WOLFE FINANCIAL INC., ET AL. V. RODGERS, ET AL.

Filing 61

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 4/17/2018. RECOMMENDED that the Court deny Mathosian's Preliminary Injunction Motion (Docket Entry 35 ). (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

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

1:17cv896

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
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.
I.
A.

BACKGROUND
The Pleadings

On October 5, 2017, Mathosian, along with Wolfe Financial Inc.
(d/b/a

1

Integrity

Mortgage

Group)

(“Integrity”)

and

Marian

A magistrate judge may not “determine . . . a motion for
injunctive relief,” 28 U.S.C. § 636(b)(1)(A), but may “conduct
hearings, including evidentiary hearings, and [may] submit . . .
recommendations for the disposition, by a [district] judge of the
court, of any [such] motion,” 28 U.S.C. § 636(b)(1)(B).

Siemering, commenced this action.

(See Docket Entry 1.)

filed their First Amended Complaint (“FAC”) five days later.
Docket Entry 4.)

They
(See

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 23, 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.”));
-2-

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

-3-

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.
On

The Preliminary Injunction Motion and Related Filings
January

Injunction Motion.

16,

2018,

Mathosian

filed

(See Docket Entry 35.)

the

Preliminary

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).)

2

Integrity, Siemering, and Mathosian have moved for leave to
file a second amended complaint (see Docket Entry 32), but their
proposed new pleading does not alter (or expand upon) the abovequoted allegations (see Docket Entry 32-1 at 7-8, 14).
3

In addition, Prime countersued Mathosian and Integrity,
including for defamation. (See Docket Entry 15 at 11-32.)
-4-

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
4

That e-mail from Rodgers to Cohn, which bears the “Subject:
It’s all public now,” states:
Maybe you should get Thomas to come to work for you in
N.C. I would let him come back. Our response has been
in the public domain since Monday. If you care to even
read it, DKT 015 is the best reading from page 17-32.
Especially the part about Mathosian misrepresenting his
Incentive pay.
Crimes of moral turpitude and
embezzlement don’t normally sit well with state banking
commissions, investors or warehouse banks. Furthermore,
suing one of your former branches for nothing should also
be noted especially after you steal 150k of their earned
income.
(Docket Entry 35 at 10 (referencing Docket Entry 15 at 17-32); see
also id. at 10-11 (embedding link to Docket and reproducing four
paragraphs of counterclaim by Prime (Docket Entry 15 at 30-31)).)
-5-

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 email 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

5

As noted at the evidentiary hearing on the Preliminary
Injunction Motion, at the time of this exchange, “Pasternak was
operating out of Chicago. [] McGuire was operating out of North
Carolina, so the time [listed in the e-mail chain] bounces back and
forth . . . between Central and Eastern.” (Docket Entry 56 at 6.)
-6-

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 email] 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)
-7-

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.”
Mathosian thereafter replied.

(Id.)

(See Docket Entry 45; see also

Docket Entry 44 at 1 (“withdraw[ing]” request for “temporary
-8-

restraining order”).)

In that Reply, Mathosian contested neither

the Response’s account of the communications between McGuire and
Pasternak (summarized above) nor the Response’s accusation that
Mathosian’s attorneys had fallen short of their duty of candor
regarding their efforts to secure voluntary cessation of defamatory
commentary; instead, Mathosian’s Reply countered:

“To the extent

Rodgers’s arguments rely upon his counsel’s statement that he is
willing

to

no

longer

engage

in

making

defamatory

statements

regarding Mathosian, such arguments are belied by the fact that
Rodgers made such statements in text messages and emails after he
was sued for making those very statements.”

(Docket Entry 45 at 3

(citing Declaration of Matthew Mathosian (Docket Entry 45-1),
which, in turn, does not clearly describe any concrete, defamatory
statement reportedly made by Rodgers after this action commenced).)
Additionally,
Injunction

Motion,

as

evidentiary

Mathosian

support

tendered

for
(with

the
his

Preliminary
Reply)

a

Declaration (purportedly made “under penalty of perjury,” but
without certification of its contents as “true and correct,” as
provided by 28 U.S.C. § 1746 (see Docket Entry 45-1 at 1)):
1) repeating the generalized allegations (previously presented
in the FAC, as detailed in Subsection I.A.) that “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 2), that Rodgers “repeatedly
-9-

e[-]mail[ed
comments”

Mathosian’s]
(id.),

and

current

that

employer

“Rodgers’[s]

with

actions

disparaging
have

caused

[Mathosian] substantial harm in lost wages” (id.), as well as the
somewhat-more-particularized allegations that “[c]ertain branches
and employees that had committed to joining Integrity changed their
mind [sic] after hearing Rodger’s [sic] statements” (id.), and that
“Rodger’s [sic] false statements included . . . repeatedly calling
[Mathosian]

a

liar,

claiming

that

[Mathosian]

lack[s]

sales

experience, claiming that [Mathosian is] overpaid, [and] calling
[Mathosian] a sociopath to industry colleagues” (id.); and
2)

attaching,

as

“specific

examples

of

Rodger’s

[sic]

statements[,] . . . an e[-]mail to the Prime staff after Mathosian
resigned[ in which] Rodgers implied that Mathosian was overpaid and
not a good salesman . . . [, as well as an e-mail] Rodgers sent []
Siemering . . . implying that Mathosian was a sociopath” (id.
(citing id. at 5-7 (undated e-mail from Rodgers to Prime staff), 913 (e-mail dated December 27, 2016, from Rodgers to Siemering))).6

6

Mathosian’s Declaration also references and appends “a text
[message] from Rodgers to Siemering on Christmas Eve, 2016, . . .
stat[ing Rodgers’s] intention to torpedo Integrity . . . [and] a
text message to [] Cohn, . . . stat[ing] that Cohn could ‘sail off
into the sunset’ if he went to work anywhere but Integrity and
listing other mortgage companies who are direct competitors of
Prime.” (Docket Entry 45-1 at 2 (citing id. at 15 (text message to
Siemering), 17-19 (text message to Cohn).)
Mathosian’s Reply,
however, does not explain how those statements relate to his
Libel/Slander Per Se claim or the Preliminary Injunction Motion.
(See Docket Entry 45 at 1-7.)
-10-

Because Mathosian submitted his Declaration with his Reply
(rather than with his Preliminary Injunction Motion), the Court
(per

the

undersigned

United

States

Magistrate

Judge)

granted

Rodgers’s Unopposed Motion for Leave to File a Surreply.

(See

First Text Order dated Feb. 9, 2018 (granting Docket Entry 47).)
Rodgers then filed his Surreply.
C.

(See Docket Entry 49.)

The Evidentiary Hearing

The undersigned Magistrate Judge set an evidentiary hearing on
the Preliminary Injunction Motion.
Feb. 9, 2018.)

(See Second Text Order dated

The order doing so mandated that, “on or before

02/13/2018, the parties (through counsel) shall exchange by e-mail
. . . copies of any documents the party may seek to introduce at
the hearing.”

(Id.; see also Text Order dated Feb. 13, 2018

(granting Mathosian’s Motion for a Continuance of Preliminary
Injunction Hearing (Docket Entry 50) and re-setting the hearing,
but providing that “[a]ll of the requirements established in the
prior Text Order setting the original hearing date remain in
force”).)

Ultimately, the hearing took place, with Mathosian

testifying as the only witness and offering documentary evidence
(resulting in the admission of some exhibits and the deferral of
admission decisions as to others), as well as counsel for each side
addressing their efforts to reach a non-disparagement agreement
before Mathosian filed the Preliminary Injunction Motion.
Docket Entries 53, 56.)

(See

The hearing concluded with argument from
-11-

counsel on the merits of the Preliminary Injunction Motion (see
Docket Entry 56 at 82-96), after which the undersigned Magistrate
Judge “t[ook] th[e] matter under advisement” (id. at 96; see also
id. (“I’ll enter a written recommendation that will be for the
review of a district judge for final determination.”)).
i.

Mathosian’s Testimony

Mathosian began his testimony with some background information
about himself and his move from Prime to Integrity.
27-35.)

(See id. at

He then identified (as Exhibit 7) the e-mail Rodgers sent

to Prime staff upon Mathosian’s departure (one of the e-mails
Mathosian submitted with his Declaration (Docket Entry 45-1 at 5(See Docket Entry 56 at 36.)7

7)).

