IN RE ROMAN CATHOLIC ARCHBISHOP OF PORTLAND

ELIZABETH PERRIS, Bankruptcy Judge

Debtor filed a motion for summary judgment seeking disallowance of Claim # 836, which is a $2,000,000 claim for defamation. Having read the submissions of the parties, I recommend to the United States District Court for the District of Oregon pursuant to 28 U.S.C. § 157(c)(1) that the motion for summary judgment be GRANTED and the claim DISALLOWED for the reasons discussed below.

Robert Giacovelli ("Claimant") filed a claim ("Claim # 836") against debtor, alleging that Father Joseph Jacobburger ("Father J") had made a defamatory comment about Claimant to a potential employer, the Japanese Garden Society. Claimant asserted that Father J's comment cost him the position with the Japanese Garden Society as well as all subsequent employment since that time. Proof of Claim # 836.

Claimant had applied for a job as Director of Development of the Japanese Garden Society of Oregon in February 2005. Concise Statement of Undisputed Facts ¶ 1. Maureen Yandle, Executive Director of the Japanese Garden Society at the time, performed the initial screening and interviewing of the applicants for the position. Concise Statement of Undisputed Facts ¶ 3. Although Claimant had multiple interviews, he did not ultimately receive the position. Concise Statement of Undisputed Facts ¶ 1.

Worth Caldwell was a member of the Japanese Garden Society Board of Directors, and was one of the people who interviewed Claimant for the position. Caldwell Affidavit at ¶ 1-2. During the search for a Director of Development, the Board of Directors was "particularly concerned about finding the right candidate with a track record of success" in major fundraising campaigns. Caldwell Affidavit at ¶ 3. After Claimant's interview, Mr. Caldwell contacted the references provided by Claimant. Mr. Caldwell was concerned that, although the references did not provide any negative feedback, in his opinion, they were "slightly guarded or reserved" when speaking of Claimant. Caldwell Affidavit at ¶ 4-5. One of the references listed by Claimant, Rev. Michael Maslowsky, suggested that Caldwell speak to other individuals affiliated with Catholic nonprofits who were familiar with Claimant's work. Caldwell Affidavit at ¶ 4. One of these "other individuals" suggested that Caldwell speak with Father J, who had been at St. Mary's Cathedral when Claimant had directed a major fundraising campaign for the restoration of the Cathedral. Caldwell Affidavit at ¶ 4.

Mr. Caldwell knew Father J personally, and felt that Father J would give an accurate and honest assessment of Claimant's performance as a fundraiser. Caldwell Affidavit at ¶ 5. Mr. Caldwell telephoned Father J to solicit his opinion of Claimant's work. Caldwell Affidavit at ¶ 6. Father J told Caldwell that Claimant had headed a major fundraising campaign for St. Mary's Cathedral that was never completed, and the goals of the campaign were never reached. Caldwell Affidavit at ¶ 6-7. Upon learning this information, Mr. Caldwell recommended to the Board of Directors that they discontinue plans to hire Claimant. Caldwell Affidavit ¶ 7.

Claimant learned through a letter from Ms. Yandle dated March 18, 2005 that he did not receive the position because of poor references. Harris Affidavit, Exhibit 1 at 15. Ms. Yandle later explained to Claimant in an email dated April 15, 2005, that the reference, a clergyman, had said "he [Claimant] is not all that he says he is." Harris Affidavit, Exhibit 1 at 16. Claimant's defamation claim is based on this alleged statement by Father J. Memorandum in Support of Claimant's Response to Debtor's Motion for Summary Judgment at 1:8.

The court shall grant summary judgment on a claim "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c), made applicable to this contested matter by Fed.R.Bankr.P. 9014(c) and 7056. In making that determination, the court should view the evidence in the light most favorable to the non-moving party. Horphag Research Ltd. v. Pellegrini, 337 F.3d 1036, 1040 (9th Cir. 2003).

