United States District Court, District of Columbia
Charles Moseley MARSHALL, Jr., d/b/a PsyDa Solutions, Plaintiff,
James ALLISON, et al., Defendants.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Christopher T. Nace, Paulson & Nace, PLLC, Washington, DC, Andrew Harris Brown, Benson Brown & Faucher, PLLC, Greensboro, NC, for Plaintiff.
John Martin Wood, Great Falls, VA, for Defendants.
ROSEMARY M. COLLYER, District Judge.
Charles Moseley Marshall, Jr., operates a direct-marketing business. He is a man of imagination and energy. He complains here that he spent months developing four new communications programs for The Salvation Army but was never paid for his work. Instead, he claims that The Salvation
Army through its officer, Major James Allison, knowingly made and published defamatory statements about Mr. Marshall that caused The Salvation Army to terminate its business relationship with Mr. Marshall. Unfortunately, Mr. Marshall's imagination has gotten ahead of his facts. At the close of discovery, Major Allison and The Salvation Army move for summary judgment. Because Mr. Marshall can show neither that Major Allison made any defamatory statements nor that he tortiously interfered with a business relationship between Mr. Marshall and The Salvation Army, summary judgment will be granted.
Mr. Marshall does business as PsyDa Solutions, a small marketing firm based in Greensboro, North Carolina. A sole proprietor, he has been in business for over eleven years.
The Salvation Army (occasionally, TSA) is a worldwide religious and charitable organization. It utilizes a quasi-military command structure, and its officers are all trained ministers. In the United States, TSA is divided into four geographic Territories, each headed by a Commissioner who has both administrative and pastoral duties. The Southern Territory is headquartered in Atlanta, Georgia and encompasses nine Divisions, including the National Capital and Virginia (NCV) Division, headquartered in Washington, D.C. This Division serves the District of Columbia, the Commonwealth of Virginia, and two counties in Maryland— Montgomery and Prince George's Counties. The nine Divisions are each comprised of approximately 350 local commands, also called " Corps" ; each of them is fiercely independent. Defendant Major Allison was the General Secretary for the National Capital and Virginia Division at the relevant time.
Mr. Marshall described the challenging business opportunity for PsyDa Solutions at The Salvation Army in what Defendants call the Marshall Narrative. See Reply [Dkt. 20], Ex. I (Marshall Narrative). The Marshall Narrative, prepared by Mr. Marshall prior to litigation, portrays his view of events. Mot. for Summ. J. [Dkt. 18] (Mot.) at 5 n. 2. Mr. Marshall does not challenge it here.
Mr. Marshall targeted The Salvation Army because of its complete lack of direct marketing and decided " to embark on the venture knowing full well it would be years to fruition." Marshall Narrative at 2. One problem was " the distributive decision making structure," whereby the 350 Corps make their own marketing decisions. Id. Another problem was " the fractured command structure of TSA Southern Territory," whereby Mr. Marshall had to first receive the support of officials from the Southern Territory Headquarters and the Divisions before he could present his marketing programs to the local commands. Id. In fact, Mr. Marshall recognized that the 350 local commands within the Southern Territory are " autonomous" and that they make " their own budgeting and marketing decisions." Id. at 3. Mr. Marshall noted in his Narrative that " [t]his inverse structure is so imbedded that the Territory [Headquarters] is loath to interfere (or even guide) local command decisions." Id.
The origin of the present dispute is a bit murky. As Mr. Marshall remembers it, in 2007 Dean Feener approached him about developing a series of donor management and marketing programs for TSA. Mr. Feener was employed at Southern Territory Headquarters, and Mr. Marshall knew before meeting Mr. Feener that Mr. Feener is the son of the then-Commissioner for the Southern Territory. Reply, Ex. F (Marshall Dep.) at 51. Mr. Marshall says that Mr. Feener " gave the impression that
he had the authority to enter into contracts with PsyDa and was in charge of the Southern Territory marketing initiatives," that " Feener hired PsyDa," and that " Feener paid PsyDa over $75,000 for product development." Opp. [Dkt. 19], Ex. 2 (Marshall Decl.) ¶¶ 9-11.
The Salvation Army responds that Mr. Marshall did work for it in the donor research area from 2004 to 2008 pursuant to written contracts, that Mr. Marshall issued invoices for his work, and that TSA paid Mr. Marshall in full. See Marshall Dep. at 33; Def. Statement of Facts [Dkt. 18] ¶ 11. With regard to Mr. Feener, TSA states that in 2007 TSA hired Mr. Feener to work only on the development of a new donor database called Inter-change. According to The Salvation Army, Messrs. Marshall and Feener did not meet until 2008. Mot., Ex. C (Feener Decl.) ¶¶ 3-4. The Salvation Army believes that the relevant events unfolded after Mr. Marshall sent Mr. Feener an email in September 2008, offering ideas and concepts that might help The Salvation Army increase its donor participation. Reply, Ex. G (Feener Dep.) at 27. Everyone agrees that Mr. Feener " had in [his] budget some preliminary [money for the] effort with PsyDa." Id. at 28-29. The inconsistencies between the parties on these points are not material to the Court's disposition of the motion. The parties agree that no written contract covered Mr. Marshall's work in developing marketing programs for TSA.
