McCusker v. Hibu PLC
| Decision Date | 11 February 2016 |
| Docket Number | CV 15–2659 |
| Citation | 159 F.Supp.3d 341 |
| Parties | James McCusker, Plaintiff, v. Hibu PLC, Hibu Inc., Mike Pocock, Tony Bates, Bob Wigley, Elizabeth G. Chambers, John Coghlan, Toby Coppel, Carlos Espinosa de los Monteros, Kathleen Flahrety, Richard Hooper, and Bob Gregerson, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
HAINES & ASSOCIATES BY: Clifford E. Haines, Esq., Attorneys for Plaintiff, The Widener Building, 5th Floor, 1339 Chestnut Street, Philadelphia, PA 19107.
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY & POPEO, P.C. BY: Bret A. Cohen, Esq., Gauri P. Punjabi, Esq., Attorneys for Defendants hibu PLC, hibu Inc. and Michael Pocock, One Financial Center, Boston, MA 02111.
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY & POPEO, P.C. BY: Terry McMahon, Esq., Attorneys for Defendants hibu PLC, hibu Inc. and Michael Pocock, 666 Third Avenue, New York, New York 10017.
WEXLER
Plaintiff commenced this action against his former employer in the Pennsylvania Court of Common Pleas on September 2, 2014, alleging a violation of the Pennsylvania Wage Payment and Collection Law, as well as defamation. Defendants removed the action to the United States District Court for the Eastern District of Pennsylvania on October 3, 2014, on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332
. Thereafter, Defendants moved to dismiss Plaintiff's Complaint. The Pennsylvania federal court construed the motion to dismiss as a motion to transfer venue, pursuant to 28 U.S.C. § 4104(a), and, on April 8, 2015, transferred the action to this Court.
Before the Court is a motion for partial dismissal of Plaintiff's Complaint by Defendants hibu plc, hibu Inc. and Michael Pocock,1 seeking only to dismiss Plaintiff's defamation claim, pursuant to Federal Rule of Civil Procedure 12(b)(6)
. Plaintiff opposes the motion. For the following reasons, Defendants' motion to dismiss is denied.
Defendant hibu PLC, is a publicly-traded company based in the United Kingdom that supplies print and online advertising for small and medium-sized businesses. (Compl.¶ 16.) Defendant hibu Inc., a wholly-owned subsidiary of hibu PLC, is the publisher of the “Yellow Book” print and online telephone and advertising directories in the United States. (Compl.¶¶ 17–18.) Hibu PLC and hibu Inc. are generally referred to as a singular “group” for purposes of financial reporting and operations, (compl.¶ 18), and will be referred to herein solely as “hibu.”
Plaintiff, James McCusker (“McCusker” or “Plaintiff”), began his employment with hibu Inc. in 1989 as a sales representative. (Compl.¶ 21.) At that time, Joe Walsh (“Walsh”) served as hibu Inc.'s Chief Executive Officer (“CEO”) and was a mentor to Plaintiff during his career with hibu. (Compl.¶¶ 19, 23.) Over the years, Plaintiff worked his way up through various leadership positions within hibu Inc., eventually being named President and CEO. (Compl.¶ 21.)
As a result of financial difficulties, in 2009, hibu PLC underwent a complete refinancing and recapitalization, resulting in the business being funded primarily through bank loans. (Compl.¶¶ 24–26.) When hibu PLC struggled to meet its obligations under those bank loans in 2010, the Chairman of hibu's Board of Directors, Bob Wigley, instructed Walsh to look for potential purchasers of hibu's United States assets, including hibu Inc. (Compl.¶ 27.) In the Fall of 2010, Walsh, together with a private equity firm, submitted an offer to purchase hibu's United States assets for nearly two billion dollars. (Compl.¶ 28.) Walsh's offer was rejected in early 2011, shortly after Defendant Michael Pocock (“Pocock”) was appointed CEO and to the Board of Directors of hibu PLC. (Compl.¶ 29.) Walsh's employment with hibu was terminated on October 20, 2011. (Compl.¶ 37.) On April 15, 2012, Plaintiff was appointed President and CEO of hibu, Inc. (Compl.¶ 22.)
As CEO of hibu PLC, Pocock announced various changes in hibu's overall direction into digital services, future strategic partnerships and acquisitions and its overall internal structure. (Compl.¶ 30.) Designed to be a four-year program, known as the “Transition Strategy,” Pocock's plan would require significant changes in the company's budget and financial projections. (Compl.¶ 31.) Plaintiff voiced concerns to members of hibu's upper management that Pocock's Transition Strategy was not only failing, but was being fraudulently represented to the company's lenders, investors and shareholders. (Compl.¶ 46.) Plaintiff continued to voice concerns regarding hibu's financial position and the Transition Strategy throughout 2012 and into 2013. (Compl.¶¶ 51–68.)
On March 6, 2013, hibu terminated Plaintiff for cause, citing his continuing contact with Walsh, and for allegedly revealing confidential information to Walsh. (Compl.¶ 69.) Plaintiff denied that he had any improper contact with, or provided any confidential information to, Walsh. (Compl.¶ 70.)
