STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. - "- - - ~- - - l .I- ACTION . -. .- . . dUUCKCL 1 L ~ h ~ - PTT n~ 9 . 4 1 1U U. L V -VLf-J%
PETER J. GUIDI, JR.,
Plaintiff,
v. ORDER
HANNAFORD BROS CO., et al.,
Defendants.
In h s case plaintiff Peter Guidi asserts that he was defamed by defendants
Hannaford Bros. Co. and Andrea Atripaldi. Before the court is defendants' motion for
summary judgment.
Sunmary judgment should be granted if there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. In considering a
motion for summary judgment, the court is required to consider only the portions of the
record referrxi to and the material facts set forth in the parties' Rule 56(hj statements.
E.a., Johnson v. McNeil, 2002 ME 99, ql: 8, 800 A.2d 702, 704. The facts must be considered in the light most favorable to the non-moving party. Id. Thus, for purposes
of h s summary judgment, any factual disputes must be resolved against the movant.
Nevertheless, when the facts offered by a party in opposition to summary judgment
would not, if offered at trial, be suffiaent to withstand a motion for summary judgment
as a matter of law, summary judgment should be granted. Rodrigue v. Rodri~ue,1997
ME 99 ¶ 8,694 A.2d 924,926. Undisputed Facts Fijr p-~rpGxsofie fie follo-w-ii-Lg defei-Lda-Lts'ii-LO~oi-L, facts are -di-Ldisputed.' At
the time of the alleged defamation, Guicb was worlung for a company called Can &
Bottle Systems, Inc. (CBSI), whch was seehng to sell customer-operated beverage
container redemption madunes to Hannaford Bros. Defendants' Statement of Material
Facts filed December 20, 2004 (DSMF) ¶ 1 (admitted). During discussions with
Atripalcb, an employee of Hannaford, Guidi was given permission to obtain certain
UPC codes needed to operate the CBSI machnes by copying or "imagng" the hard
drive of a Haltek machne then in use by Hannaford. DSMF ¶ 3 (admitted); Plaintiff's
Statement of Additional Material Facts filed January 28, 2005 (PSAMF) ¶ 13. The Haltek
machne, however, belonged to a company called TOMRA, w h c h is a competitor of
CBSI, and its hard drive contained not only UPC code information but proprietary
software owned by TOMRA. DSMF ¶ 4 (admitted). At the time he copied the Haltek
hard drive, Guidi did not know that any information on the hard drive was proprietary
or that Atiipaldi and Haru~afordwere not authorized to allow him to copy the hard
drive. PSAMF 99 14-15.
On February 5, 2004, Guidi was observed copying the hard drive by a
representative of TOMRA and he telephoned Altipaldi to warn her that Hannaford
would likely hear from TOMRA. PSMF 9 17; DSMF 9 6 (admitted). Later that day
Atripaldi telephoned Guidi and conveyed to h m that she was upset over the incident.
For purposes of the instant motion, the court accepts Guidi's assertions that in the
conversation she failed or declined to take responsibility for her actions and accused
Guidi of leading her into unethical conduct. PSMF ¶ 18. However, the only parties to
Defendants have reserved the right to challenge certain of plaintiff's factual assertions, but accept plaintiff's version of events for purposes of summary judgment. the telephone conversation were Atnpaldi and Guidi, and the conversation was not
The next day, Atripaldi sent an email to Guidi and to four other CBSI employees2
with a copy to her own supervisor at Hamaford. The text of the email, in its entirety,
reads as follows:
While Hannaford is very interested in the CBSI machnes, we are not comfortable with the situation that presented itself tkus week. Hannaford conducts its business in an e h c a l environment that requires us to filter all decisions through several criteria. The two most important are 1). Is it legal, 2). Is it etkucal. Clearly, now that I understand the nature of the information that was being "imaged" from the Haltek unit in order to drive down to UPC and Distributor, these two criteria were not met.
In conclusion, I and my counterparts have decided to suspend exploration into the Scarborough test. Please feel free to call with any questions or concerns.
DSMF ¶ 9 (admitted). Guidi was terminated by CBSI shortly thereafter. PSMF ¶ 20.
Guidi's defamation claim is based on two communications: (1)the February 5,
2004 teiephone call he received from Akipaldi and (2) &tie February 6, 2004 email.
DSMF 91 12 (admitted). Although Guidi did not understand when he copied the Haltek
hard drive that he should not have done so, he now agrees that copying another
company's proprietary information was illegal and unetkucal. DSMF ¶ 13.3
Discussion
Defendants are entitled to summary judgment dismissing Guidi's claim that he
was defamed by Atripaldi in the February 5, 2004 telephone call because, regardless of
' The CBSI employees who received the email in addition to Guidi were CBSI's president and general manager as well as the person responsible for inside sales and a person designated as responsible for "product." DSMF 10 (admitted). The statement of material facts filed by plaintiff on January 28,2005 did not respond to this paragraph of defendants' statement of material facts and this paragraph is therefore admitted. Moreover, the paragraph in question is based on answers Guidi gave in a September 20,2004 deposition a t 48-51. what Atripaldi said in that telephone call, it was said only to Guidi. Defamation
req"ii-es, -;iiferii:h,':Lat was ai-L-unpi-iv-ilegedcurnil -L-ui "to a G-Lird party-1'. -ica"uoii
& Lester v. Powers, 596 A.2d 65, 69 (Me. 1991); Restatement, Second, Torts, 9 558(b). In h s case, the court need not determine whether the telephone call was privileged
because whatever was said in the telephone call was not published to any third party.
