Lidochem, Inc. v. Stoller Enterprises, Inc.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1003n.06

No. 10-1686
FILED
UNITED STATES COURT OF APPEALS
Sep 12, 2012
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk

LIDOCHEM, INC., a New Jersey Corporation
and FRANK DEAN, )
)
Plaintiffs - Appellants, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) WESTERN DISTRICT OF MICHIGAN
STOLLER ENTERPRISES, INC., et al., )
) OPINION
Defendants - Appellees )

Before: BOGGS and STRANCH, Circuit Judges, and THAPAR,* District Judge.

JANE B. STRANCH, Circuit Judge. LidoChem, Inc., and Frank Dean appeal the district

court’s grant of summary judgment in favor of Stoller Enterprises, Inc., Jerry Stoller, David

Alexander, Michael Wright, and McKenzie Wright Laboratories, LLC in this dispute between

business competitors in the Michigan farm-chemicals market. The district court ruled that

LidoChem and Dean could not prevail on their claims for false or misleading promotion under the

Lanham Act, 15 U.S.C. § 1125(a)(1)(B), tortious interference with business interests, injurious

falsehood, and civil conspiracy. The court also ruled in favor of Stoller Enterprises and Alexander

on the defamation claim. We AFFIRM in part, REVERSE in part, and REMAND for further

proceedings.

*
Hon. Amul R. Thapar, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
No. 10-1686
Lidochem, Inc., et al. v. Stoller Enterprises, Inc., et al.

I. FACTS

Don and Lisa Pucillo formed LidoChem as a New Jersey corporation in 1981 to distribute

chemical products. LidoChem entered the agricultural chemical business in western Michigan in

the late 1990's. In 1999, LidoChem hired chemist Frank Dean, a Texas resident, and sales

representative Gerry Gelder, a Michigan resident, to assist LidoChem with its business expansion.

Dean and Gelder worked for Stoller Enterprises before they joined LidoChem.

LidoChem’s products were blended by The Andersons, a large midwestern chemical

manufacturer. LidoChem sold its products to Michigan distributors, including Zeeland Farm

Services and Green Valley Agriculture. The distributors then sold the products to farmers. Stoller

Enterprises is a Texas corporation engaged in the sale of agricultural chemicals in Michigan and

other farm markets. Jerry Stoller owns the company, and David Alexander serves as a Michigan

sales representative. Michael Wright, also a Texas resident, is President of McKenzie Wright

Laboratories, LLC.

In 2000, the Pucillos joined Valagro, an Italian speciality-fertilizer company, in a business

venture to form a new Delaware corporation called Nutrecology, Inc. Nutrecology employed Dean

to develop a liquid fertilizer, Nutrefol, to compete with Stoller Enterprises’ similar product, Foli-

Zyme. Nutrecology utilized LidoChem’s distribution network in Michigan to market the product.

In March 2001, Gelder and a salesman for Zeeland Farm Services met with the owners of

Boersen Farms, a large farming operation in western Michigan and one of Zeeland’s largest

customers. Gelder asked the Boersens to try LidoChem’s and Nutrecology’s products for the 2001

growing season, instead of the Stoller Enterprises products that Boersen used in 2000. Dennis

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Boersen alleged that Gelder told him that Nutrefol would work like Foli-Zyme to enhance the growth

of soybeans, but Gelder denied making any such representation. Boersen agreed to try Nutrefol and

purchased the product through LidoChem’s distributors, Zeeland Farm Services and Green Valley

Agriculture.

In May 2001, Boersen sprayed a mixture of Nutrefol and Roundup on 2500 acres of

soybeans, but the plants turned yellow and became stressed. Boersen contacted Wally Gerst, a

distributor for Stoller Enterprises, for advice. After examining the soybean fields, Gerst

recommended the use of Stoller products to encourage plant recovery.

In July 2001, Gerst asked Stoller and Alexander to accompany him to Boersen Farms to

discuss the effect of Nutrefol on the soybeans. Stoller assured Boersen that Nutrefol contained a

substance that was harmful to soybeans. Stoller obtained a Nutrefol sample from the farm, and Gerst

obtained a copy of Nutrefol’s material safety data sheet (MSDS)1 from Zeeland Farm Services.

LidoChem and Dean alleged that Stoller orchestrated a plan to ruin their reputations within

the farm chemicals industry by making misrepresentations that Nutrefol contained “poison” so that

LidoChem could not compete in the marketplace. They asserted that Stoller’s animosity against

them developed for several reasons: LidoChem hired Dean and Gelder away from Stoller

Enterprises; Dean applied for a provisional patent shortly after joining LidoChem utilizing research

Stoller Enterprises claimed to own; and Stoller blamed Dean for the death of Stoller’s son.

1
A material safety data sheet details the health effects of a hazardous chemical, provides the
signs and symptoms of exposure, and lists any medical conditions generally known to be aggravated
by exposure to the chemical. See Gass v. Marriott Hotel Servs., Inc., 558 F.3d 419, 430 (6th Cir.
2009).

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LidoChem and Dean produced proof that Stoller advanced a scheme to represent falsely that Dean

added 2-phenylbutyric acid (2-PBA) to Nutrefol, a chemical that Stoller claimed was toxic to plants

and caused the reduced soybean harvest at Boersen Farms. As a result of Stoller’s alleged

statements, Nutrecology pulled Nutrefol from the market in late 2001. In addition, LidoChem and

Dean presented proof that Stoller repeatedly encouraged Boersen Farms and its attorneys to file a

lawsuit against LidoChem, Dean, Nutrecology, The Andersons, Zeeland Farm Services, and Green

Valley Agriculture in Michigan state court. LidoChem asserted that, once the lawsuit became public

and farmers, distributors, and blenders became aware of the false claim that Nutrefol contained a

toxic chemical, LidoChem lost its business relationships and its ability to compete.

At issue are several communications Stoller made to others. On September 13, 2001, Stoller

sent a memorandum to Calvin Hartzog, Product Development Manager for Stoller Enterprises, with

copies to Alexander and Gerst. Stoller alleged that Nutrefol was toxic and damaged Boersen Farms’

soybeans. He directed Hartzog to send the Nutrefol sample obtained from Boersen Farms to Dr.

Benjamin Mosier, a chemist, with instructions to analyze the sample for any toxic ingredients.

In a September 14 email to Gerst, Stoller reported that Nutrefol’s MSDS sheet was wrong

and that the Nutrefol sample was being analyzed for toxins. Stoller also stated that LidoChem, Dean,

Gelder, Zeeland Farm Supply, and Green Valley Agriculture were liable for the Boersens’ 2001 crop

damage, but he surmised that they might have little money to pay a judgment, while The Andersons

had “deep pockets.” Stoller predicted that The Andersons would refuse to blend products for

LidoChem if Boersen Farms named The Andersons as a defendant in a lawsuit.

