Cortes v. Twenty-First Century Fox America, Inc.
OPINION re: 22 MOTION to Dismiss the Amended Complaint filed by 21st Century Fox America, Inc., Twenty-First Century Fox, Inc. For the foregoing reasons, Defendants' motion to dismiss Plaintiff's FAC is grant ed. See Baron v. Complete Mgmt., Inc., 260 F. App'x 399 (2d Cir. 2008) (internal quotation marks, citation, and alternations omitted) ("Dismissal is appropriate where, as here, a complaint is a labyrinthian prolixity of unrelated and vitu perative charges that defy comprehension.") Moreover, as Plaintiff's FAC contains "substantive problems such that an amended pleading would be futile," the FAC is dismissed with prejudice. Henry v. Davis, No. 10 Civ. 7575 (PAC)(JLC), 2011 WL 3295986, at *5 (S.D.N.Y. Aug. 1, 2011) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)), report and recommendation adopted, 2011 WL 5006831 (S.D.N.Y. Oct. 20, 2011). (Signed by Judge Robert W. Sweet on 1/9/2018) (mro)
'"UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
17 Civ. 5634
-againstTWENTY-FIRST CENTURY FOX AMERICA,
INC., 2 1ST CENTURY FOX AMERICA, INC.,
TWNETY-FIRST CENTURY FOX, INC., JOHN
DOE, and JANE DOE,
A P P E A RA N C E S:
Attorneys for Plaintiff
THE LAW OFFICES OF J.A. SANCHEZ-DORTA,
225 Broadway, Suite 1901
New York , NY 10007
J.A. Sanchez, Esq.
Attorneys for Defendants
1095 Avenue of the Americas
New York, NY 10036
By: Andrew J. Levander, Esq.
Linda C. Goldstein, Esq.
Nicolle L. Jacoby, Esq.
Defendants Twenty-First Century Fox, Inc. and 21st Century
( "2 lCFA" and, collectively, the "Defendants " 1 )
have moved pursuant to Federal Rule of Civil Procedure 12(b) (6)
to dismiss the First Amended Complaint ("FAC") of Francisco
Cortes ("Cortes" or the "Plaintiff"). Based on the conclusions
set forth below, Defendants' motion is granted and Plaintiff's
FAC is dismissed with prejudice.
On July 25, 2017, Plaintiff filed his Complaint, which was
amended on August 7, 2017. See Dkt. Nos. 1, 8. Plaintiff's FAC
alleges seven causes of action: breach of contract, fraudulent ·
misrepresentation, civil conspiracy to defraud, intentional
interference with contractual relationships, defamation per se,
libel per se, and slander per se. See FAC
On October 6, 2017, Defendants filed the instant motion to
dismiss. Dkt. No. 22. The motion was heard and marked fully
submitted on November 29, 2017.
Defendants state that there is no entity by the name of
Twenty-First Century Fox America, Inc. See Defs.' Mem. at 1 n.1,
Dkt. No. 24.
The Complaint sets forth the following facts, which are
assumed true for the purpose of this motion to dismiss. See Koch
v. Christie's Int'l PLC,
699 F.3d 141, 145 (2d Cir. 2012). As
part of a motion to dismiss, a "court may consider any written
instrument attached to the complaint as an exhibit or
incorporated in the complaint by reference, as well as documents
upon which the complaint relies and which are integral to the
complaint." N. Y. Life Ins. Co. v. U.S., 724 F.3d 256, 258 n .1
(2d Cir . 2013)
(quoting Subaru Distribs. Corp. v . Subaru of Am.,
425 F.3d 119, 122 (2d Cir. 2005)); see also Chapman v.
N.Y.S . Div. for Youth, 546 F.3d 230, 234
(2d Cir . 2008)
that a court may consider "undisputed documents, such as a
written contract attached to, or incorporated by reference in,
Prior to his termination, Cortes was a vice president of
Fox News Latino, a division of Fox News Network, LLC ("Fox
News"), which in turn was a subsidiary of Defendants. See FAC
Ex. A (attaching Emily Steel, Fox Is Said to Settle With Former
Contributor Over Sexual Assault Claims, THE N.Y. TIMES, Mar. 8 ,
2017 , https://www.nytimes.com/2017/03/08/business/fox-newsroger-ailes-sexual-assault-settlement.html). While Cortes was at
Fox News, Tamara Holder ("Holder") was a Fox News contributor.
