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Hawke v. Discovery Communications, LLC

United States District Court, D. Maryland

July 12, 2017

MYKEL HAWKE, Plaintiff,


          Paula Xinis United States District Judge.

         Pending in this defamation action are motions for summary judgment, ECF No. 83, protective order and sanctions, ECF No. 82, and to stay pending a ruling on summary judgment, ECF No. 98, all filed by Defendants Discovery Communications, LLC d/b/a The Discovery Channel and Discovery Communications, Inc. (collectively, “Defendants”). Also pending are Plaintiff's motions to extend discovery, ECF No. 71, and to compel, ECF No. 72. The issues are fully briefed, and a hearing was held on July 6, 2017. See ECF No. 109. For the reasons stated below, Defendants' motion for summary judgment is granted, Defendants' motion sanctions is denied, Defendants' motions for a protective order and to stay are denied as moot, and Plaintiff's motions are denied.

         I. BACKGROUND

         A. Factual Background[1]

         This case arises from the deterioration of a business relationship and friendship between Plaintiff Mykel Hawke (“Plaintiff”) and Joseph Teti (“Teti”), both of whom were previously cast on Discovery Channel television shows.

         Plaintiff and Teti are former business partners, friends, and military colleagues. See ECF No. 23-2 at 2. In 2010, Plaintiff and his wife became the co-stars of their own survival program on Discovery Channel called Man, Woman, Wild. See Hawke Dep., ECF 83-3 at 88. While on the show, Teti provided personal security for Plaintiff and his family. See Id. at 286-88.

         Shortly thereafter, Teti auditioned for Dual Survival on Discovery Channel. See Teti Aff., ECF No. 83-26 at 7. Teti was hired to star on Dual Survival as an independent contractor employed by Discovery Talent Services LLC (“Discovery Talent”), an entitity that is not a named defendant in this lawsuit. See Teti Aff., ECF No. 83-26 at 1-2; Exh. A of Teti Aff., ECF No. 83-26 (Exhibit A within Teti's Talent Agreement § 4(a) states that Teti “acknowledges and agrees that [he] is an independent contractor and that [he] is not an employee” of Discovery Talent “for any purpose.”); Nicolaou Aff., ECF No. 83-24 at 3. No evidence exists that Teti was ever employed by either of the named Discovery defendants. According to Teti's Talent Agreement for Dual Survival, Discovery Channel is the network for the television show Dual Survival, but the record makes no mention of what relationship, if any, exists between Discovery Talent and either of the Defendants. See Exh. A of Teti Aff., ECF No. 83-26.

         While Teti was on the show, Defendants' social media team maintained an official Facebook[2] page for Dual Survival, but Teti was not expected or authorized to post from it. See Teti Aff., ECF No. 83-26 at 5; O'Shaughnessy Aff., ECF No. 83-25 at 2. Only members of Defendants' social media team had the administrative rights to issue official posts from and on behalf of the Dual Survival Facebook page. See Teti Aff., ECF No. 83-26 at 5; O'Shaughnessy Aff., ECF No. 83-25 at 2. Teti also had personal Facebook accounts, which Defendants did not administer or have affiliated posting rights. See Teti Aff., ECF No. 83-26 at 5; O'Shaughnessy Aff., ECF No. 83-25 at 2.

         On July 13, 2014, Plaintiff emailed a group of Defendants' executives to complain about Teti. See Williams Aff., ECF No. 83-27 at 3. Plaintiff contended, without providing any examples, that Teti “recently used your network, television show, [and] social media page for personal defamation and threats.” See Exh. A of Williams Aff., ECF No. 83-28 at 2. Plaintiff asked for an apology from Teti. See id. at 5. He also stated that he was copying his “legal team” and “in the absence of answer and/or some assistance from Discovery, ” he would seek “remedy” to protect his family, reputation, and career. Id. at 5. Because Plaintiff's email was so vague, Defendants' Senior Vice President of Talent Management asked Plaintiff to forward written evidence supporting his accusations. Id. at 2. Plaintiff refused, stating that he was “reluctant to provide [his] supporting documents at this time, in case they may be required in court.” Id. Plaintiff also obliquely directed Defendants to review “what is readily available online, ” “examine [Teti's] conduct” and “observe the public's perception of his improprieties.” Id. Unable to locate any threatening comments on the Dual Survival Facebook, Defendants nonetheless applied a filter to the page to block any posts containing the words “Mykel” or “Hawke” out of an abundance of caution. See Williams Aff., ECF No. 83-27 at 3; O'Shaughnessy Aff., ECF No. 83-25 at 2.