After agreeing with his

attorney (Pasternak) that “Rodgers in this e-mail to his staff
sa[id] things about [Mathosian],” Mathosian struggled to “point
those [things] out,” whereupon Pasternak prompted Mathosian to look
for comments “about [him] being not a good sales manager.” (Docket
Entry 56 at 36-37.)

Mathosian then responded:

“[Rodgers] said

. . . [Mathosian] lacked the ability to diffuse situations with
borrowers and realtor partners[ and] . . . had zero originating,
underwriting or processing experience, which caused issues for
people.” (Id. at 37.) Apparently dissatisfied with that response,
Pasternak re-directed Mathosian to a different part of the e-mail,
7

Exhibit 7 was admitted without objection from Rodgers.
(Docket Entry 56 at 37.)
-12-

which said Rodgers “would hire a true sales manager that would help
[Prime] grow.”

(Id.)

Despite Pasternak’s prodding, Mathosian

could not locate “anything else in this . . . e-mail that [he]
think[s] malign[ed him].”

(Id.)8

Next, Mathosian reviewed Exhibit 1, which he described as “an
e-mail [incorporating an internet article] that [Rodgers] sent to
[Siemering] basically advising her she should not be associating
with [Mathosian] because [Rodgers] believed that [Mathosian] was a
sociopath and . . . highlight[ing] certain qualities . . . that
[Rodgers] felt that [Mathosian] exhibited.”

(Id. at 38; see also

Docket Entry 45-1 at 9-13 (appending same e-mail to Mathosian’s
Declaration);9 Docket Entry 56 at 39 (admitting Exhibit 1 without
objection from Rodgers), 58 (“Q. Do you know if Mr. Rodgers sent

8

On cross-examination, Mathosian conceded: (1) while at
Prime, he served as the “CEO,” performing many non-sales-related
duties, and did not function as “a true sales manager” (Docket
Entry 56 at 56-57); and (2) “when [he worked] at Chase [Bank for 16
years before moving to Prime] and even after [he] came to Prime,
[he] w[as] not a loan originator, underwriter or processor” (id. at
57-58; see also id. at 28-31 (reviewing Mathosian’s job history,
during which he performed a year or less of “operational-type work,
such as closing loans and some processing”)).
9

The copy of the above-referenced e-mail that Mathosian
submitted with his Declaration does not reflect any highlighting
within the incorporated article. (See Docket Entry 45-1 at 9-12.)
Exhibit 1 similarly lacks any such highlighting, although a
separate copy of the e-mail that Pasternak handed up to the Clerk
with Exhibit 1 did contain highlighting for some words and phrases
within the article. Because Mathosian did not offer any testimony
(or other evidence) to authenticate the latter document or its
highlighting, the Court need not address that material.
-13-

[Exhibit 1] to anyone else [other than Ms. Siemering]?

A. No.”),

61-62 (“Q. [After receiving Exhibit 1], in fact, [Ms. Siemering]
did leave [Prime] and went to work with you at Integrity, didn’t
she?

A. She did.

I do.

Q. And you still work with [her], correct?

A.

Q. Did [Exhibit 1] impact your work relationship with [her]

in any way?

A. Ultimately, no. . . .

Q. Okay.

So other than

[you] perhaps being offended, there were no adverse consequences
from Mr. Rodgers sending [Exhibit 1] to Ms. Siemering, were there?
A. I would say other than that, no, nothing.”).)
Mathosian then discussed Exhibit 2, a “text [message] that []
Rodgers sent

to

[Siemering]”

(Docket

Entry

56

at

39),

which

Mathosian took “issue” with “first and foremost” not due to any
alleged

defamatory

content,

but

instead

because

it

conveyed

Rodgers’s “intention . . . to start torpedoing [Integrity]” and “to
offer his services to put [Siemering] with other firms” (id. at 3940; see also Docket Entry 45-1 at 2 (referencing, in Mathosian’s
Declaration, same “torpedoing” language), 15 (attaching same text
message as appears in Exhibit 2)).

Beyond that concern, Mathosian

merely noted that, in Exhibit 2, Rodgers “said that [Mathosian] was
lying . . . which was not true.”

(Docket Entry 56 at 40.)10

10

Rodgers objected to Mathosian’s testimony “speculating about
what [] Rodgers was thinking [when he sent Exhibit 2]” (Docket
Entry 56 at 40), but did not otherwise object to the admission of
Exhibit 2 (see id. at 41). It was admitted. (Id.)
-14-

At that point, Mathosian “turn[ed] to Exhibits 3, 4, and 5”
(id. at 41), which he identified as “a text [message] string from
[] Rodgers to [] Cohn” (id.).

Mathosian testified that his

“impression [of the string] was that [] Rodgers was both [sic]
threatening [Cohn] that if [Cohn] came to work with [Mathosian]
that [Cohn] would be wrapped up in litigation. [Rodgers] also told
[Cohn] that there would be better options and better places to work
than to come and work with [Mathosian].”

(Id. at 43-44.)11

Mathosian also testified that “Exhibit 6 was an e-mail that []
Rodgers sent to [] Cohn. . . .

[It] accus[es Mathosian] of

misrepresenting [his] incentive bonus . . . [to] st[eal] $14,000
and then it goes on to say that . . . crimes of moral turpitude and
embezzlement

don’t

normally

sit

well

with

state

banking

commissioners, investors, and warehouse banks.” (Id. at 44-45; see
also Docket Entry 35 at 9-13 (including same e-mail, dated December

11

According to Rodgers, Mathosian did not “establish[] a
proper foundation for [Exhibits 3, 4, and 5]. This is hearsay upon
hearsay.”
(Docket Entry 56 at 44; see also id. at 66-69
(describing Exhibits 3, 4, and 5 as photographs (forwarded to
Mathosian by Cohn) taken by Cohn, his wife, or someone else, of
text messages appearing on the screen of Cohn’s cellular telephone,
and acknowledging that none of the messages purportedly from
Rodgers mention Mathosian).) The undersigned Magistrate Judge took
that objection “under advisement.” (Id.) Substantial questions
exist about the admissibility of Exhibits 3, 4, and 5; however,
because they do not contain any libelous per se statement(s), their
admission would not prejudice Rodgers. As a result, for present
purposes, this Recommendation deems Exhibits 3, 4, and 5 admitted.
-15-

14,

2017,

with

Preliminary

Injunction

Motion).)12

On

cross-

examination, Mathosian conceded that the “allegation that [he stole
from Prime by misrepresenting his incentive pay] . . . [w]as made
in [Prime’s] counterclaims against Mathosian . . . .”

(Docket

Entry 56 at 74; see also id. at 75 (documenting Mathosian’s
agreement with statement in Exhibit 6 that “‘[c]rimes of moral
turpitude and embezzlement don’t normally sit well with state
banking commissions, investors or warehouse banks’”).)
Lastly, Mathosian examined Exhibit 9, “a complaint to the
State of Florida from [Ryan] Kerian [of Prime] that alleges that as
a result of . . . this particular lawsuit [Integrity] had declined
[Kenyetta

Crosdale’s]

application

for

a

mortgage

and

that

[Integrity] . . . w[as] not treating her fairly and appropriately”

12

During the evidentiary hearing, Rodgers argued that
“[Exhibit 6] was actually stolen by [] Cohn from a [Prime] server.
. . . [It] is essentially fruit of the poisonous tree. [It] was
never authorized to be sent to [] Mathosian or anyone else outside
of Prime; and for that reason . . . it should be stricken.”
(Docket Entry 56 at 45.) The undersigned Magistrate Judge “t[ook]
that [argument] under advisement” (id. at 46), but now overrules
it, after independent research “identified no role for the fruitof-the-poisonous[-]tree doctrine in the context of this civil
action,” O’Dell v. Kelly Servs., Inc., No. 15CV13511, 2017 WL
676945, at *10 (E.D. Mich. Feb. 21, 2017) (unpublished); see also
Lineberger v. Yang, No. 5:14CV137, 2016 WL 5928816, at *6 (W.D.N.C.
Oct. 11, 2016) (unpublished) (“[T]he ‘fruit of the poisonous tree’
doctrine does not apply in the civil setting . . . .”); Chadwell v.
Brewer, 59 F. Supp. 3d 756, 765 n.6 (W.D. Va. 2014) (“[T]he ‘fruit
of the poisonous tree’ is an exclusionary rule designed to deter
Fourth Amendment violations by preventing the admission of evidence
derived from illegal searches in criminal trials.
It is not
applicable to this civil action.” (internal citation omitted)).
-16-

