Hawke v. Discovery Communications LLC et al
MEMORANDUM OPINION. Signed by Judge Paula Xinis on 7/12/2017. (jf3s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. PX 17-542
DISCOVERY COMMUNICATIONS, LLC,
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.
A. Factual Background1
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
Facebook2 page for Dual Survival, but Teti was not expected or authorized to post from it. See
The following facts are taken in the light most favorable to the non-moving party, Plaintiff Hawke.
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
Facebook is an Internet-based social networking website that allows its users worldwide to share
information, opinions, and other content of the users’ own choosing for free. See Klayman v. Zuckerberg,
753 F.3d 1354, 1356 (D.C. Cir. 2014). Facebook allows users to create pages for businesses, as well as
pages for groups relating to common associations or interests. See Rembrandt Soc. Media, LP v.
Facebook, Inc., 22 F. Supp. 3d 585, 590 (E.D. Va. 2013). Users can then post content on behalf of the
business or using their individual Facebook profile within the business or association Facebook page.
“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. 8326, 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 stay the proceedings in
light of filing their dispositive motion. ECF No. 98.
STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to
current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any
genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If
sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing
the motion, then a genuine dispute of material fact is presented and summary judgment should be
denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the “mere
existence of a scintilla of evidence in support of the [opposing party’s] position” is insufficient to
defeat a motion for summary judgment. Id. at 252. The facts themselves, and the inferences to be
drawn from them, must be viewed in the light most favorable to the opposing party, Scott v.
Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008), who may not
rest upon the mere allegations or denials of his pleading but instead must, by affidavit or other
evidentiary showing, set out specific facts showing a genuine dispute for trial, Fed. R. Civ. P.
A. Plaintiff’s Motion for Further Discovery
Plaintiff moves to extend the discovery period for a fourth time under Federal Rule of
Civil Procedure 16(b). See ECF No. 71, and for additional discovery pursuant to Rule 56(f),
contending that determining summary judgment without further discovery is “premature.” See
id.; Pl.’s Opp’n to Summ. J., ECF No. 89 at 3. Defendants object, noting that Plaintiff has failed
to provide the requisite Rule 56(f) affidavit setting forth the outstanding discovery it needs. More
aptly, Defendants object to any further continuances of the discovery period in light Plaintiff’s
lack of due diligence. See ECF No. 76 at 2–3. The Court agrees with Defendants.
Pursuant to Rule 16(b)(4), the Court may modify a scheduling order “for good cause.”
Fed. R. Civ. P. 16(b)(4). “Properly construed, ‘good cause’ means that scheduling deadlines
cannot be met despite a party's diligent efforts.” Dilmar Oil Company, Inc. v. Federated Mutual
Insurance Company, 986 F.Supp. 959, 980 (D.S.C. 1997), aff’d by unpublished opinion, 129
F.3d 116 (4th Cir. 1997). Carelessness is not compatible with a finding of diligence and offers no
reason to grant the requested relief. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610
(9th Cir. 1992). Indeed, “a court’s scheduling order is not a frivolous piece of paper, idly entered,
which can be cavalierly disregarded by counsel without peril.” Rassoull v. Maximus, Inc., 209
F.R.D. 372, 374 (D. Md. 2002).
In the context of summary judgment, where the nonmoving party contends more
discovery is necessary, Rule 56(f) requires that the party seeking to invoke its protection must
state with specificity through an affidavit how additional evidence will rebut the summary
judgment motion. Evans v. Tech. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Where the nonmoving party’s
objections before the district court “serve as the functional equivalent of an affidavit,” and if
the nonmoving party was not lax in pursuing discovery, then the Court may consider whether
summary judgment is premature, even though the nonmovant did not record its concerns in the
form of a Rule 56(f) affidavit. Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244
(4th Cir. 2002) (quoting First Chicago Int’l v. United Exch. Co., 836 F.2d 1375, 1380 (D.C. Cir.
First with regard to extending discovery as a general proposition, Plaintiff’s lackadaisical
approach to this case will not now be rewarded by extending deadlines once again. To the extent
Plaintiff seeks effectively to undo Judge Cain’s ruling and depose the witnesses for which
notices were untimely provided, this Court declines to do so.3 Even though discovery had been
extended three times before, Plaintiff failed to notice a single deposition until fifteen months
after this case had begun and just days before the close of discovery. See ECF No. 73-1;
Protective Order, ECF No. 75 (vacating deposition notices). Plaintiff utterly fails to justify his
During the discovery period and before the action was transferred to this Court, Judge Timothy M. Cain
of the District of South Carolina vacated seven deposition notices because Plaintiff failed to provide
reasonable written notice to Defendants. See ECF No. 75.