Id. In February 2015, Cortes made sexual advances on Holder in
his office; Holder has stated Cortes sexually assaulted her,
while Cortes has stated the interaction was consensual. FAC
7, 33, 92, Ex. A; see also Carol Felsenthal, Former Fo x News
Pundit Who Accused Exec of Sexual Assault Returns to Chicago,
CHICAGO MAGAZINE, May 2' 2017' http: I /www.chicagomag.com/ChicagoMagazine/Felsenthal-Files/April-2017/Tamara-Holder/ (describing
the encounter from Holder's perspective and noting that
afterward, Holder "remained silent for more than a year").
In July 2016 , as part of The New York Times' reporting of
sexual harassment allegations against then-Fox News Chairmen
Roger Ailes, Times reporter Emily Steel ("Steel") reached out to
Holder to inquire whether Holder had ever been harassed by
42, 83. Holder described her interacti ons with
Steel at that time in relation to her own alleged sexual
harassment as follows:
I had been suppressing this. I had been boiling up .
Emily Steel sent me a direct message on Twitter. She
wanted to know if there were other stories about
Roger. I answered her that I have nothing to say about
Roger, but I know somebody who was sexually assaulted
by a Fox News executive. Describing what happened to
me in Cortes' office felt like letting the cat out of
the bag. I said, holy shit, I'm going to be quoted in
the New York Times. That was in July 2016 and it led
to the worst six months of my life.
83 (quoting Felsenthal, supra) . Steel did not publish any
about Holder at this time, and Holder continued to keep her
allegations secret from Fox News. See Felsenthal, supra (noting
that the Times first published an article about Holder in early
2 017); FAC
53 (quoting Yashir Ali, Top Talen Agency
Discouraged Fox News Contributor From Reporting Alleged Sexual
Assault, HUFFING N POST, May 2, 2017,
https://www.huffingtonpost.com/entry/tamara-holder-icm-foxnews us 590792c4e4b02655f83f4a8c)
(describing how Holder held
back from informing Fox News of her allegations in early
September 2016 during employment contract negotiations).
In late September 2016, Holder informed Fox News for the
first time of her sexual assault allegations and, on October 21,
2016, provided additional details of the encounter, including
Cortes' identity. See Steel, supra; Felsenthal, supra. On
October 21, 2016, Cortes was terminated. See FAC
1, 25, 47;
Steel, supra; Felsenthal, supra.
On November 11, 2016, as part of Cortes' termination,
Cortes and Fox News signed a severance and general release
agreement (the "Severance Agreementu) that contained, of
relevance to the instant litigation, the following provision:
Non-disparagement: Cortes and Fox each agree not to
disparage, trade libel, or otherwise defame the other,
and in the case of
or otherwise defame
and/or any of its officers and/or any of its current
and/or former employees.
Amended Declaration of Linda C. Goldstein dated November 29,
("Goldstein Deel."), Ex. l; see FAC 'II 113 (describing
"contractual obligations" between Cortes and Fox News in
December 2016) .
Around the same time as Cortes' termination, Holder drafted
and presented to Defendants a complaint that contained claims
against Fox News and Cortes. FAC '!I'll 19, 113. Attorneys from
Paul, Weiss, who represented Defendants, met with Plaintiff to
see if he would testify against Holder in a mediation between
Fox News and Holder; Plaintiff refused to do because he believed
it would violate the non-disparagement provision of the
Severance Agreement. See FAC 'II 113.
Holder's claims were resolved in February 2017 when Holder,
21CFA, and Cortes signed a settlement agreement (the "Holder
Settlement Agreement"), to which Cortes, with advice of counsel,
signed assent "as to Paragraph 6c and 12." FAC '!I'll 20-22, Ex. B.
Portions of the Holder Settlement Agreement to which Cortes did
not assent upon signing, which included other signatories to the
agreement, were redacted. FAC
29-30, see FAC Ex. B.
Paragraph 6c of the Holder Settlement Agreement provided
Cortes, on behalf of himself and the Cortes Released
Parties, hereby knowingly and voluntarily releases and
discharges the Holder Released Parties from any and
all Claims whatsoever in law, admiralty or equity,
unsuspected, vested or contingent, accrued or yet to
against the Holder Released Parties which
Cortes had, has, or hereafter can, shall or may have
up until Effective Date.
FAC Ex. B, at 5. Paragraph 12 of the Holder Settlement Agreement
Non-Disparagement. Holder agrees not to disparage,
malign, or defame any Released Party, or to publish or
cause to be published any statements portraying any
Released Party in an unfavorable light. The Company
disparage, malign or defame Holder, or to publish or
cause to be published any statements portraying Holder
in an unfavorable light. A statement by a Party that
liquidated damages under Paragraph ll(n)
FAC Ex. B, at 9; see also FAC
On March 8, 2017, The New York Times published an article
by Steel that described the alleged sexual assault of Holder by
Cortes (the "NYT Article"). FAC
41, 61, 62, 96, Ex. A. See
generally Steel, supra. Included in the NYT Article was a joint
statement by Fox News and Holder released contemporaneously with
the article, reflected in the article as follows:
Fox News released a joint statement with Ms. Holder
incident of sexual assault at Fox News headquarters
from the prior year."