(id. at 48; see also id. at 79 (“I don’t believe Mr. Rodgers’[s]
name was mentioned in [Exhibit 9].”)), and Exhibit 8, “a letter
from Ms. Crosdale that says that she did not, in fact, authorize
the complaint [set forth in Exhibit 9] and that she was, in fact,
very happy with [Integrity’s] services” (id. at 48; see also id. at
78-79 (acknowledging that Exhibit 8’s only reference to Mathosian
bestows “a compliment”)).13
ii. Representations of Counsel
about Non-Disparagement Agreement
Along
Magistrate

with
Judge

taking

Mathosian’s

engaged

with

testimony,

Cole,

the

Pasternak,

undersigned
and

McGuire

concerning their discussions about a non-disparagement agreement
(as

an

Motion).

alternative

to

litigating

(See id. at 4-22.)

the

Preliminary

Injunction

In that regard, Cole reported that:

13

Rodgers objected to the admission of Exhibits 8 and 9
because they “were disclosed . . . in contravention to the Court’s
February 9th order to disclose all of the [hearing] exhibits by
. . . [February] 13th . . . .” (Docket Entry 56 at 46.) Pasternak
acknowledged that he received Exhibits 8 and 9 “two days before
[that] deadline” (id. at 46-47), but explained that he did not
timely disclose them because “[s]ometimes things come in and you
don’t get to them right away” (id. at 47).
A decision as to
“[w]hat consideration the Court w[ould] give [Exhibits 8 and 9 was]
. . . reserve[d].” (Id.) Pasternak’s admitted failure to comply
with the disclosure deadline would warrant exclusion of Exhibits 8
and 9 (particularly given his poor excuse for his non-compliance);
however, because Exhibits 8 and 9 do not contain a single statement
by Rodgers (let alone any libelous per se statement(s) by him), no
prejudice would accrue to Rodgers from their admission.
This
Recommendation thus treats Exhibits 8 and 9 as admitted.
-17-

1) Cole “was not aware of [the letter McGuire e-mailed to
Pasternak

on

January

16,

2018]

until

after

the

[Preliminary

Injunction M]otion was filed” (id. at 8);
2) “[a]s soon as [Cole] saw the [R]esponse [to the Preliminary
Injunction Motion and the attached, redacted copy of the letter],
[Cole] e-mailed [] McGuire . . . and asked him for a complete
unredacted version, which he sent” (id. at 8-9; see also id. at 910 (“[I]t’s a serious allegation that we misrepresented something
to the Court, which was why I immediately e-mailed Mr. McGuire and
said, ‘Please send me the complete letter.’”));
3) “after [becoming] aware of the letter and all of the e-mail
communications,” Cole still believed “that the representation that
was made in [the Preliminary Injunction Motion that Mathosian’s
attorneys sought, to no avail, to have Rodgers agree to stop making
defamatory statements] is accurate,” because “the unredacted letter
. . . makes clear that there was not an offer on the table [by
Rodgers] for a mutual non-disparagement agreement standing alone”
(id. at 9; see also id. at 9-10 (“[The Preliminary Injunction
Motion] represented efforts to reach some mutual understanding had
failed and . . . that still is true. . . .

The redactions [in the

copy of the letter filed with Rodgers’s Response] are fairly
material to the issue of whether [he] w[as] willing to enter into
a mutual non-disparagement agreement. . . .

[T]he complete letter

. . . conditioned the non-disparagement agreement on many other
-18-

things

. . . .”), 13 (“[A] mutual non-disparagement [agreement]

. . . was just not, in fact, at all what was proposed.”));
4) in addition, Cole “spoke with [] McGuire and inquired
whether [Rodgers] would be willing to simply enter into a nondisparagement agreement standing alone to resolve the issues raised
in th[e Preliminary Injunction M]otion, leaving the remainder of
damages and ultimate relief to be litigated, and . . . the essence
of the response was no” (id. at 10; see also id. at 13 (“I asked
. . . McGuire whether [Rodgers] would be willing to enter a mutual
non-disparagement [agreement] standing alone and the answer was no.
. . .

[M]y understanding from speaking to [] McGuire was that

there was no proposal to enter into a mutual or unilateral nondisparagement

agreement.

That

was

never

something

that

was

proposed or on the table.”)); and
5) Cole’s “understanding was that . . . the position taken [by
Rodgers] was that [his] statements weren’t defamatory and that he
had every right to continue making them” (id. at 10-11).
When asked “why [Mathosian’s R]eply doesn’t address any of
that[ and] doesn’t dispute anything that [] McGuire represented in
[Rodgers’s R]esponse, but . . . instead simply says that the . . .
willingness [of Rodgers] to no longer engage in making defamatory
statements [is] irrelevant because [] Rodgers had made statements
after th[is action] was filed” (id. at 10), Cole answered:
was an oversight.

“[I]t

I think we probably should have addressed the
-19-

accusation that we had misrepresented something to the Court and
I’ll acknowledge that we didn’t do that and that was an oversight.”
(Id. at 11.)14

Cole further indicated that, rather than “argu[ing]

in the [R]eply that it’s irrelevant whether [Rodgers would sign a
mutual non-disparagement agreement]” (id.), Mathosian should have
argued in the Reply that McGuire’s statement that Rodgers would
sign a non-disparagement agreement is “belied by the terms of the
letter [McGuire sent to Pasternak], the redacted portions, and
[Cole’s] conversation with [] McGuire after [Cole received the
letter]” (id.; see also id. at 16 (“[I]t’s not in the [R]eply, but
what mattered to me was the fact that there was no proposal to
enter

into

a

mutual

non-disparagement

or

any

other

agreement to limit further communications by Rodgers.

sort

of

So the

[R]eply itself should have said that and it didn’t.”)).
Pasternak, in turn, “agree[d] with everything [] Cole said,
but [added that] the fact that [Rodgers] was proposing a mutual
non-disparaging agreement was another reason [Mathosian] rejected
it. [Mathosian] ha[d] not done anything that [] Rodgers ha[d] done
and for [Rodgers] to propose a mutual agreement was not effective
for [Mathosian].”

(Id. at 12 (emphasis added); see also id. at 13

(“THE COURT: So, [Mr. Cole] . . . you didn’t share Mr. Pasternak’s

14

The undersigned Magistrate Judge directed this inquiry to
Cole in the first instance, because he signed the Reply (on his own
and Pasternak’s behalf) (see Docket Entry 45 at 7).
-20-

objection to [a] mutual[ non-disparagement agreement].
Mr. Pasternak and I didn’t discuss that specific issue

MR. COLE:
. . . .”).)

Because, once more, the Reply said nothing about such matters, the
undersigned Magistrate Judge asked Pasternak whether it “would have
been more consistent with [his] duty of candor to have explained
that [context] rather than saying that [he and Cole] sought, to no
avail,

to

get

[Rodgers

to

agree

to

stop

statements] without providing that context?”
Pasternak replied:

making

defamatory

(Id. at 12-13.)

“In hindsight, yes, Your Honor.”

(Id. at 13.)

Along similar lines, the undersigned Magistrate Judge inquired
why Pasternak did not “pick up the phone and call [] McGuire and
say what [Pasternak’s and/or Mathosian’s] problem was with the
[proposal in the] letter [McGuire] sent to [Pasternak] as it
related to the non-disparagement agreement instead of filing th[e
Preliminary Injunction M]otion?” (Id. at 19.) Pasternak answered:
“I assumed by [McGuire’s] e-mail and his letter that we were done
negotiating.

