Opinion
18-CV-1780 (LAK) (KHP)
07-17-2021
JULIE WANG, Plaintiff, v. THE NINETY-NINES, INC., Defendant.
REPORT AND RECOMMENDATION ON CROSS MOTIONS FOR SUMMARY JUDGMENT AND OPINION ON MOTIONS TO STRIKE
KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE LEWIS A. KAPLAN, UNITED STATES DISTRICT JUDGE
FROM: KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
Julie Wang, a professional pilot, brings this action against the Ninety-Nines, Inc. (the “Ninety-Nines”), a volunteer, non-profit membership organization that promotes women in the field of aviation. Wang is a member of the Ninety-Nines. The gravamen of her claims is that she was defamed by the Ninety-Nines' publication of articles about her accomplishments as a pilot vis-a-vis those of another Ninety-Nines' member, non-party Saki Chen. Both Wang and Chen competed to become the first Chinese female pilot to circumnavigate the globe. Wang won the contest. Nevertheless, Chen has marketed her own flight around the world, gaining endorsements and fame that Wang believes belong to her. Wang believes the Ninety-Nines has improperly bolstered Chen's reputation through articles published to its members and thereby harmed Wang's ability to capitalize on her achievement. In addition to her defamation claims, Wang asserts other causes of action including prima facie tort, tortious interference with economic advantage, negligence/recklessness, and conspiracy to commit unfair competition. (Compl. ¶¶ 54-89)
Before me for report and recommendation are cross motions for summary judgment pursuant to Fed.R.Civ.P. 56 (Def.'s Mot. For Summ. J., ECF No. 118; P's Mot. For Partial Summ. J., ECF No. 139.) Defendant seeks dismissal of the action in its entirety. (Mem. of Law in Supp. Of Defs' Mot. at 1, ECF No. 118.) Plaintiff opposes the motion and cross-moves for summary judgment in her favor on all her claims except for tortious interference with economic advantage and prima facie tort. For the reasons stated below, I respectfully recommend that Defendant's motion be GRANTED and that Plaintiff's cross-motion be DENIED.
FACTS
Wang, originally from China, works as a U.S. airline pilot. She is a member of the Ninety-Nines. (Defs' Local Rule 56.1 Statement of Undisputed Facts ¶¶ 2, ECF No. 118.) In 2016, Plaintiff entered a contest in China to become the first Chinese female pilot to circumnavigate the globe-a contest she ultimately won. (Def Statement ¶ 3b.) Plaintiff commenced her winning flight on August 17, 2016 and completed it on September 19, 2016. She flew the entire way solo. Id. China held an award ceremony to honor Wang's accomplishment as the contest winner. Id. As a result of her win, Plaintiff claims she was instantaneously the subject of worldwide press coverage. Id. She was invited to and gave many news interviews and made various public appearances on television and elsewhere to discuss and be recognized for her accomplishment. Id.
Non-Party Saki Chen (“Chen”) is a female pilot from China who entered the same contest as Plaintiff. Chen commenced her flight on August 1, 2016, before Wang started her flight, and finished on September 27, 2016, eight days after Plaintiff completed her flight. (Def Statement ¶ 3(a).) Chen was accompanied by two other individuals on her flight and, according to Plaintiff, did not actually fly the whole time. Id. Chen, like Plaintiff, is also a member of the Ninety-Nines. (Def Statement ¶ 2.) Chen is affiliated with the New Jersey Ninety-Nines, a Chapter of the New York-New Jersey Section of the Ninety Nines, and also serves as Governor for the China Section of the Ninety-Nines in China. Id.
Each Section and Chapter of the Ninety-Nines, which are based on geography, are separate corporate entities with their own bylaws and boards of directors. (ECF No. 118 at pp. 3-4; Exhibit F, N.J. 99s Certificate of Incorporation; Exhibit G, The Ninety-Nines' Certificate of Incorporation.) Members of the Ninety-Nines pay dues to the parent organization and, if they join a Chapter, pay separate dues to the Chapter. Each Chapter maintains its own bank account, books and records. Id. Chapters may create and maintain their own websites, which are not monitored by the parent organization. Id. The parent organization (i.e., the Defendant), publishes a magazine for its members called the Ninety-Nines Magazine and also maintains its own website where it publishes an online version of its magazine. https://www.ninety-nines.org/ (last visited June 23, 2021). Id.
