Paulson v. Cosmetic Dermatology, Inc. et al
ORDER granting in part and denying in part 16 Motion to Dismiss. Amended Complaint due by 6/22/2017. Signed by Judge Robert N. Scola, Jr. on 6/8/2017. (pes)
United States District Court
Southern District of Florida
Roxann Paulson, Plaintiff,
Cosmetic Dermatology, Inc. dba dr.
brandt skincare, Stephane Colleu,
John Michael Bain, and Tamara
Civil Action No. 17-20094-Civ-Scola
Order on Defendants’ Partial Motion to Dismiss
Plaintiff Roxann Paulson brings this lawsuit against Cosmetic
Dermatology, Inc., doing business as dr. brandt skincare (“CDI”), Stephane
Colleu, John Michael Bain, and Tamara Matha for unlawful termination and
actions taken in furtherance of that termination. This matter is before the
Court on the Defendants’ partial motion to dismiss (ECF No. 16). For the
reasons set forth in this order, the Court grants in part and denies in part
the motion to dismiss.
Paulson worked as CDI’s Vice President of Marketing and Executive
Creative Director from February 2, 2015 until her termination on February 11,
2016. (Compl. ¶ 6, ECF No. 1.) Paulson reported directly to Colleu, CDI’s Chief
Executive Officer. (Id. at ¶ 13.) Bain served as Vice President of Sales for CDI
and Matha served as Executive Director of Finance and handled CDI’s Human
Resources. (Id. at ¶¶ 9–11.) According to the complaint, Paulson was “subjected
to continuous and escalating harassment” from Bain—harassment that was
reported to both Colleu and Matha. (Compl. ¶ 15, ECF No. 1.) Despite
Paulson’s and other employees’ complaints, Bain was never disciplined or
terminated for his behavior. (Id. at ¶¶ 15–20, 30.)
At some point during her employment, Paulson terminated Author
Gallow, a friend of Matha’s. (Id. at ¶ 68.) According to the complaint, this action
created a personal rift between Paulson and Matha, leading Matha to “solicit
staff to change their opinions about Paulson, alleg[e] to staff that Paulson had
planned to make personnel changes, [and] imply to staff that Paulson had
intended to terminate them.” (Id. at ¶¶ 31, 68.) On February 11, 2016, Matha
informed Paulson of her termination, citing complaints that Paulson was
bullying members of her Product Development team. (Id. at ¶ 24.) Later in the
evening, Matha received emails from three employees that allegedly contained
solicited, false complaints about Paulson. (Id. at ¶¶ 25–26, 28.) Matha sent “a
company-wide email notifying staff in the United States and all global
countries, that Paulson had been terminated for ‘violat[ing] company policy.’”
(Id. at ¶ 27.) According to the complaint, “[t]he email went on to note that CDI
has ‘zero tolerance’ for behavior that ‘cause[s] another individual any type of
harassment and behavior that is unprofessional.’” (Id.)
Paulson alleges that Matha’s email defamed her in her professional
capacity and amounts to libel per se because it contained “false statements
[that] not only impugned Paulson’s integrity, character and reputation as a
business professional, but also indicate she lacks sufficient ability to perform
her professional duties.” (Id. at ¶ 59.) Paulson also alleges that Matha’s actions
in soliciting and obtaining false emails that resulted in Paulson’s discharge
interfered with Paulson’s business relationship with her employer and were
part of a conspiracy to interfere with that business relationship. (Id. at ¶¶ 65–
75.) The Defendants move to dismiss, arguing that the complaint fails to state a
claim for tortious interference with a business relationship against Matha or for
defamation per se or conspiracy to interfere with a business relationship
against all of the Defendants.
2. Legal Standard
Federal Rule of Civil Procedure 8(a) requires “a short and plain statement
of the claims” that “will give the defendant fair notice of what the plaintiff's
claim is and the ground upon which it rests.” Fed. R. Civ. P. 8(a). The Supreme
Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff's obligation to
provide the ‘grounds' of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do. Factual allegations must be enough to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted).