That was his proposal that was on the table and we

weren’t comfortable with it.”
Cole’s

subsequent

(Id. at 19-20.)

remarks,

however,

called

into question

whether Pasternak (and Mathosian) actually considered the proposal
in McGuire’s letter before Mathosian (through Cole, acting on his
own and Pasternak’s behalf (see Docket Entry 35 at 7)) filed the
Preliminary Injunction Motion; specifically, Cole asserted:

-21-

Pasternak was not in the office on [January] 16th. I was
finalizing th[e Preliminary Injunction M]otion to file.
. . . I did not receive the letter [e-mailed by McGuire]
on [January] 16th. . . .
I don’t think there was an
opportunity . . . for either of us to respond,
[Pasternak] having not been in the office and me not
having been provided a copy of the letter.
(Docket Entry 56 at 20.)
For his part, McGuire disagreed with Cole’s characterization
of both their discussions after the filing of the Preliminary
Injunction Motion and the letter McGuire sent to Pasternak before
the filing of the Preliminary Injunction Motion:
Mr. Cole described a conversation that we had when I
said, no, we would not agree to a standalone mutual nondisparagement agreement.
I don’t have the same
recollection of that conversation . . . .
My recollection is that when that question may have been
posed, what I said was, “Well, for us to even have that
conversation, you need to withdraw the . . .
[P]reliminary [I]njunction [M]otion because it’s going to
force my client to expend substantial time and resources
fighting that.”
. . . The letter that I sent [to Mr. Pasternak before the
filing of the Preliminary Injunction Motion] was a
response not only to Mr. Pasternak’s e-mail about alleged
defamatory statements [since the commencement of this
action].
It was also in response to a letter from
December [2017] that Mr. Pasternak had sent with a
settlement proposal, so that’s why there are redactions
in that letter. We were responding in toto to everything
that was on the table proposed to us at that time and
that included Mr. Pasternak’s e-mail to me about [an]
allegedly defamatory e-mail sent [by Mr. Rodgers to Mr.
Cohn] a month or so prior. . . . I stand by what I wrote
in our [Response].
. . . .

-22-

I don’t agree with [Mr. Cole’s] characterization [of my
letter to Mr. Pasternak as conditioning assent to a
mutual non-disparagement agreement on resolution of the
entire case] and here’s why. When I [first] responded to
Mr. Pasternak . . . I said I would speak with my client
about refraining from any further commentary. That was
on January the 12th.
. . . .
So when I sent [Mr. Pasternak] the letter . . . [on
January 16, 2018] . . . the first proposal in the letter
[offered a mutual non-disparagement agreement], let’s
knock that off the table first, get that done, and then
[the letter] had other proposals to resolve other facets
of the case. At no point did anyone write back to me or
e-mail and say “We’ll agree to the mutual nondisparagement agreement, but we’re going to have to
resolve the other things later.”
So as a practical
matter, once the [Preliminary Injunction M]otion was
filed, . . . we proceeded to brief the matter and are
here today.
But I think on January the 12th or 16th of 2018 if
someone had come back to me and said, “Yes, we will agree
to a mutual non-disparagement agreement,” I feel
comfortable representing to the Court that my client
would have agreed to that independent of settlement of
any of the other aspects of the case.
(Id. at 17-19.)
Because of the potential materiality of “the issue of whether
or

not

there

could

have

been

an

agreement

to

cease

making

[disparaging] statements . . . [to] the preliminary injunction
factors” (id. at 21), as well as the “possib[ility] that a fuller
understanding of the letter [McGuire sent to Pasternak before the
filing of the Preliminary Injunction Motion] may be necessary for
a full evaluation of th[ose] factor[s]” (id.), the undersigned
Magistrate Judge directed counsel for Mathosian and Rodgers to
-23-

attempt to agree upon “a sufficiently unredacted form of the letter
[that] would permit the Court to have what each side considers a
full and fair understanding of what the letter said and what it
didn’t say” (id. at 22).

The undersigned Magistrate Judge further

ordered counsel to “file whatever [they] can agree to. . . .

And

if [they could not] agree . . . [they were required to] file a
notice letting the Court know about that as well; and . . . [to]
have that done by . . . March the 2nd.”
D.
Mid-afternoon

on

(Id.)

Post-Hearing Filings
March

2,

2018,

Rodgers

filed

a

Notice

stating:
On February 28, 2018, at approximately 5:45 p.m. ET,
counsel for Rodgers notified counsel for Mathosian via
email that Rodgers had no objection to submitting the
entire unredacted letter to the Court, and asked counsel
for Mathosian to let him know of their position on this
issue. On March 2, 2018, at approximately 9:45 a.m. ET,
counsel for Rodgers again asked counsel for Mathosian to
let him know if they had any objection to submitting the
entire unredacted letter. As of the time of the filing
of this Notice, counsel for Mathosian has not responded
to either email.
(Docket

Entry

54

at

2

(emphasis

added);

see

also

Notice

of

Electronic Filing, Docket Entry 54 (documenting filing of Notice by
Rodgers “on 3/2/2018 at 2:48 PM EST”).)
After the close of business that day, Mathosian filed his own
Notice (Docket Entry 55; see also Notice of Filing, Docket Entry 55
(documenting filing of Notice by Mathosian “on 3/2/2018 at 5:27 PM
EST”)), along with an unredacted copy of McGuire’s letter to
-24-

Pasternak dated January 16, 2018 (Docket Entry 55-1).

Mathosian’s

Notice included the following “additional facts giving context to
the[] receipt and review of the letter” (Docket Entry 55 at 1):
First, although the letter is dated January 16, 2018 and
was, according to Mr. Matthew McGuire, e-mailed to Mr.
Thomas Pasternak before the . . . Preliminary Injunction
[Motion] . . . was filed, it was not reviewed by Mr.
Pasternak until . . . January 17, 2018 . . . because (a)
Mr. Pasternak was traveling for work at the time and (b)
it was caught in Mr. Pasternak’s spam folder.
Second, Mr. Edward Cole called Mr. McGuire to inquire
whether the [Preliminary Injunction] Motion could be
resolved by entering into a mutual non-disparagement
agreement alone1 and was informed by Mr. McGuire that
more was required.
1

[Mr. Mathosian] is willing to enter into a mutual
non-disparagement agreement and believes that doing so
would dispose of certain issues in this case, including
the [Preliminary Injunction] Motion.

(Id. at 1-2.)15
The entire body of the letter appears as follows:
I write on behalf of my clients in response to your
December 19, 2017 letter to my associate [], as well as
in response to your January 12 emails concerning
allegedly defamatory comments made by Mr. Rodgers.
Suffice it to say that the parties have radically
different views on what has transpired between December
2016 and today. I think the easier problem to solve is
a mutual agreement to refrain from any negative comments
about the other side, as well as an agreement not to
engage in any inappropriate or illegal solicitation of
the other parties’ employees or branches. I have spoken
with my clients, and they are willing to abide by such an
agreement if your clients are as well.
The far more
difficult problem lies in a proper reconciliation of the

15

Cole signed the Notice on his own and Pasternak’s behalf.
(Docket Entry 55 at 2.)
-25-

harm that your clients generally, and Mr. Mathosian in
particular, have inflicted on my clients.
The essence of Integrity’s claims in this case is that a
number of loan files were misappropriated when the Sparks
made the move to Prime.
Based on our research, we
believe you have grossly overstated the potential damages
attributable to these claims, but nevertheless Prime is
willing to conduct a fair reconciliation of the files you
contend were misappropriated against files that we
believe were misappropriated recently by Mr. Cohn,
following Mr. Mathosian’s illegal solicitation of him.
Assuming both sides approach this exercise with a sincere
desire to set the record straight, this should not be an
insurmountable hurdle.
Your clients’ claims for defamation are, frankly,
spurious. Hurt feelings are not actionable, and to date
you have not articulated, much less alleged, any facts
that show that one or two random comments or texts from
Mr. Rodgers have harmed your clients in any way.
By
contrast, Mr. Mathosian’s calculated misinformation
campaign that he began conducting immediately upon
resigning from Prime has caused my clients over $130,000
in damages attributable to salary increases and retention
bonuses paid in an attempt to retain Prime employees to
whom Mr. Mathosian lied.
Such actions constitute an
unfair and deceptive trade practice entitling Prime to
recover treble damages and attorneys’ fees. Similarly,
Mr. Mathosian’s conduct between the time he accepted a
job with Integrity and the date he resigned from Prime is
a per se breach of his fiduciary duty as an officer of
Prime, which as a matter of law is an unfair and
deceptive trade practice under North Carolina law.
Though we have not yet raised this issue as part of the
Counterclaims,
Integrity
owed
Darrell
Sparks
approximately $160,000 of earned income at the time he
resigned from Integrity. Once the jurisdictional issue
has been resolved, Mr. Sparks intends to pursue a claim
for recovery of these unlawfully withheld funds in the
appropriate forum.
Accordingly, my clients will agree to the following in an
effort to resolve this case at this time:
1. Mutual non-disparagement agreement;
-26-

2. Mutual agreement to conduct solicitation of employees
and branches in the ordinary course of business and with
no factual misrepresentations regarding the other side;
3. A reconciliation of all loan files involved in the
Sparks’ [sic] move to Prime and Mr. Cohn’s move to
Integrity, with the goal of reimbursing the appropriate
party which owned the right to close a particular loan;
4. Payment of $300,000 to Prime in consideration for
damages caused by Mr. Mathosian’s breach of his fiduciary
duties prior to his resignation in December 2016 and his
post-resignation conduct;
5. Payment of $160,000 to Mr. Sparks for return of the
funds in his P&L account at Integrity when he was
terminated in January 2017; and
6. Mutual dismissals and releases of all claims,
counterclaims, and potential claims existing between the
parties as of the date of any settlement.
Lastly, Prime has received several requests from former
borrowers who have expressed a desire to close their
respective loans with Integrity/Mr. Cohn, asking that
Prime expressly release any claims it may have against
Integrity, Mr. Cohn and Mr. Mathosian relating to that
borrower’s loan application. In at least one instance a
borrower threatened to complain to the CFPB if Prime did
not accede to her request. It is unseemly, to say the
least, for your clients to put potential borrowers in the
middle of an ongoing business dispute. Please direct
your clients to cease this activity immediately.
Please contact me if you have any questions or wish to
discuss this matter further.
(Docket Entry 55-1 at 1-2.)
II.