"Immediately after Ms. Holder notified Fox News of the
alleged incident, the company promptly investigated
the matter and took decisive action, for which Ms.
Holder thanks the network," the statement continued.
"Fox Ne ws is grateful to Ms. Holder for her many
contributions during her . tenure at the network and
wishes her continued success."
FAC Ex. A,
(the "Joint Statement").
which was based on the corroboration of others of
Holder's account. FAC
93, 100; see FAC Ex. A.
On a Rule 1 2 (b) ( 6) motion to dismiss, all factual
allegations in the complaint are accepted as true and all
inferences are drawn in favor of the pleader. Mills v. Polar
Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). A complaint
must contain "sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 66 2 , 663 (2009)
(quoting Bell Atl.
Corp. v. Tw ombly, 550 U.S. 544, 555 (2007)). A claim is faciall y
plausible when "the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Iqbal, 556 U.S. at 663
(quoting Twombly, 550 U.S. at 556). In other words, the factual
allegations must "possess enough heft to show that the pleader
is entitled to relief." Twombly, 550 U.S. at 557
quotation marks omitted).
While "a plaintiff may plead facts alleged upon information
and belief 'where the belief is based on factual information
that makes the inference of culpability plausible,' such
allegations must be 'accompanied by a statement of the facts
upon which the belief is founded.'" Munoz-Nagel v. Guess,
No. 12 Civ. 1312 (ER), 2 013 WL 1809772, at *3 (S.D.N.Y. Apr. 30,
(quoting Arista Records, LLC v. Doe 3, 604 F.3d 110, 120
(2d Cir. 2010)); Prince v. Madison Square Garden, 427 F. Supp.
2d 372, 384
(S.D.N.Y. 2006); Williams v. Calderoni, 11 Civ. 3020
(CM), 2012 WL 691832, at *7
(S.D.N.Y. Mar. 1, 2012)). The
pleadings, however, "must contain something more than
statement of facts that merely creates a suspicion [of] a
legally cognizable right of action." Twombly, 550 U.S. at 555
(citation and internal quotation omitted).
Defendants' Motion to Dismiss Is Granted
Scattered around and built upon the facts described above,
Plaintiff's FAC alleges a conspiracy theory involving
Defendants, The New York Times, Paul, Weiss, and others worthy
of its own Martin Scorsese thriller. According to Plaintiff, the
Holder Settlement Agreement was a payment by Fox News to Holder
to breach the non-disparagement clause and share her allegations
with Steel, a "sycophant" journalist formerly employed with the
Wall Street Journal-a publication owned by News Corporation
("News Corp."), an entity affiliated with Defendants-who, as a
coconspirator, was to publish those statements in The New York
Times. See FAC
14, 39, 80-82, 115. The overarching purpose of
the conspiracy was to use Plaintiff, specifically chosen because
he is Latino, as a "scapegoat" by Defendants to demonstrate that
Defendants handled sexual harassment complaints aggressively.
10, 13, 15, 38-43, 83 . Scapegoating Plaintiff would
allow News Corp. to acquire complete ownership of the British
Sky Broadcasting ("BSB"), protect the identit y and shelter of
two non-Latino signatories to the agreements, and increase
coconspirators' public images or finances.
16, 36, 39, 49-55, 72, 8 1-82, 100-02.
7, 10, 14-
Plaintiff's alleged facts can plausibly support neither his
claims nor his theory of the case. Under both law and sechel,
Defendants' motion is granted. 2 See Iqbal, 556 U.S. at 679
("[D]etermining whether a complaint states a plausible claim is
context-specific, requiring the reviewing court to draw on its
experience and common sense.") Each cause of action will be
addressed in turn.
1. Breach of Contract
Plaintiff's first cause of action is for breach of
contract. Plaintiff alleges that Defendants breached their
contractual obligations with Plaintiff by disparaging Plaintiff
through the Joint Statement in the NYT Article. 3 See FAC
98, 116-21. As a result of the alleged breach,
claims he "sustained damages, including, without limitation,
Yiddish for "common sense." Based on the briefing for the
instant motion, this word is assuredly familiar to all parties.
See Pl.'s Opp. at 7 n.7, 23, Dkt. No. 33; Defs.' Reply at 2, Dkt.
