Combier v. Portelos, 17-CV-2239 (MKB)
| Decision Date | 05 July 2018 |
| Docket Number | 17-CV-2239 (MKB) |
| Parties | ELIZABETH COMBIER, Plaintiff, v. FRANCESCO PORTELOS, et al., Defendants. |
| Court | United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York) |
REPORT AND RECOMMENDATION
Plaintiff Elizabeth Combier ("plaintiff") brings this action against defendants Francesco Portelos ("Portelos"), Lucio Celli ("Celli"), Bryan Glass, Esq. ("Glass"), Jordan Harlow, Esq. ("Harlow") (collectively, the "individual defendants"), and against the New York City Department of Education (the "DOE") and Carmen Fariña ("Fariña"), the former Chancellor of the DOE1 (together, the "DOE defendants"), asserting claims for violations of the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030 et seq.; the Stored Communications Act ("SCA"), 18 U.S.C. § 2701 et seq.; 42 U.S.C. § 1983 ("section 1983"); the First, Fifth and Fourteenth Amendments to the United States Constitution; and various claims under New York state law. See generally Second Amended Complaint ("SAC") (Dec. 12, 2017), Electronic Case Filing Docket Entry ("DE") #39.2
Currently pending before this Court, on a referral from the Honorable Margo K. Brodie, are defendants' motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Order Referring Motions (Apr. 4, 2018); Motion to Dismiss filed by Celli (Jan. 3, 2018) ("First Celli Motion"), DE #44; Motion to Dismiss filed by the DOE Defendants (Jan. 30, 2018), DE #51; Motion to Dismiss filed by Glass and Harlow (Jan. 30, 2018), DE #55; Motion to Dismiss filed by Portelos (Feb. 1, 2018), DE #57. Defendant Celli also moves to dismiss the case for failure to prosecute, which Judge Brodie likewise referred to the undersigned magistrate judge. See Motion to Dismiss for Lack of Prosecution (Feb. 23, 2018) ("Second Celli Motion"), DE #60. For the reasons that follow, this Court recommends that defendants' Rule 12(b)(6) motions be granted in their entirety and that this action be dismissed on that basis.
This case involves what is essentially a dispute between private parties competing to represent tenured New York City public school teachers in disciplinary hearings ("3020-a hearings").3 In sum, the Second Amended Complaint alleges that in an effort to destroy her business as a non-attorney advocate representing teachers in 3020-a hearings, the individual defendants engaged in a scheme to hack into her website, alter the content of her blog and disseminate false information about her through internet postings and mass emails. Thefollowing facts are drawn from plaintiff's Second Amended Complaint and are accepted as true for purposes of this motion.
Since 2010, plaintiff has been self-employed as an advocate for tenured New York City public school teachers subject to disciplinary hearings, and has assisted attorneys working on the same subject matter. See SAC pp. 5, 15. She is also the editor of several websites and blogs, including Parentadvocates.org and NYC Rubber Room Reporter. See id. p. 6.
In 2011, defendant Glass, an attorney, asked plaintiff to assist him in representing a teacher in a 3020-a hearing. See id. pp. 8, 15. In 2012, Glass asked plaintiff to train his associate, defendant Harlow, to handle such hearings. See id. pp. 9, 15; see also Plaintiff's Opposition to Defendants' Motion to Dismiss (Mar. 13, 2017) ("Pl. Opp.") at 5, DE #67 ( that in 2013, Glass asked to assist his associate in handling 3020-a hearing). Plaintiff recruited five teachers who subsequently hired plaintiff and Glass. See id. Plaintiff alleges that Glass sought to steal plaintiff's clients and directed Harlow to take over the arbitration hearings without plaintiff. See SAC p. 9. In 2013 through 2014, Harlow and plaintiff worked together, but Harlow spoke negatively about plaintiff to clients so that she would lose those clients to Harlow. See id. p. 10. In fact, plaintiff further alleges that Harlow told a client, who had asked plaintiff for help, that she should never speak to plaintiff, that every teacher that plaintiff represented was ultimately terminated, and that plaintiff was ill-equipped to represent teachers. See id.
Defendants Portelos and Celli are teachers employed by the defendant DOE. See id. pp. 6, 8. Celli is a member of an advocacy group started by defendant Portelos -- UFT Solidarity. See id. p. 8. At Portelos' direction, Celli has defamed plaintiff and her friends,with the intent of ending plaintiff's business. See id.
