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Difolco v. MSNBC Cable L.L.C.

March 30, 2007


The opinion of the court was delivered by: Loretta A. Preska, U.S.D.J.


Claudia DiFolco,("Plaintiff"), brought the above-captioned action seeking back wages, specific performance, damages, including punitive damages, and costs against Defendants MSNBC Cable L.L.C. ("MSNBC"), Rick Kaplan ("Kaplan"), Scott Leon ("Leon"), and Cassandra Brownstein ("Brownstein"). Plaintiff moves to transfer venue to the District of New Jersey, and Defendants move to dismiss the entire suit for failure to state a claim. Defendants Kaplan and Brownstein move to have the claims against them dismissed for lack of personal jurisdiction. Defendant Brownstein moves to have the claims against her dismissed for insufficient service of process. For the following reasons, the motion to dismiss all claims against Brownstein is granted, the motion to dismiss claims against MSNBC, Kaplan, and Leon is granted in part and denied in part, and the motion to transfer venue is denied.


Plaintiff was employed as an anchor, correspondent, and reporter with MSNBC. (Compl. ¶ 4).*fn2 Rick Kaplan was President, Scott Leon was an Executive Producer, and Cassandra Brownstein was a Producer at MSNBC, all of whom were authorized to act on behalf of the company. (Compl. ¶¶ 6-8). Plaintiff is a television entertainment reporter with thirteen years of experience. (Compl. ¶¶ 10-13). On December 2, 2004, MSNBC entered into a two-year contract with Plaintiff (the "Contract."). (Compl. ¶¶ 16, 17). Plaintiff alleges MSNBC breached the terms of this contract by failing to pay additional compensation for Plaintiff's occasional hosting or special appearances on MSNBC programs. (Compl. ¶¶ 19, 20). Plaintiff alleges she was subject to "repeated mistreatment and abuse that created intolerable working conditions." (Compl. ¶ 23). Plaintiff's allegations include: the cancellation of "shoots and on-air stories" (Compl. ¶ 23), false communications by Leon to MSNBC executives complaining of Plaintiff's unavailability to work (Compl. ¶ 28), and misrepresentations by Brownstein regarding the urgency of particular work projects (Compl. ¶ 34). Plaintiff alleges that when she sought Leon's help in addressing Brownstein's harassment, Leon responded by canceling Plaintiff's shoots. (Compl. ¶ 35).

On August 23, 2005, Plaintiff sent Kaplan an e-mail (the "8/23 e-mail") to arrange a meeting to "discuss [her] exit from the shows." (Compl. ¶¶ 37, 38). On August 24, 2005, Plaintiff was informed that she would no longer be covering "Fashion Week." (Compl. ¶ 41). Immediately upon learning this, Plaintiff sent an e-mail to Kaplan, stating that "[she] did not resign yesterday." (Compl. ¶ 43). Shortly thereafter, MSNBC sent Plaintiff a proposed separation and release agreement through her agent, claiming that she had resigned. (Compl. ¶ 45). Plaintiff alleges that MSNBC terminated Plaintiff's employment and failed to pay wages due, in violation of the terms of their contract and the wage payment provisions of New York Labor Law. (Compl. ¶¶ 46, 47).

Plaintiff alleges the Defendants caused defamatory statements to be published on the websites TVSpy, Inside Cable, and NewsBlues. (Compl. ¶¶ 51-53). Plaintiff asserts that this conduct was "a campaign to disparage [her] professional reputation, industry standing, and ability to obtain future employment by falsely claiming . . . [she] had resigned, broken her contract, and/or deserted her co-anchor." (Compl. ¶ 48). Plaintiff claims "[the] defamatory statements could only have originated from MSNBC officials given the confidential nature (up to that point) of her contract dispute with Defendant MSNBC." (Compl. ¶ 49).

Plaintiff asserts that MSNBC has made inconsistent representations to her regarding the status of her contract, including that: she had resigned, the company was terminating her employment, and that she was employed but on an unpaid leave of absence, (Compl. ¶ 60), and that the uncertainty of her status has undermined her ability to pursue new employment, jeopardized her immigration status, forced her to cancel her planned honeymoon, and disrupted her emotional well being, (Compl. ¶ 61).


