Wolfe Fin. Inc. v. Rodgers, 1:17cv896

CourtUnited States District Courts. 4th Circuit. Middle District of North Carolina
Writing for the CourtL. Patrick Auld United States Magistrate Judge
Docket Number1:17cv896
PartiesWOLFE FINANCIAL INC., et al., Plaintiffs and Counter-Defendants, v. JOHN RODGERS, et al., Defendants and Counter-Claimants.
Decision Date17 April 2018

WOLFE FINANCIAL INC., et al., Plaintiffs and Counter-Defendants,
JOHN RODGERS, et al., Defendants and Counter-Claimants.



April 17, 2018


This case comes before the undersigned United States Magistrate Judge for a recommended ruling on Matthew Mathosian's Motion for Temporary Restraining Order and Preliminary Injunction ("Preliminary Injunction Motion") (Docket Entry 35). (See Docket Entry dated Feb. 8, 2018; see also Docket Entry 44 (withdrawing request for temporary restraining order).)1 For the reasons that follow, the Court should deny the Preliminary Injunction Motion.

A. The Pleadings

On October 5, 2017, Mathosian, along with Wolfe Financial Inc. (d/b/a Integrity Mortgage Group) ("Integrity") and Marian

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Siemering, commenced this action. (See Docket Entry 1.) They filed their First Amended Complaint ("FAC") five days later. (See Docket Entry 4.) It asserts nine causes of action against various configurations of nine individuals and entities, including John Rodgers and Prime Mortgage Lending, Inc. ("Prime"). (See id. at 2-3, 7-14.) As concerns the Preliminary Injunction Motion, the FAC alleges, as "Count VIII," that Rodgers committed "Libel/Slander Per Se" against Mathosian. (Id. at 12; see also id. at 15 (requesting, as relief from Rodgers, an injunction prohibiting "any further libel or slander of Mathosian," as well as "an award of punitive and compensatory damages due to [Rodgers's] libel and slander of Mathosian").) Pertinent to that claim, the FAC states:

1) "Siemering and Mathosian previously worked for Rodgers at Prime, but left to move to Integrity" (id. at 6; see also id. at 3 ("Rodgers is . . . a 50% owner of Prime. . . . Prime is a direct competitor to Integrity in the mortgage lending industry."));

2) "[s]ince [Siemering and Mathosian] left, Rodgers has . . . disparag[ed] them to potential employees . . . [and] accus[ed] them of telling lies about him" (id. at 6);

3) "Rodgers has also carried on a campaign of disparaging Mathosian and injuring his reputation and good will in the mortgage banking community" (id.; accord id. at 12; see also id. at 7 ("Rodgers has repeatedly emailed Mathosian's current employer, making disparaging comments about him."));

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4) "Rodgers has made false and malicious statements attributing conduct and behavior to Mathosian that are contrary to customary and lawful mortgage banking business practices" (id. at 6; accord id. at 12; see also id. at 6-7 (giving as concrete examples of such "false statements": "repeatedly referr[ing] to Mathosian as a liar," "referr[ing] to Mathosian as lacking sales experience," "referr[ing] to Mathosian as being overpaid," and "call[ing] Mathosian a sociopath to industry colleagues"));

5) "Rodgers made and is making these false and malicious statements knowing they were false or with a reckless disregard for the truth, without reasonable grounds to believe they were true, and with intent to injury [sic] and defame Mathosian" (id. at 12);

6) "[t]he false and malicious statements have negatively impacted Mathosian's income and ability to hire, and have injured Mathosian's reputation and good will" (id.);

7) "[t]he false and malicious statements have caused parties to back out of deals with Mathosian, severely impacting his income" (id.; see also id. at 6 ("Mathosian make[s] a large portion of [his] income based on loan activity, and [is] paid a percentage of closed loans.")); and

8) "[a]s a direct result of Rodgers'[s] actions, Mathosian has been irreparably harmed and continues to be irreparably harmed, and

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Rodgers'[s] actions have contributed to [Mathosian's] emotional distress" (id. at 12).2

Rodgers answered, denying in material part the foregoing allegations. (See Docket Entry 15 at 5, 9; see also id. at 10 ("The statements [Mathosian] claim[s] are defamatory are true.").)3

B. The Preliminary Injunction Motion and Related Filings

On January 16, 2018, Mathosian filed the Preliminary Injunction Motion. (See Docket Entry 35.) Pursuant thereto, he proposed that the Court enter this injunction:

WHEREAS. Plaintiff Matthew Mathosian has moved for a preliminary injunction enjoining Defendant John Rodgers from libeling and slandering Mathosian, it is hereby ordered as follows:

1. Until this case is decided on the merits, Rodgers shall cease making any libelous or slanderous statement about [] Mathosian;

2. Until this case is decided on the merits, Rodgers shall cease making any derogatory statement about [] Mathosian;

3. Until this case is decided on the merits, Rodgers shall cease making any untrue statement about [] Mathosian.

(Docket Entry 35-1 at 1 (emphasis added).)

