Michel v. NYP Holdings, Inc.

• Decision Date: 07 March 2016
• Docket Number: No. 15–11453.,15–11453.
• Parties: Prakazrel MICHEL, Plaintiff–Appellant, v. NYP HOLDINGS, INC., d.b.a. New York Post, Isabel Vincent, Melissa Klein, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

816 F.3d 686

Prakazrel MICHEL, Plaintiff–Appellant,

v.NYP HOLDINGS, INC., d.b.a. New York Post, Isabel Vincent, Melissa Klein, Defendants–Appellees.

No. 15–11453.

United States Court of Appeals, Eleventh Circuit.

March 7, 2016.

Michael Julian Gottlieb, Gregory Jacob Dubinsky, Boies Schiller & Flexner, LLP, Washington, DC, Eli J. Glasser, Boies Schiller & Flexner, LLP, Fort Lauderdale, FL, Darren Adam Heitner Wolfe Law, Miami, PA, Miami, FL, for Plaintiff–Appellant.

Laura Rose Handman, Constance M. Pendleton, Davis Wright Tremaine, LLP, Washington, DC, Yonatan Berkovits, Davis Wright Tremaine, LLP, Broadway, FL, Dana J. McElroy, Thomas & Locicero, PL, Fort Lauderdale, FL, for Defendant–Appellee.

Before MARCUS, JORDAN and BLACK, Circuit Judges.

MARCUS

, Circuit Judge:

In this defamation case, well-known rapper and philanthropist Prakazrel ("Pras") Michel challenges the truth of an article published about him in the New York Post's Page Six gossip column. The article claimed that Michel had failed to perform as expected as the headliner at a 9/11 charity event for the Hope for Them Foundation with which he was purportedly affiliated. Michel says that the article defamed him because he had no connection to the Foundation and had not been scheduled to perform at the event. The district court dismissed Michel's claims with prejudice, finding that the article presented only non-actionable statements of opinion under New York law.

While we believe the district court correctly dismissed the complaint, we reach that conclusion for different reasons. Because a reasonable reader of the article would have concluded that it presented statements of fact (not just non-actionable opinion), the article is not privileged against a defamation action. But because Michel has failed to adequately plead facts giving rise to a reasonable inference that the defendants published the article with actual malice, he has nonetheless failed to state a claim; accordingly, the complaint was properly dismissed. However, the dismissal should have been entered without prejudice, and Michel given leave to amend his complaint.

I.

Plaintiff Michel is a Grammy-winning artist and founding member of the music group the Fugees who currently engages in a series of philanthropic and business ventures. Page Six is a well-known gossip column run by the New York Post, a widely circulated tabloid newspaper both in New York City and across the country. On October 5, 2015, Page Six ran a story about Michel, written by Isabel Vincent and Melissa Klein, under the headline "Ex–Fugee rapper bailed on his own 9/11 benefit concert." The story reads in full:

Pras Michel, the rapper who co-founded The Fugees, was a no-show as the headliner for a 9/11 charity event in Hell's Kitchen to benefit his own foundation.

His Hope for Them foundation also bounced a check to the venue, falsely claimed MTV sponsored the fundraiser and failed to register the charity with state officials.

The group claims to minister to the poor in Haiti but distanced itself in promotional material from the country for fear potential donors would confuse it with the disgraced charity run by his cousin, ex-Fugees frontman Wyclef Jean, said a Hope for Them insider.

Jean's Yele Haiti charity was shut after alleged mismanagement. It is under investigation by the state.

"Their whole basis is, ‘Don't let anyone know that we're from Haiti,’ " the insider said.

Hope for Them was founded in 2011 by Haiti native Mike Jean, a record producer and songwriter.

Michel was listed as a board member on the group's Web site early last week. By Friday, his name had disappeared, and Mike Jean told The Post the Grammy winner wasn't a board member.

The event, at Stage 48 in Hell's Kitchen last Sept. 11, was billed as "Fashion for Charity" to help New Yorkers. Tickets ranged from $40 to $2,000. In addition to a fashion show, Michel was to perform.

The well-established New York Cares charity was also brought in as a sponsor, the insider said.

MTV's logo was prominently featured on promo material. But the insider and MTV told The Post the network was never a sponsor.

The only connection was event hostess Lenay Dunn, a former host of the MTV show "10 on Top."

Organizers said Saturday that the event pulled in $6,000 but $5,600 went to expenses, with $1,100 for Stage 48 and $500 for N.Y. Cares.

