The Volokh Conspiracy

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"This claim was a pretty mealy apple when the Court first dismissed it, and it has not aged well with further discovery."


A funny turn of phrase from Judge Nancy Torresen in Pan Am Systems Inc. v. Hardenbergh, 2014 WL 4908949:

The Amended Complaint alleges that Plaintiffs defamed them by publishing the March 21, 2011 article about Fink's departure from Pan Am. In its Order of May 14, 2012, dismissing the original complaint, which contained most of the above quotation, the Court noted "[o]ne can infer from this quote that Mr. Fink's removal was not his choice" and that "[t]he hyperbolic term 'coup de grace' carries with it a sense that Mr. Fink was fired." The Court nonetheless held that the statement was not capable of conveying a defamatory meaning as a matter of law:

Maine law provides that a statement that an individual is fired, without providing defamatory reasons for the firing, is not defamatory. "An employee may be discharged for any one of a multitude of reasons unrelated to his honesty, integrity or occupational skill, or indeed for no reason at all…. [I]t is the reason for discharge rather than the discharge alone which can render the statement slanderous per se." .Picard v. Brennan, 307 A.2d 833, 835 (Me. 1973). Since the statement provides no reason for Mr. Fink's removal from Pan Am, it does not bear a defamatory meaning under Maine law.

The Plaintiffs nonetheless reasserted this claim in their Amended Complaint under the apparent theory that the following two sentences, which were not included in their original Complaint, cast it in a different light:

If Fink pere has definitely left, then perhaps, as one source said, 'The holy wars, such as those against Peter Leisham, will cease.' Others thought that young Fink might have more freedom either to spend more money on railroading, or put the existing money into different [and one would hope more productive] places.

The Plaintiffs continue to press the claim in the face of the Defendants' motion for summary judgment. They contend that Picard v. Brennan does not apply, because, read in context, the article claims that Fink was removed for specific reasons—because he was a bad manager who misused company resources.

This claim was a pretty mealy apple when the Court first dismissed it, and it has not aged well with further discovery. Only by torturing the full text of the article beyond recognition can it be read to assert that Fink was removed for any particular reason that could give rise to defamation liability. The Plaintiffs are therefore entitled to summary judgment as to this claim as well.