Power Marketing Direct, Inc. v. Alan Ball

The Honorable Karl S. Forester, United States District Judge for the Eastern District of*
Kentucky, sitting by designation.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0855n.06
Filed: November 22, 2006
No. 05-4149
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
POWER MARKETING DIRECT, INC.,
Plaintiff-Appellant,
v.
ALAN BALL,
Defendant-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO
Before: GIBBONS and McKEAGUE, Circuit Judges; and FORESTER, District Judge.*
JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-appellant Power Marketing Direct,
Inc. (“Power Marketing”) appeals the grant of summary judgment by the district court to defendant-
appellee Alan Ball on its Ohio law claim for tortious interference with contractual and business
relationships. For the following reasons, we affirm the district court’s decision.
I.
Power Marketing, an Ohio corporation, sells furniture and bedding through dealers who sign
licensing agreements that require dealers to expend their best efforts in operating their Power
Marketing dealerships. Power Marketing had the right to place dealers on a “Performance
Improvement Plan” and eventually to terminate the licensing agreement if sales were poor.

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Ball was a licensed dealer from September 2001 until August 2002 when he terminated his
business relationship with Power Marketing. Power Marketing claims Ball contacted other dealers
and encouraged them to terminate their business relationships with Power Marketing as well. To
support this claim, Power Marketing offers evidence of Ball’s contact with Rick Dooley, another
Power Marketing dealer. In his conversations with Dooley, Ball began to “badmouth” Power
Marketing and invited Dooley to join him in an independent mattress and furniture business. Dooley
attested that his conversations with Ball caused him to experience concern and anxiety, which
negatively impacted his work as a Power Marketing dealer and caused his sales to suffer. When
Dooley told Ball that he would not join Ball’s competing business and asked Ball to stop calling him,
Ball complied.
Power Marketing filed a complaint against Ball in Ohio state court, in relevant part claiming
tortious interference with contractual and business relationships under Ohio law, and seeking
injunctive relief. Ball, a Utah citizen, had the case removed to the United States District Court for
the Southern District of Ohio based on diversity of citizenship. After discovery, the district court
granted Ball’s motion for summary judgment on the tortious interference claim, relying on two
alternative grounds. First, Power Marketing could not prove tortious interference because there was
no evidence that Dooley or any other Power Marketing dealer breached their licensing agreements
as a result of Ball’s conduct. Second, because Ball had voluntarily ceased his efforts to recruit
Dooley, Power Marketing’s request for injunctive relief was moot. Power Marketing appealed the
grant of summary judgment.
II.
This court reviews the grant of summary judgment de novo, applying the standard used by

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the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en banc). Summary
judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with affidavits, if any, show that there is no genuine issue of material fact and that
the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). All “inferences
to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party
opposing the motion.” United States v. Diebold, 369 U.S. 654, 655 (1962). Summary judgment
must be entered against the opposing party, however, if it “fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which [it] will bear the
burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“The torts of interference with business relationships and contract rights generally occur
when a person, without a privilege to do so, induces or otherwise purposely causes a third person not
to enter into or continue a business relation with another, or not to perform a contract with another.”
A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 651 N.E.2d
1283, 1294 (Ohio 1995). To sustain the claim, the plaintiff must prove the following elements: “(1)
the existence of a contract, (2) the wrongdoer's knowledge of the contract, (3) the wrongdoer's
intentional procurement of the contract's breach, (4) the lack of justification, and (5) resulting
damages.” Fred Siegel Co., L.P.A. v. Arter & Hadden, 707 N.E.2d 853, 858 (Ohio 1999).
Power Marketing cannot prevail in its claim for tortious interference because it cannot prove
that Ball caused any Power Marketing dealer to breach his or her licensing agreement. Power
Marketing only presented evidence that Ball interfered with its licensing agreement by trying to
recruit Dooley away from Power Marketing. Dooley believes that, as a result, he did not expend his
best efforts in operating his Power Marketing dealership, as required by the licensing agreement.

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All the objective evidence indicates that Dooley never breached his licensing agreement. Power
Marketing neither placed Dooley on a “Performance Improvement Plan” nor terminated his licensing
agreement for poor sales. Dooley remains a Power Marketing dealer. Dooley’s subjective opinion
of his efforts is insufficient to demonstrate the breach of contract required for the tortious
interference claim. As there is no other evidence that Ball caused dealers to breach their contracts
with Power Marketing, Power Marketing’s tortious interference claim fails, and the district court
properly granted Ball summary judgment.
III.
For the foregoing reasons, we affirm the district court’s grant of summary judgment in favor
of Ball.

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