United States District Court, E.D. New York
For OfficeMax Incorporated: Sharon P. Margello, Esq., Jennifer A. Rygiel-Boyd, Esq., Of Counsel, Ogletree Deakins Nash Smoak & Steward PC, New York, NY.
For Richard Cinotti: James W. Weller, Esq., Kurt Michael Mullen, Esq., Matthew Thomas McLaughlin, Esq., Of Counsel, Nixon Peabody LLP, Jericho, NY.
MEMORANDUM OF DECISION AND ORDER
ARTHUR D. SPATT, United States District Judge.
On October 10, 2012, the Plaintiff Officemax Incorporated (" OMI" ) commenced this action against the Defendant Richard Cinotti (" Cinotti" ), asserting claims for violations of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and breach of his duty of loyalty. On November 15, 2012, Cinotti filed his Answer with several Counterclaims, including a claim for defamation. Presently before the Court is OMI's motion to dismiss Cinotti's defamation counterclaim pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 12(b)(6). For the reasons that follow, OMI's motion is granted.
I. FACTUAL BACKGROUND
Unless otherwise stated, the following facts are drawn from Cinotti's Answer/Counterclaim and construed in the light most favorable to Cinotti.
A. The Underlying Action
In March 2006, Cinotti began working for OMI as an Account Executive and continued his employment until March 2010. (Compl., ¶ 5; Answer, ¶ 5.) According to OMI, as an Account Executive, Cinotti " develop[ed] new business with corporate and organizational customers by soliciting and selling office supplies and related services to customers, by establishing customer trust and goodwill, and by maintain relationships with key procurement and purchasing managers in order to maintain and develop [OMI's] customer relationships." (Compl., ¶ 6.) He was then rehired in July 2011 and was employed by OMI until the close of business on June 22, 2012. (Answer, ¶ 5.) Cinotti's duties included finding new customers for OMI. (Id. at ¶ 6.) During his employment, Cinotti was issued a laptop to use for work-related matters. (Id. at ¶ 7.)
OMI claims that Cinotti began working for W.B. Mason Co., Inc. (" W.B. Mason" ) on June 22, 2012 and, on the same day, uploaded files from his OMI-issued laptop to " yahoo mail." (Compl., ¶ 11.) OMI further claims that on June 25, 2012, Cinotti connected a flash drive to the laptop and erased his laptop's Internet history. (Id. at ¶ 12.) Finally, OMI alleges that on June 26, 2012, Cinotti again accessed " yahoo mail" from his laptop, printed something from his laptop, erased his laptop's Internet history and shipped his laptop
back to OMI. (Id. at ¶ 13-14.) According to OMI, as of June 22, 2012, Cinotti was not authorized to access the contents of the OMI issued laptop. (Id. at ¶ 15.)
Cinotti denies most of OMI's allegations, including the claim that June 22, 2012 was his first day of employment with W.B. Mason. (Answer, ¶ 11.) However, Cinotti admits that he connected a flash drive to his OMI-issued laptop at some point in time after his last day of employment with OMI and that at some further point in time he ...