Greer v. Fox Corp.
| Decision Date | 07 September 2022 |
| Docket Number | 20-CV-5484-LTS-SDA |
| Parties | STEVEN E. GREER, Plaintiff, v. FOX CORPORATION, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION IN PART
Before the Court are objections to the Report and Recommendation of Magistrate Judge Aaron, dated June 3, 2021. (Docket entry no 160 (the “Report”).) Objections have been filed by both Plaintiff Steven Greer (“Plaintiff” or “Greer”) and Defendants Fox Corporation, Fox News Media, Fox News Network, LLC, Lachlan Murdoch, Suzanne Scott Justin Wells, Charles Gasparino, Fox Business Network, Brian Jones (the “Fox News Defendants” or “Fox”); News Corporation, Dow Jones, the Wall Street Journal, and Gerard Baker (“the News Corp. Defendants”) (collectively, “Defendants”). The Court has jurisdiction of this case pursuant to 28 U.S.C section 1332.
Judge Aaron's Report recommended that the two motions to dismiss filed by Defendants[1] be granted, but that Plaintiff be given leave to replead certain causes of action. The Court has reviewed thoroughly the Report, the parties' submissions on the objections, and the papers filed in connection with the underlying motions, and, for the following reasons, adopts in part the Report.
The factual background of this case was discussed in detail in the Report; the parties' familiarity with the facts is assumed. In brief, Plaintiff is a medical doctor and writer[2]who has appeared as a guest speaker on various television and radio programs. (Report at 5.) From 2008 through 2013, he appeared as a guest speaker on several Fox News shows, published several op-eds in the Wall Street Journal, and provided news tips to reporters at both Fox and the Wall Street Journal. (Id.) These business relationships eventually deteriorated, which Plaintiff attributes to his being “blacklisted” by the Defendants. (Id. at 5-6.) During one incident in March 2013, Plaintiff arrived at the Fox headquarters to appear as a program guest, but the security desk would not let him pass initially. (Id.) According to Plaintiff, the security desk employee was “clearly reading some sort of warning message on their computer screen that cautioned against allowing Plaintiff through.” (Id. at 6.) In 2017, Plaintiff began to suspect that Fox anchor Tucker Carlson was misappropriating Plaintiff's written work and using it in his news segments, and was using Plaintiff's news tips without credit. (Id.) In March 2019, Plaintiff mailed copies of his book, Rules to Stop Radicals, to several employees at Fox, but the books were stopped in the mail room. (Id. at 6-7.) In June 2020, Plaintiff emailed Fox reporter Charles Gasparino to criticize his reporting on President Trump, to which Gasparino responded by asking Plaintiff “what's the weather like in Russia Comrade,” asking Plaintiff why he had been banned from the Fox building and whether it had been for “stalk[ing] someone else,” calling Plaintiff a “dummy,” and stating that “every harassing email you send me goes to my lawyer and the FBI.” (Id. at 7.)
Plaintiff commenced this action on July 14, 2020, asserting a federal copyright infringement claim and six state law claims, stating that he was “the victim of copyright infringement, unfair competition, and misappropriation of ‘hot news,' as Defendants used Greer's original and unique writings for their own television show content, without permission and without giving recognition to Greer as the originator.” (Docket entry no. 1.) He filed a “corrected” complaint on July 21, 2020, containing the same claims. (Docket entry no. 6.) He filed an Amended Complaint on August 13, 2020, which dropped the federal copyright claim and asserted six state law causes of action, and alleged diversity of citizenship as the basis for jurisdiction. (Docket entry no. 40.) On September 18, 2020, a group of defendants filed a motion to dismiss for lack of subject matter jurisdiction (docket entry no. 46), asserting that two of the moving defendants were nondiverse. After some jurisdictional discovery, Judge Aaron issued a report and recommendation in December 2020 recommending that the jurisdictional motion to dismiss be granted with leave to amend, and the undersigned subsequently adopted that report and recommendation. (Docket entry nos. 121, 133.)
