Storms et al v. Veterans of Foreign Wars of the United States et al

Filing 71

MEMORANDUM & ORDER re 48 , 51 and 54 Motions to Dismiss. For the foregoing reasons, the defendants' motions to dismiss are granted in their entirety. Plaintiff's causes of action against General Shinseki, Sullivan, and Seco r are dismissed without prejudice for lack of personal jurisdiction. His claims against the VFW, Thien, Hamilton, Wallace, the VFW-NY, Pascal, Koch, and the United States are dismissed with prejudice for failure to state a claim on which relief may be granted. The Clerk of Court is directed to enter judgment accordingly and to close this case. So Ordered by Judge Eric N. Vitaliano on 10/28/2016. (fwd'd for jgm) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

DERRICK STORMS,
Plaintiff,
MEMORANDUM & ORDER

-against15 Civ. 1038(ENV)
(ST)
VETERANS OF FOREIGN WARS OF THE

UNITED STATES,INC., WILLIAM A. THIEN,
ERIC K. SHINSEKI, MAURA SULLIVAN,KEVIN
SECOR,JOHN E. HAMILTON,ROBERT
WALLACE,MICHAEL PASCAL,ART KOCK III,
JOHN/JANE DOES 1-100, UNITED STATES,and
VETERANS OF FOREIGN WARS OF THE

UNITED STATES DEPARTMENT OF NEW

YORK,INC.,
Defendants.

VITALIANO,D.J.

Plaintiff Derrick Storms, an attorney appearing pro

brought this action against the

Veterans ofForeign Wars ofthe United States, Inc.("the VFW"),the Veterans of Foreign Wars

ofthe United States Department ofNew York,Inc.("the VFW-NY"),numerous individual
defendants, and John/Jane Does 1-100. Compl., ECF No. 1. As to each defendant, plaintiff
asserts claims under Bivens v. Six Unknown Named Agents ofFed. Bureau ofNarcotics^ 403 U.S.

388,91 S. Ct. 1999,29 L. Ed. 2d 619(1971), as well as state law tort and breach of contract
claims. Id.
'

75-121. Three separate motions to dismiss the complaint were filed by:(1)the

As in an earlier decision filed in this case. Storms has not requested, and is not entitled to,

the special solicitude ordinarily afforded to pro se litigants who are not attorneys. Mem.&
Order at 1 n.l, ECF No.44(citing Pietrangelo v. Ahas Corp.,686 F.3d 62,63(2d Cir. 2012)).

The familiarity ofthe parties with that decision is presumed, and its details will not needlessly be
repeated here. See note 3, infra.

VWF,William A. Thien, John E. Hamilton, and Robert E. Wallace (collectively,"the VFW

defendants"), VFW Not. of Mot., ECF No.48;(2)the VFW-NY,Michael Pascal, and Arthur

Koch III^ (collectively,"the VFW-NY defendants"), VFW-NY Not. of Mot., ECF No. 51; and
(3)the United States, General Eric K. Shinseki, Maura Sullivan, and Kevin Secor (collectively,

"the VA defendants"), VA Not. of Mot., ECF No. 54.^ For the reasons that follow, the
defendants' motions are granted in their entirety.
Backgroimd

Unless otherwise noted,the following facts are derived from the complaint and are

accepted as true for purposes ofthe present motions only."^ The saga begins on March 6,2014,
when The Daily Caller, a news website, published an article by Storms that was critical ofthe
United States Department of Veterans Affairs("VA")and General Shinseki's work as Secretary.
Compl.

20-21, Ex. 2. In the article, titled "How veterans can fight back against VA abuse,"

^
Koch contends, and Storms does not dispute, that his name is misspelled in the
complaint. VFW-NY Mem. at 1, ECF No. 51-1.

^
While the parties were briefing these motions, this Court overruled, in part. Storms's
objections to the Attorney General's Westfall Act determination. Mem.& Order, ECF No. 44.
With respect to Storms's tort claims, the United States was substituted as in the stead of General
Shinseki and Secor, but not for Sullivan. The Court construes the VA defendants' submissions
to reflect that intervening Memorandum and Order.