“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 (2009) (quotations and citations
omitted). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. Thus, “only a complaint that
states a plausible claim for relief survives a motion to dismiss.” Id. at 679.
When considering a motion to dismiss, the Court must accept all of the
plaintiff’s allegations as true in determining whether a plaintiff has stated a
claim for which relief could be granted. Hishon v. King & Spalding, 467 U.S. 69,
The Defendants have moved to dismiss four causes of action in the
complaint in their entirety and two causes of action as they are applied to
individual defendants. The Court will address each of the counts specifically
set forth in the complaint.
A. Counts One and Two
Count one asserts that CDI, Colleu and Matha discriminated against
Paulson by targeting her for discharge on the basis of her age. (Compl. at 6–7,
ECF No. 1.) Count two asserts that CDI, Colleu and Matha discriminated
against Paulson by targeting her for discharge on the basis of her gender. (Id.
at 7–8.) The Defendants moved to dismiss counts one and two as applied to
Colleu and Matha. (Mot. at 2–3, ECF No. 16.) Paulson concedes that counts
one and two are not properly asserted against those defendants. (Resp. at 1,
ECF No. 19.) Accordingly, counts one and two fail to state a claim against
Colleu and Matha upon which relief may be granted. Albra v. Advan, Inc., 490
F.3d 826, 830 (11th Cir. 2007) (noting that under Title VII and the Age
Discrimination in Employment Act “individual defendants are not amenable to
B. Count Three
Count three asserts a claim for defamation per se against CDI, Colleu
and Matha. (Compl. at 8–9, ECF No. 1.) Paulson asserts that following her
termination, Matha “sent a company-wide email notifying staff in the United
States and all global countries, that Paulson had been terminated for
‘violat[ing] company policy’” and that the email also “note[d] that CDI has ‘zero
tolerance’ for behavior that ‘cause[s] another individual any type of harassment
and behavior that is unprofessional.’” (Id. at 5.)
To recover for libel under Florida law, a plaintiff must establish that: 1)
the defendant published a false statement; 2) about the plaintiff; 3) to a third
party; and 4) the party suffered damages as a result of the publication. See
Valencia v. Citibank Int’l, 728 So. 2d 330 (Fla. 3d DCA 1999). Libel may be
proven two ways: per se or per quod. See Hoch v. Rissman, 742 So. 2d 451, 457
(Fla. 5th DCA 1999). Libel per quod requires an additional explanation of, or an
interpretation of innuendo suggested by, the words used to demonstrate the
defamatory meaning or that the plaintiff is the subject of the statement. See
Leavitt, D.O. v. Cole, 291 F. Supp. 2d 1338, 1342 (M.D. Fla. 2003); Ordonez v.
Icon Sky Holdings LLC, 2011 WL 3843890, at *7 (S.D. Fla. Aug. 30, 2011)
(Seitz, J.); Hoch, 742 So. 2d at 457. That is, defamation per quod requires
explanation of context. In per quod actions, the words used, given their natural
and common meaning, are not inherently injurious, but rather are injurious
only as a consequence of extrinsic facts, such as innuendo. See Leavitt, 291 F.
Supp. 2d at 1342. Therefore, in per quod actions, the plaintiff must assert
actual economic damage. Id.
By contrast, libel per se does not require any additional explanation in
order to prove the defamatory nature of the statement. See Leavitt, 291 F.