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Sometime thereafter, Stoller learned that Dr. Mosier did not find any toxic chemicals in

Nutrefol. Not satisfied, Stoller instructed Hartzog to arrange for Michael Wright of McKenzie

Wright Laboratories to re-test the Nutrefol sample. According to Hartzog, Stoller knew that

McKenzie Wright would provide the test result Stoller wanted.2

In March 2002, Stoller met with Wright, Hartzog, and Mark Wiltse, EPA registration

specialist for Stoller Enterprises. Stoller directed Wright to issue a report finding that the Nutrefol

sample taken from Boersen Farms contained 2-PBA and that the 2-PBA was masked by long-chain

fatty acids. Wright produced the false report for Stoller in June 2002. Hartzog notified Alexander

of the false test result, exclaiming, “We got ’em.” Stoller also informed Alexander about the false

test result. Alexander then communicated the results of Wright’s false lab testing directly to Dennis

Boersen. Alexander met with Boersen Farms’ attorney three times, and he agreed to serve as a

witness in a lawsuit Boersen Farms planned to file against LidoChem, Dean, and others.

Between September 2002 and August 2003, Stoller sent six letters to the law firm

representing Boersen Farms, encouraging the attorneys to file a lawsuit. Stoller sent copies of some

of these letters to Alexander. It was common knowledge in the very small industry for farm

chemicals that Stoller pushed the lawsuit against LidoChem and the other defendants.

2
According to Hartzog, McKenzie Wright provided a favorable test report in early 2001 when
Stoller Enterprises added thiourea, a banned Class 3 carcinogen, to a new farm-chemical product.
When Dr. Mosier reported that cotton plants grown with the product tested positive for thiourea in
the leaves, Stoller instructed Hartzog to find a different laboratory, and Hartzog located McKenzie
Wright.

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Lidochem, Inc., et al. v. Stoller Enterprises, Inc., et al.

In the letters to the attorneys, Stoller claimed that Nutrefol’s MSDS was falsified and that

Nutrefol was shipped and sold without a proper MSDS. He described The Andersons as a company

with “very deep pockets” and disclosed that Alexander had visited The Andersons’ president, Rod

Enry, to discuss Nutrefol. Stoller claimed that Gelder falsely represented to Boersen that Nutrefol

was the same as Foli-Zyme. He asserted that Dean had a “history of changing formulations” and

using “customers as an experimental laboratory.” He also claimed that Stoller Enterprises had

worked for months, employing “numerous lab analyses and specialized equipment,” to isolate the

damaging ingredient in Nutrefol, 2-PBA, which he said had been “cleverly disguised.” He provided

Wright’s lab report and Dean’s patent, which he alleged Dean obtained using research taken from

Stoller Enterprises. Stoller suggested the law firm had a “very good case” and requested payment

of $20,000 or ten percent of any damages recovery, whichever was greater, to reward Stoller

Enterprises for its discovery of the harmful ingredient in Nutrefol. He also agreed to serve as an

expert witness.

At his expert deposition held in mid-February 2006, Stoller conceded that he was not a

chemist, that he spent his own money conducting laboratory analysis of Nutrefol, and that he had a

proprietary interest in the lawsuit. Shortly after the deposition, Stoller sent another letter to the law

firm providing suggestions for how to respond to the defense expert’s opinion that Roundup, not

Nutrefol, harmed the soybeans. Stoller assured the attorneys that this was “a red herring” and that

it would be difficult for the defense to claim that Nutrefol was not tested by a good chemist because

“Wright Laboratories is recognized by the federal government.”

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By May 2006, Stoller became concerned that Gerst had started distributing LidoChem

products. In an email dated May 11, 2006, Stoller denied Gerst the right to access research samples

of Stoller Enterprises products because Gerst was “doing business with Frank Dean, who stole

private information” from Stoller’s company. When Gerst complained that Stoller had directed

Alexander to pursue Gerst’s largest accounts, Stoller sent Gerst another email on May 22 calling

Dean “a dishonest person and a thief.” On May 24, Stoller sent another email to Gerst, listing

business associates he considered loyal to him, but accusing Gerst of doing business with “a known

crook who stole from me.”

In late 2006, Stoller withdrew as an expert witness for Boersen Farms. In January 2007 the

Michigan trial court barred Wright from testifying as an expert because he disposed of the Nutrefol

samples that Stoller gave him to test and he also claimed that his computer “crashed” so that he no

longer possessed the underlying data and testing procedure that formed the basis for his opinion that

Nutrefol contained 2-PBA. Boersen Farms and LidoChem ultimately settled the lawsuit.

Lidochem’s evidence indicates that Stoller’s numerous statements falsely maligned Nutrefol.

Green Valley Agriculture sprayed Nutrefol and Foli-Zyme side-by-side on Michigan crops. The two

products produced virtually no difference in crop production. LidoChem’s insurer, AIG Claim

Services, Inc., issued a report on independent laboratory testing of a Nutrefol sample. Although the

sample contained two substances that were not listed on the MSDS, neither substance was a threat

to soybeans. Additional expert testing of Nutrefol failed to detect 2-PBA at the part-per-trillion

level.

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Lidochem, Inc., et al. v. Stoller Enterprises, Inc., et al.

LidoChem also produced evidence that it was economically damaged by the false

representations. LidoChem’s contract with The Andersons provided for an initial one-year term with

renewal for successive years unless written notice of termination was given. According to Pucillo,

LidoChem’s relationship with The Andersons ended after Stoller alleged that Nutrefol contained a

toxic substance. Gelder explained that he had to work much harder to sell any LidoChem product

in western Michigan, and he produced a list of fifteen Michigan customers and prospects of

LidoChem “tainted” by Stoller’s actions.

After 2001, Zeeland Farm Services purchased farm chemicals for their customers, including

Boersen Farms, exclusively from Stoller Enterprises through Alexander. In 2007, two Michigan

farmers approached Christians at Green Valley Agriculture to report that either Stoller or Alexander

had informed them that Dean assisted in the development of a new LidoChem product (not Nutrefol)

and that the new product would damage their crops.3

LidoChem and Dean filed this lawsuit in 2009. Based on expert analysis of sales data for the

years 2000 to 2009, LidoChem asserted marketplace damages in the range of $4.4 million to $4.8

million due to an event in 2000 through 2002. In addition, LidoChem alleged additional damages

for loss of reputation and ability to compete.

II. STANDARD OF REVIEW

Summary judgment is appropriate only if the pleadings, depositions, answers to

interrogatories, and affidavits show there is no genuine issue as to any material fact and the moving

3
Although Christians’ testimony on this point is hearsay, LidoChem may be able to present
admissible evidence on the subject at trial.

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party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) & (c). The burden to show that

there are no genuine issues of material fact falls on the parties seeking summary judgment. Celotex

Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). “Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a

judge[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). We consider the evidence in

the light most favorable to the non-moving parties, drawing all justifiable inferences in their favor.

Id. The ultimate question is whether the evidence presents a sufficient factual disagreement to

require submission of the case to the jury, or whether the evidence is so one-sided that the moving

parties should prevail as a matter of law. Id. at 251-52.

III. ANALYSIS

LidoChem and Dean challenge the district court’s determination that they failed to produce

sufficient proof to present their legal claims to a jury. We conclude that there are genuine issues of

material fact with respect to some of the claims against some of the defendants, as explained below.