DISCUSSION

“A preliminary injunction is an extraordinary remedy . . . .”
Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017).

“A

plaintiff seeking a preliminary injunction must demonstrate ‘that
-27-

he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in
the public interest.’”

Id. (emphasis added) (quoting Winter v.

Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).16

“[E]ach

preliminary injunction factor [must] be satisfied as articulated.”
Pashby v. Delia, 709 F.3d 307, 320 (4th Cir. 2013) (internal
quotation marks omitted).
A.

Mathosian has fallen short on all four.

Likelihood of Success on the Merits

Mathosian’s FAC asserts that Rodgers committed “Libel/Slander
Per Se” (Docket Entry 4 at 12), in contravention of North Carolina
law (see Docket Entry 35 at 3-4 (arguing merits of said claim by
reference to North Carolina law); see also Docket Entry 56 at 22-23
(documenting
Rodgers’s

Mathosian’s

agreement

agreement

(through

(through

McGuire)

that

Pasternak)
“North

and

Carolina

substantive defamation law controlled”)). According to the Supreme

16

The Preliminary Injunction Motion concedes that the abovequoted standard applies (see Docket Entry 35 at 3 (quoting Winter,
555 U.S. at 20); see also id. at 1 (invoking Federal Rule of Civil
Procedure 65 as basis for preliminary injunctive relief request),
2 (same)), notwithstanding the fact that the underlying claim
arises under state law (see id. at 3-4 (arguing that North Carolina
law supplies rules of decision for Libel/Slander Per Se claim)) and
proceeds in federal court via supplemental jurisdiction (see Docket
Entry 4 at 14 (citing 28 U.S.C. § 1367)). That concession accords
with binding precedent. See Capital Tool & Mfg. v. Maschinenfabrik
Herkules, 837 F.2d 171, 172-73 (4th Cir. 1988) (holding that
federal preliminary injunction standard applies even in diversity
jurisdiction cases where substantive state law controls).
-28-

Court

of

slanderous]

North
per

Carolina,
se

.

.

.

“‘a
if,

publication
when

is

considered

libelous
alone

[or

without

innuendo: (1) it charges that a person has committed an infamous
crime; (2) it charges a person with having an infectious disease;
(3) it tends to subject one to ridicule, contempt, or disgrace, or
(4) it tends to impeach one in his trade or profession.’”

Ellis v.

Northern Star Co., 326 N.C. 219, 224 (1990) (quoting Flake v. News
Co., 212 N.C. 780, 787 (1938)); see also Parker v. Edwards, 222
N.C. 75, 78 (1942) (“[A] defamatory statement, to be actionable,
must be false.” (internal quotation marks omitted)); Broadway v.
Cope, 208 N.C. 85, 88 (1935) (explaining distinction between
slander and libel as “one is oral and the other is written”).17

17

Upon proof of libel or slander per se, North Carolina “law
raises a prima facie presumption of malice and a conclusive
presumption of legal injury and damage, entitling the victim of the
defamation to recover damages, nominal at least, without specific
proof of injury or damage.” Badame v. Lampke, 242 N.C. 755, 756
(1955). For defamation outside the narrow confines of libel and
slander per se, North Carolina law recognizes claims “per quod, and
in such cases the injurious character of the words must be pleaded
and proved, and in order to recover there must be allegation and
proof of some special damage.” Id. at 757; see also Stutts v. Duke
Power Co., 47 N.C. App. 76, 82 (1980) (“[S]pecial damage means
pecuniary loss, as distinguished from humiliation.”). Given the
express language of the FAC (see Docket Entry 4 at 12 (labeling
“Count VIII – Libel/Slander Per Se”)), “we are concerned here only
with the law relative to libel [and slander] per se,” Renwick v.
News & Observer Publ’g Co., 310 N.C. 312, 317 (1984).
Alternatively, Mathosian has not shown a likelihood of success on
any per quod defamation claim because his hearing testimony failed
to establish any special damage. (See Docket Entry 56 at 27-81.)
-29-

For a plaintiff to prevail on such a claim, “the words
attributed to [the] defendant [must] be alleged substantially in
haec verba, or with sufficient particularity to enable the court to
determine whether the statement was defamatory.”

Stutts v. Duke

Power Co., 47 N.C. App. 76, 84 (1980) (internal quotation marks
omitted);18 accord Jolly v. Academy Collection Serv., Inc., 400 F.
Supp. 2d 851, 861 (M.D.N.C. 2005) (construing North Carolina law);
see also Scott v. Statesville Plywood & Veneer Co., 240 N.C. 73, 75
(1954) (“The declaration or complaint ought to state the libel in
the original language.”).

That requirement (applicable to all

species of defamation claims in North Carolina) bears special
significance where, as here, the plaintiff proceeds on a theory of
“Libel/Slander

Per

Se,”

because,

“[i]n

determining

whether

publications are . . . libelous [or slanderous] per se . . . the
[publication]

alone

must

be

construed,

stripped

of

all

insinuations, innuendo, colloquium and explanatory circumstances.
The [publication] must be defamatory on its face within the four
corners thereof.”

Renwick v. News & Observer Publ’g Co., 310 N.C.

312, 318 (1984) (emphasis added) (block quote formatting and
internal quotation marks omitted).
In this case, the FAC sets out only four allegedly defamatory
statements, i.e., that Rodgers:
18

(1) “repeatedly referred to

In haec verba means “[i]n these same words; verbatim.”
haec verba, Black’s Law Dictionary (8th ed. 2004).
-30-

In

Mathosian as a liar” (Docket Entry 4 at 6); (2) “referred to
Mathosian as lacking sales experience” (id. at 7); (3) “referred to
Mathosian as being overpaid” (id.); and (4) “called Mathosian a
sociopath” (id.).19

Mathosian has not “ma[d]e a clear showing that

he is likely to succeed at trial,” Di Biase, 872 F.3d at 230, on
his Libel/Slander Per Se claim as to any such statements.
As to the first of those four statements, Mathosian has come
forward with precious little evidence tending to establish the
19

As detailed in Subsection I.B. and Part I.C.i., in addition
to the four above-quoted statements, Mathosian also attempted to
ground his Preliminary Injunction Motion on statements in an e-mail
Rodgers allegedly sent Cohn on December 14, 2017, highlighting
Prime’s theft-related counterclaim against Mathosian. (See Docket
Entry 35 at 2, 4, 10; Docket Entry 45 at 2-3, 5-6; Docket Entry 56
at 44-45.) Given the FAC’s filing date of October 10, 2017, the
Libel/Slander Per Se claim therein cannot rest on that laterdelivered e-mail; Mathosian therefore cannot show a likelihood of
success on that claim by pointing to language in that e-mail. The
Court thus need not resolve the question (impliedly disputed, but
not adequately addressed, by Rodgers and Mathosian (compare Docket
Entry 38 at 16, with Docket Entry 45 at 5)) of whether North
Carolina law –- or Florida law, which arguably may apply to any
libel claim based on that e-mail, in light of its apparent receipt
by Cohn in Florida (see Docket Entry 56 at 26) -– would extend the
absolute privilege against defamation liability for “statement[s]
made in the due course of a judicial proceeding,” Jarman v. Offutt,
239 N.C. 468, 472 (1954); see also DelMonico v. Traynor, 116 So. 3d
1205 (Fla. 2013) (discussing privileges applicable under Florida
law to statements regarding judicial proceedings), to Rodgers’s
alleged, e-mailed repetition to Cohn of the exact words and/or the
gist of the counterclaim, see, e.g., POET, LLC v. Nelson Eng’g, No.
CIV 17-4029, 2018 WL 791254, at *4 (D.S.D. Feb. 7, 2018)
(unpublished) (observing that “absolute privilege [for statements
made in judicial proceedings] generally does not extend to [a
litigant’s] out-of-court communications with third parties [about
the contents of pleadings],” but that “courts have recognized
exceptions to this general rule . . . where the courts found that
the non-parties had a substantial interest in the proceeding”).
-31-

falsity of Rodgers’s alleged generic reference to Mathosian “as a
liar” (Docket Entry 4 at 6), a term defined as “a person who tells
lies,” www.Merriam-Webster.com/dictionary/liar (last visited Mar.
30, 2018).