Supp. 2d at 1342; Ordonez, 2011 WL 3843890, at *7. In a per se action,
consideration is given only to the “four corners” of the publication and the
language used should be interpreted as the “common mind” would normally
understand it. See Ortega Trujillo v. Banco Central Del Ecuador, 17 F. Supp. 2d
1334, 1339 (S.D. Fla. 1998) (King, J.); McIver v. Tallahassee Democrat, Inc., 489
So. 2d 793, 794 (Fla. 1st DCA 1986). In a per se action, the statements are “so
obviously defamatory” and “damaging to reputation” that the injurious nature
of the statement is apparent from the words in the statement itself and the
court consequently takes notice of that fact. See Alan v. Wells Fargo Bank, N.A.,
604 Fed. App’x. 863, 865 (11th Cir. 2015); see also Campbell v. Jacksonville
Kennel Club Inc., 66 So. 2d 495, 497 (Fla. 1953). The plaintiff is therefore not
required to allege general damages, because the harm is readily apparent. See
Campbell, 66 So. 2d at 497.
Per se defamatory language may take a variety of forms. The most classic
example is language that charges a person with an infamous crime or tends to
subject him to hatred, distrust, ridicule, contempt, or disgrace. See Rubin v.
United States News & World Report Inc., 271 F.3d 1305, 1306 (11th Cir. 2001);
Adams v. News-Journal Corp., 84 So. 2d 549, 551 (Fla. 1955). Additionally,
language that interferes with one’s profession can be per se defamatory. Two
iterations of this latter form of per se defamatory language appear in Florida
case law. One iteration finds actionable any language that “tend[s] to injure a
person in [her] office, occupation, business, or employment and which in
natural and proximate consequence will necessarily cause injury.” See
Metropolis Co. v. Croasdell, 199 So. 568, 569 (Fla. 1941); see also Scott v.
Busch, 907 So. 2d 662, 667 (Fla. 5th DCA 2005); Ordonez, 2011 WL 3843890
at *7. Another iteration requires language that “imputes to another conduct,
characteristics, or a condition incompatible with the proper exercise of his
lawful business, trade, profession or office.” See, e.g., Fun Spot of Fla. v.
Magical Midway of Cent. Fla., Ltd., 242 F. Supp. 2d 1183, 1197 (M.D. Fla.
2002); Campbell, 66 So. 2d at 497; Ortega Trujillo, 17 F. Supp. 2d at 1339;
Hoch, 742 So. 2d at 457.
Here, considering the statements in Matha’s email as the “common
mind” would, see Ortega Trujillo, 17 F. Supp. 2d at 1339, the Court finds that
the complaint fails to state a claim for defamation per se. Because Matha sent
her company-wide email after Paulson’s termination, the email does not “tend
to injure a person in [her] office, occupation, business, or employment.”
Metropolis, 199 So. at 569. CDI had already terminated Paulson so an email to
CDI employees informing them of that termination would not necessarily tend
to injure Paulson in her employment, which no longer existed.
Moreover, Matha’s statement that Paulson had been terminated for
“violat[ing] company policy” does not impute to her “conduct, characteristics, or
a condition incompatible with the proper exercise of [her] lawful business,
trade, profession or office.” See Fun Spot of Fla., 242 F. Supp. 2d at 1197.
Rather, it simply provides a generic explanation for Paulson’s termination
without providing the details behind the violation of company policy. If
anything, by omitting the details, Matha’s email actually avoids providing
information that could be construed as defamatory per se.
Nor does a factual statement that “CDI has ‘zero tolerance’ for behavior
that ‘cause[s] another individual any type of harassment and behavior that is
unprofessional’” rise to the level of being “so obviously defamatory” and
“damaging to reputation” as to qualify as defamatory per se. See Alan, 604 Fed.
Appx. at 865. Paulson does not allege that this statement is false, which is the
first element required for establishing defamation. See Valencia, 728 So. 2d
330 (“To state a cause of action for defamation, in Florida, a plaintiff must
allege that (1) the defendant published a false statement . . .”). Further, the
statement about CDI’s “zero tolerance” policy does not reference Paulson.
Instead, Paulson seeks to connect the factual statement about CDI’s “zero
tolerance” policy to Matha’s statement that Paulson was terminated for
violating company policy. (Resp. at 4, ECF No. 19.) But this type of innuendo
would, at best, render the claim as one for libel per quod. See Leavitt, 291 F.
