Brady v. Associated Press Telecom et al

Filing 77

MEMORANDUM DECISION AND ORDER. Having reviewed Magistrate Judge Fox's Report and Recommendation, this Court overrules Plaintiff's objections and adopts the Report in full. Defendants' motions to dismiss are GRANTED with prejudice. Plai ntiff is denied leave to amend, as amendment would be futile. The Clerk of the Court is directed to close the motions at ECF Nos. 9, 19, and 22. So ordered. Re 62 Report and Recommendation, 22 Motion to Dismiss filed by NBC News New York, 9 Motion to Dismiss filed by The New York Times Company, 19 Motion to Dismiss filed by The Wall Street Journal, New York Daily News, Newsday Media Group, WCBS-TV New York, Associated Press Telecom. New York Daily News, Newsday Media Group, The New York Times Company, The Wall Street Journal, WCBS-TV New York, Associated Press Telecom and NBC News New York terminated. (Signed by Judge George B. Daniels on 1/11/2017) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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JAMES H. BRADY,

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Plaintiff,
-againstAS SOCIA TED PRESS TELECOM; NBC NEWS
NEW YORK; WCBS-TV NEW YORK; THE
NEW YORK TIMES COMPANY; THE NEW
YORK POST; NEW YORK DAILY NEWS; THE
WALL STREET JOURNAL; NEWSDA Y
MEDIA GROUP; and JOHN DOES 1-50,

MEMORANDUM DECISION
AND ORDER
16 Civ. 2693 (GBD) (KNF)

Defendants.
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GEORGE B. DANIELS, United States District Judge:
Plaintiff James Brady initially filed this action against Associated Press Telecom, NBC
News New York, WCBS-TV New York, The New York Times Company ("The Times"), The
New York Post, The New York Daily News, The Wall Street Journal, and Newsday Media Group.
(Compl., ECF No. 1.) Plaintiff seeks "a mandatory injunction" against Defendants because they
have allegedly "violated their duty to the public" by keeping "the largest public corruption scandal
in US history out of the news," (id.

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1), and "$100 million in punitive damages to send the right

message to named media Defendants" for their alleged "depraved indifference." (Id.

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62.)

This matter was referred to Magistrate Judge Kevin N. Fox on April 18, 2016.
(ECF No. 3.)

Before this Court is Magistrate Judge Fox's Report and Recommendation,

("Report," ECF No. 62), recommending that this Court grant with prejudice the motions to dismiss
for failure to state a claim pursuant to Rule 12(b)(6) made by 1) The Times, (ECF No. 9); 2) the
Associated Press, CBS Broadcasting Inc., Daily News, L.P., Dow Jones & Company, Inc.
(erroneously sued as "The Wall Street Journal"), and Newsday LLC (collectively "AP Group
Defendants," ECF No. 19); and 3) NBCUniversal Media LLC, erroneously sued as NBC News

New York ("NBC," ECF No. 22). 1 (Id. at 12.) In his Report, Magistrate Judge Fox advised the
parties that failure to file timely objections to the Report would constitute a waiver of those
objections on appeal. (Id. at 12-13); see also 28 U.S.C. § 636(b)(l)(C); Fed. R. Civ. P. 72(b).
Plaintiff filed timely objections to the Report. 2 (See Pl.'s Obj. to Report ("Pl.'s Obj."), ECF No.
65) Defendants filed timely responses to Plaintiffs objections. 3 (The Times' Resp. to Pl's. Obj.
("NYT Resp."), ECF No. 70; AP Defs.' Resp. to Pl.'s Obj. ("AP Resp."), ECF No. 71; NBC's
Resp. to Pl. 's Objs. ("NBC Resp"), ECF No. 67.)
This Court overrules Plaintiffs objections and adopts Magistrate Judge Fox's
recommendation. The motions to dismiss for failure to state a claim by The Times, the AP Group
Defendants, and NBC are GRANTED because Plaintiffs Complaint has failed to state a claim
upon which relief can be granted and Plaintiffs requested relief is barred by the First Amendment.

