DiFolco v. MSNBC Cable L.L.C.
2011 U.S. Dist. LEXIS 131506, 831 F. Supp. 2d 634, 2011 WL 5519824 (2011)
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Rule of Law:
An anticipatory repudiation of a contract must be a 'positive and unequivocal' statement of intent not to perform; ambiguous communications are insufficient for summary judgment and present a question of fact for a jury. Defamation claims require concrete evidence linking defendants to the publication of alleged defamatory statements, mere speculation is insufficient. Furthermore, the 'single instance rule' bars defamation per se claims for a single professional error without special damages, and online statements identified as opinion by their context are generally not actionable.
Facts:
- On December 2, 2004, Claudia DiFolco entered into a two-year employment contract with MSNBC, covering January 2005 to January 2007, primarily as a Los Angeles-based correspondent.
- In August 2005, DiFolco, unhappy with her work, emailed MSNBC President Rick Kaplan to 'discuss my exit from the shows' and give 'ample time to replace me,' while also mentioning plans to work in New Jersey the following week.
- The next day, August 24, 2005, DiFolco sent a second email to Kaplan, clarifying that she 'did not resign yesterday' but was 'merely giving you significant notice of my intention' not to return for the second year.
- On August 28, 2005, Kaplan internally instructed Executive Producer Scott Leon to remove DiFolco from payroll, believing she had resigned, and responded to DiFolco's August 24 email stating his 'complete impression is that you have resigned.'
- On August 31 and September 1, 2005, the websites 'Inside Cable News' and 'News Blues for TV News Insiders' reported that DiFolco had 'quit MSNBC in the middle of her contract.'
- On September 4, 2005, an anonymous poster using the pen name 'Jill Journalist' on TVSpy.com posted critical comments about DiFolco's professional conduct and work ethic, accusing her of ignoring directions, pouting, and not being a team player.
- On November 14, 2005, MSNBC formally sent DiFolco a letter exercising its contractual right to terminate her employment at the end of the first year (first cycle).
Procedural Posture:
- Plaintiff Claudia DiFolco filed a complaint against defendants MSNBC, Rick Kaplan, and Scott Leon, in the United States District Court for the Southern District of New York, alleging breach of an employment agreement and defamation.
- Claims against Ms. Brownstein, originally a defendant, were dismissed due to Plaintiff's failure to serve her properly.
- The Second Circuit Court of Appeals previously held in DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 112-13 (2d Cir.2010) that whether Plaintiff communicated intent to resign and whether Mr. Kaplan’s interpretation was reasonable are questions of fact for a jury, effectively remanding the breach of contract claim.
- Defendants moved for summary judgment as to Plaintiff's breach of contract and defamation claims in the District Court.
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Issue:
1. Does an employee's email communications expressing a desire to discuss an 'exit' from employment, followed by a clarification that she 'did not resign,' constitute a 'positive and unequivocal' anticipatory repudiation of an employment contract as a matter of law, or is it a question of fact for a jury? 2. Can a plaintiff survive summary judgment on defamation claims solely based on 'common sense,' 'imagination,' and 'belief' that defendants published anonymous online statements, without direct or sufficient circumstantial evidence linking defendants to the publications? 3. Are online reports that an employee 'quit in the middle of her contract' actionable as defamation per se under New York law, or are they barred by the single instance rule, requiring proof of special damages? 4. Do anonymous online criticisms of an employee's professional conduct and work ethic, posted in a 'Watercooler' section, constitute actionable defamation of fact, or are they non-actionable statements of opinion, particularly when the plaintiff fails to show the defendant knew the underlying facts were false?
