United States v. Wesley Running Shield

1The Honorable James B. Loken stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2010. He has been succeeded by the Honorable William Jay Riley.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3607
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Minnesota Deli Provisions, Inc., *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Boar’s Head Provisions Co., Inc., *
and Frank Brunckhorst Co., LLC, *
*
Defendants - Appellees. *
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Submitted: June 11, 2009
Filed: May 27, 2010
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Before LOKEN, 1 Chief Judge, JOHN R. GIBSON, and GRUENDER, Circuit Judges.
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JOHN R. GIBSON, Circuit Judge.
This case for damages, arising out of the termination of a business relationship,
involves charges of breach of contract, breach of the implied covenant of good faith
and fair dealing, promissory estoppel, and tortious interference with business

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2The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
3 Minnesota Deli’s business relationship was at all times with Brunckhorst and
not with Boar’s Head. Brunckhorst works in close coordination with Boar’s Head.
Neither party suggests any distinction between the parties. Their relationship to each
other is not at issue in this case. The district court referred to appellees collectively
as “Boar’s Head.” We will do the same, except when individual references are needed
for clarity.
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relations. The district court 2 entered summary judgment for the defendants, Boar’s
Head Provisions Co., Inc. (“Boar’s Head”) and Frank Brunckhorst Co., LLC
(“Brunckhorst”). We affirm.
I.
Boar’s Head is a producer of premium delicatessen products that are sold in
delicatessens and select supermarket chains throughout the United States. Brunckhorst
is the national distributor of Boar’s Head products and sells to over 300 independent
distributors who, in turn, resell the Boar’s Head products to the stores. Minnesota Deli
Provisions, Inc. (“Minnesota Deli”) is a former Boar’s Head distributor. 3
In 1999, John Marso, president and owner of Minnesota Deli, learned of a
potential business opportunity to distribute Boar’s Head products in Minnesota. After
preliminary discussions with Boar’s Head, Marso attended a six-week training
program that Boar’s Head required for its prospective distributors. At a dinner during
this training program, Marso alleges that Boar’s Head executive Rick Bellucci told
Marso that “you’ll never be touched” as long as Marso grew his business
satisfactorily.

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On March 17, 2000, before becoming a distributor, Marso signed a form
acknowledging that he had read Brunckhorst’s Sales Policy for Out-of-Town
Distributors (“Sales Policy”). That writing includes the following passages:
As a Boar’s Head distributor, you are responsible for ensuring that all
Boar’s Head products are properly handled and rotated by your
employees and your retailers. You must provide proper and continuous
training regarding the handling, rotation and display of all products at
both the distribution and retail levels . . .. It is the policy of the Company
not to do business with any distributor that fails to satisfy our standards
for cleanliness . . ., freshness and presentation of product.
. . .
The Company reserves the right to make all judgments, in its sole
discretion, as to where and by whom its products will be sold.
. . .
The Company reserves the right, in all circumstances, to ensure that all
areas are being properly developed and to make whatever adjustments to
its distribution system it deems necessary to achieve that objective,
including the appointment of additional distributors in any geographic
area or the implementation of direct sales.
In August 2000, Boar’s Head formally appointed Marso’s company, Minnesota
Deli, as a distributor of Boar’s Head products. Marso discussed his appointment with
Bellucci over the phone. Marso alleges that during this call, Bellucci indicated that
Minnesota Deli would continue to be the distributor as long as it complied with the
requirements that Bellucci articulated during the training session. Marso testified that
during this conversation, he and Boar’s Head reached an oral agreement concerning
Minnesota Deli’s distributorship.
Minnesota Deli alleges that Boar’s Head executive Sherry Robert assured
Marso that Boar’s Head distributors have the right to sell the accounts they owned.
Also, Boar’s Head’s regional sales manager Brent Lindorfer told him that Boar’s Head