From September 2015 to the present, defendants Portelos and Celli engaged in a scheme to damage plaintiff's business and deny her the "right to earn money" by recruiting teachers to solicit plaintiff's help with 3020-a hearings; having the teachers send plaintiff payment as a "thank you," even though plaintiff had not requested any payment; and then having the teachers, a few days later, demand that plaintiff return their money. See id. p. 19. In addition, the individual defendants "broadcast[ed]" their accusation that plaintiff was practicing law without a license and should be prosecuted for participating in 3020-a hearings. See id. p. 20. On September 20, 2015, Portelos organized a meeting in Queens with approximately 50 United Federation of Teachers ("UFT") members, wherein a former teacher told the assembled crowd that plaintiff was a homophobe. See id. p. 18. Portelos recorded the former teacher's speech and posted the video on his website. See id. From November 2015 to the present, Portelos and Celli also spread negative information about plaintiff through mass emailings and postings on Portelos' Facebook page, website and other social media. See id. pp. 20-21.
In March 2016, defendant Celli sent a series of emails to about 50 addresses, including those of the Manhattan and Bronx District Attorneys and other public officials and members of the media, accusing plaintiff of working against teachers and colluding with the General Counsel of the DOE. See id. p. 21. Specifically, Celli claimed that plaintiff secretly recorded arbitration hearings and made ex parte phone calls to the New York State Public Employment Relations Board. See id. pp. 21-22.
Plaintiff further alleges that in July or August 2016,4 Portelos hacked into plaintiff's blog, "NYC Rubber Room Reporter," deleted a section titled "The 3020-a Arbitration Newswire," and, on September 30, 2016, added the deleted section to his guide to 3020-a hearings for UFT members, which Portelos posted on his website, "UFT Solidarity." See id. pp. 7, 22. In his guide, Portelos states that union members should avoid non-lawyer assistance and directs readers to hire defendant Glass to represent them in 3020-a hearings. See id. p. 7. In turn, Glass posted a comment on Portelos' social media to "beware of snake-oil salesmen," which plaintiff believes is a reference to her. See id. p. 9.
According to plaintiff, Portelos, Celli, Glass and Harlow created a poster of plaintiff (reproduced at Pl. Opp. at 55), which was sent to her on October 11, 2016, by her former client, Jim Geist, who threatened her with criminal prosecution for posting his Social Security number on her website, Parentadvocates.org. See SAC pp. 22, 23. Plaintiff claims that the posting of Mr. Geist's Social Security number was due to an error by Glass and Harlow, who entered that number in the online public data of the New York State Supreme Court in connection with his 3020-a hearing. See id. p. 23. In fact, Mr. Geist's Social Security number does not appear on plaintiff's website. See id. The aforementioned poster was used by defendants to solicit plaintiff's former clients to "sign up" to be refunded the money they had paid plaintiff over the years. See id. pp. 23-24.
On October 19, 2016, Portelos sent an email to teachers in New York City and Los Angeles, warning them about plaintiff's rendering of "illegal legal consultation" to a teacher in connection with the teacher's 3020-a hearing. See id. p. 24. Portelos also attached the posterdescribed above and the address of a blog, nycrubberroomreportercom.blogspot.com, in which plaintiff is accused of stealing from a church. See id.
The amended pleading further alleges that, without plaintiff's knowledge, Portelos posted articles on another blog, nycrubberroom.com, and listed as the owner of the blog plaintiff's foundation, the E-Accountability Foundation, with plaintiff's home address and phone number. See id. p. 25. As a result, in March 2017, plaintiff was threatened with a federal lawsuit by a photographer for posting a photograph by him on that blog, without his authorization. See id.
On September 21, 2017, "[w]ith the support of the individual [d]efendants in this case," Mr. Geist (plaintiff's former client) filed a complaint against plaintiff with the West Milford, New Jersey, Police Department for posting his Social Security number. See id. pp. 23, 25. In addition, the Second Amended Complaint alleges that on December 4, 2017, Portelos posted false information on his UFT Solidarity website to the effect that plaintiff was being investigated by the Manhattan District Attorney's Office. See id. p. 25.
Although the Second Amended Complaint contains virtually no allegations regarding Chancellor Fariña or the DOE, plaintiff contends that the DOE "bears vicarious liability" for the acts of the individual defendants for its failure to supervise its employees and to enforce its policies as to internet use and computer abuse. See id. p. 11. According to plaintiff, the DOE was aware of the individual defendants' scheme to malign plaintiff's reputation but did not act to prevent it. See id. p. 19. Moreover, Celli and Portelos are alleged to have sent mass emails disparaging plaintiff using their DOE email and/or DOE computers during the school day, in violation of DOE policies, without repercussion. See id. p. 26.
Plaintiff commenced this action on April 13, 2017, see Complaint (Apr. 13, 2017), DE #1, and initially amended...
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