Opinion
21-CV-2944 (AT) (JLC) 23-CV-2119 (AT) (JLC) 23-CV-2350 (AT) (JLC)
05-02-2024
CORY DARNELL HOLLAND, SR., Plaintiff, v. LIONS GATE ENTERTAINMENT AND FILMS, et al., Defendants. CORY DARNELL HOLLAND, SR., Plaintiff, v. CURTIS “50 CENT” JACKSON, Defendant. CORY DARNELL HOLLAND, SR., Plaintiff, v. LIONS GATE ENTERTAINMENT CORP., et ano., Defendants.
To the Honorable Analisa Torres, United States District Judge:
REPORT AND RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
Pro se plaintiff Cory Darnell Holland, Sr. (“Holland” or “plaintiff”), brings the following related diversity actions: In Holland v. Lions Gate Entertainment and Films et al (“Holland I”), No. 21-CV-2944, Holland alleges various state-law claims against defendants Lions Gate Entertainment Corporation d/b/a Lionsgate (“Lionsgate”), Curtis J. Jackson, III a/k/a “50 Cent” (“Jackson”), Starz Entertainment Group, LLC (“Starz”), and Courtney A. Kemp (“Kemp”); in Holland v. Jackson (“Holland II”), No. 23-CV-2119, Holland brings retaliation-related claims against Jackson; and in Holland v. Lions Gate Entertainment Corp. (“Holland III”), No. 23-CV-2350, Holland asserts claims against Lionsgate and Starz arising from their employment of Jackson. Pending before the Court are the following motions: in Holland I, defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, Holland's request for a second sur-reply, and Holland's request for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure; in Holland II, defendant Jackson's motion to dismiss pursuant to Rules 12(b)(2), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure; and in Holland III, defendants' motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons that follow, defendants' motion for summary judgment in Holland I should be granted; Holland's motions for a second sur-reply and for a preliminary injunction in Holland I should be denied as moot; defendant's motion to dismiss in Holland II should be granted; and defendants' motion for judgment on the pleadings in Holland III should be granted.
As defendants note, Lionsgate and Starz are incorrectly named as “Lions Gate Entertainment and Films” and “Starz Inc.”
TABLE OF CONTENTS
I. BACKGROUND ..................................................................................................... 4
A. Factual Background ......................................................................................... 4
1. The Parties .................................................................................................. 5
2. The Power Series ......................................................................................... 7
3. The Creation of Power................................................................................. 9
4. Holland's Claims ....................................................................................... 10
B. Procedural History.......................................................................................... 11
1. Holland I ................................................................................................... 11
2. Holland II .................................................................................................. 14
3. Holland III ................................................................................................ 16
II. DISCUSSION ...................................................................................................... 17
A. Legal Standards .............................................................................................. 17
1. Motion For Summary Judgment .............................................................. 17
2. Motion To Dismiss For Lack Of Personal Jurisdiction ........................... 19
3. Motion To Dismiss For Insufficient Process ............................................ 19
4. Motion To Dismiss For Failure To State A Claim ................................... 20
5. Motion For Judgment On The Pleadings ................................................. 22
6. Standards For Pro Se Plaintiffs ............................................................... 22
B. Analysis ........................................................................................................... 24
1. Defendants' Motion For Summary Judgment In Holland I Should Be Granted As Holland's Defamation Claim Fails As A Matter Of Law ..... 24
2. Jackson's Motion To Dismiss In Holland II Should Be Granted ............ 37
3. Defendants' Motion For Judgment On The Pleadings In Holland III Should Be Granted .................................................................................... 48
4. Holland's Amended Complaints In Holland II And III Should Be Dismissed With Prejudice ......................................................................... 52
III. CONCLUSION..................................................................................................... 54
I. BACKGROUND
Familiarity with the prior proceedings in Holland I is assumed, including the Court's Order dated October 11, 2022 (“Holland I Order”), granting defendants' motion to dismiss in part and granting Holland leave to amend his complaint. Holland I Order at 8-10, Dkt. No. 71. Additional information is included here to provide context for consideration of all the pending motions.
In Holland I, the parties have submitted memoranda of law, statements of material facts pursuant to Local Civil Rule 56.1, and various records obtained in discovery (including an audio CD and lyric transcriptions), in addition to the Second Amended Complaint (“SAC”), Dkt. No. 72, which provide the relevant factual background for defendants' summary judgment motion. Unless otherwise noted, the facts below relating to Holland I are undisputed.
The audio files produced to defendants in discovery (and which Holland claims were included on his album Blasphemy and sent to the father of Hollywood screenwriter Courtney A. Kemp, a defendant in Holland I, who is credited with creating defendants' fictional television series Power) were manually filed with the Court as Exhibit G to the Declaration of Amelia Bruckner dated November 29, 2023 (“Holland I, Bruckner Decl.”) (Dkt. No. 162). See Defendants' Notice of Manual Lodging, Holland I, Dkt. No. 164 (Bruckner Decl. Ex. G). Additionally, defendants provided the Court with certified transcriptions of select songs on the album, which are attached as exhibits to the Bruckner Declaration. See Holland I, Bruckner Decl. Exs. H (Track 2), I (Track 12), J (Track 1), K (Track 4), L (Track 5), M (Track 8) & N (Track 10). When referring to the songs transcribed by defendants in this Report and Recommendation, the Court will cite to the respective exhibits to the Bruckner Declaration. For all other tracks that the Court has reviewed (and in some cases, transcribed), the Court will cite to Exhibit G to the Bruckner Declaration.
Although the document is marked as the Third Amended Complaint on the docket, the Court will nonetheless refer to it as the Second Amended Complaint or “SAC” as it is plaintiff's second amended complaint.
See Memorandum of Law in Support of Defendants' Motion for Summary Judgment, Holland I, Dkt. No. 160 (“Holland I, Defs. Mem.”); Rule 56.1 Statement, Holland I, Dkt. No. 161 (“Holland I, Defs. 56.1”); Holland I, Bruckner Decl., Dkt. No. 162; Plaintiff's Opposition to Defendants' Motion, Holland I, Dkt. No. 167 (“Holland I, Pl. Mem.”); Declaration of Cory Holland Sr. dated December 15, 2023, Holland I, Dkt. No. 168 (“Holland I, Pl. Decl.”); Statement of Disputed Material Facts, Holland I, Dkt. No. 169 (“Holland I, Pl. 56.1”); Defendants' Reply in Support Motion For Summary Judgment, Holland I, Dkt. No 171 (“Holland I, Defs. Reply”); Defendants' Response to Plaintiff's Rule 56.1 Statement of Disputed Material Facts, Holland I, Dkt. No. 172 (“Holland I, Defs. 56.1 Response”); Defendants' Objection to Declaration of Cory Holland, Sr., Holland I, Dkt. No. 173 (“Holland I, Defs. Objections to Pl. Decl.”).
The Court's recitation of the facts in Holland II And III are based on the allegations set forth in the original and first amended complaints (“FACs”) in both cases. See Holland II, Compl., Dkt. No. 1; Holland II, FAC, Dkt. No. 24; Holland III, Compl., Dkt. No. 1; Holland III, FAC, Dkt. No. 24. These allegations are accepted as true for purposes of the pending motions. See, e.g., Smolen v. Wesley, No. 16-CV-2417 (KMK), 2019 WL 4727311, at *4 (S.D.N.Y. Sept. 25, 2019) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
Given the number of docket entries, the Court will generally cite to the parties' submissions in this Report and Recommendation using both the case name, filing name, and as appropriate, the docket number.
1. The Parties
Holland, a Michigan resident, see Holland I, SAC at 3, “grew up in numerous states such as New York, North Carolina, Michigan and other states,” Holland I, Pl. 56.1 ¶ 14 (citing Holland Dep. at 12-15 (Holland I, Bruckner Decl. Ex. F, Dkt. No. 162-6); Pl. Decl. ¶ 2). He alleges that defendant Courtney A. Kemp, the screenwriter credited with creating Power, gained access to an autobiographical CD called Blasphemy, which Holland created and gave to her father, Herbert Kemp, Jr. Holland I, SAC at 5.
Lionsgate is a global mass media and entertainment company headquartered in Santa Monica, California.
See Contact Us, Lionsgate, https://perma.cc/229S-3K2S (last visited May 1, 2024). The Court takes judicial notice of Lionsgate's headquarters. See, e.g., Chan Ah Wah v. HSBC N. Am. Holdings Inc., No. 15-CV-8974 (LGS), 2016 WL 4367976, at *1 (S.D.N.Y. 2016) (taking judicial notice of defendant's state of incorporation and headquarters (citing Wright-Upshaw v. Nelson, No. 13-CV-3367 (ARR) (LB), 2014 WL 692870, at *1 n.1 (E.D.N.Y. Feb. 19, 2014))).
Starz, which is owned by Lionsgate, is a “leading integrated global media and entertainment company” that provide[s] premium subscription video programming on domestic U.S. pay television channels . . ., global content distribution . . . and animated television and movie production.” Holland I, Bruckner Decl. Ex. B at 4 (“About Starz” section of press release). Starz is also headquartered in Santa Monica, California.
Kemp, a California resident, is a television writer based in Los Angeles who has worked as a staff writer for shows such as The Bernie Mac Show, Eli Stone, Justice, Beauty & the Beast, and The Good Wife before writing the pilot for Power. Holland I, Defs. 56.1 ¶¶ 16, 19, 23. She received a bachelor's degree in English and American Literature from Brown University and a master's degree in English Literature from Columbia University. Id. ¶15. In addition to working in television, she has also held various positions in the publishing industry. Id. (citing Holland I, Kemp Decl. ¶ 2).
In the Second Amended Complaint, Holland lists Kemp as residing at an address in Englewood, Colorado. Holland I, SAC at 5. Nonetheless, the Court will rely on the statements in Kemp's declaration and defendants' Rule 56.1 statement that she has been living in Los Angeles, California since 2004. See Holland I, Defs. 56.1 ¶ 16 (citing Declaration of Courtney A. Kemp dated November 16, 2023, ¶ 3, Holland I, Dkt. No. 163 (“Holland I, Kemp Decl.”)).
