The opinion of the court was delivered by: Curtin, District Judge.
On August 27, 1997, plaintiff Paul James ("James"), a Canadian
citizen and resident of Ontario, brought this diversity action
against defendants Arthur DeGrandis ("Mr. DeGrandis") and Mark
DeGrandis ("Mark"), residents of New Jersey, and Mary Kate
Nugent ("Nugent") and Christopher Conklin ("Conklin"), residents
of New York. Item 1. James, formerly a soccer coach at Niagara
University ("Niagara") in Lewiston, New York, alleges that the
defendants published defamatory statements about him which
injured him in his business and occupation and damaged his
reputation. He sought compensatory and punitive damages on his
six causes of action. Defendant Christopher Conklin, pro se,
answered on October 22, 1997, Item 5 and Defendants Arthur and
Mark DeGrandis answered on October 29, 1997, Item 6. Defendant
Mary Kate Nugent never answered, but settled with plaintiff. The
settlement agreement was approved by court order on May 30,
2000. Item 41.
Discovery was completed; and on May 16, 2000, defendants
Arthur and Mark DeGrandis submitted a Motion for Summary
Judgment, for Attorneys' Fees, and for Sanctions with attached
affidavits and exhibits, Item 36, accompanied by a Memorandum of
Law, Item 37, Affidavit of Mark
J. DeGrandis, Item 38, Affidavit of Arthur DeGrandis, Item 39,
and Statement of Facts, Item 40. On July 21, 2000, James
submitted a Memorandum of Law in Opposition to the Motion for
Summary Judgment, Item 45, a Memorandum of Law in Opposition to
the Motion for Sanctions, Item 46, a Declaration/Affidavit by
Paul James, Item 47, Affidavits by Robert C. Weissflach, Esq.
opposing summary judgment, Item 48 and in opposition to
sanctions, Item 49, Plaintiff's Counter-Statement of Disputed
Material Facts, Item 50, and an Appendix of Exhibits, Item 51.
On September 8, 2000, Rodger P. Doyle, Jr., counsel for Arthur
and Mark DeGrandis, filed an affidavit in support of Defendants'
Motion for Summary Judgment, Attorneys' Fees, and Sanctions.
Item 54. Defendant Christopher Conklin did not submit any
The court heard oral argument on the DeGrandis' Motion for
Summary Judgment on October 27, 2000. Having considered the
parties' arguments, the DeGrandises' Motion for Summary Judgment
is granted in part and denied in part.
Plaintiff Paul James is an accomplished soccer player. From
1982 to 1985, he played for the Toronto Blizzard, a professional
team in the North American Soccer League. In 1987 and 1988, he
played professionally for the Doncaster Rovers, a team in the
English League. He also played professionally for four teams in
the Canadian Soccer League. He was a member of the Canadian
National Soccer Team from 1983 to 1993, and served as Captain in
1987. From 1987 to 1991, he was a League All-Star. As a member
of the Canadian National Team, he participated in the 1984
Olympic games in Los Angeles and in the 1986 World Cup in Mexico
City. Declaration of Paul James, Item 47, 11510. In 1989, James
began his coaching career, and was named the Canadian Soccer
League Coach of the Year in 1992. Id. ¶¶ 11, 12. Upon his
retirement from the Canadian National Team, James decided to
pursue a career in coaching, with a goal of becoming a soccer
coach at a Division I college or university in the United
States. He received a United States Soccer Federation ("USSF")
"B" License and "A" License (the latter being the highest
certification for soccer coaches in the United States). Id. ¶¶
James also sought to establish his soccer camp business, the
Soccer School of Excellence ("SSE"), which he served as
President and Treasurer. SSE ran week-long residential soccer
camps for young soccer players. Its goals were to develop player
skills through providing high level practices and highly
qualified coaching, and create scholarship opportunities for
elite players. It also allowed James to evaluate talent and
recruit for the college teams he might be coaching at the time.
Id. ¶¶ 37, 38. SSE began operations as a Canadian corporation
operating in Ontario. In August 1994, it incorporated in
Delaware as Soccer School of Excellence U.S.A., Inc. The
company's business plan had been to expand into the United
States. Id. ¶¶ 39. College coaches often run soccer camps and
clinics to supplement their income. Id. ¶¶ 40.
