Brewer v. Rutland Herald et al

Filing 89

MEMORANDUM-DECISION AND ORDER. ORDERED that all claims asserted against Hashim and LaBombard are DISMISSED without prejudice for failure to timely serve; ORDERED that Mitchell and Schwarzauer's motion to dismiss, Dkt. No. 20 , is GRANTED; ORD ERED that Brattleboro Reformer's motion to dismiss, Dkt. No. 35 , is GRANTED; ORDERED that Komangar, Ramaswamy, Lider and Wright's motion to dismiss, Dkt. No. 55 , is GRANTED; ORDERED that Rutland Herald's motion to dismiss, Dkt. No. 76 , is GRANTED; and ORDERED that the amended complaint, Dkt. No. 19 , is DISMISSED and that the Clerk close this case. Signed by Senior U.S. District Judge Gary L. Sharpe on 8/18/2016. (lah)[copy of MDO served on pltf by regular mail and certified return receipt]

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ROBERT BREWER,
Plaintiff,

3:14-cv-958
(GLS/DEP)

v.
RUTLAND HERALD et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Robert Brewer
Pro Se
P.O. Box 438
Binghamton, NY 13903
FOR THE DEFENDANTS:
Rutland Herald
O’Connor, O’Connor Law Firm
20 Corporate Woods Boulevard
Albany, NY 12211

PETER B. JOSLIN, JR., ESQ.

Brattleboro Reformer
Levine, Sullivan Law Firm
1899 L Street NW, Suite 200
Washington, DC 20036

JAY W. BROWN, ESQ.
ROBERT PENCHINA, ESQ.

Officer Hashim and Sgt LaBombard

NO APPEARANCE

JoJo Schwarzauer and Maury Mitchell
Gleason, Dunn Law Firm
40 Beaver Street
Albany, NY 12207

RONALD G. DUNN, ESQ.

Salar Komangar, Sridhar Ramaswamy,
Brett Lider, and Johanna Wright
Wilson Sonsini Goodrich & Rosati
DAVID H. KRAMER, ESQ.
650 Page Mill Road
Palo Alto, CA 94560
Wilson, Sonsini Law Firm
1301 Avenue of the Americas
40th Floor
New York, NY 10019-6022

MORRIS J. FODEMAN, ESQ.

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Robert Brewer commenced this action against
defendants Rutland Herald, Brattleboro Reformer, Officer Hashim, Sgt
LaBombard,1 JoJo Schwarzauer, Maury Mitchell, Salar Komangar, Sridhar
Ramaswamy, Brett Lider, and Johanna Wright, alleging thirteen causes of
action. (Am. Compl., Dkt. No. 19.) Pending are remaining defendants’
motions to dismiss. (Dkt. Nos. 20, 35, 55, 76.) For the reasons that follow,

1

At the request of Brewer, defendants Hashim and LaBombard have not been served
by the Unites States Marshals Service. (Dkt. No. 52.) Service has not been otherwise made
on those defendants, and, at this point, well over sixty days has elapsed since the initial filing
against them. See N.D.N.Y. L.R. 4.1(b) (requiring service within sixty days of the filing of the
complaint). Accordingly, the court dismisses Hashim and LaBombard without prejudice
consistent with Rule 4(m) of the Federal Rules of Civil Procedure.

2

all motions are granted and the amended complaint is dismissed.
II. Background
A.

Facts2
The facts are bizarre and disjointed. Suffice it to say that this case

springs primarily from an incident in which Brewer was stopped by Vermont
State Police and found to be in possession of a handgun. (Am. Compl.
¶¶ 18, 26, 30.) A press release authored by Hashim, a police officer,
memorialized the stop and included information that Brewer contends was
inaccurate and defamatory. (Id. ¶¶ 37-45.) Afterward, Brewer located and
read articles “on Google published by the defendant newspapers
purporting to offer accounts of [the] highway stop.” (Id. ¶ 46.)
Brewer takes exception to several assertions in the press release
and news articles. Primarily, he is disenchanted with the fact that a prior
conviction stemming from an incident with nonparty Ellen Cacamis, which
he successfully appealed, is relied upon to suggest that he is a convicted
felon and was not allowed to possess a firearm. (Id. ¶¶ 1-9, 32.) Brewer
set out to have the his criminal record corrected through both the Alabama

2

Consistent with the applicable standard of review, the facts are drawn from the
amended complaint and presented in the light most favorable to Brewer.