^
Plaintiff supplemented his factual allegations in a declaration attached to his motion
papers. See Storms Deck,ECF No.49. This submission was inappropriate on a motion to
dismiss. See generally Goodman v. Port Auth. ofN.Y. & N.J.y 850 F. Supp. 2d 363,380
(S.D.N.Y. 2012). In any event, his new allegations are irrelevant to the grounds on which the
complaint must be dismissed. In addition, after his request to file sur-replies was denied,see
2/4/2016 Order, ECF,he filed multiple requests for judicial notice of over 15 newspaper articles
and other documents,see PI. Letters, ECF Nos. 63,64 & 68. These submissions post-date the

events at issue by at least a year and have no relevance to the sufficiency of Storms's pleadings.
They are plainly offered for their truth, in a misguided attempt to bolster his claims and to
circumvent the bar on sur-replies. The requests for judicial notice are denied.

Storms sought to advise veterans who believed that they were wrongly denied federal benefits

that they "should immediately call an attorney to take legal recourse," and that the "most
effective lawsuit a veteran can initiate against VA officials is a Bivens action," which would

"allow veterans to personally sue senior VA officials, including Secretary Eric Shinseki." Id. Ex.

2. The byline ofthis article identified Storms as the Legislative Vice Chairman ofthe VFW,
which was not his true position. Id. f 6, Ex. 2. Actually, he was the Vice Legislative Chairman

of the VFW-NY,an unpaid, volunteer post. Id. T| 6;see PI. VA 0pp. Mem. at 16-17,ECF No.

55-1 (describing his volunteer position).^
Storms complains that his article triggered a conspiracy for revenge that stretched from
the highest level ofthe VA to his local VFW post. He alleges that Sullivan, the VA's Assistant

Secretary for the Office ofPublic and Intergovernmental Affairs,"immediately contacted"
General Shinseki about the article. Compl.fl 10, 24-25.^ Sullivan and General Shinseki

allegedly discussed "measures to alleviate the negative publicity" and agreed to have Secor, the

^
The article, which is publicly available online, has since been amended to correct
Storms's title. Derrick Storms,How veterans canfight back against VA abuse. The Daily Caller

(Mar. 6,2014, 11:04 AM),http://dailycaller.eom/2014/03/06/how-veterans-can-fight-backagainst-va-abuse/.

^
The VA defendants respond that these allegations are meritless and must be dismissed
because Sullivan was not yet employed by the VA at this time. VA Mem. at 35,ECF No. 54-1.
Although it may well be sanctionable conduct to file a complaint without first conducting a
reasonable inquiry to confirm that the factual allegations have evidentiary support. Fed. R. Civ.
P. 1 l(b)-(c), specific factual disputes will not be resolved on a motion to dismiss.

VA's Veterans Service Organizations Liaison Officer, request that the VFW "write a defamatory
article" and "encourage[]" it to "punish" Storms. Id. Iffl 11, 26.

Later that day, Secor allegedly contacted Wallace, the VFW's Assistant Adjutant General
and Executive Director, to request that the VFW "punish" Storms and begin a "smear

campaign." Id.

13, 27. However,the pleadings show, as reflected in a March 6,2014 email,

and without any further elaboration, that Secor simply asked Wallace if Storms was "speaking

for the VFW." Muckelbauer Aff. Ex. 1, EOF No. 48-2.^ Wallace responded,"I am not sure I
even know this individual," and Secor replied "[I]just wish he didn't use his title." Id.
Storms claims that Wallace then contacted Thien, who was, at that time, the VFW's

Commander-in-Chief, as well as Hamilton, the VFW's Adjutant General. He alleges that they

also agreed to "join the conspiracy" and "punish" him. Compl.