What is clear is that in the fall of 2008, Mr. Marshall was working hard to interest The Salvation Army in his products and was promoting a project called PURL, a Personalized URL. Mr. Marshall spoke about PURL with Mr. Feener, with Christopher McGown (Divisional Development Director of the Kentucky and Tennessee Division), and with David Sears (Divisional Development Director for the National Capital and Virginia Division). Divisional Directors of Development advise their Divisions in fundraising, marketing and public relations. Mot., Ex. B (Sears Decl.) ¶ 3. Messrs. Feener and McGown became fully supportive of Mr. Marshall's marketing efforts and helped him to meet others within The Salvation Army, but both declare that he had no authority to contract with a vendor such as Mr. Marshall. Feener Decl. ¶¶ 6-7, 11; Mot., Ex. D (McGown Decl.) ¶¶ 5-6, 11. As noted, Mr. Marshall was well aware of the organizational structure of the Southern Territory and knew that any sale of his products would have to be made to the local commands within the Territory. Marshall Narrative at 3 (recognizing that the local commands are " autonomous" entities that make " their own budgeting and marketing decisions" and that Territory Headquarters is loath to interfere).
Mr. Marshall met with Mr. Sears again in the spring of 2009, at which point Mr. Marshall indicated that he wanted to contact some of the Corps within the Nation's Capital and Virginia Division to sell them on his concept. Mr. Sears advised that the Corps make their own marketing decisions
but it would make sense to visit the larger Corps because they would be more likely to be interested and to have the largest pools of donors. Mr. Sears provided contact information at those Corps. Mr. Marshall indicated to Mr. Sears that the cost would be " per PURL" (that is, per donor) and not " per activated PURL" (that is, per donor who actively visited his Personalized URL). As a result Mr. Sears had " serious concerns about the costs versus the benefits of the PURL initiative," which were " shared by several Divisional Directors of Development." Sears Decl. ¶¶ 7, 8. At a second meeting in Baltimore between Mr. Marshall and Mr. Sears, Mr. Marshall again confirmed the cost structure for PURL. In the fall of 2009, Mr. Sears prepared a memo to Major Allison, expressing his concerns about the PURL program. While Mr. Sears thought the PURL program " conceptually sound," he " questioned its functionality with such issues as keeping a PURL current when, at the time, we were having difficulty keeping our own website current." Sears Decl. ¶ 5. Major Allison agreed with Mr. Sears, based on Mr. Sears's review and " his experience in that area." Reply, Ex. E (Allison Dep.) at 51.
In contrast, Mr. Feener and Mr. McGown became " champions" of Mr. Marshall's PURL program. Marshall Dep. at 20-21. By June 2009, after Mr. Marshall had been meeting with people within The Salvation Army for some months, Mr. Feener recognized that " some persons ... thought that the PURL idea was a good idea, [but] actually implementing it would have required a series of tests and, assuming successful testing, it would have [had] to be marketed to each of the 350 Corps in the Territory [because] [t]he Southern Territory does not mandate such selections centrally." Feener Decl. ¶ 9. Mr. Feener himself was " favorably inclined," and " Chris McGown was trying to assist Mr. Marshall in having his product presented to as many development staff as possible." Id. ¶ 10-11. Mr. McGown was also favorably disposed toward the Family Store Card Program, another of Mr. Marshall's products. Id. ¶ 9.
In fact, Mr. McGown " assisted Mr. Marshall by facilitating a number of meetings through on-line presentations, personal introductions, and, eventually, ‘ Webinars' that [Mr. McGown] helped arrange," starting in November 2008. McGown Decl. ¶ 6. Having been told by Mr. Marshall that the PURL program needed a minimum of 250,000 donors to make it viable, a donor pool larger than in his Division, Mr. McGown introduced Mr. Marshall to other development personnel in other divisions in the Southern Territory. Id. ¶ 7. Additionally, " [t]o help support the PURL program," Mr. McGown drafted a letter to his Division Commander asking for development funds for PURL, but the Divisional Finance Board declined to send the letter to Southern Territory Headquarters and no funding was obtained. Id. ¶ 14. During the spring of 2009, Mr. McGown spoke on the telephone with Major Allison, answering Major Allison's questions about pricing the structure of the PURL program. Id. ¶ 16. Mr. McGown informed Major Allison what Mr. McGown " believed the program could accomplish for The Salvation Army." Id.
Mr. Marshall allegedly developed four custom programs for The Salvation Army that were ready to be implemented by July 2009: PURL; the Family Store Card Program; a Modeling/Analysis program; and a Constituent Loyalty Initiative. See Marshall Dep. at 18-19; Notice of Removal [Dkt. 1], Ex. A (Compl.) ¶¶ 8-9. Mr. Marshall claims that he had an enforceable oral agreement covering the PURL program with Mr. Feener and covering the other three programs with both Mr. Feener
and Mr. McGown. Marshall Dep. at 45-47. Based on his own testimony, he urges the Court to find that the parties had entered into contracts. Pl. Statement of Facts [Dkt. 19-1] ¶ 8.
Mr. Marshall's business development efforts hit a snag in October 2009. Just as Mr. Sears was reviewing the Family Store Card Program, at the request of the Charlottesville Corps, and finding it too expensive,
Mr. Marshall sent an e-mail [to Major Allison] which caused consternation within The Salvation Army. In that e-mail he referred to the Family Store Card Initiative and made the statement that we " will roll out [that program] Territory-wide." Due to the decentralized decision-making structure of The Salvation Army, such a statement was construed as a territorial mandate which causes concerns within the command structure of The Salvation Army.
McGown Decl. ¶ 19. In full, Mr. Marshall's email to Major Allison, dated October 7, 2009, read:
I had a most positive meeting with Captain Matthews in Charlottesville. I presented him with the attached Family Store Card Program proposal.
We are hoping [Charlottesville] will join Greensboro and one other command in this pilot (non ARC) F.S. initiative. Following a 12 month proof-of-concept, we'll roll out Territory-wide (including ARC).
Oct.2009 Email Exchange at SA00135. Mr. Marshall admits that he " should have postured" the offending statement within the email differently, as " ‘ [w]e hope to’ rather than ‘ we'll’ as if ...