Huang v. Minghui.org et al
Filing
61
OPINION AND ORDER re: 55 MOTION to Dismiss And Strike Second Amended Complaint. filed by US Southwestern Falun Dafa Association, Hao Ye, Mid-USA Falun Dafa Association, Rong Yi, Yi Cai, Minghui.org, Eastern US Buddhas Study Falun Dafa Association, Youfu Li, Yun Song, Zhengjian.org, Feng Yuan, Seng Yang, Siwei Meng. For the reasons set forth above, Defendant's motion to dismiss with prejudice is GRANTED. The Clerk of the Court is respectfully directed to terminate the motion, Doc. 55, and close this case. It is SO ORDERED. (Signed by Judge Edgardo Ramos on 6/18/2019) (kv) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RENXIONG HUANG,
Plaintiff,
- against -
OPINION AND ORDER
MINGHUI.ORG, ZHENGJIAN.ORG, EASTERN US
BUDDHAS STUDY FALUN DAFA ASSOCIATION,
RONG YI, YI CAI, HAO YE, US SOUTHWESTERN
FALUN DAFA ASSOCIATION, YOUFU LI, MIDUSA FALUN DAFA ASSOCIATION, SEN YANG,
YUN SONG, SIWEI MENG, FENG YUAN,
17 Civ. 5582 (ER)
Defendants.
Ramos, D.J.:
Renxiong Huang, proceeding pro se, brings this action against Falun Gong 1 organizations
Minghui.org, Zhengjian.org, 2 Eastern US Buddhas Study Falun Dafa Association, US
Southwestern Falun Dafa Association, Mid USA Falun Dafa Association, and eight individual
Falun Gong practitioners who are closely affiliated with the religion and its media outlets
(collectively, “Defendants”). Second Amended Complaint (“SAC”) ¶ 1.3, Doc. 43.
Huang alleges defamation and invasion of privacy. See id. at 2. Pending before the
Court is Defendants’ motion to dismiss Huang’s Second Amended Complaint (“Defs.’ Mot.
Dismiss SAC”). Doc. 55. For the reasons discussed below, Defendants’ motion is GRANTED.
1
Falun Gong is a religious spiritual practice that, according to Huang, the Chinese Communist Party has
been trying to eradicate. Renxiong Huang v. Minghui.org, 17 Civ 5582 (ER), 2018 WL 3579103, at *1
(S.D.N.Y. July 25, 2018) (“Huang I”).
2
Minghui.org is a website dedicated to reporting on the Falun Gong community worldwide. Huang I at
*1. The primary source of news that get disseminated on Minghui.org are first-hand reports from China.
See SAC, Ex. AA8, Doc. 43. Zhengjian.org is a similar website that disseminates Falun Gong-related
news to the religion’s practitioners. See Id., ¶ 3.1, Doc. 43.
I.
BACKGROUND 3
Huang filed the instant action on July 21, 2017. See Compl., Doc. 1. On November 13,
2017, Huang filed an Amended Complaint (“Amend. Compl.”) invoking federal-question
jurisdiction under 28 U.S.C. § 1331 and alleging (1) discrimination under the Civil Rights Act of
1964; (2) violations of the First Amendment; (3) claims under 28 U.S.C. § 4101; (4) defamation
pursuant to N.Y. C.P.L.R. § 215(3) and the Restatement (Second) of Torts. Amend. Compl. ¶¶ I,
2.3, Doc. 24. He sought in excess of $1.4 billion in damages. Id. at 8. On January 12, 2018,
Defendants moved to dismiss the Amended Complaint for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6) (“Defs.’ Mot. Dismiss”). Doc. 27. Thereafter, on July
25, 2018, this Court granted Defendants’ motion to dismiss without prejudice and permitted
Huang to re-plead his claims in a Second Amended Complaint (“SAC”). See Huang I at *6.
On September 17, 2018, Huang filed an SAC alleging (1) defamation pursuant N.Y.
C.P.L.R. § 215(3); and (2) invasion of privacy pursuant to N.Y. Civil Rights Law § 50 and 51.
See SAC ¶¶ 2.1, 2.3, Doc. 43. Huang seeks $1.2 million in damages. See id. ¶ 2.3. These
claims are based on two articles that appeared in two websites that are closely associated with the
Falun Gong organization. The first article appeared on Minghui.org in 2003. It lists Huang’s
personal information including his name, name on the passport, birth date, passport number,
refugee ID, and home address, and it provides a photo of Huang. See id., Ex. AA2a and AA2c.
