Petricevic v. Shin

BOSKO PETRICEVIC, Plaintiff, v. PATRICK SHIN, RICHARD WILSON, JOHN DWYER, TERRANCE REVERE, NAN, INC., A DOMESTIC PROFIT CORPORATION, Defendants.

Civ. No. 20-00283 LEK-WRP

United States District Court, D. Hawaii

April 18, 2022

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS PATRICK SHIN AND NAN, INC.'S MOTION FOR SUMMARY JUDGMENT AND MOTION TO STAY

Leslie E. Kobayashi United States District Judge

Before the Court is Defendants Patrick Shin (“Shin”) and Nan, Inc.'s (collectively “Defendants”) Motion for Summary Judgment and Motion to Stay (“Motion”), filed on October 6, 2021. [Dkt. no 284.] Pro se Plaintiff Bosko Petricevic (“Plaintiff”) filed his memorandum in opposition on November 19, 2021, and Defendants filed their reply on November 24, 2021. [Dkt. nos. 289, 291.] The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.1(c) of the Local Rules of Practice for the United States District Court for the District of Hawaii (“Local Rules”). On December 16, 2021, an entering order was issued informing the parties of the Court's rulings on the Motion. [Dkt. no. 295.] The instant Order supersedes that entering order. For the reasons set forth below, Defendants' Motion is hereby granted in part and denied in part.

BACKGROUND

Plaintiff states he was hired by Nan, Inc. on March 18, 2019 as its in-house litigation counsel. [Mem. in Opp., Decl. of Bosko Petricevic (“Pltf.'s Decl.”) at ¶ 10.] Plaintiff also states that, after reporting alleged illegal activity at Nan, Inc., he was harassed for months, leading to the termination of his employment on June 10, 2019. [Id. at ¶¶ 11-14, 48, 58.] Plaintiff began working at the law firm of Clay Chapman on September 3, 2019. [Defendants' Concise Statement of Facts in Supp. of Motion for Summary Judgment (“Defs.' CSOF”) filed 10/6/21 (dkt. no. 285), at ¶ 10; Plaintiff's Concise Statement of Facts in Supp. of His Mem. in Opp (“Pltf.'s CSOF”), filed 11/19/21 (dkt. no. 290), at PageID #: 4535 (stating Defs.' ¶ 10 is not disputed).] On October 23, 2019, Plaintiff filed a lawsuit in the State of Hawai'i, First Circuit Court (“state court” and “State Court Action”)^[1] alleging discrimination against Shin and Nan, Inc. [Defs.' CSOF at ¶¶ 12; Pltf.'s CSOF at PageID #: 4535.] Plaintiff amended his complaint in the State Action on November 8, 2019 (“State Court First Amended Complaint”). [Defs.' CSOF, Decl. of Richard M. Rand (“Rand Decl.”), Exh. A (State Court First Amended Complaint).] On June 22, 2020, Plaintiff filed this instant action (“Federal Court Action”) against Shin, Nan, Inc., Richard Wilson (“Wilson”), John Dwyer (“Dwyer”), and Terry Revere (“Revere”). [Complaint, filed 6/22/20 (dkt. no. 1).] The State Court Action and the Federal Court Action concern the same set of facts. [Defs.' CSOF at ¶ 5; Pltf.'s CSOF at PageID #: 4535.]

Plaintiff states Gerald Clay (“Clay”), a named partner at Clay Chapman, promised him an unconditional offer to become an equity partner at the firm. [Pltf.'s Decl. at ¶ 62.] Plaintiff also states that Shin, Wilson, Dwyer, and Revere conspired to interfere with Plaintiff's employment and future partnership at Clay Chapman. See id. at ¶¶ 87, 99. In July 2020, Clay Chapman's Board of Directors decided to terminate Plaintiff's employment, which became effective on July 31, 2020. [Defs.' CSOF at ¶ 15; Pltf.'s CSOF at PageID #: 4535.] On February 5, 2021, Plaintiff filed his Third Amended Complaint, which is the operative complaint in the Federal Court Action (“Federal Court Third Amended Complaint”). [Dkt. no. 151.] On June 30, 2021, an order was issued dismissing, with prejudice, Plaintiff's claims in the Federal Court Third Amended Complaint against Wilson and Revere (“6/30/21 Order”). [Dkt. no. 251.^[2] On July 23, 2021, an order was issued granting summary judgment in favor of Dwyer as to all of Plaintiff's claims against him (“7/23/21 Order”). [Dkt. no. 261.^[3] Thus, Shin and Nan, Inc. are the only remaining defendants in the Federal Court Action.

A jury trial in the State Court Action was held from July 12 to July 21, 2021, and the jury returned a verdict in favor of Shin and Nan, Inc. on all counts. A final judgment was entered on September 10, 2021. [Defs.' CSOF at ¶¶ 17, 19; Pltf.'s CSOF at PageID #: 4534 (partially disputing Defs.' ¶ 19 on other grounds), 4535 (stating Defs.' ¶ 17 is not disputed).]