For example, Mathosian’s Declaration simply labels the

statement false, without elaborating about his truthfulness.
Docket Entry 45-1 at 2.)
during

the

hearing

that,

(See

Likewise, although Mathosian testified
in

Exhibit

2,

Rodgers

“said

that

[Mathosian] was lying and attacking [Prime], which was not true”
(Docket Entry 56 at 40 (emphasis added)), Mathosian’s hearing
testimony did not address the more general question (actually
raised by the FAC) of whether Mathosian was (or was not) a liar
(i.e., a person who tells lies) (see id. at 27-81).

In any event,

even if Mathosian had presented compelling evidence that Rodgers
lied by describing Mathosian as a liar, North Carolina “[c]ourts
have consistently held that alleged false statements calling [a]
plaintiff dishonest or charging that [a] plaintiff was untruthful
. . . are not actionable per se.”

Gibson v. Mutual Life Ins. Co.

of N.Y., 121 N.C. App. 284, 289 (1996) (internal ellipsis and
quotation marks omitted) (deeming statement that the plaintiff
“lied . . . and could not be trusted” as “not actionable per se”
(internal quotation marks omitted)); see also Johnson v. Bollinger,
86 N.C. App. 1, 10 (1987) (ruling that statement “accus[ing the
plaintiff-merchant] of being a ‘liar’” did not constitute slander
per se).
-32-

Nor does the record support a finding that Mathosian likely
will succeed in securing a judgment for libel or slander per se
based on the FAC’s allegations that Rodgers “referred to Mathosian
as lacking sales experience” (Docket Entry 4 at 7) and “as being
overpaid” (id.).

To the contrary, as revealed by Mathosian’s own

testimony reviewing the e-mail from Rodgers to Prime staff after
Mathosian left Prime, on which Mathosian apparently relies for
those sales- and compensation-related aspects of his defamation
claim (see Docket Entry 56 at 36-37 (discussing Exhibit 7); see
also Docket Entry 45-1 at 2 (characterizing same e-mail (attached
as Exhibit A (id. at 5-7)) as “imply[ing] that Mathosian was
overpaid and not a good salesman”)):
1) said e-mail does not “refer[] to Mathosian as lacking sales
experience” (Docket Entry 4 at 7), but instead states that Rodgers
“would hire a true sales manager that would help [Prime] grow”
(Docket Entry 56 at 37; accord Docket Entry 45-1 at 6);
2) Mathosian held the job of “CEO” at Prime, in which capacity
he focused on many matters unrelated to sales, such that he did not
act as “a true sales manager” (Docket Entry 56 at 56-57; see also
Docket Entry 45-1 at 5 (setting out Rodgers’s explanation that he
would not “replac[e Mathosian with another CEO] and [instead
personally would] tak[e] on the [duties of the CEO] position”));
3)

said

e-mail

does

not

“refer[]

to

Mathosian

as being

overpaid” (Docket Entry 4 at 7); rather, it describes him as
-33-

“‘highly compensated’” (Docket Entry 56 at 54; accord Docket Entry
45-1 at 5); and
4) Mathosian earned around $500,000/year at Prime, which he
agreed made him “highly compensated” (Docket Entry 56 at 55).
The record thus indicates that the FAC misrepresents Rodgers’s
actual (e-mailed) words about Mathosian’s sales experience and/or
compensation status and that Mathosian acknowledged (under oath)
the truthfulness of Rodgers’s actual (e-mailed) words on those
subjects.

Those circumstances portend a greater likelihood of

dismissal for frivolousness than of a verdict of libel per se.
Finally, Mathosian has not “ma[d]e a clear showing that he is
likely to succeed at trial,” Di Biase, 872 F.3d at 230, on his
Libel/Slander Per Se claim premised on the FAC’s allegation that
Rodgers “called Mathosian a sociopath” (Docket Entry 4 at 7).

In

both his Declaration and hearing testimony, Mathosian attempted to
support such a claim by citing an e-mail (with an embedded internet
article) that Rodgers allegedly sent Siemering.

(See Docket Entry

45-1 at 2 (citing, as Exhibit B (id. at 9-13), e-mailed “article
implying that Mathosian was a sociopath”); Docket Entry 56 at 38
(discussing same e-mail (identified as Exhibit 1)).)

To begin, as

Mathosian has acknowledged, that e-mail does not “mention[ his]
name,” let alone “say [he] is a sociopath[.]”
60.)

(Docket Entry 56 at

To the extent Siemering would have understood the e-mail to

concern Mathosian, the record does not establish that she viewed
-34-

(or any reasonable person in her position would have viewed) the email (and its incorporated article entitled “Characteristics of a
Sociopath” (Docket Entry 45-1 at 9)), “as stating actual facts
about [Mathosian],” Daniels v. Metro Magazine Holding Co., L.L.C.,
179 N.C. App. 533, 539 (2006), appeal dismissed and discretionary
review denied, 361 N.C. 692 (2007).
In that regard, the article in question begins by quoting the
Sherlock Holmes character in a British television series describing
himself as “‘not a psychopath, [but instead] a high functioning
sociopath,’”

and

then

continues

by

examining

“what

the

term

sociopath entails, whether it is indeed distinct from psychopathy,
and whether Holmes was right to diagnose himself as one.”
Entry 45-1 at 9.)

(Docket

Given that backdrop, a reasonable reader in

Siemering’s position could conclude, at most, that any linkage (by
Rodgers) of Mathosian to the term “sociopath” did not amount to a
factual report that Mathosian met the official diagnostic criteria
of a recognized mental impairment, but rather reflected only a
layperson’s

(non-actionable)

use

of

“‘loose,

figurative,

or

hyperbolic language,’” Daniels, 179 N.C. App. at 540.20 Put another

20

Indeed, for decades, the reasonably informed have understood
“that the word ‘sociopath’ is not generally accepted in the
psychiatric community.” Harris v. Vasquez, 949 F.2d 1497, 1517
(9th Cir. 1990); see also id. (crediting attorney for “kn[o]w[ing]
that ‘antisocial personality’ was the term used in the [Diagnostic
and Statistical Manual of Mental Disorders, the authoritative
(continued...)
-35-

way, “any reasonable person reading [this e-mail] would recognize,
based

on

the

tenor,

language,

and

context

.

.

.,

that

the

challenged statements constitute a subjective view, not a factual
statement. When a speaker plainly expresses ‘a subjective view, an
interpretation, a theory, conjecture or surmise, rather than a
claim to be in possession of objectively verifiable false facts,
the statement is not actionable.’”

Biospherics, Inc. v. Forbes,

Inc., 151 F.3d 180, 186 (4th Cir. 1998) (internal brackets omitted)
(quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th
Cir. 1993)); see also Crowe v. County of San Diego, 608 F.3d 406,
444-45 (9th Cir. 2010) (recognizing that, even where “statements
regarding [an individual] ‘exhibiting sociopathic tendencies’” come
from a mental health professional and “may – or may not - be
provably false, they do not constitute defamation per se”).
In sum, Mathosian has not satisfied the likelihood-of-successon-the-merits prong of the preliminary injunction test.
B.

Likelihood of Suffering Irreparable Harm

Nearly 60 years ago, the United States Supreme Court “stated
that ‘the basis of injunctive relief in the federal courts has
always been irreparable harm and inadequacy of legal remedies’
. . . .”

Sampson v. Murray, 415 U.S. 61, 88 (1974) (internal

20

(...continued)
mental health reference
Association]”).

compiled
-36-

by

the

American

Psychiatric

bracket omitted) (quoting Beacon Theatres, Inc. v. Westover, 359
U.S. 500, 506-07 (1959)).