8,12,29,69. Finally,

plaintiff asserts that the VFW defendants contacted the VFW-NY and Pascal, who was, at that
time, the VFW-NY's Commander-in-Chief,to "demand that [Storms] be terminated" from his
volunteer position. Id. 130.

^
After plaintiff attached a portion of Secor's email message to the complaint, the VFW
defendants submitted a complete copy, which plaintiff adopted and used in his own motion
papers. Compare Muckelbauer Aff. Ex. 1, with Compl. Ex. 2. The parties do not dispute the
email's authenticity or that it should be deemed incorporated into the complaint. VFW Mem. at
4n.3,ECF No. 48-1.

On March 10,2014, Thien published in The Daily Caller a rebuttal article refuting

Storms's criticisms and clarifying that he was not a VFW spokesperson. Compl.^ 38, Ex. 6.^
That same day, Pascal informed Storms and several members ofthe VFW-NY's leadership, by
letter, that Storms had been relieved of his volunteer position. M ^ 31, Ex. 3. By separate letter.
Storms was informed that he would not be reimbursed for travel expenses to the VFW's Spring

Conference. Id. ^ 34, Ex. 5. Also on March 10, 2014, Koch, who was then the VFW-NY's
Adjutant, wrote a letter to Storms, which was circulated to the VFW's and the VFW-NY's
leadership, criticizing plaintiffs use of a false title that could give the mistaken impression that
he was an authorized spokesperson. Id.

16, 32, Ex. 4. When Storms called Pascal about these

events, Pascal allegedly stated that Storms was terminated at the request of the VA,the VFW,
and Thien "as punishment for writing the op-ed article." Id. H 36.

Interposing a Bivens claim against each defendant. Storms asserts a violation of his rights
under the First and Fifth Amendments. Id.

75-96. His complaint also asserts claims against

each defendant under New York law for defamation, intentional infliction of emotional distress,

negligence under several theories, and breach of contract. Id. m 97-121.

^
Storms attached to his complaint a copy of Thien's article that is covered with his own
underlining and highlighting. Compl. Ex.6. The Court takes judicial notice ofthe publicly
available article, which is integral to the complaint. William A. Thien,Secretary Shinseki and
the VA are doing the best they can^ The Daily Caller(Mar. 10, 2014, 12:43 PM),
http://dailycaller.com/2014/03/10/secretary-shinseki-and-the-va-are-doing-the-best-they-can/.

Legal Standards

Where defendants move under both Rules 12(b)(2) and 12(b)(6), the motion court must

first consider that branch ofthe motion challenging the existence ofjurisdiction over the movant.

See, e.g.fArrowsmith v. United Press Int'l, 320 F.2d 219, 221 (2d Cir. 1963). On that branch,
the burden rests with the plaintiffto establish personal jurisdiction. See Troma Entm % Inc. v.
Centennial Pictures Inc., 729 F.3d 215,217(2d Cir. 2013). Where there has been no discovery

or evidentiary hearing as to personal jurisdiction, the plaintiff must hurdle only the low bar of a

primafacie showing, meaning that the "allegations, taken as true, are 'legally sufficient
allegations ofjurisdiction.'" Id. (quoting Pewgwrn Grp.(USA)Inc. v. Am. Buddha,609 F.3d 30,

35(2d Cir. 2010)); see Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84-85(2d Cir.
2013).

"'To determine personal jurisdiction over a non-domiciliary in a case involving a federal

question,"'the district court must(1)"'apply the forum state's long-arm statute'" and(2)
"analyze whether personal jurisdiction comports with due process protections established under
the Constitution." Fades v. Kennedy, PC Law Offices, 799 F.3d 161, 168(2d Cir. 2015)(quoting
Chloe V. Queen Bee ofBeverly Hills, LLC, 616 F.3d 158, 163(2d Cir. 2010)). However,the

court need conduct a due process analysis only if long-arm jurisdiction is available under the
relevant state statute. See Penguin Grp. (USA)^ 609 F.3d at 35.

