2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-30-2011

Boban Jovanovic v. Northrop Grumman Corp

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2473

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2011

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2011 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Boban Jovanovic v. Northrop Grumman Corp" (2011). 2011 Decisions. Paper 979.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/979
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-2473

_____________

BOBAN JOVANOVIC, 

 Appellant

v.

NORTHROP GRUMMAN CORPORATION

On Appeal from the United States District Court

for the District of New Jersey

(No. 05-cv-04487)

District Judge: Hon. Dennis M. Cavanaugh

Submitted June 21, 2011

Before: CHAGARES, JORDAN and GREENAWAY, JR., Circuit Judges.

(Filed: June 30, 2011)

____________

OPINION

____________

CHAGARES, Circuit Judge.

Plaintiff Boban Jovanovic appeals from an order of the District Court granting 

defendant Northrop Grumman Corporation’s motion for summary judgment and denying 

plaintiff’s cross-motion for summary judgment. For the reasons that follow, we will 

affirm.
2

I.

Because we write solely for the benefit of the parties, we will only briefly recite 

the essential facts. Jovanovic is the sole shareholder in two Delaware corporations, 

Genesis International (“Genesis”) and International Infrastructure Consortium, Ltd. 

(“IIC”). During the time period relevant to this action, Genesis was a member of the 

United States-Algeria Business Counsel (“US-ABC”), a non-profit trade association 

dedicated to fostering trade between the United States and Algeria. Northrop Grumman 

Corporation (“Northrop”) was also a member. Beginning in March 2004, Donald 

Wilhelm, a Vice-President in the Electronic Systems Sector of Northrop, took over as the 

Chairman of the US-ABC Board. Peggy Hewinson, an operations manager at Northrop, 

performed administrative duties for Wilhelm in his capacity as Chairman of the US-ABC.

Following its September 2, 2004 meeting, the US-ABC Board decided to send a 

letter to Genesis asking it to withdraw its membership from the US-ABC (the “letter”). 

Wilhelm drafted the letter, in his capacity as Board Chairman, and sent it to US-ABC’s 

lawyer, James Bailey, for review. Bailey edited the letter and printed it on US-ABC 

letterhead. Wilhelm signed the final version of the letter as “Chairman, US-Algeria 

Business Council” and sent it to “Mr. Robert [sic] Jovanovic, President, Genesis

International Holdings” on September 14, 2004. Appendix (“App.”) 146.

The letter asked Jovanovic to withdraw Genesis from the US-ABC because

“Genesis appear[ed] to inappropriately claim some manner of affiliation with a number of

individuals or entities that are or were members of the US-ABC,” App. 146, and had 

demonstrated “an uneven history” in satisfying its financial obligations to the trade 
3

group. Id. At Wilhelm’s request, Hewinson distributed the letter to members of the USABC via email.1

Based on this allegedly defamatory letter, Jovanovic filed the present action, 

asserting numerous claims against twenty-five individual and corporate defendants. 

After a prior round of proceedings, culminating in an unpublished opinion from this 

Court, only Jovanovic’s claim for personal defamation against Northrop remains. The 

District Court granted summary judgment to Northrop on this claim, finding that 

Northrop could not be held vicariously liable for the actions of Wilhelm and Hewinson 

because they did not publish the letter within the scope of their employment with the 

company.

2

 The District Court also denied Jovanovic’s cross-motion for summary 

judgment based on spoliation of evidence, finding that the evidence in question was 

immaterial to the Court’s disposition of the case because it spoke to the defamatory 

nature of the letter and not to Northrop’s role in dispute.

II.

The District Court properly exercised jurisdiction over this action pursuant to 29 

U.S.C. § 1332. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

 

1 Hewinson’s initial e-mail stated, in part, that Genesis had been “expelled from US ABC 

membership.” App. 491. About three minutes after Hewinson’s e-mail was sent, 

Hewinson retracted the e-mail using the “recall” feature from Microsoft Outlook

and resent it stating that Genesis had been asked to withdraw its membership

from the US-ABC.

2

The District Court held in the alternative that Northrop was entitled to summary 

judgment because the letter was not “of and concerning the plaintiff.” Because we affirm 

on other grounds, we need not address this alternative holding.
4

“We subject the District Court’s grant of summary judgment to plenary review, 

and we apply the same standard that the lower court should have applied.” Smathers v. 