delay in pursuing the discovery he now seeks.4 For several of the depositions, Plaintiff knew
over a year ago of the witnesses which he sought to depose, as evidenced by the Rule 26(f)
disclosure—witnesses that remained unchanged even when Plaintiff noticed depositions in the
final weeks of the discovery period. Compare ECF No. 41-1 (initial 26(f) report listing
witnesses) with ECF No. 73-1 (depositions at issue in Plaintiff’s motion for an extension of
discovery) and ECF No. 75 (J. Cain’s order vacting Plaintiff’s deposition subpoenas). Plaintiff’s
own lack of diligence and foresight, not a lack of opportunity, is to blame for his dearth of
With respect Plaintiff’s Rule 56(f) request, Plaintiff contends that he needs to explore
more fully the scope of Teti’s duties related to internet postings and his business relationship
with Defendants, all of which were at the heart of Plaintiff’s claims from the beginning. Plaintiff
could have certainly obtained all of this discovery well within the 15-month discovery period.
See Ingle v. Yelton, 264 F. App’x 336, 339 (4th Cir. 2008) (“[A] district court acts wholly within
its discretion in denying additional discovery where the delay in discovery is due to the fault of
the complaining party.”) (quoting Strag v. Board of Trustees, Craven Cmty. Coll., 55 F.3d 943,
953 (4th Cir. 1995)). Consequently, the Court declines to give Plaintiff additional time—after
discovery has been extended three prior times and has long since concluded—to do the work he
should have done several months ago.
Moreover, nothing about Defendants’ summary judgment motion is “premature” as
Plaintiff so blithely asserts. See Pl.’s Opp’n to Summ. J., ECF No. 89 at 3. Defendants filed their
motion on the due date set by Judge Cain and after the close of discovery. Accordingly, Plaintiff
has provided no basis to allow any further discovery under Rule 56(f).
Plaintiff contested at motions hearing that an incident report from Maxim Holland, ECF No. 88, Exhibit
4, demonstrated a need for further discovery. However, this document is unrelated to Plaintiff’s claims in
the Amended Complaint and does not amount to the good cause necessary to extend discovery.
B. Plaintiff’s Motion to Compel
Plaintiff also moves to compel the production of documents related to Teti’s personnel
file. See ECF No. 72 at 1–2. In open court, Defendants, through counsel, represented that all of
the documents in Defendants’ possession, custody or control related to Teti had been disclosed
or were noted as privileged in the disclosed privilege log. See also Defendants’Opposition to
Motion to Compel, ECF No. 78 at 3. Accordingly, the motion is denied.
C. Defendants’ Motion for Summary Judgment5
Defendants first argue that summary judgment is warranted because Plaintiff has
generated no evidence that Defendants were publishers of the purportedly defamatory
statements. ECF No. 83 at 11. Second, Defendants contend that liability cannot survive under a
respondeat superior theory because no evidence exists that Teti is an employee or agent of
Defendants. Id. at 17. Finally, Defendants argue that Plaintiff’s slander claim fails because
Plaintiff has not identified any spoken defamatory statement. Id.6
1. Count III: Slander
The Court begins with Plaintiff’s slander claim because it is most easily resolved.
Defamation as a cause of action allows recovery for an injury arising from articulated
falsehoods. Holtzscheiter v. Thomson Newspapers, Inc., 332 S.C. 502, 508 (1998). Slander is
The parties agree that South Carolina law governs, and so this Court will apply South Carolina law in
considering the motion for summary judgment. See Flying J Inc. v. Comdata Network, Inc., 405 F.3d 821,
831 n.4 (10th Cir. 2005); In re Korean Air Lines Disaster, 932 F.2d 1475, 1495 (D.C.Cir. 1991) (“Unlike
jurisdictional issues, courts need not address choice of law issues sua sponte.”) (cited favorably in GBJ
Corp. v. E. Ohio Paving Co., 139 F.3d 1080, 1085 (6th Cir. 1998) (declining to undertake choice of law
inquiry where the parties agreed in applying New York law)).
Alternatively, Defendants contend that § 230 of the Communications Decency Act (“CDA”) immunizes
claims based on defamatory internet statements of a third-party and Teti’s Facebook postings about
Hawke were outside the scope of Teti’s employment with Discovery Talent. Defendants also contend that
the purported statements are not defamatory. See ECF No. 83. Defendants agreed at the hearing, however,
that if summary judgment is granted because no evidence connects Defendants to the purported
defamatory statements, the Court need not address Defendants’ alternate arguments.
defamation using spoken word, where libel is defamation by writing or conduct. See Wilhoit v.
WCSC, Inc., 293 S.C. 34 (Ct. App. 1987) (television broadcast of photo is libel). The purported
statements here are written and are thus in the form of libel, not slander. Plaintiff has alleged
slander in Count III but produced no evidence of slander. Defendants’ motion for summary
judgment is therefore granted as to Count III.
