The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge
MEMORANDUM-DECISION and ORDER
The Plaintiffs, Kevin Trudeau and Alliance Publishing Group, Inc., make a Motion to Amend their Complaint to add another Plaintiff, Shop America (USA) L.L.C., another Defendant, Caroline Quartararo, Deputy Executive Director of the Consumer Protection Board ("CPB"), claims for monetary damages against Teresa Santiago, Caroline Quartararo, and John Sorensen in their individual capacities for acts undertaken in their official capacities, state law defamation claims against Santiago, Sorensen, and Quartararo, and in the alternative, pursuant to 42 U.S.C. § 1983, defamation claims against Santiago, Sorensen, and Quartararo in violation of the First and Fourteenth Amendments, and lastly, claims for tortious interference against Santiago, Sorensen, and Quartararo. Dkt. No. 59, Daniel J. Hurtado Decl., dated Oct. 5, 2005, Ex. 2, Proposed Am. Compl. at ¶¶ 2, 13, 16, 68-91, & 98-169. Plaintiffs also bring a Motion to Supplement their Complaint whereby they seek to add a cause of action against Santiago, Quartararo, and Sorensen, in their individual capacities, for violations of the First Amendment with regard to a letter that may have been sent to producers of the Oprah Winfrey Show. Dkt. Nos. 67, Mot. to Supplement & 69, Daniel J. Hurtado Decl., dated Jan. 31, 2006, Ex. 1, Proposed Supplemental Compl. Defendants oppose both Motions on the basis of futility. Dkt. Nos. 61, Defs.' Opp'n to Mot. to Am. at pp. 2, 11 & 16, & 70, Defs.' Opp'n to Mot. to Supplement at pp. 3-13.
For the reasons set forth below, Plaintiffs' Motion to Amend is granted in part and denied in part, and Plaintiffs' Motion to Supplement is granted in part and denied in part.
On August 11, 2005, a Complaint was filed in this matter based upon the allegation that the New York State Consumer Protection Board threatened to contact certain television stations in regards to Plaintiff Trudeau's book entitled "Natural Cures 'They' Don't Want You to Know About." Dkt. No. 1, Compl. at ¶¶ 3 & 6-9. That same day, in conjunction with the filing of the Complaint, a Motion for a Temporary Restraining Order ("TRO") was filed by Plaintiffs. Dkt. No. 2, TRO. Because of Plaintiffs' failure to comply with the Federal Rules of Civil Procedure and the Local Rules for the Northern District of New York, the application for a TRO was denied without prejudice. See Text Order, dated Aug. 15, 2005. Then on August 16, 2005, an Emergency Motion for TRO was filed. Dkt. No. 6. Defendants opposed such Motion. Dkt. Nos. 13-14. The Hearing was set for August 30, 2005, and Defendants were told to "refrain from contacting broadcasting stations regarding plaintiffs' subject advertisement and maintain the status quo until the hearing." Deadlines for Mot., dated Aug. 17, 2005. At the Hearing on August 30, 2005, the Honorable Gary L. Sharpe, United States District Judge, denied the Motion for TRO. Oral Order, dated Aug. 30, 2005.
On August 31, 2005, Plaintiffs filed a Motion for Preliminary Injunction and a Motion for TRO. Dkt. No. 17. That same day, Plaintiffs' application for the TRO was granted as follows:
1. The defendants are hereby enjoined from directly contacting any cable or broadcast station in order to induce such station to refuse to carry, or cease to carry, plaintiffs' advertisements for the Natural Cures book authored by Kevin Trudeau; and 2. The defendants are hereby enjoined from publishing or disseminating the letter attached as Exhibit A to the TRO application, or any letter substantially similar in content, as a means of indirectly contacting cable or broadcast stations (see "Dear cable station/broadcast station,"); however, 3. Nothing in the language of this TRO shall operate to preclude defendants from communicating with the public concerning the views expressed by the State Consumer Protection Board[.]
Dkt. No. 20, Order, dated Aug. 31, 2005 at pp. 2-3.
