Boyd v. Osborn, Esq.
Filing
17
DECISION AND ORDER: Osborn's motion to dismiss, ECF No. 5 , is GRANTED and Boyd's motion to amend the complaint, ECF No. 8 , is DENIED. Because Boyd amended his complaint in response to Osborn's motion, the Court declines to provide him with another opportunity to do so. The Clerk shall enter judgment and close this case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 5/6/2022. (SFR)-CLERK TO FOLLOW UP-
Case 6:21-cv-06651-FPG Document 17 Filed 05/06/22 Page 1 of 14
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOSEPH BOYD,
Plaintiff,
v.
STEPHEN M. OSBORN, ESQ.,
Case # 21-CV-6651-FPG
DECISION AND ORDER
Defendant.
INTRODUCTION
On September 7, 2021, Plaintiff Joseph Boyd (“Boyd”) filed this action in the Supreme
Court of the State of New York, Monroe County, against Defendant Stephen M. Osborn, Esq.
(“Osborn”) asserting a claim for defamation per se under New York law. ECF No. 1 at 10-16.
Osborn removed the action to this Court pursuant to 28 U.S.C. § 1332(a) based upon diversity of
citizenship between the parties and an amount-in-controversy in excess of the sum or value of
$75,000. Id. at 2.
On December 6, 2021, Osborn filed a motion to dismiss pursuant to Federal Rule of Civil
Procedure (“FRCP”) 12(b)(6), ECF No. 5, and, in response, Boyd filed a cross-motion to amend
the complaint with an attached Proposed Amended Complaint (“PAC”). ECF No. 8. For the
reasons that follow, Osborn’s motion to dismiss is GRANTED and Boyd’s motion to amend is
DENIED.
BACKGROUND
The Court draws the following facts from the PAC, ECF No. 8-3, and accepts them as true
to evaluate whether amendment would be futile. Case v. Anderson, No. 16 CIV. 983 (NSR), 2017
WL 3701863, at *6 (S.D.N.Y. Aug. 25, 2017) (“The central inquiry for the Court when considering
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a motion to dismiss in tandem with a motion to amend is, therefore, whether the proposed amended
complaint can survive the motion to dismiss.”).
Joseph Boyd is a professional financial advisor who resides in the Rochester, New York
area. ECF No. 8-4 ¶ 3. In 2020, one of Boyd’s clients made an investment in a company called
Quantum Loop Solutions, Inc. (“QLS”). Id. ¶¶ 1, 7. Thereafter, Boyd was elected to QLS’s Board
of Directors “[i]n his capacity as a financial advisor” to his client-investor. Id. ¶ 8.
Around late-September or early-October of that year, Boyd learned of “possible theft of
corporate funds” by QLS’s President, who was also a member of the Board of Directors, which
prompted him to act. Id. ¶¶ 9-10. First, Boyd “attempted to call a meeting of the Board of
Directors.” Id. ¶ 11. Additionally, he took further “protective action” by transferring money out
of a QLS bank account which “contained funds belonging to the investor whom he represented.”
ECF No. 8-4 ¶ 8. Boyd transferred these “minority investor[ ] funds” into a separate bank
account—a preexisting account that also was in the name of QLS—until such time as there could
be an investigation.” Id. ¶ 12. Boyd “was a signatory” on the account from which he removed the
funds. Id. ¶ 11. He had been given this designation “for purposes of protecting minority investors
in QLS.” Id. Boyd did not have any control over the account into which he transferred the funds,
which, as stated above, was a preexisting QLS account. Id. ¶ 15. He made the transfer of the
funds for “safekeeping” until an investigation could be undertaken because he had an “obligation
to protect” the minority investor. ECF No. 8-4 ¶ 15.