To stave off dismissal under Rule 12(b)(6),"a complaint must contain sufficient factual

matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v.
Iqbah 556 U.S. 662,678,129 S. Ct. 1937,1949, 173 L. Ed. 2d 868(2009)(quoting BellAtl
Corp. V. Twombly, 550 U.S. 544,570,127 S. Ct. 1955,1974, 167 L. Ed. 2d 929(2007)). A

claim is plausible "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. When

considering a 12(b)(6) motion, the district court must"accept all factual allegations in the
complaint as true and draw all reasonable inferences in plaintiffs favor." In re Thelen LLP,12>6
F.3d 213,218(2d Cir. 2013). However,courts "are not bound to accept as true a legal
conclusion couched as a factual allegation." Twombly, 550 U.S. at 555 (quoting Papasan v.
Allain,478 U.S. 265, 286, 106 S. Ct. 2932, 2943,92 L. Ed. 2d 209(1986)). Courts "may

consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and
documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C.,622
F.3d 104, 111 (2d Cir. 2010).

Discussion

I.

Personal Jurisdiction

The only defendants advancing a Rule 12(b)(2) attack on the claim of personal

jurisdiction over them are the individual VA defendants: General Shinseki, Sullivan, and Secor.
In the stead of any allegations of direct action by these defendants in New York, Storms

contends they conspired with the VFW-NY defendants to remove him from his volunteer

position. See, e.g., Compl. Ex. 3; PI. VA 0pp. Mem.33-34. He argues thatjurisdiction is
available under the provision ofNew York's long-arm statute that applies to a non-domiciliary
who,"in person or through an agent[,]... commits a tortious act within the state, except as to a
cause of action for defamation of character arising from the act." N.Y. C.P.L.R. 302(a)(2); see

PI. VA 0pp. Mem. at 33. Consequently, the defamation claims asserted by Storms are expressly
excluded from any long-arm analysis designed to save them.

The analysis required by this claim will not be written on a clean slate. "To establish

jurisdiction on a conspiracy theory, a plaintiff must:(1)establish a prima facie factual showing
of a conspiracy; and(2)allege specific facts warranting the inference that the defendant was a
member ofthe conspiracy." Brady v. Basic Research, LLC., 101 F. Supp. 3d 217,232

(E.D.N.Y. 2015). In order to satisfy the second step,the complaint must allege that "(a)the
defendant had an awareness of the effects in New York of its activity;(b)the activity ofthe co-

conspirators in New York was to the benefit ofthe out-of-state conspirators; and (c)the co-

conspirators acting in New York acted at the direction or under the control of or at the request of
or on behalf of the out-of-state defendant." In re Terrorist Attacks on Sept. 11, 2001, 392 F.

Supp. 2d 539,557(S.D.N.Y. 2005)(quoting In re Terrorist Attacks on Sept. 11, 2001, 349 F.

Supp. 2d 765,805(S.D.N.Y. 2005)), affd,538 F.3d 71 (2d Cir. 2008); jee Tarsavage v. Citic
Trust Co.,3 F. Supp. 3d 137, 147(S.D.N.Y. 2014).

Storms's conspiracy-based theory ofjurisdiction fails at the outset because, for the
reasons discussed below, he fails to adequately plead any underlying tort motivating the

conspiracy. See In re Methyl Tertiary Butyl Ether("MTBE")Prods. Liab. Litig., 175 F. Supp.
2d 593,633(S.D.N.Y. 2001)("[A] claim for civil conspiracy is not an independent tort, but
rather, a derivative claim of an underlying substantive tort," and,furthermore,"[l]ogic dictates

that parties cannot conspire or agree to commit negligence."); see also Webster v. Wells Fargo
Bank N.A., No.08 Civ. 10145,2009 WL 5178654, at *13(S.D.N.Y. Dec. 23,2009)(dismissing

conspiracy claims "because the underlying substantive tort claims have also been dismissed"),
aff'd sub nom. Webster v. Penzetta,458 F. App'x 23(2d Cir. 2012).
But, even had Storms sufficiently pled the predicate tort, the pleadings do not
demonstrate the individual VA defendants' awareness ofthe effect of their actions in New York.

