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holding that "[m]ere conclusory statements that the claimant was disparaged by false statements are insufficient to state a defamation claim"
Summary of this case from Demirovic v. OrtegaOpinion
13 CV 2176 (VB)
06-17-2014
DAVID SHAUN NEAL, Plaintiff. v. ASTA FUNDING, INC., and GARY STERN, Defendants.
MEMORANDUM DECISION :
Plaintiff David Shaun Neal, proceeding pro se, brings this diversity action alleging defamation.
Now before the Court is defendants' motion to dismiss the amended complaint for failure to state a claim or, in the alternative, to compel arbitration.
For the reasons set forth below, defendants' motion to dismiss is GRANTED.
The Court has subject matter jurisdiction under 28 U.S.C. § 1332.
BACKGROUND
For purposes of deciding the pending motion, the Court accepts as true all well-pleaded allegations in the amended complaint and draws all reasonable inferences in plaintiff's favor.
Plaintiff alleges little about himself—only that he is a resident of New York State.
Defendant ASTA Funding, Inc. ("ASTA") is a debt-collection agency. Defendant Gary Stern is ASTA's Chief Executive Officer.
In March 2013, plaintiff alleges, "an employee or agent of defendant ASTA" telephoned plaintiff's "former employee" and "business associate" Jacky Charpentier and stated, "Shaun stole some emails from ASTA, do you know anything about that?" Plaintiff does not allege who made this phone call or why.
Elsewhere, however, plaintiff alleges defendant Stern "directed the employee or agent of ASTA to engage in a series of phone calls similar to the one with Jacky Charpentier with other business associates and former employees of plaintiff." Plaintiff alleges Stern "used the resources, employees and services of defendant ASTA" to engage in a "pattern of defamation against plaintiff" in retaliation for plaintiff's having filed a "whistleblowing action . . . with the Department of Labor." In particular, plaintiff alleges, Stern made defamatory statements about him, orally and in emails, to ASTA's employees and to plaintiff's "business associates." Plaintiff alleges he provided defendants with "documentary evidence" showing "the exact circumstances" under which he had come to possess their emails, yet "defendants intentionally and maliciously continued to transmit defamatory statements about plaintiff to third parties." "Upon information and belief," plaintiff alleges this pattern of defamation caused him to suffer the "loss of business opportunities."
Defendants now move to dismiss the amended complaint or, in the alternative, to compel arbitration, arguing plaintiff is bound by an arbitration agreement between defendants and New World Services, an information technology company in which plaintiff is a principal.
DISCUSSION
I. Legal Standard
In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court evaluates the sufficiency of the operative complaint under the "two-pronged approach" announced by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are not entitled to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. at 679.
To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard of "plausibility." Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). 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." Ashcroft v. Iqbal, 556 U.S. at 678. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
Because plaintiff is proceeding pro se, the Court must construe his submissions liberally and interpret them "to raise the strongest arguments that they suggest." Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (internal quotation marks omitted). "Even in a pro se case, however . . . threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks omitted). Nor may the Court "invent factual allegations" plaintiff has not pleaded. Id.
II. Choice of Law
Ordinarily, in a diversity case, the Court must apply the choice of law rules of the forum state to determine which state's substantive law should be applied. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). "However, where the parties have agreed to the application of the forum law, their consent concludes the choice of law inquiry." Cargo Partner AG v. Albatrans Inc., 207 F. Supp. 2d 86, 93 (S.D.N.Y. 2002), aff'd, 352 F.3d 41 (2d Cir. 2003) (citing Am. Fuel Corp. v. Utah Energy Dev. Co., 122 F.3d 130, 134 (2d Cir. 1997)). Here, defendants have briefed plaintiff's defamation claim under the law of the forum state—New York—and plaintiff takes no position on the applicable law. Thus, the Court deems the parties to have consented to the application of New York law. See id.
Having independently reviewed the case law, the Court is satisfied this dispute would be governed by New York law even in the absence of the parties' consent.
III. Defamation
"Defamation, consisting of the twin torts of libel and slander, is the invasion of the interest in a reputation and good name. Generally, spoken defamatory words are slander; written defamatory words are libel." Albert v. Loksen, 239 F.3d 256, 265 (2d Cir. 2001) (citations and internal quotation marks omitted). Because plaintiff's defamation claim arises from both oral and written statements, the amended complaint sounds in both slander and libel.
To prevail on a claim for either libel or slander under New York law, plaintiff must show "(i) a defamatory statement of fact, (ii) that is false, (iii) published to a third party, (iv) 'of and concerning' the plaintiff, (v) made with the applicable level of fault on the part of the speaker, (vi) either causing special harm or constituting [defamation] per se, and (vii) not protected by privilege." id. at 265-66 (citing Dillon v. City of New York, 261 A.D.2d 34, 37-38 (1st Dep't 1999)) (elements for slander); Celle v. Filipino Reporter Enters., 209 F.3d 163, 176 (2d Cir. 2000) (noting nearly identical elements for libel).
"Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law." Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996) (discussing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). Thus, plaintiff's defamation claims are "subject to the liberal pleading standards of Fed. R. Civ. P. 8," Mobile Data Shred, Inc. v. United Bank of Switzerland, 2000 WL 351516, at *6 (S.D.N.Y. Apr. 5, 2000), rather than the "particularized pleading requirements set forth in New York's C.P.L.R. section 3016." Biro v. Conde Nast, 883 F. Supp. 2d 441, 456 (S.D.N.Y. 2012). Even under the more lenient federal standard, however, the amended complaint must at least "identify the allegedly defamatory statements, the person who made the statements, the time when the statements were made, and the third parties to whom the statements were published." Mobile Data Shred, Inc. v. United Bank of Switzerland, 2000 WL 351516, at *6. "Mere conclusory statements that the claimant was disparaged by false statements are insufficient to state a defamation claim." Camp Summit of Summitville, Inc. v. Visinski, 2007 WL 1152894, at *10 (S.D.N.Y. Apr. 16, 2007).
Here, the amended complaint identifies a defamatory statement ("Shaun stole some emails from ASTA, do you know anything about that?"), the approximate time the statement was made ("early March 2013"), and to whom it was made (Charpentier). But plaintiff's failure to identify the anonymous "employee or agent of ASTA" responsible for making the statement is fatal to his claim. See In Touch Concepts, Inc. v. Cellco P'ship, 949 F. Supp. 2d 447, 484 (S.D.N.Y. 2013) (dismissing defamation claim against corporate defendants when plaintiff failed to allege which defendant made defamatory statement); Camp Summit of Summitville, Inc. v. Visinski, 2007 WL 1152894, at *12 (dismissing defamation claim that failed to allege "who at [defendant organization] made the defamatory remarks"); Rafferty v. Halprin, 1991 WL 148798, at *8 (S.D.N.Y. July 26, 1991) (concluding pro se plaintiff's "claim for defamation against all defendants, lumped together," was "pleaded in so vague and conclusory a fashion as to fail to satisfy even the lenient notice pleading requirements of Rule 8(a)").
Nor can plaintiff state a claim against Stern by alleging that on at least some occasions, the anonymous caller was acting at Stern's direction, because it is unclear what Stern directed the caller to say and to whom. See Mobile Data Shred, Inc. v. United Bank of Switzerland, 2000 WL 351516, at *6 (dismissing complaint that failed to identify third party to whom defamatory statement was allegedly published). Thus, in the absence of more detailed pleading. Stern's role in any alleged defamation "is on its face mere speculation." Church of Scientology Int'l v. Eli Lilly & Co., 778 F. Supp. 661, 668 (S.D.N.Y. 1991); see also Nickerson v. Commc'n Workers of Am. Local 1171, 2005 WL 1331122, at *7 (S.D.N.Y. May 31, 2005) (dismissing claim for defamation against unspecified "defendants" alleged to have made "unfounded and unsubstantiated" statements about plaintiff's job performance "to retaliate against and defame [her] personally").
Although "[a] corporation may be held liable for defamatory utterances made by its officer or agent, acting within the scope of his authority," Unker v. Joseph Markovits, Inc., 643 F. Supp. 1043, 1049 (S.D.N.Y. 1986), plaintiff's failure to allege defamation as to any of ASTA's principals or agents forecloses vicarious liability as against ASTA. To the extent direct liability may be alleged against a corporation under New York law, which is doubtful, see, e.g., Karaduman v. Newsday, Inc., 51 N.Y.2d 531, 546-47 (1980), the threadbare allegations of the amended complaint provide the Court no occasion to consider the issue here. Accordingly, plaintiff has failed to state a claim against ASTA.
Because plaintiff's threadbare allegations fail even to satisfy the liberal "plausibility" pleading standard, plaintiff has "not nudged [his defamation] claim[] across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. at 547. Accordingly, plaintiff's defamation claim is dismissed.
IV. Leave to Amend
As plaintiff is proceeding pro se, the Court would ordinarily grant him leave to amend his complaint. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (district court generally should not dismiss pro se complaint without granting at least one opportunity to replead factually insufficient claims). Here, however, because plaintiff has already amended his complaint once, the Court declines to grant plaintiff leave sua sponte to file a second amended complaint.
The amended complaint was filed in response to an Order to Amend issued sua sponte by Chief Judge Preska on May 20, 2013. In that Order, Chief Judge Preska carefully identified the deficiencies in plaintiff's original pleading and explained, in plain English, how to correct them. (See Doc. #3).
CONCLUSION
Defendants' motion to dismiss the amended complaint is GRANTED.
The Clerk is instructed to terminate the pending motion (Doc. #40) and close this case. Dated: June 17, 2014
White Plains, NY
SO ORDERED:
/s/_________
Vincent L. Briccetti
United States District Judge