The opinion of the court was delivered by: P. Kevin Castel, District Judge
Plaintiff Steven Dworin is a former President of defendant Deutsch Inc., an advertising agency (the "Agency"). In February 1994, plaintiff entered into an agreement with the Agency governing the terms and conditions of his separation of employment and containing a provision that prohibits the Agency and certain of its employees from disparaging him (the "Separation Agreement"). Plaintiff alleges that defendants, the Agency and Donald "Donny" Deutsch ("Deutsch"), Chairman of the Agency, defamed him and breached the Separation Agreement, and that Deutsch tortiously interfered with plaintiff's contractual relations. Specifically, plaintiff asserts that he was defamed (and the Separation Agreement breached) by statements contained in the book Often Wrong, Never in Doubt, Unleash the Business Rebel Within, which was written by Deutsch in collaboration with employees of the Agency, and by defendants' comments in an article published in the New York Post.
Dworin filed his original complaint in this action on April 3, 2006 in the United States District Court for the District of New Jersey. The case was transferred to this Court on November 16, 2006. Subject matter jurisdiction exists by reason of diversity of citizenship and an amount in controversy in excess of the jurisdictional threshold. 28 U.S.C. § 1332. The amended complaint (the "Amended Complaint" or "A.C."), which was filed on February 1, 2007, asserts five state common law claims: first, libel and libel per se; second, slander and slander per se; third, breach of contract; fourth, rescission of contract; and fifth, which is asserted only against Deutsch, tortious interference with contractual relations.
The defendants have moved to dismiss the defamation claims for failure to state a claim upon which relief can be granted. Rule 12(b)(6), Fed. R. Civ. P. Deutsch also has moved to dismiss the breach of contract and rescission claims. Accepting all allegations of the Amended Complaint as true and drawing all reasonable inferences in favor of the non-movant, I conclude that plaintiff has failed to state a claim for defamation against the defendants. None of the assertedly defamatory statements meet the standards under New York law for a claim in defamation. New York law provides protection-absolute immunity-to statements, which, viewed in their context, are statements of opinion. Those statements that, viewed in a light most favorable to plaintiff, could be viewed as false statements of fact or "mixed opinion" nevertheless do not support a defamation claim under relevant principles of New York law. I further conclude that, because Deutsch is not a party to the Separation Agreement, the third and fourth claims for breach of contract and rescission do not state claims against him.
The following facts are drawn from plaintiff's Amended Complaint, and, as noted, are taken to be true for purposes of these motions.
On or about February 16, 1994, plaintiff resigned from his position as President of Deutsch/Dworin Inc., which is now Deutsch Inc., where he was also an equity owner. (A.C. ¶¶ 9-10.) Plaintiff entered into a written Separation Agreement, which was executed by plaintiff and Deutsch/Dworin Inc., by Deutsch, in his capacity as Executive Vice-President. (Id. ¶ 10, Ex. D.) The Separation Agreement provides, among other things, that "[n]either the company nor its officers or directors shall make any public or private statements about Steve Dworin which are derogatory." (Id. ¶ 11.) Plaintiff asserts that the foregoing provision was considered by the parties to be material and is enforceable in perpetuity. (Id. ¶ 12, 15-16.)
Approximately one decade later, Deutsch, in collaboration with managing partners, senior executives and staff of the Agency, wrote a book about the advertising business entitled Often Wrong, Never in Doubt, Unleash the Business Rebel Within (the "Book"), which was released to the public on or about October 1, 2005. (Id. ¶ 15, 17.) The Book contains a chapter titled The Failure-Dichotomy Principle, in which Deutsch made false statements about plaintiff. (Id. ¶ 7.) The statements in the Book which plaintiff alleges are derogatory and defamatory are set forth in haec verba in paragraph 20 of the Amended Complaint. Plaintiff alleges that the statements "describe events that never occurred or else distort, with falsehoods, certain events that did occur." (Id. ¶ 20.) He claims that the statements, taken in context, portray him as a "'mercurial' self-involved businessman, with an agenda not in accord with the best interests of his company, who was primarily an administrator who alienated employees." (Id. ¶ 21.) He also alleges that the statements portray him "as having been forced to 'resign' pursuant to Deutsch's desire to 'can him' in an indirect manner" (id. ¶ 22), when the truth is that he left the agency because of other reasons, including Deutsch's "unethical and dishonest behavior" (id. ¶ 23).
