DENISE COTE, United States District Judge
On February 21, 2003, plaintiff Sharon Haugh ("Haugh") moved to amend her complaint to add an additional claim of defamation against her former employer Schroder Investment Management North America, Inc. ("SIMNA"), its parent Schroders plc ("Schroders"), and the CEO of Schroders Michael Dobson ("Dobson"), based on statements contained in an article in the November 2002 issue of Institutional Investor ("Article"). For the following reasons, the motion is granted in part.
The Article, entitled "Can Dobson Fix Schroders?", was a lengthy report and analysis of the challenges faced by Schroders, Dobson's recent appointment as CEO of Schroders, and steps taken by Dobson to confront those challenges. The article described many personnel changes made by Dobson, including Haugh's firing. The passage at issue in this motion reads:
More controversially, Sharon Haugh, chairwoman of [SIMNA] in New York, was shown the door in May. Dobson cites poor performance at the bank's U.S. arm, which manages $32 billion in U.S. pension fund money. Haugh, 56, responded by filing a multi-million-dollar suit against Schroders for age discrimination.
The plaintiff contends that this passage constitutes defamation per se since it injures the plaintiff in her "trade, occupation or business" by falsely impugning her ability to run SIMNA. The plaintiff does not deny that SIMNA's financial performance had declined, but contends that she was fired because of age discrimination and not because of her performance at SIMNA. The plaintiff has not pleaded special damages.
Under Rule 15(a), Fed.R.Civ.P., once a responsive pleading has been served, a party may amend its pleadings "only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Rule 15(a), Fed.R.Civ.P. The Supreme Court has emphasized that a refusal to grant leave to amend must be justified by grounds such as undue delay or prejudice, bad faith, or futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); see also Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001). Amendment of a pleading is futile if the proposed claim would not survive a motion to dismiss under Rule 12(b)(6), Fed.R.Civ.P. Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002); Ricciutti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991). A court may dismiss an action pursuant to Rule 12(b)(6), Fed.R.Civ.P., only if it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief. Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999).
Under New York law, a plaintiff seeking to recover for a defamatory statement must either prove special damages, or show that the relevant statement was defamatory per se. Celle v. Filipino Reporter Enters., 209 F.3d 163, 179 (2d Cir. 2000). One category of statement that is per se defamatory is that "which tends to disparage a person in the way of his office, profession or trade." Id. (emphasis in original) (citation omitted). A statement is actionable if it affects a person in her profession by imputing to her "any kind of fraud, dishonesty, misconduct, incapacity, unfitness or want of any necessary qualification in the exercise thereof." Davis v. Ross, 754 F.2d 80, 82 (2d Cir. 1985) (quoting Four Star Stage Lighting, Inc. v. Merrick, 392 N.Y.S.2d 297, 298 (1st Dep't. 1979)). A statement which can be interpreted as meaning that a person was "derelict in his professional duties" may be actionable. Carney v. Memorial Hospital and Nursing Home of Greene Cty., et al., 64 N.Y.2d 770, 772 (1985). Statements to the effect that someone was discharged for "misconduct," or "for lack of professional competence" or "for cause" may also be actionable. Davis, 754 F.2d at 84; Carney, 64 N.Y.2d at 772. A description of a news commentator as negligent and as having made false accusations are defamatory per se. Celle, 209 F.3d at 185. In contrast, descriptions of a person as a troublemaker or as having bad manners are not. Davis, 754 F.2d at 84.
It is for the court to make the threshold determination as to whether the statement at issue is susceptible of one or many meanings, and whether that meaning is defamatory as a matter of law. Van Buskirk v. The New York Times Co., 325 F.3d 87, 90 (2d Cir. 2003); Davis, 754 F.2d at 82. In making this determination, the court employs "an objective standard" and considers "whether an ordinary person would find the statement reasonably susceptible of a defamatory connotation." Davis, 754 F.2d at 83 (citation omitted). The court must view the statement at issue in the context of the complete publication, and in light of the "meaning reasonably attributable to the intended reader." Celle, 209 F.3d at 177. Slander is less actionable than libel, since a written statement "is more lasting." Davis, 754 F.2d at 85.
The plaintiff has the burden to "identify a plausible defamatory meaning of the challenged statement." Celle at 178. If the statement can only have one meaning, then the court determines whether that meaning is defamatory. Id. If it is also susceptible to a meaning that is not defamatory, then the trier of fact must "determine in what sense the words were used and understood." Id. (citation omitted). If a plaintiff fails to identify a plausible defamatory meaning for a statement, then the claim may be dismissed.
The plaintiff argues that the statement at issue means that Haugh was fired due to her ability and performance in running an asset management business. The average reader of Institutional Investor could conclude from the article that Haugh was fired because the deficiencies in her performance caused SIMNA's problems. While this is not the only meaning which could be taken from the passage, it is a plausible one. Moreover, the reader could understand that this was Dobson's reason for firing Haugh. The entire article was focused on Dobson, the decisions he was making, and his impact on the Schroders family of companies. Amending the complaint to add this allegation would not be futile.
Defendants further argue that any statement in the article ascribed to Dobson is a fully protected opinion under New York law. It is for the court to determine whether a statement is an opinion as a matter of law; opinions are given absolute protection under the New York Constitution. Celle, 209 F.3d at 178. "The essential task is to decide whether the words complained of, considered in the context of the entire communication and of the circumstances in which they were written, may be reasonably understood as implying the assertion of undisclosed facts justifying the opinion." Id. (citation omitted). If so, it is not protected. Id.
The statement at issue here may be reasonably understood to imply an assertion of facts. As discussed above, a reasonable reader could interpret the statement as implying Haugh caused SIMNA's decline by her poor performance. While part of the chain of events leading to plaintiff's firing was Dobson's forming that opinion, the statement can be read to imply that there are hard facts backing up that opinion.
The complaint cannot be amended, however, with respect to SIMNA. Plaintiff has provided no factual or legal basis for ascribing responsibility for Dobson's statement to SIMNA. Dobson is CEO of Schroders, not SIMNA. While the relationship between SIMNA and Schroders is of significant moment in the litigation as a whole, there has been no support shown for this additional defamation claim as to SIMNA.
It is in the Court's discretion to exercise supplemental jurisdiction over this state law claim. 28 U.S.C. § 1367; Grace v. Rosenstock, 228 F.3d 40, 55 (2d Cir. 2000). In this instance, the interests of justice and efficiency dictate that this additional defamation claim should be litigated at the same time and in the same forum as the pending ADEA claim. This litigation, at its core, will determine the reason for the termination of Haugh's employment, and the relevant facts will support or doom both the ADEA claim and this defamation claim. Similarly, the additional burden on the defendants from litigating this claim will not be excessive. While this will be the only claim against Dobson, as the person who decided to fire Haugh he is already intimately involved with this case even without being a party to it.
CONCLUSION
The motion to amend is granted in part.
SO ORDERED.