Rubinson v. Rubinson

• Decision Date: 24 July 2020
• Docket Number: CASE NO. 20-CV-80527-KAM
• Parties: Seth Ian RUBINSON, Plaintiff, v. Harvey Charles RUBINSON, Defendant.
• Court: U.S. District Court — Southern District of Florida

474 F.Supp.3d 1270

Seth Ian RUBINSON, Plaintiff,

v.Harvey Charles RUBINSON, Defendant.

CASE NO. 20-CV-80527-KAM

United States District Court, S.D. Florida.

Signed July 24, 2020

Seth Ian Rubinson, Houston, TX, pro se.

David Rogers Glickman, Markarian & Hayes, Palm Beach Gardens, FL, for Defendant.

OPINION AND ORDER

KENNETH A. MARRA, United States District Judge

THIS Cause is before the Court upon Defendant's Motion to Dismiss [DE 13]. Plaintiff Seth Rubinson filed a Complaint [DE 1] alleging defamation per se and intentional infliction of emotional distress. Defendant Harvey Rubinson moves to dismiss both counts under Fed. R. Civ. P. 12(b)(6). Plaintiff filed a Response in Opposition [DE 14]. The Court has carefully considered the matter and is fully advised in the premises.

I. BACKGROUND

Plaintiff Seth Rubinson ("SIR" or "Plaintiff") filed the instant action against his father Defendant Harvey Rubinson ("HCR" or "Defendant") claiming defamation per se and intentional infliction of emotional distress [DE 1]. The Complaint alleges that Plaintiff is an attorney who practices out of Houston, Texas and is licensed to practice in Florida, Massachusetts, and Texas. [Id. at ¶ 1]. Plaintiff has a "minor daughter who is developmentally delayed and medically fragile arising from a profoundly rare Grade IV intraventricular hemorrhage suffered as a neonate and requiring a lifetime of direct care and financial support." [Id. at ¶ 10]. Plaintiff's daughter "attends a highly specialized private school in Houston for developmentally delayed children with learning ability which she shall attend until 21 years of age, thereafter continuing to reside with SIR and relying on SIR's income for her lifetime." [Id. ].

Defendant resides in West Palm Beach, Florida and is a senior financial operations manager who recently served as the chief financial officer of Micelle Biopharma. [Id. at ¶¶ 3, 6]. Defendant also operates an independent turnaround and management consulting business. [Id. at ¶ 5].

The Complaint alleges Defendant sent several emails to Defendant's business colleagues that contained statements that defamed Plaintiff. [Id. at ¶ 21]. Plaintiff explains he had access to Defendant's email account as he purchased and maintains the email service for Defendant and frequently assists Defendant with technological difficulties. [Id. at ¶ 16]. Plaintiff alleges that during one such incident assisting Defendant in accessing a device specific password, Plaintiff encountered the emails. [Id. at ¶ 21].

The emails are not attached to the Complaint but are paraphrased or quoted in part or in whole within the Complaint. The first email sent on March 8, 2019 to Jing Liang, a venture capitalist, allegedly stated Defendant requested a large interest in the company because he used his retirement savings in an effort to provide experimental cancer medications for Defendant's wife and Plaintiff's mother, as well as "[HCR's] continuing financial assistance for [SIR's] daughter who had a brain bleed at birth and has severe epilepsy. The financial support is necessary so she can attend a wonderful special needs school in Houston." [Id. at ¶¶ 21-22].

The Complaint alleges Defendant also sent a defamatory email on May 24, 2019 to Pete DeLay, one of the Tennessee businessmen who purchased Micelle Biopharma, "stating to Mr. DeLay that he was not in a position to make certain recommended real estate investments because, in pertinent part of HCR's ‘continuing financial assistance for my older son's daughter who had a brain bleed at birth and has severe epilepsy. The financial support is necessary so she can attend a wonderful special needs school in Houston.’ " [Id. at ¶ 25]. The Complaint further alleges that within that email Defendant invoked his continuing financial assistance to Plaintiff's daughter when requesting a performance bonus. [Id. ].

