Goldman v. Reddington

Filing 127

ORDER ADOPTING REPORT AND RECOMMENDATION: For the reasons set out in the attached memorandum and order, Magistrate Judge Lindsay's report and recommendation at 116 is adopted in full. Ms. Reddington's 78 motion seeking leave to add a c ounterclaim for assault and battery is denied. Ms. Reddington's 112 motion for leave to add a counterclaim and an affirmative defense under New York's anti-SLAPP statute is granted. Ordered by Judge Rachel P. Kovner on 9/9/2021. (Kahwash, Sarah)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
ALEX GOLDMAN,
MEMORANDUM AND ORDER
18-CV-3662 (RPK) (ARL)

Plaintiff,
-againstCATHERINE REDDINGTON,
Defendant.
---------------------------------------------------------------X
RACHEL P. KOVNER, United States District Judge:

Plaintiff Alex Goldman filed this lawsuit in 2018, alleging that defendant Catherine
Reddington defamed him and tortiously interfered with his business relations by publicly
accusing him of sexual assault. Several years into litigation, Ms. Reddington filed motions
seeking to pursue a counterclaim for assault and battery, see Def.’s First Mot. to Amend (Dkt.
#78), and a counterclaim and an affirmative defense under New York’s statute concerning
strategic lawsuits against public participation (its “anti-SLAPP statute”), N.Y. C.R.L. §§ 70-a
and 76-a; see Def.’s Second Mot. to Amend (Dkt. #113). I referred those motions to Magistrate
Judge Lindsay for a report and recommendation (“R. & R.”). Judge Lindsay has recommended
that I deny leave to file the assault-and-battery counterclaim as untimely, but grant leave to file
the counterclaim and affirmative defense under New York’s anti-SLAPP statute. See R. & R.
(Dkt. #116). Mr. Goldman has objected to Judge Lindsay’s recommendation regarding the antiSLAPP counterclaim and affirmative defense. For the reasons below, I adopt Judge Lindsay’s
report and recommendation.

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BACKGROUND
Mr. Goldman and Ms. Reddington were students at Syracuse University. Both attended a
fraternity party there in 2017. See Compl. ¶¶ 23-30 (Dkt. #1). Ms. Reddington has alleged that
after the party, Mr. Goldman sexually assaulted her.

See id. ¶¶ 8, 31; Def.’s Proposed

Counterclaim (“Counterclaim”) ¶¶ 9-26 (Dkt. #113-1). Ms. Reddington reported the alleged
assault to police. See Compl. ¶ 7; Counterclaim ¶ 24. The Onondaga County District Attorney’s
Office declined to charge Mr. Goldman with a crime. See Compl. ¶ 8. But Syracuse University
conducted its own investigation and concluded that Mr. Goldman had sexually assaulted Ms.
Reddington.

Mr. Goldman was expelled from the university.

See id. ¶¶ 10-11, 36-37;