Defendants are also entitled to summary judgment hsmissing Guidi's
defamation claim based on the February 6, 2004 email. T h s is true for two reasons.
First, the email does not state or suggest that Guidi was responsible for illegal or
unehcal action. It expresses Hannaford's discomfort with the situation, states that
-4ltipaldi now understands that the imaging of the Haltek hard drive was not legal or
ehcal, and concludes that Hannaford had decided not to continue the project as
previously contemplated. The email does not suggest that Guidi was the culpable
party; it is equally consistent with an acknowledgment that Hannaford had
unintentionally breached its own standards.
Guidi appears to argue that the emaii should be considered in light of the
preceding telephone conversation to suggest that he was in fact being accused of
responsibility for unetlxcal behavior. If tlxs argument were accepted, however, it
would allow Guidi to circumvent the requirement that a party may only be held liable
for defamation based on a communication that is published to a tlxrd party. To
constitute an actionable defamation, the email must be defamatory standing on its
It may be that CBSI concluded that Guidi was at fault after reading the email and therefore terminated him. T h s may a!sc have bee:: unfair. The cotlit does not have before it aiiy fads as to why CBSI saw fit to terminate Guidi. Whether of not the email had unfair consequences for Guidi, however, is beside the point.
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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. - "- - - ~- - - l .I- ACTION . -. .- . . dUUCKCL 1 L ~ h ~ - PTT n~ 9 . 4 1 1U U. L V -VLf-J%
PETER J. GUIDI, JR.,
Plaintiff,
v. ORDER
HANNAFORD BROS CO., et al.,
Defendants.
In h s case plaintiff Peter Guidi asserts that he was defamed by defendants
Hannaford Bros. Co. and Andrea Atripaldi. Before the court is defendants' motion for
summary judgment.
Sunmary judgment should be granted if there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. In considering a
motion for summary judgment, the court is required to consider only the portions of the
record referrxi to and the material facts set forth in the parties' Rule 56(hj statements.
E.a., Johnson v. McNeil, 2002 ME 99, ql: 8, 800 A.2d 702, 704. The facts must be considered in the light most favorable to the non-moving party. Id. Thus, for purposes
of h s summary judgment, any factual disputes must be resolved against the movant.
Nevertheless, when the facts offered by a party in opposition to summary judgment
would not, if offered at trial, be suffiaent to withstand a motion for summary judgment
as a matter of law, summary judgment should be granted. Rodrigue v. Rodri~ue,1997
ME 99 ¶ 8,694 A.2d 924,926. Undisputed Facts Fijr p-~rpGxsofie fie follo-w-ii-Lg defei-Lda-Lts'ii-LO~oi-L, facts are -di-Ldisputed.' At
the time of the alleged defamation, Guicb was worlung for a company called Can &
Bottle Systems, Inc. (CBSI), whch was seehng to sell customer-operated beverage
container redemption madunes to Hannaford Bros. Defendants' Statement of Material
Facts filed December 20, 2004 (DSMF) ¶ 1 (admitted). During discussions with
Atripalcb, an employee of Hannaford, Guidi was given permission to obtain certain
UPC codes needed to operate the CBSI machnes by copying or "imagng" the hard
drive of a Haltek machne then in use by Hannaford. DSMF ¶ 3 (admitted); Plaintiff's
Statement of Additional Material Facts filed January 28, 2005 (PSAMF) ¶ 13. The Haltek
machne, however, belonged to a company called TOMRA, w h c h is a competitor of
CBSI, and its hard drive contained not only UPC code information but proprietary
software owned by TOMRA. DSMF ¶ 4 (admitted). At the time he copied the Haltek
hard drive, Guidi did not know that any information on the hard drive was proprietary
or that Atiipaldi and Haru~afordwere not authorized to allow him to copy the hard
drive. PSAMF 99 14-15.
On February 5, 2004, Guidi was observed copying the hard drive by a
representative of TOMRA and he telephoned Altipaldi to warn her that Hannaford
would likely hear from TOMRA. PSMF 9 17; DSMF 9 6 (admitted). Later that day
Atripaldi telephoned Guidi and conveyed to h m that she was upset over the incident.
