Ganske v. Mensch

• Decision Date: 20 August 2020
• Docket Number: No. 19-CV-6943 (RA),19-CV-6943 (RA)
• Citation: 480 F.Supp.3d 542
• Parties: Charles GANSKE, Plaintiff, v. Louise Daphne MENSCH, Defendant.
• Court: U.S. District Court — Southern District of New York

480 F.Supp.3d 542

Charles GANSKE, Plaintiff,

v.Louise Daphne MENSCH, Defendant.

No. 19-CV-6943 (RA)

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

Signed August 20, 2020

Maria Louisa Bianco, Ellenoff Grossman & Schole LLP, Milo Silberstein, Dealy Silberstein & Braverman, LLP, New York, NY, for Plaintiff.

Adam I. Stein, Farrell J. Miller, Cozen O'Connor, New York, NY, for Defendant.

OPINION & ORDER

RONNIE ABRAMS, United States District Judge:

If the Internet is akin to the Wild West, as many have suggested, Twitter is, perhaps, the shooting gallery, where verbal gunslingers engage in prolonged hyperbolic crossfire. It is in this context of battle by tweet that the conduct at issue in this defamation case was born. Plaintiff Charles Ganske, a journalist, alleges that Defendant Louise Daphne Mensch, a blogger and former member of Britain's Parliament, defamed him and interfered with his employment as a result of a tweet that she posted on July 27, 2018 at 12:32 a.m. (the "Tweet"). Plaintiff alleges that Defendant's single Tweet, which "interjected" herself into an ongoing conversation between Plaintiff and a third party, who called himself @Conspirator0, contained numerous defamatory statements. Now before the Court is Defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Because the Court concludes that the allegedly defamatory statements in Defendant's Tweet are nonactionable statements of opinion, the motion is granted.

BACKGROUND¹

I. Extrinsic Evidence

As an initial matter, Defendant asks the Court to take judicial notice of extrinsic evidence in reviewing her motion to dismiss. With her motion, she has submitted several exhibits on which she relies heavily in urging the dismissal of Plaintiff's claims. See Dkt. 22. Generally, "[i]n considering a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference." Kramer v. Time Warner Inc. , 937 F.2d 767, 773 (2d Cir. 1991). A district court nonetheless "has the discretion to take judicial notice of internet materials." BSH Hausgerate, GmbH v. Kamhi , 282 F. Supp. 3d 668, 670 n.1 (S.D.N.Y. 2017). For the foregoing reasons, the Court grants in part and denies in part Defendant's request to take judicial notice of the extrinsic evidence.

First, the Court will take judicial notice of Defendant's "Exhibit 3," which — in addition to the Tweet at issue here — displays two other tweets that Defendant posted on July 27, 2018, approximately twenty minutes before the Tweet, all of which related to the same topic. See Dkt. 22, Att. 6 (July 27, 2018 Tweets). These two other tweets are part and parcel of Defendant's "interject[ion]" into "the conversation (thread) between Ganske and @Conspirator0." Compl. ¶ 14. Therefore, to look only at the Tweet — rather than all three tweets posted during this twenty-minute span — would not provide the necessary or proper context for understanding Defendant's statements that morning. See Condit v. Dunne , 317 F. Supp. 2d 344, 357–58 (S.D.N.Y. 2004) (taking judicial notice of documents that "aid the Court in its determination of whether plaintiff states a claim for relief [for slander]" and that help "place [the defendant's] comments in the broader social context"). Courts are permitted to take judicial notice "of documents that are ‘integral to the complaint’ " and "of materials in the public record ... for the limited purpose of noting what the documents state, rather than to ‘prove the truth of their contents.’ " Hesse v. Godiva Chocolatier, Inc. , No. 19-CV-972 (AJN), 463 F.Supp.3d 453, 462 (S.D.N.Y. May 29, 2020). Because Defendant's two other July 27, 2018 tweets are integral to the allegations in the complaint and necessary to place her comments in context, the Court will take judicial notice of Defendant's "Exhibit 3."

The Court will not, however, consider Defendant's other exhibits, including those displaying tweets posted by Defendant, Plaintiff, and third parties prior to July 27, 2018. See Def.’s Mot. at 12; Dkt. 22. The focus of the complaint is on Defendant's July 27, 2018 statements. While the two other tweets posted by Defendant that morning provide essential context for reviewing the Tweet's allegedly defamatory statements, tweets posted in the days and months prior to July 27, 2018 do not offer the same immediate relevance. Nor is it even clear whether Defendant's exhibits include all of the tweets posted during that time frame and thus provide a full picture of the Twitter communications between the parties prior to and on July 27, 2018. See Oakley v. Dolan , No. 17-CV-6903 (RJS), 2020 WL 818920, at *6 (S.D.N.Y. Feb. 19, 2020) (declining to take judicial notice of tweets because the defendants do not explain why this is "competent evidence that must be considered at the motion to dismiss stage instead of on a motion for summary judgment or at trial"). Accordingly, the Court considers on this motion solely Defendant's tweets of July 27, 2018, contained in Defendant's "Exhibit 3."²

