Egiazaryan v. Zalmayev

• Decision Date: 30 July 2012
• Docket Number: No. 11 Civ. 2670(PKC)(GWG).,11 Civ. 2670(PKC)(GWG).
• Citation: 880 F.Supp.2d 494
• Parties: Ashot EGIAZARYAN, Plaintiff, v. Peter ZALMAYEV, Defendant.
• Court: U.S. District Court — Southern District of New York

880 F.Supp.2d 494

Ashot EGIAZARYAN, Plaintiff,

v.Peter ZALMAYEV, Defendant.

No. 11 Civ. 2670(PKC)(GWG).

United States District Court, S.D. New York.

July 30, 2012.

Mark Carl Zauderer, Grant Alan Shehigian, Jason Todd Cohen, Jonathan Daniel Lupkin, Flemming Zulack Williamson Zauderer, LLP, New York, NY, for Plaintiff.

Andrew J. Ryan, Salisbury & Ryan, LLP, New York, NY, James P. Golden, Thomas B. Roberts, Hamburg & Golden, P.C., Philadelphia, PA, for Defendant.

MEMORANDUM AND ORDER

P. KEVIN CASTEL, District Judge:

Plaintiff Ashot Egiazaryan commenced this action in April 2011, asserting claims of defamation and injurious falsehood against defendant Peter Zalmayev. By Memorandum and Order dated December 7, 2011, this Court dismissed plaintiff's injurious falsehood claim and three of his four defamation claims. Egiazaryan v. Zalmayev, 2011 WL 6097136 (S.D.N.Y. Dec.7, 2011). Plaintiff thereafter sought leave to amend his complaint, which was granted. Plaintiff's amended complaint asserts the same four defamation claims but omits the claim of injurious falsehood. Defendant now moves to dismiss the amended complaint. Because plaintiff fails plausibly to allege that defendant made false assertions of fact, defendant's motion is granted, and leave to further amend is denied.

BACKGROUND

I. Parties and People

Ashot Egiazaryan is a Russian businessman and was, at the time of the actions giving rise to his complaint, a member of the Duma, Russia's lower house of parliament. (Am Compl. ¶ 5.) He is “engaged in a complex international legal dispute” to recover his ownership interest in a project to redevelop the “landmark Moskva hotel.” ( Id. ¶ 16.) He alleges that a rival businessman, Suleyman Kerimov, and his associates orchestrated a “corporate raid” to steal his ownership interest, and that Kerimov and his associates are behind various threats leveled against him and his family. ( Id. ¶¶ 16, 18, 21–23.) Because of the threats, Egiazaryan moved with his family to the United States in 2010. ( Id. ¶ 24.) Egiazaryan alleges that, were he and his family to return to Russia, they would “face a real and imminent risk of losing life and liberty.” ( Id. ¶ 27.)

Since his arrival in the United States, Egiazaryan has been the subject of negative publicity (“a black ... public relations campaign against Mr. Egiazaryan, designed to discredit him, undermine his chances of remaining in the United States and force him to return to Russia”). ( Id.) Egiazaryan alleges that Kerimov is the “sponsor” of this negative publicity and that, through his company, Denoro, he has retained the public relations firm Public Strategies, Inc., and the investigative firm Thomas Dale & Associates to aid the “smear campaign.” ( Id. ¶ 8.)

Defendant Zalmayev is the director of the New York-based non-profit organization Eurasia Democracy Initiative. ( Id. ¶ 6.) As detailed below, Zalmayev wrote or helped draft several newspaper articles and letters urging the United States to deny Egiazaryan asylum. Egiazaryan alleges that Zalmayev wrote and/or helped draft the articles and letters as part of his role as a “central figure in a dishonest smear campaign against Mr. Egiazaryan.” ( Id. ¶ 7.) Zalmayev describes his actions as an “aggressive advocacy campaign” against Egiazayran. ( Id. ¶ 28.)

Zalmayev paid several people for assistance in generating publicity against Egiazaryan. Zalmayev paid two political consultants, Rinat Akhmetshin and Douglas Bloomfield, a total of $30,000. ( Id. ¶¶ 9–10.) Egiazaryan alleges that Akhmetshin worked not only with Zalmayev but also “in concert with Public Strategies and Mr. Kerimov.” ( Id. ¶ 9.) Zalmayev also paid $7,000 to Leonid Komarovsky, a radio host and the apparent author of one of the negative articles. ( Id. ¶ 63.) Egiazaryan alleges that Kerimov provided Zalmayev the money for these payments. ( Id. First ¶ 115 at p. 33.)

