Julie Wang v. The Ninety-Nines Inc.

• Decision Date: 17 July 2021
• Docket Number: 18-CV-1780 (LAK) (KHP)
• Parties: JULIE WANG, Plaintiff, v. THE NINETY-NINES, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

JULIE WANG, Plaintiff, v. THE NINETY-NINES, INC., Defendant.

No. 18-CV-1780 (LAK) (KHP)

United States District Court, S.D. New York

July 17, 2021

REPORT AND RECOMMENDATION ON CROSS MOTIONS FOR SUMMARY JUDGMENT AND OPINION ON MOTIONS TO STRIKE

KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE LEWIS A. KAPLAN, UNITED STATES DISTRICT JUDGE

FROM KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE

Julie Wang, a professional pilot, brings this action against the Ninety-Nines, Inc. (the “Ninety-Nines”), a volunteer, non-profit membership organization that promotes women in the field of aviation. Wang is a member of the Ninety-Nines. The gravamen of her claims is that she was defamed by the Ninety-Nines' publication of articles about her accomplishments as a pilot vis-a-vis those of another Ninety-Nines' member, non-party Saki Chen. Both Wang and Chen competed to become the first Chinese female pilot to circumnavigate the globe. Wang won the contest. Nevertheless, Chen has marketed her own flight around the world, gaining endorsements and fame that Wang believes belong to her. Wang believes the Ninety-Nines has improperly bolstered Chen's reputation through articles published to its members and thereby harmed Wang's ability to capitalize on her achievement. In addition to her defamation claims, Wang asserts other causes of action including prima facie tort, tortious interference with economic advantage, negligence/recklessness, and conspiracy to commit unfair competition. (Compl. ¶¶ 54-89)

Before me for report and recommendation are cross motions for summary judgment pursuant to Fed.R.Civ.P. 56 (Def.'s Mot. For Summ. J., ECF No. 118; P's Mot. For Partial Summ. J., ECF No. 139.) Defendant seeks dismissal of the action in its entirety. (Mem. of Law in Supp. Of Defs' Mot. at 1, ECF No. 118.) Plaintiff opposes the motion and cross-moves for summary judgment in her favor on all her claims except for tortious interference with economic advantage and prima facie tort. For the reasons stated below, I respectfully recommend that Defendant's motion be GRANTED and that Plaintiff's cross-motion be DENIED.

FACTS

Wang, originally from China, works as a U.S. airline pilot. She is a member of the Ninety-Nines. (Defs' Local Rule 56.1 Statement of Undisputed Facts ¶¶ 2, ECF No. 118.) In 2016, Plaintiff entered a contest in China to become the first Chinese female pilot to circumnavigate the globe-a contest she ultimately won. (Def Statement ¶ 3b.) Plaintiff commenced her winning flight on August 17, 2016 and completed it on September 19, 2016. She flew the entire way solo. Id. China held an award ceremony to honor Wang's accomplishment as the contest winner. Id. As a result of her win, Plaintiff claims she was instantaneously the subject of worldwide press coverage. Id. She was invited to and gave many news interviews and made various public appearances on television and elsewhere to discuss and be recognized for her accomplishment. Id.

Non-Party Saki Chen (“Chen”) is a female pilot from China who entered the same contest as Plaintiff. Chen commenced her flight on August 1, 2016, before Wang started her flight, and finished on September 27, 2016, eight days after Plaintiff completed her flight. (Def Statement ¶ 3(a).) Chen was accompanied by two other individuals on her flight and, according to Plaintiff, did not actually fly the whole time. Id. Chen, like Plaintiff, is also a member of the Ninety-Nines. (Def Statement ¶ 2.) Chen is affiliated with the New Jersey Ninety-Nines, a Chapter of the New York-New Jersey Section of the Ninety Nines, and also serves as Governor for the China Section of the Ninety-Nines in China. Id.

Each Section and Chapter of the Ninety-Nines, which are based on geography, are separate corporate entities with their own bylaws and boards of directors. (ECF No. 118 at pp. 3-4; Exhibit F, N.J. 99s Certificate of Incorporation; Exhibit G, The Ninety-Nines' Certificate of Incorporation.) Members of the Ninety-Nines pay dues to the parent organization and, if they join a Chapter, pay separate dues to the Chapter. Each Chapter maintains its own bank account, books and records. Id. Chapters may create and maintain their own websites, which are not monitored by the parent organization. Id. The parent organization (i.e., the Defendant), publishes a magazine for its members called the Ninety-Nines Magazine and also maintains its own website where it publishes an online version of its magazine. https://www.ninety-nines.org/ (last visited June 23, 2021). Id.