Jackson a/k/a “50 Cent” is an acclaimed rapper, actor, television producer (including his role as co-executive producer of Power), and entrepreneur. Holland I, Defs. 56.1 ¶ 22 (citing Holland I, Bruckner Decl. ¶ 3 & Ex. C). He is domiciled in Houston, Texas, where he has lived since 2021. Declaration of Curtis Jackson dated November 7, 2023 ¶ 2, Holland II, Dkt. No. 27 (“Holland II, Jackson Decl.”). He previously had a place of business in Manhattan but terminated the lease for that office in September 2021. Id. ¶ 3. Defendants claim that “Jackson's life story provided the framing for . . . [the Power character] Ghost's background” as “Jackson was born and raised in a housing project, began dealing drugs at 12 years old, and stopped dealing drugs as an adult to become a massively successful businessman.” Holland I, Defs. 56.1 ¶ 27 (citing Holland I, Kemp Decl. ¶ 9).
2. The Power Series
Power is a popular American crime drama television series created and produced by Kemp and Jackson. Id. ¶ 1 (citing Holland I, Bruckner Decl. ¶ 2 & Ex. A). The series aired on Starz for six seasons, beginning in 2014 and ending in 2020. Id. ¶ 2. “Starz marketed Power as a ‘visionary drama that straddles the glamorous Manhattan lifestyles of the rich and famous and the underworld of the international drug trade.'” Id. ¶ 3 (quoting Holland I, Bruckner Decl. ¶ 3 & Ex. B). As a result of the show's critical acclaim and popularity, see id. ¶ 4, two related shows were created: a spinoff (Power Book II) and an after-show with the cast and creators (Power Confidential). Id. ¶ 5 (citing Holland I, Bruckner Decl. ¶ 2 & Ex. A).
Set in Manhattan, Power closely follows the actions of James “Ghost” St. Patrick, the owner of a successful nightclub (“Truth”) and other businesses. Id. ¶¶ 6, 9. In addition to being a married father of three, “Ghost is a successful drug kingpin,” with no known criminal history, and who, without anyone other than his crew knowing, “controls an intricate network of criminals who smuggle drugs in and out of Manhattan and the surrounding boroughs,” hence the name “Ghost.” Id. ¶¶ 8-9, 11. Despite this profile, Ghost aims to leave the drug trade behind to pursue legitimate business ventures, though this is the cause of much tension and conflict throughout the show. Id. ¶¶ 12-14. Ghost also “has a complex extramarital affair” with his high-school sweetheart, an Assistant United States Attorney (“AUSA”) in New York, who is unaware of his “double life” as a drug trafficker and attempts to prosecute a group of his employees in the drug trade, called “Los Lobos.” Id. ¶ 10 (citations omitted).
The series also “contains numerous murders, love affairs, FBI raids, court cases, investigations involving the [AUSA], and frequent depiction[s] of the ruthless wresting of political and economic power.” Id. ¶ 7 (citations omitted). There is also a disclaimer at the end of each episode that reads: “[T]he characters and events depicted in this motion picture are fictional and any similarity to actual persons, living or dead, is purely coincidental.” Id. ¶ 3. (citations omitted).
3. The Creation of Power
The parties disagree on what led to the creation of the series that would become Power. Defendants contend that “Kemp is the sole person responsible for writing the pilot outline and pilot episode that eventually led Starz to purchase the Series,” as well as the development of other characters in the show. Id. ¶¶ 23, 29 (citing Holland I, Kemp Decl. ¶ 9). According to defendants, Kemp was approached by film producer Mark Canton (“Canton”) in 2011 about developing an hour-long “drama series that would heavily incorporate the use of music.” Id. ¶ 17 (citing Holland I, Kemp Decl. ¶ 4). Canton was allegedly inspired by the main character in Superfly (1970), a film about a successful drug dealer from New York who wants to legitimatize his businesses and get out of the drug trade. Id. ¶ 18 (citing Holland I, Kemp Decl. ¶ 4). Following their meeting, Kemp began working on the plot for Power. Id. ¶ 19 (citing Holland I, Kemp Decl. ¶ 5). She then pitched to Canton: the show's theme; the main character (Ghost), his personality, background, and characteristics; and supporting characters Tasha, Tommy, and Angela, as well as their background and characteristics. Id. ¶ 20 (citing Holland I, Kemp Decl. ¶ 5).
In 2012, Kemp, Canton, and Jackson, “who stepped in as co-executive producer,” successfully pitched the series to Starz. Id. ¶¶ 21-23 (citing Holland I, Kemp Decl. ¶¶ 6, 9). In creating the character of Ghost, “Kemp was largely inspired by her [late] father,” who passed away in 2011 and is described as an “image obsessed, successful, and brilliant businessman who grew up in poverty,” and a nonpresent parent, liar, and adulterer. Id. ¶¶ 24-26 (citing Holland I, Kemp Decl. ¶ 10). Kemp also drew on Jackson's life story, see id. ¶ 27 (discussing parallels to Jackson's background), her “extensive research[] [on] the mechanisms of drug trafficking and the personalities of traffickers,” id. ¶ 30 (citing Holland I, Kemp Decl. ¶ 7, Exs. B & C), and her prior experience as a supervising producer on The Good Wife, specifically developing episodes that featured a drug dealer. Id. ¶ 28.
By contrast, Holland disputes that Kemp created the theme of the Power series and/or its characters, that she was influenced by her father, and that she used Jackson's background as source material. See Holland I, Pl. 56.1 ¶¶ 2-6. Rather, he claims that she used his album Blasphemy as the basis for the series' theme and its characters. Id. ¶¶ 3, 6-8 (citations omitted). Holland alleges in the Second Amended Complaint that he detailed his experiences as a drug kingpin in New York City in a series of songs on Blasphemy (also referred to by Holland as the “Investment Package”), which he sent to Kemp's father in or around 2007. He further alleges that Kemp's father shared Blasphemy with Kemp, which she then used as inspiration for Power. Holland I, SAC at 48.
4. Holland's Claims
In Holland I, the only claim remaining at issue is the defamation claim with respect to the finale episodes of Seasons Four through Six of Power, Seasons One and Two of Power Book II: Ghost, and Power Confidential-specifically that Holland was defamed by the portrayal of Ghost as a murderer. See Holland I Order at 8-10 (holding Holland adequately pled facts sufficient to withstand defendants' motion to dismiss on these grounds); see also Holland I, SAC at 5.
In Holland II, Holland alleges that, following his filing the Holland I complaint, Jackson (also a defendant in the first suit), sent “armed individuals” to his home in Michigan to intimidate him; threatened him in a music video; waged an “intimidation campaign” against him with the assistance of “agents, fans, and followers”; and subjected him to “public ridicule, hate, and contempt.” Holland II, FAC at 5.
In Holland III, Holland contends that defendants Lionsgate and Starz are liable for Jackson's alleged conduct in Holland II under a negligent hiring and retention theory due to Jackson's involvement in Power. See Holland III, FAC at 58, Dkt. No. 24. In this suit, Holland brings additional claims for negligent infliction of emotional distress (“NIED”), intentional infliction of emotional distress (“IIED”), and assault, all based on the same alleged facts and circumstances. Id. at 6.
B. Procedural History
The procedural history for the three cases is as follows:
1. Holland I
Plaintiff filed his original complaint on April 6, 2021, initially alleging claims of “extreme emotional distress,” “theft of identity,” and defamation. Compl. at 6, Holland I, Dkt. No. 2 (“Holland I, Compl.”). On August 3, 2021, defendants moved to dismiss the complaint. Dkt. Nos. 19-21. Holland filed the first amended complaint (“FAC”) on August 5, 2021, alleging intentional infliction of emotional distress (“IIED”), defamation, invasion of privacy, and “theft of life story.” Holland I, FAC at 6, Dkt. No. 26. On August 18, 2021, defendants moved to dismiss the amended complaint, Dkt. Nos. 27-28, 39, and Holland again moved to amend his complaint on October 7, 2021. Dkt. No. 42.
On October 11, 2022, the Court granted defendants' motion to dismiss as to the defamation claim related to another Power character, Ghost's son, Tariq St. Patrick, for failure to state a claim, and to the claims related to Seasons One through Three of Power as barred by the statute of limitations. See Holland I Order at 5, Dkt. No. 71 (citation omitted). The Court also held that Holland failed to plead that there were defamatory statements related to Ghost in seasons Four Through Six of Power and Power Confidential (except for the final episode), and dismissed with prejudice his defamation claims regarding Power Book II: Ghost as “he d[id] not make any allegations as to defamation related to “Ghost” in Power Book II,” and so could not “sustain a claim that he was defamed by [it].” Id. at 8. The Court also dismissed with prejudice Holland's IIED claim, the invasion of privacy claim, and the “theft of life story” claims, see id. at 8-9, but granted him leave to amend his complaint with respect to the finale episodes and to add facts related to Seasons Four through Six of Power and Power Confidential, and all of Power Book II. Id. at 10. Accordingly, what remains at issue in this case is only Holland's claim that he was defamed by the portrayal of Ghost specifically as a murderer in these remaining seasons of Power.
On October 17, 2022, Holland filed the Second Amended Complaint (“Holland I, SAC”), which added facts related to the finale episodes of Power and Power Confidential as well as facts related to Seasons Four through Six of Power and Power Confidential, and all of Power Book II. Dkt. No. 72. The Second Amended Complaint is the operative pleading in this case.
Following an unsuccessful mediation, see Dkt No. 118, and the completion of discovery, Holland moved to further amend the complaint and to file confidential documents, see Dkt. No. 135, which the Court denied on October 4, 2023. Dkt. No. 153. Defendants filed a pre-motion letter on October 6, 2023, and the anticipated summary judgment motion was referred to me on October 18, 2023. Dkt. Nos. 15758. Defendants then moved for summary judgment on November 29, 2023. Notice of Motion, Dkt. No. 159; Holland I, Defs. Mem., Dkt. No. 160; Holland I, Defs. 56.1, Dkt. No. 161; Holland I, Bruckner Decl., Dkt. No. 162. Holland filed his opposition on December 15, 2023. Holland I, Pl. Mem., Dkt. No. 167; Holland I, Pl. Decl., Dkt. No. 168; Holland I, Pl. 56.1, Dkt. No. 169. Defendants submitted reply papers on January 17, 2024. Holland I, Defs. Reply, Dkt. No 171; Holland I, Defs. 56.1 Response, Dkt. No. 172; Holland I, Defs. Objections to Pl. Decl., Dkt. No. 173. Holland filed a sur-reply on January 17, 2024, Dkt. No. 175, and requested leave to file a second sur-reply on February 10, 2024. See Dkt. Nos. 176-79.