A. Lanham Act claim

LidoChem alleged that defendants Stoller, Alexander, Stoller Enterprises, Michael Wright,

and McKenzie Wright Laboratories violated the Lanham Act. Section 43(a) of the Lanham Act

precludes any person from making any “false or misleading description of fact, or false or misleading

representation of fact, which . . . in commercial advertising or promotion, misrepresents the nature,

characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or

commercial activities. . . .” 15 U.S.C. § 1125(a)(1)(B). This remedial statute is broadly construed

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to provide protection against a variety of deceptive commercial practices, including false advertising

and promotion. Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1383 (5th Cir. 1996).

The Supreme Court has said that commercial speech is “expression related solely to the

economic interests of the speaker and [his] audience.” Cent. Hudson Gas & Elec. Corp. v. Pub.

Serv. Comm’n, 447 U.S. 557, 561 (1980). “Commercial expression not only serves the economic

interest of the speaker, but also assists consumers and furthers the societal interest in the fullest

possible dissemination of information.” Id. at 561–62. Yet, the “commercial speech” covered by

the Lanham Act extends beyond the classic advertising campaign into other forms of promotion used

to influence consumers to purchase goods or services. Semco, Inc. v. Amcast, Inc., 52 F.3d 108, 112

(6th Cir. 1995); Seven-Up Co., 86 F.3d at 1384. Speech does not have to resemble a typical

advertisement to be commercial. Semco, Inc., 52 F.3d at 112–13 (citing Bolger v. Youngs Drug

Prods. Corp., 463 U.S. 60, 68 (1983)). Thus, to determine what conduct falls within

§ 1125(a)(1)(B), most courts have held that contested representations must be:

(1) commercial speech; (2) by a defendant who is in commercial competition with
plaintiff; (3) for the purpose of influencing consumers to buy defendant’s goods or
services. While the representations need not be made in a “classical advertising
campaign,” but may consist instead of more informal types of “promotion,” the
representations (4) must be disseminated sufficiently to the relevant purchasing
public to constitute “advertising” or “promotion” within that industry.

Seven-Up Co., 86 F.3d at 1384 (quoting Gordon & Breach Sci. Publishers v. Am. Inst. of Physics,

859 F. Supp. 1521, 1535–36 (S.D.N.Y. 1994)); Champion Lab., Inc. v. Parker-Hannifin Corp., 616

F. Supp. 2d 684, 694 (E.D. Mich. 2009); Int’l Tech. Consultants, Inc. v. Stewart, No. 07-13391, 2008

WL 4378095, at *6 (E.D. Mich. Sept. 23, 2008). At a minimum, commercial speech must “target

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a class or category of purchasers or potential purchasers, not merely particular individuals.”

Podiatrist Ass’n v. La Cruz Azul De Puerto Rico, Inc., 332 F.3d 6, 19 (1st Cir. 2003). A disparaging

statement about another’s product must be published and must identify some “means through which

the defendant disseminated information to a particular class of consumers.” Id. (citing 4 J. Thomas

McCarthy, McCarthy on Trademarks and Unfair Competition § 27.102 (4th ed. 2003), and Ultra-

Temp Corp. v. Advanced Vacuum Sys., Inc., 27 F. Supp. 2d 86, 91 (D. Mass. 1998)).

The required level of dissemination to the relevant purchasing public “will vary according

to the specifics of the industry.” Seven-Up Co., 86 F.3d at 1385–86. The “touchstone” is whether

the “contested representations are part of an organized campaign to penetrate the relevant market.”

Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48, 57 (2d Cir. 2002). Where the

market is small and the potential purchasers limited in number, “even a single promotional

presentation to an individual purchaser may be enough to trigger the protections” of the Lanham Act.

Seven-Up Co., 86 F.3d at 1386; Mobius Mgt. Sys., Inc. v. Fourth Dimension Software, Inc., 880 F.

Supp. 1005, 1019-21 (S.D.N.Y. 1994).

To state a cause of action under § 1125(a)(1)(B) in this Circuit, LidoChem must show:

1) the defendant has made false or misleading statements of fact concerning his own
product or another’s; 2) the statement actually or tends to deceive a substantial
portion of the intended audience; 3) the statement is material in that it will likely
influence the deceived consumer’s purchasing decisions; 4) the advertisements were
introduced into interstate commerce; and 5) there is some causal link between the
challenged statements and harm to the plaintiff.

Am. Council of Certified Podiatric Physicians and Surgeons v. Am. Bd. of Podiatric Surgery, Inc.,

185 F.3d 606, 613 (6th Cir. 1999). The second element allows a plaintiff to establish a Lanham Act

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violation “without proving actual confusion or a lost sale; that is, a communication that has a

‘tendency to deceive’” is enough if all the other elements are met. Balance Dynamics Corp. v.

Schmitt Indus., 204 F.3d 683, 689 (6th Cir. 2000).

The third element, requiring proof of deception, and the fifth element, requiring proof of

injury, are components of causation generally. Am. Council of Certified Podiatric Physicians and

Surgeons, 185 F.3d at 613. “The deception element asks whether the defendant’s misstatements

caused the consumer to be deceived.” Id. This element requires a showing of actual deception or,

at the least, a tendency to deceive a substantial portion of the intended audience. Id. at 616. A

plaintiff may show either that the defendants’ statements were literally false or that the statements

were true but misleading or confusing. Id. at 614. If the plaintiff proves that the statements were

literally false, the plaintiff may prevail without evidence that the false statements actually misled

consumers because actual deception is presumed. Id.; Porous Media Corp. v. Pall Corp., 110 F.3d

1329, 1335–36 (8th Cir. 1997).

“The injury element asks whether the defendant’s deception of the consumer caused harm

to the plaintiff.” Am. Council of Certified Podiatric Physicians and Surgeons, 185 F.3d at 613–14.

The “literal falsity” rule may allow a plaintiff to obtain injunctive relief, but it does not assist the

plaintiff in recovering “marketplace damages without other proof that such damages occurred.”

Balance Dynamics Corp., 204 F.3d at 693–94.

Applying these principles, we conclude that Michael Wright and McKenzie Wright

Laboratories did not engage in commercial speech by providing Stoller with a false laboratory report

because Wright was not engaged in promotion to influence consumers to purchase goods or services

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from McKenzie Wright Laboratories. See Semco, Inc., 52 F.3d at 112. Similarly, Wright did not

engage in commercial speech when he participated as an expert witness in Boersen Farms’ lawsuit

against LidoChem and others. See Seven-Up Co., 86 F.3d at 1384; Podiatrist Ass’n, 332 F.3d at 19;

Fashion Boutique of Short Hills, Inc., 314 F.3d at 57. Therefore, Wright and McKenzie Wright

Laboratories are entitled to summary judgment on the Lanham Act claim.

