as of the date of the events in question,
which means that the trip for which he had contracted was at an end. Matamua, however,
maintains that crewmembers would make a number of trips on one contract, and
that he would have been rehired on the Taimane had
not Sanchez instructed Captain Souza of the Taimane
not to rehire him. Sanchez and the captain denied this allegation and asserted
that Matamua was not rehired because the captain had
secured the services of another winch man for the next voyage. Since then, Matamua
has not [4ASR3d130] worked on the Taimane or other SKS vessels, but he has taken three
voyages on another purse seiner.
Analysis
Before we reach the heart of the defamation case
before us, we must dispose of two tertiary issues.
A. Constitutional
Issues
Matamua opens his trial summation quoting Article I, Section
4 of the Revised Constitution of American Samoa, regarding the dignity of an
individual. CFC and Sanchez take issue
with this citation and argue that a constitutional claim is untenable. We do
not see where any constitutional violations were pled, however, and the
quotation appears to be included for rhetorical, rather than legal,
effect. There being no allegation of a
constitutional violation, we need not address this issue further.
B. Joinder of Parties
[1] Matamua moved, at the close of trial, to add SKS as a
defendant. He cites this Court’s recent decision in McConnell Dowell (Am.
Samoa) Ltd. v.
C. Defamation
[2-3]
A.S.C.A. § 43.5201(1) defines defamation, for purposes of this action, as
“libel which is a false and unprivileged publication by writing . . . which
exposes any person to hatred, contempt, ridicule, or obloquy or which causes
him to be shunned or avoided or which has a tendency to injure him in his
occupation.” The Second Restatement of
Torts is helpful in defining defamation in that it contains all the
requirements of the above definition, but lays them out in a more organized
fashion at §[4ASR3d131] 558.
Breaking down these requirements into single elements produces the
following checklist for finding liability for defamation:
(1) A false
(2) and defamatory
(3) statement concerning the
plaintiff,
(4) that is unprivileged,
(5) made to a third party,
(6) with fault amounting to
at least negligence on the part of the publisher,
(7) and either actionability
of the statement irrespective of special harm or the existence of special harm
caused by the publication of the statement.
The third and fifth elements are clearly
established. The statement named Matamua and was distributed to every ship in the SKS
fleet. The other elements of the cause
of action, however, require further analysis.
1. Falsity
[4-5] In the
case of a private plaintiff in a matter not of public concern and not involving
the news media, the defendant has the burden of proving the truth of a
defamatory statement as an affirmative defense. Borg v.
Boas, 231 F.2d 788, 792 (9th Cir. 1956). Moreover, where, as here, a defendant repeats
a statement attributed to another, he must establish the truth of the statement
he repeated because one who repeats a defamatory statement endorses it.
Testimony regarding the truth of the statement was
inconclusive at best. Sanchez says he saw Matamua in
a truck containing fish leaving the port compound, but this fact does not
establish that he took the fish. Perhaps
Matamua was only a passenger. CFC and Sanchez did not establish that Matamua took two truckloads of fish. Similarly, they did not substantiate that he
sold fish at any point. CFC and Sanchez
have not met the burden of proving the affirmative defense of truth. The first element of falsity is present, and
we move on to the second element.
2. Defamatory Meaning
[6-7] To discern whether a statement is defamatory, a court should
look to the impression it would naturally produce in the average reader among
whom it was intended to reach. Weinstein v. Bullick, 827 F. Supp.
1193, 1197 (E.D. Pa. 1993).
Sanchez accused Matamua of committing an[4ASR3d132] illegal act in the statement at issue. Even if other crewmembers had acted similarly
in the past, they could not help but get the impression from this communication
that Matamua committed a wrongful act. Statements
made by employers that attack the honesty, integrity, or competence of
employees are defamatory, and can give rise to an action for defamation if not
true or protected by privilege. A.S.C.A. § 43.5201(1) (“a false and
unprivileged publication by writing . . . which has a tendency to injure him in
his occupation” is defamation); see also Gould v. Md. Sound
Indus., Inc., 37 Cal. Rptr. 2d 718, 728 (Cal. Ct.
App. 1995) (statement that employee had made large error in bidding was
defamatory because it would tend to injure the employee by imputing
incompetence). The second element of defamatory meaning is established.
3. Privilege
[8] CFC and
Sanchez assert that the fax was protected by the common interest
privilege. A.S.C.A. § 43.5202(3) applies
the common interest privilege to statements made “in a communication without
malice to a person interested therein by one who is also interested.”
First we analyze whether the privilege pertains to
this case. Interested parties have been
held to include supervisors and employees.
Babb v. Minder, 806 F.2d 749, 754 (7th Cir.
