Sang v. Ming Hai & Law Offices of Ming Hai, P.C.

• Citation: 951 F.Supp.2d 504
• Decision Date: 27 June 2013
• Docket Number: No. 12 Civ. 7103(JPO).,12 Civ. 7103(JPO).
• Parties: LAN SANG, Plaintiff, v. MING HAI and Law Offices of Ming Hai, P.C., Defendants.
• Court: U.S. District Court — Southern District of New York

951 F.Supp.2d 504

LAN SANG, Plaintiff,

v.MING HAI and Law Offices of Ming Hai, P.C., Defendants.

No. 12 Civ. 7103(JPO).

United States District Court,

S.D. New York.

June 27, 2013.

Allan Steven Schiller, Schiller Law Group, PC, New York, NY, for Plaintiff.

Dianna L. Daghir McCarthy, Tania Jaynelle Mistretta, Winget, Spadafora & Schwartzberg, LLP, New York, NY, for Defendants.

MEMORANDUM AND ORDER

J. PAUL OETKEN, District Judge:

This is a case concerning provocative public statements allegedly made by an attorney, Ming Hai, about his former client, a well-known Chinese celebrity, Lan Sang. Sang brings this action against Hai and the Law Offices of Ming Hai, P.C. (“Defendants”), alleging, inter alia, libel and slander. Defendants now move to dismiss the case in its entirety, or in the alternative, to transfer the action under the first-to-file doctrine. For the reasons that follow, Defendants' motion to dismiss is granted in part and denied in part, and Defendants' motion to transfer is denied.

I. Background

The following facts are taken from Plaintiff's Second Amended Complaint (“SAC”), the allegations of which are assumed to be true for purposes of this motion, as well as from certain documents of which the Court may take judicial notice. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 110–111 (2d Cir.2010).

A. Factual Background

1. The Parties

Plaintiff Lan Sang is a former gymnast who was, for a time, internationally recognized as one of China's greatest vaulters. At the age of 17, she participated as a member of the Chinese team in the 1999 Goodwill Games. During the warm-up for her final event, Plaintiff suffered an injury that paralyzed her from the chest down. She has since been permanently confined to a wheelchair.

Defendant Ming Hai, Esq. previously represented Lan Sang in a case against AOL Time Warner, Inc., among others, in the Southern District of New York (“the AOL Time Warner action”). ( See Dkt. No. 21 (“McCarthy Decl.”), Ex. B.)

Defendant Law Offices of Ming Hai, P.C. is a law firm owned by Hai with its principal place of business in New York State. Plaintiff hired this firm to represent her in the AOL Time Warner case.

2. The Statements

Following settlement of the AOL Time Warner action, Sang and Hai had a falling out. Thereafter, Hai made several statements about Plaintiff, which are the subject of this lawsuit. Plaintiff alleges that each statement was false.

These statements were made through three different avenues. First, some were made on Hai's online law blog (“the Blog”), which is operated through the internet service provider Tencent Weibo. The Blog is published in a Chinese language and is ostensibly read by millions of people, mostly in China. Second, on or about October 21, 2011, Hai made statements regarding the progress of a civil action he had brought against Plaintiff at a press conference he held in front of the Queens County Civil Courthouse. Third, on or about March 2012, Defendant made statements about Plaintiff in an interview to reporter Lijing Bian.

For convenience's sake, the Court has organized the allegedly defamatory statements by subject matter into four groups: (1) the Bestiality Statement, (2) the Criminal Activity Statements; (3) the Mistress Statements; (4) the Lawsuit Statement. The content of each is described in turn.¹

a. Bestiality Statement

On September 26, 2012, Hai published the following on the Blog about Plaintiff and her boyfriend and former manager Huang Jian:

But, what disgusted me the most was that Sang Lan allowed Huang Jian to sexually ill-treat her dog Xiaomei. That day during a meal at their home, the two of them said that Xiaomei had a strong sex drive, and always rode on Huang Jian. Sang Lan said Huang Jian wanted to sexually assault Xiaomei by wearing condoms. I immediately said ‘Shut up!’ I could not listen to that any more. It was disgusting. I am a determined animal defender. Have they no shame? Since then, I particularly disliked them.

b. Criminal Activity Statements

On September 26, 2012, Hai wrote on the Blog that “Sang Lan has defaulted on her rent and stole the keys. She also accused me of misleading her.”