Attorney Stephen Osborn, Esq. was retained as “QLS’s legal counsel” and “as an advisor
to the corporation.” Id. ¶¶ 18, 21. Though he “claimed to be the corporation’s attorney,” Osborn
is licensed to practice law in California, but not in New York. Id. ¶¶ 21, 32. In his capacity as an
advisor to QLS, Osborn sent an email to the Board of Directors on October 10, 2020 “in which he
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attacked [Boyd’s] motives in attempting to call a Board meeting and then falsely stated that [Boyd]
had engaged in ‘attempted theft’ and ‘illegal actions.’” Id. ¶ 14. Boyd attached a redacted version
of that email to the PAC. 1 ECF No. 8-4 at 12-15. In redacted form, the email reads as follows:
Dear Board Members of Quantum Loop Solutions, Inc.,
My name is Steve Osborn. I am a partner at Mintz. Mintz is outside corporate
counsel for Quantum Loop Solutions, Inc. (the “Company”).
Ben Weiner, as Chief Executive Officer of the Company, asked me to review . . .
...
Mr. Boyd’s illegal actions appear to be personally motivated based upon his quest
to control this company without the right to do so.
...
An unauthorized transfer of corporate funds would be embezzlement, which is
more commonly known as theft. This action has both criminal civil implications
for the perpetrator.
Sincerely yours,
Steve Osborn
Id.
Boyd alleges that Osborn’s statements about Boyd in the email were “absolutely false.”
Id. ¶ 14. After receiving Osborn’s email, Boyd “immediately” responded to Osborn and “informed
him that the funds were in a [QLS] account.” ECF No. 8-4 ¶ 16. This response, “placed [Osborn]
on notice within one hour of sending his October 10, 2020 email . . . that his statements were
Osborn urges the Court to review the email in its entirety, rather than the redacted version cited by Boyd. ECF No.
5-1 at 22-23. To facilitate such a review, he has filed an unredacted version of the email under seal. ECF No. 16.
Because “courts do not read defamatory statements in isolation,” the Court has reviewed the specific statements which
Boyd alleges are defamatory in the context of the entire October 10, 2020 email. See Biro v. Conde Nast, 883 F. Supp.
2d 441, 467 (S.D.N.Y. 2012) (where the court read the alleged defamatory statements “in the context of the article as
a whole” in ruling on a FRCP 12(b)(6) motion).
1
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false.” Id. ¶ 23. However, despite receiving this Boyd’s message, Osborn “made no effort
whatsoever to withdraw his false statements.” Id.
On October 13, 2020, the CEO of QLS “noticed a Board meeting” at which the slated
agenda called for “[d]iscussion and decision on action after Special Meeting with Joe Boyd.” Id.
¶¶ 19, 24. The meeting email invitation indicated that “[a]ll members except Joe Boyd are asked
to attend.” Id. ¶ 24. After learning of the meeting, Boyd “objected to his exclusion” and was
“permitted to attend.” ECF No. 8-4 ¶ 26.
The meeting was held on October 15, 2020. Id. ¶ 26. During the meeting, Osborn
“continued to make [the] same defamatory and false statements about theft and unlawful conduct
by [Boyd] to the Board members of QLS—despite having been provided information that the
statements were false.” Id. ¶ 27. In response, Boyd “directly confronted” Osborn “as to the falsity
of his statements,” explaining why it was “clear” that Osborn’s statements were false. Id. ¶ 29.
Rather than disagree, Osborn “begrudgingly” admitted that “his factual statements ‘might’ be
false,” doing so to “save face.” Id. ¶ 29. For instance, at one point during the meeting, Osborn
conceded, “to some extent your comments are fair,” and also stated “I don’t have all the facts.”
ECF No. 8-4 ¶ 30.
Osborn’s “publication of his false statements to the QLS Board”—both via email and at
the special Board meeting—“could easily have destroyed [Boyd’s] career and livelihood as a
financial advisor and make it impossible for him to provide for his family.” Id. ¶ 18. “At a
minimum,” Osborn’s statements “destroyed any potential for [Boyd] to work with those QLS
Board members who received the absolutely false and defamatory false statements about him.”
Id. ¶ 18. Osborn demonstrated a “lack of good faith” in his accusations about Boyd, and his
“conduct [was] particularly egregious” because he knew when he made the statements “that . . .
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Boyd is a professional financial advisor who depends on his reputation and trustworthiness for his
livelihood.” Id. ¶¶ 21, 32.