Turning to the Lanham Act claim against Stoller Enterprises, we note the parties do not

dispute that LidoChem and Stoller Enterprises were commercial competitors during the relevant time

frame. Further, Stoller Enterprises may be held vicariously liable for the conduct of its owner,

Stoller, and its employee, Alexander. See Proctor & Gamble Co. v. Haugen, 222 F.3d 1262, 1277

(10th Cir. 2000) (“Vicarious liability may arise either from an employment or agency relationship.”)

Therefore, we consider whether LidoChem produced sufficient evidence to proceed to trial on the

Lanham Act claim against Stoller Enterprises.

Taking the evidence in a light most favorable to LidoChem, we conclude that a reasonable

factfinder could determine that Stoller engaged in commercial speech for the purpose of influencing

consumers—not just the end-use farmer, but also the farm-chemical distributor—to buy Stoller

Enterprises products and that Stoller’s statements were disseminated widely enough to the relevant

purchasing public to constitute promotion within the relatively small western-Michigan farm-

chemical industry. See, e.g., Seven-Up Co., 86 F.3d at 1384; Porous Media Corp., 173 F.3d at 1121;

Champion Lab., Inc., 616 F. Supp. 2d at 694; Int’l Tech. Consultants, Inc., 2008 WL 4378095, at

*6. LidoChem produced ample evidence that Stoller repeatedly made false statements of fact about

the toxicity of Nutrefol directly to western Michigan farmer Dennis Boersen, as well as to a farm-

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chemical distributor in western Michigan, Wally Gerst of Advanced Ag Services. Because Stoller’s

claim that Nutrefol contained a toxin was demonstrably false, actual deception is presumed and

LidoChem is not required to produce proof that Stoller’s false statements actually misled consumers.

See Am. Council of Certified Podiatric Physicians and Surgeons, 185 F.3d at 613; Porous Media

Corp., 110 F.3d at 1335–36. Further, Stoller disparaged LidoChem in another way by casting doubt

on Dean’s honesty and on the validity of his patents. See Int’l Tech. Consultants, Inc., 554 F. Supp.

2d at 757–58 (holding letter to competitor’s customer questioning ownership of certain technology

was meant to convey that letter writer owned the technology and was more competent and

trustworthy to handle a project than the competitor).

LidoChem produced sufficient evidence that Stoller’s false statements were material, in that

they influenced purchasing decisions by farmers and distributors. After Stoller first alleged in 2001

that Nutrefol contained a substance harmful to plants, LidoChem’s Michigan salesman, Gerry

Gelder, had difficulty selling the product to distributors. At least one Michigan distributor, Zeeland

Farm Services, stopped selling LidoChem’s products altogether and instead sold only Stoller

Enterprises’ products after 2001. Pucillo and Gelder identified a list of customers whose purchasing

decisions were influenced by Stoller’s false statements.

In addition, Stoller knowingly placed his false statements about LidoChem and Nutrefol into

the stream of interstate commerce, and LidoChem produced expert evidence of a causal link between

the challenged disparagement and more than four million dollars in damages to LidoChem. Whether

the causation analysis is affected by the fact that Nutrecology pulled Nutrefol from the market in late

2001 is a factual question for the jury to decide. We conclude that LidoChem presented sufficient

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proof on the elements of a Lanham Act claim to warrant a jury trial. See Am. Council of Certified

Podiatric Physicians and Surgeons, 185 F.3d at 613.

The defendants contend that many of Stoller’s comments were directed to the attorney for

Boersen Farms and, as such, they were not commercial speech. We disagree. The attorney acted

as the agent of Boersen Farms in dealing with Stoller, see Uniprop, Inc. v. Morganroth, 678 N.W.2d

638, 640–41 (Mich. Ct. App. 2004), and the evidence suggests that Stoller fully expected his

statements to the attorney to reach farmer Dennis Boersen and the farm-chemical industry in western

Michigan. A reasonable jury, in examining Stoller’s motive for disparaging LidoChem and Nutrefol

to Boersen’s attorney, could believe Stoller’s own words—that he intended to instigate litigation to

inflict severe competitive injury on LidoChem and disrupt its business relationships. Stoller even

admitted during his deposition in the Boersen Farms lawsuit that he possessed a financial interest

in the success of the litigation. The district court’s belief that Stoller made the false statements to

the attorney simply to promote himself as a consultant and expert may be one reasonable

interpretation of the evidence, but it is not the only one, and it is the jury’s role to decide which

reasonable factual inferences should be drawn from the evidence as a whole.

LidoChem also produced evidence that Alexander directly communicated false information

about Nutrefol to Dennis Boersen and other Michigan growers. After McKenzie Wright Laboratory

provided Stoller Enterprises with a false report that Nutrefol contained 2-PBA, the substance

allegedly toxic to the Boersens’ soybean plants, Calvin Hartzog called Alexander and told him, “we

got ’em,” referring to LidoChem and Dean. Stoller also explained the results of the false lab report

to Alexander, who then communicated the results of Wright’s lab testing directly to Dennis Boersen.

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Further, Alexander agreed to be a fact witness for the Boersens and met with their attorney to prepare

for the lawsuit Boersen Farms filed against LidoChem, Dean and others. In addition, Alexander

agreed to serve as an expert witness for the Boersens on the topic of the investigation into Nutrefol.

At the time of the deposition, Boersen Farms was Alexander’s largest customer and accounted for

twenty-five to thirty percent of his sales of Stoller products. Alexander also admitted that he

discussed the facts underlying the Boersens’ lawsuit with Michigan growers to whom he sold Stoller

products, including the managers of Sackett Ranch and Blue Sky. According to Alexander, the

Sacketts were aware that LidoChem and Dean had allegedly added a toxic compound to Nutrefol.

A reasonable jury hearing this evidence could find that Alexander communicated false statements

about Nutrefol and convinced Michigan farmers to purchase Stoller Enterprises’ products instead

of LidoChem’s.

Finally, LidoChem presented proof that Stoller’s and Alexander’s statements were material,

in that the statements likely influenced the business decisions of The Andersons, LidoChem’s

distributors, and Michigan farmers with respect to LidoChem products. The statements were made

in interstate commerce and not solely to lawyers for Boersen Farms. LidoChem also produced expert

evidence to draw a causal link between the challenged conduct in 2001 and damage to LidoChem.

Because there are genuine issues of material fact on LidoChem’s Lanham Act claim against

Stoller, Alexander, and Stoller Enterprises, we reverse the grant of summary judgment on this claim.

We affirm summary judgment in favor of Wright and McKenzie Wright Laboratories on the Lanham

Act claim.

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The dissent criticizes our decision to reverse the grant of summary judgment in favor of

Alexander, asserting that we have no authority to consider facts in the summary judgment record that

counsel did not mention specifically to the district court. To the contrary, our power to consider the

entire summary judgment record springs from two sources: the Federal Rules of Civil Procedure and

Supreme Court case law.

First, Federal Rule of Civil Procedure 56(c)(3) provides: “The court need consider only the

cited materials, but it may consider other materials in the record.” Thus, while the litigant must cite

“particular parts of materials in the record,” Fed. R. Civ. P. 56(c)(1)(A), courts are not precluded

from exercising the discretion granted to them in Rule 56(c)(3) to review other materials in the

record. In accordance with the discretion granted by this rule, we reviewed the entirety of defendant

Alexander’s deposition, which is included in the summary judgment record.