         Plaintiff now complains of three purportedly defamatory statements that Teti is said to have posted to the official Dual Survival Facebook page: (1) “three clinical psychologists have diagnosed Mykel Hawke as having Narcissistic Personality Disorder”; (2) “Mykel Hawke is mentally ill”; and (3) “Mykel Hawke is having his Special Forces Tab revoked by the Arm[y].” Amended Complaint, ECF No. 14 at 2. However, no evidence exists that these comments were posted to or from the official Dual Surival Facebook page or otherwise involved Defendants. The record contains only Facebook posts from Teti's personal Facebook page “Joseph Teti Dual Survival” (a Facebook page created by Teti without Defendants' approval) and another of Teti's personal Facebook pages. More particularly, the only evidence in the record are hard copy screen shots of these posts which contain no identifying information linking the posts to Defendants' Dual Survival Facebook. See ECF No. 83-26, Exhibit E; ECF No. 83-26, Exhibit F; ECF No. 83-26, Exhibit G; ECF No. 83-26, Exhibit I.

         To be clear, the three specific alleged defamatory statements that Plaintiff claims are on the official Dual Survival Facebook page are the only actionable statements. See Amended Complaint, ECF No. 14 at 3. Although the Amended Complaint also vaguely references “other similar type statements, ” it never identifies for which additional statements Defendants must be held liable. See Amended Complaint, ECF No. 14 at 2. Accordingly, the Court will address whether the three alleged Facebook posts idenitifed in the Amended Complaint survive summary judgment. See Cloaninger v. McDevitt, 555 F.3d 324, 336 (4th Cir. 2009) (“[A] plaintiff may not raise new claims after discovery has begun without amending his complaint.”); Harris v. Reston Hosp. Center, LLC, 523 F. App'x 938, 946 (4th Cir. Apr. 24, 2013) (“[C]onstructive amendment of the complaint at summary judgment undermines the complaint's purpose and can thus unfairly prejudice the defendant”) (citations omitted); Fed.R.Civ.P. 8(a) (a pleading must set forth facts stating a claim).

         B. Procedural History

         Plaintiff initially filed his complaint against Defendants and Teti in South Carolina state court, alleging negligent hiring, training, and supervision, slander, libel, and violation of S.C. Unfair Trade Practices Act (“UTPA”). See ECF No. 1-1 at 2. Defendants then removed the case to the United States District for the District of South Carolina. See ECF No. 1. Plaintiff thereafter amended his complaint, alleging in Count I negligent hiring, training, and supervision arising from Defendants purported failure to properly vet or train employees such as Teti regarding “public interaction, [and] when and what types of communications employees should say publically and/or put into print.” Amended Complaint, ECF No. 14 at 3-4. Counts II, III, IV for defamation, slander, and libel or libel per se arise solely from the alleged three statements posted by Teti on Facebook. See Amended Complaint, ECF No. 14 at 4-6. Count V, the UTPA claim, alleges that Defendants engaged in “unfair and deceptive actions” by allowing the postings and through communicating with producers of other shows. Amended Complaint, ECF No. 14 at 6-7. Count VI alleges that Defendants intentionally interfered with Plaintiff's business relationships “by defaming the Plaintiff to those business associates and partners, without justification.” Amended Complaint, ECF No. 14 at 8.

         Teti subsequently moved to dismiss the action against him for lack of personal jurisdiction, ECF No. 23, which was granted on November 6, 2015. See ECF No. 37. For the remaining parties, the third and final consented amendment to the scheduling order required discovery to be complete by January 23, 2017, and all dispositive motions to be filed by February 6, 2017. See ECF No. 69.

         Two weeks prior to the January 23, 2017 close of discovery, Plaintiff filed motions to compel the production of documents related to Teti's employment file, and to extend discovery. See ECF Nos. 71, 72. On February 6, 2017, Defendants moved for protective order to exclude from this Court's consideration at summary judgment any documents that Plaintiff produced at the close of discovery and related sanctions. See ECF No. 82-1 at 1-2. Based on the requested relief, the Court will construe this motion as one to strike these materials to the extent they are used in Plaintiff's opposition.

         Defendants also filed their motion for summary judgment on February 6, 2017 and Plaintiff responded. The District Court in South Carolina transferred the case to this Court on Febraury 23, 2017. ECF No. 91 at 11. Defendants then filed a motion to ...

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