without publication. Church of Scientology, Inc. v. Green, 354 F. Supp. 800, 803 (S.D.N.Y. 1973). The general rule is that, if the person claiming to be defamed communicates the allegedly defamatory statements to another, no liability for any resulting damage is incurred by the originator of the statements. See J. Crew Group, Inc. v. Griffin, 1990 U.S. Dist. LEXIS 15835 (S.D.N.Y. 1990) (citing New York cases). Thus, there is ordinarily "no publication if the defamatory statement is exposed to a third party by the person claiming to be defamed." Burger v. Health Ins. Plan, 684 F. Supp. 46, 52 (S.D.N.Y. 1988).
Mendoza has cited a number of cases from other jurisdictions which have adopted the "self-publication" exception which provides that under certain circumstances the originator of an allegedly defamatory statement may be held liable for the plaintiff's own republication of the statement. See, e.g., McKinney v. County of Santa Clara, 110 Cal. App. 3d 787, 168 Cal. Rptr. 89 (1st Dist. 1980); Colonial Stores, Inc. v. Barrett, 73 Ga. App. 839, 38 S.E.2d 306 (1946); Grist v. Upjohn Co., 16 Mich. App. 452, 168 N.W.2d 389 (1969); Lewis v. The Equitable Life Assurance Soc. of the United States, 389 N.W.2d 876 (Minn. 1986). However, he has not cited, and independent research has failed to uncover, any New York State court case recognizing this exception. Indeed, faced with this question, several courts within this district have avoided deciding "this important matter of state public policy" in the absence of an initial state court consideration. See J. Crew, slip op. at 12 (unnecessary to decide question); Burger, 684 F. Supp. at 52 ("A federal court should not decide, in the first instance, this important matter of state policy."); Mandelblatt v. Perelman, 683 F. Supp. 379, 386 (S.D.N.Y. 1988) (unnecessary to decide which version of "self-publication" rule accords with New York law).
As held in Burger, 684 F. Supp. at 52, it would be inappropriate to decide whether a cause of action for "self-libel" exists under New York law in the absence of any indication by New York's courts on this matter. Moreover, even if the court were to accept Mendoza's invitation to adopt a rule similar to that applied in states that do recognize this cause of action, the Complaint would fail to state a claim upon which relief can be granted because the Complaint on its face fails to allege a defamatory statement.
First, the statement that Mendoza was terminated from his position at Lintas is true and is therefore not defamatory. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 489, 43 L. Ed. 2d 328, 95 S. Ct. 1029 (1975) (true statement cannot be defamatory). Nowhere in the Complaint does Mendoza allege that he has been forced to disclose to potential employers that he was terminated because of his performance. See Comp. P17 ("plaintiff is forced to state to prospective employers that he was terminated . . ."). In fact, the Complaint actually negates the inference that such a disclosure would even be necessary in the interest of honesty. See id. P15 ("In or about August 1989, the plaintiff was unilaterally terminated from his job. There was no reason given for his termination." (emphasis added)).
Second, even if Mendoza were forced to disclose to employers that he was terminated because of his performance, the findings of the SDHR preclude a finding that such a statement is defamatory under the doctrine of collateral estoppel. Compare Ryan, 62 N.Y.2d at 503 (cause of action in slander based on defendant's remark that plaintiff "stole something" from his workplace collaterally estopped be administrative finding that plaintiff was seen "removing company property from the company premises" and that taking was "without authorization").
Based on the foregoing analysis, Lintas's motion for summary judgment dismissing Counts III and V of the Complaint is granted as is its motion to dismiss Count II for failure to state a claim upon which relief can be granted.
It is so ordered.
New York, N. Y., August 11, 1992
ROBERT W. SWEET