In or about March 2012, Hai stated the following in an interview to reporter Lijing Bian: “Lang San provided me falsified evidence for her case.”

c. Mistress Statements

On September 21, 2012, Hai published the following statements on the Blog:

Lan Sang said that if Huan Jian abandoned her, then she would come to the United States and be Hai Ming's mistress.

She also told me how bad my wife is and how nice she is.

On September 26, 2012, Hai also made the following statement on the Blog: “Would I accept this mistress? I helped her because I didn't think I was a nice guy, and I would like to help the disabled to accumulate virtue for myself. But, out of expectation, I got bitten by the snake.”

d. The Lawsuit Statements

On or about October 21, 2011, Hai held a press conference in front of the Queens Civil Courthouse and made statements regarding the progress of a civil action he had brought against Plaintiff.² Specifically, at that press conference, he said the following:

I won prosecution for delinquent legal fees for all 12 charges against Lan Sang.

[B]ecause [Lan Sang] did not appear in the Court, the Court granted a default judgment, a default judgment means that all of our prosecution was approved, all of the counterclaims of the Defendant were rejected. We sued for 12 charges; each charge is for $25,000; so we won $300,000.

3. Hai's Lawsuit

This is not the first lawsuit stemming from the parties' falling out. On or about August 25, 2011, Hai sued Sang in Civil Court of the City of New York, County of Queens, alleging, inter alia, defamation, failure to pay legal fees, and assault. (McCarthy Decl., Ex. C.)

B. Procedural Background

Plaintiff initiated this action on September 20, 2012. (Dkt. No. 1). Plaintiff has since amended her complaint twice, on October 10, 2012 and December 18, 2012. ( See Dkt. Nos. 7 & 16 (“SAC”)). On January 28, 2013, Defendants moved to dismiss all of Plaintiff's claims or, in the alternative, to transfer the case to the Civil Court of the City of New York, County of Queens. (Dkt. No. 22 (“Defs.' Mem.”)). Plaintiff filed a memorandum in opposition to the motion to dismiss on February 28, 2013 (Dkt. No. 24 (“Pl.'s Opp'n.”)), to which Defendants replied on March 4, 2013 (Dkt. No. 27 (“Defs.' Rep.”)).

II. DiscussionA. Jurisdiction

Lan Sang is a foreign national who does not reside within New York. (SAC at ¶ 9). Ming Hai is a resident of Nassau County, New York. ( Id. at ¶ 10). The Law Office of Ming Hai, P.C. has its principal place of business in the Southern District of New York. ( Id. at ¶ 11). The amount in controversy in this action exceeds $75,000. ( Id. at ¶ 5). Because there appears to be complete diversity, the Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a).

B. Standard of Review

As a general rule, when deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a court is obliged to “accept as true all of the factual allegations contained in the complaint,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 572, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), drawing “all inferences in the light most favorable to the non-moving party's favor.” In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir.2007). At this stage, courts are “not limited to the face of the complaint,” but “may [also] consider,” inter alia, “any written instrument attachedto the complaint....” In re Scottish, 524 F.Supp.2d 370, 382 (S.D.N.Y.2007) (internal quotation marks omitted).

While Federal Rule of Civil Procedure 8(a) requires only a “short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), in order to avoid dismissal, a plaintiff must state “the grounds upon which his claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.’ ” ATSI Commc'n, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955);see also Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”). Stated differently, to survive a motion to dismiss, a plaintiff's facts must give rise to a plausible narrative supporting his claim. See Twombly, 550 U.S. at 570, 127 S.Ct. 1955 (“Here, in contrast, we do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.”).

C. The First–to–File Doctrine

At the outset, the Court considers, and rejects, Defendants' argument that Plaintiff's claim should be transferred to the Civil Court of the City of New York pursuant to the first-to-file doctrine, because Defendant commenced litigation against Plaintiff in that court prior to the filing of this action. “The first-to-file doctrine applies where there is concurrent federal litigation, not where a federal court contends with concurrent state litigation.” Port Auth. of N.Y. and N.J. v. Kraft Power Corp., No. 11 Civ. 5624(HB), 2012 WL 832562, at *1 (S.D.N.Y. Mar. 13, 2012) (citing cases); see also Radioactive, J.V. v. Manson, 153 F.Supp.2d 462, 473 (S.D.N.Y.2001) ( “The first-to-file doctrine applies to concurrent federal litigation—not concurrent state/federal litigation.”). Accordingly, the first-to-file doctrine is simply inapplicable here. Defendants' motion to transfer this action to the Civil Court of the City of New York pursuant to the first-to-file doctrine is therefore denied.

D. The Defamation Claims

1. The Law of Defamation

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