Cooksey v. Simmons et al

Filing 96

MEMORANDUM OPINION AND ORDER. The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the foregoing reasons, the defendant's motion to dis miss is granted and the Amended Complaint is dismissed with prejudice, the plaintiff's motions for a default judgment and sanctions are denied and the defendant's motion for sanctions is denied. The Clerk is directed to enter judgment dismi ssing this action and closing the case. The Clerk is also directed to close all pending motions. SO ORDERED. re: 78 MOTION for Default Judgment as to filed by Calvin Edward Cooksey, 49 MOTION to Dismiss the Amended Complaint filed by Global Grind Digital, 94 LETTER MOTION for Leave to File Sur-Reply addressed to Judge John G. Koeltl from Lisa M. Buckley dated July 13, 2016 filed by Global Grind Digital, 85 CROSS MOTION Pre-Filing Injunction re: 78 MOTION for Default Judgment filed by Global Grind Digital. (Signed by Judge John G. Koeltl on 9/19/2016) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
CALVIN EDWARD COOKSEY,
Plaintiff,

14-cv-7146 (JGK)

- against -

MEMORANDUM OPINION AND
ORDER

GLOBAL GRIND DIGITAL,
Defendant.
────────────────────────────────────
JOHN G. KOELTL, District Judge:

The plaintiff, Calvin Edward Cooksey, proceeding pro se,
brings this action against the defendant, Global Grind Digital
(“Global Grind”).1 Construing the plaintiff’s pleadings
liberally, the plaintiff seeks damages for alleged libel,
defamation, intentional infliction of emotional distress, and
intentional infliction of mental anguish and monetary sanctions
for alleged spoliation of evidence. The defendant has moved to
dismiss the claims. The Court has jurisdiction pursuant to 28
U.S.C. § 1332 based on diversity of citizenship.
On August 18, 2014, the plaintiff, proceeding pro se, filed
the Original Complaint against Global Grind; Russell Simmons,
Global Grind’s former CEO; Brittany Lewis, a writer employed by
Global Grind; and Interactive One, the company that acquired
Global Grind in late 2014. On November 5, 2014, Chief Judge
1

The defendant asserts that its actual name is GG Digital, Inc.
See Dkt. No. 53. In its papers, the defendant also refers to
itself as “Global Grind” and the Court will do so as well.
1

Preska dismissed the Original Complaint sua sponte for lack of
federal subject matter jurisdiction. The Court of Appeals for
the Second Circuit vacated the judgment of dismissal and
remanded the case to permit the plaintiff, a citizen of
California, to amend his Original Complaint to eliminate any
dispensable, nondiverse parties. See Cooksey v. Simmons, No. 151087 (2d Cir. July 6, 2015) Dkt. No. 35 (summary order) (citing
Jaser v. N.Y. Prop. Ins. Underwriting Ass’n, 815 F.2d 240, 243
(2d Cir. 1987)).
In September 2015, the plaintiff, again proceeding pro se,
filed an Amended Complaint only against Global Grind, alleging
that Global Grind is a citizen of New York and that the
plaintiff is a citizen of California.2 In the Amended Complaint
(the subject of the defendant’s motion to dismiss), the
plaintiff reiterated his claims from the Original Complaint, but
also added a series of allegations directed at the defendant’s
counsel related to spoliation of evidence. On the defendant’s
motion, and after the issue was fully briefed by both parties,

2

After the Court of Appeals remanded the case, Chief Judge
Preska entered an Order on July 31, 2015 requiring the plaintiff
to file any amended complaint within thirty (30) days. See Dkt.
No. 16. The plaintiff failed to do so. Instead, the plaintiff
opened a new action, 15-cv-7418, on September 18, 2015, by
filing an Amended Complaint. Ultimately, by Order dated
September 24, 2015, Chief Judge Preska directed that the Amended
Complaint in 15-cv-7418 be docketed as the Amended Complaint in
14-cv-7146, that 15-cv-7418 be closed, and that 14-cv-7146 be
reopened. See Dkt. No. 19.
2