3

Criminal Justice Information Center (CJIC), through Mitchell and
Schwarzauer both of whom are employees of that entity, and Federal
Bureau of Investigation (FBI), but he was apparently unsuccessful. (Id. at
6, ¶¶ 56-73.)
At some time thereafter, Brewer discovered that google images had
linked his likeness to “murderers, rapists, child molesters, cocaine addicts
and an individual who ‘demanded a prostitute perform fellatio on his person
at the point of a double barreled shotgun’” as well as other unsavory
things/people. (Id. ¶¶ 84-108.) Despite reporting the images to google,
formally complaining to police, and taking other action, the images were
not removed. (Id. ¶¶ 92-94.) Brewer contends that Komangar,
Ramaswamy, Lider, and Wright (collectively “google employees”) are
responsible for this conduct. (Id. ¶ 140.)
B.

Procedural History
Brewer’s first complaint was dismissed with leave to file an amended

complaint. (Dkt. No. 18.) After he filed an amended complaint, which
alleges thirteen separate causes of action, (id. ¶¶ 109-50), the pending
motions to dismiss were filed, (Dkt. Nos. 20, 35, 55, 76).
III. Standard of Review
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A.

Rule 12(b)(2)

When a defendant calls personal jurisdiction into question by
invoking Rule 12(b)(2), the plaintiff bears the burden of satisfying the court
that it has jurisdiction over the moving defendant. See MacDermid, Inc. v.
Deiter, 702 F.3d 725, 727 (2d Cir. 2012). In the absence of an evidentiary
hearing, the plaintiff's “allegations in the complaint must be taken as true to
the extent they are uncontroverted by the defendant’s affidavits.” Id.
(internal quotation marks and citation omitted).
B.

Rule 12(b)(6)

The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled
and will not be repeated here. For a full discussion of the standard, the
court refers the parties to its prior decision in Ellis v. Cohen & Slamowitz,
LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010), abrogated on other
grounds by Altman v. J.C. Christensen & Assocs., Inc., 786 F.3d 191 (2d
Cir. 2015).
IV. Discussion
For lack of a more logical way to proceed, the court will consider
each claim seriatim.
A.

First Cause: Fraud
5

Brewer’s first claim, alleging fraud, is asserted against Mitchell and
Schwarzauer. (Am. Compl. ¶¶ 109-17.) Brewer contends that Mitchell
made his conviction fraudulent when he “induced the FBI to reject [his]
criminal records challenge” and that Mitchell and Schwarzauer perpetrated
fraud against the government of the United States and State of Vermont by
“intentionally withholding his successful direct appeal.” (Id. ¶¶ 109-11.)
Mitchell and Schwarzauer argue that the claim is subject to dismissal for,
among other reasons, failure to meet the heightened pleading standard of
Rule 9(b) of the Federal Rules of Civil Procedure. (Dkt. No. 20, Attach. 2
at 3-4.) The court agrees.
While it is unclear what substantive law should apply to the fraud
claim,3 there is no doubt that Rule 9(b) applies. See Stern v. Gen. Elec.
Co., 924 F.2d 472, 476 n.6 (2d Cir. 1991). Rule 9(b) requires a party
pleading a fraud claim to “state with particularity the circumstances
constituting fraud or mistake,” but allows for “[m]alice, intent, knowledge,
and other conditions of a person’s mind [to] be alleged generally.” The
amended complaint fails to plead with sufficient particularity with respect to

3

The parties’ filings imply their belief that New York law governs this claim. (Dkt. No.
20, Attach. 2 at 3, Dkt. No. 30 at 11-12.)

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any fraud perpetrated by Mitchell and Schwarzauer on Brewer. Brewer’s
response confirms that his intention was to plead that Mitchell and
Schwarzauer defrauded the United States and Vermont through their
conduct. (Dkt. No. 30 at 12-16.) Brewer cannot assert the rights of those
entities. See United States v. Suarez, 791 F.3d 363, 366 (2d Cir. 2015)
(“[T]he prudential standing rule . . . bars litigants from asserting the rights
or legal interests of others in order to obtain relief from injury to
themselves.” (internal quotation marks and citation omitted)). In addition,
the amended complaint is otherwise devoid of facts that could sufficiently
demonstrate fraud by these defendants as against Brewer. Accordingly,
the first claim is dismissed for failure to state a claim.
B.

Second Cause: Computer Fraud
In his second claim, Brewer alleges a violation of the Stored

Communications Act (SCA)4 “and other Federal statutes” as against
Mitchell, Schwarzauer, and Lider. (Am. Compl. ¶¶ 118-20.) Simply put, no
view of the facts alleged could support a violation of the SCA. That Act
makes illegal certain conduct involving “wire or electronic communication
while it is in electronic storage,” and authorizes a civil recovery for a
4

See 18 U.S.C. §§ 2701-2712.