The dissent asserts that appellate courts cannot or should not rely on Rule 56(c)(3) because

that rule is to be applied only by district courts. Fed. R. Civ. P. 1. However, our cases are replete

with statements that we apply the same Rule 56 standard that was applied by the district court. See

e.g., Alexander v. CareSource, 576 F.3d 551, 557 (6th Cir. 2009); Tucker v. Tennessee, 539 F.3d

526, 531 (6th Cir. 2008); Sutherland v. Mich. Dep’t of Treasury, 344 F.3d 603, 613 (6th Cir. 2003);

E.I. Du Pont de Nemours & Co. v. Okuley, 344 F.3d 578, 584 (6th Cir. 2003); Hunley v. DuPont

Auto., 341 F.3d 491, 495 (6th Cir. 2003); Dotson v. Wilkinson, 329 F.3d 463, 466 (6th Cir. 2003);

Thacker v. City of Columbus, 328 F.3d 244, 251–52 (6th Cir. 2003); Perry v. McGinnis, 209 F.3d

597, 600 (6th Cir. 2000).

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Lidochem, Inc., et al. v. Stoller Enterprises, Inc., et al.

The dissent worries, moreover, that if a plaintiff files a motion to reconsider under Rule

59(e), this court could consider evidence that Rule 59(e) bars the district court from considering.

But we have already made clear that we review a Rule 59(e) motion to alter or amend the judgment

de novo, using the same standard that was applied by the district court, just as we do in the Rule 56

context. See Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 289 (6th Cir. 1999). And there is no

reason to fear, as the dissent does, that if a party produces no evidence in response to the summary

judgment motion, this court will nonetheless scour the moving party’s evidence to find a genuine

issue of material fact. We apply the well-settled principle that the non-moving party may not rest

on his pleadings, but must produce evidence to show that there is a genuine issue of material fact for

trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Havensure, L.L.C. v.

Prudential Ins. Co., 595 F.3d 312, 315 (6th Cir. 2010). In any event, this case does not involve a

non-moving party’s failure to produce evidence in opposition to a summary judgment motion.

LidoChem produced Alexander’s entire deposition when it filed its summary judgment response.

Further, it is beyond dispute that our examination of a summary judgment ruling is de novo.

Branham v. Gannett Satellite Info. Network, Inc., 619 F.3d 563, 568 (6th Cir. 2010). In conducting

such review, the Supreme Court counsels us to review the summary judgment “record taken as a

whole.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). In

accordance with the Supreme Court’s guidance, we have conducted “independent review” of the

factual record to decide that summary judgment was properly granted, see e.g., Coffman v. Ford

Motor Co., 447 F. App’x 691, 697 (6th Cir. 2011); Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079,

1097 (6th Cir. 1996), or to decide that reversal of summary judgment was required. See e.g., Toledo

18
No. 10-1686
Lidochem, Inc., et al. v. Stoller Enterprises, Inc., et al.

Elec. Joint Apprenticeship v. Patchen, 14 F. App’x 601, 603–04 (6th Cir. 2001); Ferby v. Runyon,

No. 92-5662, 1993 WL 309716, at *6 (6th Cir. Aug. 13, 1993).

Finally, the rule proposed by the dissent is impractical to apply and contrary to the purposes

of appellate review. It would bar this court from considering evidence—either contradictory or

supportive—found in reviewing the record on points raised and argued by the parties. While our

rules and cases may not require us to consider that evidence, there is nothing in them that supports

the notion that an appellate court must blind itself to germane evidence. Under de novo review, we

must apply the law to the facts in the record, and the dissent’s proposal would necessarily hamstring

fulfillment of that duty.

The case law cited and many similar cases we have decided, along with Rule 56(c)(3),

supports our determination that the district court’s grant of summary judgment to Alexander must

be reversed based on Alexander’s own deposition testimony. To the extent the dissent relies on

cases from other circuits, we are not persuaded to deviate from our own established law.

B. Tortious-interference claim

LidoChem and Dean also alleged in their complaint that all defendants tortiously interfered

with plaintiffs’ business interests. To prevail on a claim of tortious interference with a business

relationship under Michigan law, a plaintiff must prove: “the existence of a valid business

relationship or expectancy, knowledge of the relationship or expectancy on the part of the defendant,

an intentional interference by the defendant inducing or causing a breach or termination of the

relationship or expectancy, and resultant damage to the plaintiff.” BPS Clinical Labs. v. Blue Cross

and Blue Shield of Michigan, 552 N.W.2d 919, 925 (Mich. Ct. App. 1996). “One is liable for

19
No. 10-1686
Lidochem, Inc., et al. v. Stoller Enterprises, Inc., et al.

commission of this tort who interferes with business relations of another, both existing and

prospective, by inducing a third person not to enter into or continue a business relation with another

or by preventing a third person from continuing a business relation with another.” Northern

Plumbing & Heating, Inc. v. Henderson Bros., Inc., 268 N.W.2d 296, 299 (Mich. Ct. App. 1978)

(emphasis omitted). A plaintiff “must allege the intentional doing of a per se wrongful act or the

intentional doing of a lawful act with malice and unjustified in law for the purpose of invading

plaintiff’s . . . business relationship.” Feldman v. Green, 360 N.W.2d 881, 886 (Mich. Ct. App.

1984). Tortious interference may be caused by defamatory statements. Lakeshore Cmty. Hosp., Inc.

v. Perry, 538 N.W.2d 24, 27 (Mich. Ct. App. 1995).

The district court determined that the gravamen of the tortious-interference claim was false

statements, but ruled that LidoChem failed to present sufficient proof to warrant a jury trial. We

disagree. In light of the evidence summarized above, a jury could reasonably determine that Stoller,

Alexander, Stoller Enterprises, Wright, and McKenzie Wright Laboratories tortiously interfered in

LidoChem’s business relationships with Boersen Farms, Zeeland Farm Services, Gerst, and The

Andersons by falsely stating that Nutrefol contained a toxic chemical. The defendants knew of

LidoChem’s business relationships with these entities. A reasonable jury could find intentional

interference by inducing or causing a breach or termination of those business relationships, and

LidoChem presented proof of damages. Whether LidoChem had a valid business relationship or a

future expectancy of a business relationship with Boersen Farms or The Andersons are factual

questions for the jury.

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No. 10-1686
Lidochem, Inc., et al. v. Stoller Enterprises, Inc., et al.

We do not see sufficient evidence in the record to warrant trial on any separate claim for

tortious interference that Dean may have against the defendants. Therefore, we reverse the grant of

summary judgment to the defendants on the tortious-interference claim as to LidoChem, but affirm

as to Dean.

C. Civil conspiracy

LidoChem claims that Stoller, Alexander, Stoller Enterprises, Wright, and McKenzie Wright

Laboratories conspired to create a false lab report and then destroyed relevant evidence. “A civil

conspiracy is a combination of two or more persons, by some concerted action, to accomplish a

criminal or unlawful purpose, or to accomplish a lawful purpose by criminal or unlawful means.”