the Court ordered the redaction of certain portions of the
Amended Complaint related to the defense counsel’s alleged
destruction of evidence because those allegations are frivolous.
See Dkt. No. 46.
Following that Order, the plaintiff engaged in a series of
non-dispositive filings. See, e.g., Dkt. No. 78 (accusing the
defendant of fraud because, although the motion to dismiss was
filed on ECF on February 16, 2016, the plaintiff only received a
paper courtesy copy on February 24, 2016); Dkt. No. 95
(criticizing the defendant for not calling a “request for an
extension” a “motion”). On April 21, 2016, the Court denied the
plaintiff’s motion for “automatic[] disqualification,” which the
Court construed as a motion for the Court to recuse itself. See
Dkt. No. 70.
It is unnecessary to review each of the plaintiff’s many
letters, memoranda and declarations filed with the Court.
Construed liberally, the plaintiff has moved for a default
judgment and the imposition of Rule 11 sanctions on the
defendant. See, e.g., Dkt. No. 79. Not to be outdone, the
defendant has cross-moved for the imposition of Rule 11
sanctions on the plaintiff to take the form of a pre-filing
litigation injunction. See Dkt. No. 85.
For following reasons, the defendant’s motion to dismiss is
granted and the Amended Complaint is dismissed with prejudice,
3

the plaintiff’s motions for a default judgment and sanctions are
denied, and the defendant’s motion for sanctions is denied.
I.
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
the allegations in the complaint are accepted as true, and all
reasonable inferences must be drawn in the plaintiff’s favor.
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.
2007); see also Yajaira Bezares C. v. The Donna Karan Co. Store
LLC, No. 13 CIV. 8560 (JGK), 2014 WL 2134600, at *1 (S.D.N.Y.
May 22, 2014). The Court’s function on a motion to dismiss is
“not to weigh the evidence that might be presented at a trial
but merely to determine whether the complaint itself is legally
sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.
1985). The Court should not dismiss the complaint if the
plaintiff has stated “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). While the Court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that a
court must accept as true all of the allegations contained in
the complaint is inapplicable to legal conclusions.” Id.
4

When faced with a pro se complaint, the Court must
“construe [the] complaint liberally and interpret it to raise
the strongest arguments that it suggests.” Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010) (citation and internal
quotation marks omitted). “Even in a pro se case, however, . . .
threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.
(citation omitted). Thus, although the Court is “obligated to
draw the most favorable inferences” that the complaint supports,
it “cannot invent factual allegations that [the plaintiff] has
not pled.” Id.
When presented with a motion to dismiss pursuant to Rule
12(b)(6), the Court may consider documents that are referenced
in the complaint, documents that the plaintiff relied on in
bringing suit and that are either in the plaintiff’s possession
or that the plaintiff knew of when bringing suit, or matters of
which judicial notice may be taken. See Taylor v. Vt. Dep’t of
Educ., 313 F.3d 768, 776 (2d Cir. 2002); see also Shabazz v.
Kailer, No. 15-CV-2798 (JGK), 2016 WL 4258134, at *1 (S.D.N.Y.
Aug. 12, 2016).
In amending the Original Complaint to remove the
nondiverse, dispensable parties, the plaintiff stripped many of
his allegations against the defendant of their factual content.
The plaintiff’s claims in his otherwise lengthy Amended
5

Complaint, and the arguments in his papers, rely on allegations
contained in, and exhibits attached to, the Original Complaint.3
See, e.g., Am. Compl. at 24 (referring to cease-and-desist
letter attached as Exhibit E to the Original Complaint). Because
the plaintiff is proceeding pro se, and appears to have intended
to supplement the Original Complaint with the Amended Complaint,
the Court can consider the relevant factual allegations in the
Original Complaint, and attached exhibits, for purposes of the
current motion. See e.g., Washington v. Westchester Cty. Dep’t
of Correction, No. 13 CIV. 5322 (KPF), 2015 WL 408941, at *1
(S.D.N.Y. Jan. 30, 2015); Fleming v. City of New York, No. 10
CIV. 3345 (AT), 2014 WL 6769618, at *3 (S.D.N.Y. Nov. 26, 2014);
Little v. City of New York, No. 13 CV. 3813 (JGK), 2014 WL
4783006, at *1 (S.D.N.Y. Sept. 25, 2014); Augustus v. Brookdale
Hosp. Med. Ctr., No. 13-CV-5374 (DLI), 2015 WL 5655709, at *1
n.2 (E.D.N.Y. Sept. 24, 2015); see also Poindexter v. EMI Record
Grp. Inc., No. 11 CIV. 559 (LTS), 2012 WL 1027639, at *2
(S.D.N.Y. Mar. 27, 2012) (“[E]ven though the Amended Complaint
is the operative pleading, the Court may still credit admissions
in the original complaint and attached exhibits.” (citation
omitted)).