While sur-replies are not permitted without court authorization, and thus motions to file them should otherwise be denied, see, e.g., Preston Hollow Cap. LLC v. Nuveen Asset Mgmt. LLC, 343 F.R.D. 460, 466 (S.D.N.Y. 2023) (collecting cases), the Court has nonetheless considered Holland's first sur-reply and his motion to file a second because he is Pro se and concludes they do not add anything to change the recommended outcome.
On March 17, 2024, Holland filed a request for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure. Dkt. No. 180. Specifically, Holland seeks an injunction against defendants “on any further Promotion/Development/ and or Press Releases or any Interviews or any comments whatsoever about the NEW series involving . . . Jackson about the ‘Or[i]gin story of Ghost' from the Power Series.” Id. at 1. Defendants opposed Holland's Rule 65 request on March 29, 2024. Memorandum of Law in Opposition to Plaintiff's Motion, Dkt. No. 181; Declaration of Elizabeth Patton dated March 28, 2024, Dkt. No. 182. Holland replied to defendants' opposition by letter that same day. Dkt. No. 184.
Regarding Holland's motion for a preliminary injunction, as the Court recommends below that defendants' motion for summary judgment be granted, Holland's Rule 65 should motion be denied as moot. In any event, for the reasons set forth in defendants' opposition to the motion, Holland has failed to show any likelihood of success on the merits.
2. Holland II
Plaintiff brought this action on March 13, 2023, alleging that Jackson threatened him in retaliation for filing Holland I. See Holland II, Compl. at 5-6, Dkt. No. 1. Holland's complaint asserted claims of assault and battery, IIED, and mental anguish. Id. at 6.
Prior to commencing the second action (Holland II), Holland filed an emergency motion to address alleged threats made in response to the filing of his first lawsuit. See Holland I, Dkt. No. 34. On October 11, 2022, the Court terminated the emergency motion in the order addressing defendants' motion to dismiss. See Holland I Order at 1, 10, Dkt. No. 71.
Because Holland is Pro se, the Court directed the U.S. Marshals to serve Jackson. See Holland II, Dkt. No. 6 (Order of Service). After the Marshals Service was unable to effect service at the Manhattan address identified in the complaint (the “New York address”), see Holland II, Dkt. No. 10 (Marshal's Process Receipt), the Court directed Holland to provide an updated service address. Holland II, Dkt. No. 11. Holland then provided a second address at an address in Woodland Hills, California (the “California address”) on August 18, 2023. Holland II, Dkt. No. 13. On August 21, 2023, the Court directed the Marshals to serve Jackson at the newly provided address. Holland II, Dkt. No. 14. After attempting service at the California address, the marshal reported that Jackson was served via nonparty G-Unit Touring, Inc. (“G-Unit”) c/o Boulevard Management (“Boulevard”) Attn: Todd Bozick. See Holland II, Dkt. No. 16 (Marshal's Process Receipt).
On November 9, 2023, Jackson moved to dismiss the complaint, see Dkt. Nos. 17-20, which was denied as moot (Dkt. No. 36) after Holland filed an amended complaint (“Holland II, FAC”) on November 10, 2023. Dkt. No. 24. Jackson then moved to dismiss the amended complaint pursuant to Rules 12(b)(2), 12(b)(5), and 12(b)(6) on November 23, 2023. Notice of Motion, Dkt. No. 25; Defendant's Memorandum of Law in Support of Motion to Dismiss, Dkt. No. 26 (“Holland II, Def. Mem.”); Declaration of Curtis J. Jackson, III dated November 7, 2023, Dkt. No. 27 (“Holland II, Jackson Decl.”); Declaration of Carmen Vargas dated November 7, 2023, Dkt. No. 28 (“Holland II, Vargas Decl.”). Holland filed his opposition on December 1, 2023. Affidavit in Support of Plaintiff's Motion, Dkt. No. 32; Plaintiff's Opposition to Motion to Dismiss, Dkt. No. 33 (“Holland II, Pl. Mem.”). Jackson filed reply papers (“Holland II, Def. Reply”) on December 15, 2023. Dkt. No. 34. The motion was referred to me for a Report and Recommendation on December 19, 2023. Dkt. No. 37.
3. Holland III
On March 20, 2023, Holland brought a second suit against Lionsgate and Starz, alleging that they were aware of Jackson's alleged “propensity to cause harm and violence” before hiring him, and “encouraged” these tendencies. Holland III, Compl. at 5-6, Dkt. No. 1. Specifically, Holland alleged negligent hiring and retention, NIED, IIED, and assault. Id. Defendants answered the original complaint on September 18, 2023. Dkt. No. 21. Holland then filed an amended complaint (“Holland III, FAC”) on September 19, 2023. Dkt. No. 24. Defendants answered the amended complaint on September 29, 2023, Dkt. No. 31, and on November 6, 2023, moved for judgment on the pleadings. Notice of Motion, Dkt. No. 35; Defendants' Memorandum of Law in Support of Motion for Judgment on the Pleadings, Dkt. No. 36 (“Holland III, Defs. Mem.”); Notice of Request to Take Judicial Notice, Dkt. No. 37. Holland filed his opposition on November 21, 2023, and his supporting affidavit on November 22, 2023. Plaintiff's Opposition to Defendants' Motion, Dkt. No. 39 (“Holland III, Pl. Mem.”); Affidavit in Support of Plaintiff's Opposition, Dkt. No. 40. Defendants submitted reply papers (“Holland III, Defs. Reply”) on December 20, 2023. Dkt. No. 41.
The motion was referred to me on October 4, 2023. Dkt. No. 34.
II. DISCUSSION
A. Legal Standards
1. Motion For Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure “allows a party to seek a judgment before trial on the grounds that all facts relevant to a claim(s) or defense(s) are undisputed and that those facts entitle the party to the judgment sought.” Jackson v. Fed. Express, 766 F.3d 189, 194 (2d Cir. 2014) (citation omitted). A motion for summary judgment will be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).
“A dispute about a genuine issue exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor.” Bolling v. City of New York, No. 18-CV-5406 (PGG), 2021 WL 961758, at *4 (S.D.N.Y. Mar. 15, 2021) (quoting Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (internal quotations omitted)). “A moving party can demonstrate the absence of a genuine issue of material fact ‘in either of two ways: (1) by submitting evidence that negates an essential element of the non-moving party's claim, or (2) by demonstrating that the non-moving party's evidence is insufficient to establish an essential element of the non-moving party's claim.'” Id. at *5 (quoting Nick's Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 114 (2d Cir. 2017)).
“When considering a motion for summary judgment, the court is not to weigh the evidence but is instead ‘required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.'” Konteye v. N.Y.C. Dep't of Educ., No. 17-CV-2876 (GBD) (RWL), 2019 WL 3229068, at *2 (S.D.N.Y. July 18, 2019) (emphasis added) (quoting Phillips v. DeAngelis, 331 Fed.Appx. 894, 894-95 (2d Cir. 2009) (citation omitted)).
The “mere existence of a scintilla of evidence supporting the non-movant's case is insufficient to defeat summary judgment,” Wentworth Grp. Inc. v. Evanston Ins. Co., No. 20-CV-6711 (GBD) (JLC), 2021 WL 4479576, at *3 (S.D.N.Y. Sept. 30, 2021) (citing Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003) (cleaned up)), reconsideration denied, 2022 WL 943063 (Mar. 29, 2022), and “the non-moving party may not rely on unsupported assertions, conjecture or surmise.” Guerra v. Trece Corp., No. 18-CV-625 (ER), 2020 WL 7028955, at *2 (S.D.N.Y. Nov. 30, 2020) (citing Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995)); see also Ramnaraine v. Merrill Lynch & Co., No. 13-CV-7889 (GHW), 2014 WL 4386733, at *3 (S.D.N.Y. Sept. 5, 2014) (“Mere speculation or conjecture as to the true nature of the facts will not suffice, nor will wholly implausible alleged facts or bald assertions that are unsupported by evidence.” (cleaned up)), aff'd, 613 Fed.Appx. 83 (2d Cir. 2015). Rather, the party opposing summary judgment “must produce admissible evidence that supports its pleadings.” Wentworth Grp., 2021 WL 4479576, at *3 (citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289-90 (1968)); see also Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (“[T]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986))); Cuffee v. City of New York, No. 15-CV-8916 (PGG) (DF), 2018 WL 1136923, at *4 (S.D.N.Y. Mar. 1, 2018) (non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts . . . [it] must come forth with evidence sufficient to allow a reasonable jury to find in [its] favor” (cleaned up)).
2. Motion To Dismiss For Lack Of Personal Jurisdiction
“On a 12(b)(2) motion to dismiss, the plaintiff bears the burden of establishing personal jurisdiction over the defendant.” NuMSP, LLC v. St. Etienne, 462 F.Supp.3d 330, 341 (S.D.N.Y. 2020) (citing Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 34 (2d Cir. 2010)). The plaintiff need only make a prima facie showing “of facts that, if credited by the ultimate trier of fact, would suffice to establish jurisdiction over the defendant.” Convergen Energy LLC v. Brooks, No. 20-CV-3746 (LJL), 2020 WL 5549039, at *7 (S.D.N.Y. Sept. 16, 2020). “[T]he Court may [also] consider materials outside the pleadings, including affidavits and other written materials,” and “assumes the verity of the allegations to the extent they are uncontroverted by the defendant's affidavits.” H.B. by Barakati v. China S. Airlines Co. Ltd., No. 20-CV-9106 (VEC), 2021 WL 2581151, at *2 (S.D.N.Y. June 23, 2021).
3. Motion To Dismiss For Insufficient Process
“When a defendant moves to dismiss under Rule 12(b)(5), the plaintiff bears the burden of proving adequate service.” Lim Tung v. Deutsche Bank Tr. Co., No. 19-CV-5445 (RPK) (SJB), 2022 WL 471907, at *4 (E.D.N.Y. Jan. 11, 2022) (quoting Dickerson v. Napolitano, 604 F.3d 732, 752 (2d Cir. 2010)). On such a motion, the Court “may consider ‘matters outside the complaint to determine whether it has jurisdiction.'” Holmes v. Caliber Home Loans, Inc., No. 16-CV-3344 (KMK), 2017 WL 3267766, at *4 (S.D.N.Y. July 31, 2017) (quoting Cassano v. Altshuler, 186 F.Supp.3d 318, 320 (S.D.N.Y. 2016)). “Although Pro se litigants are afforded a certain amount of leniency with respect to service of process, ‘they are still required to attempt to comply with procedural rules, especially when they can be understood without legal training and experience.'” Jordan-Rowell v. Fairway Supermkt., No. 18-CV-1938 (VEC) (DF), 2019 WL 570709, at *5 (S.D.N.Y. Jan. 16, 2019) (quoting Yadav v. Brookhaven Nat. Lab'y, 487 Fed.Appx. 671 (2d Cir. 2012)), adopted by 2019 WL 568966 (Feb. 12, 2019).
