* After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 3 2003 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHRISTOPHER J. THOMAS,

Plaintiff - Appellant,

v. PACIFICORP, an Oregon corporation, doing business as Utah Power & Light Company, Defendant - Appellee. No. 02-4018

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH (D.C. No. 2:00-CV-629-ST)

Submitted on the briefs: * Samuel M. Barker, Salt Lake City, Utah, for Plainti ff-Appellant. David A. Westerby and David J. Hardy of Kirton & Mc Conkie, Salt Lake City, Utah, for Defendant-Appellee.

Before BRISCOE, McKAY, andMcCONNELL , Circuit Judges.-2-

McKAY , Circuit Judge.

This defamation, tortious interference with economi c relations, and negligent infliction of emotional distress action s tems from statements made by a Utah Power & Light [UP&L] employee to two of Plaint iff’s business associates. Plaintiff-Appellant Mr. Thomas entered into a busin ess relationship with Michael T. Holmes and Michael H. Holmes (father of Michael T. Holmes) with the intent to bid on jobs offered by Appellee UP&L. For this purpose, Plaintiff and Michael T. Holmes formed a limited liability co mpany called Kinetic Construction, L.L.C. Michael H. Holmes introduced Mr. Thomas to his son, facilitated the relationship, and worked with Mr. T homas to bid on UP&L projects. In April 1999, Mr. Thomas visited Appellee’s office s to discuss information on new bidding procedures. While at Ap pellee’s offices, Mr. Thomas met with Ms. Lambrou, a UP&L employee. Later that evening, Mr. Thomas phoned Ms. Lambrou at her home. The parties contes t the content of both the meeting and the phone call. Ms. Lambrou reported the conversations she had with Mr. Thomas to her supervisors. Based on Ms. L ambrou’s report, which included allegations of Mr. Thomas’s and Ms. Lambro u’s discussions of confidential information pertaining to other bidder s for UP&L projects and-3-

conversations of a sexually explicit nature, UP&L d etermined that Mr. Thomas would not be allowed to bid on its construction work. Several days later, Appellee’s agent contacted Mich ael H. Holmes to advise him that Mr. Thomas would not be allowed to bid on UP&L construction work and that Kinetic could bid only if Mr. Thomas was n ot involved with the project. Appellee’s agent told Michael H. Holmes that UP&L w as “fearful” of doing business with Mr. Thomas. Amend. Aplt. App. at 3. Appellee’s agent also contacted Michael T. Holmes and relayed similar inf ormation. However, according to Appellant’s version of the facts, inst ead of telling Michael T. Holmes that UP&L was “fearful” of doing business wi th Mr. Thomas, the agent told Mr. Holmes that Mr. Thomas had “bribed and thr eatened a Utah Power & Light company employee.” Id. at 9. According to Appellee’s version of the fact s, there was no reference to a threat. Instead, Appel lee’s agent told Mr. Holmes that Mr. Thomas “had tried to get information from one o f the secretaries there that would allow him to know the bids of other people . . . .” Aple. Supp. App. at S011, S069-71. Neither Michael T. nor Michael H. H olmes shared the above statements with anyone not affiliated with Kinetic. Id. at S061, S070. Kinetic has done no business; it decided not to go forward because Mr. Thomas was not allowed to bid on UP&L’s construction projects. Id

. at S061, S071. Mr. Thomas filed the current lawsuit claiming that the statements made by1 While Appellant mentions his tortious interference with business relations

and negligent infliction of emotional distress clai ms in his briefs, he does not raise any issue on appeal specifically regarding th ese claims. -4- UP&L’s agents were defamatory and caused him damage . Mr. Thomas later amended his complaint to assert additional claims f or tortious interference with economic relations and negligent infliction of emot ional distress arising out of the same statements. The district court, which retaine d jurisdiction over this diversity action pursuant to 28 U.S.C. § 1332, granted summary judgment in favor of Defendant UP&L. The district court held that (1) the statements in question were privileged and there was no abuse of that privilege , (2) UP&L did not act for an improper purpose or by improper means, and (3) UP&L could not have foreseen that its actions would cause severe emotional distr ess. Appellant Mr. Thomas claims that the district courterred in entertaining Appellee’s summary judgment motion before requiring Appellee to answer requested discovery. Appellant also claims that th e district court erred in finding Appellant’s complaint insufficient to include “othe rs.” Appellant further claims that the district court erred in granting summary j udgment to Appellee by holding that UP&L’s statements were privileged when those s tatements were not true and there was no economic interest for UP&L and in fail ing to address Appellant’s assertion of slander per se. 1
We first address Mr. Thomas’s assertion that the di strict court erred by-5-