Although not clearly laid out in the FAC's First Cause of
Action, this is the most favorable construction of the claim, as
the only agreement in the FAC signed between Plaintiff and
Defendants is the Holder Settlement Agreement, see FAC Ex. B,
and the only described statement made by Defendants after the
Holder Settlement Agreement was the joint statement made in the
NYT Article, see FAC ~~ 41, 62.
emotional distress, loss of employment opportunities, economic
injuries and other direct and consequential damages." FAC
"The elements of a breach of contract claim in New York
( 1) the existence of a contract,
party seeking recovery,
( 2) performance by the
(3) non-performance by the other party,
and (4) damages attributable to the breach." RCN Telecom Servs.,
Inc. v. 202 Ctr. St . Realty LLC., 156 F. App'x 349, 350-51
Cir . 2005)
(citation omitted) . 4 It is well-established that
"[t]he best evidence of what parties to a written agreement
intend is what they say in their writing." Greenfield v. Philles
Records , Inc., 98 N.Y.2d 562, 569, 750 N.Y.S.2d 565, 7 80 N.E.2d
(citation omitted). A written agreement that is
complete, clear, and unambiguous must be enforced according to
New York law applies to this diversity action. "In
diversity jurisdiction cases such as this, it is well settled
that a federal court must l ook to the choice of law rules of the
forum state." Curley v . AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998)
(citations omitted) . "New York applies separate choice-of-law
approaches to contract and to tort claims. In contract cases,
New York courts apply the 'center of gravity' or 'grouping of
contacts' choice of law theory .
. By contrast, the
preferred analytical tool in tort cases is to apply ' interest
analysis ,' where the policies underlying the competing la ws are
considered ." Fin. One Pub. Co. v. Lehman Bros. Special Fin., 414
F.3d 325 , 336 (2d Cir. 2005) (internal quotation marks,
citation, and alterations omitted) . Defendants are headquartered
in New York, Plaintiff and Holder were employed in New York, the
relevant contracts were negotiated in New York, and the NYT
Article and joint statement were published in New York .
Plaintiff has also not disputed this application.
its terms. I d. A contract is unambiguous when the contractual
language has a definite and precise meaning about which there is
no reasonable basis for a difference of opinion. Law Debenture
Trust Co. of N.Y. v. Maverick Tube Corp., 595 F.3d 458,
Cir. 20 10).
When, as in the Holder Settlement Agreement, the definition
of "disparagement" is not provided, courts have lo oked to
authorities like Black's Law Dictionary as a source of
definition. There, "disparage" is defined as "[t]o unjustly
discredit or detract from the reputation of (another 's property,
product, or business)" and "disparagement" is defined as "[a]
false and injurious statement that discredits or detracts from
the reputation of another's property, product, or business."
Kamfar v. New World Rest. Grp., Inc., 347 F. Supp. 2d 38, 49
n.55 (S.D.N.Y. 2004)
(alterations in original)
Law Dictionary 483 (7th ed. 1999); accord Rain v. Rolls-Royce
Corp., 626 F.3d 372, 379 (7th Cir. 2010)
court's use of Black's Law Dictionary to define "disparage" as
contract term). While is it unclear whether a truthful statement
can also be a disparaging one, at minimum these definitions
indicate that a disparaging statement must be about, and clearly
implicate, the allegedly disparaged subject. See Fashion
Boutique of Short Hills, Inc. v . Fendi USA, Inc., 314 F.3d 48,
(2d Cir. 2002)
(affirming district court's rejection of a
statement as disparaging because the statement did not "impugn
the qualityu of the subject).
The basis for Defendants' alleged breach is the Joint
Statement in the NYT Article, and that statement cannot
plausibly have violated the Holder Settlement Agreement's nondisparagement clause because it cannot plausibly be read to
disparage Plaintiff. The Joint Statement indicated that:
Holder reported an incident of sexual assault;
promptly investigated the matter and took action; and (iii)
News was grateful to Holder for her contributions at the
network. See FAC Ex. A, at 4-5. The statement does not mention
Plaintiff by name-a fact Plaintiff concedes in his opposition
papers-or any other identifying facts or allegations made
against Plaintiff. See Pl.'s Opp. at 22. In short, the Joint
Statement cannot be read plausibly to indicate anything, let
alone anything discrediting, about Plaintiff. See Davis v . Nyack
Hosp., 130 A.D.3d 455, 455, 13 N.Y.S.3d 371 (N.Y. App. Div.