Hope for Them owed the venue $1,100 after patrons failed to cover a promised bar minimum, the source said. It bounced a check to the venue, which threatened legal action, according to e-mails from a Stage 48 staffer to Hope for Them.

Mike Jean told The Post the bill was paid late last week. Stage 48 refused to comment, but an e-mail indicated the tab had not been paid as of Friday afternoon.

He said Michel couldn't perform because he had the flu. Michel said N.Y. Cares would be paid.

Alleging defamation and the intentional infliction of emotional distress, Michel filed suit against the New York Post and the article's authors in Broward County circuit court in Florida. The defendants subsequently removed the case to the United States District Court for the Southern District of Florida, alleging diversity of citizenship between the parties.

In his complaint, Michel contests many of the statements in the article and says that publication indicated a "blatant reckless disregard for the truth." He complains that the defendants falsely stated and/or implied that the Foundation "belongs to Pras," that he bounced a check to a venue, that he falsely claimed MTV sponsored a fundraiser hosted by the Foundation, that he had an obligation to register the charity with the state, that he had an obligation to perform at the charity event, and that he had "bailed on" his own benefit concert. Among other things, Michel asserted that he "has no relationship with the Foundation" and "never guaranteed a performance at the event." Thus, the article's assertions to the contrary were false. Moreover, despite the claims in the headline and article that the event was for a 9/11 charity, 9/11 "had absolutely nothing to do with the charity event in Hell's Kitchen." Finally, Michel claimed that two days before the article was published, the Foundation's president wrote to the reporters that "Pras is a good friend of the organization and supports our cause but is not a board member." The reporters allegedly failed to follow up by further investigating that point. In short, Michel alleged that he "had nothing to do with the event and has no relationship with the foundation." Michel claimed that the article's publication imperiled many business ventures in which he was engaged and caused him emotional distress.

The defendants moved to dismiss, arguing that the article is true, that the contested characterizations constituted protected opinion, and that Michel had not pled that the defendants acted with the requisite actual malice. After full briefing and oral argument, the district court dismissed Michel's claims with prejudice. Applying New York law, the district court concluded that the article consisted only of non-actionable statements of opinion. Specifically, the district court determined that the article's tone and the context of its appearance in the Page Six gossip column would cause a reasonable reader to interpret the article's statements as being those of opinion, not fact.

Addressing the Page Six context, the district court wrote this:

As to the latter, the New York Post's Page Six traffics in celebrity gossip. Its reputation is well-known, and is captured succinctly in the lede to a December 2004 profile published in another prominent New York publication—Vanity Fair:

Anonymous tips, political agendas, raging lawyers, outrageous sex stories—so goes life at "Page Six," the New York Post gossip column Rupert Murdoch ordered up in 1977. The Page has since broken news of Donald and Marla's affair, Woody Allen's relationship with his "stepdaughter," and Kirstie Alley's possum-nursing fetish. Listening to staffers, sources, and subjects, an alumnus chronicles the feuds, scoops, and characters that have made the column as powerful as the boldfaced names it covers.

Frank DiGiacomo, The Gossip Behind the Gossip, Vanity Fair, Dec. 2004. As such, Page Six is just the place that a reasonable reader would "anticipate [the use] of epithets, fiery rhetoric or hyperbole."

Moreover, the district court described the tone of the article as suggesting that it was founded on opinion because it was rife with rumor, speculation, and seemingly tenuous inferences. The article also identified the sources of its information, providing the factual basis for those inferences. Having concluded that the article represented protected statements of opinion and, thus, that the complaint should be dismissed, the district court declined to address the defendants' other arguments.

Michel timely filed this appeal.

II.

We review de novo an order granting a Rule 12(b)(6)

motion to dismiss for failure to state a claim. Simpson v. Sanderson Farms, Inc., 744 F.3d 702, 705 (11th Cir.2014). The allegations in the complaint must be accepted as true and construed in the light most favorable to the plaintiff. Ironworkers Local Union 68 v. AstraZeneca Pharm., LP, 634 F.3d 1352, 1359 (11th Cir.2011). To survive a Rule 12(b)(6) motion to dismiss, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility 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. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). We are, of course, free to affirm the district court's dismissal on "any ground that is supported by the record." United States v. Elmes, 532 F.3d 1138, 1142 (11th Cir.2008).

III.

The suit was commenced in Florida contesting the publication of an...