3

Citations to the Original Complaint and the Amended Complaint
refer to the page numbers of the respective ECF documents.
6

II.
The allegations in the complaints are accepted as true for
the purposes of this motion to dismiss.
The plaintiff alleges that he is the biological father of
Frank Ocean, a famous award-winning singer-songwriter and
performer. Original Compl. at 5-6; Am. Compl. at 5-6. On
December 19, 2012, Mr. Ocean posted a “tweet” on the online
social-media networking service, Twitter, stating, “father wanna
sue me for a million. like i owe him child support. weak
individual bought me a swiss knife at 6 years old then dipped on
me.” Original Compl., Ex. D; see also Am. Compl. at 5. The
plaintiff claims that the tweet referred to him. Am. Compl. at
5.
The defendant runs a website largely devoted to celebrity
news. Original Compl. at 4-5; Am. Compl. at 16. On the same day
as Mr. Ocean’s tweet, that website published the following
article about the tweet entitled “Boo Hoo Sad Story – Black
American Story”:
Black American Dad Story! Frank Ocean Says His Father
Threatened To Sue Him (DETAILS) . . .“Boo hoo, sad
story, black American dad story.” . . . Drake’s rhymes
have never rang more true. Frank Ocean is experiencing
a classic celebrity deadbeat dad situation right now.
You know, the one where dad goes missing when their
child is young, child becomes famous, dad returns, but
only because he wants a handout? Yeah, that story.
Well, it seems like Frank Ocean is getting a big dose
of deadbeat dad reality. . . . According to the “Pink
Matter” singer, Frank’s father has threatened to sue
7

him for a million dollars, and we don’t know why.
Frank tweeted about his father stating: “father wanna
sue me for a million. like I owe him back child
support. weak individual bought me a swiss knife at
6yrs old then dipped on me.” Frank goes on to say: “'7
got his DNA though, maybe I inherited some of his
karma too." Frank has better things to worry about
than his scheming father. The Channel Orange singer is
nominated for six Grammys. Hopefully, his dad will
fall back and disappear like he did when Frank was
six. Original Compl. at 8 (emphasis in original); see
also
Am.
Compl.
at
5;
Dkt.
No.
50-1
(full
reproduction).
The plaintiff alleges that the descriptions “deadbeat dad”
and “scheming father” looking for “a handout” are libel per se.
Am. Compl. at 6, 16-17. He alleges that “deadbeat dad” is a
commonly-known pejorative term of art used to describe male
parents “who do not fulfill their parental responsibilities,
especially when they evade court-ordered child support
obligations.” Am. Compl. at 6; see also Original Compl. at 23.
He also alleges that to call him a deadbeat dad is to accuse him
of committing federal and state crimes related to the nonpayment
of child support. Am. Compl. at 12; see also Original Compl. at
20.
The plaintiff claims that he is not a deadbeat dad for two
reasons. First, no court or state agency has ever ordered him to
pay child support. See Am. Compl. at 11. Second, while he spent
some time away from Mr. Ocean when Mr. Ocean was a child, he had
legitimate reasons for doing so. See Original Compl. at 3, 14;
Am. Compl. at 10-11.
8

The plaintiff also alleges that the term “scheming father”
is false because Mr. Ocean deleted his tweet a few minutes after
posting it. See Original Compl. at 7; Am. Compl. at 7. In
addition, he alleges that Mr. Ocean’s mother “brainwashed” Mr.
Ocean so that Mr. Ocean is negatively disposed toward the
plaintiff. Am. Compl. at 10; see also Original Compl. at 6, 1415.
The plaintiff alleges that the defendant intentionally and
maliciously lied about his status as a deadbeat dad and scheming
father to harm his reputation and to draw readers --- especially
fans of Mr. Ocean and the Grammy Award Show --- to the website.
See Original Compl. at 17-19, 24; Am. Compl. at 6, 16. He also
alleges that the defendant did not investigate the truthfulness
of its statements, including by contacting state agencies to
learn whether the plaintiff had missed child support payments or
by consulting online databases like “CrappyDads.com” that
contain lists of deadbeat dads, none of which reference the
plaintiff. Am. Compl. at 13-14; see also Original Compl. at 1517, 28.
In addition to being libel per se, the plaintiff claims
that the defamatory statements harmed his ability to sell movie
scripts, including one about his role as a witness in a criminal
case. See Am. Compl. at 11-12; 27-29. The harm extends to
related past and future business ventures in the film and music
9