1. Legal Standard for Dismissal

It is well-settled that "[a] case should not be dismissed unless the court is satisfied that the complaint cannot state any set of facts that would entitle the plaintiff to relief." Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2002) (citing Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001)). For purposes of a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts the factual allegations made in the Complaint as true and draws all inferences in favor of the non-moving party. See Karedes v. Ackerly Group, Inc., 423 F.3d 107, 113 (2d Cir. 2005). The Court, however, need not give "'credence to plaintiff's conclusory allegations'" or legal conclusions offered as pleadings. Cantor Fitzgerald v. Lutnick, 313 F.3d 704, 709 (2d Cir. 2002) (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001)); Van Carpals v. S.S. Am. Harvester, 297 F.2d 9, 11 n.1 (2d Cir. 1961) (Friendly, J.) ("[I]n federal pleading there is no need to plead legal conclusions; these are for the court to apply."). The Court may consider materials of which the plaintiff had notice and relied upon in framing his complaint, as well as materials of which judicial notice may be taken. See Fed. R. Evid. 201; Kavowras v. N.Y. Times Co., 328 F.3d 50, 57 (2d Cir. 2003); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991). In addition, the Court may consider materials outside the record if certain conditions for those materials are met including: (1) it is clear on the record that no dispute exists regarding the authenticity or accuracy of the document; and (2) it is clear that there exists no material disputed issues of fact regarding the relevance of the document. Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006).

"On a Fed. R. Civ. P. 12(b)(2) motion to dismiss for lack of personal jurisdiction, plaintiff bears the burden of showing that the court has jurisdiction over the defendant. Prior to discovery, a plaintiff may defeat a motion to dismiss based on legally sufficient allegations of jurisdiction." In re Magnetic Audiotape Antitrust Litigation 333 F.3d 204, 206 (2d Cir. 2003) (internal citations omitted). "Where, as here, a court relies on pleadings and affidavits, rather than conducting a full-blown evidentiary hearing, the plaintiff need only make a prima facie showing that the court possesses jurisdiction over the defendant." DiStefano v. Carozzi North America Inc., 236 F.3d 81, 84 (2d Cir. 2001) (internal quotations omitted). Further, a court must credit Plaintiff's averments of jurisdictional facts as true. See Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990).

2. Breach of Contract

Plaintiff claims MSNBC breached its Contract with her

through "conduct leading up to and its ultimate wrongful termination of Plaintiff's employment." (Pl. Compl. ¶ 64). Plaintiff asserts that her 9/23 e-mail to Kaplan seeking to "discuss [her] exit from the shows" was misinterpreted as a resignation. (Pl. Compl. ¶¶ 37-46). Defendants insist the 9/23 e-mail was a repudiation, relieving them from further obligation under the Contract. (MSNBC Mem. at 9).*fn3

"A repudiation can be . . . 'a statement by the obligor to the obligee indicating that the obligor will commit a breach that would of itself give the obligee a claim for damages for total breach.'" Norcan Power Partners v. Niagra Mohawk Power Corp., 92 N.Y.2d. 458, 463 (N.Y. 1998) (quoting RESTATEMENT (SECOND) OF CONTRACTS § 250 (1981); see also Computer Possibilities Unlimited, Inc. v. Mobil Oil Corp., 301 A.D.2d 70, 77 (N.Y. App. Div. 2002) (same). "In order to constitute a repudiation, a party's language must be sufficiently positive to be reasonably interpreted to mean that the party will not or cannot perform." RESTATEMENT (SECOND) OF CONTRACTS § 250 cmt. b. (1981). "[Repudiation] relieves the non-repudiating party of its obligation of future performance." American List Corp. v. U.S. News and World Report, Inc., 75 N.Y.2d 38, 44 (N.Y. 1989). "It is axiomatic that it is the responsibility of the courts to interpret written instruments." McDermott v. Great American Alliance Inc. Co., No. 02 Civ. 607, 2005 WL 2437020, at *2 (N.D.N.Y. Sept. 30, 2005) (citing Hartford Acc. And Indem. Co. v. Wesolowski, 305 N.E.2d 907, 909 (N.Y. 1973)).

Plaintiff's Contract is unambiguous in its requirement that she be at MSNBC's disposal for a two-year period. (The Contract, Ex. A to ...

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