(finding a non-disparagement clause not breached by a
written letter that did not mention the settlement agreement
parties or agreement terms). The rest of the NYT Article, which
was written by Steel and based on statements told to her by
Holder , not Defendants , cannot sustain liability against
Defendants either under law, for which Plaintiff has put forward
no authority, or plausibility, despite Plaintiff's to portray
Holder and Defendants as conspiracy bedfellows. See FAC
93, 100; Khan v. New York Times Co., 269 A.D.2d 74, 80, 710
("It is axiomatic that a
defendant cannot be held liable for a libelous statement that it
did not write or publish.").
Accordingly, Plaintiff's breach of contract claim is
2. Fraudulent Misrepresentation (Second Cause)
Plaintiff's second cause of action is for fraudulent
misrepresentation. The core of Plaintiff's pleaded allegation is
that Defendants "intentionally misrepresent[ed] material facts"
to Plaintiff. FAC
123. While it is difficult to identify which
statements Plaintiff alleges fraudulently induced him to sign
the Holder Settlement Agreement, reading the FAC most favorably,
there appear to be two specific material misrepresentations
alleged to have been made: that Fox News' attorneys,
Weiss, told Plaintiff that the Holder Settlement Agreement was
presented to Plaintiff redacted "solely to protect and shelter"
other signatories to the document, FAC
7, and that the Holder
Settlement Agreement's Paragraph 10 referred only to requests by
government authorities for information and that Plaintiff was a
released party under the terms of the agreement, see FAC
Under New York law, "[t]o state a cause of actio n for
fraud, a plaintiff must allege a representation of material
fact, the falsity of the representation,
knowledge by the party
making the representation that it was false when made,
justifiable reliance by the plaintiff and resulting injury."
Lerner v. Fleet Bank, N.A., 459 F.3d 273, 291
(2d Cir. 2006)
(citing Kaufman v. Cohen, 307 A.D.2d 113, 119, 760 N.Y.S.2d 157,
165 (1st Dep't 2003)). Federal Rule of Civil Procedure 9(b)
further requires that "[i]n alleging fraud
. , a party must
state with particularity the circumstances constituting fraud."
To satisfy Rule 9(b), "the plaintiff must:
'(1) specify the
statements that the plaintiff contends were fraudulent,
identify the speaker,
(3) state where and when the statements
In his opp o sition papers, Plaintiff argues additional
alleged fraudulent misrepresentations: that Defendant's
attorneys represented to Plaintiff that they reached out in
January 2017 only to investigate Holder's allegations, Pl.'s
Opp. at 13, and that "every single substantive communication by"
Paul, Weiss was fraudulent, Pl.'s Opp. at 16. The former is not
alleged in the FAC to be false or relied upon and the latter is
not made with the appropriate particularity described below.
Neither need be addressed further.
were made, and (4) explain why the statements were fraudulent.'"
First Hill Partners , LLC v. BlueCrest Cap. Mgmt. Ltd., 52 F.
Supp. 3d 625, 637 (S.D . N. Y. 20 14)
(quoting Rombach v. Chang , 355
F.3d 1 64 , 170 (2d Cir. 2004)). While "[u]nder Rule 9(b) ,
knowledge, and other condition of mind of a
person may be averred generally,'
plaintiffs must allege
facts that give rise to a strong inference of fraudulent
intent." Lern er , 459 F.3d at 290 (quoting Fed. R. Civ. P. 9(b))
(citation and some internal quotation marks omitted) . "The
requisite 'str ong inference' of fraud may be established either
(a) by alleging facts to show that defendants had both motive
and opportunity to commit fraud, or (b) by alleging
recklessness." Eaves v . Designs for Fin., Inc., 7 85 F. Supp. 2d
(S.D.N.Y. 20 11 )
(quoting Shields v. Citytrust Bancorp,
Inc., 25 F.3d 1124, 1128 (2d Cir . 1994)).
Plaintiff's fraudulent misrepresentation claim fails to
meet the necessary pleading requirements. As a preliminary
matter, the two specifically alleged statements in the FAC have
since been conceded by Plaintiff as not false.
In his opposition
briefing, Plaintiff conceded that each alleged statement by
Defendants and Paul, Weiss, that under the Holder Settlement
Agreement Plaintiff was a released party and that the
agreement's Paragraph 10 applied only to government requests for
information "was not a lie." Pl.'s Opp. at 16. Similarly,
Plaintiff's allegation that Defendants represented to Plaintiff
that names on the Holder Settlement Agreement were redacted to
protect those individual's identities was also conceded as
truthful. See Pl.'s Opp. at 15 (stating that "the redactions
[Plaintiff] would .
were really intended to ensure that .
. not be able to leak the names of the [redacted persons]").
