UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-1785


PAULETTE A. MYERS,

                    Plaintiff - Appellee,

             v.

DOLLAR GENERAL CORPORATION,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of South Carolina, at
Charleston. Mary Gordon Baker, Magistrate Judge. (2:15-cv-02869-MGB)


Submitted: April 30, 2018                                         Decided: June 20, 2018


Before THACKER and HARRIS, Circuit Judges, and SHEDD, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Adam N. Yount, Sarah P. Spruill, HAYNSWORTH, SINKLER, & BOYD, PA,
Charleston, South Carolina, for Appellant. Gene M. Connell, Jr., KELAHER,
CONNELL & CONNOR, PC, Surfside Beach, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Dollar General appeals the district court’s 1 denial of its motion for judgment as a

matter of law after the jury awarded Paulette A. Myers $75,000 in compensatory

damages and $250,000 in punitive damages on her slander claim under South Carolina

law. Alternatively, Dollar General contends that even if the compensatory damages

award stands, the punitive damages award must be vacated because the district court

should not have submitted the issue of punitive damages to the jury, and because the

district court erroneously instructed the jury as to punitive damages. We affirm.

      Myers’ suit arose out of a November 8, 2014, incident at the Dollar General store

in McClellanville, South Carolina. On that day, the store manager, Theresa Tyler, told

two deputies from the Charleston County Sheriff’s Office that Myers and her nephew

Kareem Singleton were shoplifters. The deputies detained Myers and Singleton outside

the store for more than an hour before releasing them with warning citations. Although

no criminal charges were ever filed, Myers and Singleton were banned from the store.

      Tyler testified that she believed Myers and Singleton were shoplifters based on

surveillance video from November 6, 2014, which Tyler believed showed Myers stealing

cosmetics. Tyler also found it suspicious that although Myers and Singleton entered the

store together on November 8, they each took a cart and went in separate directions inside

the store. At trial, Myers’ niece testified that she, not Myers, was the woman in the


      1
        The parties consented to the authority of the magistrate judge to conduct all
proceedings. See 28 U.S.C. § 636(c)(1) (2012).


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November 6 video, and that she had not stolen anything. Myers testified that she was not

the same height or weight as her niece, had a different hairstyle, and was significantly

older. 2 Myers and Singleton both testified that they had their own carts on November 8

because they were shopping for different things. Although Tyler had initially maintained

that the November 6 video showed Myers stealing from Dollar General, she admitted at

trial that she was mistaken. 3 She stated that she had no ill will toward Myers, and made

an honest mistake.

      Federal jurisdiction in this case rests on diversity, 28 U.S.C. § 1332 (2012), and

therefore this Court applies the substantive law of South Carolina. See Stahle v. CTS

Corp., 817 F.3d 96, 99-100 (4th Cir. 2016). Under South Carolina law, “[t]he tort of

defamation allows a plaintiff to recover for injury to her reputation as the result of the

defendant’s communication to others of a false message about the plaintiff. Slander is a

spoken defamation while libel is a written defamation or one accomplished by actions or

conduct.” Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 501 (S.C. 1998).

To recover on a slander claim, the plaintiff must show that “(1) a false and defamatory

statement was made; (2) the unprivileged publication was made to a third party; (3) the

publisher was at fault;” and (4) the statement is actionable. Fountain v. First Reliance


      2
          When shown the November 6 video at their depositions, Myers and Singleton
initially stated that the woman in the video was Myers. Both stated that although they
could not see the face of the woman in the video, they recognized Singleton, and assumed
that the woman with Singleton was Myers.
      3
          Dollar General did not include the video in the Joint Appendix.


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Bank, 730 S.E.2d 305, 309 (S.C. 2012). Defamation is “either actionable per se or not

actionable per se”; if the latter, then plaintiff must plead and prove common law malice

and special damages. Id. “If the statement is actionable per se, then the defendant is

presumed to have acted with common law malice and the plaintiff is presumed to have

suffered general damages.”      Id. (internal quotation marks omitted).      “Common law

malice means the defendant acted with ill will toward the plaintiff, or acted recklessly or

wantonly, i.e., with conscious indifference of the plaintiff’s rights.” Erickson v. Jones St.