In its entirety, the article states:
In May 2003, Huang Renxiong came to Thailand from Mainland China and
presented himself as a Dafa practitioner in order to deceive local practitioners. In
both Thailand and China, some practitioners who didn’t deeply understand the Fa
were deceived. His behavior has severely disturbed practitioners’ cultivation
practice. We hope those practitioners who were deluded by him will become clear
3
The following facts, accepted as true for purposes of the instant motion, are based on the allegations in
Huang’s SAC as well as the facts in Huang I at *1–6.
2
minded as soon as possible, treat the Fa as teacher, eliminate attachments to fame,
personal interest and sentimentality, and become righteous practitioners once again.
Id. The second article appeared on Zhengjian.org in 2016. Based on the English translation
provided in the SAC, the 2016 article is written from the perspective of an individual who
traveled to Japan from China, presumably because of persecution based on his/her participation
in Falun Gong. Id., Ex. AA5. The translation does not provide additional information on the
identity of the author. The author claims that during the process of trying to procure a visa to the
United States, the author “realized” that the husband of his/her good friend “is the special agent
from the Chinese Communist Party, as published by [M]inghui.org ten years ago.” Id. The
author further states that “[m]y long time good friend actually turned out to be a fake practitioner
but a real special agent.” Id. Neither the name nor a photograph of the “special agent” is
provided in the article.
On February 11, 2019, Defendants moved to dismiss the SAC pursuant to Federal Rule of
Civil Procedure 12(b)(6). Defs.’ Mot. Dismiss SAC, Doc. 55. On March 11, 2019, in response
to Defendants’ motion to dismiss the SAC, Huang sent a letter titled “Important View Point”
(“Opposition”). Doc. 59. However, Huang did not address any of Defendants’ arguments in his
Opposition. Id.
In the memorandum in support of their motion to dismiss the SAC (“Defs.’ Memo”),
Defendants claim that: (1) Huang’s defamation claim fails because it is time barred and is, in any
event, non-actionable; (2) his claim for invasion of privacy regarding the 2003 article fails
because it is time barred; (3) his claim for invasion of privacy regarding the 2016 article fails
because he has not demonstrated that the posting is for advertising or commercial use, which is
required for showing a cause of action under New York law; and (4) Huang violated the Federal
Rule of Civil Procedure 8(a) by improper group pleading. See Defs.’ Memo at 2, Doc. 57.
3
II.
LEGAL STANDARD
A. Motion to Dismiss under Rule 12(b)(6)
When ruling on a motion to dismiss pursuant to Rule 12(b)(6), district courts are required
to accept as true all factual allegations in the complaint and to draw all reasonable inferences in
the plaintiff’s favor. See Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). However, this
requirement does not apply to legal conclusions, bare assertions, or conclusory allegations. See
Ashcroft v. Iqbal, 556 U.S. 662, 678, 681, 686 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). In order to satisfy the pleading standard under Rule 8, a complaint must
contain sufficient factual matter to state a claim to relief that is plausible on its face. Iqbal, 556
U.S. at 678 (internal citation omitted). Accordingly, a plaintiff is required to support her claims
with sufficient factual allegations to show “more than a sheer possibility that a defendant has
acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of entitlement
to relief.” Id. (internal citation and quotation marks omitted).
B. Pro Se Plaintiff
The same standard applies to motions to dismiss in cases brought by pro se plaintiffs.
Davis v. Goodwill Indus. of Greater New York & New Jersey, Inc., 2017 WL 1194686, at *5
(S.D.N.Y. Mar. 29, 2017) (citing Zapolski v. Fed. Repub. of Germany, 425 F. App’x 5, 6 (2d Cir.
2011)). The Court remains obligated to construe a pro se complaint liberally, and to interpret a
pro se plaintiff’s claims as “rais[ing] the strongest arguments that they suggest.” Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal citation omitted). The
obligation to be lenient while reading a pro se plaintiff’s pleadings “applies with particular force
when the plaintiff’s civil rights are at issue.” Jackson v. N.Y.S. Dep’t of Labor, 709 F. Supp. 2d
218, 224 (S.D.N.Y. 2010) (citing McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)).
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Nevertheless, “pro se status ‘does not exempt a party from compliance with relevant rules of
procedural and substantive law.’” Triestman, 470 F.3d at 477 (quoting Traguth v. Zuck, 710
F.2d 90, 95 (2d Cir. 1983)). To survive a motion to dismiss pursuant to Rule 12(b)(6), a pro se
complaint that “tenders naked assertion[s] devoid of further enhancement” will not suffice.
Iqbal, 556 U.S. at 678. (internal quotations omitted).
III.