Admiral Ins. Co. v. Columbia Cas. Ins. Co., 486 N.W.2d 351, 358 (Mich. Ct. App. 1992).

A jury could rationally find that Stoller, his company, Wright, and McKenzie Wright

Laboratories conspired to create the false lab report that became the central evidence that Boersen

Farms used to support the lawsuit against LidoChem and its associates. A jury might also determine

that Alexander was a co-conspirator because Hartzog notified Alexander of the results of the false

lab report and Alexander then communicated the results directly to Dennis Boersen. Alexander also

agreed to serve as a fact witness, and perhaps an expert witness, in the Boersen Farms’ lawsuit

against LidoChem, Dean and others. From all the evidence LidoChem produced, a jury could

rationally determine that two or more persons, by concerted action, combined to accomplish the

unlawful purpose of engaging in unfair competition under the Lanham Act and other violations of

state tort law. We reverse the grant of summary judgment on this claim and remand it for trial.

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No. 10-1686
Lidochem, Inc., et al. v. Stoller Enterprises, Inc., et al.

D. Injurious falsehood

LidoChem and Dean allege that all of the defendants are liable for injurious falsehood.

Under Michigan law, a person “who publishes a false statement harmful to the interests of another

is subject to liability for pecuniary loss resulting to the other if . . . he intends for publication of the

statement to result in harm to interests of the other having a pecuniary value, or either recognizes or

should recognize that it is likely to do so, and . . . he knows that the statement is false or acts in

reckless disregard of its truth or falsity.” Kollenberg v. Ramirez, 339 N.W.2d 176, 179 (Mich. Ct.

App. 1983) (quotation omitted). “The communication of such an injurious statement to a third party

must play a ‘material and substantial part in inducing others not to deal with the plaintiff, with the

result that the plaintiff suffers special damage, in the form of loss of trade or other dealings.’”

Neshewat v. Salem, 173 F.3d 357, 363 (6th Cir. 1999) (quoting Kollenberg). The plaintiff must

prove that the injurious statement is actually false. Id.

The district court ruled that LidoChem’s injurious-falsehood claim failed because LidoChem

did not prove causation, i.e., that the injurious statements played a material and substantial part in

inducing others not to deal with LidoChem. We think this analysis overlooks the evidence that the

defendants’ concocted falsehood about Nutrefol did play a material and substantial part in inducing

Boersen Farms, Zeeland Farm Services, and The Andersons to refrain from doing further business

with LidoChem. Again, viewing the record in a light favorable to LidoChem, we determine that this

claim must also be presented to a jury for resolution. Because we uncovered no evidence in the

record to show that Dean suffered any damages, we agree that summary judgment was proper as to

his claim. To the extent LidoChem alleges that Stoller and Wright committed perjury during their

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No. 10-1686
Lidochem, Inc., et al. v. Stoller Enterprises, Inc., et al.

depositions, however, its claims must fail because witnesses are immune from causes of action based

on testimony given during a legal proceeding. See Briscoe v. LaHue, 460 U.S. 325, 331–32 (1983).

We reverse the grant of summary judgment on the claim of injurious falsehood brought by

LidoChem, but affirm on the claim brought by Dean.

E. Defamation

The last claim before us is defamation, the elements of which are: (1) a false and defamatory

statement concerning the plaintiff; (2) an unprivileged publication to a third party; (3) fault

amounting at least to negligence on the part of the publisher; and (4) either actionability of the

statement irrespective of special harm (defamation per se) or the existence of special harm caused

by the publication (defamation per quod). Sawabini v. Desenberg, 372 N.W.2d 559, 563 (Mich. Ct.

App. 1985). Dean alleged that Alexander defamed him during a 2008 luncheon meeting with

Gelder. During the meeting, Alexander allegedly “bashed” Dean and Gerst. Also, at that time,

Gelder knew the Boersen Farms litigation had settled. Alexander allegedly told Gelder that, if he

would work for Alexander, then Alexander would reveal to him what “really” happened in the

Boersen Farms litigation and Gelder would be shocked. Gelder did not go to work for Alexander,

so he did not learn what “really” happened in the litigation.

This evidence is insufficient to meet the first element of defamation, proof of a false and

defamatory statement concerning the plaintiff. Moreover, as previously stated, Dean did not produce

any evidence of his damages. We conclude that the district court properly granted summary

judgment on Dean’s defamation claim.

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No. 10-1686
Lidochem, Inc., et al. v. Stoller Enterprises, Inc., et al.

In this appeal, Dean points to Gelder’s testimony that Alexander said: “Frank Dean

knowingly put materials in fertilizer.” Appellants’ Br. at 39. Any defamation claim relating to this

statement is not properly preserved for our review. In addition, to the extent Gelder did initially so

testify, he subsequently retracted the statement and testified that Alexander did not make any such

comment to him at the lunch meeting. Therefore, the claim lacks merit and should not proceed.

Finally, a one-year statute of limitations applies to defamation, and any such claim accrues

when the defamatory statement is made. Mitan v. Campbell, 706 N.W.2d 420, 422 (Mich. 2005).

Neither LidoChem nor Dean has pointed to any defamatory statement made by Stoller within the

one-year limitations period. Therefore, summary judgment on the defamation cause of action was

appropriate.

IV. CONCLUSION

For all of the reasons stated, we AFFIRM in part, REVERSE in part, and REMAND for trial.

We affirm the grant of summary judgment on all claims brought by Dean individually. We also

affirm the grant of summary judgment on LidoChem’s Lanham Act claim against Wright and

McKenzie Wright Laboratories, as well as LidoChem’s defamation claim. We reverse the grant of

summary judgment on LidoChem’s claim under the Lanham Act against Stoller, Alexander, and

Stoller Enterprises, and we reverse the grant of summary judgment on LidoChem’s claims against

Stoller, Alexander, Stoller Enterprises, Wright, and McKenzie Wright Laboratories for tortious

interference, injurious falsehood, and civil conspiracy.

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No. 10-1686
Lidochem, Inc., et al. v. Stoller Enterprises, Inc., et al.

THAPAR, District Judge, dissenting in part. After reviewing the record, the briefs, and

the law, a well-prepared district judge asked direct and pointed questions at a summary-judgment

hearing. He wanted to know what evidence the plaintiffs had to support three of their claims against

Dave Alexander. The plaintiffs came up with nothing more than rumors and speculation–not a

scintilla of concrete evidence. So the district court did the only thing it could by properly granting

Alexander’s motion for summary judgment on those claims.

The story should end there. But in this case, the majority, acting alone, finds evidence that

purportedly supports the plaintiff’s arguments. When was that evidence first presented? Not in the

briefs to the district court. Not in the argument before the district court. Not in response to the

district court’s questions. And not in this court. Never.