Based on the above allegations, Boyd brings a state-law claim against Osborn for
defamation per se. Id. ¶¶ 1, 34. He seeks five million dollars in compensatory damages, punitive
damages, and recovery of attorney’s fees, costs, and expenses. ECF No. 8-4 at 9.
DISCUSSION
Osborn moved to dismiss the complaint pursuant to FRCP 12(b)(6) for failure to state a
claim upon which relief can be granted. Boyd responded by moving to amend the complaint.
I.
Motion to Dismiss Standard
In deciding a motion to dismiss, a court “must accept as true all of the factual allegations
contained in the complaint,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007) (quoting another
source), and “draw all reasonable inferences in Plaintiff’s favor.” Faber v. Metro. Life Ins. Co.,
648 F.3d 98, 104 (2d Cir. 2011). To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. A claim is facially 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The application of this standard is “a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id. at 679.
“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a
district court may consider the facts alleged in the complaint, documents attached to the complaint
as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable
L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). “Where a document is not incorporated by reference,
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the court may [nevertheless] consider it where the complaint ‘relies heavily upon its terms and
effect,’ thereby rendering the document ‘integral’ to the complaint. Id. (citing Mangiafico v.
Blumenthal, 471 F.3d 391, 398 (2d Cir.2006)) (additional citation omitted). A court also must
ensure that there are no disputes “regarding the authenticity or accuracy of the document,” nor any
dispute regarding the document’s relevancy. Id. (citing Faulkner v. Beer, 463 F.3d 130, 134 (2d
Cir.2006)).
II.
Leave to Amend Standard
“Rule 15(a)(2) instructs that a court ‘should freely give leave [to amend] when justice so
requires.’” Willis v. Rochester Police Dep’t, No. 15-CV-6284-FPG, 2018 WL 4637378, at *2
(W.D.N.Y. Sept. 27, 2018) (quoting Grullon v. City of New Haven, 720 F.3d 133, 139-40 (2d Cir.
2013)). A court may, however, deny leave to amend where such amendment would be “futile.”
Id. Amendment is futile if the proposed claim “could not withstand a motion to dismiss pursuant
to Rule 12(b)(6).” Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88
(2d Cir. 2002).
“When—as in this case—a motion to amend is filed in response to a pending motion to
dismiss, ‘a court has a variety of ways in which’ to proceed, ‘from denying the motion [to dismiss]
as moot to considering the merits of the motion [to dismiss] in light of the [proposed] amended
complaint.’” Willis, 2018 WL 4637378, at *2 (quoting Conforti v. Sunbelt Rentals, Inc., 201 F.
Supp. 3d 278, 291 (E.D.N.Y. 2016)). Here, the Court elects to consider the merits of the motion
to dismiss in light of the PAC. Because it concludes that neither the original complaint nor the
PAC could withstand Osborn’s motion to dismiss, the Court grants the motion to dismiss and
denies leave to file the PAC. See Pettaway v. National Recovery Solutions, LLC, 955 F.3d 299
(2d Cir. 2020) (approving of the district court’s approach in granting a motion to dismiss and
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denying a motion for leave to amend the complaint, filed in response to the motion to dismiss,
because the new allegations could not save plaintiff’s claims, i.e., “the amended complaint would
not withstand a motion to dismiss”).
III.
Analysis
Under New York law, a plaintiff states a claim for defamation by “proving that the
defendant published to a third party a defamatory statement of fact that was false, was made with
the applicable level of fault, and either was defamatory per se or caused the plaintiff special harm,
so long as the statement was not protected by privilege.” Feist v. Paxfire, Inc., No. 11 Civ. 5436
(LGS), 2017 WL 177652, at *4 (S.D.N.Y. Jan. 17, 2017) (quoting Chandok v. Klessig, 632 F.3d
803, 814 (2d Cir. 2011)). “A privileged communication is one which, but for the occasion on
which it is uttered, would be defamatory and actionable.” Id.
Here, Osborn argues, inter alia, that Boyd’s state-law claim for defamation per se must be
dismissed because Osborn’s statements are protected by the litigation privilege and qualified
common-interest privilege. ECF No. 5-1 at 16. The Court considers below whether either of these
privileges bars Boyd’s defamation claim.