industries. Am. Compl. at 11-12; see also Original Compl. at 2930. The plaintiff also claims that he has suffered mental harm
and been prescribed anxiety medications. Am. Compl. at 27.
On December 12, 2013, the plaintiff discovered that the
defendant had removed the offending article from its website.
Original Compl. at 12; see also Am. Compl. at 23-25; Am. Compl.,
Ex. I. The plaintiff alleges that this constitutes intentional
destruction of evidence designed to prevent any court from
reviewing the article and accordingly adjudicating his claims.
See Original Compl. at 12-13; Am. Compl. at 23-25.
The plaintiff seeks $142 million in monetary damages. Am.
Compl. at 25.
III.
A.
The defendant argues that the plaintiff’s claims for libel,
defamation, intentional infliction of emotional distress and
intentional infliction of mental anguish are time-barred. The
plaintiff essentially concedes that his claims are time-barred,
see, e.g., Original Compl. at 29-30; Dkt. No. 79 at 15, but
contends either that the defendant should be equitably estopped
from raising the statute of limitations defense due to its
deceptive conduct or, alternatively, that the statute of
limitations should be tolled by reason of the plaintiff’s own
insanity. The initial issue is whether the statute of
10

limitations, along with any relevant tolling provisions, of New
York or California applies in this case.
A federal court sitting in diversity applies the forum
state’s statute of limitations provisions as well as any
provisions that govern the tolling of the statute of
limitations. Diffley v. Allied–Signal, Inc., 921 F.2d 421, 423
(2d Cir. 1990); see also Vincent v. Money Store, 915 F. Supp. 2d
553, 562 (S.D.N.Y. 2013). In diversity cases in New York,
federal courts apply New York’s borrowing statute, N.Y. C.P.L.R.
§ 202. Stuart v. Am. Cyanamid Co., 158 F.3d 622, 627 (2d Cir.
1998).
The burden of proving that a particular statute of
limitation has expired falls on the defendant. N.Y. State Elec.
& Gas Corp. v. FirstEnergy Corp., 766 F.3d 212, 230 (2d Cir.
2014). However, the plaintiff bears the burden of proving that a
particular statute of limitation has been tolled, including for
equitable reasons or by reason of insanity. Doyon v. Bascom, 326
N.Y.S.2d 896, 898 (App. Div. 1971); see also Katz v. Goodyear
Tire & Rubber Co., 737 F.2d 238, 243 n.4 (2d Cir. 1984).
Because the plaintiff is a resident of California, N.Y.
C.P.L.R. § 202 requires that his action be timely-filed under
the shorter time limitation period of California or New York,
including all relevant tolling provisions. Stuart, 158 F.3d at
627; see also Vincent, 915 F. Supp. 2d at 562. The Court will
11

apply New York law given that New York and California both share
a one-year statute of limitations for claims for defamation,
including for libel and intentional torts based on defamation.
Compare N.Y. C.P.L.R. § 215(3), with Cal. Civ. Proc. Code §
340(3); see also Four Finger Art Factory, Inc. v. Dinicola, No.
99 CIV. 1259 (JGK), 2000 WL 145466, at *6 (S.D.N.Y. Feb. 9,
2000); Amadasu v. Bronx Lebanon Hosp. Ctr., No. 03 CIV.6450
(LAK), 2005 WL 121746, at *8 (S.D.N.Y. Jan. 21, 2005), report
and recommendation adopted sub nom. Amadasu v. Rosenberg, No. 03
CIV.6450 (LAK), 2005 WL 954916 (S.D.N.Y. Apr. 26, 2005), aff’d,
225 F. App’x 32 (2d Cir. 2007). Indeed, under the law of either
State, the plaintiff’s claims are time-barred.
It is settled that claims for libel must be filed within
one year of the first publication of the allegedly defamatory
statement, regardless of when the plaintiff actually discovered
the publication. Nussenzweig v. diCorcia, 878 N.E.2d 589, 590
(N.Y. 2007); see also Yajaira Bezares, 2014 WL 2134600, at *3.
“Under New York’s single publication rule, it is irrelevant, for
statute of limitation purposes, that a story remains online
after its publication.” Biro v. Conde Nast, 963 F. Supp. 2d 255,
267 (S.D.N.Y. 2013), aff’d, 807 F.3d 541 (2d Cir. 2015), and
aff’d, 622 F. App’x 67 (2d Cir. 2015) (summary order); see also
Young v. Suffolk County, 705 F. Supp. 2d 183, 212 (E.D.N.Y.
2010).
12