Counterclaim ¶ 25. Mr. Goldman denies that a sexual assault occurred. See Compl. ¶¶ 3-4, 5660.
Mr. Goldman filed this lawsuit in June 2018, raising claims of defamation and tortious
interference with prospective economic advantage and business relations. See id. ¶¶ 51-79. He
relies on statements that Ms. Reddington made accusing Mr. Goldman of sexual assault to third
parties and on the social media platforms Facebook and LinkedIn—statements that he contends
were false. See id. ¶¶ 38-50.
Magistrate Judge Lindsay set January 17, 2020 as the deadline for motions to amend or
join new parties. See Order Dated 11/13/2019 (Dkt. #52).
Several months after that deadline passed, on October 2, 2020, Ms. Reddington filed a
motion to amend her pleadings to add a counterclaim for assault and battery. See Def.’s First
Mot. to Amend (Dkt. #78); Def.’s Reply Br. in Supp. of First Mot. to Amend at 1 n.1 (Dkt #79).
On March 26, 2021, Ms. Reddington filed a second motion to amend her pleadings. That
motion sought leave to add a counterclaim and affirmative defense under New York’s recently
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amended anti-SLAPP statute. See Def.’s Second Mot. to Amend (Dkt. #113). Mr. Goldman
opposed both motions to amend. See Pl.’s First Opp’n (Dkt. #77); Pl’s Second Opp’n (Dkt.
#114). I referred the motions to amend to Judge Lindsay. See Order Dated 8/12/2020; Order
Dated 2/3/2021.
Judge Lindsay recommended denying leave to file the counterclaim for assault and
battery, but granting leave to file the anti-SLAPP counterclaim and affirmative defense. R. & R.
at 6. Judge Lindsay determined that Ms. Reddington had failed to show good cause for her delay
in seeking to file the assault-and-battery counterclaim. See id. at 5-6. But Judge Lindsay
determined that Ms. Reddington had shown good cause for her delay in seeking to add the antiSLAPP counterclaim and affirmative defense. Id. at 6. Judge Lindsay concluded that Ms.
Reddington could not have brought such a claim before amendments to the anti-SLAPP statute
were enacted on November 10, 2020. See ibid. She also concluded that Ms. Reddington “acted
diligently” in seeking to add the anti-SLAPP counterclaim and affirmative defense three months
later. Ibid. In addition, Judge Lindsay concluded that the amendment to add the anti-SLAPP
counterclaim would not be futile. See id. at 6-9. Finally, Judge Lindsay rejected Mr. Goldman’s
argument that allowing the amendment would prejudice him. She concluded that the antiSLAPP counterclaim was “unlikely to require additional discovery as it is based on the same
facts and subject matter that already exists in the lawsuit.” Ibid.
Mr. Goldman filed timely objections to Judge Lindsay’s recommendation that Ms.
Reddington be allowed to file the anti-SLAPP counterclaim and affirmative defense. See Pl.’s
Obj. to R. & R. (“Pl.’s Obj.”) (Dkt. #119). Ms. Reddington urges the Court to adopt the R. &. R.
in full. See Def.’s Opp’n to Pl.’s Obj. (“Def.’s Opp’n”) (Dkt. #120).

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STANDARD OF REVIEW
I.

Motions to Amend
“[A] court should freely give leave” to amend “when justice so requires.” Fed. R. Civ. P.

15(a)(2). As a general matter, amendment should be permitted “absent evidence of undue delay,
bad faith or dilatory motive on the part of the movant, undue prejudice to the opposing party, or
futility.”

Monahan v. New York City Dep’t of Corr., 214 F.3d 275, 283 (2d Cir. 2000).

“Futility is a determination, as a matter of law, that proposed amendments would fail to cure
prior deficiencies or to state a claim under Rule 12(b)(6).” Panther Partners Inc. v. Ikanos
Commc’ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012).
Where the Court has established a deadline for seeking leave to amend, however, “the
lenient standard under Rule 15(a) . . . must be balanced against the requirement under Rule 16(b)
that the Court’s scheduling order shall not be modified except upon a showing of good
cause.” Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir. 2009) (quotations omitted). Good
cause exists when a movant was diligent but could not have reasonably met the deadline to
amend. In contrast, “[a] party fails to show good cause when the proposed amendment rests on
information that the party knew, or should have known, in advance of the deadline.” Perfect
Pearl Co. v. Majestic Pearl & Stone, Inc., 889 F. Supp. 2d 453, 457 (S.D.N.Y. 2012) (quotations
omitted).

If the movant demonstrates good cause, “the court then applies Rule 15(a) to

determine whether the amendment is otherwise proper.” Kleeberg v. Eber, 331 F.R.D. 302, 314
(S.D.N.Y. 2019).
II.

Magistrate Judge’s Report and Recommendation
Portions of an R. & R. to which no party has objected are reviewed, at most, for “clear

