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Miller v. Federal Express Corp.

Court of Appeals of Indiana

April 3, 2014

JEFFREY M. MILLER and CYNTHIA S. MILLER, Appellants-Plaintiffs,

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APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Michael D. Keele, Judge. Cause No. 49D07-1003-PL-014761.


ATTORNEY FOR APPELLEE 500 FESTIVAL, INC.: RANDALL W. GRAFF, Kopka, Pinkus, Dolin, & Eads, PC, Indianapolis, Indiana.


MATHIAS, Judge. BAILEY, J., and BRADFORD, J., concur.


Page 1008


Jeffrey M. Miller and Cynthia S. Miller (" the Millers" ) appeal the Marion Superior Court's grant of summary judgment in favor of Federal Express Corporation (" FedEx" ) and 500 Festival, Inc. (" 500 Festival" ) on the Millers' claim of defamation

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and intentional infliction of emotional distress. The Millers appeal, claiming: (1) that the Defendants failed to preserve evidence, and (2) that the Defendants are not immune from suit under the federal Communications Decency Act.

We affirm.

Facts and Procedural History

From 1994 until his retirement in 2008, Jeffrey Miller (" Miller" ) was the president of Junior Achievement of Central Indiana (" JACI" ). After his retirement, Miller acted as president of the Experiential Learning and Entrepreneurship Federation (" ELEF" ), which is a separate organization from JACI, but which works with JACI. In the spring of 2008, Miller announced a joint project between JACI, ELEF, and Ivy Tech Community College (" Ivy Tech" ), which provided for ELEF to construct a culinary school on JACI property which Ivy Tech would then lease. Construction on the building began in 2009, but was stopped in 2010 when the primary financial backers of the project stopped providing the necessary funds. This was allegedly due to defamatory statements made by Jennifer Burk (" Burk" ) and Brian Payne (" Payne" ), who are co-defendants in the Millers' current action.[1]

What happened next is the focus of the current controversy. On March 18, 2010, the Indianapolis Business Journal (" IBJ" ) published an article on its website regarding the allegations and controversy surrounding the construction of the culinary school. Several comments regarding this article were posted to the IBJ website. The Millers allege that several of these comments were defamatory.

One comment, posted by a user with the screen name " JA Fan" on March 19, 2010, read:

The new CEO [Burk] has inherited a mess not of her doing. The former CEO [Miller] and finally-fired VP's misuse (for their own personal gain) of funds that were dedicated to educating Indiana children are at the very least an embarrassment to the dedicated staff who have continued to push on, and most likely a criminal act. If you were a donor or sponsor in the last decade to these guys, an audit is definitely in order. Hang in there, Jennifer Burk!"

Appellant's App. pp. 82.

On March 23, 2010, a user with the screen name " Really?" posted a comment which read in relevant part:

Article- " ELEF is the owner (you would have to be to sign construction contracts worth millions) of the N. Keystone building and Junior Achievement's partner in receiving the $3 million grant. That foundation exists solely to benefit (raise money for) Junior Achievement, and until recently, was overseen by Junior Achievement's managers (Miller). Junior Achievement took on the culinary school project, under longtime CEO Jeff Miller (because in addition to educating Indiana children in business and financial responsibility, teaching adults to cook for others has long been part of the JA mission. Just call the national office and ask, I'm sure its true). He retired but continued to serve as president of the ELEF (money) through last year." Article cont.- " Miller said his role last year was to raise additional donations for the $7 million culinary school project and oversee day-to-day construction activities." Does this include paying the contractors? As the fundraiser and key money guy, probably has an eye on revenue and expenses. Article-" 'I was the project manager, but I didn't have

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any communication about this stopping of money,' he said." Comment quote from other post-" what is so depressing and unfair is that the subcontractors were never told the funds were suspended and JACI, ELEF and CICF let them keep working." Article-" The community foundation informed JA in writing on Nov. 24 that all future payments under the grant would be suspended until 'issues' were resolved." Probably wasn't the first or only communication. If they told JA, who did not own the building or sign the construction contracts, I'm pretty sure as a tenant with an interest in what's happening to the building, they would notify the Landlord, President Miller (who did the deal to bring Ivy Tech to the building, who also took money to fund the construction, who was also the " project manager" responsible for day-to-day operations) that his project is going to be halted and his building left in a mess. Now a storied and critical organization is a mess in his wake. Was it the great philosopher, Steve Miller, who said, " Go on, take the money and run!" ? Perhaps a relative?