The Complaint alleges that Defendant "committed on July 20, 2019, what was the pinnacle of defamation and injury" when Defendant emailed Mr. Liang writing:

Hi Jing,

You mentioned while I was driving you to the airport two weeks ago that you would send me a letter describing my agreement with Heliomebio since Matthew Weill has not sent me any documentation. I hate to bother you, but I am only asking you now because my bi-polar son's wife called me this morning asking for money and my son with the brain damaged daughter is also asking me for money even though they know that I used almost all of my retirement savings paying for experimental cancer treatments in an attempt to save my wife's life. Thank you for your consideration in this matter.

Best regards, Harvey

[Id. at ¶ 26].

Plaintiff further alleges that when he confronted Defendant about the alleged defamatory emails, Defendant "became infuriated and threatened that if [Plaintiff] took legal action, [Defendant] would contact SIR's clients to accuse him of ‘elder abuse,’ ...." [Id. at ¶¶ 31-32]. The Complaint claims that before bringing the instant action, Plaintiff demanded that Defendant "immediately send emails with carbon copy to [Plaintiff] fully retracting his statements" to Liang and DeLay "concerning both support of [Plaintiff]’s developmentally delayed daughter, as well as using his purported retirement funds for life-saving measures for the cancer care of [Plaintiff]’s mother," but Defendant refused "claiming that he placed telephone calls ... retracting his defamatory statements." [Id. at ¶ 33].

II. LEGAL STANDARD

Rule 8(a) of the Federal Rules of Civil Procedure requires a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). The Supreme Court has held that, "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do;" additionally, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citation and alteration omitted).

"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." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). "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." Id. Thus, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679, 129 S.Ct. 1937. The Court must accept all plaintiff s factual allegations as true in determining whether a plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding , 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

III. DISCUSSION

1. Defamation per se:

Plaintiff's first count, defamation per se, is a tort recognized under Florida law when brought against a non-media defendant. Blake v. Giustibelli , 182 So. 3d 881, 884–85 (Fla. Dist. Ct. App. 2016) ("[A]fter Gertz , in libel cases involving media defendants, fault and proof of damages must always be established.... Libel per se otherwise still exists in Florida.").¹ "Under Florida law, to state a claim for defamation—libel or slander—the plaintiff must allege that: ‘(1) the defendant published a false statement; (2) about the plaintiff; (3) to a third party; and (4) that the falsity of the statement caused injury to the plaintiff.’ " Matonis v. Care Holdings Grp., L.L.C. , 423 F. Supp. 3d 1304, 1315 (S.D. Fla. 2019) (quoting Alan v. Wells Fargo Bank, N.A. , 604 Fed. App'x. 863, 865 (11th Cir. 2015) ). "A written publication constitutes libel per se under Florida law if, when considered alone and without innuendo, it (1) charges that a person has committed an infamous crime; (2) tends to subject one to hatred, distrust, ridicule, contempt, or disgrace; or (3) tends to injure one in his trade or profession." Alan v. Wells Fargo Bank, N.A. , 604 F. App'x 863, 865 (11th Cir. 2015). "The significance of the classification of a communication as actionable per se lies in the fact that its victim need not plead or prove malice (except where a privilege is involved) or special damage because malice and the occureence [sic] of damage are both presumed from the nature of the defamation." Wolfson v. Kirk , 273 So. 2d 774, 777 (Fla. Dist. Ct. App. 1973).

Here, Plaintiff asserts that his libel per se claim satisfies two of the three recognized bases: that the statements made by Defendant subject Plaintiff to hatred, distrust, ridicule, contempt or disgrace; and that the "statements tend to injure Plaintiff in his profession as lawyer in the states of Florida, Texas, and Massachusetts whereas the hallmarks of an attorney include trustworthiness and professionalism." [DE 1 at ¶ 39].

Plaintiff asserts the statements identified in the Complaint portray him as a "compassionless victimizer unable to provide for his family." [DE 1 at ¶ 38]. He also contends that Defendant defamed him by implying Plaintiff "is unable to provide for his daughter's education and welfare without the assistance of [Defendant] notwithstanding that [Defendant] does not and has not provided support to [Plaintiff] for the benefit of [Plaintiff]’s daughter's education or otherwise." [Id. at ¶ 37].

Defendant moves to dismiss this claim arguing that "none of the quoted language Plaintiff attributes to Defendant contains any statements that could be interpreted in the ways in which Plaintiff's narrative describes them." [DE 13 at 2]. Additionally, Defendant notes that the quotes allegedly attributable to Defendant in paragraphs 22, 25, 26, and 27 of the Complaint do not "even contain the Plaintiff's name or...