Supp. 2d at 1345.
Courts have found statements defamatory per se in this context where,
for example: the plaintiff was accused of being drunk on the job and that
accusation was repeated to his manager and other employees, see Glynn v. City
of Kissimmee, 383 So. 2d 774, 775–76 (Fla. 5th DCA 1980); patients were told
that a doctor’s work quality was poor and that his procedures required
subsequent corrective work, which impugned the doctor’s professional
competence and fitness as a surgeon, see Leavitt, 291 F. Supp. 2d at 1345–46;
a former supervisor told a prospective employer that an interviewee was “bad
news,” that she was prone to file frivolous sexual harassment charges, and that
“you don’t want her in your company,” all of which suggested conduct
incompatible with the proper exercise of her employment duties, see Thompson
v. Orange Lake Country Club, Inc., 224 F. Supp. 2d 1368, 1381 (M.D. Fla.
2002); a lawyer stated that “if you wanted to influence Judge Hoch, you should
send men in tight shorts before him,” thereby suggesting that the judge’s
official duties could be improperly influenced and imputing to him conduct or a
condition incompatible with the proper exercise of his judgeship, see Hoch, 742
So. 2d at 457. In all of the above cases, the per se defamatory statements
imputed conduct to the plaintiffs that was incompatible with the essential
functions of their respective jobs. By contrast, the conduct suggested of
Paulson—that she violated an unnamed company policy—does not impute to
her a characteristic inconsistent with her duties as Vice President of Marketing
and Executive Creative Director. Thus, there can be no claim for defamation
per se under the facts alleged.
While Matha’s statements might, under some set of facts, conceivably
cause injury to Paulson’s future employment, the statements are not injurious
in and of themselves and, hence, not defamatory per se. To gauge whether the
statements are defamatory, the Court would have to look outside the four
corners of the statements to evaluate all the surrounding facts and
circumstances, including whether Paulson suffered some form of damage as a
result of Matha’s statements. When context is considered and “extrinsic facts
and innuendo are needed to prove the defamatory nature of the words,” the
statements are not defamatory per se. Scobie v. Taylor, No. 13-60457-Civ, 2013
WL 3776270, at *4 (S.D. Fla. July 17, 2013) (Scola, J.); see also Carlson v.
WPLG/TV-10, Post-Newsweek Stations of Fla., 956 F. Supp. 994, 1006 (S.D.
Fla. 1996) (Ungaro, J.). If Paulson wishes to attempt to raise defamation per
quod claims, assuming she can allege the requisite facts and damages in
support, the Court will allow her to amend her complaint.
C. Count Four
Count four of the complaint asserts a claim of tortious interference with
a business relationship against Defendant Matha. (Compl. at 9–10, ECF No. 1.)
Pursuant to Florida law, Paulson must establish five elements to state a claim
for tortious interference with a business relationship: (1) the existence of a
business relationship under which the claimant has rights; (2) the defendant’s
knowledge of the relationship; (3) an intentional and unjustified interference
with the relationship; (4) by a third party; and (5) damage to the claimant
caused by the interference. See Future Tech Int’l, Ltd. v. Tae Il Media, Ltd., 944
F. Supp. 1538, 1569 (S.D. Fla. 1996) (Marcus, J.); Salit v. Ruden McClosky,
Smith, Schuster & Russell, P.A., 742 So. 2d 381, 385 (Fla. 4th DCA 1999). The
Defendants argue that there is no possibility that Paulson can state a claim for
tortious interference against Matha under Florida law because Paulson cannot
meet the fourth element, i.e., because Matha is not a third party to the putative
employment relationship. (Mot. at 5–6, ECF No. 16.)
The Court disagrees and finds that Paulson has alleged the elements
necessary to state a claim for tortious interference. The Defendants are correct
in stating that under Florida law, a cause of action for tortious interference
generally does not exist against one who is himself a party to the business
relationship subject to the interference. (See id.); Ethyl Corp. v. Balter, 386 So.