In 1993, the men's soccer coach at LeMoyne College ("LeMoyne")
in Syracuse, New York, asked James to visit the school to
perform demonstrations and clinics for the soccer players, which
James did on a voluntary basis. LeMoyne's soccer coach left and
recommended that James replace him. LeMoyne offered him the job
as a part-time coach, to begin in August 1994. Id. ¶¶ 15, 18,
Once he was offered the job as the LeMoyne men's soccer coach,
Paul James began recruiting players for the team in February or
March 1994. Item 51, Exh. 7, p. 97. He recruited from his home
in Canada (Item 47, ¶ 21) on a voluntary basis and not as an
employee of LeMoyne. Item 51, Exh. 9, ¶ 7. James was not
employed by LeMoyne during the 1993-94 academic year. Id. ¶ 5.
He was hired as head soccer coach at LeMoyne with a term
commencing in August 1994 and running for two years. Id. ¶ 7.
James moved to Syracuse during the summer of 1994. He wrote
articles on the World Cup for the Syracuse newspapers (Item 47,
¶ 26) and ran soccer camps at LeMoyne. Item 51, Exh. 7, p. 107.
During that time, he met and began dating a LeMoyne College
senior, Jeanne Dupree, a member of the basketball team. They had
a romantic and sexual relationship. Id. pp. 106-07. Ms. Dupree
was 21 years old at the time. Item 47, ¶ 21. When James was
dating Dupree, he was not employed by LeMoyne and had not begun
his coaching duties, which were to begin in August pursuant to
his contract. Id. ¶ 27.
Before starting work as LeMoyne's soccer coach, James
approached Richard W. Rockwell, the LeMoyne Athletic Director,
and asked him what the school's view of his relationship with
Ms. Dupree would be when he became a LeMoyne employee. Rockwell
told him it would be a "black and white" issue and that he could
not be employed by LeMoyne and date a student at the same time.
Item 51, Exh. 9, ¶ 13. Rockwell advised James to think about
what he wanted to do. Id. Exh. 7, p. 108. James decided to
"meet the commitment of LeMoyne and to end the relationship."
Id. He chose his career and business goals over his personal
life. Item 47, ¶ 30. He then became employed by LeMoyne College.
Item 51, Exh. 10, ¶ 14.
After the 1995 season at LeMoyne, James was offered the
opportunity to coach at Niagara University, a Division I soccer
program. Item 47,. ¶ 32. He decided to take the Niagara position
to further his coaching career, even though he could have stayed
at LeMoyne because the school was willing to provide him with a
contract extension. Id. ¶ 32; Item 51, Exh. 9, ¶ 16. Mr.
Rockwell prepared a letter of recommendation for James. Id.
Exh. 9, ¶ 17 and Exhibit A.
Mr. Rockwell asserts that he was
unaware of any allegations of sexual misconduct,
sexual harassment or any other alleged inappropriate
behavior by Paul James while he was employed by
LeMoyne College. To my knowledge, Paul James did not
engage in any sexual misconduct, sexual harassment or
any other inappropriate behavior at any time before,
during or after his employment at LeMoyne College.
Paul James also did not violate any LeMoyne College
rule or regulation at any time of which I am aware.
Item 51, Exh. 9, ¶ 15. James states "I was never accused of
sexual misconduct, sexual harassment, or any other kind of
inappropriate behavior (sexual or otherwise) while I was
employed at LeMoyne College. I was not `let go,' `dismissed' or
otherwise terminated from LeMoyne College for any reason." Item
47, ¶ 31.
James became the part-time Head Coach of Niagara's men's and
women's soccer teams in January 1996. His first season began in
the fall of 1996. Id. ¶ 34. James recruited Mark J. DeGrandis
to play on the Niagara University soccer team (Item 40, ¶ 5),
offering him a partial scholarship for the Fall 1996 season.
Item 47, ¶ 46. When Mark reported to training camp, James found
that Mark's and a
number of other players' physical fitness level was below what
it needed to be to compete. Item 51, Exh. 8, p. 132. During the
preseason, James had a conversation with Mark, who he perceived
was unhappy. Mark's unhappiness stemmed from the fact that he
was not always going to be on the first team. Id. Exh. 7, p.
138. James told him that he was potentially a good player, but
physically he was behind and had to catch up. Id. Exh. 8, p.
After the preseason games, Mark called his father and told him
that James was harassing him. As examples of the harassment, Mr.
