         11-2894-cv
         Doe v. White Plains Hospital Medical Center

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 18th day of January, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                RICHARD C. WESLEY,
 9                SUSAN L. CARNEY,
10                         Circuit Judges.
11
12
13
14       JORDAN DOE, an individual,
15
16                                     Plaintiff-Appellant,
17
18                      -v.-                                                11-2894-cv
19
20       DAWN FRENCH, Individually and as Vice
21       President of Marketing of WPHMC,
22
23                                     Defendant,
24
25       WHITE PLAINS HOSPITAL MEDICAL CENTER,
26       WPHMC, PATRICIA A. ALLINGER, Individually,
27       as Director of Critical Care of WPHMC,
28       JOHN SANCHEZ, Individually, as Vice
29       President Human Resources of WPHMC,
30       PATRICIA ANN DALIAN, Individually, as
31       Unit Manager of WPHMC, JON B. SCHANDLER,
32       Individually, as President and CEO of
33       WPHMC, LEIGH ANNE MCMAHON, Individually,
 1   as Vice President of WPHMC,
 2
 3                      Defendants-Appellees.
 4
 5
 6   FOR APPELLANT:     STEPHEN J. SIMONI, Law Offices of Stephen
 7                      J. Simoni, Monmouth Beach, N.J., on the
 8                      brief.
 9
10   FOR APPELLEES:     LAUREN M. LEVINE (Andrew L. Zwerling, on
11                      the brief), Garfunkel Wild, P.C., Great
12                      Neck, N.Y.
13
14        Appeal from the United States District Court for the
15   Southern District of New York (Daniels, J.).
16
17       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

18   AND DECREED that the judgment of the United States District

19   Court for the Southern District of New York be AFFIRMED.

20       Appellant appeals from a judgment of the United States

21   District Court for the Southern District of New York

22   (Daniels, J.), which granted the defendants-appellees’

23   motion to dismiss pursuant to Federal Rule of Civil

24   Procedure 12(b)(6).     We assume the parties’ familiarity with

25   the underlying facts, the procedural history, and the issues

26   presented for review.

27       We review de novo a district court’s dismissal of a

28   complaint under Federal Rule of Civil Procedure 12(b)(6).

29   Grandon v. Merrill Lynch & Co., Inc., 147 F.3d 184, 188 (2d

30   Cir. 1998).   To withstand a motion to dismiss, the plaintiff


                                     2
1    must plead “enough facts to state a claim to relief that is

2    plausible on its face.”     Bell Atl. Corp. v. Twombly, 550

3    U.S. 544, 570 (2007).

4        Plaintiff-Appellant Jordan Doe claims that the district

5    court erred in (1) dismissing his defamation, libel, libel

6    per se, and slander claims (“defamation claims”); (2)

7    dismissing his claim for breach of implied contract under

8    Wieder v. Skala, 80 N.Y.2d 628 (1992); and (3) dismissing

9    his breach of explicit contract claim grounded in language

10   contained in the employee handbook distributed by Defendant-

11   Appellee White Plains Hospital Medical Center (“the

12   Hospital”).    We address each of Doe’s arguments in turn.

13       We find no error in the district court’s dismissal of

14   Doe’s defamation claims.    In assessing the viability of any

15   defamation action, a court must first determine whether the

16   purportedly defamatory statements constitute fact or

17   opinion.    See Parks v. Steinbrenner, 520 N.Y.S.2d 374, 375

18   (App. Div. 1st Dep’t 1987).    “[E]xpressions of an opinion[,]

19   false or not, libelous or not, are constitutionally

20   protected and may not be the subject of private damage

21   actions.”     Steinhilber v. Alphonse, 68 N.Y.2d 283, 286

22   (1986)(internal quotation marks omitted).


                                     3
1        Although the line between fact and opinion can at times

2    be difficult to discern, see id. at 290, we have no trouble

3    concluding here that the allegedly defamatory statements

4    that Doe complains of constitute non-actionable opinion.

5    While Doe is correct that some of the allegedly defamatory

6    statements contain facts, we heed the New York Court of

7    Appeals’ admonition to avoid “the hypertechnical parsing of

8    written and spoken words for the purpose of identifying

9    possible facts that might form the basis of a sustainable

10   [defamation] action.”   Gross v. N.Y. Times Co., 82 N.Y.2d

11   146, 156 (1993) (internal quotation marks and alteration

12   omitted).

13       Similarly, we reject Doe’s contention that the district

14   court erred in dismissing his claim for breach of an implied

15   contract under Wieder v. Skala, 80 N.Y.2d 628 (1992).     We

16   have found no case, and no case has been cited to us,

17   finding an implied Wieder contract outside the limited

18   confines of ethical duties arising in the context of legal

19   employment.   We decline Doe’s invitation to be the first

20   court to do so.

21       We finally turn to, and reject, Doe’s argument that the

22   district court committed error in dismissing his breach of


                                   4
1    explicit contract claim based on language contained in the

2    Hospital’s employee handbook and materials referenced

3    therein.   Because the handbook contained an explicit

4    disclaimer that it did not constitute an employment

5    contract, Doe cannot maintain an explicit breach of contract

6    action.    See Ashe v. Mohawk Valley Nursing Home, Inc., 701

7    N.Y.S.2d 536, 537 (App. Div. 4th Dep’t 1999); Gomariz v.

8    Foote, Cone & Belding Commc’ns, Inc., 644 N.Y.S.2d 224, 225

9    (App. Div. 1st Dep’t 1996).

10       We have considered Doe’s remaining arguments and, after

11   a thorough review of the record, find them to be without

12   merit.

13       For the foregoing reasons, the judgment of the district

14   court is hereby AFFIRMED.

15
16                                 FOR THE COURT:
17                                 Catherine O’Hagan Wolfe, Clerk
18
19




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