Daniels v. Kostreva

• Decision Date: 07 February 2017
• Docket Number: 15-CV-3141 (ARR) (LB)
• Parties: ZAKKIYAH R. DANIELS, Plaintiff, v. KATHERINE M. KOSTREVA, Defendant.
• Court: U.S. District Court — Eastern District of New York

ZAKKIYAH R. DANIELS, Plaintiff, v. KATHERINE M. KOSTREVA, Defendant.

15-CV-3141 (ARR) (LB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

FILED: February 8, 2017

February 7, 2017

NOT FOR ELECTRONIC OR PRINT PUBLICATION

OPINION & ORDER

ROSS, United States District Judge:

On June 1, 2015, plaintiff Zakkiyah R. Daniels commenced this defamation diversity action against defendant Katherine Kostreva. Compl., ECF No. 1. Despite proper service, defendant has failed to answer or otherwise respond to the Complaint. This court received a report and recommendation ("R. & R.") from the Honorable Lois Bloom, United States Magistrate Judge, addressing plaintiff's motion for default judgment, on January 12, 2017. R. & R., ECF No. 27. Defendant, pro se, timely filed objections on January 26, 2017. Def.'s Obj. R. & R. ("Def.'s Obj."), ECF No. 28. Specifically, defendant argues that Judge Bloom incorrectly determined that the alleged defamatory statements are actionable statements of fact, rather than opinion. Id. at 1. Defendant requests that the motion for default judgment be denied or, in the alternative, a hearing be held regarding the truth or falsity of any statements of fact.¹ Id. Defendant also requests an extension of time to file a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Id. After de novo review, I conclude that the statements at issue are statements of fact or mixed opinion-fact statements actionable under New York law. I deny defendant'srequest for a hearing and her motion for an extension of time to answer the complaint. Finally, after reviewing the portions of the R. & R. to which no party objected, I find no clear error. The R. & R. is thus adopted as the decision of the court.

BACKGROUND

A. Factual Background

On February 1, 2014, plaintiff signed a six-month sublease to rent a room in defendant's apartment in Astoria, Queens. Compl. ¶ 32. Plaintiff paid defendant one month's rent as a security deposit. Id. ¶ 33. In May 2014, plaintiff's bank account and debit card were compromised. Id. ¶ 38. Finding herself unable to pay rent, she moved out of defendant's apartment without notifying defendant. Id. ¶ 39. Plaintiff forfeited her security deposit to cover rent for June 2014, but owed defendant the amount of one month's rent. Id.

On June 4, 2014, defendant anonymously purchased the domain name www.zakkiyahdaniels.com and built a website dedicated to disparaging plaintiff personally and professionally. Id. ¶ 9. The following statements appear on the website:

Zakkiyah Daniels is a FRAUD.

I am the reason law abiding immigrants have a bad reputation. Operating in the [obstructed] on a work Visa, I am not to be trusted. I have bailed on rent and utilities, [obstructed]eeding $1,300 without notice, despite signing a legal contract. I do not have a [ obstructed]warding address. I do not reply to phone calls. I have a history of winning money [obstructed]m incubators, but nothing to show forth. I have been served a court order at my [obstructed] known address in Harlem, but I am no longer residing in NYC. I am believed to [obstructed] in Coral Gables, FL. My startup is called Stylecrook Crook. How fitting. I barely [obstructed] on the internet, and claim to a have law degree from BPP Law School in the UK [obstructed] if I were a lawyer, my actions do not demonstrate any sworn oath I may have [obstructed]en. Too many honest person work hard to be here. I am not one of them. I [obstructed]long in jail. BEWARE. I will take your money and run. I will continue to abuse my [obstructed]y here in the U.S. Ihave even spoken of plans to marry in order to get my green card. If you know where I am, please contact.

Zakkiyah Daniels is on the run.

STYLE "CROOK" IS MY BUSINESS AND I'M IN THE BUSINESS OF STEALING.

MY NAME IS ZAKKIYAH RENA DANIELS DO YOU KNOW WHERE I AM?

THE FRAUD

Zakkiyah Daniels, operates in the US as a [obstructed] immigrant with a work Visa from the UK [obstructed] Bermuda. Despite signing a contract [obstructed] departed without notice from her [obstructed] recent residence in Astoria, New York, without paying past due rent, utilities and internet. In addition to theft of service, Zakkiyah let it be known that she was considering a sham marriage to become a US Citizen. #GoBackWhereYouCameFrom. Zakkiyah Daniels claims she received her law degree from BPP Law School. If she did, then she would know that the BPP Code of Business Ethics states, "We conduct ourselves with honesty, integrity and the highest ethics standards. We abide by and comply with the laws, regulations, and rules that govern us wherever we operate in the world." A bar and a thief do not a lawyer make. #GaveMySoulToTheDevilInBermuda

Screenshots, Compl. Ex. A., at *33-37. Defendant also published a copy of plaintiff's passport, revealing her name, passport number and other identifying information, with the word "FRAUD" superimposed on the photograph. See id.; Compl. ¶ 11.