4. Motion To Dismiss For Failure To State A Claim
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion, a plaintiff must plead facts in his complaint that “state a claim to relief that is plausible on its face” and that satisfy Federal Rule of Civil Procedure 8(a)(2). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Rule 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Id. at 677-78 (quoting Fed.R.Civ.P. 8(a)(2)). A claim is facially plausible when the plaintiff pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556).
Nevertheless, this standard requires a plaintiff's pleadings to sufficiently “nudge[ ] [his] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. “[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (cleaned up). Therefore, “[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679; see also Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) (complaint insufficient when lacking factual allegations necessary “to give the defendant fair notice of what the claim is and the grounds upon which it rests”).
In deciding a Rule 12(b)(6) motion, a court may consider matters of which judicial notice may be taken under Rule 201 of the Federal Rules of Evidence. See, e.g., Kramer v. Time Warner, Inc., 937 F.2d 767, 773-75 (2d Cir. 1991). Such matters include documents that are “publicly available” and whose “accuracy cannot reasonably be questioned.” Apotex, Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51, 60 (2d Cir. 2016). These include documents from other cases, such as the filings in the Holland cases in other federal courts.
Finally, dismissals for failure to state a claim are considered to be “with prejudice.” See, e.g., Lynch v. Hanley, No. 21-CV-25 (GTS) (ML), 2021 WL 2309688, at *2 n.4 (N.D.N.Y. June 7, 2021) (collecting cases and holding that dismissal for failure to state a claim viewed as adjudication “on the merits” of the action, and thus dismissal “with prejudice” appropriate).
5. Motion For Judgment On The Pleadings
Under the Federal Rules of Civil Procedure, a party may move for judgment on the pleadings “[a]fter the pleadings are closed-but early enough not to delay trial.” Fed.R.Civ.P. 12(c). The standard for evaluating a motion for judgment on the pleadings under Rule 12(c) is the same as the standard for a Rule 12(b)(6) motion to dismiss for failure to state a claim. See, e.g., Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004). In considering such motions, the court must take all factual allegations as true and draw all reasonable inferences in the non-moving party's favor. See, e.g., Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010).
6. Standards For Pro Se Plaintiffs
A complaint filed by a Pro se plaintiff “is to be liberally construed and . . . must be held to less stringent standards than formal pleadings drafted by lawyers.” Bennett v. City of New York, 425 Fed.Appx. 79, 80 (2d Cir. 2011) (cleaned up). Accordingly, pleadings of a Pro se party should be read “to raise the strongest arguments they suggest.” Kevilly v. New York, 410 Fed.Appx. 371, 374 (2d Cir. 2010) (cleaned up). The Court may also consider allegations that appear in a pro se plaintiff's opposition papers or other submissions to the Court. See e.g., Henning v. N.Y.C. Dep't of Corr., No. 14-CV-9798 (JPO), 2016 WL 297725, at *3 (S.D.N.Y. Jan. 22, 2016) (“Although this allegation appears in his opposition papers, the Court - consistent with its duty to liberally construe Pro se pleadings - will credit Plaintiff's assertion in evaluating the sufficiency of his complaint.”).
Nevertheless, “our application of this different standard does not relieve plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment.” Soberanis v. City of New York, 244 F.Supp.3d 395, 399 (S.D.N.Y., 2017) (quoting Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (citation and internal quotation marks omitted)). These requirements include “compliance with relevant rules of procedural and substantive law.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (per curiam) (internal quotation marks omitted) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
Similarly, “dismissal of a Pro se complaint is appropriate where a plaintiff fails to state a plausible claim supported by more than conclusory factual allegations.” Jones v. City of New York, No. 18-CV-1937 (VSB), 2020 WL 1644009, at *5 (S.D.N.Y. Apr. 2, 2020) (citing Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013)). Even a Pro se plaintiff's complaint “must contain factual allegations that sufficiently raise a right to relief above the speculative level.” Ole v. Sauer, No. 19-CV-8865 (NSR), 2022 WL 1204862, at *3 (S.D.N.Y. Apr. 22, 2022) (cleaned up). “[T]he court's duty to construe the complaint liberally is not the equivalent of a duty to re-write it.” Id. (cleaned up). Moreover, the degree of solicitude afforded to a Pro se plaintiff “may be lessened where the particular Pro se litigant is experienced in litigation and familiar with the procedural setting presented.” Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010) (citation omitted).
B. Analysis
1. Defendants' Motion For Summary Judgment In Holland I Should Be Granted As Holland's Defamation Claim Fails As A Matter Of Law
Defendants argue that summary judgment is proper because Holland cannot meet the evidentiary burden required for his defamation claim at this stage of the proceedings. Holland I, Defs. Mem. at 1. Specifically, defendants contend that Holland cannot establish (1) that the Ghost character in the Power series is “of and concerning him”; (2) that any “reasonable viewer would believe that Power contains assertions of fact”; (3) that he “was not defamed by the portrayal of Ghost”; (4) that there is a genuine dispute of material fact regarding defendants' alleged malice; and (5) specific damages. Defendants further contend (6) that Holland is defamationproof. Id. at 1-3, 12-25. Holland counters that he (1) can prove the character Ghost is “of and concerning him” based on the contents of the CD Blasphemy and that the similarities between him and Ghost are not superficial; (2) has two reasonable viewers who believe Power contains assertions about him; (3) was defamed as he did not commit any murders; (4) “can raise factual disputes respecting defendants actual malice”; (5) sufficiently asserts damages (which are presumed as the defamation is per se); and (6) is not defamation proof as the murders mentioned in Blasphemy are “metaphors based off REAL murders.” Holland I, Pl. Mem. at 2-4 (capitalization in original). As discussed below, defendants have the better of the argument.
a. The Character Ghost Is Not “Of and Concerning” Holland
“Defamation is the ‘making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.'” Fahey v. Breakthrough Films & Television Inc., No. 21-CV-3208 (PAE) (SLC), 2022 WL 6244313, at *25 (S.D.N.Y. July 7, 2022) (quoting Moraes v. White, No. 21-CV-4743 (PAE), 2021 WL 5450604, at *9 (S.D.N.Y. Nov. 22, 2021)), adopted by 2022 WL 4547438 (Sept. 29, 2022). “Under New York law a defamation plaintiff must establish five elements: (1) a written defamatory statement of and concerning the plaintiff, (2) publication to a third party, (3) fault, (4) falsity of the defamatory statement, and (5) special damages or per se actionability.” Fairstein v. Netflix, Inc., No. 20-CV-8042 (PKC), 2023 WL 6125631, at *8 (S.D.N.Y. Sept. 19, 2023) (quoting Palin v. New York Times Co., 940 F.3d 804, 809 (2d Cir. 2019)); Fahey, 2022 WL 6244313, at *25 (quoting same).
The Court applied New York law in its prior order. Holland I Order at 3. Additionally, the parties have briefed the issues presented under New York law. See, e.g., In re SKAT Tax Refund Scheme Litig., No. 18-CV-5053 (LAK), 2020 WL 7059843, at *3 n.28 (S.DN.Y. Dec. 2, 2020) (“Where the parties' briefs assume that a particular jurisdiction's law applies, such ‘implied consent . . . is sufficient to establish choice of law.'” (ellipsis in original) (quoting Krumme v. WestPoint Stevens Inc., 238 F.3d 133, 138 (2d Cir. 2000))).
“It is essential in making out a prima facie case [of defamation] to prove that the matter is published of and concerning the plaintiff.” Kirch v. Liberty Media Corp., 449 F.3d 388, 398 (2d Cir. 2006) (quoting Julian v. Am. Bus. Consultants, Inc., 2 N.Y.2d 1, 17 (1956)). “Plaintiffs in defamation proceedings bear the burden of demonstrating that the libel designates the plaintiff in such a way as to let those who knew [him] understand that [plaintiff] was the person meant.” Id. (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980)). “This burden ‘is not a light one[.]' . . . [P]laintiff must demonstrate that third parties apprehend the similarity between the real person and [their] [fictional] cognate as something more than amusing coincidence .... Rather, it is required that the reasonable [viewer] must rationally suspect that the protagonist is in fact that plaintiff, notwithstanding the [creator's] assurances that the work is fictional.” Id.; see also, e.g., Carter-Clark v Random House, 793 N.Y.S.2d 394, 395 (1st Dep't 2005) (“description of the fictional character [must be] so closely akin to [plaintiff] that a [viewer] of the [show], knowing the real person, would have no difficulty linking the two” (citing Springer v. Viking Press, 90 A.D.2d 315, 319 (1st Dep't 1982), aff'd, 60 N.Y.2d 916 (1983)). Further, the “of and concerning” analysis focuses on a “search for similarities and dissimilarities” between the plaintiff and the fictional character. Springer, 90 A.D.2d at 319.
Defendants first contend (as part of their “of and concerning” argument) that Holland “continues to base his case on his own unsupported testimony as he failed to produce any other evidence supporting his claims,” “even after months of discovery.” Holland I, Defs. Mem. at 13. Specifically, defendants argue that because Holland (1) has failed to provide evidence of anyone expressing a reasonable belief that he is Ghost, and (2) continues to rely only his own statements that law enforcement officers acted against him, that the character Ghost cannot be “of and concerning” him. In other words, defendants argue that there is “no genuine dispute as to any material fact,” Fed.R.Civ.P. 56(a), in this case by “demonstrating that [Holland's testimonial] evidence is insufficient to establish an essential element of [his defamation] claim,”-i.e. the “of and concerning” element. Bolling, 2021 WL 961758, at *5.
The Court agrees. While the Court is “required to view the evidence in the light most favorable to [Holland] and draw all reasonable inferences in [his] favor,” including abstaining from credibility assessments, Konteye, 2019 WL 3229068, at *2, Holland “must still do more than assert conclusions . . . unsupported by arguments or facts.” Prendergast v. Port Authority of N.Y. and N.J., No. 19-CV-7314 (ALC) (BCM), 2021 WL 3887697, at *3 (S.D.N.Y. Aug. 31, 2021) (citing Bellsouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996)). And while a party at the summary judgment stage may “rel[y] on affidavits or deposition testimony to establish facts, the statements ‘must be made on personal knowledge,'” which can “include[] basic, commonsensical inferences, so long as they are “grounded in observation or other first-hand personal experience” and are not “flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience.” In re Bridge Const. Servs. of Fla., Inc., 39 F.Supp.3d 373, 383 (S.D.N.Y. 2014) (first quoting DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012); then quoting Visser v. Packer Eng'g Assocs, Inc., 924 F.2d 655, 659 (7th Cir. 1991)).