That same day, Pocock sent an email (the “Email”) concerning Plaintiff's termination to “everyone in hibu U.S. and the Senior Management Team,” which included nearly 5,000 hibu employees. (Compl.¶¶ 76–77.) The email advised hibu employees that Plaintiff and another employee were “dismissed” that day “following a thorough investigation into conduct by them that the Company considered to be disloyal and against the interests of its employees and other stakeholders.” (Compl. ¶ 78; Punjabi Aff. Ex. 1.) The Email further stated that hibu was “considering what further action to take, including legal proceedings against the individuals involved, to protect its interests.”
(Compl. ¶ 79; Punjabi Aff. Ex. 1.) The Email was subsequently republished by hibu employees on blogs and forums across the Internet. (Compl.¶ 85.)
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). “Facial plausibility” is achieved when the “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). As a general rule, the court is required to accept as true all of the allegations contained in the complaint. See
Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ; Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 237 (2d Cir.2007).
However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements ... are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937
(citation omitted); see also
Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations,” which state a claim for relief. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. A complaint that “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement’ ” will not suffice. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ).
“Defamation is a communication which tends to harm an individual's reputation so as to lower him or her in the estimation of the community or deter third persons from associating or dealing with him or her.” Moore v. Cobb–Nettleton, 889 A.2d 1262, 1267 (Pa.Super.Ct.2005)
(quoting Elia v. Erie Ins. Exch., 430 Pa.Super. 384,634 A.2d 657, 660 (1993) ). To state a claim for defamation under Pennsylvania law,2 Plaintiff must demonstrate the following: “(1) a defamatory communication; (2) publication of the defamatory communication by the defendant; (3) the communication's application to the plaintiff; (4) an understanding by the reader or listener of the statement's defamatory meaning; and (5) an understanding by the reader or listener that the statements refer to plaintiff.” Devon Robotics v. Deviedma, No. 09–cv–3552, 2009 WL 4362822, at *8, 2009 U.S. Dist. LEXIS 112077, at *22–23 (E.D.Pa. Nov. 30, 2009) (citing Tucker v. Fischbein, 237 F.3d 275, 281 (3d Cir.2001) ); see also
Bell v. Mayview State Hosp., 853 A.2d 1058, 1061 (Pa.Super.Ct.2004).
The plaintiff has the burden of proving that the communication at issue is defamatory. See Tucker v. Philadelphia Daily News, 577 Pa. 598, 848 A.2d 113, 123 (2004)
(citing 42 Pa.C.S.A § 8343(a) ). Tucker, 848 A.2d at 123
(citing Thomas Merton Ctr. v. Rockwell Int'l Corp., 497 Pa. 460, 442 A.2d 213, 215–16 (1981) ). Conversely, “[i]f the court determines that the statement is capable of defamatory meaning, it is for the jury to determine whether it was so understood by the recipient.” Veno v. Meredith, 357 Pa.Super. 85, 515 A.2d 571, 575 (1986) (quoting Corabi v. Curtis Pub. Co., 441 Pa. 432, 273 A.2d 899, 904 (1971) ).
“A communication is ... defamatory if it ascribes to another conduct, character or a condition that would adversely affect his fitness for the proper conduct of his proper business, trade or profession.” Constantino v. Univ. of Pittsburgh, 766 A.2d 1265, 1270 (Pa.Super.Ct.2001)
(quoting Maier v. Maretti, 448 Pa.Super. 276, 671 A.2d 701, 704 (1995) ). In determining whether a communication is defamatory, the Court “must consider the effect the statement would fairly produce, or the impression it would naturally engender, in the minds of the average persons among whom it is intended to...
To continue reading
Request your trial
-
Kesner v. Dow Jones & Co.
...not actionable because it "did not mention or imply any wrongdoing or incompetency on plaintiff's part"); cf. McCusker v. Hibu PLC , 159 F. Supp. 3d 341, 348 (E.D.N.Y. 2016) (email that CEO was terminated for conduct "considered to be disloyal and against the interests of its employees and ......
-
Fleming v. Laakso
..."is not appropriate on a motion to dismiss under Rule 12(b)(6) because it takes the Court beyond the pleadings." McCusker v. Hibu PLC, 159 F. Supp. 3d 341, 350 (E.D.N.Y. 2016) (quoting Fanelle v. LoJack Corp., 79 F. Supp. 2d 558, 562 (E.D. Pa. 2000)). In this case, however, the admission is......
-
Kesner v. Dow Jones & Co.
...actionable because it "did not mentionPage 41 or imply any wrongdoing or incompetency on plaintiff's part"); cf. McCusker v. Hibu PLC, 159 F. Supp. 3d 341, 348 (E.D.N.Y. 2016) (email that CEO was terminated for conduct "considered to be disloyal and against the interests of its employees an......
-
Daniels v. Kostreva
...the website were true. Def.'s Obj. at 4. "It is well established that truth is an absolute defense todefamation." McCusker v. Hibu PLC, 159 F. Supp. 3d 341, 350 (E.D.N.Y. 2016) (quoting Fanelle v. LoJack Corp., 79 F. Supp. 2d 558, 562 (E.D. Pa. 2000)). However, defendant presents no "eviden......