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Beyond the allegations of the FAC (quoted in Subsection I.A.), the Preliminary Injunction Motion relies for factual support on:

1) the assertion that, "on December 14, 2017, well after [Mathosian, Siemering, and Integrity] filed this lawsuit, Rodgers sent a libelous email to a member of the mortgage lending industry that Integrity was in the process of hiring and has since hired, named Adam Cohn" (Docket Entry 35 at 2 (citing id. at 9-13));4 and

2) the "certifi[cation] that [Mathosian's attorneys] ha[d] given written notice to [] Rodger's [sic] counsel that [sic] of their intent to file [the Preliminary Injunction Motion], and sought, to no avail, to have [] Rodgers agree to stop making any further statements" (id.).

Rodgers responded in opposition to the Preliminary Injunction Motion (see Docket Entry 38) and submitted therewith an affidavit

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from one of his attorneys, Matthew P. McGuire, authenticating attached correspondence from the period of January 12-16, 2018, between McGuire and Thomas G. Pasternak (one of Mathosian's attorneys), some of which reflected copying to Edward B. Cole (Mathosian's other attorney) (see Docket Entries 38-2, 38-3, 38-4). That affidavit and related correspondence show as follows:

1) near mid-day,5 Friday, January 12, 2018, Pasternak e-mailed McGuire, (A) reporting that Mathosian (through Pasternak and Cole) "plann[ed] on bringing a TRO/PI motion against [] Rodgers to stop him from making further defamatory statements about [] Mathosian" and (B) asking "if [Rodgers] will agree to stop doing so, so that [they] don't have to bring the motion" (Docket Entry 38-3 at 3);

2) within minutes, McGuire replied (copying Cole), soliciting "a concrete example" (id.);

3) Pasternak promptly answered by transmitting part of the e-mail from Rodgers to Cohn (dated December 14, 2017) which Mathosian later appended to his Preliminary Injunction Motion (see id.; see also Docket Entry 35 at 10);

4) shortly, McGuire rejoined (again copying Cole) that the example offered by Pasternak contained "nothing defamatory," but

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nonetheless committed to "speak with [Rodgers] about refraining from any further commentary" (Docket Entry 38-3 at 2);

5) Pasternak "disagree[d with McGuire's assessment of the e-mail] and [requested] an answer [about an agreement to cease making defamatory statements] by COB Monday[, January 15, 2018]" (id.);

6) on that Monday (a federal holiday honoring Dr. Martin Luther King, Jr.), McGuire e-mailed Pasternak that McGuire was "out sick with the flu but w[ould] provide a response tomorrow" (id.);

7) Pasternak responded: "[s]onics [sic] good" (id.);

8) as promised, on Tuesday, January 16, 2018, McGuire e-mailed Pasternak a letter "writ[ten] on behalf of [McGuire's] clients in response to [Pasternak's] December 19, 2017 letter to [one of McGuire's] associate[s about other matters], as well as in response to [Pasternak's] January 12 emails concerning allegedly defamatory comments made by [] Rodgers" (Docket Entry 38-4 at 2; see also Docket Entry 38-2 at 3 ("The following day, January 16, 2018, at 2:39 pm ET, I sent Mr. Pasternak a letter via email that addressed a number of outstanding issues in the case, including his concerns about allegedly defamatory comments being made by Mr. Rodgers."));

9) in that letter, McGuire (A) expressed his view that "the easier problem to solve is a mutual agreement to refrain from any negative comments about the other side," (B) confirmed that he "ha[d] spoken with [his] clients, and they are willing to abide by such an agreement if [Pasternak's] clients are as well," and (C)

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reiterated that McGuire's "clients will agree to . . . [a m]utual non-disparagement agreement" (Docket Entry 38-4 at 2-3; see also Docket Entry 38-2 at 4 ("I have redacted portions of this copy [of the letter provided to the Court] because they contain communications that could be deemed inadmissible pursuant to Rule 408 of the Federal Rules of Evidence. Should the Court wish, I would be glad to provide an unredacted copy of the letter.")); and

10) McGuire "did not receive any response to the January 16 letter prior to [] Mathosian's filing of his [Preliminary Injunction] Motion" (Docket Entry 38-2 at 4; see also Notice of Electronic Filing, Docket Entry 35 (documenting filing of Preliminary Injunction Motion "on 1/16/2018 at 5:44 PM EST")).

Based on that sequence of events, in opposing the Preliminary Injunction Motion, Rodgers (through McGuire) explicitly accused Mathosian and his attorneys of exhibiting a "lack of candor to the Court in seeking [such] extraordinary relief." (Docket Entry 38 at 2.) Specifically, Rodgers's Response argued: "Mathosian claims he unsuccessfully attempted to obtain Rodgers'[s] agreement to stop making disparaging comments. To the contrary, counsel for Rodgers expressly informed Mathosian's counsel of Rodgers'[s] willingness to enter a mutual non-disparagement agreement just hours before Mathosian filed the instant Motion." (Id.)

Mathosian thereafter replied. (See Docket Entry 45; see also Docket Entry 44 at 1 ("withdraw[ing]" request for "temporary

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restraining order").) In that Reply, Mathosian contested neit...

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