Conti v. John Doe

• Decision Date: 27 February 2019
• Docket Number: 17-CV-9268 (VEC)
• Parties: PAUL CONTI, Plaintiff, v. JOHN DOE, Defendant.
• Court: U.S. District Court — Southern District of New York

PAUL CONTI, Plaintiff, v. JOHN DOE, Defendant.

17-CV-9268 (VEC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

February 27, 2019

OPINION

VALERIE CAPRONI, United States District Judge:

Plaintiff Paul Conti, a psychiatrist, has sued his former patient, Defendant John Doe, for defamation, intentional infliction of emotional distress, and violations of several state criminal statutes.¹ See Am. Compl., Dkt. 31. Defendant has moved to dismiss for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). See Notice of Mot., Dkt. 41. For the following reasons, Defendant's motion to dismiss is GRANTED IN PART AND DENIED IN PART.

BACKGROUND²

Plaintiff is a psychiatrist practicing in Portland, Oregon. See Am. Compl. ¶¶ 10, 19. Beginning in May 2016, Plaintiff provided psychiatric treatment to Defendant, a domiciliary of Ohio, as Defendant was addicted to Xanax, was an excessive gambler, and had repeatedly engaged in threatening and destructive behavior. See id. ¶¶ 3, 16-18. Within a few months,Plaintiff diagnosed Defendant with "Narcissistic Personality Disorder, including Borderline and Antisocial traits." Id. ¶ 25. Plaintiff recommended that Defendant taper off his use of Xanax, with the goal of eventually ceasing it altogether, a process known as titration. See id. ¶¶ 26, 28. Defendant, however, continued to abuse Xanax and to engage in other destructive behaviors while under Plaintiff's care. See id. ¶ 27. In April 2017, Plaintiff terminated his treatment of Defendant. See id. ¶ 36. Plaintiff told Defendant and his family that treatment could not be continued safely because Defendant was continuing to abuse drugs, refusing to comply with Plaintiff's treatment program, and sending Plaintiff threatening text messages. See id. ¶¶ 35-36; id. Ex. D.

Between April and November 2017, Defendant sent Plaintiff numerous emails and text messages accusing Plaintiff, inter alia, of committing "fraud" and "malpractice." See id. ¶¶ 37-51; id. Exs. E-I. The emails were laced with profanity and other invectives. See, e.g., id. Exs. B, C, E, F. In several emails, Defendant stated that Plaintiff had "abandoned" him by being "unreachable" while Defendant was attempting to reduce his use of Xanax. See, e.g., id. ¶¶ 40, 43; id. Exs. C, E, F, H, N, O. Defendant also stated that Plaintiff had lied to Defendant's family about Defendant's failure to follow Plaintiff's course of treatment and about the reasons that Plaintiff terminated his treatment of Defendant. See, e.g., id. ¶¶ 42, 44; id. Exs. H, I, J, K. Additionally, Defendant stated that his parents had "caught" Plaintiff "red handed" committing misconduct. Id. Ex. I; see also id. Exs. C, J. Defendant stated that Plaintiff's actions caused Defendant to "relapse" in his drug abuse, id. Exs. C, F, and caused Defendant severe "mental pain," id. Ex N; see also id. ¶¶ 42, 44; id. Exs. I, M.³

In these emails, Defendant threatened to "ruin [Plaintiff's] name" id. Ex. J; to bring legal action against Plaintiff, see, e.g., id. Ex. H ("I'm advising you get a legel [sic] team because I'm coming with everything I can . . . ."); id. Ex O ("I'm going to do everything in the power of the law to destroy [you]"); and to otherwise cause harm to Plaintiff, see, e.g., id. Ex. H ("I want to drain you of all your resources . . . ."); id. Ex. K ("I will f*****g bury your a** alive."); id. Ex. L. Defendant also stated that Plaintiff had spent his life "[b]ilk[ing] people out of money," id. Ex. B, and that, when working in a prior position at Brigham and Women's Hospital, Plaintiff did not do "the most bang up job," id. Ex. C. Defendant copied numerous third parties on these emails, including an attorney on faculty at Harvard Law School, several professors of psychiatry, Defendant's parents, and several members of Plaintiff's psychiatry practice. See id. ¶¶ 6, 37, 39, 42-45, 50-51.⁴

In addition to these emails, Defendant orally told several employees and clinicians in Plaintiff's psychiatry practice that Plaintiff had conducted "a therapeutic telephone call while 'drunk'" and had "solicited prostitutes while on a work trip." Id. ¶ 57; see also id. ¶ 33.

Plaintiff brings claims against Defendant under New York and Ohio law. As to New York law, Plaintiff brings a claim for defamation, which combines a claim for libel (based on Defendant's emails and text messages) and a claim for slander (based on Defendant's oral statements). See id. ¶¶ 54-58. Plaintiff also brings a claim for intentional infliction of emotional distress ("IIED") under New York law. See id. ¶¶ 76-79. As to Ohio law, Plaintiff brings four claims pursuant to that state's criminal statutes, which Plaintiff argues provide him a private right of action.⁵ See id. ¶¶ 59-75. Defendant has moved to dismiss all claims, pursuant to Federal Rule of Civil Procedure 12(b)(6). See Notice of Mot.