See Martinez v. Queens Cty. Dist. Attorney, No. 12-Civ.-06262(RRM)
(RER),2014 WL
1011054, at *7-8 (E.D.N.Y. Mar. 17, 2014)(finding no personal jurisdiction based on a

conspiracy claim where the "plaintiff offer[ed] absolutely no facts suggesting that [the out-of-

state defendant] conspired with anyone in New York"), aff'd, 596 F. App'x 10(2d Cir. 2015).
Storms contends, vaguely and nakedly, that the individual VA defendants (located in Virginia
and Washington, D.C.)"requested" or "encouraged" the VFW defendants (located in Missouri,
Indiana, and Virginia) to "punish" him, without any allegation that they sought to involve the

VFW-NY or take any action in New York, particularly as it is beyond contest that the only

specific action they requested was the drafting of a rebuttal article. Compl.

26-27. His

allegations that the VFW and VFW-NY defendants discussed taking an action in New York does

not equate to a meeting ofthe minds with the individual VA defendants. Since Storms has not
met his burden to make a primafacie showing of personal jurisdiction over General Shinseki,

Sullivan, and Secor, his claims against these defendants must be dismissed without prejudice.^
II.

Failure to State a Claim

A.

Federal Claims

Plaintiffs federal claims rely on Bivens,403 U.S. 388, which recognized an implied

private cause of action for federal damages against federal officers who violate a citizen's

^
Perhaps anticipating the pleading deficiency. Storms requested "jurisdictional discovery
to further develop the facts surrounding the conspiracy." PI. VA 0pp. Mem. at 34. "Declining
to permitjurisdictional discovery is well within a district court's discretion" where, as here, the
plaintiff fails to make a primafacie showing of personal jurisdiction. In re Angeln GmBH & Co.
KG,510 F. App'x 90,93(2d Cir. 2013); see Haber v. United States, 823 F.3d 746,754(2d Cir.
2016)(affirming the denial ofa "request for jurisdictional discovery ... based entirely on
conclusory and implausible allegations"). The discovery Storms requests, moreover, is plainly
not limited to the jurisdictional issue, and would amount to a fishing expedition to support his
conspiracy claims more broadly. The request is denied.
10

constitutional rights. The VFW and VFW-NY defendants, of course, are not federal officers.

Straightaway, then, the Bivens claims must be dismissed as to the corporate private entities, the
VFW and the VFW-NY. The purpose of a Bivens claim "is to deter individual federal officers

from committing constitutional violations," and there is no right of action against private entities.
Corr. Servs. Corp. v. Malesko, 534 U.S. 61,66,70,122 S. Ct. 515, 519, 521,151 L. Ed. 2d 456
(2001).

Concerning the individual VFW and VFW-NY defendants, a Bivens claim against a

private individual is cognizable only if that individual acted under color offederal law. For

guidance on what constitutes "color offederal law," courts consult the more developed body of
law controlling lawsuits targeting conduct said to arise under color of state law for purposes of
42 U.S.C. § 1983. See Chin v. Bowen,833 F.2d 21,24(2d Cir. 1987). As relevant to this case,
"the actions of a nominally private entity are attributable to the state when:(1)the entity acts

pursuant to the 'coercive power' ofthe state or is 'controlled' by the state ('the compulsion
test'); [or](2) when the state provides 'significant encouragement' to the entity, the entity is a

'willfiil participant in joint activity with the [sjtate,' or the entity's functions are 'entwined' with
state policies ('the Joint action test' or 'close nexus test')." Sybalski v. Indep. Grp. Home Living
Program, Inc., 546 F.3d 255,257(2d Cir. 2008)(second alteration in original)(quoting
Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288,296,121 S. Ct. 924,930,

148 L. Ed. 2d 807(2001)). "[CJonclusory allegations of conspiracy" between the federal and
11

private actors will not suffice. Stoner v. Young Concert Artists, Inc., 626 F. App'x 293,296(2d
Cir. 2015), cert, denied, 136 S. Ct. 2522(2016).