7

“person aggrieved by any violation of th[e Act] in which the conduct
constituting the violation is engaged in with a knowing or intentional state
of mind.” 18 U.S.C. §§ 2701, 2707. As for Brewer’s assertion that
unidentified federal law was violated, this statement is insufficient under
the basic pleading requirements engrafted in Rule 8. For all of these
reasons, the second cause of action must be dismissed.
C.

Third Cause: Cruel and Unusual Punishment
In his third claim, Brewer contends that Mitchell and Schwarzauer

violated his Eighth Amendment rights by “changing his case outcome from
SET ASIDE on direct appeal to a conviction sua sponte” and “changing the
terms of probation from [six] months to a lifetime conviction sua sponte.”
(Am. Compl. ¶ 121.) This claim cannot stand. Brewer’s assertions are
hyperbole. The gist of his claim is that, as a side effect of their actions,
Mitchell and Schwarzauer have affected the status of his prior conviction
and the sentence imposed thereof. Neither Mitchell nor Schwarzauer
could in fact impose any sentence or otherwise alter a judgment of
conviction. The Eighth Amendment prohibition against “cruel and unusual
punishments” as it relates to sentencing, contemplates the imposition of
punishment through official judicial channels, which is not present here.
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For this reason, the third cause of action is dismissed.
D.

Fourth Cause: Equal Treatment Before the Law
Brewer’s next cause of action concusorily contends that

Schwarzauer violated his Fourteenth Amendment right to equal treatment
under the law “by conferring ‘victim’ status on” Cacamis. (Id. ¶ 122.) This
claim does not meet the Rule 8 pleading standard and must be dismissed.5
E.

Fifth Cause: Erroneous Deprivation6
Brewer’s fifth claim, which names LaBombard as a defendant, (id.

¶ 123), need not be addressed because, as explained above, the claims
against LaBombard are dismissed for failure to serve. See supra note 1.
F.

Sixth Cause: Right to Bear Arms
As with the fifth cause of action, Brewer’s sixth claim, also asserted

solely against LaBombard, (Am. Compl. ¶ 124), is dismissed for failure to
timely serve LaBombard. See supra note 1.
5

The court rejects Brewer’s attempt to supplement his pleading by alleging facts in his
response for the first time. (Dkt. No. 30 at 18.) Even if the court accepted the “reasonable
inference” Brewer urges — that he was somehow treated differently that Cacamis because of
his gender, (id.) — the claim still fails to allege sufficient facts to support an equal protection
claim.
6

In one of his responsive memoranda, Brewer asserts that “[e]rroneous [d]eprivation is
folded into infringement of the right to bear arms. Unclean Hands replaces it as Fifth Cause of
Action. Plaintiff also amends the 4th Cause of Action.” (Dkt. No. 30 at 19.) While it is not
altogether clear what legal effect Brewer thinks his assertion has, the court would deny any
request for leave to amend as futile.

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G.

Seventh Cause: More Oppressive Treatment
The seventh claim alleged by Brewer implicates that, by labeling

Brewer a “transient,” Hashim violated the Privilege and Immunities Clause.
(Am. Compl. ¶ 125.) This claim is dismissed for failure to serve Hashim as
explained above. See supra note 1.
H.

Eighth Cause: Restraint of Trade
Brewer’s eighth cause of action alleges that Mitchell violated

unidentified laws by forcing Brewer to use his agency’s records challenge,
at a cost of “$25 rather than a similar criminal records challenge product
offered by the FBI priced at $18.” (Am. Compl. ¶ 126.) In his response,
Brewer contends that the Sherman Act, Clayton Act, and Federal Trade
Commission Act are all implicated. (Dkt. No. 30 at 19-20.) While the court
will not permit an amendment by response, it nonetheless considers the
claim in the context of antitrust law. Brewer’s square-peg facts cannot be
jammed into the proverbial round-hole.
Aside from the logical disconnect of Brewer’s argument, which
seems to equate the “service” provided by the FBI and CJIC as one in the
same or somehow in competition with each other — when clearly they are
not — the state action doctrine appears to preclude liability.
10

By statute, the CJIC Commission is empowered to promulgate
regulations pertaining to the inspection of criminal records by he or she to
whom the records pertain. See Ala. Code § 41-9-643. Such regulations
have been implemented and set an administrative fee of $25 for all records
challenges. See Ala. Admin. Code § r. 265-X-2-.03(1)(c). Even if Mitchell
played some role in setting that fee as implied by Brewer, the allegedly
anticompetitive behavior seems to be both authorized by the state and
subjected to state supervision. See Cal. Retail Liquor Dealers Ass’n v.
Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980). Accordingly, this claim
must be dismissed.
I.

