Opinion
08 Civ. 4581 (LTS) (THK).
January 11, 2011
(PRO SE)
TO: HON. LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE. FROM: THEODORE H. KATZ, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Yahoo, Inc. brings this action claiming, inter alia, trademark infringement, counterfeiting, false designation of origin, and dilution, arising out of a conspiracy involving defendants around the world who deceived internet users into believing that they had won a lottery or prize offered by Yahoo. Presently before the Court is Plaintiff's motion to dismiss the counterclaim of Defendant Emmanuel C. Onyema ("Onyema"). For the reasons that follow the Court recommends that Plaintiff's motion be granted.
DISCUSSION
In an Order, dated October 13, 2010, the District Court granted Plaintiff's motion for judgment on the pleadings and dismissed Onyema's counterclaims without prejudice to repleading. The Order gave Onyema until November 15, 2010 to replead his counterclaims, and specifically stated that "[i]f no timely answer with counterclaims is filed and served by November 15, 2010, Onyema's counterclaims will be dismissed with prejudice and without further notice." Onyema did not file his Amended Answer and Counterclaim until November 16, 2010. (See Docket Entry # 80.) Plaintiff now seeks the dismissal of the counterclaim arguing (1) the counterclaim is untimely, and (2) it fails to state a claim for relief. (See Memorandum of Law in Support of Plaintiff's Motion to Dismiss the Counterclaim of Defendant Emmanuel C. Onyema and Stay of Discovery ("Pl.'s Mem.).) Onyema has not responded to the motion.
Although Onyema's amended answer and counterclaim is, indeed, untimely, in view of the fact that (1) it was late by only one day, (2) Onyema is proceeding pro se, and (3) Plaintiff has not been prejudiced by the delay, the Court will address the counterclaim on its merits.
I. Motion to Dismiss Standard
In deciding a motion to dismiss under Rule 12(b)(6), a court "must accept as true all of the factual allegations set out in [the] plaintiff's complaint, draw inferences from those allegations in the light most favorable to [the] plaintiff, and construe the complaint liberally." Roth v. Jennings, 489 F.3d 499, 510 (2d Cir. 2007) (quoting Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001)); see also Weixel v. Bd. of Educ., 287 F.3d 138, 145 (2d Cir. 2002). "This is especially true when dealing with pro se complaints alleging civil rights violations." Weixel, 287 F.3d at 146. Notwithstanding allowances that courts make for pro se litigants, however, they are not exempt from the usual pleading requirements. See Graham v. Knebel, No. 08 Civ. 4363 (LAP), 2009 WL 4334382, at *2 (S.D.N.Y. Dec. 1, 2009).
The Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007), adds a "plausibility standard," in evaluating the sufficiency of a complaint, which is guided by "[t]wo working principles." Ashcroft v. Igbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); Bilello v. J.P. Morgan Chase Ret. Plan, No. 07 Civ. 7379 (DLC), 2009 WL 2461005, at *5-6 (S.D.N.Y. Aug. 12, 2009). "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949; see also Harris, 372 F.3d at 72. "Second, only a complaint that states a plausible claim for relief survives a motion to dismiss," and "[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S. Ct. at 1950.
For a pleading to survive a motion to dismiss, it must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. at 1949 (quotingTwombly, 550 U.S. at 570, 127 S. Ct. at 1973-74). "Facial plausibility" exists when a "plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citingTwombly, 550 U.S. at 556, 127 S. Ct. at 1965); see also Green v. Beer, No. 06 Civ. 4156 (KMW) (JCF), 2009 WL 3401256, at *3 (S.D.N.Y. Oct. 22, 2009).
II. Failure to State a Claim for Relief
In his counterclaim, Onyema asserts that the Complaint in this action falsely accuses him of engaging in internet spam and fraud without any cause. Onyema claims that Plaintiff's action against him is libelous and has seriously injured his reputation in the community.
Under New York law, a claim for defamation, which can be either slander (if spoken) or libel (if written), must allege
(1) a false statement about the [complainant]; (2) published to a third party without authorization or privilege; (3) through fault amounting to at least negligence on [the] part of the publisher; (4) that either constitutes defamation per se or caused special damages. A statement that tend[s] to injure another in his or her trade, business or profession is defamatory per se. A pleading asserting a cause of action for defamation is only sufficient if it adequately identifies the purported communication, and an indication of who made the communication, when it was made, and to whom it was communicated.Fuji Photo Films U.S.A., Inc. v. McNulty, 669 F. Supp. 2d 405, 411 (S.D.N.Y. 2009) (footnotes and internal quotation marks omitted); accord Gargiulo v. Forster Garbus Esqs., 651 F. Supp. 2d 188, 192 (S.D.N.Y. 2009);
Rather than identifying any particular statement that is alleged to be libelous, and by whom it was made, Onyema appears to premise his counterclaim on the Complaint as a whole as it pertains to him, arguing that its assertion that he, among others, engaged in trademark infringement and false designation of origin on the internet is libelous. The counterclaim does not state a claim for relief because "[a] statement made in the course of legal proceedings is absolutely privileged if it is at all pertinent to the litigation." Lacher v. Engel, 33 A.D.3d 10, 13, 817 N.Y.S.2d 37, 40 (1st Dep't 2006) (citing Youmans v. Smith, 153 N.Y. 214, 219, 47 N.E. 265, 266 (1897); accord Gargiulo, 651 F. Supp. 2d at 192 n. 4; Kirk v. Heppt, 532 F. Supp. 2d 586, 593-94 (S.D.N.Y. 2008). The allegations in the Complaint describing the conduct in which Onyema allegedly engaged are obviously pertinent to the litigation. Accordingly, they are absolutely privileged.
The Court need not resolve which state's law governs Onyema's counterclaim, as the law in Texas, where Onyema resides, affords the same absolute privilege to statements made in the course of legal proceedings. See James v. Brown, 637 S.W.2d 914, 916 (1982) ("Communications in the due course of a judicial proceeding will not serve as the basis of a civil action for libel or slander, regardless of the negligence or malice with which they are made.").
CONCLUSION
For the foregoing reasons, the Court recommends that Plaintiff's motion to dismiss Defendant Onyema's counterclaim with prejudice be granted. Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72 of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6(a) and (d). Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Laura T. Swain, United States District Judge, and to the chambers of the undersigned, Room 1660. Any requests for an extension of time for filing objections must be directed to Judge Swain. Failure to file objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 155, 106 S. Ct. 466, 475 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Small v. Sec'y of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).
Dated: January 11, 2011
New York, New York