1

The relevant procedural and factual background is set forth in greater detail in the Report and is
incorporated herein.
2

Plaintiff objects wholesale to the Report because Magistrate Judge Fox did not schedule an oral argument
on this motion, claiming that when Plaintiff previously had oral arguments before the State Court on the
same issues, Plaintiff "crushed the multiple attorneys from the multiple international law firms that
represented the defendants." (Pl.'s Obj., at 1-3.) This objection runs squarely into well-settled case law
that, as the Second Circuit "noted over thirty years ago, [m]otions may be decided wholly on the papers,
and usually are." Greene v. WCI Holdings Corp., 136 F.3d 313, 315-16 (2d Cir. 1998) (quoting World
Brilliance Corp. v. Bethlehem Steel Co., 342 F.2d 362, 366 (2d Cir. 1965) (internal quotation marks
omitted)).
Plaintiff appears to also object to the Report on the ground that Magistrate Judge Fox has refused
to address Defendants' purported "fraud upon the court by officers of the court and violations of Judiciary
Law 487." (Pl. 's Obj., at 9.) Plaintiff baldly claims that the attorneys for Defendants "perjured themselves,"
"committed violations of Judiciary Law 487," "slandered plaintiff," and "presented false instruments." (Id.)
3

On October 24, 2016, Plaintiff submitted a letter to this Court arguing that because Defendants did not
respond to Plaintiffs October 13, 2016 objections within fourteen days of the entry of the Report on the
docket (October 4, 2016), any responses would be untimely. Contrary to Plaintiffs assertion, Federal Rule
of Civil Procedure 72(b) plainly provides that a "party may respond to another party's objections within
fourteen days of being served with a copy." Fed. R. Civ. P. 72(b).

2

I. LEGAL STANDARD
This Court may accept, reject or modify, in whole or m part, the findings and
recommendations set forth within the Report. See 28 U.S.C. § 636(b)(l)(C). When no objections
to a Report are made, the Court may adopt the Report if "there is no clear error on the face of the
record." Adee Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005) (citation
omitted).
When there are objections to the Report, this Court must make a de nova determination as
to the objected-to portions of the Report. 28 U.S.C. § 636(b)(l)(C); see also Rivera v. Barnhart,
423 F. Supp. 2d 271, 273 (S.D.N.Y. 2006). The district judge may also receive further evidence
or recommit the matter to the magistrate judge with instructions. See Fed. R. Civ. P. 72 (b ); 28
U.S.C. § 636(b )(1 )(C). The Court need not conduct a de nova hearing on the matter, as it is
sufficient that this Court "arrive at its own, independent conclusions" regarding those portions to
which objections were made. Nelson v. Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985)
(quoting Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983)); see United States v. Raddatz,
447 U.S. 667, 675-76 (1980).
The pleadings of parties appearing pro se are generally accorded leniency and should be
construed "to raise the strongest arguments that they suggest." See Belpasso v. Port Auth. ofN. Y
& NJ, 400 F. App'x 600, 601 (2d Cir. 2010) (quoting McPherson v. Coombe, 174 F.3d 276, 280

(2d Cir. 1999)). However, even a prose party's objections must be specific and clearly aimed at
particular findings in the Report, such that no party is allowed a "second bite at the apple" by
merely re litigating a prior argument. Pinkney v. Progressive Home Health Servs., No. 06 Civ.
5023, 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008) (internal citation and quotation marks
omitted). Furthermore, where a litigant's objections are conclusory, repetitious, or perfunctory,

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the standard of review is clear error. McDonaugh v. Astrue, 672 F. Supp. 2d 542, 547-48 (S.D.N.Y.
2009).
II. AIDING AND ABETTING CONSPIRACY TO DEFRAUD AND CONSPIRACY
AGAINST RIGHTS CLAIM

Plaintiff objects to the Report's finding that 1) Plaintiff failed to allege any material
misrepresentation of a fact by any media defendant, (Report, at 9), and that 2) no private cause of
action for a "conspiracy against rights" lies pursuant to 18 U.S.C. § 241, (id.). (Pl.'s Obj., at 3, 5,
9.) Without citing any relevant legal authority and relying only upon his own assertions, Plaintiff
claims that "the August 15, 2016 deposition testimony of Arthur Greene did prove the existence
of fraud by over 24 state justices, Governor Cuomo, Attorney General Eric Schneiderman,
Manhattan District Attorney Cyrus Vance, the Media Defendants[,] and their attorneys." (Id. at
5.) According to Plaintiff, "[t]he role of the media was to hide the scandal from the public, and
then, ... deny any wrongdoing" by government officials. (Id. at 6.)
Plaintiff's objections have no legal basis. First, as the Report properly states, "[t]here is no
substantive tort of conspiracy. Hence, there are no separable elements of a cause of action of
conspiracy to allege." (Report, at 8 (citing Goldstein v. Siegel, 19 A.D.2d 489, 492 (App. Div.
1963).)

