Abraham et al v. Entrepreneur Media, Inc.

Filing 9

REPLY in Opposition re 4 MOTION to Dismiss DEFENDANT ENTREPRENEUR MEDIA, INC.'S REPLY AND OPPOSITION TO PLAINTIFFS' AFFIRMATION IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS AND REQUEST FOR CONTINUANCE UNDER FEDERAL RULE OF CIVIL PRODEDURE 56(F) filed by Entrepreneur Media, Inc.. (Pokotilow, Steven)

Steven B. Pokotilow ([e-mail])
Richard Eskew ([e-mail])
STROOCK & STROOCK & LAVAN LLP
180 Maiden Lane
New York, New York 10038-4982
Tel: [phone]
Fax: [phone]
Attorneys for Defendant
Entrepreneur Media Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
ILAN ABRAHAM, et al.,
Plaintiffs,

(ECF Case)
Case No. 09-2096

v.
District Judge Joanna Seybert
ENTREPRENEUR MEDIA, INC.,

Magistrate Judge Michael Orenstein

Defendant.

DEFENDANT ENTREPRENEUR MEDIA, INC.’S REPLY AND OPPOSITION TO
PLAINTIFFS’ AFFIRMATION IN OPPOSITION TO DEFENDANT’S MOTION TO
DISMISS AND REQUEST FOR CONTINUANCE UNDER
FEDERAL RULE OF CIVIL PROCEDURE 56(F)

NY 72215643

Defendant, Entrepreneur Media, Inc. (“Entrepreneur”), submits this Reply in response
and opposition to Plaintiffs’ Affirmation in Opposition to Defendant’s Motion to Dismiss and
Request for Continuance Under Rule 56(f) (D.I. 8) (“Plaintiffs’ Affirmation”). As detailed in
Entrepreneur’s Memorandum of Law in Support of Defendant Entrepreneur Media Inc.’s Motion
To Dismiss All Counts of the Complaint Under Federal Rule of Civil Procedure 12(b)(6) (D.I. 5)
(the “Entrepreneur Brief”), the contents of which are incorporated herein, Plaintiffs have failed
to state a claim upon which relief can be granted and Plaintiffs’ Affirmation to the Entrepreneur
Brief does not, and cannot as a matter of law, cure any of the deficiencies of Plaintiffs’ Verified
Complaint (D.I. 1, Ex. A) (the “Complaint”). Thus, for the reasons set forth in the Entrepreneur
Brief and points addressed herein, this Court should grant Defendant’s Motion to Dismiss under
Federal Rule of Civil Procedure 12(b)(6), dismissing the Complaint with prejudice, and deny
Plaintiffs’ Request for Continuance.
I.

INTRODUCTION
Nowhere in Plaintiffs’ Affirmation is there any legal analysis of the duty of care

Defendant Entrepreneur owed to Plaintiffs in support of this action. However, to establish gross
negligence, or even simple negligence, a plaintiff must first demonstrate that a defendant owes
the plaintiff a duty of care.
Under New York law and in the interest of public policy, a publisher, such as
Entrepreneur cannot be held liable for non-defamatory, negligent misstatements. Jaillet v.
Cashman, 115 Misc. 383, 384 (N.Y. Sup.Ct. 1921); First Equity Corp. of Fla. v. Standard &
Poor’s Corp., 869 F.2d 175, 178-80 (2d Cir. 1989). As detailed below, Plaintiffs’ Affirmation
ignores this legal precedent and erroneously seeks to create issues that are irrelevant to the
disposition of this Motion.

2
NY 72215643

II.

ARGUMENT
A.

The Complaint fails to state any cause of action and, even accepting the
material facts alleged in the Complaint as true and drawing all reasonable
inferences in the Plaintiffs’ favor, the Complaint does not create a remote
suspicion of a legally cognizable right of action as a matter of law.

Plaintiffs’ assertion that Defendant improperly disputes facts is without merit. Under
Rule 12(b)(6) of the Federal Rules of Civil Procedure, one or more counts of a complaint is
appropriately dismissed when the plaintiff fails to submit a complaint that “contain[s] something
more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of
action.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007) (quoting 5 C. Wright & A.
Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.2004)). A “blanket assertion
of entitlement to relief,” as pled, is insufficient to defeat a motion under Rule 12(b)(6). Id. at
1965 n.3. Indeed, Plaintiffs make exactly this type of empty blanket assertion in both the
Complaint and Plaintiffs’ Affirmation and additionally assert, albeit disingenuously, that the
Entrepreneur Brief improperly disputes issues of fact.
As stated in Section III.A of the Entrepreneur Brief:
In determining whether dismissal is appropriate, the Court must
“accept as true the material facts alleged in the complaint and draw
all reasonable inferences in [plaintiff’s] favor.” Freedom Holdings
Inc. v. Spitzer, 357 F.3d 205, 216 (2d Cir. 2004).
Thus, nowhere in its moving papers does Entrepreneur raise any factual issue, and Plaintiffs’
argument to the contrary is disingenuous.
Furthermore, nowhere in Plaintiffs’ Affirmation is there a discussion of the law
governing publisher liability in New York. As discussed in the Entrepreneur Brief, in New
York, publishers are under no duty of care to ensure the accuracy of published information.
Jaillet, 115 Misc. at 384; First Equity Corp. of Fla., 869 F.2d at 178-79. Plaintiffs offer neither

3
NY 72215643

authority nor argument to contradict this principle of law and public policy. Rather than
addressing the merits of the Entrepreneur Brief, Plaintiffs hide behind procedural smokescreens
and delays.1
Accordingly, assuming the material facts alleged in the Complaint are accepted as true
and all reasonable inferences are drawn in the Plaintiffs’ favor, not a single fact offered by the
Plaintiffs in the Complaint support any action under theories of negligence or gross negligence.
Thus, the Complaint is ripe for dismissal and should be dismissed with prejudice because not
only have Plaintiffs failed to factually state any cause of action, but New York law recognizes no
such cause of action under the instant circumstances.
B.