The Hearing for the application for a Preliminary Injunction was scheduled for September 6, 2005. Id. at p. 3. On September 1, 2005, Defendants filed a Cross Motion to Dismiss and Opposition to the Motion for Preliminary Injunction. Dkt. No. 25. On September 5, 2005, Plaintiffs filed an Emergency Motion for TRO to Restore the Status Quo. Dkt. No. 37. At the Hearing on September 6, 2005, Judge Sharpe granted Plaintiffs' Motion for a Preliminary Injunction consistent with the language in the initial order and denied the Defendants' Cross Motion to Dismiss. Oral Order, dated Sept. 6, 2005; see also Dkt. No. 42, Minute Entry, dated Sept. 6, 2005. The Hearing for the Emergency Motion for TRO to Restore the Status Quo was scheduled for September 27, 2005, and on that date, Judge Sharpe denied Plaintiffs' application. Dkt. No. 58, Minute Entry, dated Sept. 27, 2005.
On October 5, 2005, Plaintiffs filed their Motion for Leave to Amend and Supplement the Complaint. Dkt. Nos. 59 & 62. Defendants opposed said Motion. Dkt. No. 61. Plaintiffs also sought to bring a motion to supplement but since Defendants did not consent, a telephone conference was held by this Court whereby Plaintiffs were given permission to file the motion. Text Order, dated Jan. 31, 2006. Plaintiffs filed their Motion to Supplement the Complaint on January 31, 2006, Dkt. Nos. 67 & 68, and this Motion was opposed by Defendants as well, Dkt. Nos. 70 & 71.
The following facts are adduced from the Proposed Amended Complaint. In September 2004, Plaintiff Trudeau settled a lawsuit with the Federal Trade Commission ("FTC") whereby he agreed to produce and appear in infomericals to only promote books and other informational publications. Hurtado Decl., dated Oct. 5, 2005, Ex. 2, Proposed Am. Compl. at ¶ 21. Trudeau is an author and has appeared in several infomercials promoting his book on "Natural Cures" which is critical of government agencies and their health policies. Id. at ¶ 3. Before the infomercials aired, the FTC reviewed the manuscript and subsequent manuscripts of the "Natural Cures" book as well as videotapes of the infomercial. Id. at ¶ 22. There was no objection to the book or infomercial by the FTC. Id. at ¶¶ 5 & 22. The FTC stated that the infomercial is "an expression of opinion protected by the First Amendment." Id. at ¶ 5. These infomercials discuss the relationship between the FTC, the Food and Drug Administration ("FDA"), and the pharmaceutical industry along with Trudeau's views on disease and health by focusing on healthy lifestyles and natural remedies. Id. The infomercials are run on cable and broadcast networks. Id. at ¶ 4. To date, approximately 3.5 million copies of Trudeau's book have been sold and the infomercial has aired for ten months. Id. at ¶ 23.
On or about July 12, 2005, the New York State Consumer Protection Board contacted Plaintiffs about the "Natural Cures" book and stated it intended to issue a press release regarding the book. Id. at ¶¶ 6, 24, & 27. The CPB had received two consumer complaints about the book, thus initiating an inquiry into the book. Id. at ¶ 6. On August 5, 2005, the CPB sent a press release about the content of the book and also accused Trudeau of placing false endorsements on the cover and that Trudeau has been subjected to fraud and/or civil contempt charges with regards to "the Snorenz, Fat Trapper Plus and Exercise in a bottle." Id. at ¶¶ 7 & 27, Ex. B, Press Release. On August 6, 2005, an article was published by the Associated Press, due in part to the CPB's press release, entitled "Cure-all book leads to fraud charges, warnings, but infomercials still run." Id. at ¶ 31, Ex. C, Press Release by Associated Press. The Associated Press stated that the CPB sought to ask "cable stations to pull the ad[.]" Id. at ¶ 32.