Appellant's App. pp. 82-83. Another comment was posted on April 6, 2010,[2] by someone using the online handle of " Concernd." This person posted a comment that read, " These guys are crooks (Jeff Miller, Victor George and other parties) and have been robbing from our community using kids as there [sic] hook. I hope they go to jail!!!!" Appellant's App. p. 84.

During discovery, the Millers learned that the first two comments were made by Dave Wilson (" Wilson" ), the vice president of corporate sponsorship at 500 Festival. He used a computer owned by 500 Festival and located at 500 Festival offices to make these comments. The IP address from which these comments were posted was assigned to 500 Festival by AT& T, 500 Festival's internet service provider (" ISP" ). The third comment was made by an unknown person from an IP address assigned to FedEx. The IP address was not traceable to any specific user, but instead belonged to one of FedEx's proxy servers which filtered internet traffic from tens of thousands of FedEx users.

On February 25, 2011, the Millers amended their complaint to add 500 Festival and FedEx as defendants. On November 23, 2011, the Millers served FedEx with interrogatories and requests for production. FedEx objected to the scope of these discovery requests and sought a protective order, which the trial court denied. And after FedEx had responded to the Millers' discovery, the Millers took issue with the adequacy of FedEx's response.

On February 21, 2013, FedEx filed a motion for summary judgment. 500 Festival filed a motion for summary judgment one week later, on February 28, 2013. The Millers responded to these motions on April 30, 2013, after having been granted an extension of time in which to reply. In their response, the Millers claimed that they had received inadequate discovery from 500 Festival. The Millers then filed a motion for sanctions against FedEx and 500 Festival on May 22, 2013, claiming that these defendants had spoliated evidence. The trial court held a hearing on the motions for summary judgment on May 22, 2013, and on July 1, 2013, entered summary judgment in favor of FedEx and 500 Festival. The trial court entered a separate order on July 1, 2013, denying the Millers' motion for sanctions against 500 Festival and entered a similar order denying the Millers' motion for sanctions

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against FedEx on July 5, 2013. The Millers now appeal.

Summary Judgment Standard of Review

Our standard for reviewing a trial court's order granting a motion for summary judgment is well settled: a trial court should grant a motion for summary judgment only when the evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Altevogt v. Brand, 963 N.E.2d 1146, 1150 (Ind.Ct.App. 2012) (citing Ind. Trial Rule 56(C)). The trial court's grant of a motion for summary judgment comes to us cloaked with a presumption of validity. Id. " 'An appellate court reviewing a trial court summary judgment ruling likewise construes all facts and reasonable inferences in favor of the non-moving party and determines whether the moving party has shown from the designated evidentiary matter that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law.'" Id. (quoting Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind. 2010)). However, a de novo standard of review applies where the dispute is one of law rather than fact. Id. On appeal, we examine only those materials designated to the trial court on the motion for summary judgment, and we must affirm the trial court's entry of summary judgment if it can be sustained on any theory or basis in the record. Id.

I. Preservation of Evidence

The Millers first claim that the trial court erred in granting summary judgment because both of the Defendants failed to preserve evidence for discovery. Specifically, the Millers refer to certain computer records or files that the Defendants had in their possession. As noted by the Millers, our supreme court has recognized that:

[I]ntentional destruction of potential evidence in order to disrupt or defeat another persons's right of recovery is highly improper and cannot be justified. The intentional or negligent destruction or spoliation of evidence cannot be condoned and threatens the very integrity of our judicial system. There can be no truth, fairness, or justice in a civil action where relevant evidence has been destroyed before trial. Destroying evidence can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs ...

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