To establish a claim for defamation, a plaintiff must show three things. First, the plaintiff must establish that the defendant made a defamatory statement about plaintiff. Wallulis v. Dymowski, 323 Or. 337, 342-343 (1996). To be defamatory, the statement must be one that would "tend to diminish the esteem, respect, goodwill or confidence in which [the plaintiff] is held. . . ." Reesman v. Highfill, 327 Or. 597, 603 (1998) (quotingKing v. Menolascino, 276 Or. 501, 504 (1976)). Also, "a statement falsely ascribing to a person characteristics or conduct that would adversely affect his fitness for his occupation or profession is capable of having a defamatory meaning." Greenfield v. Ollikala, 85 Or. App. 357, 360 (1987) (quoting Bock v. Zittenfield, 66 Or. App. 97, 100 (1983)). Second, the statement must be false. Reesman, 327 Or. at 603. Third, the defendant must have published the defamatory statement to a third party. Wallulis, 323 Or. at 343. A statement is published when it is simply communicated to a third party. Id.

In order for Claimant to establish a claim for defamation, there must be evidence in the record that Father J actually made a defamatory statement about Claimant to Mr. Caldwell. Although Claimant asserts in his submissions that Father J said the words "he is not all that he says he is," there is no evidence in the record that Father J ever uttered those words. Claimant was not party to the conversation between Mr. Caldwell and Father J. Ms. Yandle testified that Mr. Caldwell had told her that Father J had said "he is not what he appears to be" regarding Claimant. Harris Affidavit, Exhibit 2, Deposition of Maureen Yandle at 24:24-25:1. However, this is evidence of a conversation between Ms. Yandle and Mr. Caldwell, not of the conversation between Mr. Caldwell and Father J. Ms. Yandle was not present during the conversation between Mr. Caldwell and Father J. There is no affidavit or deposition of Father J in the record. The only evidence in the record from a person who was present during the conversation between Father J and Mr. Caldwell is the affidavit of Mr. Caldwell.

According to Mr. Caldwell's affidavit, Father J told Mr. Caldwell that, "while [Claimant] headed the Cathedral's restoration campaign, the Cathedral's capital fundraising campaign was never completed and the goals of the campaign were never reached." Caldwell Affidavit at ¶ 6. It was this statement that caused Mr. Caldwell to decide not to hire Claimant. Caldwell Affidavit at ¶ 7. This statement "diminish[ed] the esteem, respect, goodwill or confidence in which [Claimant] was held" in the eyes of Mr. Caldwell. Thus, Father J's statement to Mr. Caldwell as reported by Mr. Caldwell establishes the first element of Claimant's defamation claim.

However, in order to be actionable, Claimant must also show that Father J's statement was false. The evidence in the record indicates that Father J's statement was true. Father J's statement that Claimant headed an unsuccessful fundraising campaign is supported by the Declaration of Leonard Vuylsteke, who stated that, although the goal of the St. Mary's Cathedral fundraising campaign was to raise $6.5 million, by the time Claimant left the employ of the Archdiocese, "the campaign had only raised a total of approximately $2.6 million." Vuylsteke Declaration at ¶ 3.

As the non-moving party on summary judgment, Claimant "may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In order to establish a claim for defamation, Claimant had to provide evidence showing that Father J's statement was false. Because there is no such evidence on the record, Claimant has not established an essential element of his defamation claim. "[A] complete failure of proof concerning an essential element of [Claimant's] case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Therefore, there is no genuine issue of material fact, and debtor is entitled to judgment as a matter of law.

Even if I assume for the sake of analysis that Father J said that Claimant "is not what he appears to be," as reported in Ms. Yandle's testimony, the statement, taken alone, is vague and subjective and therefore not defamatory for the reasons stated in Debtor's Reply in Support of Supplemental Motion for Summary Judgment at 5-9.

Also, the possibility that Mr. Caldwell may have later mischaracterized Father J's report does not establish Claimant's defamation claim. Taken in the context of the conversation as reported by Mr. Caldwell, the statement "he is not what he appears to be" can be understood to mean that Claimant did not lead a successful capital campaign. There is no evidence in the record that such a statement is false.

I recommend that debtor's motion for summary judgment be GRANTED and that Claim # 836 be DISALLOWED, because there is no evidence in the record that Father J's statements to Mr. Caldwell were false. In the alternative, even if Father J had said "[Claimant] is not what he appears to be," such a statement is vague, subjective, and therefore not defamatory. Under either version of the facts, Claimant has not established a claim for defamation.