Chen and Plaintiff do not appear to have ever been members of the same Ninety-Nines Chapter. Although Plaintiff won the contest to be the first Chinese woman pilot to circumnavigate the Earth in a solo flight, Chen has promoted herself as being the first Chinese woman to fly around the world. (Pl 56.1 Statement ¶¶ 72-76.) Plaintiff claims that the Ninety-Nines helped Chen maintain this false narrative in two articles published in the Ninety-Nines Magazine and in a website article published on the NJ99's website, thereby delegitimizing Plaintiff's claim to fame. (Pl 56.1 Statement ¶ 37.) Plaintiff asserts that the articles are misleading because they misstate and/or omit important details about Plaintiff's and/or Chen's respective flights, thereby helping Chen and hurting Plaintiff. Id. Yet, Plaintiff avers that while she had various marketable opportunities, she did not lose them as a result of the Ninety-Nines publications, but rather as a result of Chen's ambitious pursuit of endorsements and relentless self-promotion. (ECF No. 142 ¶¶ 73, 74, 75, 79, 81, 83, and 84.)
There are three publications at issue. The first is an article that was published in the January / February 2017 (“Statement One”) issue of the Ninety-Nines Magazine and reads in relevant part: “[o]n the Cover, Saki Chen, New Jersey Chapter Member, fulfilled her dream when she became the first Chinese woman to launch a flight to circumnavigate the globe in a single-engine piston airplane. Despite facing some time-consuming challenges, Saki and her team completed the 58-day journey that started and ended in Cleveland, Ohio. The trip covered 21, 119 nm. On September 2, 2016, Saki's Bonanza was the first single-engine piston airplane, piloted by a woman, to land in China for the purpose of circumnavigation. Saki's next goal is to promote general aviation in China.” (Def Statement ¶ 4a.)
The second is an article that was published in the November/ December 2017 (“Statement Two”) issue of the Ninety-Nines Magazine and reads in relevant part: “[a]fter five years of hard training and hundreds of hours of flight instruction, Julie [Wang] was eager to break out of her comfort zone and reignite her passion for flying. She accomplished this in 2016 by becoming the first Asian woman to pilot an airplane around-the-world solo, the ninth woman in history to make the solo flight and the first Chinese person to do so.” (Def Statement ¶ 4d.)
The third undated publication was posted by the NJ99, not Defendant, on the NJ99 website and reads in relevant part: “[a]fter becoming the first Chinese woman to circumnavigate the world in a single engine aircraft, Saki [Chen] has been featured on the cover of the 99s International Magazine.” (“Statement Three”) (Compl. ¶ 67) Defendant had no input or oversight into the publication of this statement. (Pl. 56.1 Statement ¶¶ 13, 14, 15, 49, 50, 51, 52).
PROCEDURAL HISTORY AND NINETY-NINES MOTION TO STRIKE
On December 31, 2020, Defendant filed a motion for summary judgment. (ECF Nos. 115-118.) Plaintiff requested and was granted multiple extensions of time to file her opposition and cross-motion for summary judgment and, in some cases, made such requests after her filing deadline passed. (ECF Nos. 119, 121, 123, 129, and 133.) Recently, this Court permitted Plaintiff one last extension to June 7, 2021 to file her papers. (ECF No. 138.) Plaintiff missed this deadline and submitted her opposition to Defendant's motion and a cross motion for partial summary judgment with accompanying evidence on June 8, 2021. (ECF Nos. 139-142.) She then filed additional papers in support of her cross-motion on June 14, 2021. (ECF Nos. 145-146.) Defendant has moved to strike Plaintiff's late-filed papers. (ECF Nos. 143, 146.) In light of Plaintiff's submissions, the Court granted Defendant additional time to file a reply. (ECF Nos. 150-152.) Plaintiff then submitted an additional declaration and documents. (ECF Nos. 153154.) Again, Defendant moved to strike Plaintiff's late-filed papers. (ECF No. 155.)