Parroting the legal standard. Storms claims that "[t]hrough access and financial
incentives," the VA defendants "substantially coerced and encouraged" the individual defendants

to punish him. Compl.

80,91. However,the significant encouragement required for joint

activity meeins encouragement so substantial "that the choice must in law be deemed to be that of
the State." Blum v. Yaretsky, 457 U.S. 991,1004,102 S. Ct. Till,2786,73 L. Ed. 2d 534

(1982); see United States v. Stein, 541 F.3d 130, 147-48(2d Cir. 2008)(finding significant

encouragement by the state where prosecutors "steered [the defendants' company] toward their
preferred fee advancement policy and then supervised its application in individual cases."). VA

merely requested or encouraged. Storms himself alleges, that the VFW take action, which falls
far short of the precedential standard regarding significant encouragement. Since no Bivens

claim may lie against the institutional defendants and plaintiff does not allege nearly sufficient
facts to plausibly plead that the individual defendants acted under color offederal law,the Bivens
claims are dismissed for these reasons as to all defendants. There is no need to, and the Court

does not reach, any ofthe additional arguments advanced by the parties.
B.

State Claims

Finally, Storms interposes claims against the VFW defendants, the VFW-NY defendants,
and the United States, under New York law,for defamation, intentional infliction of emotional
12

distress, negligence, and breach of contract. To state a claim for defamation, a plaintiff whose
claim is New York law-based must plead that "the defendant published to a third party a
defamatory statement of fact that was false, was made with the applicable level offault, and
either was defamatory per se or caused the plaintiff special harm,so long as the statement was

not protected by privilege." Chandok v. Klessigy 632 F.3d 803, 814(2d Cir. 2011); see Salvatore
V. Kumar, 45 A.D.3d 560,563, 845 N.Y.S.2d 384, 388(2d Dep't 2007).

Only provable statements offact, not statements of opinion, can constitute actionable
defamation. See Brahms v. Carver, 33 F. Supp. 3d 192,198(E.D.N.Y. 2014). Whether a
statement is one offact or opinion is a question oflaw. See Celle v. Filipino Reporter Enters.

Inc., 209 F.3d 163, 178(2d Cir. 2000). In differentiating opinion from fact, courts undertake "1)
an assessment of whether the specific language in issue has a precise meaning which is readily
understood or whether it is indefinite and ambiguous;2)a determination of whether the

statement is capable of being objectively characterized as true or false; 3)an examination ofthe
full context ofthe communication in which the statement appears; and 4)a consideration of the

broader social context or setting surrounding the communication including the existence of any

applicable customs or conventions which might signal to readers or listeners that what is being
read or heard is likely to be opinion, not fact." Id. at 178-79(quoting Steinhilber v. Alphonse,68
N.Y.2d 283, 292, 501 N.E.2d 550, 554, 508 N.Y.S.2d 901,905 (1986)).

13

Among other deficiencies, Storms's defamation causes of action warrant dismissal

because the offending statements are plainly opinion. He primarily complains that the following
statements, by Thien in his rebuttal article, were defamatory: that Storms's "op-ed reflects a lack

of in-depth knowledge ofthe VA claims process," that "his allegations of a 'widespread culture'
at VA where officials and employees are rewarded for 'violating veterans' constitutional rights'

are specious at best," and that it was "especially troubling that he would advise veterans who

may already be facing financial hardship to pursue costly and frivolous legal action without first
consulting with one of our many expert VFW Service Officers for assistance in resolving their

claim." Compl.^ 40; Thien,supra note 8.'® Manifestly,these statements are not readily
categorized as true or false. Placed in the context and setting of Thien's article—a rebuttal to

Storms's opinion piece that was titled "Secretary Shinseki and the VA are doing the best they
can," and published online under the large and bold font headline "OPINION"—^the only

reasonable conclusion is that the rebutting statements are also opinion.''