The defendant published the alleged defamatory statements
on December 19, 2012. The plaintiff filed the Original Complaint
on August 18, 2014, more than one year after first publication.4
All of the plaintiff’s claims are therefore barred by the
statute of limitations.
The plaintiff argues in papers filed on May 23, 2016, that
the defendant should be equitably estopped from raising the
statute of limitations defense, see Dkt. No. 79, and, later, in
papers filed on July 1, 2016, the plaintiff argues that the
statute of limitations should be tolled by reason of the
plaintiff’s insanity. See Dkt. Nos. 91-92. The Court had ordered
the plaintiff to respond to the points raised in the defendant’s
motion to dismiss filed in February 2016 by May 9, 2016. See
Dkt. No. 70. This was an extension of the plaintiff’s time to
respond and the Court warned the plaintiff on multiple occasions
that “if [he] fail[ed] to respond to the motion [to dismiss],
the Court [would] decide the motion on the papers already
submitted.” Dkt. No. 70; see also Dkt. No. 72. Therefore, the
plaintiff forfeited the arguments when he failed to comply with
4

While the plaintiff filed his Amended Complaint on September
24, 2015, after the time set by Chief Judge Preska to file an
Amended Complaint, the Court accepted the Amended Complaint. See
note 2, supra. The Amended Complaint relates back to the filing
of the Original Complaint. See Fed. R. Civ. P. 15(c);
Palatkevich v. Choupak, 152 F. Supp. 3d 201, 225 & n.18
(S.D.N.Y. 2016) (“Where a state claim is at issue for purposes
of relation back, FRCP 15(c)(1) requires that a Court apply the
more permissive standard as between state and federal law.”).
13

the Court’s deadline. See Peterson v. Home Depot U.S.A., Inc.,
No. 11 CIV. 5747 (ER), 2014 WL 1355622, at *4 (S.D.N.Y. Apr. 4,
2014).
In any event, the plaintiff’s papers make clear that the
defendant should not be equitably estopped and that the statute
of limitations should not be tolled by reason of the plaintiff’s
alleged insanity. First, “[u]nder New York law, the doctrines of
equitable tolling or equitable estoppel may be invoked to defeat
a statute of limitations defense when the plaintiff was induced
by fraud, misrepresentations or deception to refrain from filing
a timely action.” Abbas v. Dixon, 480 F.3d 636, 642 (2d Cir.
2007) (internal quotation marks omitted). “Due diligence on the
part of the plaintiff in bringing an action . . . is an
essential element of equitable relief” and the plaintiff “bears
the burden of showing that the action was brought within a
reasonable period of time after the facts giving rise to the
equitable tolling or equitable estoppel claim have ceased to be
operational.” Id. (citation, internal quotation marks and
alteration omitted).
The plaintiff argues that the defendant “tricked” him into
filing his claims late. On February 18, 2013, the plaintiff
alleges that he sent the defendant a cease-and-desist letter in
which he identified himself as “James Jordan . . . FRANK
OCEAN[’]S FATHER” and demanded that the defendant remove the
14

article from its website within 30 days or else face legal
action. Original Compl., Ex. E (emphasis in original); see also
Original Compl. at 9; Am. Compl. at 24. After the defendant did
not respond, on November 19, 2013, the plaintiff sent the
defendant a notice of his intent to file a lawsuit within 30
days, threatening to seek damages of $50 million. Original
Compl. at 9; see also Am. Compl. at 23-24. The plaintiff admits
that he knew at the time that he only had a month before the
one-year statute of limitations ran out: hence he sent the 30day notice of intent to sue a month prior to the time-bar. See
Original Compl. at 9; Am. Compl. at 23-24; Am. Compl., Ex. I;
Dkt. No. 79 at 15.
On November 26, 2013, apparently in response to the
plaintiff’s notice of intent to sue, the plaintiff alleges that
he received an insurance claims letter from a third party
purporting to be the defendant’s insurance company. Original
Compl., Ex. F; see also Original Compl. at 9; Am. Compl. at 24.
The letter informed the plaintiff that “all future
correspondence” related to his claims “should be directed to the
[insurance company]” as it worked with him to “resolve” the
matter. Original Compl., Ex. F.
On or around December 4, 2013, the plaintiff alleges that
Mr. Simmons, the defendant’s CEO at the time, called him to
discuss settling his claim. Original Compl. at 10-11; see also
15