Accordingly, while Holland has provided the Court with extensive pleadings, opposition papers (including sur-replies), and declarations in the hundreds, if not thousands of pages based on his personal knowledge, these statements alone are still insufficient to support his claims at this stage as they mostly repeat his speculation about what Kemp, Kemp's father, and others might have done in the years leading up to the creation of Power. Nevertheless, drawing all reasonable inferences in favor of Holland as the non-moving party and because he is Pro se, the Court will address defendants' specific arguments regarding the elements of his defamation claim.
Defendants contend, for example, that Holland cannot satisfy the “of and concerning” element because he only claims the following similarities: that he allegedly shares a nickname with the character (“Ghost”), that they were both “drug kingpins” in New York City, and both aimed to get out of the drug trade. Holland I, Defs. Mem. at 13 (citing Holland I, Defs. 56.1 ¶ 34). They further argue that Holland cannot establish the “of and concerning” element because he does not allege that he shares any of the same “attributes” or “fundamental characteristics” as Ghost-e.g., residing and owning a penthouse in Manhattan, “prioritiz[ing] keeping up appearances over the wellbeing of his spouse in children,” and dating a federal prosecutor. See id. at 14-15. Holland counters he does share these attributes as he “grew up in numerous states,” including New York (similar to Ghost), Holland I, Pl. 56.1 ¶ 14 (citing Holland Dep. at 12-15; Holland I, Pl. Decl. ¶ 2), and “did many jobs at the Club for the Cartel,” (similar to Ghost's role in the drug trade), id. ¶ 14, among other things.
Addressing first Holland's alleged sharing the same nickname and profession as Ghost, courts have held that merely sharing the same nickname has generally been insufficient to establish that a fictional character (or a fictional work more broadly) is “of and concerning” a plaintiff. See, e.g., Duncan v. Universal Music Group, No. 11-CV-5654 (DLI) (RLM), 2012 WL 1965398, at *3-4 (E.D.N.Y. May 31, 2012) (dismissing slander claim on “of and concerning” grounds where only shared nickname was alleged). In Duncan, a case in which plaintiff brought privacy and slander claims against Universal Music Group and Viacom for the alleged use of his identity in the films Get Rich or Die Tryin' and 13, the court dismissed plaintiff's slander claim because he was not specifically named in the characters' statements “F-- Majestic,” and “Diss Majestic” in the film, and so the statements could not be said to be “‘of and concerning' him,” even though he purportedly shared the nickname “Majestic” with the antagonist. 2012 WL 1965398, at *1, 3-4. Accordingly, that Holland purportedly shares a nickname with the character Ghost is insufficient to establish the “of and concerning” element.
Turning next to Ghost's other characteristics, while New York courts have found similar name and physical characteristics sufficient to withstand motions to dismiss, more has been required at the summary judgment stage, such as similarities in family composition and history. See e.g., Greene v. Paramount Pictures Corp., 138 F.Supp.3d 226, 235 (E.D.N.Y. 2015) (comparing, e.g., Fetler v. Houghton Mifflin Co., 364 F.2d 650, 651-52 (2d Cir. 1966) (like family composition and history sufficient to present an issue of fact to a jury), with Springer, 90 A.D.2d at 320 (similarities in name, physical height, weight, build, incidental grooming habits, and recreational activities insufficient to establish the “of and concerning” element in light of “profound” dissimilarities “both in manner of living and in outlook”), and Carter-Clark, 768 N.Y.S.2d at 294 (different names, occupations, and “very sketchy physical characterization” insufficient to establish “of and concerning” element)).
Holland claims that he not only shares a nickname and a profession with Ghost (drug trafficking), but also a background (by growing up in New York), colleagues/employees (Los Lobos, Holy, Shawn, Tasha, and Angela), and romantic history (via his alleged affair with a prosecutor). See Holland I, Pl. 56.1 ¶¶ 2-3, 5, 14; see also id. at 3 (paras. A & B). Moreover, despite defendants' claims that Holland “makes no allegations about living a double life during his time as a drug dealer,” Defs. Mem. at 15, Holland expressly disagrees, see, e.g., Holland I, Pl. 56.1 ¶ 15 (“Plaintiff disputes that he wasn't living a Double life, during his time as a Drug Dealer, he testified he was[,] and Blasphemy is about his Double Life.” (citing Holland I, Pl. Decl. ¶ 28)), and claims there are references on Blasphemy of his trying to escape a life of crime. See, e.g., Holland I, Bruckner Decl. Ex. N (Track 10) (“Never was a killer dawg I couldn't run with that. Murder my own kind, no, I couldn't stomach that. Not to say I'm innocent ‘cause Lord I know I'm not. But I was always threatening whenever my gun was shot.”); Holland I, Bruckner Decl. Ex. I (Track 12) (“Trying to figure out this life of mine. Trapped in a life of crime.”); “Monster,” Bruckner Decl. Ex. G. (Track 13) (“raised in the drug trade and raised by the streets”); see also, e.g., Holland Dep. 84:18-21 (“As I told Maria [alleged prosecutor], I was not a willing participant. I had been trying to get out for years, but these people are making it clear that that's not an option.”).
Defendants also argue that Holland claims no similarities between Ghost's more “fundamental characteristics,” like “prioritizing his appearances,” over others, but if Holland's statements during his deposition are to be believed, keeping up appearances is vital to working for the cartel. See Holland Dep. 94:2-9 (describing the need to keep up appearances: “If you meet somebody and they find out, oh, this guy is not built for [violence], they'll come and rob you or kill you or kill your family. So even if you weren't doing anything, you had to put up an exterior that you were[,] or they would come for you.”).
Even these statements, however, do not get Holland over the line at the summary judgment stage, as they still fail to demonstrate a similarity between Ghost and Holland that is “more than . . . coincidence[,]” Geisler, 616 F.2d at 639, or so clearly “designates the plaintiff in such a way as to let those who knew the plaintiff understand that []he was the person meant.” Dalbec v. Gentleman's Companion, Inc., 828 F.2d 921, 925 (2d Cir. 1987) (citation omitted).
Notably, the plaintiff in Geisler shared the same full name and physical description as her fictional counterpart. See Geisler, 616 F.2d at 638.
In Fetler v. Houghton Mifflin Co., for example, the Second Circuit held summary judgment was improper because the character at issue depicted the lives of a family structure that was the “exact composition” of the plaintiff's family- specifically, “a father, mother, and thirteen children of whom ten are boys and the third, fourth and eighth [were] girls.” 364 F.2d at 651; see also, e.g., Taylor v. Doe, No. 20-CV-3398 (MKV), 2021 WL 2940919, at *3 (S.D.N.Y. 2021) (citing same). By contrast, summary judgment is proper here since, because there is no like or exact composition between Holland and Ghost. If anything, Ghost is as likely to be “of and concerning” Jackson (whose life story Kemp claims she borrowed from) to someone who did not know of Jackson's involvement with the series due to their having many of the same attributes. Accordingly, Holland has failed to sufficiently provide evidence for a fact-finder to conclude that Ghost is “of and concerning” him and thus his defamation claim fails as a matter of law.
b. Holland Has Failed To Establish That A Reasonable Viewer Would Believe That Power Contains Assertions Of Fact About Him
To prevail on a defamation claim, a plaintiff must also specifically identify a false statement made about him. See, e.g., Fairstein, 2023 WL 6125631, at *8. As defendants have observed, when a defamation claim is based on fictional works, the works are afforded significant First Amendment protections as they are not themselves intended to convey facts. See Defs. Mem. at 15 (quoting Am. Postal Workers Union v. U.S. Postal Serv., 830 F.2d 294, 306 (D.C. Cir. 1987) (requiring courts to distinguish “intentionally false statements of facts,” which “purport[] to be true” and narrative fiction,” which does not, and thus “deserves considerable [F]irst [A]mendment protection”)).
There is no question that the Power series is fictional. For one, while Kemp has noted her various influences in creating Ghost and other characters (including but not limited to her father, Jackson, and her prior work developing a drug dealing character), see Holland I, Defs. 56.1 ¶¶ 24-30 (citations omitted), the series is not “based off a true story” nor was it advertised as such. The show was marketed as a “drama that straddles the glamorous Manhattan lifestyles of the rich and famous and the underworld of the international drug trade.” Id. ¶ 3. There is nothing in the record to suggest that it was ever promoted as a nonfiction series. Furthermore, the fact that each episode uses the same disclaimer that “[t]he characters and events depicted in this motion picture are fictional and any similarity to actual persons, living or dead, is purely coincidental,” id., combined with the show's broader themes, weigh in favor of summary judgment. And while there are fictional series in which individual episodes are “ripped from the headlines,” notwithstanding a similar disclaimer, see, e.g., Batra v. Wolf, No. 0116059/2004, 2008 WL 827906, at *1 (N.Y. Sup. Ct. Mar. 14, 2008) (Law & Order character “of and concerning” plaintiff where episode closely tracked a real-life scandal involving plaintiff), such is not the case here. Moreover, even assuming that the series could be construed as a nonfiction drama, since Holland cannot identify any specific statements made about him in the series (and claims only broadly that he was a “drug kingpin” and “did many jobs . . . for the Cartel,” Holland I, Pl. 56.1 ¶ 14), he can neither establish that any false statement was made about him, nor that any reasonable viewer would believe the show was specifically about him.
c. Even Assuming Kemp Based Ghost On Plaintiff's Portrayal Of Himself In Blasphemy , Holland Was Not Defamed By Ghost
Having concluded that Holland's defamation claim fails as a matter of law both because (1) the character Ghost is not “of and concerning” him, and (2) Holland has failed to establish that any reasonable viewer would believe that Power contains statements about him, the Court need not address defendants' next argument, as either conclusion is fatal to his claim. Indeed, the fact that Ghost is not “of and concerning” Holland is determinative here since, as the Court noted in its prior order, “[i]t makes no legal difference whether [ ] Kemp . . . heard about Plaintiff's story . . ., listened to his [compact disc] . . ., read about Plaintiff in newspapers . . . or [ ] never heard of him at all.” Holland I Order at 6 n.5 (alterations in original) (citation omitted). Rather, “a defamation claim under New York law do[es] not require a plaintiff to allege how a defendant came to know about him, only that the statements concern him.” Id. (citing Biro v. Conde Nast, 883 F.Supp.2d 441, 456 (S.D.N.Y. 2012)). Nevertheless, for completeness, the Court will address defendants' next argument that-even assuming Kemp based Ghost off Holland and the song lyrics on Blasphemy-“Power could not defame [p]laintiff by portraying the Ghost character as a murderer as it would simply be consistent with [p]laintiff's own portrayal of himself in Blasphemy.” Holland I, Defs. Mem. at 17-18.