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“would never do anything to [him].” During this time period, Minnesota Deli made
additional investments of purchasing a warehouse and custom refrigerated trucks.
In August 2005, Scott Williams, a newly appointed regional chain coordinator
for Boar’s Head, visited several of Minnesota Deli’s supermarket accounts. He
prepared a summary report addressed to Joe Pizzurro, Boar’s Head’s national sales
manager. The report stated that “the stores are very clean and well taken care [of].”
He went on to say, “I found multiple out of code items in multiple stores. . .. I found
unopened out of code items that were as old as two weeks.” Minnesota Deli alleges
that while finding out-of-code items is a problem with other distributors, Boar’s Head
generally addressed such issues by doing nothing, asking the distributors to participate
in product integrity training, or requiring a distributor to sell some accounts.
Later that month, Marso went to New York to meet with Pizzurro and Regional
Sales Manager Lindorfer. At the meeting, Pizzurro told Marso that Williams had
purportedly found out-of-code products in five of Minnesota Deli’s stores. Pizzurro
then went on to explain that Boar’s Head would be reassigning those five accounts to
another distributor without compensation to Minnesota Deli. A couple of weeks after
the meeting, Boar’s Head sent additional employees to Minnesota Deli’s retailers to
specifically check for product integrity violations. The employees discovered out-of-
code product in five additional stores. Pizzurro then informed Marso that it would be
taking these five additional accounts from Minnesota Deli as well.
Meanwhile, Boar’s Head placed an advertisement in the Minneapolis Star
Tribune seeking distributors. Marso attempted to find a distributor to take over the
Minnesota Deli accounts, but Boar’s Head reassigned Minnesota Deli’s ten stripped
accounts without compensating the company.
On March 10, 2006, Minnesota Deli filed a petition in federal district court,
alleging that Boar’s Head breached an oral agreement. The agreement allegedly

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provided that Minnesota Deli would not be terminated as long as it performed
adequately. In addition, Minnesota Deli alleges that it would be allowed to sell its
customer accounts to other distributors or would otherwise be compensated. In
addition to the breach of contract claim, Minnesota Deli alleged claims for breach of
the implied covenant of good faith and fair dealing, promissory estoppel, and tortious
interference with actual and prospective business relations.
Shortly after Minnesota Deli filed the petition, Boar’s Head sent employees to
look for further out-of-code product in stores within Minnesota Deli’s market. On
April 11, 2006, having found more out-of-code product, Pizzurro gave a written notice
of termination. The notice stated that Minnesota Deli would no longer be a
distributor, effective on June 30, 2006. As a result, all of Minnesota Deli’s accounts
were ultimately reassigned to another distributor. On September 14, 2006, Minnesota
Deli filed an amended complaint claiming additional damages.
Boar’s Head moved for summary judgment, and the district court entered
summary judgment in its favor on all counts. Minnesota Deli appeals.
II.
We review a district court’s grant of summary judgment de novo, applying “the
same standards as the district court and viewing the evidence in the light most
favorable to the nonmoving party.” Travelers Prop. Cas. Co. of Am. v. Gen. Cas. Ins.
Co., 465 F.3d 900, 903 (8th Cir. 2006). Summary judgment is appropriate only when
no genuine issue of material fact exists, and the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c)(2). Summary judgment is to be granted only
where the evidence is such that no reasonable jury could return a verdict for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Although we view the facts and inferences in the light most favorable to Minnesota
Deli, it has the obligation to come forward with specific facts showing that there is a

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genuine issue for trial. See Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
A.
Minnesota Deli appeals the district court’s grant of summary judgment on its
breach of contract claim. It urges us to reverse the judgment of the district court
because it contends that there are legitimate questions of material fact concerning (i)
whether the contract is terminable at will and (ii) whether Minnesota Deli had a
contractual right to a reasonable opportunity to sell its accounts. We first turn to
Minnesota Deli’s argument that there are genuine issues of material fact concerning
whether the contract is terminable at will.
Under Minnesota law, “[t]he general rule is that a contract having no definite
duration, expressed or which may be implied, is terminable by either party at will
upon reasonable notice to the other.” Benson Coop. Creamery Ass’n v. First Dist.
Ass’n, 151 N.W.2d 422, 426 (Minn. 1967); see also Elvgren Paint Supply Co. v.
Benjamin Moore & Co., 948 F.2d 1082, 1084 (8th Cir. 1991) (affirming summary
judgment where distributorship was based on alleged oral agreement of indefinite
duration and hence terminable at will by either party upon reasonable notice).
Minnesota law does not, however, permit unilateral termination at will in cases where
the contract provides that it will continue “as long as” one party performs
satisfactorily. See, e.g., Benson Coop. Creamery Ass’n, 151 N.W.2d at 427. Cf.
W.K.T. Distrib. Co. v. Sharp Elec. Corp., 746 F.2d 1333, 1335 (8th Cir. 1984)
(applying Minnesota law and discussing the difference between contracts terminable
at will and contracts that are to continue as long as one party performs). Minnesota
Deli argues that there is a genuine issue of material fact as to whether the contract
contains such a durational agreement.