The remaining, more oblique or vague allegations about
Defendants' statements surrounding the Holder Settlement
Agreement littered throughout the FAC also fail for other
reasons. Some allegations are the kind of "sweeping references"
that "will not satisfy the particularity requirements of Rule
9(b) ." B&M Linen, Corp. v . Kannegiesser, USA, Corp.,
Supp. 2d 474,
481 (S.D.N.Y. 2010)
(citation omitted); see, e.g.,
45 (alleging flatly that the "statements made by FOX
executives to Mr. Cortes and his attorney throughout the time
leading up to the execution of [the Holder Settlement Agreement]
were intentional misrepresentations, made in a deliberate
attempt to have Mr. Cortes rely on those misrepresentations").
Other allegati o ns, such as that Paul, Weiss attorneys wished to
speak on the phone rather than email, see FAC
23-24, or that
the Holder Settlement Agreement contained redactions that
Plaintiff was unable to read, see FAC
30, 32, do not
constitute the necessary "strong inference of fraudulent intent"
or even a plausible showing that Plaintiff was, in fact ,
defrauded . Shields, 25 F.3d at 1128.
Lastly, nowhere in the FAC does Plaintiff plausibly allege
that he relied to his detriment on the alleged
misrepresentations . At most,
Plaintiff alleges that by signing
the Holder Settlement Agreement, it "forc[ed ] him to remain
silent against the allegations" against him with regard to his
interactions with Holder, a right Plaintiff already signed away
under the terms of the previously signed Severance Agreement,
since Holder was clearly a Fox News employee as a Fox News
"contributor . " 6 FAC
33; see also Pl . 's Opp. at 14 - 15 (arguing
that by signing the Holder Settlement Agreement it "would tie
[Plaintiff ' s] hands and make him look sufficiently guilty to the
world"); FAC Ex. A, at 3; Goldstein Deel., Ex . 1 .
Together , none of this suffices to plead fraudulent
misrepresentation . Accordingly, Plaintiff ' s fraudulent
misrepresentation claim is dismissed .
Harm that is alleged in the FAC , such as Plaintiff ' s
allegations that he lost television opportunities based on the
publication of the NYT Article , are not plausibly connected to
Plaintiff's signing of the Holder Settlement Agreement. See FAC
~ 37 .
3. Civil Conspiracy to Defraud (Third Cause)
Plaintiff's third cause of action is for conspiracy to
defraud. The conspiratorial allegations based on the " corrupt
agreement" between Fox News, Holder, and others to make
Plaintiff a "scapegoat" are already laid out above. Pl.'s Opp .
at 25 ; see FAC
129-32; supra at 9.
"It is well settled under New York law that there is no
substantive tort of conspiracy ." Antonios A . Alevizopoulos &
Inc. v . Comcast Int'l Holdings,
178, 187 (S.D.N.Y. 2000)
Inc., 100 F. Supp. 2d
(cit ing Goldstein v . Siegel, 1 9 A.D.2d
489 (App. Div. 1st Dep't 1 963)) . "In order to state a claim for
conspiracy, therefore, there must be allegations of an
independent actionable tort." Id .
N.Y., 84 A.D.2d 707
(citing Guthartz v . City of
(App . Div. 1st Dep't 1981)). As Plaintiff's
fraudulent misrepresentation claim has already been dismissed,
so too must Plaintiff's civil conspiracy claim. See Ho Myung
Moolsan Co. v . Manitou Minera l Water, Inc., 665 F. Supp. 2d 239 ,
256 (S.D.N.Y. 2009)
(internal quotation marks om itted )
(dismissing New York State conspiracy charge because a "claim of
conspiracy cannot stand alone and must be dismissed if the
underlying independent tort has not been adequately pleaded");
Treppel v . Biovail Corp ., No. 03 Civ. 3002
(PKL), 2005 WL
427538, at *6 (S .D.N.Y. Feb. 22, 2005)
conspiracy claim must "fail[
(finding that a civil
as well because .
there is no
independent tort upon which to base a conspiracy").
Accordingly, Plaintiff's civil conspiracy to defraud claim
4. Intentional Interference with Contractual Relations
Plaintiff's fourth cause of action is for intentional
interference with contractual relations. Plaintiff alleges that
the Holder Settlement Agreement was a "valid contract" between
Plaintiff and Defendants, to which Defendants "intentionally and
improperly interfered." FAC
"The tort of intenti onal interference with contractual
relations is comprised of four elements:
contract, enforceable by the plaintiff,
(1) the existence of a
(2) the defendant's
knowledge of the existence of that contract,
(3) the intentiona l
procurement by the defendant of the breach of the contract, and
(4) resultant damages to the plaintiff." eCommission Sols., LLC
v. CTS Holdings,
Inc., No. 15 Civ. 2671
at *10 (S.D.N.Y. Mar. 1 3 , 2017)
(KBF), 2017 WL 985881,
(quoting Joan Hansen & Co. v.
