UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1265
DUANE PORTER,
Plaintiff - Appellant,
v.
BRASKEM AMERICA, INC.; JEFFREY BLATT; MI-DE-CON, INC.,
Defendants - Appellees.
Appeal from the United States District Court for the Southern District of West Virginia, at
Huntington. Robert C. Chambers, District Judge. (3:19-cv-00572)
Submitted: October 22, 2021 Decided: November 2, 2021
Before KING, WYNN, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James D. McQueen, Jr., MCQUEEN DAVIS, Huntington, West Virginia; Christopher J.
Heavens, HEAVENS LAW FIRM, PLLC, Charleston, West Virginia, for Appellant.
Alexander C. Ward, VANOVER, HALL & BARTLEY, P.S.C., Ashland, Kentucky; Lori
E. Armstrong Halber, FOX ROTHSCHILD LLP, Warrington, Pennsylvania, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Duane Porter appeals the district court’s order granting summary judgment to
Braskem America, Inc. (“Braskem”), Jeffrey Blatt, and Mi-De-Con, Inc. (“MDC”)
(collectively, Defendants), on his defamation, tortious interference, and civil conspiracy
claims. Finding no error, we affirm.
We “review[] de novo the district court’s order granting summary judgment.”
Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 565 n.1 (4th Cir. 2015). “A district
court ‘shall grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.’” Id. at
568 (quoting Fed. R. Civ. P. 56(a)). “A dispute is genuine if a reasonable jury could return
a verdict for the nonmoving party.” Id. (internal quotation marks omitted). In determining
whether a genuine dispute of material fact exists, “we view the facts and all justifiable
inferences arising therefrom in the light most favorable to . . . the nonmoving party.” Id.
at 565 n.1 (internal quotation marks omitted). However, “the nonmoving party must rely
on more than conclusory allegations, mere speculation, the building of one inference upon
another, or the mere existence of a scintilla of evidence.” Humphreys & Partners
Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 540 (4th Cir. 2015) (internal
quotation marks omitted). Because Porter brought this case under the district court’s
diversity jurisdiction, we must apply West Virginia law as it was determined, or as we
predict it would be determined, by the highest court of West Virginia. Young v. Equinor
USA Onshore Props., Inc., 982 F.3d 201, 206 (4th Cir. 2020).
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A defamation claim in West Virginia is governed by a one-year statute of
limitations. W. Va. Code Ann. § 55-2-12(c) (LexisNexis 2021); Padon v. Sears, Roebuck
& Co., 411 S.E.2d 245, 247 (W. Va. 1991). “[I]n defamation actions the period of the
statute of limitations begins to run when the fact of the defamation becomes known, or
reasonably should have become known, to the plaintiff.” Padon, 411 S.E.2d at 248.
We conclude that the district court correctly applied the statute of limitations. Porter
learned of the alleged defamatory statements on June 29, 2018, when a Braskem employee
informed him of MDC’s allegations of financial impropriety, Porter knew that MDC made
the accusations, but Porter did not file his complaint until August 5, 2019—after the
limitations period had expired. Porter’s attempt to rely on his termination date to establish
that his defamation claim is timely is misplaced. Porter’s termination is the relevant injury
for his tortious interference claim, but not for his defamation claim. A statement is
defamatory “if it tends so to harm the reputation of another as to lower him in the estimation
of the community or to deter third persons from associating or dealing with him.” Crump
v. Beckley Newspapers, Inc., 320 S.E.2d 70, 77 (W. Va. 1983) (internal quotation marks
omitted). Here, the allegations that Porter engaged in financial impropriety caused a
reputational injury, and he learned of it prior to his termination. Therefore, the district
court did not err in rejecting the defamation claim as time-barred.
“To establish prima facie proof of tortious interference, a plaintiff must show: (1)
existence of a contractual or business relationship or expectancy; (2) an intentional act of
interference by a party outside that relationship or expectancy; (3) proof that the
interference caused the harm sustained; and (4) damages.” Garrison v. Herbert J. Thomas
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Mem’l Hosp. Ass’n, 438 S.E.2d 6, 13 (W. Va. 1993). Here, Porter attempts to impart
negligence principles of proximate cause, intervening cause, and foreseeability into this
analysis, but cites no authority for the proposition these negligence principles apply in a
tortious interference case. Tortious interference, as its name indicates, is an intentional
tort, and proximate cause as used in the negligence context does not apply. See McKenzie
v. Sevier, 854 S.E.2d 236, 246 (W. Va. 2020) (concluding that, in battery case, appellants’
“argument relying on proximate cause espoused in our negligence jurisprudence is simply
inapplicable here in the intentional tort context”).
The district court correctly concluded that MDC’s allegations did not cause Porter’s
termination. Braskem investigated and found that the allegations were unfounded. It was
Porter’s actions of disclosing the investigation, which he was instructed not to do, and using
profanity and creating a disturbance on July 26, 2018, that prompted Braskem to terminate
his employment. Finally, because Porter’s other claims failed, the district court correctly
rejected his civil conspiracy claim as well. See Sheehan v. Saoud, 650 F. App’x 143, 153
(4th Cir. 2016) (No. 15-1338) (argued but unpublished); Dunn v. Rockwell, 689 S.E.2d
255, 269 (W. Va. 2009).
Accordingly, we affirm the district court’s order. We deny the motion for leave to
file a surreply brief. * We dispense with oral argument because the facts and legal
*
We decline to consider Porter’s argument raised for the first time in his reply brief
regarding Blatt’s alleged bad faith. See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307,
316 (4th Cir. 2017) (recognizing that issues raised for first time in reply brief are waived).
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contentions are adequately presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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