2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit
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w . v i l l a no v a . e du/thir dc ir c uit_2011/979NOT 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 Distr ict 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, C ircuit Judge

. Plaintiff Boban Jovanovic appeals from an order of the District Court granting d efendant Northrop Grumman Corporation ’s motion for summary judgment and denying plaintiff’s cross

- motion for summary judgment. For the reasons that follow, we w ill affirm.2 I. Because we write solely for the benefit of the parties, we will only brief ly recite the essential facts. Jovanovic is the sole shareholder in two Delaware corporations, Genesis International (“Genesis”) and International Infrastructure Con sortium, 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. North rop 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 Northr op, 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 me mbership from the US

- ABC (the “l etter”). W ilhelm 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 th e final version of the letter as “Chairman, US

- Algeria Business Council” and sent it to “Mr. Robert [sic] Jovanovic, President, Genesis International Holding s ” on September 14, 2004. Appendix (“ App. ”) 146. The letter asked Jovanovic to withdraw Genesis from the US

- ABC because “Genesis appear[ed] to inappropri ately claim some manner of affiliation with a number of individuals or entities that are or were m embers of the US

- ABC,” App. 146, and had demonstrated “an uneven history” in satisfying its financial obligations to the trade3

group . Id. At Wilhelm’s reque st, Hewinson distributed the l etter to members of the US

ABC via email. 1 Based on this allegedly defamatory lett er, Jovanovic filed th e 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 C ourt, 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 Outloo k 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.” Becau se we affirm on other grounds, we need not address this alternative holding.4

“W e 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. , 2 98 F.3d 191, 194 (3d Cir. 2002). Under that standard, s ummary 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 o f law .” Fed. R. Civ. P. 56(a ). “While t he evidence of the non

- movant is to be believed, and all justifiable inferenc es are to be drawn in his favor in determining whether a genuine factual question exists , summary judgment should not be denied unless the re 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 b ased 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 do ubtful

— 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 o f [ 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 employed5

to perform; [] occurs sub stantially 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). T he only evidence presented on th is 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 th e 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, pr i or to being signed by Wilhelm in his capacity as Chairman of the US

ABC Board

. To counter this evidence, Jovanovic argues that, because Wil helm 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 defamator y 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 remov e Genesis from the US

- ABC. B ut the fact that Northrop may have benefitted from Wi lhelm’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, be cause 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

. In6

short, we are persuaded that, insofar as the allegedly defamatory conduct eng aged 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 per suaded 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, spoliat ion of ev idence and misconduct” by (1) conceali ng the originals of the underlying Genesis promotional materia ls that Jovanovic gave to Wilhelm , (2) concealing and withho l d ing electronic disks containing some of Wilhelm’s emails, and (3) altering the minutes from the US

ABC’ s Board meeting on September 2, 2004. But, as t he 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 circ umstances, 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 Distri ct 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.