error.” Alvarez Sosa v. Barr, 369 F. Supp. 3d 492, 497 (E.D.N.Y. 2019); see Nelson v. Smith,
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618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citing Fed. R. Civ. P. 72 advisory committee’s note to
1983 addition). Clear error will only be found if after reviewing the entire record, the court is
“left with the definite and firm conviction that a mistake has been committed.” United States v.
Bershchansky, 788 F.3d 102, 110 (2d Cir. 2015).
When a party does object to an R. & R., the district court’s standard of review depends on
whether the issue addressed by the magistrate judge is “dispositive of a party’s claim or
defense.” Fed. R. Civ. P. 72(a); see 28 U.S.C. § 636(b)(1). If a party timely objects to a
magistrate judge’s order on a non-dispositive issue, the district court “must consider” those
objections and “modify or set aside any part of the order that is clearly erroneous or is contrary to
law.” Fed. R. Civ. P. 72(a); see 28 U.S.C. § 636(b)(1)(A). If a party timely objects to a
magistrate judge’s recommendation on a dispositive issue, then the district court must
“determine de novo” those parts of the ruling that have been “properly objected to.” Fed. R. Civ.
P. 72(b)(3); see 28 U.S.C. § 636(b)(1).
Judge Lindsay’s recommendation that Ms. Reddington be allowed to amend her
pleadings to include an anti-SLAPP counterclaim and affirmative defense is a recommendation
on a non-dispositive issue. The Second Circuit has repeatedly suggested that decisions on
motions to amend are non-dispositive. See Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir.
2007); Rienzi & Sons, Inc. v. Puglisi, 638 F. App’x 87, 92 (2d Cir. 2016); Kilcullen v. New York
State Dep’t of Transp., 55 F. App’x. 583, 584-85 (2d Cir. 2003). Nevertheless, some decisions
have suggested that this principle does not apply when a magistrate judge denies leave to amend,
on the theory that such a denial “foreclose[s] potential claims.” Wilson v. City of New York, No.
06-CV-229, 2008 WL 1909212, at *4 (E.D.N.Y. Apr. 30, 2008); see e.g., Jean-Laurent v.
Wilkerson, 461 F. App’x 18, 25 (2d Cir. 2012). But even if a denial of leave to amend is treated
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as a ruling on a dispositive matter, “no such conclusion is warranted when the motion [to amend]
is granted.” Bonilla v. City of New York, No. 20-CV-1704, 2020 WL 6637214, at *2 (E.D.N.Y.
Nov. 12, 2020); see, e.g., Ashford Locke Builders v. GM Contractors Plus Corp., No. 17-CV3439, 2020 WL 6200169, at *1 (E.D.N.Y. Oct. 22, 2020); Jaigua v. Kayafas Contracting Co.
Inc., No. 18-CV-1941, 2019 WL 1115025, at *1 n.1 (E.D.N.Y. Mar. 11, 2019); Bridgeport
Music, Inc. v. Universal Music Grp., Inc., 248 F.R.D. 408, 410 (S.D.N.Y. 2008).
DISCUSSION
I adopt Judge Lindsay’s report and recommendation in full.
I.

Counterclaim and Affirmative Defense Under New York’s Anti-SLAPP Statute
Judge Lindsay did not clearly err in granting Ms. Reddington’s motion to amend her

answer to add a counterclaim and affirmative defense under New York’s anti-SLAPP statute.
A. Good Cause
Judge Lindsay did not clearly err in concluding that Ms. Reddington demonstrated good
cause for her delay in adding a counterclaim and affirmative defense under New York’s antiSLAPP statute. “Diligence is the primary consideration in the good cause analysis.” Scott v.
Chipotle Mexican Grill, Inc., 300 F.R.D. 193, 198 (S.D.N.Y. 2014). It is undisputed that Ms.
Reddington could not have brought her anti-SLAPP counterclaim and affirmative defense until
“New York amended its anti-SLAPP law” and “substantially broadened [its] reach” on
November 10, 2020, Palin v. New York Times Co., No. 17-CV-4853, 2020 WL 7711593, at *2
(S.D.N.Y. Dec. 29, 2020); see Def.’s Second Mot. to Amend at 5; Pl.’s Second Opp’n at 12-13;
see also Chandok v. Klessig, 632 F.3d 803, 819 (2d Cir. 2011). Mr. Goldman argues that Ms.
Reddington nevertheless failed to establish good cause because she did not bring her anti-SLAPP
counterclaim for “almost three additional months” after the statute was amended. Pl.’s Obj. at 16