“Yet the record [here] indicates that

[Mathosian gave no testimony on point when afforded the opportunity
to be] heard on the issue of irreparable injury . . . .”

Id.21

Further, to the extent Mathosian has “intimated that either loss of
earnings or damage to [his] reputation might afford a basis for a
finding of irreparable injury and provide a basis for [preliminary]
injunctive relief,” id. at 89, the United States Supreme Court
“disagree[s],” id.

Accordingly, “[a]ssuming for the purpose of

discussion that [Mathosian] had made a satisfactory showing of loss
of income and had supported the claim that h[is] reputation would
be damaged as a result of [likely future defamatory statements],
21

For example, although the FAC alleges that “false and
malicious statements [by Rodgers] have negatively impacted
Mathosian’s income and ability to hire” (Docket Entry 4 at 12), and
“have caused parties to back out of deals with [him], severely
impacting his income” (id.), Mathosian’s hearing testimony failed
to substantiate those allegations (see Docket Entry 56 at 27-81).
In fact, Mathosian has conceded that Siemering and Cohn, the only
two people Mathosian identified as hiring targets who received
communications allegedly defaming him, both subsequently came to
work for him. (See Docket Entry 35 at 2; Docket Entry 56 at 61.)
Moreover, Mathosian testified that, since moving to Integrity, he
has continued to earn over half a million dollars annually. (See
Docket Entry 56 at 49-51.) Nor has Mathosian come forward with
sufficient evidence for the Court to conclude that Rodgers likely
will make defamatory statements during the pendency of this
litigation; as Rodgers has observed:
“[T]here is no imminent
threat. The fact that [for proof of ongoing, post-FAC defamation
risk] Mathosian’s [Preliminary Injunction] Motion rests on a lone
intra-company email sent over a month [before the filing of the
Preliminary Injunction Motion (i.e., Rodgers’s e-mail to Cohn
regarding Prime’s counterclaim)] demonstrates the absence of any
[likelihood of future irreparable] harm.” (Docket Entry 38 at 9.)
-37-

. . . th[at] showing falls far short of the type of irreparable
injury

which

is

a

necessary

predicate

[preliminary] injunction . . . .”

to

the

issuance

of

a

Id. at 91-92.

Simply put, “there is no [basis for a] finding by the [C]ourt
that [Mathosian] would suffer irreparable damage or that []he has
no adequate remedy at law in the event the [preliminary] injunction
should be denied.”
1967).

Alberti v. Cruise, 383 F.2d 268, 272 (4th Cir.

To the contrary, “[g]enerally an injunction will not issue

to restrain torts, such as defamation” id., because “[t]here is
usually an adequate remedy at law which may be pursued in seeking
redress from . . . defamation,” id.
general

rule/usual

scenario,

as

This case falls within that
the

FAC

expressly

demands

“compensatory damages due to [Rodgers’s] libel and slander of
Mathosian” (Docket Entry 4 at 15), and Mathosian could pursue the
same relief for any new defamation, see, e.g., Fed. R. Civ. P.
15(d) (“[T]he court may, on just terms, permit a party to serve a
supplemental pleading setting out any transaction, occurrence, or
event

that

happened

after

the

date

of

the

pleading

to

be

supplemented.”); see also Kramer v. Thompson, 947 F.2d 666, 679-80
(3d Cir. 1991) (citing -- as one ground for “revers[ing] those
portions

of

the

district

court’s

orders

that

enjoined

[the

defendant] from repeating the statements deemed libelous” -- the
absence of any “showing that [the defendant wa]s indigent . . . or
that the threat of future damages [wa]s inadequate to deter [the
-38-

defendant]

or

to

compensate

[the

plaintiff]”).

Under

these

circumstances, “[t]he possibility that adequate compensatory or
other corrective relief will be available at a later date weighs
heavily against a claim of irreparable harm.”

Di Biase, 872 F.3d

at 230 (internal ellipsis and quotation marks omitted).
Additionally, in addressing the irreparable harm element of
the preliminary injunction standard, the Fourth Circuit has held
that “a preliminary injunction is not warranted where, as here, the
moving parties have not shown that they availed themselves of
opportunities to avoid the injuries of which they now complain.”
Id. at 235.

In that regard, the record (as detailed in Subsection

I.B., Part I.C.ii., and Subsection I.D.) confirms that Mathosian
(through his counsel) did not take reasonable steps to obtain an
agreement

from

Rodgers

to

cease

defamatory

commentary.

Of

particular note, after Pasternak e-mailed McGuire for the purported
purpose of inquiring “if [Rodgers] will agree to stop [making
defamatory comments], so that [Mathosian] d[id]n’t have to bring
the [Preliminary Injunction M]otion” (Docket Entry 38-3 at 3),
either (depending on which of Pasternak’s accounts one credits):
1) Pasternak personally received McGuire’s letter proposing a
mutual non-disparagement agreement (on the day they agreed McGuire
would respond (see Docket Entry 38-3 at 2)), Pasternak rejected
that proposal sub silentio (because of the mutual nature of the
proposal and/or because of its inclusion in a letter with other
-39-

proposals to resolve other issues in the case), and Pasternak
allowed Cole to file the Preliminary Injunction Motion without
discussing McGuire’s proposal with Cole and without calling McGuire
to seek modification of the proposal or clarification as to its
severability from the other proposals in the letter22 (despite the
fact that McGuire explicitly invited further discussion (see Docket
Entry 55-1 at 2)) (see Docket Entry 56 at 12, 19-20); or
2) Pasternak allowed Cole to file the Preliminary Injunction
Motion

before

Pasternak

personally

received

McGuire’s

letter

proposing a mutual non-disparagement agreement, without followingup with McGuire about his promise to respond that day (which
inquiry would have allowed McGuire to explain that he already had
sent the letter, which Pasternak later realized had become stuck in
his e-mail spam filter) (see Docket Entry 55 at 1).
Each of those alternatives reflects poorly on Pasternak and
(particularly when considered in conjunction with the argument in
Mathosian’s Reply that Rodgers’s willingness to enter a nondisparagement agreement would not moot the Preliminary Injunction
Motion (see Docket Entry 45 at 3)) warrants the conclusion that

22

A review of the full text of the letter (Docket Entry 55-1
at 1-2) does not support the contentions made by Cole (see Docket
Entry 56 at 9-10) and adopted by Pasternak (see id. at 12) that the
letter clearly conditioned any non-disparagement agreement on
resolution of other issues in the case; at a minimum, the letter
left open the possibility of a stand-alone, non-disparagement
agreement.
-40-

Mathosian (through his counsel) failed to undertake a genuine,
good-faith effort to secure through voluntary means the very thing
(i.e., an end to defamatory commentary) that the Preliminary
Injunction Motion purports to seek.23

Given that consideration, as

well as the availability of a damages remedy for any (to this
point, only speculatively forecast) future defamation, Mathosian
has not shown a likelihood of irreparable harm as required to
obtain a preliminary injunction.24
C.

Balance of Equities

To prevail on the Preliminary Injunction Motion, Mathosian
must establish “that the balance of equities tips in his favor

23

That judgment stands, even if (as Cole maintains (see Docket
Entry 56 at 10)) McGuire (in a telephone conversation after Rodgers
had incurred the cost of responding to the Preliminary Injunction
Motion) no longer expressed interest in a non-disparagement
agreement. By that point, Pasternak’s conduct had substantially
frustrated the purpose of such an agreement (as articulated in his
original e-mail to McGuire (Docket Entry 38-3 at 3)), i.e.,
avoiding litigation of the Preliminary Injunction Motion.
24

The deficiency of Mathosian’s showing as to the likelihood
of irreparable harm also further undermines his position regarding
his likelihood of success on the merits. See Watson v. McGuire,
Civil Action No. 15-1043, 2016 WL 7839114, at *4 (D.D.C. June 2,
2016) (unpublished)
(“Finally
the
[c]ourt
addresses
[the
p]laintiffs’ likelihood of success on the merits. This depends on
how likely [the p]laintiffs are to obtain the permanent injunction
they ultimately seek. It is not a question of whether, as [the
p]laintiffs suggest, they will satisfy the elements of their
defamation . . . claim[]. If they are likely to prevail on th[at]
claim[], but only ultimately to recover money damages, that is not
a substantial likelihood [of success on the merits] that militates
in favor of entering a preliminary injunction.” (internal brackets,
citation, and quotation marks omitted)).
-41-

. . . .”