2. Counts II, IV, V, VI: Defamation, Libel, Violation of South Carolina’s
Unfair Trade Practices Act, and Intentional Interference with
Plaintiff’s claims of defamation, libel, violation of South Carolina’s Unfair Trade
Practices Act, and intentional interference with contractual relationship center on Teti’s
offending posts on Facebook. The claims cannot survive summary judgment because no
evidence demonstrates Defendants were involved in the publishing of these posts. Specifically,
Plaintiff does not claim that Defendants directly authored the offending posts. Plaintiffs also
have not put forward any evidence, however, that Teti posted these statements to or from the
official Dual Survival Facebook page or any other page controlled by Defendants. When the
Court asked Plaintiff at the hearing to identify specifically any evidence linking Defendants to
the offending posts, Plaintiff only pointed to screen captures that contain no evidence that they
were posted to or from the official Dual Survival Facebook page or any other Facebook page
controlled by Defendants. ECF No. 84-3 at 3.
Plaintiff’s naked assertions that these posts involve the official Dual Survival page is
belied by his consistent refusal to corroborate his claims. See e.g., Exh. A of Williams Aff., ECF
No. 83-28 at 2. Plaintiff’s mere pronouncements are simply not enough to demonstrate that
Defendants had any involvement in posting or hosting the offending comments on any Facebook
page that they controlled. See Brailsford v. Wateree Cmty. Action, Inc., 135 F. Supp. 3d 433, 448
(D.S.C. 2015) (dismissing defamation claims at summary judgement because “[p]laintiff has not
directed the court to any evidence to support an argument that the newly identified instances of
alleged defamation were published . . .”) (citing Williams v. Lancaster Sch. Dist., 369 S.C. 293,
631 S.E.2d 286, 292 (2006) (holding that at summary judgment, a plaintiff’s inability to identify
competent evidence in the record showing an alleged defamatory statement and that the alleged
statement was published to a third party is fatal)); cf. Nat’l Enterprises, Inc. v. Barnes, 201 F.3d
331, 335 (4th Cir. 2000) (self-serving affidavit describing, without producing, evidence of the
agreement in question insufficient to defeat summary judgment). Accordingly, when viewing the
record evidence in the light most favorable to Plaintiff, the offending posts do not involve
Defendants at all. Thus, summary judgment is warranted on this ground.
Plaintiff counters that Defendants are responsible for Teti’s posts under a respondeat
superior theory. Specifically, Plaintiff contends that because Teti is an agent of Defendants, his
posts published from Teti’s own Facebook page may properly be considered as those of
Defendants. To be sure, a principal may be held liable for defamatory statements made by an
agent where the agent is acting within the scope of his employment or within the scope of his
apparent authority. Fredrich v. Dolgencorp, LLC, No. 3:13-CV-01072-JFA, 2014 WL 4417407,
at *6 (D.S.C. Sept. 8, 2014) (applying South Carolina law and citing Murray v. Holnam, Inc.,
344 S.C. 129, 139 (Ct. App. 2001)). However, the Court must first determine which entity is the
principal on whose behalf the agent acts.
Construing the evidence most favorably to Plaintiff, the record provides no connection
between the entity who contracted for Teti’s services on Dual Survival—Discovery Talent
LLC—and Defendants. It is undisputed that Teti’s employment on Dual Survival was secured by
Discovery Talent. See Exh. A of Teti Aff., ECF No. 83-26 (Teti’s Talent Agreement). Teti’s
agreement with Discovery Talent, moreover, makes clear that Discovery Talent exercises control
over Teti’s employment generally and more specifically with regard to the limits of his permitted
Facebook posting activities. Id. The Agreement specifically identifies Discovery Talent as the
“Company,” and then expressly states that Teti as the “Artist” “shall not . . . make any other
statements about Artist’s services, the Program, Company, its affiliates, agents and/or
employees, or any other party involved in the Program (e.g. the Program’s sponsors) in any
media (including without limitation any online or print communications or Twitter or Facebook
postings) without Company’s prior written consent.” Id. (emphasis added). Accordingly, the
only entity which arguably controlled Teti’s Facebook activities is Discovery Talent, the party
not sued in this action.
By contrast, Plaintiff has offered no evidence that Teti was employed by, or under the
direction or control of Defendants. Teti attested under oath that, “[a]t no time . . . was I an
employee of either of the defendants in this lawsuit . . . . Nor have I ever been employed by any
Discovery entity.” Teti Aff., ECF No. 83-26 at 2. Nor has Plaintiff produced any evidence
establishing what relationship, if any, exists between Discovery Talent and Defendants so that
the chain of agency can extend to Defendants through Discovery Talent. Accordingly, even if the
Court presumes for the sake of argument that the purportedly offensive posts were within the
scope of Teti’s employment, the only evidence is that Teti acted as the agent of Discovery Talent
and not Defendants. Defendants’ motion for summary judgment is therefore granted as to Counts
II, IV, V, VI.