DISCUSSION

I. Standard of Review

To survive a motion to dismiss, "a complaint must allege sufficient facts, taken as true, to state a plausible claim for relief." Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). "Although for the purposes of a motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [the court] '[is] not bound to accept as true a legal conclusion couched as a factual allegation.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). "[T]o survive a motion under Rule 12(b)(6), a complaint does not need to contain details or elaborate factual allegations, but only allegations sufficient to raise an entitlement to relief above the speculative level." Kieler v. Harlequin Enters., Ltd., 751 F.3d 64, 70 (2d Cir. 2014) (internal citation omitted).

II. Plaintiff's Defamation Claims

A. Defendant's Motion to Dismiss Plaintiff's Libel Claim Is Granted in Part and Denied in Part

1. Introduction

Defendant moves to dismiss Plaintiff's claim for libel on the ground that Defendant's emails and texts are not reasonably susceptible of a defamatory construction. The statements in Defendant's emails that Plaintiff abandoned Defendant in treatment, that Plaintiff lied to Defendant's family about the reasons for terminating treatment, and that Plaintiff was "caught" committing misconduct are all reasonably susceptible of a defamatory construction; accordingly, Defendant's motion to dismiss is DENIED as to those statements. The statements in Defendant's emails that Plaintiff "[b]ilked people out of money" and that Plaintiff did not do a "bang up job" while working at Brigham and Women's Hospital, however, cannot support a defamatory construction; accordingly, Defendant's motion to dismiss is GRANTED as to those statements.

2. The Applicable Law

The parties agree that New York law applies to Plaintiff's defamation claim.⁶ See Def.'s Mem. of Law, Dkt. 42, at 5; Pl.'s Mem. of Law, Dkt. 47, at 7 n.2. A plaintiff must allege five elements to state a claim for libel under New York law: "(1) a written defamatory statement of fact concerning the plaintiff; (2) publication to a third party; (3) fault (either negligence or actual malice depending on the status of the libeled party); (4) falsity of the defamatory statement; and(5) special damages or per se actionability." Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163, 176 (2d Cir. 2000); see also, e.g., Hughes v. Twenty-First Century Fox, Inc., 304 F. Supp. 3d 429, 452 (S.D.N.Y. 2018).

Defendant's motion focuses primarily on the first element. See Def.'s Mem. of Law at 4-11. "Whether particular words are defamatory presents a legal question to be resolved by the court in the first instance." Celle, 209 F.3d at 177 (quoting Aronson v. Wiersma, 65 N.Y.2d 592, 593 (1985)); see also Davis v. Boeheim, 24 N.Y.3d 262, 268 (2014). The Court must determine "whether the contested statements are reasonably susceptible of a defamatory connotation," Davis, 24 N.Y.3d at 268 (quoting Armstrong v. Simon & Schuster, Inc., 85 N.Y.2d 373, 380 (1995)), that is, "whether any reading of the complaint supports" a defamatory construction, id. at 272. "If any defamatory construction is possible, it is a question of fact for the jury whether the statements were understood as defamatory." Purgess v. Sharrock, 33 F.3d 134, 140 (2d Cir. 1994).

A "defamatory" writing is one that contains a statement of fact, rather than a statement of "pure opinion." See Davis, 24 N.Y.3d at 268-69 (quoting Gross v. New York Times Co., 82 N.Y.2d 146, 153 (1993)); see also Chau v. Lewis, 771 F.3d 118, 129 (2d Cir. 2014); Purgess, 33 F.3d at 140. New York courts apply a three-factor test to determine whether a reasonable person would consider a statement a "fact" or a nonactionable "opinion":

(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal . . . [to] readers or listeners that what is being read or heard is likely to be opinion, not fact.

Davis, 24 N.Y.3d at 270 (quoting Mann v. Abel, 10 N.Y.3d 271, 276 (2008)); see also Gross, 82 N.Y.2d at 153. In applying this test, "the court must give the disputed language a fair reading inthe context of the publication as a whole." Armstrong, 85 N.Y.2d at 380; see also Celle, 209 F.3d at 177; Davis, 24 N.Y.3d at 270.

In addition, New York courts distinguish between statements of "pure opinion" and those of "mixed opinion." Davis, 24 N.Y.3d at 269; see also Chau, 771 F.3d at 129; Steinhilber v. Alphonse, 68 N.Y.2d 283, 289 (1986). Statements of "pure opinion" cannot support a defamation claim, as they are protected from liability under New York's constitution, but statements of "mixed opinion" can. See Celle, 209 F.3d at 178; Davis, 24 N.Y.3d at 269; Steinhilber, 68 N.Y.2d at...