entertaining and granting summary judgment because discovery was not complete. We review alleged errors in the discovery process f or an abuse of discretion. Pippinger v. Rubin , 129 F.3d 519, 533 (10th Cir. 1997). We review a district court’s grant of summary judgment de novo . Murphree v. US Bank of Utah, N.A. , 293 F.3d 1220, 1221 (10th Cir. 2002) (quoting Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999)). Our review of the briefs and the record re veals that Mr. Thomas served several discovery requests on August 2, 2001, afterthe completion of discovery deadline of July 31, 2001. However, even if the re quests had been served on July 31, the requests still were not timely. The F ederal Rules of Civil Procedure allow parties thirty days to respond to interrogato ries and requests for production. Fed. R. Civ. P. 33(b)(3), 34(b). Therefore, reques ts must be served at least thirty days prior to a completion of discovery deadline. See , e.g. , Smith v. Principal
Cas. Ins. Co. , 131 F.R.D. 104, 105 (S.D. Miss. 1990). Therefore , we hold that the district court did not abuse its discretion in dete rmining that discovery was completed before granting summary judgment. Additionally, Mr. Thomas failed to avail himself of the shelter provided by Federal Rule of Civil Procedure 56(f). Rule 56(f) allows a party to show the court that he “cannot for reasons stated present byaffidavit facts essential to justify the party’s opposition.” Id. In Pasternak v. Lear Petroleum Exploration,-6-

Inc. , we held that “[w]here a party opposing summary ju dgment and seeking a continuance pending completion of discovery fails t o take advantage of the shelter provided by Rule 56(f) by filing an affidavit, ther e is no abuse of discretion in granting summary judgment if it is otherwise approp riate.” 790 F.2d 828, 832-33 (10th Cir. 1986). Mr. Thomas also claims that the district court erre d in failing to admit the affidavits of Carolee and Ron Crockett and in findi ng Appellant’s complaint insufficient to include “others.” Our review of th e briefs and the record reveals that these affidavits do not support Mr. Thomas’s a llegations that the statements at issue were published to “others.” Therefore, th ese affidavits were properly stricken and the district court did not err in find ing Appellant’s complaint insufficient to include “others.” We next address whether the district court erred ingranting summary judgment in favor of Appellee on the issue of quali fied privilege. We review a district court’s grant of summary judgment de novo . Murphree , 293 F.3d at 1221. A motion for summary judgment is granted when the r ecord demonstrates that “there is no genuine issue of material fact . . . a nd the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56

. Mr. Thomas claims that the district court erred in holding that UP&L’s statements were privileged because those statements were not true and there was-7-

no economic interest for UP&L. “The law has long r ecognized that [statements are] conditionally privileged if made to . . . advance a legitimate common interest between the publisher and the recipient . . . .” B rehany v. Nordstrom, Inc. , 812 P.2d 49, 58 (Utah 1991) (statements made by employe r during a meeting of store managers that employees’ dismissals were drug-relat ed were qualifiedly privileged). “[I]t has long been held that communi cations between persons who share a common business interest are qualifiedly pr ivileged and not libelous in the absence of malice.” Lind v. Lynch , 665 P.2d 1276, 1278 (Utah 1983) (statements made in a proxy solicitation by a shareholder aboutthe corporation’s president and attorney were qualifiedly privileged); see also McClure v. American Family
Mut. Ins. Co. , 29 F. Supp. 2d 1046, 1057-60 (D. Minn. 1998) (statements by an insurer to its independent agents regarding two age nts that had been terminated were subject to a qualified privilege); Market Amer ica, Inc. v. Christman-Orth , 520 S.E.2d 570, 576 (N.C. Ct. App. 1999) (qualifiedprivilege protected allegedly defamatory bulletin sent by company’s president to distributors). This conditional privilege allows a defendant to publish allegedly d efamatory statements unless the plaintiff shows that the defendant abused the condi tional privilege by acting with malice or by publishing the statements to others wh o do not have a justified reason to receive the statements. See Brehany , 812 P.2d at 58. Mr. Thomas argues that UP&L did not have an economi c interest in-8-