Am. Compl., Ex. F. The plaintiff alleges that Mr. Simmons
offered him $250,000 as a settlement, an offer that the
plaintiff pointedly rejected as unfair because the plaintiff
estimated that his claim was worth at least $25 million.
Original Compl. at 11-12. Mr. Simmons allegedly did not make a
counteroffer, but stated his hope that the parties would work
out a fair settlement agreement. Original Compl. at 11-12. Mr.
Simmons allegedly promised to call the plaintiff back in a few
minutes but never did. Original Compl. at 11-12. Around that
time, the plaintiff claims that he had another phone
conversation with the defendant’s counsel where he refused to
negotiate with anyone aside from Mr. Simmons and abruptly ended
the call without agreeing to any settlement. Am. Compl., Exs. I,
K.
On December 12, 2013, a week before the expiration of the
statute of limitations, the plaintiff discovered that the
article had been removed from the website, leading him to
believe something was awry. See Original Compl. at 12-13; Am.
Compl. at 23-25; Am. Compl., Ex. I. The plaintiff argues that
because he had tremendous respect for Mr. Simmons, and thought
the claim would be resolved, he let the time-bar lapse. See Am.
Compl., Ex. L; see also Dkt. No. 79 at 15-17. On or around
January 6, 2013, the plaintiff called the defendant and reached
an employee who refused to discuss any settlement with him and
16

advised him to direct further communications to the insurance
company. Original Compl. at 13; see also Dkt. No. 40 at 12-13.
There is no dispute that the plaintiff failed to file his
lawsuit by December 19, 2013, as required by the statute of
limitations, and that he was aware of that statute of
limitations at the time. Even construing the plaintiff’s
arguments generously, they do not support a claim of equitable
estoppel. The plaintiff’s recitation of events at best alleges
his “general expectation that the matter would be settled,”
which is insufficient for a finding of equitable estoppel.
Bulgartabac Holding AD v. Republic of Iraq, No. 08 CV 06502
(RJH), 2009 WL 3113252, at *10 (S.D.N.Y. Sept. 30, 2009)
(collecting cases); see also Grosz v. Museum of Modern Art, 403
F. App’x 575, 578 (2d Cir. 2010) (summary order) (“The mere
existence of settlement negotiations is insufficient to justify
an estoppel claim.”). While the plaintiff argues that he
believed that the matter would be resolved favorably due to
communications with the insurance company and the defendant, a
hope augmented by his respect for Mr. Simmons, he includes no
allegation that any party misrepresented any facts. The
insurance company’s letter was merely an invitation to negotiate
and did not include any specific terms, such as settlement
figures or a tolling provision. See Original Compl., Ex. F.
Subsequent to the letter, the plaintiff alleges that he rejected
17

a purported settlement offer from the defendant as conveyed by
Mr. Simmons. The two sides were orders of magnitude apart --$250,000 versus at least $25 million. Therefore, by the
expiration of the time-bar, the plaintiff’s allegations
demonstrate that he knew that he had no settlement agreement in
place, and had in fact failed to come even close to an agreement
on any settlement terms not because the defendant had made any
misrepresentations to him, but because he thought that the
defendant’s first and apparently only settlement offer was
grossly inadequate. Nevertheless, he took no legal action.
Thereafter, on January 6, 2014, after the statute of limitations
had expired, the plaintiff was again told to speak to the
insurance company. But the plaintiff still did not promptly file
his lawsuit.
Moreover, the plaintiff’s argument for equitable estoppel
is foreclosed because the plaintiff did not diligently pursue
his claims. See Abbas, 480 F.3d at 642. The plaintiff’s
allegations do not justify his more than eight-month delay in
filing his complaint. See Gun Hill Rd. Serv. Station, Inc. v.
ExxonMobil Oil Corp., No. 08 CIV. 7956 (PKC), 2013 WL 1804493,
at *7 (S.D.N.Y. Apr. 18, 2013) (finding unreasonable 11 month
delay in filing lawsuit due to settlement negotiations during
which time one-year statute of limitations expired). Crediting
the plaintiff’s allegations, the failure is particularly
18