2. But courts have commonly found that parties acted diligently under Rules 15 and 16 when
they took approximately three months to file a claim after the basis for the claim arose. See, e.g.,
Bryan v. Commack Union Free Sch. Dist., No. 18-CV-7249, 2021 WL 633751, at *4 (E.D.N.Y.
Feb. 18, 2021); Chipotle Mexican Grill, 300 F.R.D. at 199; Vermont Right to Life Comm., Inc. v.
Sorrell, No. 09-CV-188, 2010 WL 11610330, at *1 (D. Vt. July 1, 2010); Nycomed U.S. Inc. v.
Glenmark Generics Ltd., No. 08-CV-5023, 2010 WL 1257803, at *11 (E.D.N.Y. Mar. 26, 2010).
Plaintiff cites no contrary cases. See Pl.’s Obj. at 1-2. I therefore find no clear error in Judge
Lindsay’s determination that Ms. Reddington established good cause for her delay in filing her
anti-SLAPP counterclaim and affirmative defense.
B. Futility
Judge Lindsay also did not clearly err in rejecting Mr. Goldman’s argument that Ms.
Reddington should be denied leave to amend because her proposed amendment is futile. New
York’s anti-SLAPP statute permits “[a] defendant in an action involving public petition and
participation” to recover costs and attorney’s fees from “any person who commenced or
continued such action . . . upon a demonstration . . . that the action involving public petition and
participation was commenced or continued without a substantial basis in fact and law and could
not be supported by a substantial argument for the extension, modification or reversal of existing
law.” N.Y. C.R.L. § 70-a(1). An “action involving public petition and participation” includes
any lawsuit based on “any communication in . . . a public forum in connection with an issue of
public interest.” Id. § 76-a(1)(a). The statute provides that “‘[p]ublic interest’ shall be construed
broadly, and shall mean any subject other than a purely private matter.” Id. § 76-a(1)(d).
Contrary to Mr. Goldman’s arguments, Judge Lindsay did not clearly err in concluding
that Ms. Reddington’s proposed anti-SLAPP counterclaim would survive a motion to dismiss
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under these principles. Mr. Goldman does not dispute that his lawsuit alleging defamation and
tortious interference is based on “communication[s] . . . in a public forum”—specifically, Ms.
Reddington’s statements on Facebook and LinkedIn. See Compl. ¶¶ 38-50; Counterclaim ¶¶ 3739; see also Coleman v. Grand, No. 18-CV-5663, 2021 WL 768167, at *13 (E.D.N.Y. Feb. 26,
2021). Instead, Mr. Goldman asserts that Ms. Reddington has not adequately alleged that her
communications concerned “an issue of public interest.” Pl.’s Obj. at 3-4. But under New
York’s anti-SLAPP statute, “‘[p]ublic interest’ shall be construed broadly” to “mean any subject
other than a purely private matter.”

N.Y. C.R.L. § 76-a(1)(d).

Here, Ms. Reddington’s

Facebook and LinkedIn posts accusing Mr. Goldman of sexual assault contained the hashtag
#MeToo, see Compl. ¶ 42; id. Ex. C (Dkt. #1-2), referencing “the rising tide of public concern
over workplace sexual harassment known as the #MeToo movement,” Coleman, 2021 WL
768167, at *8. The posts also contain extensive criticism of the law enforcement investigation of
her sexual-assault complaint.

See Compl. ¶ 44; id. Ex. C.

Given these aspects of Ms.

Reddington’s posts, Judge Lindsay made no error—let alone clear error—in determining that
these posts concerned more than “a purely private matter,” N.Y. C.R.L. § 76-a(1)(d).
Mr. Goldman has likewise not established clear error by identifying a sentence in the R.
& R. that appears to transpose the parties. See Pl.’s Obj. at 2. Judge Lindsay rejected Mr.
Goldman’s argument that Ms. Reddington’s anti-SLAPP claim was futile because Ms.
Reddington “ha[d] not demonstrated how [Mr. Goldman’s] lawsuit is meritless.” R. & R. at 9.
In doing so, Judge Lindsay stated that “it is not yet clear whether [Mr. Goldman will] prevail on
the merits of his defamation claim, or if he will be able to show that Reddington acted without a
substantial basis for doing so.” Ibid. Mr. Goldman correctly observes that, to prevail on her
anti-SLAPP counterclaim, Ms. Reddington must demonstrate that Mr. Goldman brought his
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lawsuit “without a substantial basis in fact and law,” N.Y. C.R.L. § 70-a(1)(a); Mr. Goldman
need not show that Ms. Reddington acted without a substantial basis. But this transposition
seems to be a scrivener’s error, because Judge Lindsay elsewhere recognized that Ms.
Reddington has the burden of “demonstrat[ing] how [Mr. Goldman’s] lawsuit is meritless.” R.
& R. at 9.
In any event, Judge Lindsay was correct in her apparent conclusion that Ms. Reddington
has at least adequately pleaded that Mr. Goldman’s claims of defamation and tortious
interference lacked a substantial basis in fact and law. Mr. Goldman’s claims of defamation and
tortious interference would have a substantial basis in fact and law only if Mr. Goldman had a
substantial basis for contending that Ms. Reddington’s allegations of sexual assault were false.
See Compl. ¶¶ 56-64, 71-78; see also Elias v. Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir.
2017) (citing Foster v. Churchill, 665 N.E.2d 153, 157 (N.Y. 1996)) (defamation); DiFolco v.
MSNBC Cable L.L.C., 622 F.3d 104, 114-15 (2d Cir. 2010); Amaranth LLC v. J.P. Morgan
Chase & Co., 71 A.D.3d 40, 47 (N.Y. App. Div. 2009) (tortious interference).