3. Count I: Negligent Hiring and Supervision7
For the same reasons, Plaintiff’s claims of negligent hiring and supervision must fail. A
claim of negligent hiring and supervision presupposes an employer-employee or agency-agent
relationship. See generally Callum v. CVS Health Corp., 137 F. Supp. 3d 817, 861 (D.S.C. 2015)
(“because Plaintiff has not alleged facts creating a plausible inference that the . . . Defendants
qualify as employers, these defendants cannot be held liable for negligent supervision or
retention”) (citing Degenhart v. Knights of Columbus, 309 S.C. 114, 115 (1992) (specifying
“[a]n employer may be liable for negligent supervision” (emphasis in Callum))); Doe v. ATC,
Inc., 367 S.C. 199, 206 (Ct. App. 2005) (Negligent hiring cases “turn on two fundamental
elements—knowledge of the employer and foreseeability of harm to third parties.”). Because
there is no evidence of such a relationship between Teti and Defendants, summary judgment is
granted as to Plaintiff’s negligent hiring and supervision claims.
Count V: Violation of South Carolina’s Unfair Trade Practices Act
A final word on Plaintiff’s UTPA claim. Plaintiff’s Amended Complaint arguably may be
construed to include misconduct beyond the alleged defamatory postings. See Amended
Complaint, ECF No. 14 at 6–7; ECF No. 41-1 at 3. Specifically, Hawke claims that “the
Discovery Defendants also contacted ABC Television/Lincoln Square Productions and
potentially other business associates, which the Plaintiff had contracts or prospective contracts
with.” Id. However, Plaintiff has not put forward any evidence in support of this claim. See
Uhlig LLC v. Shirley, No. 6:08-CV-01208-JMC, 2011 WL 1119548, at *9 (D.S.C. Mar. 25,
Plaintiff’s “negligent training,” claim is simply a specific negligent supervision theory and is addressed
accordingly. Holcombe v. Helena Chem. Co., No. 2:15-CV-2852-PMD, 2017 WL 713921, at *5 (D.S.C.
Feb. 23, 2017) (citing Gainey v. Kingston Plantation, No. 4:06-3373-RBH, 2008 WL 706916, at *7 n.4
(D.S.C. Mar. 14, 2008) (“It does not appear that South Carolina recognizes a claim for negligent training
separate and apart from one for negligent supervision.”)).
2011) (dismissing UTPA claim where plaintiff offered no evidence that the conduct was
intentionl, fair or deceptive conduct, potentially misled the public, or potential for repetition).
Plaintiff makes no argument to the contrary. See Nat’l Mortg. Warehouse, LLC v. Bankers First
Mortg. Co., 208 F. Supp. 2d 565, 566 (D. Md. 2002) (granting motion for summary judgment
because it was unopposed). Accordingly, Defendants’ motion for summary judgment is
grantedas to Count V.
D. Defendants’ Motion for a Protective Order and Sanctions
Finally, the Court turns to Defendants’ motion for a protective order in which it seeks to
prohibit Plaintiff from relying on documents produced to Defendants after discovery had closed.
Based on the same late production, Defendants seek Rule 37 sanctions. See Discovery’s Reply,
ECF No. 96 at 3. Because neither party relies on any of the offending documents, Defendants’
request for protective order is denied as moot.
Defendants’ motion for sanctions is also denied. Defendants argue that sanctions are
warranted based on two document subpoenas to third-parties that Plaintiff issued on January 23,
2017, with deadlines to respond by February 14 and 15, 2017, respectively. See Fenno Aff., ECF
No. 82-2 at 2; Subpoenas, ECF Nos. 82-3, 82-4. Although the subpoenas were dated on the last
day of the discovery period, the record does not reflect when the subpoenas were served.
Plaintiff also had requested on January 9, 2017, to extend the discovery period, ECF No. 71, and
even though the Court denies extending the discovery period, Plaintiff’s request nonetheless
demonstrates Plaintiff’s attempt to complete discovery in a timely fashion. Sanctions on this
record, therefore, are not warranted.
For the foregoing reasons, Defendants’ motion for summary judgement shall be granted.
Defendants’ motions for a protective order and to stay the case shall be denied as moot.
Defendants’ motion for sanctions shall be denied. Plaintiff’s motions to compel and to extend
discovery shall be denied. A separate order will follow.
United States District Judge
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