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To support this argument, Minnesota Deli points to the assurances of Boar’s
Head employees, an internal Boar’s Head email, and the Boar’s Head Suggestions and
Guidelines for Route Transfers (“Guidelines”) as evidence of a durational agreement
between the parties. We consider each in turn.
First, Minnesota Deli argues that Boar’s Head executive Bellucci assured Marso
that Boar’s Head would not terminate Minnesota Deli’s distribution of its products.
Specifically, Minnesota Deli contends that Bellucci told Marso at a dinner during the
training, “you’ll never be touched” as long as Minnesota Deli grew its business
satisfactorily. Minnesota Deli claims that Bellucci reassured Marso of this during an
August 2000 phone call. Minnesota Deli also alleges that regional sales manager
Lindorfer told Marso that Boar’s Head “would never do anything to [him].” Upon
review of the record, we reach the same conclusion as the district court: such
assurances contain nothing more than general statements that are too indefinite to
create a legally enforceable offer for a durational term. See Degen v. Investors
Diversified Servs., Inc., 110 N.W.2d 863, 866 (Minn. 1961) (assurances made that
employee’s position was a “career position” was insufficient to establish permanent
employment contract); see also Cederstrand v. Lutheran Brotherhood, 117 N.W.2d
213, 220 (Minn. 1962) (stating “it is neither practical nor reasonable to expect full
performance of every assurance given, whether it be thoughtless, casual and
gratuitous, or deliberately and seriously made”).
Next, Minnesota Deli points to an internal email between Lindorfer and
Pizzurro to show that a genuine issue regarding duration exists. The email explains
the response Lindorfer was planning to give to Marso regarding the product integrity
violations. It states, “as you are well aware, [Boar’s Head] does not regularly stop
selling products to its customers except in circumstances that put the integrity of the
brand at risk.” Minnesota Deli fails to point out, however, that the email also states,
“Let me remind you one last time that there are no Boar’s Head franchises and our
business relationship is an at will relationship, meaning that you may choose to stop

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purchasing [Boar’s Head] products at anytime [sic] for any reason and that [Boar’s
Head] may stop selling [Boar’s Head] products to you at any time for any reason.”
Contrary to Minnesota Deli’s contention, this document supports Boar’s Head’s sole
discretion in selling its products.
Minnesota Deli also argues that the Guidelines demonstrate that the parties’
relationship had a durational term. The Guidelines state that Boar’s Head has the right
to terminate business relations if a distributor is “not performing satisfactorily.”
Minnesota Deli, however, takes this quote out of context. As the document makes
clear, Boar’s Head “does not enter into long-term contractual arrangements with
distributors.” The Guidelines state that “[t]he right to distribute Boar’s Head products
is granted by [Brunckhorst], and only by [Brunckhorst], which has the sole discretion
for selecting the independent distributors who will be authorized to deliver [B]oar’s
Head products to retail outlets.” We simply cannot conclude that the phrase “not
performing satisfactorily,” when read in context, creates an enforceable limit on
Boar’s Head’s right to terminate business relations.
That Marso signed a similarly worded Sales Policy supports this conclusion.
Boar’s Head’s written policies state that it reserves the right to (i) “make all
judgments, in its sole discretion, as to where and by whom its products will be sold,”
and (ii) change its distribution network as it deems necessary to ensure that customers
and merchants are being properly serviced. These statements only bolster Boar’s
Head’s contention that the contract was at-will. Accordingly, we are convinced that
the parties’ relationship was terminable at will and did not encompass a durational
agreement. Compare Benson Coop. Creamery Ass’n, 151 N.W.2d at 426 (general
manager and three directors of alleged breaching party testified that they too believed
that the contract at issue was terminable only for good reason).
Next, we turn to Minnesota Deli’s argument that it had a contractual right to sell
its customer accounts even in cases of termination. Minnesota Deli argues that