Ninth Cause: Due Process
Brewer’s ninth cause of action, (Am. Compl. ¶ 127), is asserted

solely against Hashim, who, as noted above, was not timely served. See
supra note 1. Accordingly, this claim is dismissed.
J.

Tenth Cause: Libel7
The tenth claim alleges libel against Mitchell, Schwarzauer, Hashim,

Rutland Herald, Brattleboro Reformer, and the Google employees. (Am.

7

The parties agree that New York substantive law applies to this claim. (Dkt. No. 20,
Attach. 2 at 11; Dkt. No. 30 at 21-22.)

11

Compl. ¶¶ 128-41.) Because Hashim was not timely served, the claim is
dismissed as against him. See supra note 1. The claim is addressed with
respect to the other defendants below.
1.

Mitchell and Schwarzauer

The claims against Mitchell and Schwarzauer must be dismissed.
Brewer’s allegations with respect to these defendants is that they defamed
him by “intentionally withholding [his] successful direct appeal” and by
“recording a conviction on his FBI record that was SET ASIDE on direct
appeal.” (Am. Compl. ¶¶ 132-34.) As argued by these defendants, a
complete defense to defamation is that the complained of statements were
true. (Dkt. No. 20, Attach. 2 at 11); see Schwartzberg v. Mongiardo, 113
A.D.2d 172, 174 (3d Dep’t 1985) (“It is axiomatic that truth is an absolute,
unqualified defense to a civil defamation action.”). The only “publication”
here was Brewer’s conviction of a crime, which was true by his own
admission. (Am. Compl. ¶ 9.) The omission of which Brewer complains —
withholding information about a subsequent successful appeal — cannot
constitute publication and is not actionable. See Brian v. Richardson, 87
N.Y.2d 46, 50-51 (1995) (“The essence of the tort of libel is the publication
of a statement about an individual that is both false and defamatory.”). For
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this reason, the claim is dismissed as against Mitchell and Schwarzauer.
2.

Rutland Herald and Brattleboro Reformer

Brewer alleges that Rutland Herald and Brattleboro Reformer libeled
him by publishing “Hashim’s [p]ress [r]elease as cited,” which contained
false, injurious statements. (Am. Compl. ¶¶ 137-39.) As both defendants
point out, New York Civil Rights Law § 74 creates a privilege in an action
for libel where the publication in question fairly and truly reports on an
official proceeding. (Dkt. No. 35, Attach. 1 at 8-12; Dkt. No. 76, Attach. 1
at 10-12.) A review of the official press release from Brewer’s Vermont
arrest, (Dkt. No. 35, Attach. 3), and the publications at issue from each
newspaper, (Dkt. No. 35, Attach. 4; Dkt. No. 76, Attach. 2), of which the
court takes judicial notice,8 plainly reveal that Civil Rights Law § 74 shields
Rutland Herald and Brattleboro Reformer from liability. Indeed the content
of the publications is no more than a parroting of the press release, and
therefore is a “fair and true report” of the official press release. Brewer’s
responses, (Dkt. Nos. 48, 82), miss the point. He fails to make the apt
comparison for § 74 purposes and instead argues that the publications

8

The press release may be noticed as a matter of public record while the news articles
may be noticed as integral to the amended complaint.

13

themselves are inaccurate as opposed to analyzing whether they are a fair
and true report of the press release. For all of these reasons, Brewer has
failed to state a claim against these defendants for defamation.
3.

Google Employees

The sole contention as to the Google employees is that they “libeled
[Brewer] by falsely insinuating he committed [certain] crimes.” (Am. Compl.
¶ 140.) Before any consideration of the merits, the court must address the
Google employees’ argument that they are not amenable to suit for lack of
personal jurisdiction. (Dkt. No. 55, Attach. 1 at 4-7.)
Google employees assert that New York’s long-arm statute has not
been satisfied where, as here, the only basis for personal jurisdiction
comes from the fact that their employer has a New York office. (Id.) In
reply to Brewer’s unsupported contention that the Google employees have
traveled to New York for Google-related business or otherwise directed
activity at New York, (Dkt. No. 60 at 9-16),9 the Google employees further

9

Well after briefing on the Google employees’ motion was closed and Brewer had
requested and been denied an opportunity to file a sur-reply, (Dkt. Nos. 79, 80), he filed
something he labeled “Request for Judicial Notice,” (Dkt. No. 83). The Google employees
oppose the filing, claiming it is an attempt to circumvent the denial of Brewer’s request to file a
sur-reply, contains irrelevant material, and that the documents are not presented in admissible
form. (Dkt. No. 84.) The court concurs and accordingly excludes from its consideration any of
the content from Brewer’s request for judicial notice.

