Feitosa v. Keem
| Decision Date | 28 February 2023 |
| Docket Number | 22-CV-377S |
| Parties | DENNIS FEITOSA, Plaintiff, v. DANIEL M. KEEM, Defendant. |
| Court | U.S. District Court — Western District of New York |
DECISION AND ORDER
In this action, Plaintiff Dennis Feitosa alleges that Defendant Daniel Keem defamed him when he tweeted that “Def Noodles,” Feitosa's YouTube persona, had been accused of grooming 12- to 15-year-old girls. Before this Court is Keem's motion to dismiss the amended complaint for lack of subject-matter jurisdiction and for failure to state a claim. Because this Court finds both that it has jurisdiction and that Feitosa has stated a claim for defamation, it will deny Keem's motion to dismiss.
The following is a summary of facts as contained in Feitosa's amended complaint. This Court assumes the truth of the factual allegations contained therein. See Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976); see also Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton Coll., 128 F.3d 59, 63 (2d Cir. 1997).
Plaintiff Dennis Feitosa is a “YouTube personality” and the creator of a YouTube show called “Def Noodles.” (Amended Complaint, Docket No. 11, ¶ 7.) On Feitosa's YouTube channel, it clearly states, “My name is Dennis Feitosa and Def Noodles is a show I created.” (Id.) Feitosa posts content on Twitter and other social media accounts under the handle “Def Noodles.” (Id.) People familiar with Feitosa understand that references to “Def Noodles” actually are to Feitosa himself. (Id.) Feitosa is domiciled in Los Angeles, California. (Id., ¶ 1.)
Defendant Daniel Keem is a YouTube personality who posts content under the name “Keemstar.” (Id., ¶ 8.) Keem is domiciled in the Eastern District of New York.[1](Id., ¶ 2.) Feitosa and Keem are direct competitors in the “social media/influencer industry.” (Id., ¶ 9.)
On March 31, 2021, Keem sent a direct message to Feitosa on Twitter related to Feitosa's relationship with a social media personality with whom Keem was unfriendly. (Id.) Keem wrote: “what no comment?;” “WHY ARE YOU WORKING FOR ETHAN AND TRISHA?” (Id.) Then on April 2, 2021, Keem wrote, “Bro you are messing up so bad” and “I want a full written apology.” (Id.) Feitosa alleges that in these messages, Keem was threatening Feitosa for his social media postings. (Id., ¶ 10.)
On May 21, 2021, Keem posted the following to his over 2.5 million Twitter followers and linked it to Feitosa's Twitter handle (“the Tweet”): (Id., ¶ 10.)
A photograph of Feitosa appears below the text of the Tweet. (Id.) Under the 1 and the picture, Keem states, “Def Noodles has declined to give us a comment on th allegations made against him.” (Id.)
According to the amended complaint, these statements are false: no girls had alleged that Feitosa/Def Noodles had “groomed” them. (Id., ¶11.) Nor had Keem sought comment from Feitosa/Def Noodles regarding the “allegations.” (Id., ¶ 12.) In fact, Keem blocked Feitosa on Twitter so that Feitosa could not respond publicly to Keem's claims. (d)
On May 22, 2021, a user responded to Keem's tweet saying, “[s]howing them girls his little noodles.” (Id., ¶ 13.) Another user posted “so @defnoodles might be a pedophile?” (Id.) Feitosa asserts that these reactions demonstrate that readers understood the Tweet as stating that he was involved in grooming underage girls for sex. (Id., ¶ 14.) Feitosa received hundreds of harassing and threatening messages in response to the Tweet, including death threats. (Id., ¶ 15.)
Nine months after posting the Tweet, Keem tweeted that the Tweet was a joke, intended to mock Feitosa for himself making false “pedo” allegations against others. (Id., ¶¶ 26-27.)
(Id., ¶ 18.)
Feitosa alleges that he suffered public shame, embarrassment, and humiliation because of Keem's allegations that he committed a “sexual crime.” (Id., ¶ 28.) He lives in fear due to the threats of violence and has suffered severe mental anguish. (Id.)