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Boar’s Head was contractually obligated to allow Minnesota Deli to sell its accounts
to another distributor under general contract principles. Minnesota Deli does not
allege that the right to sell accounts was agreed upon during Marso’s August 2000
phone call with Bellucci. Instead, Minnesota Deli contends that Robert assured Marso
of this right during a conversation that took place during an unknown time or place.
Marso testified that Robert told him that Minnesota Deli could sell its stores under all
circumstances. In his earlier deposition testimony, however, Marso testified that there
was not a discussion about the sale of accounts in the context of his termination until
August 2005, five years after the phone call with Bellucci. Upon review of the
testimony, we believe that it contains nothing more than Marso’s subjective beliefs
about the situation and is insufficient to support a contractual right to sell Minnesota
Deli’s accounts. See Hill v. Okay Const. Co., Inc., 252 N.W.2d 107, 114 (Minn.
1977) (“The test of contractual formation is an objective one, to be judged by the
words and actions of the parties and not by their subjective mental intent.”).
In addition to Marso’s testimony, Minnesota Deli relies on Boar’s Head’s
dealings with other parties, its distribution of documents intended to help with account
transfers, and a Boar’s Head newspaper advertisement to establish Minnesota Deli’s
right to sell its accounts. Minnesota Deli argues that this evidence supports the
contention that the parties had an understanding based upon Boar’s Head’s “course
of dealing” with other distributors. The district court concluded that these documents
do not go to the specific agreement reached between the parties and that “Boar’s Head
was free to negotiate different arrangements with different distributors . . ..” See
Minn. Stat. § 336.1-303(b) (defining course of dealing as “a sequence of conduct
concerning previous transactions between the parties to a particular transaction”).
Having presented no evidence of an agreement reached between the parties, we simply
cannot conclude that Minnesota Deli established a course of dealing between the
parties regarding a contractual right to sell its customer accounts.

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Our review of the record regarding the breach of contract claim yields the same
result as that reached by the district court. Viewing the facts in the light most
favorable to Minnesota Deli, Boar’s Head is entitled to judgment as a matter of law
on the breach of contract claim. Accordingly, we need not address Minnesota Deli’s
argument that Boar’s Head violated the implied covenant of good faith and fair
dealing because a cause of action for breach of the implied duty of good faith and fair
dealing does not exist independently of a breach of contract claim. See Medtronic,
Inc. v. ConvaCare, Inc., 17 F.3d 252, 256 (8th Cir. 1994).
B.
Minnesota Deli next claims that even if we do not find an enforceable contract,
it relied on Boar’s Head promises to its detriment. Under Minnesota law, promissory
estoppel requires (1) a clear and definite promise; (2) intent to induce reliance; (3)
actual reliance; and (4) a need to enforce the promise in order to prevent injustice.
Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 372 (Minn. 1995).
We conclude, as did the district court that a “clear and definite” promise cannot
be found in the evidence. As discussed, Boar’s Head may have given Marso vague
assurances, but when viewed in the light most favorable to Minnesota Deli, the facts
do not establish that Boar’s Head made a clear and definite promise to Minnesota
Deli. See Elvgren Paint Supply Co., 948 F.2d at 1084 (promissory estoppel claim
dismissed on summary judgment where alleged promises were “too general to support
a promissory estoppel claim”). Accordingly, the district court correctly granted
summary judgment on Minnesota Deli’s promissory estoppel claim.
C.
Finally, Minnesota Deli argues that the district court erred in granting summary
judgment on its claims of tortious interference with contractual and prospective

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business relations. “To prevail on the state law claim of tortious interference with
contractual relations, [Minnesota Deli] must prove that: (1) a contract existed; (2) the
alleged wrongdoer . . . had knowledge of the contract; (3) the alleged wrongdoer
intentionally interfered with the contract; (4) the alleged wrongdoer’s actions were not
justified; and (5) damages were sustained as a result.” Guinness Import Co. v. Mark
VII Distrib, Inc., 153 F.3d 607, 613 (8th Cir. 1998). Further, “[t]o prevail on a claim
of interference with prospective economic relations, [Minnesota Deli] must prove
[Boar’s Head] intentionally committed a wrongful act that improperly interfered with
[Minnesota Deli’s] prospective business.” Id.
Viewing the facts in the light most favorable to Minnesota Deli, there is no
evidence that Boar’s Head’s actions were unjustified, as is necessary for a claim of
tortious interference with contractual relations. See id. Likewise, Boar’s Head’s
actions did not constitute a wrongful act, as is necessary for a claim of tortious
interference with prospective relations. See id. Accordingly, the district court did not
err in granting summary judgment on the tortious interference claim.
III.
For the foregoing reasons, the judgment of the district court is affirmed.
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