Defendants seek summary judgment on Plaintiff's claims for: violations of 42 U.S.C. § 1985(2), part two (“Count I”); tortious interference with contractual relations (“Count III”); violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000(e), et seq. (“Count IV”); and tortious interference with prospective economic and business advantage (“Count V”). [Mem. in Supp. of Motion at 1.]

DISCUSSION

I. Section 1985(2) Conspiracy (Count I)

Defendants contend that they are entitled to summary judgment as to Count I because the Court dismissed with prejudice the § 1985(2) counts against Wilson and Revere. See id. at 8-11. Specifically, the Court previously found that the application of an attorney-client variant of the intracorporate conspiracy doctrine precluded Plaintiff's civil conspiracy claims against Wilson and Revere because they could not conspire with Defendants (their clients). See 6/30/21 Order, 2021 WL 2700382, at *3-7. Defendants argue the law-of-the-case doctrine applies here and summary judgment on Count I is appropriate. Plaintiff, however, disputes that the intracorporate conspiracy doctrine applies to Defendants because, unlike Wilson and Revere, Defendants are not attorneys. See Mem. in Opp. at 9. Plaintiff misunderstands.

Plaintiff alleges Defendants conspired with their attorneys, Wilson and Revere, but the Court has ruled that the intracorporate conspiracy doctrine precludes civil conspiracy claims because attorneys cannot conspire with their clients for purposes of § 1985(2). See 6/30/21 Order, 2021 WL 2700382, at *7; see also Musacchio v. United States, 577 U.S. 237, 244-45 (2016) (“[W]hen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” (quotation marks and citation omitted)). Because the law precludes § 1985(2) claims against attorneys on the basis that attorneys cannot conspire with their clients, it is axiomatic that the law also precludes such claims against the clients.

To the extent that Plaintiff's theory is that Shin and Nan, Inc. conspired against him, that theory also fails. “The intracorporate conspiracy doctrine provides that, as a matter of law, a corporation cannot conspire with its own employees or agents.” Hoefer v. Fluor Daniel, Inc., 92 F.Supp.2d 1055, 1057 (C.D. Cal. 2000) (citation omitted). As such, Shin and Nan, Inc. could not have conspired against Plaintiff because Shin is both an owner and an agent of Nan, Inc. Count I fails as a matter of law and, therefore, summary judgment is granted in favor of Defendants with respect to that claim. See Fed.R.Civ.P. 56(a) (stating summary judgment shall be granted “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”).

II. Tortious Interference Claims (Counts III and V)

Defendants seek summary judgment as to Plaintiff's tortious interference with contractual relations claim in Count III and tortious interference with prospective economic and business advantage claim in Count V. Plaintiff has not identified a genuine issue of material fact for either claim.

A. Tortious Interference with Contractual Relations (Count III)

The Court previously found that, in relation to Plaintiff's tortious interference claims against Dwyer,

there are no inferences that support the existence of a partnership contract between Plaintiff and Clay Chapman. Because no genuine issue of material fact exists that there was not a partnership contract between Plaintiff and Clay Chapman, Plaintiff's claim for tortious interference with contractual relations fails as a matter of law.

7/23/21 Order, 2021 WL 3130048, at *10. The same analysis applies here.

Plaintiff argues there is a genuine issue of material fact as to whether a partnership contract existed because his declaration states that a partnership contract exists. [Mem. in Opp. at 12 (citing Plaintiff's Decl. at ¶ 93).] However, the Court addressed the same argument in the 7/23/21 Order. See 7/23/21 Order, 2021 WL 3130048, at *7. There, the Court rejected Plaintiff's contention that it “must accept the whole of his declaration.” See id. The Court continues to reject Plaintiff's contention here. Plaintiff's reliance on Nigro v. Sears, Roebuck & Co., 784 F.3d 495 (9th Cir. 2015), [Mem. in Opp. at 12-13, ] is misplaced, as it was in his opposition to Dwyer's motion. See 7/23/21 Order, 2021 WL 3130048, at *7. In Nigro, the Ninth Circuit held that “a self-serving declaration does not always create a genuine issue of material fact for summary judgment: The district court can disregard a selfserving declaration that states only conclusions and not facts that would be admissible evidence.” 784 F.3d at 497 (citations omitted).

Plaintiff's declaration is precisely the sort of declaration that the Court has discretion to disregard. For instance Plaintiff's declaration states “Gerald Clay and I reached an agreement as to me becoming an equity partner in the Clay Chapman Law Firm.” [Pltf.'s Decl. at ¶ 93.] Plaintiff then outlines some of the purported terms of the agreement, including a buy-in amount, a profit-sharing percentage, and partnership authority. See id. However, Plaintiff neither states the time, place, nor manner in which the agreement occurred. In support of his declaration, Plaintiff cites an email from...