In essence, defendants argue that either the murders discussed on Blasphemy are true (and so truth is a defense to his defamation claim), or, in the alternative, because the murders referenced on Blasphemy are untrue (or “metaphorical” as Holland claims), they do not accurately reflect his life such that Ghost could be “of and concerning” him. Id. Again, the Court agrees with defendants. In the Second Amended Complaint, Holland alleges that he met Kemp's father in the 1990s “when he was a drug kingpin living in New York City going by the street name ‘Ghost.'” Holland I, SAC at 5. He further alleges that he “had many discussions with Mr. Kemp about investment opportunities[,] . . . sales of certain products[,]” and “was working on a plan to exit the world of drug trafficking.” Id. He also maintains that “Ghost is plaintiff['s] adult life,” but that “he is defamed by [defendants'] making him into a psychopathic murderer.” Id. By contrast, Holland claims in his 56.1 Statement the murders described in the album are “only metaphorical murders,” but are” “based off real murders.” Holland I, Pl. 56.1. ¶ 13. He further states that he “has never murdered anyone[] or been involved with a murder indirectly or directly.” Id.
It is not clear from the pleading whether the products to which Holland refers in this sentence of the Second Amended Complaint are drugs.
Holland cannot have it both ways. To the extent that Ghost represents his adult life, and is based on Blasphemy (which describes life on the streets, the drug trade, murder, and violence, etc.), then Holland can only be defamed if, upon viewing Power, the metaphorical murders on the album are taken to be true, or alternatively, that any real murders referenced on the album are assumed to be committed by him. In either case, however, because Holland has not established that any viewer believes the murders to be true and committed by him, he cannot be defamed on this basis. Moreover, as Holland has held himself out to be a drug kingpin, any reference to Holland's role in the drug trade on Blasphemy (sans murder) would also be insufficient to support his defamation claim as he alleged in the SAC that he was defamed, not by Ghost's portrayal as a drug lord, but rather by his depiction as a “psychopathic murderer.” Holland I, SAC at 5. Accordingly, even assuming Kemp based the character Ghost and his portrayal as a murderer off of Blasphemy, and there is no evidence in the record to support such a conclusion, Holland has failed to establish that he could be defamed by Power.
d. Holland Has Failed To Raise A Factual Dispute Regarding Defendants' Actual Malice
Defendants further contend that Holland cannot raise a factual dispute regarding defendants' actual malice. Defs. Mem. at 18-21. This argument has merit as well. As courts in this District have held, a defamation plaintiff is required to establish the defendant's “actual malice,” regardless of whether the plaintiff is a “public figure,” if the allegedly defamatory statement is made in connection with an issue of public interest. Palin v. N.Y. Times Co., 510 F.Supp.3d 21, 24 (S.D.N.Y. 2020); see also, e.g., Cestaro v. Prohaska, No. 22-CV-9444 (JSR), 2023 WL 4425737, at *7 (S.D.N.Y. July 7, 2023) (granting defendant's summary judgment motion on grounds that plaintiff failed to proffer sufficient evidence to establish actual malice). At the summary judgment stage, a plaintiff must establish actual malice by clear and convincing evidence, Palin, 510 F.Supp.3d at 24-i.e., he must show that a defendant had the subjective belief the statement at issue was false, and that defendant was “knowing” or “reckless” in its conduct. See, e.g., BYD Co. Ltd. v. VICE Media LLC, 531 F.Supp.3d 810, 823 (S.D.N.Y. 2021).
Given defendants in this suit-two entertainment companies, an acclaimed rapper and entrepreneur, and a television writer and producer-there is no question that this is a case involving issues of public interest. The analysis turns then on whether Holland has established actual malice by clear and convincing evidence, which he has not. For one, Holland cannot establish by clear and convincing evidence that any defendant acted with actual malice in creating the Power series because there is no documentary evidence to support his claims that the audio files produced to defendants were created around the time he alleges he sent them to Kemp's father, let alone that he ever spoke to Kemp's father (e.g. phone records or email), sent Blasphemy to him or that it was received (e.g., a mail delivery receipt), or how it would have gotten to Kemp in advance of her drafting the pilot episode. Moreover, Kemp has declared that she does not believe she has ever met Holland, nor that she was ever sent Blasphemy, or relied upon it in creating the characters and plotline for Power. See Holland I, Defs. 56.1 ¶ 31 (citing Holland I, Kemp Decl. ¶ 23). Without more than his own unsupported statements, Holland cannot meet the high bar of establishing actual malice by clear and convincing evidence, and so his defamation claim must fail on this ground as well.
In light of the multiple bases on which summary judgment should be granted to defendants, the Court does not reach the issues as to whether Holland has sustained damages or is defamation proof (the latter of which the Court previously ruled on and found in Holland's favor). See Holland I Order at 7 n.4.
2. Jackson's Motion To Dismiss In Holland II Should Be Granted
Jackson seeks dismissal of the FAC in Holland II on the following grounds: first, because service of the summons and complaint was improper; second, because the Court lacks personal jurisdiction over him; and third, because Holland fails to state a claim upon which relief can be granted. Holland II, Def. Mem. at 4-19. Holland counters that the claims against Jackson should not be dismissed because Jackson was in New York in 2021 and otherwise travels here, had notice of the lawsuit, and because he sufficiently states a claim for relief. See Holland II, Pl. Mem. at 6-8. For the foregoing reasons, Jackson's motion should be granted, and the amended complaint dismissed.
a. Holland Failed To Properly Serve Jackson
Holland first tried to serve Jackson at a New York address where Jackson previously operated a business. See Holland II, FAC at 4; Holland II, Jackson Decl. ¶ 3. When this attempt at service was unsuccessful, Holland then, at the direction of the Court, provided a California address where the Marshals attempted and allegedly effected service. See Holland II, Dkt. Nos. 14-16. Jackson argues, however, that service was improper as none of the individuals or entities present at the California address (nonparties G-Unit, Boulevard, and Boznick) were authorized to receive service of process on his behalf, nor was the California address Jackson's residence or place of business. See Holland II, Def. Mem. at 4-6 (citing Holland II, Jackson Decl. ¶¶ 4-6; Holland II, Vargas Decl. ¶ 3).
“In deciding a Rule 12(b)(5) motion, a Court must look to Rule 4.” Jordan-Rowell, 2019 WL 570709, at *5 (quoting DeLuca v. AccessIT Grp., Inc., 695 F.Supp.2d 54, 64 (S.D.N.Y. 2010)). The Second Circuit has long held that, “[a]bsent a waiver, Rule 4 mandates that the defendant be served with the summons and complaint personally, or in accordance with one of several prescribed alternatives. A showing that the defendant has had actual notice of the lawsuit is not sufficient to bar a motion to dismiss under [Rule 12].” Martin v. N.Y. State Dep't of Mental Hygiene, 588 F.2d 371, 373 (2d Cir. 1978). Rule 4 provides that an individual can be served by doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.Fed. R. Civ. P. 4(e)(2). Alternatively, Rule 4(e)(1) permits service in accordance with the “state law for serving a summons in an action” in “the state where the district court is located or where service is made.” Fed.R.Civ.P. 4(e)(1). As Jackson observes, New York provides that an individual may be served by
delivering the summons . . . at the actual place of business . . . of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend ‘personal and confidential' . . ., such delivery and mailing to be effected within twenty days of each other.Holland II, Def. Mem. at 5 n.4 (quoting N.Y. C.P.L.R. § 308(2)). And similarly, California provides that an individual may be served by “leaving a copy of the summons and complaint at the person's . . . usual place of business, or usual mailing address . . ., and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.” Id. (quoting Cal. Code. Civ. P. § 415.20(b)).
In this case, there is nothing to suggest that the California address where the marshal purported to serve Jackson was, in fact, Jackson's “actual” or “usual” place of business or mailing address, let alone his residence. Indeed, per the declarations provided to the Court, the receptionist at Boulevard expressly informed the marshal that neither she nor Boulevard were authorized to receive service and thus refused to receive service on behalf of Jackson. See, e.g., Holland II, Vargas Decl. ¶ 3. Accordingly, Holland has failed to properly serve Jackson pursuant to Rule 4(e), which is grounds for dismissal. See, e.g., Muhammad v. Annucci, No. 19-CV-3258 (GBD) (OTW), 2023 WL 2557314, at *2-3 (S.D.N.Y. Mar. 17, 2023) (adopting R&R recommending dismissal of Pro se action for insufficient service of process because, while “Pro se plaintiffs are entitled to ‘special solicitude,' a plaintiff's Pro se status does not exempt [them] from compliance with relevant rules of procedural and substantive law” (citations omitted)).
b. The Court Lacks Personal Jurisdiction Over Jackson
Having determined that service was improper, the Court need not address Jackson's personal jurisdiction arguments, but will do so briefly for completeness.
As a threshold matter, the Court does not have general jurisdiction over Jackson as (1) he is domiciled in Texas, Holland II, Jackson Decl. ¶ 2; (2) he has not maintained an office or place of business in New York for at least four years prior to this suit, see id. ¶ 3; and (3) the U.S. Marshals Service confirmed that Jackson was not located at the New York address when attempting to serve him. See Holland II, Dkt. No. 10.
Second, the Court may not exercise specific jurisdiction over Jackson for Holland's particular causes of action. The Court may only do so if (1) there is jurisdiction under New York's long-arm statute, and (2) jurisdiction comports with the Due Process Clause of the U.S. Constitution. See, e.g., Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163-64 (2d Cir. 2010). N.Y. C.P.L.R. § 302(a), New York's long-arm statute, permits the exercise of personal jurisdiction over a non-domiciliary like Jackson only if he (1) “transacts any business within the state or contracts anywhere to supply goods or services in the state”; (2) “commits a tortious act within the state”; (3) “commits a tortious act without the state causing injury to person or property within the state . . . if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce”; or (4) “owns, uses or possesses any real property situated within the state.” N.Y. C.P.L.R. § 302(a)(1)-(4).