1986). Sanchez asserts that the
fax was published in order to protect the common interest of the employees,
i.e. preventing them and their company from incurring the wrath of the port
authorities for conducting illegal activities.
Thus, the setting and purpose of the fax argues for it being privileged.
[9] The
common interest privilege is conditional, however, and may be lost upon a
showing of abuse, malice, or a reckless disregard for the truth. Coastal Abstract Serv. v. First Am. Title, 173 F.3d 725, 735-736 (9th Cir. 1999). Malice on Sanchez’s part, and thus of CFC,
was not demonstrated at trial. Sanchez
testified that he did not name Matamua in the fax in
order to hurt him, and Matamua was unable to
establish this motive in Sanchez’s action.
[10-11]
Sanchez’s conduct in including this unsubstantiated statement impugning Matamua did, however, constitute an abuse of the common
interest privilege. Courts have extended the privilege to protect statements
relating to current and former employees, but only when they were reasonably
calculated to protect a common interest of the employer and employees. See, e.g., Deaile v. Gen. Tel. Co. of Cal., 115 Cal. Rptr. 582 (1974). The privilege is forfeited when
the statement includes matters that have no bearing on the interest sought to
be protected.
[12] In
addition to abusing the privilege, Sanchez, and thus CFC, demonstrated a
reckless disregard for the truth of the statement. Although Sanchez saw Matamua in a truck with fish, and heard that Matamua had taken some fish from another crewmember, he
made no effort to ascertain whether it was Matamua
that had taken the fish (rather than the driver), how many fish were taken, and
whether any of the fish were sold.
Alleging that Matamua had committed an illegal
act on such a flimsy basis, without any further investigation, is conduct that
rises above mere negligence and demonstrates a callous disregard for Matamua’s reputation.
See, e.g., Coastal Abstract Serv., 173
F.3d at 736 (defendant demonstrated reckless disregard by failing to check
accuracy of statement); Babb, 806 F.2d at 749 (manager acted with
reckless disregard of truth or falsity of statements, having made no
investigation of allegations regarding former employee). The common interest
privilege is accordingly unavailable to protect the communication in the
present case.
4. Fault
Most states require a private plaintiff to prove
negligence to recover for defamation. Brown v. Kelly Broad. Co., 771 P.2d 406, 424
n.26 (
5. Actionability
[13] We turn
last to the issue of whether the statement is actionable with or without the
proof of damages. To begin, there are
three categories of damages to which victims of defamation may be entitled:
compensatory, nominal, and punitive.
Compensatory damages are further divided into two classes, these being
general (those which the law presumes to be the natural and proximate result of
the publication, including loss of reputation and emotional distress) and
specific (damages that, while a probable result of the defamation, are not
assumed and must be proved). 50 Am. Jur. 2d Libel
and Slander §§ 374 & 375 (1995).
[14-15] In an ordinary action for defamation, special damages must
be proven before the plaintiff is allowed any recovery. See Partington
v. Bugliosi, 825 F. Supp. 906, 915 (D. Haw.
1993). However, a statement that is
libel per se is actionable without proof of special damages.
[16] CFC and
Sanchez argue that allegations of criminal, and not merely [4ASR3d134] illegal conduct, are required to establish libel per
se. This is a correct statement, but
treats only one category of statements constituting libel per se. Many jurisdictions also hold that in an
employment context, an attack on the honesty or competence of an employee
endangers his position, and is actionable per se. See, e.g.,
[17]
Furthermore, irrelevant matter in a communication otherwise privileged may be
held libelous per se. Corrigan v. Macloon, 22 F.2d 520
(9th Cir. 1927). Agreeing with
the above precedent, we find that the statement was libelous per se.
[18-20] The first consequence of this determination is that general
damages, including injury to reputation and emotional distress, are
presumed. See Dun & Bradstreet v.
Greenmoss Builders, 472
Matamua must, however, prove special damages in order to
recover them. Special damages are those
that are not assumed to be the necessary or inevitable result of the
defamation. In this case, the special
damages sought by Matamua appear to be comprised of
compensation for the differences in wages he earned resulting from not being
rehired as winch man on the Taimane. Captain Souza may have been influenced by the
defamation when he decided to hire another winch man. However, Matamua
has failed to show by a preponderance of the evidence that this factor
controlled the captain’s decision.
Likewise, Matamua is employable on other purse
seiners and has not satisfactorily proven that the
defamation has actually prevented his employment on other purse seiners equal to or higher than the winch operator’s rate
he received on the Taimane. Therefore, Matamua
will not recover special damages on this claim.
Order
CFC and Sanchez shall jointly and severally pay Matamua general damages for injury to reputation and
emotional distress in the amount of $2,500 and punitive damages in the amount
of $2,500, for a total of $5,000.
It is so ordered.