To the extent Storms also complains that the rebuttal article included factually incorrect
statements about VA,such statements did not defame Storms. See PI. VFW 0pp. Mem. at 19,
EOF No. 49-1.

''
Furthermore, plaintiffs generalized and conclusory allegations that the statements injured
him in his profession are not sufficient to establish per se damages, and he did not allege any
special damages, as would be required under New York law. See Thompson v. Bosswick, 855 F.
Supp. 2d 67,76-77(S.D.N.Y. 2012); Liberman v. Gelstein, 80 N.Y.2d 429,436,605 N.E.2d 344,
348, 590 N.Y.S.2d 857, 861 (1992); see generally Celle, 209 F.3d at 179-80. Additionally, the
United States is immune from suit for defamation. See Catania v. Herbst,916 F. Supp. 2d 266,
272-73(E.D.N.Y. 2013).
14

The three March 10, 2014 letters aggrieve Storms but his complaints about them fare no

better. Two ofthose letters are extremely brief and, more importantly, contain only undisputed
facts about Storms's termination. Compl.

31,34, Exs. 3, 5. The third letter, stating that the

article he wrote was "an embarrassment" to the VFW and "left one with the impression that

[Storms was]the spokesperson and [was] providing the position of[the VFW]," due to the use of
a false title, is opinion without a quibble, namely, Koch's beliefs about the effects of the article
and the likely impressions its readers would be given. None presents actually defamatory
statements.

Shifting gears, to state a claim for intentional infliction ofemotional distress. New York
law demands, inter alia, a showing of"extreme and outrageous conduct, which so transcends the
bounds of decency as to be regarded as atrocious and intolerable in a civilized society."

Friedman v. SelfHelp Cmty. Servs., Inc., 647 F. App'x 44,47(2d Cir. 2016)(quoting Turley v.
ISG Lackawanna, Inc., 774 F.3d 140,157(2d Cir. 2014)). The allegations here do not come

close to reaching this high bar. In any event, a claim for intentional infliction ofemotional
distress will not lie where relief may be obtained through traditional tort liability, such as a claim
for defamation targeting the allegedly distressing words. See Salmon v. Blesser, 802 F.3d 249,
256(2d Cir. 2015); Brancaleone v. Mesagna,290 A.D.2d 467,468,736 N.Y.S.2d 685,687(2d

15

Dep't 2002)(finding "that the cause of action for intentional infliction of emotional distress

should have been dismissed as duplicative ofthe cause of action for defamation").'^
Adding to the theories and causes in his litigation basket, Storms claims that each ofthe
defendants, corporate and individual, is liable for failing to fire, discipline, train, or supervise
Thien, Hamilton, Wallace, Pascal, and Koch, and for failing to prevent what he perceives as their

conduct. Compl.

108,112,116. Of course, the individual defendants and the corporate

defendants who did not actually employ the named individual defendants cannot be held liable
on that basis. Nor can the corporate and individual defendants be held responsible for each other
in such a claim, sounding in negligence, as "[l]ogic dictates that parties cannot conspire or agree

to commit negligence." In re Methyl Tertiary Butyl Ether("MTBE")Prods. Liab. Litig., 175 F.

Supp. 2d 593,633(S.D.N.Y. 2001). In any event, plaintiff has not identified any duty of care
owed to him, as is required to state a claim for negligence under New York law. See Sullivan v.