After finding those never-presented facts, the majority uses those facts as the sole grounds

for reversing the district court’s grant of summary judgment on the Lanham Act, injurious-falsehood,

and tortious-interference claims against Alexander. To recall, LidoChem and Dean allege that some

of their competitors in the agricultural fertilizer industry, Stoller and Alexander, made literally false

statements about LidoChem’s and Dean’s products that caused them to lose business. LidoChem

and Dean sued these defendants, asserting Lanham Act, injurious-falsehood, tortious-interference,

civil conspiracy, and defamation claims. Stoller and Alexander moved for summary judgment,

arguing in part that there was no admissible evidence that they made any actionable statements. To

avoid summary judgment on the Lanham Act, injurious-falsehood, and tortious-interference claims

against Alexander, LidoChem and Dean only pointed to the rumor-and-guesswork mill:

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Lidochem, Inc., et al. v. Stoller Enterprises, Inc., et al.

• Christian’s testimony that his two farmers told him that Alexander said LidoChem

products would damage any crops they tried to grow. Pls. Resp. in Opp., R. 70 at 21

(citing Christian Dep., R. 70-11 at 68–69).

• Gelder’s testimony that individuals, including Pete VanWeerdhuizen, Keith

Hanenberg, and Steve Leiprandt, told him that Alexander said LidoChem’s products

were having “quality issues” and contained “poison.” Id. (citing Gelder Dep., R. 70-

10 at 99–105).

• Gerst’s testimony that Gelder, Green Valley, and farmer Adam Mulder told him that

Alexander said negative things about Dean’s and LidoChem’s products. Id. at 32

(citing Gerst Dep., R. 70-17 at 120–22, 146).

• Alexander must have said something false about LidoChem during his meeting with

Rod Enry, the President of The Andersons. Mots. Hr’g Tr., R. 75 at 9–10.

The district court correctly concluded that none of this evidence was sufficient to defeat summary

judgment. After all, Christian, Gelder, and Gerst each testified that “Farmer X [told him] about what

somebody else said to Farmer X.” Mots. Hr’g Tr., R. 75 at 66. That inadmissible hearsay is not

competent summary judgment evidence. See, e.g., Carter v. Univ. of Toledo, 349 F.3d 269, 274 (6th

Cir. 2003) (“If the [offered evidence] is deemed to be hearsay, then the evidence could not be

considered on summary judgment.”). And LidoChem and Dean did not present any evidence that

Alexander made a negative statement—let alone a literally false statement—about them during the

meeting with Enry. Worse yet, when the district court specifically inquired about the contents of the

statements, counsel inexplicably responded that they did not depose the individuals at The Andersons

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No. 10-1686
Lidochem, Inc., et al. v. Stoller Enterprises, Inc., et al.

because those individuals were dismissed from the case. R. 75 at 10. On appeal, all the plaintiffs

can do is point to the meeting between Alexander and Enry and speculate that the timing was right

for something to have been said. Appellant’s Br. at 9. Pointed to these—and only these—facts, the

district court properly granted summary judgment on all the claims against Alexander. What else

was the district court to do?

According to the majority, roll up its judicial sleeves and scour the record for evidence to

avoid granting summary judgment. The majority sifts through hundreds of pages of deposition

testimony to find two false representations made by Alexander: Alexander admitted that he

explained the results of the false McKenzie Wright Laboratory report directly to Dennis Boersen.

See Alexander Dep., R. 70-18 at 119, 145. And he also admitted that he discussed the facts

underlying the Boersens’ lawsuit with Michigan growers, including managers of Sackett Ranch and

Blue Sky. See id. at 174–75. Majority Op. at 15–16. This set of statements, the majority concludes,

is a sufficient basis for the plaintiffs’ claims against Alexander to survive summary judgment.

The majority does not dispute that these statements were neither presented to the district

court nor on appeal. So where does the majority claim authority to start combing the record? They

say Federal Rule of Civil Procedure 56(c)(3) (“The court need consider only the cited materials, but

it may consider other materials in the record.”). There are multiple problems with the court of

appeals applying Rule 56(c)(3). For starters, the rule applies to district courts, not appellate courts,

see Fed. R. Civ. P. 1 (noting rules apply to district courts), and it is discretionary, not mandatory, see

Fed. R. Civ. P. 56(c)(3) (stating that the district court “may” consider other materials). But the

majority says that de novo review justifies the appellate court starting over. De novo review though

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Lidochem, Inc., et al. v. Stoller Enterprises, Inc., et al.

has never meant the appellate court starts over. Rather, it means the appellate court takes the facts

as presented to the court below and reviews whether summary judgment is justified without giving

special deference to the decision below. See, e.g., Chicago Title Ins. Corp. v. Magnuson, 487 F.3d

985, 995 (6th Cir. 2007) (stating on summary judgment review that Sixth Circuit looks at factual

record as presented by the non-movant to district court); 1 Steven Alan Childress & Martha S. Davis,

Federal Standards of Review § 2.14 (3d ed. 1999) (“[W]hat is meant [by de novo review] is merely

appellate power, ability, and competency to come to a different conclusion on the record as

determined below.”) (emphasis added).

Maybe the majority’s misunderstanding of the rules stems from the word “presented” or

“record below.” After all, the record below arguably includes everything, and all of that is in some

sense “presented” to the district court. But “presented” is a legal term of art that means “pointed out

to a court,” not simply included in the record. The Federal Rules of Civil Procedure require a party

seeking summary judgment to “present evidence” by pointing to specific facts that demonstrate there

is no support for the non-movant’s case. See Amini v. Oberlin College, 440 F.3d 350, 357 (6th Cir.

2005) (“A moving party can meet its burden under Rule 56(c) by showing-that is, pointing out to the

district court-that there is an absence of evidence to support the nonmoving party's case.” (internal

quotations and citations omitted)). In response, the non-movant must point to specific facts showing

there is a genuine issue for trial. See Fed. R. Civ. P. 56(c)(1)(A); see also Street v. J.C. Bradford

& Co., 886 F.2d 1472, 1479 n.17 (6th Cir. 1990) (stating non-movant must present affirmative

evidence to defeat summary judgment and collecting numerous cases saying the same). Courts do

not engage in a self-directed inquiry into the facts because district judges are not “pigs, hunting for

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Lidochem, Inc., et al. v. Stoller Enterprises, Inc., et al.

truffles.” Emerson v. Novartis Pharm. Corp., 446 F. App’x 733, 736 (6th Cir. 2011) (quoting United

States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). And this circuit has reaffirmed this principle

time and again. Wimbush v. Wyeth, 619 F.3d 632, 638 n.4 (6th Cir. 2010) (stating that parties may

not simply dump “a pile of paper on the district judge’s desk,” but rather have an obligation “to point

to the evidence with specificity and particularity”).

Set aside doctrine for a minute and imagine a world where appellate courts could apply Rule

56(c)(3) when they saw fit. After the parties fail to demonstrate a disputed issue of fact and the

district judge properly grants summary judgment, the court of appeals could go hunting for evidence.

But if this sort of review is in the purview of the appellate court, the non-movant can simply file a

two-page brief or one with no citations to the record or admissible evidence, and then when they

lose, they can rely on the court of appeals to do their job. If that is the standard, why have briefs at

all – one side could say, “I move for summary judgment,” and the other could say, “We contest,” and

then the district court judge would have to go hunting through the record. Where does it stop?