2d 1220 (Fla. 3d DCA 1980). Moreover, as the Defendants also point out,
Florida courts have established that in the context of a managerial or
supervisory employee terminating a plaintiff’s employment, an action will
usually not lie against the terminating employee because she is considered a
party to the employment relationship. See West v. Troelstrup, 367 So. 2d 253,
255 (Fla. 1st DCA 1979); Doyal v. School Board of Liberty County, 415 So. 2d
791 (Fla. 1st DCA 1982). However, Florida courts have also clarified that the
privilege to interfere “enjoyed by a party that is integral to the business
relationship is not absolute. The privilege is divested when the defendant acts
solely with ulterior purposes and the advice is not in the principal’s best
interest.” O.E. Smith’s Sons, Inc. v. George, 545 So. 2d 298, 299 (Fla. 1st DCA
1989); see also Burger King Corp. v. Ashland Equities, Inc., 161 F. Supp. 2d
1331, 1336 (S.D. Fla. 2001) (Gold, J.); Salit, 742 So. 2d at 385; Sloan v. Sax,
505 So. 2d 526, 528 (Fla. 3d DCA 1987).
Here, Paulson’s complaint alleges that Matha acted with ulterior motives
that were harmful to CDI. (Compl. at 10, ECF No. 1.) Paulson specifically
alleges in count four that “Matha maliciously and intentionally interfered with
Paulson’s employment relationship by inducing her discharge without an
honest belief that these actions would benefit CDI” and that Matha
“maneuver[ed] to get Paulson fired for personal reasons, such as the fact that
Paulson had terminated one of Matha’s friends, Author Gallow.” (Id.) Paulson
also states that her “termination was not in CDI’s best interest.” (Id.) Based on
these allegations, the Court finds that the complaint sufficiently classifies
Matha as a third party to the employment relationship. Thus, the Court
declines to dismiss count four.
D. Count Five
Count five asserts that “[a]ll Defendants” conspired to interfere with that
same business relationship. (Compl. at 10, ECF No. 1.) To plead civil
conspiracy, a plaintiff must allege “(a) an agreement between two or more
parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c)
the doing of some overt act in pursuance of the conspiracy, and (d) damage to
plaintiff as a result of the acts done under the conspiracy.” Cordell Consultant,
Inc. Money Purchase Plan & Trust v. Abbott, 561 Fed. App’x 882, 886 (11th Cir.
2014) (quoting Raimi v. Furlong, 702 So. 2d 1273, 1284 (Fla. 3d DCA 1997)).
Florida law does not recognize an independent cause of action for civil
conspiracy; rather, the plaintiff must allege an underlying illegal act or tort on
which the conspiracy is based. See Raimi, 702 So. 2d at 1284 (“an actionable
conspiracy requires an actionable underlying tort or wrong”); Kee v. Nat’l
Reserve Life Ins. Co., 918 F.2d 1538, 1541–42 (11th Cir. 1990) (“The basis for
the conspiracy must be ‘an independent wrong or tort which would constitute a
cause of action if the wrong were done by one person.’”) (quoting American
Diversified Ins. Servs. v. Union Fidelity Life Ins. Co., 439 So. 2d 904, 906 (Fla.
2d DCA 1983)). Tortious interference with a business relationship can
constitute an unlawful act for the purposes of pleading a claim for civil
conspiracy. Am. Diversified Ins. Servs., Inc. v. Union Fid. Life Ins. Co., 439 So.
2d 904, 907 (Fla. 2d DCA 1983). Therefore, count five is premised on the
underlying tort that serves as the basis for count four: tortious interference
with a business relationship.
Paulson does not allege that Defendants CDI, Colleu, or Bain tortiously
interfered with Paulson’s employment pursuant to count four. Instead, count
four is asserted only against Defendant Matha and is premised on actions
taken by Matha in concert with individuals who are not named as defendants.