Publishers, LLC, 629 S.E.2d 653, 665 (S.C. 2006). Slander “is actionable per se when

the defendant’s alleged defamatory statements charge the plaintiff with . . . commission

of a crime of moral turpitude.” Fountain, 730 S.E.2d at 309 (internal quotation marks

omitted). The parties agree that shoplifting is a crime of moral turpitude, and therefore

actionable per se.

       Dollar General contends that it was entitled to judgment as a matter of law on the

slander claim because Tyler’s statement to police that Myers was a shoplifter was

privileged as a matter of law, and therefore Myers could not recover for it. We review de

novo the denial of a motion for judgment as a matter of law, considering the evidence “in

the light most favorable to the plaintiffs, the prevailing parties at trial.” Bresler v.

Wilmington Tr. Co., 855 F.3d 178, 196 (4th Cir.), cert. denied, 138 S. Ct. 470 (2017).

       One who publishes defamatory matter concerning another is not liable for
       the publication if (1) the matter is published upon an occasion that makes it
       conditionally privileged, and (2) the privilege is not abused. The essential
       elements of a conditionally privileged communication [are] good faith, an
       interest to be upheld, a statement limited in its scope to this purpose, a
       proper occasion, and publication in a proper manner and to proper parties
       only.

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Fountain, 730 S.E.2d at 310 (internal quotation marks and citation omitted). “Where the

occasion gives rise to a qualified privilege, there is a prima facie presumption to rebut the

inference of malice, and the burden is on the plaintiff to show actual malice or that the

scope of the privilege has been exceeded.” Swinton Creek Nursery v. Edisto Farm

Credit, ACA, 514 S.E.2d 126, 134 (S.C. 1999). “An abuse of the privilege occurs in one

of two situations: (1) a statement made in good faith that goes beyond the scope of what

is reasonable under the duties and interests involved or (2) a statement made in reckless

disregard of the victim’s rights.” Fountain, 730 S.E.2d at 310. “In general, the question

whether an occasion gives rise to a qualified or conditional privilege is one of law for the

court. However, the question whether the privilege has been abused is one for the jury.”

Swinton, 514 S.E.2d at 134 (citation omitted).

       The district court correctly determined that, based on the evidence at trial and

taking all legitimate inferences in Myers’ favor, a reasonable jury could have found

Dollar General liable for slander, either because the defamatory statement was not

privileged or because Dollar General abused the privilege. This case turns heavily on the

credibility of Tyler’s testimony that she made an honest mistake and bore no ill will

against Myers, which is a core jury question. Moreover, because of Tyler’s testimony

that she accused Myers of shoplifting largely on the basis of the November 6 video, the

jury’s conclusions about what the video did or did not show loom large. If the jury

concluded that the video belied Tyler’s claim that she honestly mistook Myers to be a

shoplifter, it could have also concluded that the only explanation for Tyler’s actions was


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either ill will or reckless disregard for Myers’ rights. Accordingly, Dollar General was

not entitled to judgment as a matter of law on liability.

       Dollar General also seeks to set aside the jury’s award of punitive damages,

arguing that the district court failed to properly instruct the jury that it needed to find by

clear and convincing evidence that Dollar General acted with actual malice, and that

Myers failed as a matter of law to meet this standard. See S.C. Code Ann. § 15-33-135

(2005). “We review both the decision to give (or not to give) a jury instruction and the

content of an instruction for abuse of discretion.” United States v. Savage, 885 F.3d 212,

222 (4th Cir. 2018) (ellipsis and internal quotation marks omitted). Although the district

court did not use the term “actual malice” when it instructed the jury on punitive

damages, its instruction on the substance of actual malice was substantially similar to the

instruction Dollar General requested. The court also instructed the jury that Myers must

prove her entitlement to punitive damages by clear and convincing evidence.

Accordingly, Dollar General cannot show that the district court abused its discretion in

instructing the jury on punitive damages.

       The district court also did not err in determining that a reasonable jury could find

that an award of punitive damages was appropriate in this case. As noted above, this case

turns largely on Tyler’s credibility and the jury’s conclusions about the November 6

video. While it may have been reasonable for the jury to decline to award punitive

damages, and while the clear and convincing standard is a higher burden of proof than

preponderance of the evidence, Dollar General has not shown on appeal that no

reasonable jury could find that Myers was entitled to punitive damages.

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      We therefore affirm the jury’s verdict and the district court’s judgment. We

dispense with oral argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would not aid the decisional

process.

                                                                          AFFIRMED




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