And if that is not enough, imagine what the majority’s approach does to other rules. Say in

this case, after the district court’s ruling, the plaintiff files a motion to reconsider under Rule 59(e)

and points the court to evidence it forgot to mention before. For a district court to consider that

evidence, it must be “previously unavailable.” See GenCorp, Inc. v. Am. Int’l Underwriters, 178

F.3d 804, 834 (6th Cir. 1999) (holding that for a party to prevail on newly discovered evidence, it

“must have been previously unavailable”). Yet, under the majority’s reasoning, the appellate court

could consider the very evidence that the district court was not allowed to consider. Or let’s say the

party produces no evidence in response to the movant’s factual assertions, and the district court

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Lidochem, Inc., et al. v. Stoller Enterprises, Inc., et al.

considers the fact undisputed under Rule 56(e)(2), which allows a district court to consider

undisputed facts as proven. Can a court of appeals say, “Well it is de novo review and we found

facts in the record you could have used to dispute it,” and reverse the district court?

Finally, and perhaps most importantly, the majority’s voyage into uncharted waters is in

contradiction to published circuit precedent on two levels: (1) it ignores the well-established rule that

district courts need not examine every line of the record looking for reasons to deny summary

judgment, and (2) it ignores the rule that this court will not consider evidence not presented to the

district court.

A sampling of cites supporting (1): Wimbush, 619 F.3d at 639 n.4 (“This evidence was not

attached to her brief responding to Wyeth's merits argument, nor was it cross-referenced in that brief.

Instead, Buchanan suggests that the fact that the evidence was in the record somewhere is sufficient

to create a question of fact and survive summary judgment. This is simply incorrect.”); Chicago

Title, 487 F.3d at 995 (“A district court is not required to search the entire record to establish that

it is bereft of a genuine issue of material fact.” (internal quotations and citations omitted)); In re

Morris, 260 F.3d 654, 654–55 (6th Cir. 2001) ("Poss [argues] that the court used an improper

standard that did not require it to review the entire record. . . . The bankruptcy court interpreted

Street to mean that the nonmoving party has an affirmative duty to direct the court's attention to

those specific portions of the record upon which it seeks to rely to create a genuine issue of material

fact. This reading accords with the burden Celotex places on the nonmoving party.” (internal

quotation omitted)); Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 404 (6th Cir. 1992)

(“Appellants' argument that the district court erred in not searching the record sua sponte is wholly

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Lidochem, Inc., et al. v. Stoller Enterprises, Inc., et al.

without merit. The facts presented and designated by the moving party were the facts at hand to be

dealt with by the trial court. Furthermore, their status as “the facts at hand” is maintained intact here

on review.”); InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989) (“A district court

is not required to speculate on which portion of the record the nonmoving party relies, nor is it

obligated to wade through and search the entire record for some specific facts that might support the

nonmoving party's claim. Rule 56 contemplates a limited marshalling of evidence by the nonmoving

party sufficient to establish a genuine issue of material fact for trial.”).

A sampling of cites supporting (2): Chicago Title, 487 F.3d at 995 (“[T]he Sixth Circuit will

not entertain on appeal factual recitations not presented to the district court when reviewing a district

court’s decision. In reviewing summary judgment, we look at the record in the same fashion as the

district court.” (internal quotations and citations omitted)); Estate of Mills v. Trizec Props., 965 F.2d

113, 115 (6th Cir. 1992) (“In reviewing summary judgment, we look at record in the same fashion

as the district court.”); Guarino, 980 F.2d at 404 (“This Court will not entertain on appeal factual

recitations not presented to the district court any more readily than it will tolerate attempts to enlarge

the record itself.”); White v. Anchor Motor Freight, Inc., 899 F.2d 555, 559 (6th Cir. 1990) (stating

that this Court only reviews “the case presented to the district court rather than a better case

fashioned after the district court’s order” (internal quotation marks and citation omitted)).

Finally, some other circuits’ views: Holland v. Sam's Club, 487 F.3d 641, 644 (8th Cir. 2007)

(“[T]he district court is not obligated to wade through and search the entire record for some specific

facts which might support the nonmoving party's claim, rather the nonmoving party must designate

the specific genuine issues of material fact that preclude summary judgment. Even though on appeal

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Lidochem, Inc., et al. v. Stoller Enterprises, Inc., et al.

Holland designated the specific facts supporting [the claim], Holland waived this argument by not

presenting it to the district court.” (internal citation and quotation omitted)); Atlanta Gas Light Co.

v. UGI Util., Inc., 463 F.3d 1201, 1208 n.11 (11th Cir. 2006) (“Neither the district court nor this

court has an obligation to parse a summary judgment record to search out facts or evidence not

brought to the court's attention.”); Ruffin-Thompkins v. Experian Info. Solutions, Inc., 422 F.3d 603,

610 (7th Cir. 2005) (“The appellate stage is too late to specify portions of the record which may

create an issue of material fact.” (internal quotation omitted)); Amnesty Am. v. Town of West

Hartford, 288 F.3d 467, 470 (2nd Cir. 2002) (“[Rule 56] does not impose an obligation on a district

court to perform an independent review of the record to find proof of a factual dispute.”); Carmen

v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (noting that “requiring the

district court to search the entire record, even though the adverse party's response does not set out

the specific facts or disclose where in the record the evidence for them can be found, is unfair” to

the movant, to the court, and to other litigants whose cases the court could be addressing); Adler v.

Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998) (“Thus, where the burden to present such

specific facts by reference to exhibits and the existing record was not adequately met below, we will

not reverse a district court for failing to uncover them itself. . . . If the rule were otherwise, the

workload of the district courts would be insurmountable and summary judgment would rarely be

granted.”); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 (5th Cir. 1992) (“Because the Skotaks

failed to refer to [certain evidence] in their summary judgment response, the articles were not

properly before that court in deciding whether to grant the motion; therefore, they will not be

considered here. Although on summary judgment the record is reviewed de novo, this court, for

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obvious reasons, will not consider evidence or arguments that were not presented to the district court

for its consideration in ruling on the motion.”).

Even the cases the majority cites are contradictory to their holding. See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (“[T]he non-moving party must come

forward with specific facts showing there is a genuine issue for trial.”) (emphasis in original;

quotation omitted)); Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1087 (6th Cir. 1996) (“The trial

court no longer has the duty to search the entire record or establish that it is bereft of a genuine issue

of material fact.” (quotation omitted)).

In the end, LidoChem and Dean’s attorneys did not present the majority’s unearthed

statements to the district court or in any of their appellate briefs. See, e.g., Appellants’ Br. at 16, 29,

36; Appellants’ Reply Br. at 4, 12. It was their job to do so, and their failure should be fatal.

Magnum Towing & Recovery v. City of Toledo, 287 F. App'x 442, 449 (6th Cir. 2008) (“It is not the

district court's (or our) duty to search through the record to develop a party's claims; the litigant must

direct the court to evidence in support of its arguments before the court.”). Thus, I respectfully

dissent from the reversal of the district court on the Alexander claims.

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