DiFolco v. MSNBC Cable L.L.C. - 831 F. Supp. 2d 634 (S.D.N.Y. 2011)

Rule:

Under New York law, "[a] claim for defamation requires plaintiff's to plead (1) a defamatory statement of fact; (2) that is false; (3) published to a third party; (4) 'of and concerning' the plaintiff; (5) made with the applicable level of fault on the part of the speaker; (6) either causing special harm or constituting slander per se; and (7) not protected by privilege."

Facts:

Plaintiff Claudia DiFolco ("Ms. DiFolco"), a former correspondent, reporter, and television host for MSNBC Cable L.L.C. ("MSNBC"), filed a complaint against defendants MSNBC, MSNBC's former President Rick Kaplan ("Mr. Kaplan"), and former MSNBC Executive Producer Scott Leon ("Mr. Leon") (collectively, "Defendants"), alleging that Defendants breached an employment agreement between Ms. DiFolco and MSNBC. Ms. DiFolco also alleges that Defendants were responsible for publishing three alleged defamatory statements concerning Ms. DiFolco posted on three separate websites between August 31, 2005 and September 4, 2005. Defendants contend that Ms. DiFolco repudiated the employment agreement and that they were not responsible for making or publishing the alleged defamatory statements. Defendants now move for summary judgment as to Ms. DiFolco’s breach of contract and defamation claims pursuant to Federal Rule of Civil Procedure 56. 

Issue:

Were Ms. DiFolco’s defamation claims meritorious?

Answer:

No.

Conclusion:

Ultimately, as the Court of Appeals held, whether Ms. DiFolco communicated her intent to resign and whether Mr. Kaplan's interpretation of Ms. DiFolco's communications as a resignation were reasonable are questions of fact for a jury to decide. Accordingly, Defendants' motion for summary judgment as to the breach of contract claim is denied. Because the Court concluded that the breach of contract claim should go to a jury, the issue of whether to limit damages will depend, inter alia, on the jury's determinations as to Ms. DiFolco’s purported repudiation, Defendants' purported breach of the Contract, and the timing of any such breach. Accordingly, Defendants' motion for partial summary judgment as to damages is denied as premature. While Ms. DiFolco’s conclusory allegations may raise an inference of defamation by some unidentified persons, they are insufficient to defeat Defendants' motion for summary judgment. Ms. DiFolco’s "beliefs" are insufficient to establish a material issue of fact in the face of Defendants' direct testimony that they did not make the statements. Accordingly, Defendants' motion for summary judgment as to Ms. DiFolco’s defamation claims is granted.