Multi-Tool, Inc., 298 F.3d 191, 194 (3d Cir. 2002). Under that standard, summary 

judgment is appropriate only “if the movant shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56(a). “While the evidence of the non-movant is to be believed, and all justifiable 

inferences are to be drawn in his favor in determining whether a genuine factual question 

exists, summary judgment should not be denied unless there is sufficient evidence for a 

jury to reasonably find for the nonmovant.” Barefoot Architect, Inc. v. Bunge, 632 F.3d 

822, 826 (3d Cir. 2011) (citations, quotation marks, and brackets omitted).

We review the denial of Jovanovic’s motion for sanctions based on spoliation of 

evidence for an abuse of discretion. In re Hechinger Inv. Co. of Delaware, Inc., 489 F.3d 

568, 574 (3d Cir. 2007).

III.

Even assuming that Jovanovic has successfully made out a claim for defamation 

— a proposition of which we are doubtful — we agree with the District Court that 

Northrop cannot be held vicariously liable for the actions of Wilhelm and Hewinson in 

publishing the letter.

An employer may be held liable for intentional torts committed by its employees 

“within the scope of [their] employment.” Printing Mart-Morristown v. Sharp Elecs. 

Corp., 563 A.2d 31, 47-48 (N.J. 1989). An employee acts within the scope of 

employment only when the action in question is “of the kind that the servant is employed 
5

to perform; [] occurs substantially within the authorized time and space limits; and [] is 

actuated, at least in part, by a purpose to serve the master.” Id. (quotation marks and 

original brackets omitted). 

The only evidence presented on this issue demonstrates that the letter was drafted 

and published on behalf of the US-ABC, in the course of Wilhelm’s duties as US-ABC 

Board Chairman. To that end, Northrop offered evidence showing that the decision to 

draft the letter was made by US-ABC’s Board at the September 2, 2004 meeting, that the 

letter was written on US-ABC letterhead, and that it was reviewed by US-ABC’s counsel, 

James Bailey, prior to being signed by Wilhelm in his capacity as Chairman of the USABC Board. 

To counter this evidence, Jovanovic argues that, because Wilhelm was not only 

the Board Chairman, but also Northrop’s representative to the US-ABC, and because the 

purpose of the US-ABC was to advance business interests in Algeria, Wilhelm must have 

been acting on behalf of Northrop when he published the allegedly defamatory letter. In 

this regard, Javanovic offers extensive allegations as to how Northrop may have 

benefitted from the action that Wilhelm took as Board Chairman to remove Genesis from 

the US-ABC. But the fact that Northrop may have benefitted from Wilhelm’s publication 

of the letter is insufficient to create a genuine issue of material fact as to whether 

Wilhelm acted within the scope of his employment at Northrop in so doing. Similarly, 

there is no evidence to support Jovanovic’s suggestion that, because Hewinson was an 

employee of Northrop, she necessarily must have acted within the scope of her 

employment when she emailed Wilhelm’s letter to the members of the US-ABC. In 
6

short, we are persuaded that, insofar as the allegedly defamatory conduct engaged in by 

Wilhelm and Hewinson may be imputed to a principal, the evidence demonstrates that the 

appropriate entity is US-ABC, not Northrop. Accordingly, the District Court properly 

granted summary judgment to Northrop on that basis.

We are similarly persuaded that the District Court did not abuse its discretion in 

declining to award Jovanovic summary judgment as a sanction for spoliation of evidence. 

Jovanovic alleges that Northrop committed “fraud, spoliation of evidence and 

misconduct” by (1) concealing the originals of the underlying Genesis promotional 

materials that Jovanovic gave to Wilhelm, (2) concealing and withholding electronic 

disks containing some of Wilhelm’s emails, and (3) altering the minutes from the USABC’s Board meeting on September 2, 2004. But, as the District Court pointed out, even

if Jovanovic’s allegations are to be believed, the evidence in question would do nothing 

to undermine the conclusion that Northrop was not vicariously liable for the letter’s 

contents. Under such circumstances, we cannot conclude that the District Court abused 

its discretion in declining to award summary judgment to Jovanovic as a sanction for the 

alleged spoliation of evidence.

3

IV.

For the foregoing reasons, we will affirm the judgment of the District Court.

 

3 Having found no error in the District Court’s initial order awarding Northrop summary 

judgment, we also find no abuse of discretion in the District Court’s denial of 

Jovanovic’s motion for reconsideration.