On the afternoon of August 6, 2005, Plaintiffs' counsel emailed Defendant Sorensen seeking to confirm whether the CPB sought to have cable stations pull the infomercial. Id. at ¶ 33. Plaintiffs' counsel also inquired as to which stations had been contacted. Id. Defendant Sorensen's reply was that none had been contacted "yet." Id. Then on August 8, 2005, Plaintiffs' counsel wrote to Defendant Sorensen, once again, stating that should the CPB take the action contemplated, contacting the television stations, Plaintiffs' counsel would request an in-person meeting and an opportunity for judicial redress prior to any action the CPB would take. Id. at ¶ 34, Ex. D, Bradford Lt., dated Aug. 8, 2005. On August 10, 2005, after receiving no response, Plaintiffs' counsel emailed Sorensen stating that if they did not receive assurance that no contact with the stations would be made, then legal action would be pursued. Id. at ¶ 35, Ex. E, Bradford Email, dated Aug. 10, 2005. On the evening of August 10, a response was received from Sorensen which indicated that contact with the stations was not precluded; Plaintiffs' counsel returned an email advising Sorensen that if no commitments were made by 1:00 p.m. Eastern Standard Time by August 11, 2005, to refrain from further action without providing Plaintiffs with three days notice, Plaintiffs would seek redress from the courts. Id. at ¶ 36. Since no response was received, the Complaint was filed. Id. at ¶ 37.
On or about August 31, 2005, the day Plaintiffs filed their Motion for Preliminary Injunction and Motion for TRO, but prior to the Court's ruling on the TRO, the CPB sent approximately one hundred and two (102) letters to cable and broadcast stations in order to have the infomercials taken off the air. Id. at ¶¶ 8 & 45. The letter had been signed by Defendant Santiago. Id. The letter stated that a combined 431 complaints were received regarding the infomercials and book. Id. at ¶ 46. Approximately fifteen stations did take the infomercial off the air. Id. at ¶¶ 8 & 56. However, the CPB would not identify which stations the letters were sent. Id. at ¶ 48. Upon receiving a list of the stations as a result of a Motion to Compel that had been filed on September 13, 2005, Plaintiffs' counsel sent letters to each of the stations to prevent further damage. Id. at ¶¶ 52-55. Plaintiffs believe that had they not sent those letters, many more stations would have removed the infomercial which has caused the loss of book sales and loss of audiences from the infomercial. Id. at ¶ 56.
C. Motion to Supplement Facts
In addition to the facts set forth above, the following facts are disseminated from the Proposed Motion to Supplement. Plaintiff Trudeau pursued appearances on nationally televised programs, including but not limited to the Oprah Winfrey Show, to promote his book. Hurtado Decl., dated Jan. 31, 2006, Ex. 1, Proposed Supplemental Compl. at ¶ 172. On or about October 7, 2005, Defendant Sorensen, with the participation and/or consent of Defendants Santiago and Quartararo, sent a letter to producers of the Oprah Winfrey Show. Id., Ex. H, Oprah Lt. This letter advised the producers that Dr. My Haley, whose endorsement appears on the book, was concerned that Trudeau had been misrepresenting Dr. Haley's views on the book. Id. The letter also stated that the CPB was conducting an investigation into consumer complaints, false endorsements, and misleading advertisements of the book. Id. The letter did not mention that the preliminary injunction was granted nor that the CPB was enjoined from sending letters to stations in regards to the book. Id. at ¶ 175. Since then, Trudeau has not been able to secure an appearance on the Oprah Winfrey Show. Id. at ¶ 176.
A. Standard for Motion to Amend
FED. R. CIV. P. 15(a) states, in pertinent part, that leave to amend a pleading should be "freely given when justice so requires." Indeed, leave to amend should be denied only in the face of undue delay, bad faith, undue prejudice to the non-movant, futility of amendment, or where the movant has repeatedly failed to cure deficiencies in previous amendments. Foman v. Davis, 371 U.S. 178, 182 (1962); Kropelnicki v. Siegel, 290 F.3d 118, 130 (2d Cir. 2002) (citing Chill v. Gen. Elec. Co., 101 F.3d 263, 271-72 (2d Cir. 1996)). District courts are vested with broad discretion to grant a party leave to amend the pleadings. See Local 802, Assoc. Musicians of Greater New York v. Parker Meridien Hotel, 145 F.3d 85, 89 (2d Cir. 1998). "The party opposing a motion for leave to amend has the burden of establishing that granting such leave would be unduly prejudicial." New York v. Panex Indus., Inc., 1997 WL 128369, at *2 (W.D.N.Y. Mar. 14, 1997) (citing Saxholm AS v. Dynal, Inc., 938 F. Supp. 120, 123 (E.D.N.Y. 1996)); see also Lamont v. Frank Soup Bowl, 2000 WL 1877043, at *2 (S.D.N.Y. Dec. 27, 2000) (citations omitted). This requires the non-movant to "do more than simply claim to be prejudiced." Bryn Mawr Hosp. v. Coatesville Elec. Supply Co., 776 F. Supp. 181, 185 (E.D. Pa. 1991).