SUMMARY JUDGMENT LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 56, summary judgment is appropriate “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(c). A fact is material only if, based on that fact, a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The burden rests on the movant to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). On summary judgment, the court must “draw all justifiable inferences in favor of the nonmoving party, including questions of credibility and of the weight to be accorded particular evidence.” Masson v. New Yorker Magazine, 501 U.S. 496, 520 (1991). The court's role at this stage of the litigation is not to decide issues of material fact, but to discern whether any exist. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994). A party opposing a properly supported motion for summary judgment may not rest upon “mere allegations or denials” asserted in her pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Ultimately, summary judgment may be granted “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.
Typically, “[o]n cross-motions for summary judgment, the court must consider each motion independently of the other and when evaluating each, the court must consider the facts in the light most favorable to the non-moving party.” Chartis Seguros Mexico, S.A. de C.V. v. HLI Rail & Rigging, LLC, 3 F.Supp.3d 171, 179 (S.D.N.Y. 2014). “[E]ven when both parties move for summary judgment, asserting the absence of any genuine issues of material fact, a court need not enter judgment for either party.” See Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001) (citing Heublein, Inc., 996 F.2d at 1461). Where “the motion and cross-motion seek a determination of the same issues, the Court may consider them together.” ExteNet Sys., Inc. v. Village of Pelham, 377 F.Supp.3d 217, 223 (S.D.N.Y. 2019).
Additionally, Defendants have filed three motions to strike requesting that Plaintiff's untimely filings be stricken from the record. (ECF Nos. 143, 146, 155.) As noted above, Plaintiff filed untimely versions of her (i) Opposition to Defendants' Motion for Summary Judgment and Cross Motion for Partial Summary Judgment (ECF No. 142.) and corresponding papers (ECF Nos. 139-141.) and (ii) affidavits, declaration and exhibits (ECF Nos. 145-146.) without seeking prior leave to do so, and in direct contravention of the Court's orders and delineated deadlines. Thereafter, Plaintiff filed an additional 56.1 Statement (ECF No. 153.) with accompany exhibits (ECF No. 154.), again without seeking prior leave to do so. Additionally, Plaintiff has not responded to Defendant's motion to strike nor proffered any reason for her late filings and inability to follow the Court's orders.
There is no question that courts have discretion to grant parties permission to file untimely papers upon a showing of good cause. See, e.g., Local Rule 7.1(b)(3); Davidson v. Keenan, 740 F.2d 129, 132 (2d Cir. 1984); Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1519 (9th Cir. 1983), cert. denied, 465 U.S. 1081, 104 S.Ct. 1446, 79 L.Ed.2d 765 (1984). While the Plaintiff did not present a showing of good cause, this discretion permits courts to balance the importance of untimely papers against the possible prejudice, if any, to the opposing party. See, e.g., In Re: Roussopoulos, 198 B.R. 33, 44 n. 8 (Bkrtcy. E.D.N.Y. 1996). The Court admonishes Plaintiff for her failure to comply with Court deadlines and her failure to show good cause, but nevertheless, in its discretion, accepts the untimely filings. Thus, the motions to strike are denied. However, as discussed below, I find that the late filed papers do not change the outcome of the motions. See Sprayregen v. A. Gugliotta Dev., Inc., 166 F.Supp.3d 291, 294 (E.D.N.Y. 2016) (On a motion for summary judgment, the Court addressed Plaintiff's untimely filings. Citing the court's broad discretion to determine whether to overlook a party's failure to comply with local court rules, the Court held that the Defendants were not prejudiced in the proceedings and considered plaintiff's 56.1 counterstatement.)
DISCUSSION
I. DEFAMATION
Plaintiff and Defendant both seek summary judgment on the defamation claims. In New York, defamation is “the making of a false statement which tends to expose an individual to public hatred, shame, . . . contempt, ridicule, aversion, ostracism, degradation or disgrace, or . . . induce[s] an evil opinion of one in the minds of right-thinking persons, and . . . deprive[s] one of their confidence and friendly intercourse in society.” Kimmerle v. N.Y. Evening Journal, Inc., 262 N.Y. 99, 102, 186 N.E. 217 (1933). To prevail on a defamation claim a plaintiff must prove: (1) a written defamatory factual statement 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. Celle v. Filipino Reporter Enters., 209 F.3d 163, 176 (2d Cir. 2000).