II. Factual Background

Plaintiff is a 37-year old journalist. From 2005 to 2007, "[a]s part of his job, he edited a website, www.russiablog.org, wrote press releases, authored op-eds, and assisted in drafting fundraiser letters and grant applications." Compl. ¶ 8. After a hiatus from journalism, Plaintiff returned in March 2011 to work "as [the] Central Region Broadcast News Editor for the Associated Press (‘AP’) in Chicago, Illinois." Id . From 2016 to 2018, still at the AP, Plaintiff served as the "National Sports Broadcast Editor" and the "Social Media/UGC specialist in Chicago." Id. According to Plaintiff, "[i]n his seven-and-one-half years with the AP, [he] received positive evaluations from his colleagues in Chicago and London for his UGC work and dedication to acquiring user generated content with tact and professionalism" and had "an untarnished reputation in the journalism industry." Id.

Defendant Mensch is a former member of Britain's Parliament and editor of Heat Street, "a ‘news’ site." Id. ¶ 9. Defendant is now "a full-time blogger" and "maintains and operates multiple Twitter accounts, including @LouiseBagshawe (suspended), @LouiseMensch, and @patribotics." Id. ¶¶ 1, 9 (emphasis omitted). Plaintiff asserts that "Mensch was one of the propagandists who, for over two years, heavily promoted the now completely debunked Russia collusion hoax" and that she "trolls Twitter and claims to expose ‘Russian’ influence on and off the platform." Id. ¶¶ 9, 14. According to Plaintiff, Defendant has "a reputation in the community in which she lives and works (i.e. , on Twitter and generally in New York) as being very untruthful." Id. ¶ 4; see also ¶ 14 (alleging that "Mensch has a habit and routine practice of targeting persons with false claims that they are associated with Russians or Chinese").

On July 27, 2018, "Mensch came across the conversation (thread) between Ganske and @Conspirator0, and interjected herself." Id. ¶ 14. This litigation stems from Defendant's Tweet at 12:32 a.m. that day, sent from her @patribotics account:

Id. ¶ 10. Plaintiff alleges that this Tweet contains "false and defamatory statements about [him]" because neither he nor his tweets were "xenophobic"; he "never spread Russian bots on any website"; "Russiablog.org was never [his] ‘own’ website"; and he "had no ‘vendetta’ or ‘obsession’ with anyone." Id. ¶¶ 10–11. Plaintiff further claims that Defendant "deliberately tagged [Plaintiff's] employer, ‘@AP,’ and published the tweet to ‘@APCentral’ in order to interfere with and prejudice Plaintiff in his employment and get Plaintiff fired." Id. ¶ 13.

Prior to posting that Tweet, Defendant tweeted two times prior that morning in connection with the same exchange. First, at 12:17 a.m., Defendant tweeted:

Dkt. 22, Att. 6. Then, at 12:27 a.m., Defendant tweeted again:

Id.

After seeing Defendant's Tweet, "Ganske notified the AP that he was being subjected to targeted harassment by Mensch." Compl. ¶ 16. In response, "AP's Social Media director, Eric Carvin, did not suggest to Ganske that he had done anything on Twitter to violate the AP's Social Media Policy." Id. Nonetheless, on August 10, 2018, Ganske's employment was terminated, purportedly "because of Mensch's tweets." Id. ¶ 17.

Plaintiff filed this action on July 25, 2019, alleging defamation and tortious interference under New York law. On December 10, 2019, Defendant filed the instant motion to dismiss, see Dkt. 22, which Plaintiff opposed on January 3, 2020, see Dkt. 25.

LEGAL STANDARD

To survive a motion to dismiss brought pursuant to Rule 12(b)(6), a complaint must plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). On a Rule 12(b)(6) motion, the question is "not whether [the plaintiff] will ultimately prevail," but "whether [his] complaint [is] sufficient to cross the federal court's threshold." Skinner v. Switzer , 562 U.S. 521, 530, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011). In answering this question, the Court must "accept[ ] all factual allegations as true, but giv[e] no effect to legal conclusions couched as factual allegations." Stadnick , 861 F.3d at 35 (internal quotation marks omitted).

DISCUSSION

I. Defamation

Plaintiff contends that he was defamed because Defendant "used Twitter to make and publish false factual statements of and concerning Ganske" and that these "false statements have harmed Ganske and his reputation." Compl. ¶¶ 20, 23. Plaintiff alleges that Defendant's Tweet...