Plaintiffs’ request for a continuance is inappropriate and defective.

Plaintiffs inaccurately attempt to characterize Entrepreneur’s pending Rule 12(b)(6)
motion as a motion for summary judgment under Rule 56. Summary judgment relates to facts
outside of the pleadings and the disputability of those facts. Based on this mischaracterization,
Plaintiffs then argue, albeit erroneously, that before this Court rules on Entrepreneur’s motion,
they are entitled to a continuance to conduct discovery relating to the facts in this lawsuit.
However, Entrepreneur has not moved for summary judgment under Rule 56, has not presented
matters beyond the scope of the pleadings for consideration, and has placed no factual issue in
dispute.
While Entrepreneur strongly disputes the factual allegations of gross negligence in the
Complaint, it accepts those facts as true for purposes of its Rule 12 motion only. Thus,
Entrepreneur’s Rule 12 motion raises only one issue, namely, whether Plaintiffs can obtain any
relief under applicable law, based on the facts alleged in the Complaint. Under New York law,
1

Of particular note, Plaintiffs have not only failed to submit a timely opposition on the order of months, but has
failed to meet not one, but two of this Court’s deadlines.

4
NY 72215643

the answer is no. As cited above, that law very clearly and unequivocally exempts publishers
from liability even for inaccurate, non-defamatory, negligent misstatements. Thus, Plaintiffs’
motion for a continuance in response to Entrepreneur’s Rule 12 motion is misplaced and
procedurally improper, and for those reasons, should be denied by this Court.
Also, assuming arguendo, that this motion should be treated as a Rule 56 motion (which
it is not), Plaintiffs’ request for a continuance under Rule 56 is also defective. Rule 56(e)(2)
provides:
When a motion for summary judgment is properly made and
supported, an opposing party may not rely merely on allegations or
denials in its own pleading; rather, its response must — by
affidavits or as otherwise provided in this rule — set out
specific facts showing a genuine issue for trial. If the opposing
party does not so respond, summary judgment should, if
appropriate, be entered against that party.
Fed. R. Civ. P. 56(e)(2) (emphasis added).
Rule 56(f) further provides:
If a party opposing the motion shows by affidavit that, for
specified reasons, it cannot present facts essential to justify its
opposition, the court may:
(1) deny the motion;
(2) order a continuance to enable affidavits to be obtained,
depositions to be taken, or other discovery to be undertaken; or
(3) issue any other just order.
Fed. R. Civ. P. 56(f) (emphasis added).
Plaintiffs have not submitted any affidavits as required by Rule 56(e). Alternatively,
Plaintiffs have failed to show by affidavit any reason why they cannot present facts essential to
justify their opposition as required by Rule 56(f). In light of these defects, a continuance to

5
NY 72215643

permit Plaintiffs to conduct discovery is neither appropriate nor necessary. Accordingly, this
Court should deny Plaintiffs’ request for a continuance under Rule 56(f).
III.

CONCLUSION
In light of the foregoing, Defendant Entrepreneur Media, Inc. respectfully requests that

this Court deny Plaintiffs’ Request for Continuance and dismiss the Complaint with prejudice.
Respectfully submitted,

By:

s/Steven B. Pokotilow
Steven B. Pokotilow
STROOCK & STROOCK & LAVAN LLP
Steven B. Pokotilow
([e-mail])
Richard Eskew
([e-mail])
180 Maiden Lane
New York, NY 10038-4982
Telephone: [phone]
Facsimile: 212-806-6006
Attorneys for Defendant,
Entrepreneur Media, Inc.

Dated:

New York, New York
August 3, 2009

6
NY 72215643

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date, the foregoing Defendant Entrepreneur
Media, Inc.’s Reply And Opposition To Plaintiffs’ Affirmation In Opposition To Defendant’s
Motion To Dismiss And Request For Continuance Under Federal Rule Of Civil Procedure 56(F)
was caused to be electronically filed with the Clerk of the Court using CM/ECF which will send
electronic notification of such filing to all registered participants. In addition, the undersigned
hereby certifies that the true and correct copy of the foregoing were caused to be served via
overnight courier on this upon the following party:
ELIOT F. BLOOM, ESQ.
Attorney for Plaintiffs
114 Old Country Road, Suite 308
Mineola, New York 11501
[phone]

Dated: August 3, 2009

By:

s/Steven B. Pokotilow
Steven B. Pokotilow
STROOCK & STROOCK & LAVAN LLP
Steven B. Pokotilow
([e-mail])
Richard Eskew
([e-mail])
180 Maiden Lane
New York, NY 10038-4982
Telephone: [phone]
Facsimile: 212-806-6006
Attorneys for Defendant,
Entrepreneur Media, Inc.

NY 72215643