B. Standard for Motion to Supplement
FED. R. CIV. P. 15(d), states in part, that "[u]pon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." The standard to determine whether to grant leave to amend is similar to that exercised on a motion for leave to file a supplemental pleading. Absent "undue delay, bad faith, dilatory tactics, undue prejudice to the party to be served with the proposed pleading, or futility, the motion should be freely granted." Interpublic Group of Companies, Inc. v. Fratarcangelo, 2002 WL 31720355, at *1 (S.D.N.Y. Dec. 4, 2002) (quoting Foman v. Davis, 371 U.S. at 182).
C. Futile or Meritless Amendment
As stated above, the district court is required to grant leave to amend "freely . . . when justice so requires." FED. R. CIV. P. 15(a); Foman v. Davis, 371 U.S. at 182; Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990). However, the court has the discretion to deny a motion to amend especially on the grounds of futility. Nettis v. Levitt, 241 F.3d 186, 193 (2d Cir. 2001); see also Marchi v. BOCES, 173 F.3d 469, 478 (2d Cir. 1999) (citing Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993)); Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990).*fn1 The Second Circuit has stated where futility is raised as an objection to the motion to amend, and [w]here it appears that granting leave to amend is unlikely to be productive, it is not an abuse of discretion to deny leave to amend. See, e.g., Foman v. Davis, 371 U.S. at 182, 83 S.Ct. at 230 (denial not abuse of discretion where amendment would be futile); Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir.1990) ("where . . . there is no merit in the proposed amendments, leave to amend should be denied"); Billard v. Rockwell International Corp., 683 F.2d 51, 57 (2d Cir.1982) (denial not abuse of discretion where plaintiff had had "access to full discovery" in a related case). Ruffolo v. Oppenheimer & Co., 987 F.2d at 131.
As futility is an appropriate basis for denying leave to amend, such denial should be contemplated within the standards necessary to withstand a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6). Dougherty v. North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002) (citing Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)).
1. Monetary Damages in the Individual Capacity
Plaintiffs seek to add claims for monetary damages against Santiago, Sorensen, and Quartararo in their individual capacities for violations of Plaintiffs' First Amendment rights undertaken in their official capacities. Dkt. No. 59, Pls.' Mem. of Law on Mot. to Am. at pp. 10-11. Defendants claim such amendment would be futile as the Defendants are entitled to qualified immunity. Dkt. No. 61, Defs.' Mem. of Law on Mot. to Am. at pp. 3-11.
The Eleventh Amendment states "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI. The Eleventh Amendment bars a suit against the state in federal court unless the state consents to being sued or Congress legislatively overrides a state's immunity. Huang v. Johnson, 251 F.3d 65, 69 (2d Cir. 2000). The state's immunity extends to state officials "act[ing] on behalf of the state" when the state is the "real, substantial party in interest." Id. at 69-70 (citing Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddie, Inc., 506 U.S. 139, 142-47 (1993) & quoting Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984)). Moreover, the Eleventh Amendment will bar recovery for money damages in a suit "against state officials in their official capacities." Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003). However, the Eleventh Amendment will not extend to a suit against state officials in their individual capacities, even when the conduct complained of was carried out in accordance with state law. Hafer v. Melo, 502 U.S. 21, 25 (1991). Therefore, Defendants can be sued in their individual capacities in a claim for money damages.
Although Plaintiffs may sue Defendants in their individual capacities, Defendants raise the issue of qualified immunity as to the First and Fourteenth Amendment claims.*fn2 Defs.' Mem. of Law in Opp'n to Pls.' Mot. to Am. at pp. 3-11.
Qualified immunity will shield "government officials from liability for civil damages when their conduct does not violate 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" African Trade & Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 359 (2d Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Mollica v. Volker, 229 F.3d 366, 370 (2d Cir. 2000). This also applies "insofar as it was objectively reasonable for [the government officials] to believe that their acts did not violate those rights." Mollica, 229 F.3d at 370 (internal quotation marks and citations omitted); see also Anderson v. Creighton, 483 U.S. 635, 641 (1987). The objectively reasonable test will be met "'if [officials] of reasonable ...