protecting its relationship with the Holmeses becau se they had not yet entered into a business relationship. Instead, the Holmese s and Mr. Thomas (as Kinetic) had only inquired about the bidding process. Addit ionally, Mr. Thomas maintains that UP&L had no economic interest in protecting it s relationship with Michael H. Holmes because he was not a partner in Kinetic. Even though UP&L and the Holmeses were not yet in b usiness with each other, the framework for a possible future relation ship had been explored. Mr. Thomas, as a representative of Kinetic, had contact ed and met with representatives of UP&L to inquire about UP&L’s bid ding procedures with the intent to bid on future UP&L projects. Michael T. Holmes was Mr. Thomas’s business partner. Michael H. Holmes was also invol ved in the enterprise and twice accompanied Mr. Thomas to UP&L’s offices. Ap le. Supp. App. at S025-26, 056-59, 066-67. UP&L had a valid reason to believe that both Messrs. Holmes were involved with Mr. Thomas and Kinetic. UP&L al so had a legitimate reason to avoid harming its early relationship with the Ho lmeses. It is possible that UP&L would have occasion to contract with the Holme ses in the future whether as Kinetic (without Mr. Thomas) or as another entity. We agree with the district court that [i]n the current case, both defendant and the Holme s have legitimate interests to protect. Plaintiff and his two partne rs, Michael H. and Michael T. Holmes, had formed a business, Kinetic, with the sole purpose of bidding on projects with the defendant. Defendant had made a decision not2 “[T]here is a distinction between the malice which is implied from every

defamatory publication and the actual malice which is necessary to remove a conditional privilege.” Combes , 228 P. 2d at 277; see also Brehany , 812 P.2d at 58 n.3. -9- to contract with plaintiff or any business entity r elated to the plaintiff. As such, Michael H. and Michael T. Holmes had an inter est in being told why their new business would not be able to contract wi th defendant. Likewise, defendant had a legitimate interest in informing th e Holmes of the decision in order to avoid destroying any potential further relationship with the partners. This legitimate common interest between publisher and recipient is sufficient to invoke the conditional privilege. Amend. Aplt. App. at 61. Therefore, we hold that the statements at issue were conditionally privileged. Since Appellee’s statements were conditionally priv ileged, it is Appellant’s burden to demonstrate abuse of that privilege. Bre hany , 812 P.2d at 58. A “plaintiff can show abuse of the privilege by provi ng that the defendant acted with malice or that the publication of the defamato ry material extended beyond those who had a legally justified reason for receiv ing it.” Id. “[T]he defendant is protected unless plaintiff pleads and proves facts which indicate actual malice in that the utterances were made from spite, ill will or hatred toward him [, otherwise] there is no issue to be submitted to the jury.” Combes v. Montgomery Ward & Co. , 228 P. 2d 272, 277 (Utah 1951). 2Appellant did not put forth any evidence that Appellee acted with malice in relaying the statements to the Messrs. Holmes. Additionally, there is no admi ssible evidence that the3 We note that because we hold that UP&L’s statements to the Messrs.

Holmes are conditionally privileged and because App ellant has not produced any admissible evidence suggesting an abuse of that pri vilege, the difference between Appellant’s and Appellee’s version of UP&L’s statem ents to Michael T. Holmes is immaterial.

4 Motion to Allow Supplemental Appendix for Plaintiff /Appellant is granted. -10- statements were published to anyone besides the Mes srs. Holmes. Therefore, we agree with the district court that there was no abu se of the qualified privilege. 3 We note that even though Mr. Thomas has asserted se veral disputes of fact, such as the actual content of the conversations he had w ith Ms. Lambrou, “there is no genuine issue of material fact” sufficient to overc ome summary judgment as required by Federal Rule of Civil Procedure 56. Finally, Mr. Thomas claims that the district court erred in failing to address Appellant’s assertion of slander per se. Because Appellee’s statements are subject to a qualified privilege and because Appell ant did not put forth any evidence that Appellee acted with malice in relayin g the statements to the Messrs. Holmes, we need not address this claim. For the foregoing reasons, the decision of the district court is
AFFIRMED

. 4