Opinions:
Majority - Loretta A. Preska
No, DiFolco's email communications did not, as a matter of law, constitute a 'positive and unequivocal' anticipatory repudiation of her employment contract, and therefore summary judgment on this claim is denied. The court applied the New York contract law principle that repudiation must be 'positive and unequivocal.' DiFolco's August 23 email contained conflicting statements—expressing a desire to 'discuss her exit' while also planning to work the following week. While Kaplan interpreted it as a resignation, DiFolco's subsequent August 24 email clarified she 'did not resign.' The court noted that subjective intent is irrelevant, but the objective interpretation of the communications must be positive and unequivocal. Given the conflicting statements, and supported by contradictory notes from DiFolco's agent and her August 31 email, the court found the intent to resign was not unequivocal, making it an issue of fact for a jury to decide, consistent with the Second Circuit's previous holding. The motion for partial summary judgment as to damages for the breach of contract claim was also denied as premature.
Majority - Loretta A. Preska
No, a plaintiff cannot survive summary judgment on defamation claims solely based on 'common sense,' 'imagination,' and 'belief' that defendants published anonymous online statements, as there was insufficient evidence linking defendants to the publications. The court found DiFolco failed to produce any direct or sufficient circumstantial evidence that Defendants made or were connected to the alleged defamatory statements on 'Inside Cable News,' 'News Blues,' or TVSpy. Despite ample discovery, DiFolco proffered no emails, voicemails, or testimony linking defendants to the websites. The court explicitly rejected DiFolco's reliance on 'common sense,' 'imagination,' and 'belief' as bases for proving publication, stating these amount to 'conclusory allegations, conjecture, and speculation' insufficient to create a genuine issue of fact. The court also noted that many people outside MSNBC knew of DiFolco's situation, and the information became widely public, making it impossible to attribute the source solely to defendants. Therefore, summary judgment was granted for the defamation claims based on failure to prove publication.
Majority - Loretta A. Preska
No, the August 31 and September 1 reports stating DiFolco 'quit MSNBC in the middle of her contract' are not actionable as defamation per se without proof of special damages, because they are barred by New York's 'single instance rule.' The court explained that under New York law, defamation per se (statements disparaging a person in their profession) is an exception to the requirement of proving special damages. However, the 'single instance rule' applies where a publication charges a professional with a single error in judgment, which the law presumes not to injure reputation. The reports that DiFolco 'quit in the middle of her contract' referred to only one event, a single alleged dereliction. Such a report, even if true, is not actionable per se and requires allegations of special damages, which DiFolco did not provide. Accordingly, these defamation claims were dismissed.
Majority - Loretta A. Preska
No, the September 4 TVSpy posting, containing anonymous criticisms of DiFolco's professional conduct, constitutes non-actionable opinion, especially because DiFolco failed to show that any defendant knew the underlying facts were false. The court determined that the complete context of the TVSpy posting—its location in the 'Watercooler' section, its anonymous author ('Jill Journalist'), and its 'gossip-laden nature'—would signal to a reasonable reader that it expressed the poster's opinion, not facts. Applying the three factors for distinguishing fact from opinion, the court found the language was subjective, not easily proven true or false, and the context suggested opinion. To be actionable, an opinion based on false facts requires the defendant to have known of the falsity. DiFolco failed to provide evidence that any defendant, particularly those she 'imagined' were the source, knew the statements were false. Mr. Leon's deposition testimony, when questioned about the posting, primarily emphasized the opinionated nature of the statements. Accordingly, this defamation claim was dismissed.
Analysis:
This case highlights critical hurdles for plaintiffs alleging breach of contract based on repudiation and defamation, particularly in the context of employment and anonymous online content. For contract claims, it reinforces that anticipatory repudiation must be objectively 'positive and unequivocal,' preventing employers from prematurely terminating contracts based on ambiguous employee communications. For defamation, the ruling serves as a cautionary tale: plaintiffs must gather concrete evidence of publication linking defendants to statements, as mere speculation or 'common sense' is insufficient for summary judgment. Furthermore, it clarifies the application of the 'single instance rule' to protect statements about a single professional misstep from being actionable per se, and reinforces robust First Amendment protection for online expressions of opinion, especially in informal forums.