II. The Articles and Letters

a. Zalmayev Article (Count I)

On March 9, 2011, the Jewish Journal, a Jewish weekly with 150,000 readers and a popular website, published an article titled “Hiding in Beverly Hills,” with Zalmayev listed as the author. ( Id. ¶ 38 & Ex. A.) The online edition of the article, which is the one provided to the Court, appears in the “opinion” section of the website. (Ex. A.) The subject of the article is Egiazaryan, and it questions the desirability of his presence in the United States. ( Id.) The article asserts that Egiazaryan is a “prominent financial backer and member of the ultranationalist Liberal Democratic Party of Russia (LDPR), headed by his friend Vladimir Zhirinovsky.” ( Id.) At one point, the article refers to the LDPR as the “Zhirinovsky–Egiazaryan party.” ( Id.) It goes on to assert that Jewish groups have “repeatedly condemned” Zhirinovsky and the LDPR as “anti-American” and “anti-Semitic.” ( Id.) The article concludes by commending Christian Dior's swift condemnation of designer John Galliano's anti-Semitic rant, and it urges the United States “likewise [to] put anti-Semites worldwide on notice: You are not welcome in this country.” ( Id.) Egiazaryan alleges that, contrary to the assertions of the article, he is not a member or leader of the LDPR, but instead is a “non-party candidate nominated to its parliamentary group.” (Am. Compl. ¶ 55.) Egiazaryan also alleges that he is neither an anti-Semite nor a friend of Zhirinovsky. ( Id. ¶¶ 53, 57).

b. Komarovsky Article (Count II)

On March 14, 2011, the Moscow Times, an English-language daily published in Moscow and generally available online, published an article titled “No Safe U.S. Haven for Hatemongers,” with Komarovsky listed as the author. ( Id. Ex. B.) The online edition—again the format provided to the Court—appears in the “opinion” pages of the website. ( Id.) Zalmayev wrote the Moscow Times article himself and submitted it under Komarovsky's name, because Zalmayev was dissatisfied with Komarovsky's earlier writing. ( Id. ¶¶ 64–67.) The article asserts that Egiazaryan is a “long-standing member of the [LDPR], and, consequently its anti-Semitic and xenophobic agenda.” ( Id.) The article also makes reference to the Galliano scandal and urges “Washington [to] follow the example of the fashion label,” and “get real on anti-Semitism” by creating a no-entry list for “anti-Semitic bigots like [E]giazaryan.” ( Id.) As noted, Egiazaryan denies that he is a “member” of the LDPR or that he is an anti-Semite. ( Id. ¶¶ 73–74.)

c. Ponomarev and Alexeyeva Letters (Count III)

Prior to the publication of the Zalmayev and Komarovsky articles, human rights activists Lev Ponomarev and Lyudmilla Alexeyeva sent letters to Representative Chris Smith, “Ranking Member of the Commission on Security and Cooperation in Europe,” stating their concern over Egiazaryan's presence in the United States. ( Id. Ex. C., Ponomarev Ltr., January 29, 2011, & Alexeyeva Ltr., January 30, 2011.) Zalmayev “admit[s] that he drafted the two letters and provided them to Mr. Ponomarev and Ms. Alexeyeva for their respective signatures.” ( Id. ¶ 80.)

Both letters assert that Egiazaryan is associated with the LDPR. ( Id. Ex. C.) Both add the assertion that Egiazaryan helped create and then became deputy chairman of the Duma Committee for Assistance in Political Regulation and Observance of Human Rights in Chechnya (The “Chechnya Committee”). ( Id.) Both repeat reports that funds entrusted to the Chechnya Committee never reached their intended recipients. ( Id.) The Ponomarev letter states that this makes Egiazaryan “a contributor to the destructive second Chechen war.” ( Id., Ponomarev Ltr.) The Alexeyeva letter further states that the Committee “provid[ed] cover for the numerous well-documented atrocities during the war.” ( Id., Alexeyeva Ltr.) Both letters reference the possible creation of a no-entry list; both urge the recipient to raise their concerns with the Department of State and the Department of Homeland Security so that those departments might investigate the appropriateness of Egiazaryan's continued presence in the United States. ( Id.) Egiazaryan denies that the Chechnya Committee controlled the mislaid funds, and he further denies any implication that, as a result of his role on the Committee, he contributed to war crimes or human rights violations. (Am. Compl. ¶¶ 87–88.)

Ponomarev and Alexeyeva retracted their letters within days of signing them. (Am. Compl. Ex. D, Ponomarev Retraction & Alexeyeva Retraction, February 7, 2011.) Ponomarev stated that he “made a grave mistake.” ( Id.) Alexeyeva later explained in a radio interview that she “had been misled” and that Egiazaryan “did not do what I accused him of doing.” ( Id. ¶ 92.)

d. Freedom House Letters (Count IV)

On March 14, 2011, the human rights organizations Freedom House, American Jewish Committee, and National Council on Soviet Jewry sent joint letters to the Department of Homeland Security and the United States Department of State Office to Monitor and Combat Anti–Semitism (collectively, the “Freedom House Letters”). ( Id. Ex. E.) The nearly identical letters assert that Egiazaryan “has for years been one of the leaders and a Duma representative of the LDPR, which is known for its virulently anti-Semitic, anti-American and xenophobic views.” ( Id.) The letters conclude by urging the United States to take swift action and deny any bid by Egiazaryan for asylum. ( Id.) Zalmayev drafted these letters with help of Bloomfield and Akhmetshin. ( Id. ¶ 99.)

III. Dismissal of Defamation Claims in Original Complaint

On December 7, 2011, this Court dismissed defamation Counts II, III, and IV of plaintiff's original complaint. 2011 WL 6097136. (Zalmayev did not move for dismissal of Count I.)

The Court first held that plaintiff was a “public figure” for the purposes of defamation law and that he therefore had to meet a heightened pleading requirement. The Court explained that public figures are held to a heightened pleading standard in defamation cases both because of the importance...