To disseminate this content, defendant created a social media account using plaintiff's name. Compl. ¶ 10. Posing as plaintiff, she invited plaintiff's personal and business contacts by email to visit the website. Id. It is not clear how defendant obtained contact information for plaintiff's friends and colleagues.

B. Procedural History

On June 1, 2015, plaintiff Zakkiyah R. Daniels commenced this defamation diversity action against defendant Katherine Kostreva. Compl. The summons was returned executednoting that defendant was served on June 23, 2015. Affirmation of Service, ECF No. 5. On August 13, 2015, defendant requested an extension of time to respond to plaintiff's complaint in order to find an attorney. Mot. Extension Time, ECF No. 6. Defendant also requested that a copy of the complaint be mailed to her in Florida. Id. The court granted defendant's request and ordered her to respond to plaintiff's complaint by September 30, 2015. Order (Aug. 17, 2015), ECF No. 8. The Clerk sent a copy of this order to defendant at the Florida address she provided.

Defendant did not respond to plaintiff's complaint by the court-ordered deadline. Plaintiff requested entry of default against defendant on November 3, 2015. Request Cert. Default, ECF No. 10. On January 11, 2016, the Clerk of Court entered a default against defendant. Entry of Default, ECF No. 13. Thereafter, on April 1, 2016, plaintiff moved for default judgment. Mot. for Default J., ECF No. 14. This motion was referred to Judge Bloom on April 5, 2016. Order Referring Mot., ECF No. 15.

Judge Bloom scheduled a damages inquest for September 22, 2016. Order (July 26, 2016), ECF No. 16. A copy of the order scheduling this inquest was sent to defendant at the Florida address she provided. Almost two months later, and only three days before the scheduled inquest, defendant wrote to the court to request that the inquest be adjourned on the basis that defendant had not been properly served. Mot. Adjourn Conf., ECF No. 19. As defendant had received actual notice of the inquest almost two months prior, the court denied defendant's request, and ordered that defendant appear at the September 22, 2016 inquest and to show good cause under Fed. R. Civ. P. 55(c) why the entry of default should be set aside. Order (Sept. 20, 2016), ECF No. 20.

On the eve of the inquest, defendant faxed a second request for adjournment to the court, stating that she was in California caring for her fiance who was scheduled to have surgery. Mot. Adjourn Conf., ECF No. 22. Defendant also requested that all future correspondence be mailed to a restaurant in Brooklyn, New York. Id. Judge Bloom denied defendant's request for an adjournment. Order (Sept. 23, 2016), ECF No. 23.

On November 9, 2016, defendant requested that this case be stayed "pending resolution of the criminal case against Plaintiff." Letter Mot. (Nov. 9, 2016), ECF No. 25. The court denied this motion because "there is no criminal case pending against plaintiff." See R. & R. at 8; Order (Sept. 30, 2016), ECF No. 26. A copy of this order was mailed to the Brooklyn restaurant pursuant to defendant's instructions.

The court received the R. & R. addressing plaintiff's motion for default judgment on January 12, 2017. R. & R. Defendant timely filed objections on January 26, 2017. Def.'s Obj.

DISCUSSION

A district court reviews "de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3). For those portions of the R. & R. to which no objections have been made, a district court uses a "clear error" standard of review. See Brissett v. Manhattan & Bronx Surface Transit Operating Auth., No. 09-CV-874 (CBA) (LB), 2011 WL 1930682, at *1 (E.D.N.Y. May 19, 2011) (citing Lewis v. Zon, 573 F. Supp. 2d 804, 811 (S.D.N.Y. 2008)).

A. Defendant's Statements are Actionable Statements of Fact

Defendant timely objected to the finding in the R. & R. that "the majority of the[] statements [from the website] are actionable statements of fact." R. & R. at 13. I review de novo this finding.

"[O]nly a provable statement of fact is actionable as defamation." Brahms v. Carter, 33 F. Supp. 3d 192, 198 (E.D.N.Y. 2014) (citing McNamee v. Clemens, 762 F. Supp. 2d 584, 600 (E.D.N.Y. 2011)).² While "[i]t is axiomatic that statements of opinion cannot constitute actionable defamation," id. (citing Egiazaryan v. Zalmayev, 880 F. Supp. 2d 494, 503 (S.D.N.Y. 2012)), "[an] exception to this general rule is mixed opinion-fact defamation," Sorvillo v. St. Francis Preparatory Sch., 607 F. App'x 22, 24 (2d Cir. 2015). Mixed opinion-fact defamation occurs when a defendant "makes otherwise non-actionable statements of opinion, but where 'the statement of opinion implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it.'" Id. (quoting Steinhilber v. Alphonse, 501 N.E.2d 550, 552-53 (N.Y. 1986)). However, "'[l]oose, figurative or hyperbolic statements, even if deprecating the plaintiff' [cannot] be the subject of a defamation...