unjustifiable given his discovery that the defendant had removed
the article from the website a week prior to the time-bar, which
he has alleged was the willful spoliation of evidence. See Am.
Compl. Ex. I. The removal was enough to prompt the plaintiff to
check on the status of the settlement negotiations with the
defendant in early January and his conversation further
reinforced his awareness that there was no settlement agreement
in place between the parties. The plaintiff was thus on notice
that there was no justification for further delay. Although he
was aware of the one-year statute of limitations, the plaintiff
took no action for more than eight months until he brought his
Original Complaint on August 18, 2014. This was not due
diligence. Accordingly, equitable estoppel does not apply to
avoid the time-bar. See Grosz v. Museum of Modern Art, 772 F.
Supp. 2d 473, 490 (S.D.N.Y.) (“[A] plaintiff must do more than
declare that equitable tolling is appropriate in order to
establish his right to such relief.” (citing Boos v. Runyon, 201
F.3d 178 (2d Cir. 2000)), aff’d, 403 F. App’x 575 (2d Cir. 2010)
(summary order).
Second, as to tolling by reason of insanity, N.Y. C.P.L.R.
§ 208 governs. See Feller v. Earth Leasing, LLC, 28 N.Y.S.3d
160, 160 (App. Div. 2016). In New York, the toll for insanity is
narrowly construed to apply to “only those individuals who are
unable to protect their legal rights because of an over-all
19

