The opinion of the court was delivered by: Buchwald, District Judge.
Plaintiff Paul Jacobson, a former employee of Deutsche Bank,
A.G. ("DBAG"), brings this action for defamation against Rolf
Breuer, CEO of DBAG, Edson Mitchell,*fn1 his former
supervisor, and DBAG itself.*fn2 Defendants moved for summary
judgment, arguing that Mr. Jacobson is unable to prove the most
fundamental element of his case — that Mr. Breuer actually
uttered the allegedly defamatory statements at issue. Because we
find that the Federal Rules of Evidence mandate exclusion of the
single piece of evidence offered by plaintiff to satisfy his
burden on this element, we grant defendants' motion and dismiss
this suit with prejudice.
Deutsche Bank, a German corporation, is one of the world's
leading financial services providers, with nearly a hundred
thousand employees and millions of customers. See
http://www.db.com. From early 1996 to late 1997, Mr. Jacobson
was a Managing Director and Co-Head of the North American Fixed
Income Division of Deutsche Morgan Grenfell, Inc. ("DMG"), a
subsidiary of DBAG. On or about November 30, 1997, however, Mr.
Jacobson resigned from DMG.*fn3
Several months later, on or about March 3, 1998, Mr. Breuer
presented a speech to the Frankfurt Law Society in Frankfurt,
Germany, on the subject of the then-impending introduction of
the Euro. Following the speech, Mr. Breuer was approached by
members of the press, including Wolfgang Reuter, a reporter for
Bloomberg News Service ("Bloomberg"),*fn4 at which point Mr.
Reuter and Mr. Breuer conversed briefly in the German language
(the "March 3 interview"). The only other person known to be
present for this
exchange was Dierk Hartwig, DBAG's chief press spokesman.
The following day, at 12:48 p.m. Eastern Time, Bloomberg
issued a news report ("Article One") that attributes certain
quotations to Mr. Breuer ostensibly based on the March 3
interview. Compl. Ex. A. Article One states, in pertinent part:
. . . Deutsche Bank is cutting costs in its
North American investment banking business, Breuer
"We are dismissing people who haven't
performed," Breuer said, "there are losers in the
bank and we are getting rid of them."
Breuer admitted that the bank had a "very bad
fourth quarter in bonds trading out of New York,
and as a result we've dismissed Paul Jacobson."
Jacobson was the head of the North American
fixed-income sales business.*fn5
Id. The gravamen of Mr. Jacobson's Complaint is that Mr.
Breuer's statements, as quoted in Article One, defamed him by,
inter alia, falsely blaming him for bond trading
losses,*fn6 falsely stating that he was "dismissed" from
DBAG,*fn7 and implying that he is a "loser." Pl.'s Opp. at
13-14. Mr. Breuer, however, flatly denies making these
statements and, indeed, denies ever uttering Mr. Jacobson's name
during the March 3 interview. Def.'s Responses no. 32;
Transcript of September 24, 1999, Deposition of Rolf E. Breuer
("Breuer Dep.") at 59:4-12; 110:23-25. Mr. Hartwig likewise
denies that Mr. Breuer made the allegedly defamatory statements
at issue. Transcript of February 21, 2002, Deposition of Dierk
Hartwig ("Hartwig Dep.") at 9:21-25.
Accordingly, Mr. Jacobson has attempted to procure the
testimony of the only other person known to have been present at
the March 3 interview: Mr. Reuter himself. At this Court's
request, Mr. Reuter was deposed by a German judge on October 20,
2000, in Germany. See Letter of Request for International
Judicial Assistance Pursuant to the Hague Convention of 18 March
1970 on the Taking of Evidence in Civil or Commercial
Matters*fn8 dated June 5, 2000; Transcript of October 20,
2000, Deposition of Wolfgang Johannes Reuter ("Reuter Oct.
Dep."); Letter from James A. Batson dated November 1, 2000.
While Mr. Reuter answered a few background questions, he invoked
the journalist's privilege*fn9 in refusing to answer any
questions about the March 3 interview.*fn10
Recognizing the import of Mr. Reuter's testimony, Mr. Jacobson
promptly challenged this assertion of privilege in the Frankfurt
District Court. See Letter from James A. Batson dated December
20, 2000. On May 18, 2001, the Frankfurt District Court issued
an order upholding Mr. Reuter's assertion of privilege. See
Letter from James A. Batson dated June 14, 2001. Mr. Jacobson
unsuccessfully appealed the District Court's decision, and no
further appeals are permitted. See Letter from James A. Batson
dated December 14, 2001.
Defendants move for summary judgment pursuant to Fed.R.Civ.P.
56(c) on the ground that Mr. Jacobson has not proffered any
competent evidence that Mr. Breuer actually uttered the
allegedly defamatory statements at issue, an element of a prima
facie case for defamation. As defendants are clearly correct on
this point, we grant summary judgment*fn11 in their
favor.*fn12 Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ("Rule 56(c) mandates the
entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden
of proof at trial."); see also Anderson v. Liberty ...