Di Biase, 872 F.3d at 230 (internal quotation marks

omitted).

To meet his burden in that regard, Mathosian has framed

the competing interests as follows:
1) “Mathosian’s reputation has been and continues to be harmed
by Rodgers’s false, defamatory statements” (Docket Entry 35 at 5)
and preliminary injunctive relief “would protect Mathosian from
such injury” (id.); whereas,
2) “Rodgers would not be harmed at all if he is no longer
allowed to make defamatory statements regarding Mathosian” (id.),
because “Rodgers has no protectable legal interest in making
defamatory statements about Mathosian” (id.).
Mathosian

has

equitable balance.

grossly

mis-calibrated

both

sides

of

the

First, Mathosian’s hearing testimony did not

disclose any reputational injury from defamatory statements by
Rodgers.

(See Docket Entry 56 at 27-81.)

Nor does it appear

Mathosian could have offered any such evidence, as (a) Mathosian
has conceded that Siemering –- the only person who allegedly
received Rodgers’s text message accusing Mathosian of lying (see
id. at 39-40, 62-63), as well as the e-mail impliedly labeling
Mathosian a sociopath (see id. at 38, 58, 61) –- and Cohn –- the
only person who allegedly received Rodgers’s e-mail repeating the
theft-related charges in Prime’s counterclaim (see Docket Entry 56
at 44-45, 70-71) –- both subsequently spurned Rodgers and embraced
Mathosian (see Docket Entry 35 at 2; Docket Entry 56 at 61), and
-42-

(b) Mathosian has admitted the truthfulness of the statements
Rodgers made about sales- and compensation-related issues in the email sent to Prime staff (see Docket Entry 56 at 36-37, 53-57).
Second, Mathosian’s proposed preliminary injunction would
seriously harm Rodgers in that it would “amount[] to an overly
broad

prior

restraint

justification.

upon

[his]

speech,

lacking

plausible

As such, the Constitution forbids it.”

Tory v.

Cochran, 544 U.S. 734, 738 (2005) (internal citations omitted); see
also McCarthy v. Fuller, 810 F.3d 456, 461 (7th Cir. 2015) (“‘Prior
restraint’

is

just

a

fancy

term

for

censorship,

which

means

prohibiting speech before the speech is uttered or otherwise
disseminated.”).

Specifically, Mathosian has proposed that the

Court enjoin Rodgers from “making any libelous or slanderous
statement about [] Mathosian” (Docket Entry 35-1 at 1), “any
derogatory statement about [] Mathosian” (id.), and “any untrue
statement about [] Mathosian” (id.).

Such an injunction would

subject Rodgers to imprisonment and fines for contempt not only for
wholly unidentified statements that a judge later deems false and
defamatory, but also for truthful, non-defamatory statements that
a judge later deems “derogatory,” as well as non-defamatory, nonderogatory statements that a judge later deems “untrue.”

Merely

reciting the terms of the proposed preliminary injunction reveals
its extreme overbreadth (and thus its patent unconstitutionality).

-43-

Under
decisively

these
against

circumstances,
Mathosian,

the

for

equitable

reasons

balance

tilts

well-articulated

by

another court (borrowing liberally from the words of the United
States Supreme Court):
A “prior restraint on expression comes with a heavy
presumption
against
its
constitutional
validity.”
Indeed, prior restraints are “the most serious and the
least tolerable infringement on First Amendment rights.”
When a prior restraint takes the form of a court-issued
injunction, the risk of infringing on speech protected
under the First Amendment increases. An injunction must
be obeyed until modified or dissolved, and its
unconstitutionality is no defense to disobedience. “If
it can be said that a threat of . . . civil sanctions
after publication ‘chills’ speech, a prior restraint
‘freezes’ it, at least for the time.”
In contrast,
. . . “a judgment in a defamation case is subject to the
whole panoply of protections afforded by deferring the
impact of the judgment until all avenues of appellate
review have been exhausted.
Only after judgment has
become final, correct or otherwise, does the law’s
sanction become fully operative.”
Here, the [proposed] preliminary injunction broadly
[would] prohibit[] . . . any statement that might, after
it has been made, be construed as defamatory or even
[derogatory]. . . . The risk of contempt sanctions may
thus “freeze” . . . [speech that the enjoined party
reasonably] perceives as legitimate . . ., rather than
simply “chill” [such] speech, as might result from the
threat of a subsequent damage award.
. . . .
. . . [Further, the proposed] preliminary injunction
. . . (1) is not confined to specific statements but
broadly covers any statement that might be hereafter
found to be [derogatory, untrue,] or defamatory; and (2)
is directed against statements that have not been finally
adjudicated to be libelous.
. . . .
-44-

. . . [Thus, the proposed preliminary] injunction is
vague as to what [the enjoined party] may say and what
statements might lead to a finding of contempt of court.
It puts the [enjoined party] at risk of punishment for
good faith efforts to advocate publicly its position [in
a dispute] . . . .
In the end, the vagueness of th[e proposed preliminary]
injunction serves as sufficient reason to require that
[the Court deny] it.
Metropolitan Opera Ass’n, Inc. v. Local 100, Hotel Emps. & Rest.
Emps. Int’l Union, 239 F.3d 172, 176-78 (2d Cir. 2001) (internal
brackets, citations, ellipsis, and some internal quotation marks
omitted) (first quoting Organization for a Better Austin v. Keefe,
402 U.S. 415, 419 (1971); then quoting Nebraska Press Ass’n v.
Stuart, 427 U.S. 539, 559 (1976)); see also Ashcroft v. American
Civil Liberties Union, 535 U.S. 564, 573 (2002) (“[A]s a general
matter, the First Amendment means that government has no power to
restrict expression because of its message, its ideas, its subject
matter, or its content.” (internal quotation marks omitted));
McCarthy, 810 F.3d at 461-62 (“An injunction must be specific about
the acts that it prohibits. . . .

An injunction against defamatory

statements, if permissible at all, must not . . . forbid statements
not yet determined to be defamatory, for by doing so it could
restrict

lawful

expression.

.

.

.

As

illustrative

of

the

injunction’s resulting excessive breadth, notice that it . . .

-45-

would

prevent

nondefamatory

[the

enjoined

messages

.

.

party]

.;

it

from

would

posting

thus

enjoin

[even]
lawful

speech.”).
D.

Public Interest

Finally, Mathosian has not established (and cannot establish)
“that [the proposed preliminary] injunction is in the public
interest,” Di Biase, 872 F.3d at 230 (internal quotation marks
omitted)).

Just as the vague, overbroad, and unjustified prior

restraint sought by Mathosian would harm Rodgers by violating his
First Amendment rights, it likewise “ha[s] the potential to harm
nonparties

to

the

litigation

listeners as well as speakers.”

because

enjoining

speech

harms

McCarthy, 810 F.3d at 461; see

also id. at 462-63 (“‘The First Amendment goes beyond protection of
. . . the self-expression of individuals to prohibit government
from limiting the stock of information from which members of the
public may draw.’” (internal bracket omitted) (quoting First Nat’l
Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978))); Ward v.
Triple Canopy, Inc., No. 8:17CV802-T-24 MAP, 2017 WL 3149431, at *5
(M.D. Fla. July 25, 2017) (unpublished) (recognizing “strong public
interest against imposing a prior restraint on speech and issuing
a . . . preliminary injunction as to speech that has not yet been
found defamatory”); Oliver v. Skinner, No. 4:09CV29, 2013 WL
667664, at *10 (S.D. Miss. Feb. 22, 2013) (unpublished) (“[T]he
public

interest

is

better

served
-46-

by

a

cautious

approach

to

injunctive relief in defamation cases.

That is because ‘prior

restraints on speech and publication are the most serious and the
least

tolerable

infringement

on

First

Amendment

rights[.]’”

(quoting Tory, 544 U.S. at 738)), aff’d, 552 F. App’x 357 (5th Cir.
2014); Thompson v. Hayes, 748 F. Supp. 2d 824, 833 (E.D. Tenn.
2010) (“[T]here is a public interest in protecting First Amendment
rights.”).
III.
Mathosian

has

not

CONCLUSION

established

grounds

for

preliminary

injunctive relief.
IT IS THEREFORE RECOMMENDED that the Court deny Mathosian’s
Preliminary Injunction Motion (Docket Entry 35).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 17, 2018

-47-