Defendants seek summary judgment dismissing the complaint on the grounds that (1) the allegedly defamatory statements are not actionable; (2) the statements were not published with a defamatory implication; (3) Plaintiff is a public figure and cannot raise a genuine issue of fact as to whether Defendants published the alleged libel with heightened actual malice standard; and (4) Plaintiff cannot establish defamation per se or demonstrate special damages. For her part, Plaintiff seeks summary judgment in her favor with respect to the defamation claims on the grounds the statements are misleading by omission; however, Plaintiff does not provide any legal analysis in her opposition to Defendant's motion or 56.1 statement. (ECF Nos. 142, 145, 153.)
a. Statement One - January/ February 2017 Issue
With regard to Statement One, Plaintiff disputes the veracity of Chen's accomplishment and argues that the article posted in Defendant's magazine is false or misleading because “there is no ‘first to launch' record or statistic maintained as an aviation record in China, in the U.S., or international by the Federation Aeronautique Internationale, the world governing body of aviation records.” (ECF No. 142 at p. 15.)
To start, a statement cannot be defamatory unless it is “of or concerning” the plaintiff. Further, the plaintiff “must be clearly identifiable” from the statement. Abramson v. Pataki, 278 F.3d 93, 102 (2d Cir. 2002). A plaintiff may show through extrinsic facts that an “average reader” would understand the statement, when read in context, refers to the plaintiff. Failure to so demonstrate is fatal to a defamation claim. See Abramson, 278 F.3d 93, 102 (2d Cir. 2002).
Here, the article about Chen is not ‘of and concerning' the Plaintiff. Rather, it concerns Chen's flight and doesn't mention Plaintiff at all. Even assuming the article could be construed as referring to Plaintiff by virtue of her being a member of the female aviatrixes who competed in the contest, Plaintiff provided no evidence whatsoever to support the conclusion that an average reader would understand that anything in the article referred to Plaintiff. This dooms Plaintiff's defamation claim as to statements made in this article.
To the extent Plaintiff takes issue with the article stating that Chen was the first Chinese women to launch a flight that aimed to circumnavigate the globe, she offers no proof this statement is false. (ECF No. 118 at pp. 18-19; Plaintiff's Dep. Tr. At pp. 66, 70). In fact, Plaintiff does not dispute that Chen started her flight before her and offers no evidence that any other Chinese woman pilot started such a trip before Chen. That there is no official recognition of being “first to launch” does not render the statement false; it merely confirms that Plaintiff has no evidence that the statement is false. Accordingly, the defamation claim fails for this reason as well as to this article. See Chau v. Lewis, 771 F.3d 118, 129 (2d Cir. 2014) (In New York, a plaintiff cannot sustain a libel claim if the allegedly defamatory statement is not “of and concerning plaintiff” but rather only speaks about a group of which the plaintiff is a member. Kirch v. Liberty Media Corp., 449 F.3d 388, 398 (2d Cir. 2006); Cummins v. Suntrust Cap. Markets, Inc., 649 F.Supp.2d 224, 249 (S.D.N.Y. 2009), aff'd, 416 Fed.Appx. 101 (2d Cir. 2011), and aff'd, 416 Fed.Appx. 101 (2d Cir. 2011) (On a motion for summary judgment, the court found that on its face the statement was not “of and concerning” the plaintiff and therefore does not support a defamation claim.)
b. Statement Two - November/ December 2017 Issue
Statement Two is an article that details Plaintiff's flight and was created with Plaintiff's input. It describes Plaintiff's accomplishments and employs positive language about Plaintiff. Plaintiff nevertheless argues that it is false and misleading by omission because it allows readers of both the prior article about Chen and this article that both Chen and Plaintiff had a “first” when in fact they were competitors in the same contest and there is only one “first”- the winner of the contest. (ECF No. 142 at p. 19.)
To determine if a statement meets the threshold for defamation, the court must determine whether the statements complained of are reasonably susceptible of a defamatory construction. James v. Gannett Co., 40 N.Y.2d 415, 419, 386 N.Y.S.2d 871, 874-75, 353 N.E.2d 834, 837-38 (1976). To be actionable the statement “must do more than cause discomfort . . . the speech [must] attribute[s] odious or despicable characterizations to its subject.” Chau v. Lewis, 771 F.3d 118, 126-27 (2d Cir. 2014). Thus, while Plaintiff argues that the article and statements in it are defamatory, the laudatory nature of language in the statements render them not actionable. See Kimmerle v. N.Y. Evening Journal, Inc., 262 N.Y. 99, 102, 186 N.E. 217 (1933) (statement must expose person to “. . . public hatred, shame . . . ridicule or degradation” to be defamatory). Indeed, Plaintiff does not dispute that the statements in the article are factually accurate and admits receiving positive feedback from the article. (Pl. 56.1 Statement, ECF No. 142 ¶ 47.)