Everlast World's Boxing Headquarters Corp., 744 N.Y.S.2d 384,
391 (App. Div. 1st Dep't 2002); accord Enercomp,
McCorhill Pub., Inc., 873 F.2d 536, 541
(2d Cir. 1989). "One
asserting a tortious interference claim must .
. show that the
defendant was not a party to the contract with which he
allegedly interfered." TVT Records v. Island Def Jam Music Grp.,
412 F.3d 82, 88
(2d Cir. 2005)
(citing Finley v. Giacobbe, 79
F.3d 1285, 1295 (2d Cir. 1996)).
Defendants were a party to the Holder Settlement Agreement,
a fact pleaded b y Plaintiff and not disputed in his opposition
papers. See FAC
134; Pl.'s Opp. at 28-29. "Defendants cannot,
as a matter of law, have tortiously interfered with their own
contract." Campeggi v. Arche Inc., No. 15 Civ. 1097
WL 4939539, at *10 (S.D.N.Y. Sept. 14, 2016)
Records, 412 F.3d at 88.) As such, this claim "cannot stand."
Fillmore E. BS Fin. Subsidiary LLC v. Capmark Bank, No. 11 Civ.
4491 (PGG), 2013 WL 1 2 94519, at *15 (S.D.N.Y. Mar. 30, 2013)
(dismissing tortious interference with contract claim after even
the plaintiff acknowledged that defendants were parties to the
agreement), aff'd, 55 2 F. App' x 13 (2d Cir. 2014 ) .
Accordingly, Plaintiff's intentional i nterference with
contractual relations claim is dismissed.
5. Defamation Per Se, Libel Per Se, and Slander Per Se
(Fifth, Sixth, and Seventh Causes)
Plaintiff lastl y alleges, over three separate causes of
action, defamation per se, libel per se, and slander per se. See
138-51. While Plaintiff does not identify specific
statements of defamation, he alleges that "[e]ach and every
statement attributable to the Defendants herein was
intentionall y false and made with malicious intent for the
purpose of destroying Mr. Cortes ' professional and caree r
prospects and for the Defendants' own commercial gain." FAC
141. As these three cla ims have over lapping law, they will be
considered in tandem.
A claim for "defamation" is an umbrella term that
incorporates the "twin torts of libel and slander." Albert v .
Lokse n, 239 F.3d 256, 265 (2d Cir. 2001)
"Defama t ion is the injury to one's reputation either by written
expression, which is libel, or by ora l expression, which is
slander." Biro v. Conde Nast , 883 F. Supp. 2d 441,
456 (S .D.N.Y.
(citati on omitted) . The elements of a cause of action [to
recover damages] for defamation are a false statement, published
without privilege or authorization to a third party,
. and .
. either [causing] special harm or [constituting]
defamation per se." Lan Sang v . Ming Hai,
951 F. Supp . 2d 504,
(alternations in original)
65 A.D.3d 224, 233, 882 N.Y.S.2d 234
(App. Div. 2d
Dep't 2009)); see also Church of Scientology Int'l v. Behar , 238
F.3d 168, 173 (2d Cir. 2001)
(explaining that a public figure
alleging defamation under New York law must establish that "the
. were ( 1) of and concerning [the plaintiff] ,
likely to be understood as defamatory by the ord inary person,
(3) false, and (4) published with actual malice"). To invoke the
exceptional case of a per se defamatory statement, the
allegation must be: "(l ) a statement charging an individual with
a serious crime;
( 2) a statement that tends to injure another in
his or her trade, business, or profession;
(3) a statement that
claims an indi vidual has a 'loaths ome disease;' or (4) a
statement 'imputing unchastity to a woman.'" Pure Power Boot
Camp, Inc. v . Warrior Fitness Boot Camp, LLC, 813 F. Supp. 2d
489, 550 (S.D.N.Y. 2011)
(quoting Liberman v. Gelstein, 80
N.Y.2d 429, 435, 590 N.Y.S.2d 857 , 605 N.E.2d 344
"[D]efamator y statements should be construed as they would be
commonly unders tood
. in the context of their publication"
and "a court should not render statements actionable by giving
'strained or artificial construction.'" Lan Sang,
Supp. 2d at 518
(in ternal citations and quotation marks
Each of Plaintiff's claims must be dismissed. To start, the
only public statement made by Defendants alleged in the FAC is
the Joint Statement with Holder as incorporated in the NYT
Article. As the alleged defamatory statement was written , not
spoken, Plaintiff's claim for slander per se must be dismissed.