City ofNew York, No. 14-CV-1334(IMF),2015 WL 5025296, at *10(S.D.N.Y. Aug. 25,2015)
(dismissing a negligence cause of action where the plaintiff did not "cite any authority even
suggesting that he was owed a duty by [the defendant]"). Singularly dispositive here, moreover.
New York law does not recognize claims for negligence based on intentional acts, such as the

Over and above other deficiencies. Storms failed to exhaust his administrative remedies

concerning his intentional infliction of emotional distress and negligence claims against the
United States, as required by the Federal Tort Claims Act,28 U.S.C. § 2401(b). See Foster v.
Fed. Emergency Mgmt. Agency, 128 F. Supp. 3d 717,727-2S (E.D.N.Y. 2015).
16

organizational ouster of Storms. See United Nat'I Ins. Co. v. Tunnel, Inc., 988 F.2d 351, 353(2d
Cir. 1993); Greenaway v. County ofNassau,97 F. Supp. 3d 225,239(E.D.N.Y. 2015).
Were those deficiencies not enough to warrant dismissal, employment-related negligence

claims require,"that the employer 'knew or should have known ofthe employee's propensity for
the conduct which [allegedly] caused the injury' prior to the injury's occurrence." Ehrens v.
Lutheran Church, 385 F.3d 232, 235(2d Cir. 2004)(quoting Kenneth R. v. Roman Catholic

Diocese ofBrooklyn, 229 A.D.2d 159,161,654 N.Y.S.2d 791,793(2d Dep't 1997)). Storms

alleges no such prior knowledge, much less facts plausibly alleging it. Additionally, no claim of
this sort will lie where, as here, the employee acted within the scope of his employment. See

Ahluwalia v. St. George's Univ., LLC,63 F. Supp. 3d 251, 263(E.D.N.Y. 2014), affd,626 F.

App'x 297(2d Cir. 2015); see Mem.& Order at 6,ECF No.44(finding that the VA defendants
acted within the scope oftheir employment in responding to criticism "from an individual
identified as a VFW official").

As for breach of contract. Storms, an unpaid volunteer, has not alleged the offer,

acceptance, and consideration required for the formation ofa contract. See Fisher v. Int7
Student Exch., Inc., 38 F. Supp. 3d 276, 282(E.D.N.Y. 2014)(concluding that a study abroad

organization's handbook did not constitute a contract with a volunteer host who "received no

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compensation for his agreement to house [the plaintiff]").'^ In any case, plaintiff rests his breach
of contract claim, in part, on a "section 5" of the VFW's By-Laws that, as a review ofthe ByLaws shows, does not exist, and, in part, on "sections 901-903," which specify that the

disciplinary procedures they describe do not supersede the authority bestowed on the department
commander(in this case, Pascal) by the VFW Manual of Procedure to "remove officers,
committee chairmen and committees appointed by him at any time." Muckelbauer Aff. Ex. 3;
see id. at Ex. 2;see generally VFW Mem. 19-20, ECF No. 48-1; VFW-NY Mem. at 24 n.7. For

these reasons. Storms has not properly pleaded any of his state law claims and his complaint
must be dismissed in its entirety. Additionally, he did not move for leave to amend, nor,

dispositively, is there any indication in the record that any colorable claim exists such that leave
to amend might be warranted.
Conclusion

For the foregoing reasons, the defendants' motions to dismiss are granted in their
entirety. Plaintiffs causes of action against General Shinseki, Sullivan, and Secor are dismissed

without prejudice for lack of personal jurisdiction. His claims against the VFW,Thien,

Certainly, bylaws may,in certain circumstances, be determinative, but that does not
excuse Storms's failure to allege facts showing the existence of a contract. PI. VFW-NY 0pp.
Mem. at 22(citing Pomerance v. McGrath, 124 A.D.3d 481,482,2 N.Y.S.3d 436,439(1st
Dep't 2015)(finding the violation of a condominium's bylaws to be "akin to a breach of
contract")).

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Hamilton, Wallace, the VFW-NY,Pascal, Koch, and the United States are dismissed with

prejudice for failure to state a claim on which relief may be granted.
The Clerk of Court is directed to enterjudgment accordingly and to close this case.
So Ordered.

Dated: Brooklyn, New York
October 28,2016

s/Eric N. Vitaliano
IC N. VITALIANO

United States District Judge

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