Motion to Dismiss Standard
Rule 8(a)(2), Fed. R. Civ. P., requires only "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1964 (2007) (internal quotations and citation omitted). When a defendant tests the sufficiency of a complaint by a motion under Rule 12(b)(6), "[t]o survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 127 S.Ct. at 1965). The complaint is measured against a "flexible plausibility standard," which obligates the "pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). This "does not require heightened fact pleading of specifics," In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007); see Erickson v. Pardus, __ U.S. __, 127 S.Ct. 2197, 2200 (2007); however, it does "require enough facts to 'nudge [plaintiff's] claims across the line from conceivable to plausible.'" Elevator Antitrust Litig., 502 F.3d at 50 (quoting Twombly, 127 S.Ct. at 1974) (alteration in Elevator Antitrust Litig.).
On a motion to dismiss, a court must accept the allegations of the complaint as true and draw all reasonable inferences in the non-movant's favor. See Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 71 (2d Cir. 1995) (per curiam). Rule 12(b)(6) motions are limited to the facts alleged in the complaint and must be converted into a motion for summary judgment if the court considers materials outside the pleadings. Rule 12(b)(6). However, the court may, without converting the motion into a motion for summary judgment, consider documents relied on or incorporated by reference in the complaint. Int'l Audiotext Network, Inc., 62 F.3d at 72. "Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (internal quotations and citation omitted); see also Levy v. Southbrook Int'l Invs., Ltd., 263 F.3d 10, 13 n. 3 (2d. Cir. 2001). In considering the motion to dismiss under Rule 12(b)(6), I have considered the Book, the New York Post article, and the Separation Agreement because plaintiff has relied upon them to such an extent that they are integral to the Amended Complaint.
I. Defendants' motions are granted as to plaintiff's defamation Claims
Defendants argue that the statements set forth in the Amended Complaint are not defamatory because they are protected by the absolute privilege afforded to statements of opinion, and that plaintiff's slander and libel claims must therefore be dismissed. In the alternative, the defendants contend that any facts contained in the book, even if false, are not defamatory.
Ordinarily, in order to state a claim for defamation, the plaintiff must plead special harm or special damages, meaning "'the loss of something having economic or pecuniary value.'" Liberman v. Gelstein, 80 N.Y.2d 429, 434-35 (1992) (quoting Restatement §575, comment b). However, the plaintiff need not allege special damages if the statement is defamatory per se, because legal injury is presumed or implied from the bare fact of the publication itself. Id. at 435. Here, plaintiff has not pled special damages, but he has alleged injury to his professional reputation, which, if the allegation is otherwise sufficient, may state a claim for defamation per se. See Clemente v. Impastato, 274 A.D.2d 771, 773 (3d Dep't 2000).
To state a defamation claim, New York law requires that a plaintiff plead (1) a false statement of fact, (2) regarding the plaintiff, (3) made to a third party by the defendant, and (4) injury to the plaintiff. Boyd v. Nationwide Mut. Ins. Co., 208 F.3d 406, 409 (2d Cir. 2000). On a motion to dismiss, the court must decide whether the statements alleged to have caused plaintiff an injury are "reasonably susceptible" to the defamatory meaning imputed to them. See Kelly v. Schmidberger, 806 F.2d 44, 46 (2d Cir. 1986). A statement is "reasonably susceptible" of a defamatory meaning when it "'tend[s] to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number in the community.'" Levin v. McPhee, 119 F.3d 189, 195 (2d Cir. 1997) (quoting Tracy v. Newsday, Inc., 5 N.Y.2d 134, 136 (1959)).
Unlike the United States Constitution, the New York Constitution provides absolute immunity from defamation claims for statements of pure opinion. Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 178 (2d Cir. 2000); see also, Steinhilber v. Alphonse, 68 N.Y.2d 283, 289 (1986). If, however, the facts upon which an opinion is based are set forth for the reader, and the plaintiff alleges that both the opinion and the facts upon which it is based are false, the opinion and facts may form the basis of a defamation claim. Jewell v. NYP Holdings, Inc., 23 F. Supp. 2d 348, 377 (S.D.N.Y. 1998) (citing Silsdorf v. Levine, 59 N.Y.2d 8, 10 & 14-15 (1983)); see also, Coliniatis v. Dimas, 848 F. Supp. 462, 469 (S.D.N.Y. 1994). In addition, a statement of opinion which implies that it is based on facts that support the opinion, which are unknown to persons reading or hearing it, is an actionable ...