inability to function in society.” La Russo v. St. George’s
Univ. Sch. of Med., 747 F.3d 90, 99 (2d Cir. 2014) (quoting
McCarthy v. Volkswagen of Am., Inc., 435 N.E.2d 1072, 1075 (N.Y.
1982)). The plaintiff has no plausible claim that he was
incompetent to protect his legal rights at the time his claim
accrued. To the contrary, the plaintiff has demonstrated that he
understood his legal rights throughout, even sending the
defendant a cease-and-desist letter and a notice of intent to
sue prior to the expiration of the time-bar.
Finally, the plaintiff requested an evidentiary hearing,
but no such hearing is required. The extensive record submitted
by the plaintiff leaves no doubt that the claims are barred by
the statute of limitations. See, e.g., id. at 100; Gay v.
Carlson, 60 F.3d 83, 90 (2d Cir. 1995). The plaintiff filed a
sprawling Amended Complaint with many exhibits, which the Court
has considered in conjunction with the allegations and exhibits
from the Original Complaint. The plaintiff’s claims are
unquestionably time-barred and his own allegations refute his
arguments for equitable estoppel and tolling by reason of his
own alleged insanity.
Accordingly, the plaintiff’s claims for libel, defamation,
intentional infliction of emotional distress and intentional
infliction of mental anguish are time-barred. Because this is an
incurable defect, the claims are dismissed with prejudice.
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B.
As the Court noted in its Order redacting certain portions
of the Amended Complaint, the plaintiff’s request in the Amended
Complaint for sanctions due to spoliation of evidence is without
merit. See Dkt. No. 46. The defendant removed from its website
the offending article but there is no support for an inference
that the defendant destroyed the article or that the plaintiff
was harmed in any way. See, e.g., SAT Int’l Corp. v. Great White
Fleet (US) Ltd., No. 03 CIV. 7481 (KNF), 2006 WL 661042, at *13
(S.D.N.Y. Mar. 16, 2006); John St. Leasehold, LLC v. Capital
Mgmt. Res., L.P., 154 F. Supp. 2d 527, 541 (S.D.N.Y. 2001),
aff’d, 283 F.3d 73 (2d Cir. 2002). The plaintiff and the
defendant have both reproduced the article in their respective
papers for the Court’s review. See Dkt. No. 50-1. It is
frivolous to suggest that, when accused of libel, a publisher
must continue to publish the allegedly libelous publication or
else risk sanctions for removing it from a website
notwithstanding its preservation in a screenshot. Accordingly,
the plaintiff’s request is denied.
III.
Construing the plaintiff’s post-Amended Complaint filings
liberally, the plaintiff has moved for a default judgment and
the imposition of Rule 11 sanctions. Both motions are baseless.
The defendant has zealously defended the case from its
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inception, most recently asking the Court for permission to file
a sur-reply in response to the plaintiff’s belated “reply.” See
Dkt. No. 94. Accordingly, the motion for a default judgment is
denied. See Pushkin v. Nussbaum, No. 10 CIV. 9212 (JGK), 2011 WL
4063493, at *1 (S.D.N.Y. Aug. 12, 2011).
Likewise, the Court has reviewed the plaintiff’s request
for sanctions and, in its discretion, determined that it is
without merit. See Karla Otto, Inc. v. Rivoli Creation, S.A.S.,
No. 13 CIV. 0483 (JGK), 2014 WL 6910546, at *1 (S.D.N.Y. Dec. 5,
2014). None of the defendant’s acts have unfairly prejudiced the
plaintiff. Moreover, the Court notes that it has granted the
plaintiff time extensions to respond to any argument that the
defendant raised. See Dkt. Nos. 35, 70. Accordingly, the
plaintiff’s motion for sanctions is denied as well.
IV.
The defendant has cross-moved for the imposition of Rule 11
sanctions, specifically, a pre-filing litigation injunction.
The imposition of Rule 11 sanctions is discretionary, and
should be reserved for extreme cases. See Kremedy Fleming v.
Hymes-Esposito, No. 12 CIV. 1154 (JPO), 2013 WL 1285431, at *11
(S.D.N.Y. Mar. 29, 2013). While the Court has discretion to
impose sanctions on a pro se litigant, a pro se litigant is
typically held to a more lenient standard than a trained
attorney. Kilkenny v. Greenberg Traurig, LLP, No. 05 CIV. 6578
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(NRB), 2006 WL 1096830, at *5 (S.D.N.Y. Apr. 26, 2006). A prefiling injunction is a “drastic measure” and should only be
imposed for more abusive litigation than the plaintiff has thus
far exhibited. See Sorenson v. Wolfson, No. 10-CV-4596 (JGK),
2016 WL 1089386, at *3 (S.D.N.Y. Mar. 21, 2016).
The plaintiff’s conduct and somewhat procedurally suspect
filings do not rise to the level of warranting a pre-filing
injunction. The defendant argues that the plaintiff sought to
turn perceived slights and imagined technical mistakes by the
defendant into allegations of conspiratorial criminal conduct
and ethical violations that were used in an effort to extract a
settlement from the defendant.
However, this is the plaintiff’s first litigation against
the defendant. The litigation is still at an early phase and the
parties conducted no discovery. By contrast, the cases in which
courts have imposed a pre-filing injunction involve litigants
who have been warned repeatedly not to pursue redundant and
frivolous litigation, typically against the same or similar
parties. See, e.g., Malley v. N.Y.C. Bd. of Educ., 112 F.3d 69,
69 (2d Cir. 1997) (per curiam); Safir v. U.S. Lines, Inc., 792
F.2d 19, 24-25 (2d Cir. 1986); In re Martin–Trigona, 737 F.2d
1254, 1261 (2d Cir. 1984); Neshewat v. Salem, 365 F. Supp. 2d
508, 529 (S.D.N.Y. 2005), aff’d, 194 F. App’x 24 (2d Cir. 2006)
(summary order); Raffe v. John Doe, 619 F. Supp. 891, 898
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(S.D.N.Y. 1985). The plaintiff has not approached the repetitive
litigious conduct that would warrant a pre-filing injunction.
Accordingly, the defendant’s motion is denied.
CONCLUSION
The Court has considered all of the arguments raised by the
parties. To the extent not specifically addressed, the arguments
are either moot or without merit. For the foregoing reasons, the
defendant’s motion to dismiss is granted and the Amended
Complaint is dismissed with prejudice, the plaintiff’s motions
for a default judgment and sanctions are denied and the
defendant’s motion for sanctions is denied. The Clerk is
directed to enter judgment dismissing this action and closing
the case. The Clerk is also directed to close all pending
motions.
SO ORDERED.
Dated:

New York, New York
September 19, 2016

_____________/s/______________
John G. Koeltl
United States District Judge

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