As defendants note, none of the above requirements is applicable to Jackson as he does not have a New York office and declares he “did not make a music video threatening [Holland] in the State of New York.” Holland II, Def. Mem. at 9-11 (quoting Holland II, Jackson Decl. ¶¶ 3, 7). Moreover, Holland's claim that Jackson was filming Power: Book II in May 2021, see Holland II, FAC at 24, does not grant this Court specific jurisdiction over Jackson under § 302(a)(1) because such activity predates this lawsuit by two years and thus plaintiff's claims in this suit cannot be said to have arisen from it. See, e.g., Best Van Lines, Inc. v. Walker, 490 F.3d 239, 246 (2d Cir. 2007) (for § 302(a)(1) determination, court must decide “(1) whether the defendant ‘transacts any business' in New York and, if so, (2) whether this cause of action ‘aris[es] from' such a business transaction requirement”-i.e., “if there is an articulable nexus, or a substantial relationship, between the claim[s] asserted and the actions that occurred in New York” (first alteration in original)).
Likewise, Holland has failed to sufficiently allege that Jackson's conduct meets the requirements of § 302(a)(2) through (4), as Holland does not allege that Jackson “committed a tortious act,” “caus[ed] injury to person[s] or property” (since plaintiff is a resident of Michigan, see Holland II, FAC at 2-3, 7), or, as discussed, supra, “owns, uses, or possesses any real property” in New York.
As there is no statutory basis for the Court to exercise personal jurisdiction, the Court need not address whether jurisdiction would comport with due process. See, e.g., Best Van Lines, 490 F.3d at 244 (“If jurisdiction is statutorily impermissible . . . we need not reach the question of its constitutionality.”). The fact that Jackson does not have a New York office, and appears not to have been in New York since 2021 based on the pleadings and other papers submitted to the Court, weighs strongly in favor of his having insufficient minimum contacts with the State of New York to warrant an exercise of jurisdiction over him. See, e.g., Oklahoma Firefighters Pension & Retirement System v. Banco Santander (Mexico) S.A. Institution de Banca Multiple, 92 F.4th 450, 456 (2d Cir. 2024) (“To have minimum contacts with the forum, the defendant must take some act by which [he] purposefully avails [him]self of the privilege of conducting activities within the forum State. The contacts “must show that the defendant deliberately ‘reached out beyond' [his] home.” (cleaned up) (quoting, inter alia, Walden v. Fiore, 571 U.S. 277, 285 (2014)).
For these reasons, Holland's amended complaint should be dismissed on jurisdictional grounds as well.
c. Holland's FAC Should Be Dismissed For Failure to State a Claim
Jackson also argues that Holland's claims for IIED, NIED, and assault should be dismissed for failure to state a claim. Holland II, Def. Mem. at 14-20. The Court agrees and will briefly address these arguments.
To survive a Rule 12(b)(6) motion, a plaintiff must plead facts “that allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged[]” and that sufficiently “nudges [his] claims across the line from conceivable to plausible.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). Where a Pro se complaint “fails to state a plausible claim supported by more than conclusory factual allegations,” dismissal is appropriate. Jones, 2020 WL 1644009, at *5 (citation omitted); see also, e.g., Ole, 2022 WL 1204862, at *3 (acknowledging court's duty to construe Pro se complaint liberally, but not “re-write it” if claims fail to not rise above speculative level). Even taking Holland's allegations as true for the purposes of this motion, his pleadings nonetheless fail to meet the pleading requirements of Rule 8 and so should be dismissed.
In addition to the other grounds, the fact that Holland's claims in the amended complaint fail to comply with Rule 8 is an additional basis for dismissal. See, e.g., Dvir-Zoldan v. Bogot, No. 17-CV-6609 (PGG) (GWG), 2017 WL 11297193, at *2 (S.D.N.Y. 2017) (recommending dismissal of complaint on Rule 8 grounds (citing Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (“When a complaint fails to comply with [the Rule 8] requirements, the district court has the power, on motion or sua sponte, to dismiss the complaint.” (alteration in original))), adopted by 2019 WL 2004051 (May 7, 2019).
Holland's IIED claim should be dismissed. “Under New York law, the tort of intentional infliction of emotional distress has four elements: (1) extreme and outrageous conduct; (2) intent to cause severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress.” Restis v. Am. Coal. Against Nuclear Iran, Inc., 53 F.Supp.3d 705, 729 (S.D.N.Y. 2014) (citing Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996)). “As New York's highest court has observed, the standard for stating a valid claim of intentional infliction of emotional distress is ‘rigorous, and difficult to satisfy.'” Conboy v. AT & T Corp., 241 F.3d 242, 258 (2d Cir. 2001) (quoting Howell v. New York Post Co., 81 N.Y.2d 115, 122 (1993) (citations omitted))). Furthermore, “[t]he conduct must be ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.'” Id. (quoting Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1993) (citation omitted)).
Here, Holland's allegations of harassment, intimidation, and insults fail to sufficiently plead an IIED claim as the alleged conduct is not extreme and outrageous. Holland alleges, for example, that he was “threatened by [Jackson] and his agents[,] some believed to be armed[,]” and that Jackson “orchestrated and planned a[n] ‘intimidation campaign' to instill fear in [Holland] and . . . cause severe mental anguish.” Holland II, FAC at 5. Other courts, however, have held that even more direct threats do not constitute extreme and outrageous behavior. See, e.g., Leontiev v. Varshavsky, No. 16-CV-3595 (JSR), 2016 WL 4939080, at *3 (S.D.N.Y. Sept. 2, 2016) (dismissing IIED claim, noting “[w]hile threats of physical violence are not the sine qua non of an IIED claim, there are only a few reported cases where an IIED claim has been sustained in the absence of such physical threats”); Torain v. Casey, No. 16-CV-2682 (VEC) (JCF), 2016 WL 6780078, at *2, 5 (S.D.N.Y. Sept. 16, 2016) (dismissing IIED claim because comment “'I'm still gonna break his jaw when I see him” did not constitute extreme and outrageous conduct), adopted by 2016 WL 6775440 (Nov. 14, 2016); Fleming v. Hymes-Esposito, No. 12-CV-1154 (JPO), 2013 WL 1285431, at *9 (S.D.N.Y. Mar. 29, 2013) (also dismissing IIED claim because defendant's “alleged defamation, . . . numerous phone calls, and . . . unannounced visits to [plaintiff's] Apartment (and [defendant's] refusal to leave after one particular visit)” do not constitute extreme and outrageous conduct). As Holland's pleading fails to meet this “rigorous” standard, his IIED claim should be dismissed.
Holland's NIED claim should also be dismissed. “To plead a negligent infliction of emotional distress claim under New York law, a plaintiff must allege (1) a breach of a duty owed to the plaintiff; (2) emotional harm; (3) a direct causal connection between the breach and the emotional harm; and (4) circumstances providing some guarantee of genuineness of the harm.” Francis v. Kings Park Manor, Inc., 992 F.3d 67, 81 (2d Cir. 2021) (first citing Ornstein v. N.Y.C. Health & Hosps. Corp., 10 N.Y.3d 1, 6 (2008); then citing Taggart v. Costabile, 131 A.D.3d 243, 252-53 (2d Dep't 2015)). “To establish the fourth element, the plaintiff generally must plead that the breach endangered his physical safety or caused him to fear for his physical safety.” Id. n.57 (citing Taggart, 131 A.D.3d at 253). Here too, Holland fails to sufficiently plead the elements of his claim. While Holland alleges that Jackson “wanted [him] to be afraid and dismiss his lawsuit [(Holland I)],” that he “has been called [a] snitch, b*tch, coward, and all kinds of horrible names since [Jackson] decided to target [him],” and “is constantly [harassed] by the defendant and his millions of [Jackson's] followers all over the world,” Holland II, FAC at 6, he nonetheless fails to allege anything beyond abstract emotional harm. This, without more, is insufficient to allege NIED and so this claim should be dismissed as well.
Holland's assault claim should also be dismissed as Holland not only fails to allege “offensive” or “imminent harmful contact,” which is required to plead assault, but it is also time-barred. See, e.g., D.K. by L.K. v. Teams, 260 F.Supp.3d 334, 364 (S.D.N.Y. 2017) (“Under New York law, ‘an “assault” is an intentional placing of another person in fear of imminent harmful or offensive contact.” (citation omitted)). While Holland asserts that Jackson “actually came to [his] home and neighborhood” and “pull[ed] up to [his] home,” Holland II, FAC at 5, 12, his allegations of harassment and intimidation fall far short of pleading the contact required for assault. See, e.g., Carroll v. N.Y. Prop. Ins. Underwriting Ass'n, 88 A.D.2d 527, 527 (1st Dep't 1982) (“Threats, standing alone, do not constitute an assault.”); see also, e.g., Gould v. Rempel, 99 A.D.3d 759, 759-60 (2d Dep't 2012) (nonconsensual entering of plaintiff's hotel room, arguing, threats, and “making . . . plaintiff fear for her safety” insufficient to plead an imminent threat of harmful contact). Additionally, even assuming Holland sufficiently pled assault in this case, his claim is time-barred as assault claims are subject to a one-year statute of limitations. See N.Y. C.P.L.R. § 215(3) (requiring an action to recover damages for assault to be commenced within a year). In various documents submitted to the Court, Holland has claimed that the alleged assault (threats) occurred in “late July or early August 2021,” Plaintiff's Reply to Defendants' Response to Plaintiff's Motion to Strike Affirmative Defense of Libel Proof at 6, Holland I, Dkt. No. 103; September 2021, see Holland II, Compl. at 5; and from May 2021 to May 2023, see Holland II, FAC at 5. As the later dates of Jackson's alleged conducted contradict Holland's earlier statements to the Court, the Court will calculate the date the statute of limitations commenced as August 2021 based on Holland's representation to the Court in October 2022, see Holland I, Dkt. No. 34 (emergency motion advising the Court of alleged threats made in response to his filing Holland I), and so he would have needed to file his complaint by August 2022. However, even using September 2021 as the starting date for statute of limitations purposes, Holland was required to bring his assault claims no later than September 2022-still six months prior to when he filed the complaint on March 13, 2023. See Holland II, Compl at 7. Accordingly, as the alleged conduct occurred outside of the statute of limitations, his assault claim is untimely.