(Compl. at 9–10, ECF No. 1.) The fact that Matha acted out of personal animus
to precipitate Paulson’s termination, absent any allegations of any agreement
to conspire with Defendants CDI, Colleu, or Bain, cannot alone support
Paulson’s conclusory assertion that the Defendants conspired to interfere with
a business relationship. See Russo v. Fink, 87 So. 3d 815, 819 (Fla. 4th DCA
2012) (“Because [the complaint] never alleged that there was an agreement, it
has failed to allege sufficient facts with respect to the conspiracy count.”); Tucci
v. Smoothie King Franchises, Inc., 215 F. Supp. 2d 1295, 1300 (M.D. Fla. 2002)
(dismissing claim for civil conspiracy where plaintiff did not allege or provide
the court with sufficient facts to infer an agreement between defendants).
Paulson does not assert that Defendants CDI, Colleu, or Bain were even aware
of Matha’s alleged actions of tortious interference. Absent such allegations,
Paulson’s claim against Defendants CDI, Colleu, and Bain fails to state a claim
upon which relief may be granted. See Donofrio v. Matassini, 503 So. 2d 1278,
1281 (Fla. 2d DCA 1987) (a conspirator must “know of the scheme and assist
in it in some way to be held responsible for all of the acts of his
coconspirators.”); see also Buckner v. Lower Fla. Keys Hosp. Dist., 403 So. 2d
1025 (Fla. 3d DCA 1981) (“Absent the underlying tort of willful interference,
there can be no cause of action for conspiracy to interfere.”).
However, Paulson’s claim against Defendant Matha in count five does not
suffer from such a deficiency. As noted above, Paulson’s cause of action for
tortious interference against Matha is sufficiently pled under Fed. R. Civ. P.
8(a). Paulson alleges that Matha worked with other individuals to “accuse
Paulson of harassment and other violations of corporate policy,” which resulted
in her termination. (Compl. at 10, ECF No. 1.) Although Paulson does not
directly allege that Matha formed an agreement with other employees to create
emails that falsely accused Paulson of violating company policy, taking the
allegations of the Complaint as true and viewing them in their most favorable
light, Paulson has pled all of the required elements for a claim of civil
conspiracy as it relates to Matha. Regions Bank v. Kaplan, No. 8:12-CV-1837,
2013 WL 1193831, *10 (M.D. Fla. Mar. 22, 2013) (“The presence of a
conspiracy is often established by circumstantial evidence rather than direct
evidence.”). Therefore, the motion to dismiss count five as to Defendant Matha
E. Count Six
Count six asserts that all Defendants intentionally inflicted emotional
distress upon Paulson. (Compl. at 10–11, ECF No. 1.) Paulson does not oppose
the Defendants’ motion to dismiss as it relates to count six. (Resp. at 1, ECF
No. 19.) Accordingly, count six is dismissed with prejudice.
For the reasons explained above, it is hereby ordered that the
Defendants’ motion to dismiss (ECF No. 16) is granted in part and denied in
part as set forth below:
1. counts one and two as asserted against Defendants Colleu, Bain, and
Matha are dismissed with prejudice;
2. count three is dismissed, with leave to amend on or before June 22,
3. count four is not dismissed;
4. count five as asserted against Defendants CDI, Colleu, and Bain is
dismissed with prejudice, but is not dismissed with respect to
Defendant Matha; and
5. count six is dismissed with prejudice.
If Paulson declines to file an amended complaint, she must file a notice
indicating that intention on or before June 13, 2017. If Paulson files such a
notice, the Defendants must respond to the complaint on or before June 20,
2017. If, on the other hand, Paulson does file an amended complaint, the
Defendants must respond to the complaint within two weeks of its filing.
Done and ordered in chambers, at Miami, Florida, on June 8, 2017.
Robert N. Scola, Jr.
United States District Judge
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