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PROTIC v. DENGLER

April 28, 1999

MISHO A. PROTIC, PLAINTIFF,
v.
KENNETH DENGLER, DEFENDANT.



The opinion of the court was delivered by: Kaplan, District Judge.

MEMORANDUM OPINION (CORRECTED)

Defendant moves to dismiss the complaint, which alleges claims for tortious interference with prospective employment opportunities, libel and slander. Plaintiff cross-moves for leave to amend. The only substantial argument raised in opposition to the cross-motion is that the amendment would be futile because it would not cure the alleged deficiencies of the original complaint. Accordingly, the Court will consider the sufficiency of the amended complaint.

Facts

The plaintiff, Misho Protic, was employed by Donaldson, Lufkin & Jenrette, Inc. ("DLJ") as a securities trader for a period of less than four months. Defendant Kenneth Dengler was his supervisor. At a holiday party on December 11, 1997, the day on which Protic's employment at DLJ ended, Dengler allegedly prepared and wore a sign saying "I HIRED MISHO." He also allegedly disparaged Protic by stating that Protic deserved a negative job reference and that it had been a mistake to hire him. Subsequently, Dengler allegedly made unspecified disparaging comments about Protic, "such as" that Protic's work performance "was unsatisfactory" and that plaintiff was "not competent," to a number of securities firms to which plaintiff unsuccessfully applied for employment. Protic claims that he has been unable to obtain employment in the securities industry since he left DLJ.

Discussion

Tortious Interference With Prospective Economic Advantage

Protic's first claim for relief is based on the theory that Dengler's alleged actions constituted tortious interference with prospective economic relations, i.e., Protic's allegedly prospective employment relationships with other securities industry employers to whom Dengler allegedly disparaged him.

In order to state a legally sufficient claim on such a theory, the "plaintiff must allege that `defendants interfered with business or economic relations between the plaintiff and a third party, either (1) With the sole purpose of harming the plaintiff; or (2) by dishonest, unfair or improper means.'"*fn1

Although the proposed amended complaint alleges that certain of Dengler's alleged actions — his alleged statements to prospective employers that Protic was not competent — were taken "with the purpose of harming plaintiff,"*fn2 it makes no such allegation with respect to the others. Moreover, the allegation falls short of asserting that even these statements were made with the sole purpose of harming plaintiff. Dengler might have made such statements to other prospective employers for reasons other than the infliction of harm on Protic — for example, a desire to promote candid responses to DLJ inquiries about prospective employees who had worked elsewhere in the industry — so the omission is of no mean significance. As the presence of any other motive, even coupled with an intention to inflict harm, is fatal to a claim such as this,*fn3 the first claim for relief in both the complaint and the amended complaint fails to state a claim upon which relief may be granted.

Nor has plaintiff alleged that Dengler acted dishonestly or used unfair or improper means. The plaintiff alleges no more than that (i) Dengler expressed opinions of his performance with which plaintiff and perhaps others disagree, and (ii) did so at a party in a manner lacking in taste. But there is no suggestion in this claim for relief that Dengler did not in fact entertain the view of plaintiff that he expressed.*fn4 Hence, there was no element of deceit in his behavior. While his manners well might be questioned, assuming that the allegations of the complaint are true, bad manners are not actionable on this theory. Moreover, there is no reason to stretch the concept of dishonest, unfair or improper means in this case, as the gravamen of the claim — defamation — is amply covered by other theories of recovery.

Finally, the Court holds below that the allegedly slanderous statements of which Protic complains were statements of opinion which cannot give rise to liability for defamation in light of the State constitutional protection afforded such statements. For precisely the same reasons, those statements cannot be used to ground a claim for tortious interference with prospective economic advantage.*fn5

The Libel Claims

A writing which is libelous per se is one "whose defamatory meaning is apparent on the face of the communication" and is actionable without proof of special damages.*fn6 If the statement is not libelous on its face, but is susceptible of a defamatory meaning in light of extrinsic facts known by the recipient, it nevertheless is actionable, but perhaps only with proof of special damages.*fn7 The distinction might be illustrated, for example, by an ordinary wedding announcement in a newspaper, ordinarily an occasion for celebration, but quite defamatory if the reported bride and groom each were married to other mates.*fn8 This latter ...


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