14

argue that work-related travel is insufficient to show that an individual
defendant is doing business within the forum state and that all of Brewer’s
allegations are speculative and unsupported, (Dkt. No. 61 at 2-4.)
The court is in agreement that the New York long-arm statute is not
satisfied here. See N.Y. C.P.L.R. 302(a). Brewer, who appears to rely
solely on the the “transacts any business within the state” prong of N.Y.
C.P.L.R. 302(a)(1), (Dkt. No. 60 at 7), has wholly failed to meet his burden
of affirmatively establishing that jurisdiction exists even when considering
the pleadings and any affirmations bearing on the issue (none of which
have been submitted by him10) in the light most favorable to him. See
Martinez v. Queens Cty. Dist. Attorney, 596 F. App’x 10, 12 (2d Cir. 2015).
Indeed, his allegations that the Google employees transacted any business
in New York are incompetent and there is a total failure by Brewer to show
how the claims asserted against them arise from those purported
transactions of business. See PDK Labs, Inc. v. Friedlander, 103 F.3d
1105, 1109 (2d Cir. 1997) (acknowledging requirement that the cause of
action must “arise[] out of the defendant’s New York transactions”). For

10

Brewer submitted an “Affidavit in Support” along with his response papers, but it is
devoid of any mention of facts that go to the jurisdictional issues. (Dkt. No. 60, Attach. 1.)

15

these reasons, the defamation claim against the Google employees, and
all other claims asserted against them, are dismissed for lack of personal
jurisdiction.
K.

Eleventh Cause: Nonconsensual Appropriation
Brewer’s next claim is asserted only as against Google employee

Ramaswamy. (Am. Compl. ¶ 142.) Because personal jurisdiction is
lacking as previously explained, this claim is dismissed. See supra Part
IV.J.3.
L.

Twelfth Cause: Deceptive Business Practices
The twelfth cause of action is asserted against Rutland Herald,

Brattleboro Reformer, and the Google employees.11 (Am. Compl. ¶¶ 14348.) Brewer alleges that the newspapers are liable for a violation of New
York General Business Law § 349 for failing to disclose certain facts to
their readers. (Id. ¶ 143.)
As argued by the newspapers, General Business Law § 349 does not
apply to noncommercial publications. (Dkt. No. 35, Attach. 1 at 12-14; Dkt.
No. 76, Attach. 1 at 14-15); see Lacoff v. Buena Vista Publ’g, Inc., 183

11

The claim is dismissed with respect to the Google employees for lack of personal
jurisdiction. See supra Part IV.J.3.

16

Misc. 2d 600, 608-09 (Sup. Ct. 2000). The articles published by both
Rutland Herald and Brattleboro Reformer, which have been judicially
noticed, are plainly noncommerical speech and as such are not subject to
General Business Law § 349. Accordingly, this claim is dismissed as
against Rutland Herald and Brattleboro Reformer.
M.

Thirteenth Cause: Involuntary Servitude
The final claim is asserted only as against the Google employees.

(Am. Compl. ¶¶ 149-50.) For reasons already explained, the claim is
subject to dismissal for lack of personal jurisdiction. See supra Part IV.J.3.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that all claims asserted against Hashim and LaBombard
are DISMISSED without prejudice for failure to timely serve; and it is
further
ORDERED that Mitchell and Schwarzauer’s motion to dismiss (Dkt.
No. 20) is GRANTED; and it is further
ORDERED that Brattleboro Reformer’s motion to dismiss (Dkt. No.
35) is GRANTED; and it is further
ORDERED that Komangar, Ramaswamy, Lider, and Wright’s motion
17

to dismiss (Dkt. No. 55) is GRANTED; and it is further
ORDERED that Rutland Herald’s motion to dismiss (Dkt. No. 76) is
GRANTED; and it is further
ORDERED that the amended complaint (Dkt. No. 19) is DISMISSED;
and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
August 18, 2016
Albany, New York

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