McClaran

dissenting:

Because I believe that we should remand for a new trial on the issue of R/F’s direct liability, and because I believe Tennessee law does not require ill will or “actual malice” for inducement to breach a contract, I dissent in part.

I

There is no doubt that R/F’s direct liability was an issue at the outset of the case. The complaint clearly sets forth a claim for inducement to breach the contract against R/F, explicitly alleging:

The complaint, however, does not allege an alter ego claim against R/F. Nevertheless, the district court dismissed the alter ego claim against R/F at the close of McClaran’s evidence. None of the court’s statements thereafter explicitly indicates that the direct liability claim was dismissed as well. The court minutes of July 30, 1992, the ninth day of trial, state that the defendants’ motion for directed verdict was “denied except as to Alter Ego Claims.” There is no mention of direct liability. Thus, the claim that was before the court in the complaint was never explicitly dismissed. The record, even as quoted by the majority, is capable of the interpretation that the direct liability claim survived. Certainly McClaran thought so. As the…

Appellants/cross-appellees Plastic Industries, Inc., Rotoeast Plastic Products of Tennessee, Inc., and Rotoeast Plastic Products, Inc. appeal (1) the district court’s order, filed November 16, 1993, which denied appellants’ motions for judgment as a matter of law or, alternatively, for a new trial; (2) the Amended Judgment, filed December 1, 1993; and (3) the Second Amended Judgment, filed December 3, 1993. Appellee/eross-appellant Don McClaran cross appeals the district *352 court’s (1) remittitur on the jury award of damages; (2) finding that R/F is not liable for trademark infringement or for inducement to breach based on an alter ego theory; and (3) denial of attorney’s fees. The district court had jurisdiction over this action pursuant to 28 U.S.C. § 1332 (1994). We have jurisdiction under 28 U.S.C. § 1291 (1994). We affirm in part, reverse in part, and remand for further proceedings.

OVERVIEW

This action arises out of a contract dispute. In 1983, McClaran entered into a contract with PI, whereby McClaran helped Plastic Industries, Inc. (PI) create a mold to mass-produce the “P-51 Mustang” kayak, which McClaran designed, in exchange for royalty payments based on…