                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0548n.06

                                    Nos. 08-3707 and 08-3735
                                                                                         FILED
                          UNITED STATES COURT OF APPEALS                             Aug 07, 2009
                               FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


MARGARET B. (SAM) BAYS;                          )
JAMES C. BAYS,                                   )
                                                 )
       Plaintiffs-Appellants,                    )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
MICHAEL R. CANTY; JOSEPH W.                      )    NORTHERN DISTRICT OF OHIO
DIEMERT, JR.; HARVEY B. BRUNER;                  )
DEBORAH AXELROD; CHRISTOPHER                     )
LOCKHART;       VILLAGE     OF                   )
BENTLEYVILLE,                                    )
                                                 )
       Defendants-Appellees.                     )




       Before: GILMAN, COOK, and FARRIS,* Circuit Judges.


       PER CURIAM. Margaret and James Bays (the “Bayses”) sued the defendants, claiming:

First Amendment retaliation under 42 U.S.C. § 1983, civil conspiracy, defamation, intentional

infliction of emotional distress, constructive discharge, and legal malpractice. The district court

entered summary judgment in favor of the defendants, and the Bayses appealed.


       Our review of the record, the applicable law, and the parties’ briefs convinces us that the

district court’s memorandum opinion carefully and correctly set out the facts and the governing law.

       *
       The Honorable Jerome Farris, Circuit Judge of the United States Court of Appeals for the
Ninth Circuit, sitting by designation.
Nos. 08-3707 and 08-3735
Bays v. Canty


A full opinion from this court would be duplicative and serve no jurisprudential purpose. We affirm,

adopting the reasoning of the district court’s June 17, 2008 opinion. We pause only to address the

intra-corporate conspiracy doctrine and plaintiffs’ intentional-infliction-of-emotional-distress

(“IIED”) claim.


       The Bayses contend that the district court erred by rejecting their civil-conspiracy claim under

the intra-corporate conspiracy doctrine, but we disagree. That doctrine—drawing on a “common

sense” insight “that a person cannot conspire with himself”—teaches that, since a corporation only

acts through its officers, a group of corporate officers acting within the scope of employment cannot

create a conspiracy. See Harp v. King, 835 A.2d 953, 971 (Conn. 2003). The district court applied

this principle, citing federal case law. The Bayses, however, asserted their civil-conspiracy claim

under Ohio law, which governs this claim. See Chandler v. Specialty Tires of Am. (Tenn.), Inc., 283

F.3d 818, 823 (6th Cir. 2002). The Ohio Supreme Court has not addressed the intra-corporate

conspiracy doctrine. This court must therefore predict whether the Ohio Supreme Court would

embrace the intra-corporate conspiracy doctrine. See Allstate Ins. Co. v. Thrifty Rent-A-Car Sys.,

Inc., 249 F.3d 450, 454 (6th Cir. 2001). We think it would. Most states endorse the doctrine, see

Robin Miller, Annotation, Construction and Application of “Intracorporate Conspiracy Doctrine”

as Applied to Corporation and Its Employees—State Cases, 2 A.L.R. 6th 387 (2005), and at least

one Ohio court has recognized it, Scanlon v. Gordon F. Stofer & Bros., Co., Nos. 55467, 55472,

1989 WL 69400, at *16 (Ohio App. 8 Dist. June 22, 1989). We thus conclude that the district court



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Nos. 08-3707 and 08-3735
Bays v. Canty


did not err by using the intra-corporate conspiracy doctrine to enter summary judgment on the

Bayses’ conspiracy claim.


       As for plaintiff’s IIED claim, Ohio law requires the Bayses to prove that the defendants: (1)

intentionally engaged in (2) outrageous conduct “so extreme in degree, as to go beyond all possible

bounds of decency” and that (3) the conduct proximately caused (4) serious emotional distress that

no reasonable person could be expected to endure. Yeager v. Local Union 20, Teamsters,

Chauffeurs, Warehousemen, & Helpers of America, 453 N.E.2d 666, 671 (Ohio 1983), overruled

on other grounds by Welling v. Weinfeld, 866 N.E.2d 1051, 1054 (Ohio 2007)); Monak v. Ford

Motor Co., 95 F. App’x 758, 762 (6th Cir. 2004).


       The district court rejected the Bayses’ IIED claim under the second element, reasoning that

the defendants’ actions did not go so far beyond the bounds of decency as to qualify as sufficiently

outrageous. Here too we agree with the district court. The Bayses’ claim also fails under the fourth

IIED element—severe emotional distress. In the section of their appellate brief discussing IIED, the

only evidence concerning the severity of the distress that plaintiffs cite is this: Ms. Bays visited a

cardiologist to have her blood pressure monitored, and in her husband’s estimation, she became

“terrified” because of a phone call. This falls short under Ohio’s demanding IIED standard.


       AFFIRMED.




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