DISCUSSION
Although Huang alleges only federal question jurisdiction, both of Huang’s causes of
action assert New York state law claims: (1) defamation pursuant to N.Y. C.P.L.R. § 215(3);
and (2) invasion of privacy pursuant to N.Y. Civil Rights Law § 50 and 51, including
appropriation of name and likeness, and false light. However, at least for purposes of the instant
motion, Defendants appear to concede that the Court may exercise diversity jurisdiction over
Huang’s claims. 4
A. Defamation Claim
“Defamation is the injury to one’s reputation either by written expression, which is libel,
or by oral expression, which is slander.” Biro v. Conde Nast, 883 F. Supp. 2d 441, 456
(S.D.N.Y. 2012) (internal citation omitted). To state a claim for defamation under New York
law, a plaintiff must allege “(1) a false statement of fact, (2) about the plaintiff, (3) published to a
third party without authorization or privilege, (4) through fault amounting to at least negligence,
and (5) causing defamation per se or a special harm.” Antares Mgmt. LLC v. Galt Glob. Capital,
Inc., No. 12 Civ. 6075 (TPG), 2013 WL 1209799, at *13 (S.D.N.Y. Mar. 22, 2013). Even under
4
Where the amount in controversy is satisfied, the Court has diversity jurisdiction over actions between
“citizens of different States,” 28 U.S.C. § 1332(a)(1). At the pre-motion conference on January 10, 2019,
Huang confirmed he resides in Maryland, where no Defendants reside. See Defs.’ Memo at 5, n.2, Doc.
57. Because Defendants treat the SAC as alleging diversity jurisdiction, the Court may exercise subject
matter jurisdiction over Huang’s claims. Id.
5
the more liberal standard of Federal Rule of Civil Procedure 8, to establish a claim for
defamation, Plaintiff must identify “(1) the allegedly defamatory statements; (2) the person who
made the statements; (3) the time when the statements were made; and (4) the third parties to
whom the statements were published.” Yukos Capital S.A.R.L. v. Feldman, No. 15 Civ. 4964
(LAK), 2016 WL 183360, at *1 (S.D.N.Y. Jan. 11, 2016) (internal citation omitted).
A defamatory statement “exposes an individual ‘to public hatred, shame, obloquy,
contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or . . .
induce[s] an evil opinion of one in the minds of right-thinking persons, and . . . deprives one of
. . . confidence and friendly intercourse in society.’” Celle v. Filipino Reporter Enters. Inc., 209
F.3d 163, 177 (2d Cir. 2000) (alteration in original) (internal citation omitted). On a motion to
dismiss a defamation claim, the court must decide whether the alleged statements are
“reasonably susceptible” to defamatory meaning. Dworin v. Deutsch, No. 06 Civ. 13265 (PKC),
2008 WL 508019, at *3 (S.D.N.Y. Feb. 22, 2008).
1. The 2003 posting is time barred.
Huang alleges a state law claim of defamation pursuant to N.Y. C.P.L.R. § 215(3)
regarding two articles that were posted online. He alleges that the first article was posted on
Minghui.org on July 29, 2003, and that the second article was posted on Zhengjian.org on
December 29, 2016. See SAC ¶ 3.2, Doc. 43; see also Defs.’ Memo at 3, Doc. 57.
The 2003 posting is time barred because in New York, defamation actions must be
commenced within one year from the date the alleged defamatory statement is made. See Rand
v. New York Times Co., 75 A.D.2d 417, 424, (1st Dep’t. 1980); Torres v. CBS News, 879 F.
Supp. 309, 315 (S.D.N.Y. 1995), aff’d, 71 F.3d 406 (2d Cir. 1995); CPLR § 215(3). The 2003
article is time barred even if it remains accessible on the internet because under the “single
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publication rule,” a libel claim accrues on the “earliest date” it “became generally available to the
public.” Van Buskirk v. New York Times Co., 325 F.3d 87, 89 (2d Cir. 2003) (internal quotation
omitted); see also Firth v. State, 775 N.E.2d 463, 466–67, 2002 WL 1418699 (N.Y. 2002)
(explaining that plaintiff’s defamation claim was barred by the one-year statute of limitations
even though the defamatory material remained on the web site beyond the date of its initial
posting and could be accessed at any time by anyone who clicked on the web site).
The 2003 article was published 14 years prior to Huang’s filing of his initial complaint,
and is therefore outside of the one year time limit. The 2003 article therefore cannot provide a
basis for the defamation claim.
2. The 2016 posting is not defamatory because it neither names Huang nor
makes him identifiable.