Plaintiff filed his Second Amended Complaint (docket entry no. 137 (“SAC”)) in March 2021, dropping the two nondiverse defendants (Carlson and Strasburg), and raising eight state law causes of action. In April 2021, the Fox News Defendants, the News Corp. Defendants, and Neff moved to dismiss the SAC, and the motions were referred to Judge Aaron for a report and recommendation. (Docket entry nos. 141, 144.) Judge Aaron filed his Report on June 3, 2021, which recommends that Defendants' motions to dismiss be granted, but that Plaintiff be given leave to replead certain causes of action. On June 14, 2021, Plaintiff filed an objection to the Report (docket entry no. 166 (“Pl. Obj.”)) asserting that several of his claims should not have been dismissed. On June 16, 2021, Defendants filed a partial objection to the Report (docket entry no. 167 (“Def. Obj.”)) asserting that all of Plaintiff's claims should have been dismissed with prejudice and without leave to amend. Defendants also filed an opposition to Plaintiff's objection. (Docket entry no. 171.)
When reviewing a report and recommendation, the Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.s.C. § 636(b)(1)(C) (Westlaw through P.L. 117-166). When a party makes specific objections to the magistrate judge's findings, the Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. “To trigger the de novo review standard, objections to a report and recommendation must be specific and clearly aimed at particular findings in the magistrate judge's proposal.” United States v. Wofford, 527 F.Supp.3d 486, 488 (W.D.N.Y. 2021) (citation omitted).
“[W]hen no objection is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review.” Boice v. M+W U.S., Inc., 130 F.Supp.3d 677, 684-85 (N.D.N.Y. 2015) (emphasis omitted). Clear error review is also triggered “when a party makes only conclusory or general objections, or simply reiterates his original arguments.” Piligian v. Icahn Sch. of Med. at Mount Sinai, 490 F.Supp.3d 707, 715 (S.D.N.Y. 2020) (citation and quotation marks omitted). “A magistrate judge's order is ‘clearly erroneous' where ‘on the entire evidence,' the district court is ‘left with the definite and firm conviction that a mistake has been committed.'” E.E.O.C. v. Teamsters Local 804, 04-CV-2409-LTS, 2006 WL 44023, at *1 (S.D.N.Y. Jan. 9, 2006) (citation omitted).
While the objections of a pro se party should be interpreted with leniency, “even a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed ‘a second bite at the apple' by simply relitigating a prior argument.” Pinkney v. Progressive Home Health Servs., No. 06-CIV-502-LTS-JCF, 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008), affd, 367 Fed.Appx. 210 (2d Cir. 2010) (citation omitted). In addition, a district court “generally will not consider new arguments raised for the first time in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.” Charlot v. Ecolab, Inc., 97 F.Supp.3d 40, 51 (E.D.N.Y. 2015); see also Illis v. Artus, No. 06-CV-307-SLT-KAM, 2009 WL 2730870, at *1 (E.D.N.Y. Aug. 28, 2009) ().
In sum, where a party raises a clear, specific, and non-repetitive objection to the Report, the Court will review those portions of the Report de novo-but where a party raises conclusory objections, attempts to relitigate a prior argument, raises entirely new arguments, or raises no objections at all, those portions of the Report will be reviewed for clear error.
Both Plaintiff and Defendants lodge objections to the Report. Plaintiff asserts that the Report erred in its analysis of: (1) the copyright preemption issues; (2) the defamation claims; and (3) the tortious interference claims. Defendants assert that the Report was correct to recommend dismissal of all claims, but object to Judge Aaron's decision to grant Plaintiff leave to amend. The Court concludes that Plaintiff's objections lack merit and that the Report correctly recommended dismissal of all claims. Moreover, the Court finds meritorious Defendants' arguments that leave to amend is not appropriate here, and accordingly concludes that the SAC should be dismissed in its entirety without leave to amend.
This issue encompasses Plaintiff's First, Second, Third, and Eighth causes of action. In each of these causes of action Plaintiff essentially claims that Defendants improperly copied or misappropriated the ideas contained in his works. Judge Aaron correctly concluded that these causes of action are preempted under federal copyright law.
The federal Copyright Act “preempts state law actions that seek to vindicate rights equivalent to those protected under the Copyright Act.” Transcience Corp. v. Big Time Toys, LLC, 50 F.Supp.3d 441, 453 (S.D.N.Y. 2014) (citing 17 U.S.C. § 301(a)). A state law claim will be preempted by the Copyright Act when: “(...
To continue reading
Request your trial