William HOLLINGS, Plaintiff-Appellant, v. TRANSACTTOOLS, INC., Defendant-Appellee, 128 F. App'x 820

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED. Plaintiff-Appellant William Hollings (“Hollings”) appeals from an August 22, 2003 order granting in part and denying in part Defendant-Appellee TransaetTools, Ine.’s (“TransaetTools’s”) motion to dismiss, and from a June 8, 2004 order awarding judgment to TransaetTools on the remainder of Hollings’s claims.

Holl-ings contends that triable issues of fact remained with respect to all of his claims, and that, as such, the district court erred in entering judgment in favor of Transaet-Tools. We assume that the parties are familiar with the facts, the procedural history, and the scope of the issues presented on appeal. Hollings was employed by defendant TransaetTools between December 2000 and March 2003.

In connection with Holl-ings’s employment at TransaetTools, he was required to execute a non-compete agreement, which prohibited him from seeking employment with a competitor of TransaetTools for a period of one year following his departure from Transaet-Tools. Despite this non-compete agreement, in May 2003, Hollings — who believed that the non-compete agreement was unenforceable — accepted an offer of employment with Financial Fusion, a primary competitor of TransaetTools.

When Hollings informed TransaetTools of his new employment, TransaetTools sent Financial Fusion a letter, expressing concerns about Financial Fusion’s decision to employ Hollings (hereinafter “the Tran-saetTools letter”). Specifically, the letter indicated that “TransaetTools has reason to believe that Mr.

Hollings’ performance of work for Financial Fusion will inevitably involve the disclosure and use of Transact-Tools’ proprietary confidential and trade secret information in violation of his common-law and contractual obligations” and that “TransactTools takes these obligations very seriously and is prepared to take all necessary measures to protect itself from unfair competition.... ” The letter closed by seeking assurances: 1) that Hollings would not be working on Financial Fusion products which were competitive with TransaetTools’s software products; and 2) that Hollings would not solicit TransaetTools’s employees to work for Financial Fusion.

Upon receipt of Transaet-Tools’s letter, Financial Fusion terminated Hollings, effective immediately. A few weeks later, Hollings filed this lawsuit against TransactTools, alleging: 1) that the TransactTools letter was defamatory; and 2) that TransactTools tortiously interfered with his employment with Financial Fusion. In addition, Hollings sought a declaratory judgment that his non-eompete agreement with Transact-Tools was unenforceable under New York law. The district court granted Transaet-Tools’s motion to dismiss Hollings’s defamation claim on August 22, 2003. On June 8, 2004, the district court granted

summary judgment to TransactTools on Holl-ings’s tortious interference claim. And— since the one year period of the non-compete agreement had since expired — the court also sua sponte dismissed Hollings’s declaratory judgment claim as moot. This appeal followed. We agree with the district court that the TransactTools letter was non-defamatory as a matter of law. See Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 177 (2d Cir.2000) (indicating that “[wjhether particular words are defamatory presents a legal question to be resolved by the court[s] in the first instance” (quoting Aronson v.

Wiersma, 65 N.Y.2d 592, 493 N.Y.S.2d 1006, 483 N.E.2d 1138, 1139 (1985))). Although Hollings argues that the letter can be read as suggesting that he “was a thief who stole information” — or that he otherwise deliberately acted improperly in connection with his departure from Transact-Tools — the district court properly found otherwise. Read in context, the letter expresses, at most, TransaetTools’s concern that Hollings’s employment with Financial Fusion would inevitably result in the improper use of TransaetTools’s proprietary information.

And, this type of expression of concern is non-actionable under New York law. See Flamm v. American Ass’n of Univ. Women, 201 F.3d 144, 147-48 (2d Cir.2000). We also conclude that the district court properly awarded judgment to TransactTools on Hollings’s tortious interference and declaratory judgment claims. Under New York law, Hollings was required to make a showing of malice, illegality, or other wrongdoing, in order to prevail on his tortious interference claim. See Carvel Corp. v. Noonan, 3 N.Y.3d 182, 189-92, 785 N.Y.S.2d 359, 818 N.E.2d 1100 (2004); Foster v.

Churchill, 87 N.Y.2d 744, 750, 642 N.Y.S.2d 583, 665 N.E.2d 153 (1996). Hollings’s evidence of any such malfeasance on the part of TransactTools was, however, too scant to create a genuine issue of fact for trial. See Murray v. Xerox Corp., 811 F.2d 118, 121 (2d Cir. 1987) (in order to show a genuine issue of fact adequate to defeat

summary judgment, a party “must do more than simply show that there is some metaphysical doubt as to the material facts”) (quoting Matsushita Electrical Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Similarly, Hollings’s arguments for why — despite the expiration of the non-compete period — his request for declaratory judgment is not moot, are too speculative to require a remand for further factual inquiry. Cf. Spencer v.

Kemna, 528 U.S. 1, 14-16, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (finding habeas petitioner’s claim to be moot, and rejecting the petitioner’s arguments for non-mootness as too speculative). We have considered all of Hollings’s arguments and find them to be without merit. We therefore AFFIRM the judgment of the district court.