The 2016 posting is not time barred, but a claim based on this posting fails because it is
not defamatory. In order for a defamatory statement to be actionable, the plaintiff has the burden
to show that it was published of and concerning him. See Fetler v. Houghton Mifflin Co., 364
F.2d 650, 651 (2d Cir. 1966). This burden is not a light one; the libel must designate the plaintiff
in such a way as to let those who knew him understand that he was the person meant. Id., 364
F.2d at 651, 653. A complaint must be dismissed where this requirement is not satisfied. See
Cerasani v. Sony Corp., 991 F.Supp. 343, 355 (S.D.N.Y. 1998). Unlike the 2003 posting, the
2016 article neither names him nor makes him identifiable. See Defs.’ Memo at 5, Doc. 57.
Huang does not allege sufficient factual evidence that demonstrates that the 2016 article was
published concerning him or that those who knew him would recognize it as concerning him.
Because Huang failed to satisfy this burden, his defamation claim regarding the 2016 posting
must be dismissed.
7
B. Invasion of Privacy Claim 5
Huang alleges claims for false light (based on the content posted in both 2003 and 2016)
and appropriation of his name and likeness (based solely on the article posted to Minghui.org in
2003). See SAC ¶¶ 2.1, 2.3, Doc. 43. The Court finds that his invasion of privacy claim fails
under both theories.
1. This claim based on the 2003 posting is time barred.
Huang added a new claim of invasion of privacy in his SAC. See id. Specifically,
Huang alleges claims of appropriation of his name and likeness, and false light under the N.Y.
Civil Rights Law § 50 and 51 as a result of the 2003 Minghui.org posting, which included his
name and photo. Id. This claim fails, however, because it is time barred. The claims under N.Y.
Civil Rights Law § 50 and 51 are subject to the one-year statute of limitations. See CPLR §
215(3); see also McKenzie v. Dow Jones & Co., 355 Fed. App’x 533, 535 (2d Cir. 2009). The
2003 posting is well past the one-year statute of limitation, and thus, the claim regarding the
2003 posting must be denied.
2. The claim based on the 2016 posting fails because Huang did not
demonstrate that the article was used for advertising or commercial
purposes.
New York does not recognize a common-law right of privacy, but Civil Rights Law §§
50 and 51 provide a limited statutory right of privacy. See Messenger v. Gruner + Jahr Printing
& Pub., 94 N.Y.2d 436, 441 (N.Y. 2000). To withstand a motion to dismiss and maintain and
equitable action, “any person whose name, portrait, picture or voice is used within this state”
must show that Defendant acted “for advertising purposes or for the purposes of trade without a
5
Only the 2003 article, not the 2016 article, posted Huang’s name and picture. See SAC, ¶ 1.4, Ex.
AA2C, AA5., Doc. 43. Thus, the appropriations of his name and likeness claim is presumably regarding
only the article posted to Minghui.org in 2003. The false light claim presumably refers to both 2003 and
2016 postings.
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written consent.” N.Y. Civ. Rights Law §§ 50, 51; see also Wright v. Belafonte, 2014 WL
1302632 at *2 (S.D.N.Y., Mar. 31, 2014) (quoting § 50). Huang does not have a valid statutory
right of privacy claim under New York law regarding the 2016 article because he fails to
demonstrate that the article was used for advertising or commercial purposes.
“Section 50 makes it a misdemeanor to use a living person's name, portrait or picture for
advertising or trade purposes” without the written consent of such person. See Messenger, 94
N.Y.2d at 441 (emphasis added). Moreover, sections 50 and 51 do not apply to reports of
newsworthy events or matters of public interest because a newsworthy article is not deemed
produced for the purposes of advertising or trade. See id.; see, e.g., Howell v. New York Post
Co., 81 N.Y.2d 115, 123 (N.Y. 1993); see also Stephano v. News Group Publs., 64 N.Y.2d 174,
184 (N.Y. 1984).
Plaintiff does not even attempt to demonstrate that the 2016 posting on Zhengjian.org
was for purposes of advertising or trade. Huang describes both Zhengjian.org and Minghui.org
as “related religio[us] organizations with Falun Gong and “public media outlets.” SAC ¶ 1.2,
Doc. 43; Amend. Compl at 8, Doc. 24. Minghui.org and Zhengjian.org are news websites
because they function as “platform[s] for communication” of Falun Gong-related news from
around the world. SAC, Ex. AA2C (showing news from China and Thailand); see also Amend.
Compl. ¶ 2.2, Doc 24. By calling the websites “public media outlets,” Huang acknowledges
their journalistic nature. See Amend. Compl at 8, Doc. 24. Because sections 50 and 51 do not
apply to news articles, Huang’s false light claim for the 2016 posting fails as a matter of law and
must be dismissed. See Abakporo v. Daily News, 102 A.D.3d 815, 817 (N.Y.A.D. 2 Dep’t.
2013) (affirming dismissal where “complaint does not adequately allege facts that would
establish that the subject photograph, which accompanied a newspaper article, was used for
advertising or trade purposes”).
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