See Bobal v. Rensselaer Polytechnic Inst.,
916 F.2d 759, 763 (2d
(affirming dismissal of a claim for slander when
plaintiff failed to "plead adequately the actual words spoken").
Moreover, a claim for libel per se falls under the umbrella of a
defamation per se claim, so charging both is redundant. See,
Pasqualini v. MortgageIT,
Inc., 498 F. Supp. 2d 659,
(noting that the court would use the terms
"defamation" interchangeably with regard to plaintiff's separate
slander and libel claims); see also FAC
libel claim adds no additional claims and only incorporates
prior allegations made in his defamation per se pleading) .
As to the remaining libel per se claim, it must be
dismissed for two reasons. First, the Joint Statement is not
alleged to be false. "[T]ruth is an absolute, unqualified
defense to a civil defamation action and 'substantial truth'
suffices to defeat a charge of libel." Giuffre v. Maxwell, No.
15 Civ. 7433 (RWS), 2017 WL 1536009, at *4
(S.D.N.Y. Apr. 27,
(citation omit ted). As described above, the Joint
Statement describes that Holder reported an incident, that Fox
News promptly investigated it and took action, and that Fox News
expressed gratitude towards Holder. See FAC Ex. A. Under the
pleaded facts in the FAC, most of the Joint Statement, like that
Holder reported a sexual assault or that Defendants responded
(by terminating Plaintiff's employment), is uncontested as true;
whether Defendants were apprec iati ve of Holder 's services,
moreover, is not a material statement of fact. See FAC
25, 47. Given the Joint Statement either is not or cannot be
"proven false," it cannot be claimed to be defamatory. Small
Bus. Bodyguard Inc. v. House of Moxie, Inc., 230 F. Supp. 3d
(S.D.N. Y. 2017).
Second, Plaintiff has not plausibly alleged that the Joint
Statement put out by Defendants was a def amatory statement
"concerning" him. "A plaintiff 'must be clearly identifiable'
from the statement in order for the statement to be defamatory."
Small Bus. Bodyguard Inc., 230 F. Supp. 3d at 311 (citing
Abramson v . Pataki, 278 F.3d 93, 10 2 (2d Cir . 2002)). There is
no reference or description of Plaintiff in the Joint Statement.
It is implausible that an "average reader would understand the
statement" to be a reference to Plaintiff. Small Bus. Bodyguard
Inc., 230 F. Supp. 3d at 311 ; see also Elias v . Ro llin g Stone
LLC, 872 F.3d 97 , 107 (2d Cir . 2017)
(rejecting as "too
speculative" that a reader could find an article was "of and
concerning" a plaintiff where the article described a student
who was a Phi Kappa Psi member, 2013 graduate, and rode his bike
regularly around campus for over a year prior to graduation) .
That the Joint Statement was later incorporated by The New York
Times into th e NYT Article, and any implications a reader of the
NYT Article might have drawn by the juxtaposition of the Joint
Statement with Steel's article, does not create liability for
Defendants , who were not plausibly responsible for what else was
written . See Croton Watch Co. v. Nat'l Jeweler Magazine,
No. 06 Civ. 662
(GBD) , 2006 WL 2254818 , at *3
(citing Khan, 710 N.Y.S.2d at 46)
(S.D .N. Y. Aug . 7 ,
("A defendant cannot be
held liable for defamation where it did not make or publish the
statement at issue.").
Accordingly, Plaintiff's claims for defamation per se,
slander per se, and libel per se are dismissed.
For the foregoing reasons, Defendants ' motion to dismiss
Plaintiff's FAC is granted . See Baron v. Complete Mgmt.,
260 F. App ' x 399 (2d Cir . 2008)
(interna l quotation marks,
citation, and alternations omitted)
("Dismissal is appropriate
where, as here, a complaint is a labyrinthian prolixity of
unrelated and vitupera ti ve charges that defy comp rehension." )
Moreover, as Plaintiff 's FAC conta in s "substantive problems such
t hat an amended pleading would be futile," the FAC is dismissed
with prejudice . Henr y v . Davis, No . 10 Civ . 7575 (PAC)
2011 WL 3295986 , at *5 (S .D.N.Y. Aug . 1 , 2011)
(citing Cuoco v.
Moritsugu , 222 F.3d 99 , 112 (2d Cir . 2000) ) , report and
re commendation adopted , 20 11 WL 5006831 (S .D. N. Y. Oct . 20 ,
It is so ordered .
New York, NY
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