S. Ct. Civ. No. 2016-0054

In litigation by an attorney hired to work in the Governor's office, but later transferred to other agencies allegedly because she released information about the Governor's office in response to a newspaper's request - dismissal without prejudice of claims against the Governor, his chief of staff and the chief counsel is immediately appealable where plaintiff cannot cure the deficiency, or if plaintiff chooses to forego further amendment and stand by the complaint as last filed. Here the Superior Court held that any further amendment of the complaint would be futile, which permits appeal as of right. A claim for fraudulent or negligent misrepresentation must-in addition other elements-allege misrepresentation of a fact on which plaintiff relied to her detriment, but here the alleged statements were matters of opinion representing subjective viewpoints that cannot be proved false. The complaint also failed to allege that plaintiff relied on the alleged statements to her detriment. The Superior Court correctly applied then-applicable pleading standards and committed no error dismissing the misrepresentation cause of action. On plaintiff's defamation claim, when the Governor made the comments in question the matter was a subject of public interest since plaintiff-an executive branch employee-had filed a public lawsuit accusing the Governor and his staff of engaging in illegal acts. Thus the Governor was within his authority to publicly comment on the matter, including announcing his reasons for terminating plaintiff's employment, and he enjoys absolute immunity for such statements. Nor did the proposed amended complaint state a cause of action for defamation against any of the other named defendants. A complaint that contains absolutely no factual allegations whatsoever as to what role the defendant played with respect to that cause of action alleged fails to meet pleading standards and is subject to dismissal. While the Superior Court committed no error when it dismissed the Whistleblower Act claims against the non-employer individual defendants, it erred when it dismissed such claims against the Governor and the Office of the Governor and when it denied leave to amend to assert the claim against the Office of the Attorney General. Accordingly, the Superior Court's August 31, 2016 disposition is affirmed in part and reversed in part. The case is remanded for further proceedings with respect to the whistleblower claims against the Governor, the Office of the Governor, and-if properly served and found to have legal capacity to be sued-the Office of the Attorney General.