DeGrandis related that when Mark would get the ball, James, from
the sidelines, would say things like "Oh, come on, Mark" or tell
him he was out of shape. Id. Exh. 3, pp. 20, 32. Mr.
DeGrandis, a club soccer coach, viewed these comments as
evidence of an improper coaching technique, designed to harass.
Id. pp. 21, 24, 32.
Following a soccer tournament in Connecticut in early
September 1996, James received a message to call Mr. DeGrandis,
who expressed to him in
no uncertain terms, that he was very, very unhappy
with the situation of Mark not playing. And then he
criticized me as a coach. . . . [H]e told me that, in
some areas, I didn't know what I was doing, that I
was selective with players, that I was making Mark
fail the way I was playing him, the position I was
playing him, lots of other stuff. But, he was very,
very angry and I was angry back.
Id. Exh. 7, pp. 145-46. Mr. DeGrandis demanded that James
allow Mark to play 90 percent of the time, and criticized the
performance of other players on the team at a game he had not
attended. Item 47, ¶¶ 52, 54. During that telephone call, Mr.
DeGrandis told James that he had problems with a previous coach
of Mark's and that James would not get away with not letting
Mark play more. Mr. DeGrandis added that James would not "win
this one," which James perceived as a threat. Item 47, ¶ 55.
Following the call from Mr. DeGrandis, James talked to Mark,
and told him that he regarded Mark's using his father to raise
the issue of playing time and his criticizing other players as
disloyalty to the team. James told Mark that such concerns
should be raised directly with the coach. Item 47, ¶ 56. James's
experience was that successful teams handled disputes
After the James-Mr. DeGrandis telephone conversation, Mr.
DeGrandis called both Mike Jankowski ("Jankowski"), Niagara's
Athletic Director and Joe Cuda ("Cuda"), Dean of Student
Affairs, telling them that Mark had been harassed and threatened
by James, who was planning to kick him off the team in November.
Item 51, Exh. 3, p. 45, 51. Mark met with Cuda for eight
scheduled visits and several unscheduled visits between
September and November. Id. pp. 52, 53. Cuda summarized the
conversations as Mark venting his frustrations about James. He
informed Mark that he could continue venting to him, but that
would not lead to resolution since Cuda had no supervisory
authority over athletic personnel. Id. Exh. 20. Mark informed
his father about what transpired in the meetings with Cuda.
Id. Exh. 4, p. 28. Mr. DeGrandis also spoke with Cuda several
times about the harassment Mark was experiencing. Id. Exh. 3,
pp. 53, 55-56.
On Parents Weekend in October, 1996, Mr. DeGrandis met with
both Cuda and Rev. Vincent O'Malley, Niagara's Vice President.
Id. Exh. 4, pp. 29, 30. Mark was aware that his father was
attempting to talk to people within the Niagara administration
about his problems with James. Id. p. 31.
In the fall of 1996, James considered cutting Mark from the
team because of his disruption of the team and bad attitude. He
eventually cut him in early November 1996 after Mark made a
racial remark to a goalkeeper of the Howard University women's
soccer team at a game he was watching. Item 47, ¶ 59.
After being cut, Mark discussed with his father filing a
grievance against James regarding NCAA violations and
harassment. Mr. DeGrandis told Mark he could type up the
substance of the conversation and send it to him. Item 51, Exh.
3 pp. 62, 63, 65. The complaint, dated November 18, 1996, was
addressed to the Department of Human Resources and charged James
with "abusive power in his language . . . [,] mental harassment,
. . . intimidati[on], . . . retaliation and revenge, by
dismissing me from the team . . . [,] publicly slandering my
name . . . [,] violating player/coach confidentiality[,]
violating NCAA recruiting rules and regulations and procedures."
Id. Exh. 19. The complaint described James as a "negative
force" at the University and urged the university to address the
issue so as to maintain its "Vincentian heritage." Id.
On November 18, 1996, James arranged an end-of-the-year team
banquet in Canada. He prepaid for the dinner, which included
wine for students who had proper identification. The legal
drinking age in Canada is 19. James did not intentionally
purchase alcoholic beverages for students under 19 because he
relied on the restaurant's statement that it would check
identification. Item 47, ¶ 64. After the dinner, James drove
Megan Daley, a student, home. Three other students were in the
car. He gave Daley a kiss, although it was not a passionate or
romantic kiss. Id. ¶ 66.
