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Davis v. Ross

January 28, 1985

GAIL DAVIS, PLAINTIFF-APPELLANT,
v.
DIANA ROSS, DEFENDANT-APPELLEE



Appeal from a judgment of the United States District Court for the Southern District of New York, Carter, Judge, granting appellee's motion, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss appellant's complaint alleging libel for failure to state a claim upon which relief may be granted. Reversed and remanded.

Author: Pierce

Before: TIMBERS, VAN GRAAFEILAND, and PIERCE, Circuit Judges.

PIERCE, Circuit Judge

Gail Davis appeals from a judgment entered on September 24, 1984, in the United States District Court for the Southern District of New York, Robert L. Carter, Judge. Davis, a former employee of appellee Diana Ross, alleges that the district court erred in dismissing her complaint after concluding, as a matter of law, that a letter circulated by Ross was not libelous. Because we find that the letter is reasonably susceptible of a reading which could be considered libelous, we reverse the decision of the district court and remand for further proceedings consistent with this opinion.

BACKGROUND

From approximately January 4, 1982 until November 5, 1982, appellant Gail Davis was employed as an executive assistant by Diana Ross, a well-known recording artist and motion picture actress. Davis alleges in her complaint that, at all times, she performed her services in a professional and competent manner and that Ross was aware of and appreciated the quality of her work. In early November, 1982, for reasons not made known by either party, Davis voluntarily resigned.

It is undisputed that on October 11, 1983, almost one year after Davis' resignation, Ross wrote the following letter: To Whom It May Concern

he following [seven] people are no longer in my employment:

Gail Davis If I let an employee go, it's because either their work or their personal habits are not acceptable to me. I do not recommend these people. In fact, if you hear from these people, and they use my name as a reference, I wish to be contacted.

Ross admits writing and disseminating this letter. Appellant's Brief at 2 n.* According to Davis, she never used or attempted to use Ross as a reference for new employment, nor has anyone, to appellant's knowledge, solicited information from Ross regarding appellant's professional competence or personal habits. Appellant's Brief at 6.

Davis sued Ross for libel, alleging that Ross' letter, read as a whole, falsely asserts: that Ross fired her, that she was fired because of inadequate work or personal habits, and that her inadequacies were of such magnitude to warrant Ross' specific recommendation that recipients of the letter should not hire her. Claiming damage to her professional reputation, appellant seeks recovery of $1 million in compensatory damages. In addition, based on her claim that in publishing the letter Ross acted with actual malice or with reckless disregard for the truth or falsity of the contents of the letter, appellant also seeks $1 million in punitive damages.

Both Ross and the district court admit that it would be reasonable to read the letter in question as falsely asserting appellant had been fired. However, the district court found that the letter could not reasonably and fairly be read by anyone as asserting that appellant "was incompetent to perform as an executive assistant or that her personal habits are such that she cannot function in a manner suited to an executive assistant," and the district court determined that the letter expresses only Ross' personal dissatisfaction with appellant, rather than a general lack of capacity or unfitness. Thus, the court concluded that, as a matter of law, the text of the letter was not libelous. Accordingly, the district court granted Ross' motion to dismiss appellant's complaint pursuant to Fed. R. Civ. P. 12(b)(6).

On appeal, Davis alleges that the letter unequivocally falsely disparages her professionally and thus constitutes libel per se as a matter of law. Alternatively, even if the letter is not sufficiently damaging to be considered libelous per se as a matter of law, appellant argues that because the letter is at least reasonably susceptible of such an interpretation, the ...


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