Furthermore, Plaintiff has not sufficiently, nor with any particularity, alleged any

fraudulent predicate actions or misstatements by Defendants on which to base his conspiracy to
defraud claim that could meet the heightened pleading standard set forth by Federal Rule of Civil
Procedure 9(b). See Fed. R. Civ. P. 9(b); (Report, at 9).
As to Plaintiff's conspiracy "against rights" claim, Plaintiff may not bring a civil claim
under a criminal statute where courts have found no private cause of action lies. See, e.g., Mariani
v. Hunter, 462 F. Supp. 353, 355 (S.D.N .Y. l 978)("In addition, 18 U.S.C. §§ 241, 242 are criminal

statutes, which do not create private rights of action for their violation.")
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Accordingly, the Report properly found that Plaintiffs has failed to allege conspiracy
claims based on either underlying fraudulent behavior or deprivation of rights by Defendants. (Id.
at 9.)

Ill. FIFTH AND FOURTEENTH AMENDMENT CLAIM
Plaintiff does not explicitly object to the Report's finding that Plaintiffs § 1983 claim
suffers from a fatal lack of allegations that Defendants in this action acted "under the color of state
law." (Report, at 9.) Accordingly, the Report correctly held that Plaintiff failed to state a claim
under § 1983.

IV. NEGLIGENCE CLAIMS 4
Plaintiff does not explicitly object to the Report's findings on negligent misrepresentations
by Defendants to Plaintiff. The Report held that a successful negligence claim must allege a duty
of care on behalf of a defendant to a plaintiff. (Report, at 8 (citing Greenberg, Trager & Herbst,

LLP v. HSBC Bank USA, 17 N.Y.3d 565, 576 (2001)).) The Report then found that, under New
York law, Defendants do not have a legally-binding duty to the Plaintiff "to prevent any part of
the government from deceiving the people." (Id. at 11.)
Because Plaintiff failed to allege any duty-a necessary element of any negligence cause
of action-the Report properly found that his negligence claims fails. See Greenberg, 17 N.Y.3d
at 576.

This Court notes that Plaintiffs purported fourth and fifth causes of action, gross negligence and willful
misconduct, are not separate causes of action, but rather a standard of care under New York common law
that goes to the undertaking of a defendant's duty. See, e.g., Greenapple v. Capital One, NA., 939 N.Y.S.2d
3 51, 3 53 (2012) ("[Notwithstanding that the purchase agreement between plaintiff and Goldberg premises
Goldberg's liability only upon demonstration of gross negligence or willful misconduct, the complaint
nevertheless states a cause of action for breach of fiduciary duty under this diminished standard of
care .... "); Food Pageant, Inc. v. Consol. Edison Co., 54 N.Y.2d 167, 172 (1981) ("[G]ross negligence
had been termed as the failure to exercise even slight care .... ").
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V. FIRST AMENDMENT BAR

Finally, the Report held that granting the equitable remedy of a mandatory injunction
"compelling defendants to publish what they prefer to withhold would run afoul of [D]efendants'
First Amendment rights." (Report, at 12.)
Plaintiff objects with the legally unsupported assertions that "the Media Defendants
colluded in a terrible crime," that "the first amendment [sic] was not intended to permit the press
to cover up the criminal actions of the judicial and law enforcement branches of government[,]"
and that"[ c]ompelling the NEWS AGENCIES to be truthful to the public is not a violation of the
First Amendment." (Pl.'s Obj., at 11.)
As the United States Supreme Court has noted,
The choice of material to go into a newspaper, and the decisions made as to
limitations on the size and content of the paper, and treatment of public issues and
public officials-whether fair or unfair-constitute the exercise of editorial control
and judgment. It has yet to be demonstrated how governmental regulation of this
crucial process can be exercised consistent with First Amendment guarantees of a
free press as they have evolved to this time.
Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258-59 (1974). Such direction by this Court or

any governmental entity as requested by Plaintiff would be exactly the type of interference against
which the First Amendment guarantees the freedom of the press and freedom of speech. Therefore,
the Report properly held that the relief Plaintiff seeks is barred by the First Amendment. (See
Report, at 12 (quoting Passaic Daily News v. N.L.R.B., 736 F.2d 1543, 1557 (D.C. Cir. 1984)
(internal citations omitted) ("The Supreme Court has implied consistently that newspapers have
absolute discretion to determine the contents of their newspapers.")).)
VI. CONCLUSION

Having reviewed Magistrate Judge Fox's Report and Recommendation, this Court
overrules Plaintiffs objections and adopts the Report in full.
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Defendants' motions to dismiss are GRANTED with prejudice. Plaintiff is denied leave
to amend, as amendment would be futile.
The Clerk of the Court is directed to close the motions at ECF Nos. 9, 19, and 22.

Dated: New York, New York
January 10, 2016

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United States District Judge

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