Chen and Plaintiff do not appear to have ever been members of the same Ninety-Nines Chapter. Although Plaintiff won the contest to be the first Chinese woman pilot to circumnavigate the Earth in a solo flight, Chen has promoted herself as being the first Chinese woman to fly around the world. (Pl 56.1 Statement ¶¶ 72-76.) Plaintiff claims that the Ninety-Nines helped Chen maintain this false narrative in two articles published in the Ninety-Nines Magazine and in a website article published on the NJ99's website, thereby delegitimizing Plaintiff's claim to fame. (Pl 56.1 Statement ¶ 37.) Plaintiff asserts that the articles are misleading because they misstate and/or omit important details about Plaintiff's and/or Chen's respective flights, thereby helping Chen and hurting Plaintiff. Id. Yet, Plaintiff avers that while she had various marketable opportunities, she did not lose them as a result of the Ninety-Nines publications, but rather as a result of Chen's ambitious pursuit of endorsements and relentless self-promotion. (ECF No. 142 ¶¶ 73, 74, 75, 79, 81, 83, and 84.)

There are three publications at issue. The first is an article that was published in the January / February 2017 (“Statement One”) issue of the Ninety-Nines Magazine and reads in relevant part: “[o]n the Cover, Saki Chen, New Jersey Chapter Member, fulfilled her dream when she became the first Chinese woman to launch a flight to circumnavigate the globe in a single-engine piston airplane. Despite facing some time-consuming challenges, Saki and her team completed the 58-day journey that started and ended in Cleveland, Ohio. The trip covered 21, 119 nm. On September 2, 2016, Saki's Bonanza was the first single-engine piston airplane, piloted by a woman, to land in China for the purpose of circumnavigation. Saki's next goal is to promote general aviation in China.” (Def Statement ¶ 4a.)

The second is an article that was published in the November/ December 2017 (“Statement Two”) issue of the Ninety-Nines Magazine and reads in relevant part: “[a]fter five years of hard training and hundreds of hours of flight instruction, Julie [Wang] was eager to break out of her comfort zone and reignite her passion for flying. She accomplished this in 2016 by becoming the first Asian woman to pilot an airplane around-the-world solo, the ninth woman in history to make the solo flight and the first Chinese person to do so.” (Def Statement ¶ 4d.)

The third undated publication was posted by the NJ99, not Defendant, on the NJ99 website and reads in relevant part: “[a]fter becoming the first Chinese woman to circumnavigate the world in a single engine aircraft, Saki [Chen] has been featured on the cover of the 99s International Magazine.” (“Statement Three”) (Compl. ¶ 67) Defendant had no input or oversight into the publication of this statement. (Pl. 56.1 Statement ¶¶ 13, 14, 15, 49, 50, 51, 52).

PROCEDURAL HISTORY AND NINETY-NINES MOTION TO STRIKE

On December 31, 2020, Defendant filed a motion for summary judgment. (ECF Nos. 115-118.) Plaintiff requested and was granted multiple extensions of time to file her opposition and cross-motion for summary judgment and, in some cases, made such requests after her filing deadline passed. (ECF Nos. 119, 121, 123, 129, and 133.) Recently, this Court permitted Plaintiff one last extension to June 7, 2021 to file her papers. (ECF No. 138.) Plaintiff missed this deadline and submitted her opposition to Defendant's motion and a cross motion for partial summary judgment with accompanying evidence on June 8, 2021. (ECF Nos. 139-142.) She then filed additional papers in support of her cross-motion on June 14, 2021. (ECF Nos. 145-146.) Defendant has moved to strike Plaintiff's late-filed papers. (ECF Nos. 143, 146.) In light of Plaintiff's submissions, the Court granted Defendant additional time to file a reply. (ECF Nos. 150-152.) Plaintiff then submitted an additional declaration and documents. (ECF Nos. 153154.) Again, Defendant moved to strike Plaintiff's late-filed papers. (ECF No. 155.)

SUMMARY JUDGMENT LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 56, summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P 56(c). A fact is material only if, based on that fact, a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The burden rests on the movant to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). On summary judgment, the court must “draw all justifiable inferences in favor of the nonmoving party, including questions of credibility and of the weight to be accorded particular evidence.” Masson v. New Yorker Magazine, 501 U.S. 496, 520 (1991). The court's role at this stage of the litigation is not to decide issues of material fact, but to discern whether any exist. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994). A party opposing a properly supported motion for summary judgment may not rest upon “mere allegations or denials” asserted in her pleadings, Rexnord Holdings,...