To the extent Plaintiff argues that the article is misleading and incomplete because it does not state that Plaintiff is the first Chinese woman to fly around the world, she is incorrect. The article clearly says that Plaintiff was the “first Asian woman to pilot an airplane around-the-world solo, ” “the ninth woman in history, ” and “the first Chinese person to do so.” (Def's. Statement, ¶ 46; November/ December 2017 issue of The Ninety-Nines News.) Therefore, Plaintiff's assertion that Defendant, through the two articles, created a false impression that Chen won a separate contest is incorrect. Neither article detracts from Plaintiff's impressive accomplishment and recognition as a winner of the Chinese contest. At most, the articles, read together, highlight two women who both flew around the world and describes their separate trips in congratulatory ways. Nothing about the first article detracts from the second article stating that Plaintiff was the “first Asian woman to pilot an airplane around-the-world solo.” Nor is there any evidence that the reporting is unbalanced and unfair to Plaintiff. In any case, even if Plaintiff perceives the articles as unbalanced, that would not form the basis for a defamation claim. See Sprecher v. Dow Jones & Co., Inc., 450 N.Y.S.2d 330, 88 A.D.2d 550, 551 (1st Dep't 1982), aff'd, 58 N.Y.2d 862, 460 N.Y.S.2d 527, 447 N.E.2d 75 (1983) (whether or not a particular article constitutes unbalanced reporting is essentially a matter involving editorial judgment and is not actionable).
Statement Three - NJ99's Website
Statement Three-the posting on non-party NJ99's website-referred readers to Defendant's article about Chen (i.e., Statement One). Plaintiff argues that the Defendant should have known about the Chapter's posting, including that it was false, and is responsible for its Chapter's actions. Plaintiff argues that the posting constitutes actionable defamation because it undermines Plaintiff in her trade and business and injures her personal and professional reputation and commercial interests. (Compl ¶¶ 67-71) Notably, Plaintiff does not point to specific language in the posting that is false.
As was the case with Statement One, the posting is not actionable under a defamation theory because it is not ‘of and concerning' Plaintiff - it is about Chen. Thus, even assuming Defendant could be held responsible for the posting, notwithstanding undisputed facts showing it had no input into it, the statement is not actionable.
To the extent that Plaintiff attempted to argue Defendant has liability for NJ99's posting under a respondeat superior theory, the Court notes that this theory applies when an employee commits a tort within the scope of his/her employment. Fernandez v. Rustic Inn, Inc., 60 A.D.3d 893, 896, 876 N.Y.S.2d 99, 102 (N.Y.A.D. 2 Dept. 2009). Plaintiff alleges that NJ99 members, not employees, wrote the posting. There is no evidence that members are employees, or that employees of Defendant had any involvement in the posting. Thus, this theory is inapplicable. In any event, it makes no difference to the outcome. See Girden v. Sandals, Int'l, Ltd., 206 F.Supp.2d 605, 607 (S.D.N.Y. 2002), aff'd sub nom. Girden v. Sandals Int'l, 67 Fed.Appx. 27 (2d Cir. 2003) (Court granted defendant's motion for summary judgment and held that since it dismissed Plaintiff's claims entirely they did not need to address their argument about defendant's liability with respect to an employee's employment under a theory of respondeat superior).
Finally, there is no evidence that Plaintiff suffered any damages as a result of any of the alleged defamatory statements. Plaintiff acknowledges the opportunities she had were not hindered by the publications and points to no evidence that she lost sponsorships or media opportunities because of the publications. (ECF No. 142 ¶¶ 73, 74, 75, 79, 81, 83, and 84.)
I do not address the other arguments raised by the parties because the defamation claims fail for the reasons set forth above. Accordingly, I recommend that summary judgment be granted in Defendant's favor as to the defamation claims. I have considered Plaintiff's untimely filings and find that they do not change the outcome. Therefore, Defendant's motions to strike are denied.