Feitosa filed his original complaint on May 19, 2022. (Docket No. 1.) On September 12, 2022, he filed an amended complaint. (Docket No. 11.) Keem moved to dismiss the amended complaint on September 26, 2022 (Docket No. 12), and Feitosa responded on October 11, 2022. (Docket No. 14.) After Keem's reply (Docket No. 15), this Court took the motion under advisement without oral argument.
Feitosa brings one cause of action against Keem, for libel per se. Keem moves to dismiss Feitosa's complaint for lack of subject-matter jurisdiction and failure to state a claim.
Keem moves to dismiss Feitosa's complaint pursuant to Rule 12 (b)(1), arguing that this Court lacks subject-matter jurisdiction over Feitosa's claim because he has not alleged damages in excess of $75,000.
Under 28 U.S.C. § 1332 (a)(1), federal courts have subject-matter jurisdiction over actions that arise between citizens of different states, if the amount in controversy exceeds $75,000. Chinese Ams. C.R. Coal., Inc. v. Trump, No. 21-CV-4548 (JGK), 2022 WL 1443387, at *3 . Courts recognize “a rebuttable presumption that the face of the complaint is a good faith representation of the actual amount in controversy.” Scherer v. Equitable Life Assurance Soc'y of U.S., 347 F.3d 394, 397 (2d Cir. 2003) (internal quotation marks omitted). “[T]he sum claimed by the plaintiff controls if the claim is apparently made in good faith,” and dismissal is appropriate only if the legal impossibility of recovering above the threshold amount is “so certain as virtually to negat[e] the plaintiff's good faith in asserting the claim.” Chase Manhattan Bank, N.A. v. Am. Nat. Bank and Tr. Co. of Chi., 93 F.3d 1064, 1070-71 (2d Cir. 1996) (internal quotation marks omitted).
To dismiss a complaint on the ground that the amount-in-controversy requirement is not met, it must appear “to a legal certainty” that the requirement cannot be satisfied. Id. at 1070. “[E]ven where [the] allegations leave grave doubt about the likelihood of a recovery of the requisite amount, dismissal is not warranted.” Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir.1982); see also Tongkook Am. v. Shipton Sportswear Co., 14 F.3d 781, 785 (2d Cir. 1994) ().
Here, Feitosa alleges that he suffered reputational injuries and mental anguish damages exceeding $75,000. (Amended Complaint, ¶¶ 3, 28.) He alleges that due to the Tweet, he suffered public shame, embarrassment, and humiliation; lived in fear due to threats of violence; had to spend time seeking to repair his reputation; experienced severe mental anguish and underwent mental health treatment; had trouble sleeping; and experienced anxiety at events in the social media/influencer industry. (Id.)
In challenging jurisdiction, Keem argues that Feitosa's claims are insufficient because he does not allege that he lost YouTube subscribers or social media followers and does not ascribe a monetary value to the mental anguish he suffered. But these arguments do not meet Keem's burden of showing “to a legal certainty” that the amount recoverable does not meet the jurisdictional threshold. Resolving any doubts in favor of Feitosa's pleadings, this Court finds that he has sufficiently alleged damages in excess of $75,000 such that jurisdiction under 28 U.S.C. § 1332 (a) is proper.
Rule 12 (b)(6) allows dismissal of a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12 (b)(6). Federal pleading standards are generally not stringent: Rule 8 requires only a short and plain statement of a claim. Fed.R.Civ.P. 8(a)(2).
But the plain statement must “possess enough heft to show that the pleader is entitled to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007).
When determining whether a complaint states a claim, the court must construe it liberally, accept all factual allegations as true, and draw all reasonable inferences in the plaintiff's favor. Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008); ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). Legal conclusions, however, are not afforded the same presumption of truthfulness. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”)
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Labels, conclusions, or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Facial plausibility exists when the facts alleged allow for a reasonable inference that the defendant is liable for the misconduct charged. Iqbal, 556 U.S. at 678. The plausibility standard is not, however, a probability requirement: the well-pleaded allegations in the complaint need only nudge the claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.
A two-pronged approach is thus used to examine the sufficiency of a complaint, which includes “any documents that are either incorporated into the complaint by reference or attached...
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