But Ms.

Reddington alleges in her counterclaim that Mr. Goldman did sexually assault her, see
Counterclaim ¶¶ 9-22, and that her account is corroborated by various evidence, see id. ¶¶ 45-46.
The counterclaim therefore adequately pleads that Mr. Goldman lacked a substantial basis in fact
and law for raising legal claims that depend on Ms. Reddington’s accusations being false.
Nor has Mr. Goldman established clear error based on his argument that New York’s
anti-SLAPP summary-judgment procedures conflict with Federal Rule of Procedure 56. See
Pl.’s Obj. at 2-3. Mr. Goldman relies on a provision of the anti-SLAPP statute which states that
if an anti-SLAPP plaintiff establishes that a case involves public petition and participation, the
anti-SLAPP defendant has the burden at the summary-judgment stage of establishing that the
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defendant’s underlying claim has a substantial basis in fact and law or is supported by a
substantial argument for an extension, modification, or reversal of existing law. Ibid.; see N.Y.
C.P.L.R. 3212(h) (setting out these “[s]tandards for summary judgment in certain cases involving
public petition and participation”). Mr. Goldman argues that “shift[ing] the burden on a motion
for summary judgment to the non-movant” would conflict with the summary-judgment
procedures in Rule 56. Pl.’s Obj. at 2; cf. Adelson v. Harris, 774 F.3d 803, 809 (2d Cir. 2014)
(state law applies in federal court only if it “does not squarely conflict with a valid federal rule”).
Judge Lindsay did not clearly err in “declin[ing] to address” that argument “at this
juncture in the litigation.” R. & R. at 9 n.2. At this stage, Ms. Reddington simply seeks to
amend her pleadings to include an anti-SLAPP counterclaim and affirmative defense; she does
not invoke the special summary-judgment procedures that Mr. Goldman attacks. See generally
Def.’s Second Mot. to Amend. And Mr. Goldman has offered no argument as to why a litigant
would be unable to bring an anti-SLAPP counterclaim at all merely because a portion of the antiSLAPP statute containing special summary-judgment rules assertedly conflicts with Rule 56. To
be sure, the anti-SLAPP statute contemplates that a party pursuing an anti-SLAPP claim will be
able to use those special summary-judgment procedures. See N.Y. C.R.L. § 70-a(1)(a). But the
provision creating a cause of action also makes clear that an anti-SLAPP litigant may obtain
costs and attorney’s fees without using those procedures. See ibid. (providing that “costs and
attorney’s fees shall be recovered upon a demonstration, including an adjudication pursuant to . .
. [the special summary-judgment procedures in N.Y. C.P.L.R. 3212(h)], that the action involving
public petition and participation was commenced or continued without a substantial basis in fact
and law and could not be supported by a substantial argument for the extension, modification or
reversal of existing law” (emphasis added)).
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Since the anti-SLAPP statute appears to

contemplate that an anti-SLAPP litigant could pursue an anti-SLAPP counterclaim through
procedures other than the ones that Mr. Goldman challenges, Judge Lindsay did not clearly err in
declining to decide at the motion-to-amend stage whether New York’s special summaryjudgment procedures for anti-SLAPP claims conflict with Rule 56.
II.

Counterclaim for Assault and Battery
Neither party objected to Judge Lindsay’s recommendation that Ms. Reddington be

denied leave to file a counterclaim for assault and battery. Judge Lindsay concluded that Ms.
Reddington had failed to establish good cause for her delay in bringing the counterclaim. See R.
& R. at 5-6.

Having found no clear error in Judge Lindsay’s conclusions, I adopt Judge

Lindsay’s recommendation regarding this claim. See Alvarez Sosa, 369 F. Supp. 3d at 497;
Nelson, 618 F. Supp. at 1189.
CONCLUSION
Judge Lindsay’s report and recommendation is adopted as described above.

Ms.

Reddington’s motion seeking leave to add a counterclaim for assault and battery is denied. Ms.
Reddington’s motion for leave to add a counterclaim and an affirmative defense under New
York’s anti-SLAPP statute is granted.
SO ORDERED.
/s/ Rachel Kovner
RACHEL P. KOVNER
United States District Judge
Dated: September 9, 2021
Brooklyn, New York

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