PLAINTIFF'S REMAINING CLAIMS:
Defendant asks for summary judgment on all of Plaintiff's other claims, whereas Plaintiff only seeks summary judgment on her other claims for conspiracy to commit unfair competition and recklessness/ negligence. I address the claims below.
A. Tortious Interference With An Economic Advantage
The elements of a cause of action for tortious interference with prospective economic advantage are: (1) existence of a profitable business relationship; (2) the defendant's interference with that relationship; (3) the Defendant's use of dishonest, unfair, improper, or wrongful means; and (4) damage to the business relationship. Five Star Dev. Resort Communities, LLC v. iStar RC Paradise Valley LLC, 2010 WL 2697137 *4 (S.D.N.Y. 2010). To sustain such a cause of action a plaintiff must demonstrate that the interference was accomplished by “wrongful means.” Waste Services, Inc. v. Jamaica Ash and Rubbish Removal Co., 262 A.D.2d 401, 691 N.Y.S.2d 150 (2d Dep't.1999) (cause of action for tortious interference with prospective contractual relations requires showing of “malice or wrongful conduct”).
In this case, Plaintiff has not established an existing business relationship, presented any evidence that Defendant acted with the sole purpose of harming the Plaintiff by wrongful means, or that Defendant intentionally procured the breach of any agreement between the Plaintiff and some other company. Additionally, given that Plaintiff does not dispute any material fact regarding this claim, and because Plaintiff's tortious interference with economic advantage is duplicative of her defamation claim, Defendant's motion for summary judgment with respect to this claim should be granted. See Restis v. Am. Coal. Against Nuclear Iran, Inc., 53 F.Supp.3d 705, 727 (S.D.N.Y. 2014) (citing Hengjun Chao v. Mount Sinai Hosp., 476 Fed.Appx. 892 (2d Cir. 2012)) (A claim must fail as duplicative of the defamation cause of action where such claims are premised on the same “factual allegations . . . [as] the facts underlying [a] defamation claim.”)
B. Prima Facie Tort
Under New York Law, there are four elements required to support a claim for prima facie tort: (1) intentional infliction of harm, (2) causing special damages, (3) without excuse or justification, and (4) by an act or series of acts that would otherwise be lawful. Ross v. Mitsui Fudosan, Inc., 2 F.Supp.2d 522, 531 (S.D.N.Y. 1998) (citing Curiano v. Suozzi, 63 N.Y.2d 113, 480 N.Y.S.2d 466, 469, 469 N.E.2d 1324 (1984)). Defendant argues that the prima facie tort claim must be dismissed because it is duplicative of her defamation claims. (ECF No. 118 at p. 28.).
“Where the factual allegations underlying the prima facie tort cause of action relate to the dissemination of allegedly defamatory materials, that cause of action must fail.” McKenzie v. Dow Jones & Co., 355 Fed.Appx. 533, 536 (2d Cir. 2009). Plaintiff's claim for prima facie tort is based solely on the Defendant's alleged defamation. As such, the claim relates only to defamatory allegations and fails as a matter of law. See McKenzie, 355 Fed.Appx. at 536; Springer v. Viking Press, 90 A.D.2d 315, 457 N.Y.S.2d 246, 248 (App. Div. 1982) (in case involving allegedly libelous depiction of plaintiff in novel, there was “no warrant for the invocation of the prima facie tort doctrine” where plaintiff could not succeed “without, at the same time, establishing the classical tort of libel”). Plaintiff does not move for summary judgment on this claim nor offer any persuasive argument against its dismissal. Thus, I recommend that summary judgment with respect to this claim be granted in Defendant's favor.
C. Conspiracy to Commit Unfair Competition
Plaintiff argues that the Defendant's support of Chen's false narrative constitutes an unfair appropriation or exploitation of a special quality attached to Plaintiff's name and her accomplishment thereby constituting wrongful misappropriation of a commercial advantage belonging exclusively to the Plaintiff. (Compl ¶¶ 86-89) The Plaintiff further alleges that the Defendant's behavior was for a dishonest purpose, in bad faith and designed to sow confusion in the mind of the public. Id.