Mark was not present at the banquet. Item 51, Exh. 3, p. 84.
On November 20, Mr. DeGrandis called Cuda and told him that at
the soccer party, minors were drinking alcohol with the coach
present, and that James kissed a student on the dance floor.
Id. Exh. 20. Mr. DeGrandis stated that James and Daley left
the party together, and no one else left with them. Id. Exh.
3, p. 86. This call by Mr. DeGrandis served as a formal
complaint about James' behavior, which prompted Cuda to launch
an investigation into the incident, "to see if there was any
validity to the information given." Id. Exh. 20. During an
interview with Cuda, one student told him that there were rumors
that the coach was kissing a freshman soccer player at the bar
and that they went home together, and further that at a team
meeting the next Monday, the coach explained that rumors should
not be spread. Id. Over the next few days, Cuda met with
additional students, including Megan Daley, the student who was
allegedly kissed. She denied that anything happened, did not
feel harassed or abused, and did not wish to pursue the matter
in any way. Two other students said they witnessed a kiss, and
five saw nothing. Id. James met with Cuda, upset at the way he
was handling the investigation, particularly since he had heard
that Cuda had asked one of his players whether James had slept
with any students. Id.
The results of Cuda's investigation were conveyed by Jeannine
Brown Miller, the Director of the Office of Human Resources, to
the Chairman of the University Judicial Board. Ms. Miller found
that there was no complaint of sexual harassment against James
and, based on the investigation results, there was nothing to
support the "third-party allegation" of improper behavior. Id.
In early 1997, Mark was reinstated to the soccer team by
Jankowski on the basis that James had not documented the reasons
for Mark's dismissal in November 1996, nor had he correctly
followed the procedure for such dismissals. Item 47, ¶ 70. On
January 31, 1997, Mr. DeGrandis wrote "Rev. Brian J. O'Connell,"
as President of Niagara University (even though the President at
that time was Rev. Paul Golden). He related that James continues
to "retaliate and seek revenge" against Mark, and recounted that
"Tony Griffiths stated to several players that `if Mark causes
any trouble this year I'll break both his legs.'" Mr. DeGrandis
continued, "This does not involve Tony. It comes from Paul
James' perspective. So he retaliates by sending a player to do
his bidding." Item 51, Exh. 22. He described an encounter
between Mark and Tony, in which Mark asked Tony about the
remark. In response, "Tony began to taunt and tantalize Mark"
and had to be subdued so that he would not strike Mark. The
letter ended by saying that "Paul James continues to perpetuate
disharmony on campus; and Niagara is not a safe place for
teaching and learning." Id. The letter was copied to a New
Jersey law firm that Mr. DeGrandis never retained. Id. Exh. 3,
On February 5, 1997, Mr. DeGrandis wrote another letter to
"Rev. O'Connell," in which he stated that Mark had not yet
received a response to his formal complaint against James
submitted to the Office of Human Resources. Mr. DeGrandis was
seeking a letter of apology from James "for all his
transgressions along with a statement concerning Mark's playing
time." He cited his January 31, 1997 letter to O'Connell
"explaining [James'] most recent dasterdly [sic] deeds are a
good enough reason for all of the above." He concluded that
James had been acting "with oppression and malice," and that the
"University needs to correct this problem in any way possible."
Id. Exh. 23.
In February or March 1997, Mark left a voice-mail message for
James on his office telephone, in which he said he had "heard
through the grapevine" that James was jobhunting, and inquired
how he expected to get an interview "within the Federation" in
view of "all of these letters and all the rest" in his file.
Mark asked James to explain "what happened at LeMoyne, here at
N.U., and what about around Williamsville and in the clubs where
you do your camps?" Mark stated James "can't set his own terms,"
that he "put [him]self in a situation to be fired." Id. Exh.
Asked where he received his information about James, Mark said
he heard from Jankowski and members of the soccer team that
James was job-hunting. Id. Exh. 4, p. 36. Students at Niagara
and a LeMoyne student had told him that James left LeMoyne
because of involvement with a student there. Id. p. 41. He
never talked with anyone at LeMoyne to verify if that
information was true. Id. p. 42.
Around the same time that Mark left James the voice-mail
message, Mr. DeGrandis also left one. In it he said: