United States District Court, D. Maryland
Xinis United States District Judge.
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
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.
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.
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.
Teti was on the show, Defendants' social media team
maintained an official Facebook 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.
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.
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.
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
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.
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.
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
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