To establish a cause of action for relief based on unfair competition, a plaintiff must demonstrate that the defendant wrongfully diverted the plaintiff's business to itself. See Baldeo v. Majeed, 150 A.D.3d 942, 944, 55 N.Y.S.3d 340 (2017). Unfair competition encompasses “[t]he principle that one may not misappropriate the results of the skill, expenditures and labors of a competitor.” Electrolux Corp. v. Val-Worth, Inc., 6 N.Y.2d 556, 567, 190 N.Y.S.2d 977, 161 N.E.2d 197 (1959). The key is that the unfair competition was procured through fraud or deception, or an abuse of a fiduciary or confidential relationship. Katz Dochrermann & Epstein, Inc. v. Home Box Office, No. 97 Civ. 7763, 1999 WL 179603, at *4 (S.D.N.Y. Mar. 31, 1999). Further, New York law does not recognize an independent tort of conspiracy. Kirch v. Liberty Media Corp., 449 F.3d 388, 401 (2d Cir. 2006). The conspiracy cause of action, and “‘[allegations of conspiracy are permitted only to connect the actions of separate defendants with an otherwise actionable tort.'” (Transit Mgt., LLC v. Watson Indus., Inc., 23 A.D.3d 1152, 1155-1156 (2005), quoting Alexander & Alexander of N.Y. v. Fritzen, 68 N.Y.2d 968, 969 (1986).
Here, Plaintiff has not offered any evidence that would support a claim of misappropriation. She has not shown that the Defendant obtained access to Plaintiff's business idea through fraud or deception or had any information about any real or possible business opportunities. Defendant has not misappropriated anything. All it did was publish short articles about two of its member's flights. Notably, Plaintiff has not offered any evidence that Defendant conspired with Chen to commit unfair competition. Accordingly, I recommend granting summary judgment in Defendant's favor as to this claim.
D. Negligent Misrepresentation
Plaintiff alleges that the Defendant breached its duty of care to Plaintiff by adopting a deliberate and calculated strategy of falsely misrepresenting to the public and supporting and assisting Chen in representing to the public that Chen, and not Plaintiff, is the first Chinese woman to pilot an aircraft around the world. (Compl ¶¶ 76-79).
A claim for negligent misrepresentation requires the plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information. See Parrott v. Coopers & Lybrand, 95 N.Y.2d 479, 484, 718 N.Y.S.2d 709, 741 N.E.2d 506 (2000); Murphy v. Kuhn, 90 N.Y.2d 266, 270, 660 N.Y.S.2d 371, 682 N.E.2d 972 (1997). There is not a separate cause of action for ‘recklessness' under New York law and thus this “claim” is not analyzed.
Here, Plaintiff does not present any evidence that she was in a special or “privity-like” relationship with the Defendant. She was simply a voluntary member of the organization. Even if Defendant had a duty to Plaintiff as a member, Plaintiff failed to demonstrate that the articles were misleading, false, and defamatory. Thus, she cannot show any negligent misrepresentation because Plaintiff was not owed a special duty by Defendant and the articles were not misleading or false. Assuming Plaintiff could have met the first two elements, she also failed to raise a triable question of fact as to the reliance requirement. The claim also fails because Plaintiff has presented no facts from which a jury could conclude that Defendant caused her any injury. No reasonable juror could conclude that Plaintiff's reputation was injured by the articles given that they were not defamatory but instead highlighting accomplishments. Plaintiff admitted getting positive reactions from the article about her. There is no evidence that the article about Chen caused Plaintiff any specific harm. Rather, Plaintiff appears to admit that Chen, not the Defendant, is the cause of her alleged injuries. (ECF No. 142 ¶¶ 73, 74, 75, 79, 81, 83, and 84.) Accordingly, I recommend that summary judgment be granted in Defendant's favor as to this claim.
CONCLUSION
At bottom, Plaintiff has dragged Defendant into a fight she has with Chen. Plaintiff is upset with Chen's self-promotion and success and believes she should not be celebrated for her flight in light of Plaintiff's solo flight. Defendant, a non-profit membership organization that simply celebrates its members, is an inappropriate target. For all of the foregoing reasons, I respectfully recommend that Defendant's motion for Summary Judgment (ECF No. 118) be GRANTED in entirety and Plaintiff's cross motion for summary judgment be DENIED. (ECF No. 139.)
NOTICE
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections to the Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)).
If any party files written objections to this Report and Recommendation, the opposing party may respond to the objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Kaplan. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).