Compare, e.g., Holland I, Dkt. No. 103 (describing the alleged conduct giving rise to the Holland II suit as occurring “[a]round late July or early August 2021[.] Plaintiff can't remember exactly your honor, but defendant Jackson decided to come to plaintiff neighborhood, not once, but twice[.]”), and Holland I, Dkt. No. 34 (October 2022 emergency motion in which Holland claims he was told by an unnamed party on September 14, 2021, that “thousands of others had viewed a video from defendant . . . and felt they were clear threats to [Holland's] life because he filed [Holland I]”), with Holland II, FAC at 5 (listing dates of occurrence as May 2021 to May 2023).
3. Defendants' Motion For Judgment On The Pleadings In Holland III Should Be Granted
Defendants argue that their motion for judgment on the pleadings should be granted because Holland fails to and cannot allege a plausible claim for negligent hiring, emotional distress, or assault. Holland III, Defs. Mem. at 11-20; Holland III, Defs. Reply at 3-10. Holland counters that he sufficiently alleges that defendants owed him a duty of care, had knowledge of Jackson's “propensities” and there is sufficient causation between defendants and Jackson's conduct. Holland III, Pl. Mem. at 3-5. For the following reasons, defendants' motion should be granted.
As an initial matter (and as discussed above regarding the Holland I and II motions), the Court will apply New York law to Holland's claims. Additionally, as Holland's claims of emotional distress and assault in this case are substantially similar to his claims in Holland II (in that he fails to allege key elements of each claim), they fail for the same reasons described above. See section II.B.2.c, supra.
All that remains then is Holland's negligent hiring claim, which also fails.
It is well established that to prevail on a negligence claim, a plaintiff must establish “(1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom.” Ritchie Cap. Mgmt., L.L.C. v. Gen. Elec. Cap. Corp., 121 F.Supp.3d 321, 332 (S.D.N.Y. 2015), aff'd, 821 F.3d 349 (2d Cir. 2016). To state a negligent hiring claim requires additionally pleading “(1) that the tort-feasor and the defendant were in an employee-employer relationship; (2) that the employer ‘knew or should have known of the employee's propensity for the conduct which caused the injury' prior to the injury's occurrence; and (3) that the tort was committed on the employer's premises or with the employer's chattels.” Bouchard v. New York Archdiocese, 719 F.Supp.2d 255, 261 (S.D.N.Y. 2010) (citations omitted). As discussed below, because Holland's fails to sufficiently plead his negligent hiring claim, his claim fails as a matter of law.
a. Holland Fails To Allege That Defendants Owed Him A Duty Of Care
At the first prong, Holland fails to allege that Lionsgate and Starz owed him a duty of care. This is because, as defendants note, New York only recognizes certain, well-established “special relationships,” which create a duty of care for negligent conduct such as hiring: namely, “(1) employers with respect to their employees, (2) owners of premises with respect to those who occupy those premises, (3) common carriers with respect to their patrons, (4) hosts who serve alcoholic beverages to their guests, and (5) parents with respect to their children.” Holland III, Defs. Mem. at 12-13 (quoting Ritchie Cap. Mgmt., L.L.C., 121 F.Supp.3d at 332). Here, Holland never alleges that Jackson and defendants have such a relationship in his amended complaint or in the 70 pages of his opposition and exhibits. Instead, he alleges only that Jackson (a nonparty to this suit) owes him a duty of care because “50 Cent was known in Queens,” and defendants (Lionsgate and Starz) have an employer-employee relationship with Jackson, who receives an annual salary from them, see Holland III, Pl. Mem. at 39, which defendants rebut. See Holland III, Defs. Reply at 3-4. Such allegations are insufficient to support a negligent hiring claim. See e.g., Sekulski v. City of New York, 193 N.Y.S.3d 699, 2023 WL 5159348, at *5 (N.Y. Sup. Ct. 2023) (dismissing negligent hiring and other negligence claims where “plaintiff fail[ed] to adequately allege the existence of a special duty between her and the [d]efendants”).
b. Holland Fails To Allege That Defendants Knew Or Could Have Known Of Jackson's Alleged “Propensity” For Violence
Holland further argues that defendants knew or should have known about Jackson's “dangerous propensity” and his alleged tendency “to target disabled/vulnerable people on social media.” Holland III, Pl. Mem. at 5-9 (claiming without support that “[Jackson's] targets seem to be either vulnerable people or people in vulnerable situations”). While Holland attaches to his pleadings and opposition papers numerous press releases, articles, and tweets about Jackson- some of which discuss his deal with Starz, as well as threats and other statements Jackson has made over the years, see Holland III, Dkt. No. 39-1 (collecting statements)-these do not establish a “propensity” for violence as Holland alleges. Indeed, despite Holland's assertions, he fails to sufficiently allege the knowledge element of his negligent hiring claim.
As courts in this District have observed: “A negligent hiring . . . or supervision claim under New York law requires a plaintiff to allege ‘that the defendant knew or should have known of its employee's propensity to engage in the conduct that caused the plaintiff's injuries, and that the alleged negligent hiring, supervision or retention was a proximate cause of those injuries.'” Paul v. City of New York, No. 16-CV-1952 (VSB), 2017 WL 4271648, at *7 (S.D.N.Y. 2017) (quoting Harisch v. Goldberg, No. 14-CV-9503 (KBF), 2016 WL 1181711, at *14 (S.D.N.Y. Mar. 25, 2016)). Holland has pled neither here. Rather, he makes only conclusory statements that defendants should have known about Jackson's alleged “propensities” because he “is very open about his violent behavior” and yet “still . . . partner with [him] on numerous television deals.” Holland III, FAC at 5; see also Holland III, Pl. Mem at 9, 12, 16 (describing how defendants made Jackson the “FACE OF THEIR BRAND/COMPANIES” despite Jackson's allegedly violent and offensive statements).
Because Holland's claims here do not rise above the “speculative level,” Twombly, 550 U.S. at 555, his negligent hiring claim fails on this ground as well.
c. Holland Fails To Allege A Nexus Between Defendants' Alleged Negligence And His Alleged Injuries
Lastly, a plaintiff bringing a negligent hiring claim must also establish “a nexus or connection between the defendant's negligence in hiring and retaining [or supervising] the offending employee and the plaintiff's injuries.” Sokola v. Weinstein, 187 N.Y.S.3d 493, 500 (N.Y. Sup. Ct. 2023), appeal withdrawn, 194 N.Y.S.3d 474 (1st Dep't 2023). This is “a fact-intensive analysis as to how the employer or the employment relationship is involved or connected with the tort; including the ability of the employer to control the employee and its knowledge of the need to exercise such control.” Id. at 507.
Holland's negligent hiring claim does not fare any better under this prong as he simply recycles his claims that Jackson was under defendants' “[s]upervision, employ and control,” Holland III, Pl. Mem. at 4, and sets forth insufficient information for these or his other claims. He fails to plausibly allege that Jackson had any prior contact with him or that defendants Lionsgate and Starz had any relationship with him prior to his filing his lawsuits. Rather, he notes only that of the “100s of liquor stores in Michigan, [Jackson] INTENTIONALLY came to the closest one to plaintiff['s] home at that time to INTIMIDATE and put FEAR in the plaintiff, because of a lawsuit he had filed against the Defendants and 50 Cent himself, using the Defendants resources.” Holland III, Pl. Mem. at 4 (capitalization in original). Again, these sorts of statements, as alleged, are insufficient to establish a nexus between defendants' negligence and plaintiff's injuries, nor does it sufficiently allege any other aspect of his negligent hiring claim. Holland's negligent hiring claim thus fails for this reason as well.
4. Holland's Amended Complaints In Holland II And III Should Be Dismissed With Prejudice
Should Holland's claims in Holland II And III be dismissed for failure to state a claim, they should be dismissed with prejudice and without leave to further amend. While “[d]istrict courts generally grant . . . Pro se plaintiff[s] an opportunity to amend a complaint to cure its defects[],” “leave to amend is not required where it would be futile.” Gilot v. Act Blue, No. 19-CV-11256 (CM), 2020 WL 247960, at *2 (S.D.N.Y. Jan. 16, 2020); see also, e.g., Ashmore v. Prus, 510 Fed.Appx. 47, 49 (2d Cir. 2013) (leave to replead futile where even liberal reading of complaint “did not suggest[] that plaintiff has a claim that []he has inadequately or inartfully pleaded and that []he should therefore be given chance a chance to reframe” (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
Such is the case here. Not only has Holland failed to sufficiently plead his intentional infliction of emotional distress, negligent infliction of emotional distress, and assault claims in Holland II; and his negligent hiring, emotional distress, and assault claims in Holland III as required by Rules 8 and 12, but there is nothing in the record to establish that repleading would cure the defects. For one, Holland has already amended his complaint once in both Holland II And III, and none of the amendments in either case has sufficiently “raise[d] a right to relief above the speculative level.” Ole v. Sauer, No. 19-CV-8865 (NSR), 2022 WL 1204862, at *3 (S.D.N.Y. Apr. 22, 2022) (cleaned up). Further, both Holland II And III are related to Holland I (in which the Court recommends summary judgment be granted in favor of the defendants), and amendment in Holland II would be futile for the additional reason that the Court lacks personal jurisdiction over Jackson. While the causes of action in Holland III are arguably distinct from the other cases, because the cases are related and the first two should be dismissed, there is no basis for further amendment in Holland III. Moreover, nothing in the Holland III pleadings suggests that Holland has simply pleaded inartfully, but rather it is apparent there is no cognizable claim.
Finally, while Pro se plaintiffs are afforded additional opportunities to replead, the degree of solicitude afforded to a Pro se plaintiff “may be lessened where the particular Pro se litigant is experienced in litigation and familiar with the procedural setting presented.” Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010) (citation omitted). Here, Holland not only has experience litigating in this District (including one case that has completed discovery), but he also has experience litigating similar claims in other federal courts. See Request for Judicial Notice in Support of Defendant's Motion for Judgment on the Pleadings ¶¶ 1-12, Holland III, Dkt. No. 37 (listing Holland's three cases in the Southern District and five cases in the Eastern District of Michigan). Accordingly, Holland should not be afforded the opportunity to replead further given his pleading and litigation history.
III. CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment in Holland I should be granted, Holland's motion for a second sur-reply should be denied, his motion for a preliminary injunction in Holland I should be denied as moot, Jackson's motion to dismiss in Holland II should be granted, and defendants' motion for judgment on the pleadings in Holland III should be granted.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See Fed.R.Civ.P. 6(a), (b), (d). Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres, United States Courthouse, 500 Pearl St., New York, New York 10007-1312. Any requests for an extension of time for filing objections must be directed to Judge Torres.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).