For purposes of the instant motion, the court accepts Guidi's assertions that in the
conversation she failed or declined to take responsibility for her actions and accused
Guidi of leading her into unethical conduct. PSMF ¶ 18. However, the only parties to
Defendants have reserved the right to challenge certain of plaintiff's factual assertions, but accept plaintiff's version of events for purposes of summary judgment. the telephone conversation were Atnpaldi and Guidi, and the conversation was not
The next day, Atripaldi sent an email to Guidi and to four other CBSI employees2
with a copy to her own supervisor at Hamaford. The text of the email, in its entirety,
reads as follows:
While Hannaford is very interested in the CBSI machnes, we are not comfortable with the situation that presented itself tkus week. Hannaford conducts its business in an e h c a l environment that requires us to filter all decisions through several criteria. The two most important are 1). Is it legal, 2). Is it etkucal. Clearly, now that I understand the nature of the information that was being "imaged" from the Haltek unit in order to drive down to UPC and Distributor, these two criteria were not met.
In conclusion, I and my counterparts have decided to suspend exploration into the Scarborough test. Please feel free to call with any questions or concerns.
DSMF ¶ 9 (admitted). Guidi was terminated by CBSI shortly thereafter. PSMF ¶ 20.
Guidi's defamation claim is based on two communications: (1)the February 5,
2004 teiephone call he received from Akipaldi and (2) &tie February 6, 2004 email.
DSMF 91 12 (admitted). Although Guidi did not understand when he copied the Haltek
hard drive that he should not have done so, he now agrees that copying another
company's proprietary information was illegal and unetkucal. DSMF ¶ 13.3
Discussion
Defendants are entitled to summary judgment dismissing Guidi's claim that he
was defamed by Atripaldi in the February 5, 2004 telephone call because, regardless of
' The CBSI employees who received the email in addition to Guidi were CBSI's president and general manager as well as the person responsible for inside sales and a person designated as responsible for "product." DSMF 10 (admitted). The statement of material facts filed by plaintiff on January 28,2005 did not respond to this paragraph of defendants' statement of material facts and this paragraph is therefore admitted. Moreover, the paragraph in question is based on answers Guidi gave in a September 20,2004 deposition a t 48-51. what Atripaldi said in that telephone call, it was said only to Guidi. Defamation
req"ii-es, -;iiferii:h,':Lat was ai-L-unpi-iv-ilegedcurnil -L-ui "to a G-Lird party-1'. -ica"uoii
& Lester v. Powers, 596 A.2d 65, 69 (Me. 1991); Restatement, Second, Torts, 9 558(b). In h s case, the court need not determine whether the telephone call was privileged
because whatever was said in the telephone call was not published to any third party.
Defendants are also entitled to summary judgment hsmissing Guidi's
defamation claim based on the February 6, 2004 email. T h s is true for two reasons.
First, the email does not state or suggest that Guidi was responsible for illegal or
unehcal action. It expresses Hannaford's discomfort with the situation, states that
-4ltipaldi now understands that the imaging of the Haltek hard drive was not legal or
ehcal, and concludes that Hannaford had decided not to continue the project as
previously contemplated. The email does not suggest that Guidi was the culpable
party; it is equally consistent with an acknowledgment that Hannaford had
unintentionally breached its own standards.
Guidi appears to argue that the emaii should be considered in light of the
preceding telephone conversation to suggest that he was in fact being accused of
responsibility for unetlxcal behavior. If tlxs argument were accepted, however, it
would allow Guidi to circumvent the requirement that a party may only be held liable
for defamation based on a communication that is published to a tlxrd party. To
constitute an actionable defamation, the email must be defamatory standing on its
It may be that CBSI concluded that Guidi was at fault after reading the email and therefore terminated him. T h s may a!sc have bee:: unfair. The cotlit does not have before it aiiy fads as to why CBSI saw fit to terminate Guidi. Whether of not the email had unfair consequences for Guidi, however, is beside the point. He is suing for defamation, and in that context the dispositive point is that the email is not defamatory. The second reason that the email is not defamatory is that, to the extent it states cL UL&L c cL U L : - - -- L L ~l l l L a 5 ; l l s UI U L L --A -I-:---, -.-, .-- ,cL: --1 ~l l a l u u l l v t : v v a a ullruuccu, cL: ,L ,,, ,.- U L L ~l l a a ~ L U V V t, bj;~ d &en 2 ~ k l ~ t L . ! ? d g
Guidi to be true. See DSMF ¶ 13; Guidi Dep. (9/20/04) 48-51. To be sure, Guid states
he did not know that at the time, and there may be a dspute as to whether Guidi knew
the imagng was unehcal at the time (or at least had a greater reason to know that than
Atripaldi) and whether he led Atripaldi into unehcal behavior. However, Atripaldi's
email does not state or suggest that Guidi knew or should have known that the imagng
was unethical.
The entry shall be:
Defendants' motion for summary judgment is granted and the complaint is dismissed. The clerk is hereby directed to incorporate h s order in the docket by reference pursuant to Rule 79(a).
DATED: ~ u ~ u s2005 t 3
Hon. Thomas D. Warren Justice, Superior Court COURTS nd County ox 287 \e 041 12-0287
HERSCHEL LERMANy ESQ. PO BOX 2010 BIDDEFORD, ME 04005-1843
COURTS id County )x 287 e 041 12-0287
WENDELL LARGE, ESQ. PO BOX 9545 PORTLAND, ME 04112-9545