A. Litigation Privilege
“New York courts have long recognized the litigation privilege as a defense to defamation
claims.” Conti v. Doe, 535 F. Supp. 3d 257, 281 (S.D.N.Y. 2021). “[I]t is well-settled that
statements made in the course of litigation are entitled to absolute privilege.” Loughlin v. Goord,
558 F. Supp. 3d 126, 149 (S.D.N.Y. 2021) (quoting Front, Inc. v. Khalil, 28 N.E.3d 15, 18 (2015)).
This privilege can be extended to statements “made before litigation has commenced . . . if (1) the
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attorney has ‘a good faith basis to anticipate litigation’ and (2) the statements are ‘pertinent to that
anticipated litigation.’” Feist, 2017 WL 177652, at *4 (citing Front, 28 N.E.3d at 20).
Here, Osborn argues that the litigation privilege applies because his “involvement” with
this matter “stemmed from the fact that [QLS’s] legal rights and obligations required its Corporate
Counsel’s advice and protection to preserve Board formalities in the context of an acrimonious
and escalating shareholder dispute.” ECF No. 5-1 at 14. In addition, Osborn contends that the
October 10, 2020 email’s references to “civil implications” and potential internal Board-related
consequences for Boyd based upon his conduct demonstrates that Osborn had a good faith basis
to anticipate litigation. Id. at 14-15. In response, Boyd argues, inter alia, that this privilege does
not apply here because “there was no litigation pending or anticipated” on a good faith basis. ECF
No. 8-1 at 9-12. The Court agrees.
Neither party asserts that there was pending litigation related to this matter, and there is
nothing in the record to indicate otherwise. Nor is there anything that suggests Osborn had a good
faith basis to anticipate litigation. Osborn was retained as outside corporate counsel to provide
advice on matters related to the transfer of funds from one QLS account to another and on matters
related to corporate governance. Counseling and assisting clients on such matters, standing alone,
is not sufficient to invoke the litigation privilege. See Orenstein v. Figel, 677 F. Supp. 2d 706, 710
(S.D.N.Y. 2009) (“The statements at issue here were not made in the context of a judicial or quasi
judicial proceeding: the letter was written by an attorney solely in the context of a private dispute
over an invoice for services rendered by one business to another.”); Kurker v. Hill, 44 Mass. App.
Ct. 184, 192 (1998) (“The litigation privilege recognized in our cases, however, would not appear
to encompass the defendant attorneys’ conduct in counselling and assisting their clients in business
matters generally.”). Additionally, there is no indication that the October 2010 meeting of the
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Board of Directors which Boyd attended operated as a “quasi-judicial proceeding” thus rendering
the defamatory statement “self-correcting by the very body to whom the statement is made.” See
Loughlin v. Goord, 558 F. Supp. 3d 126, 150 (S.D.N.Y. 2021).
Accordingly, Osborn’s statements are not protected by the litigation privilege.
B. Qualified Common-Interest Privilege
The Court considers next whether the so-called “common-interest privilege” bars Boyd’s
defamation claim. Rather than being absolute, New York’s common-interest privilege is qualified
in that it “may immunize a declarant from liability for a declaratory statement, unless the declarant
has abused the privilege.” Conti v. Doe, 535 F. Supp. 3d 257, 275 (S.D.N.Y. 2021) (emphasis
added). “A defendant abuses the privilege if he acts beyond the scope of the privilege, acts with
common law malice, or acts with knowledge that the statement was false or with a reckless
disregard as to its truth.” Id. (quoting Meloff v. New York Life Ins. Co., 240 F.3d 138, 146 (2d Cir.
2001)) (alterations, internal quotation marks, and additional citation omitted). Common law
malice is established by a showing of “spite or ill will.” Kamchi v. Weissman, 1 N.Y.S.2d 169,
182 (N.Y. App. Div. 3d Dept 2014). It is the defendant’s burden to demonstrate the facts upon
which the asserted privilege depends. Conti, 535, F. Supp. 3d at 275.
“The common-interest privilege extends to a communication made by one person to
another upon a subject in which both have an interest.” Moraes v. White, No. 21 Civ. 4743, 2021
WL 5450604, at *14 (S.D.N.Y. Nov. 22, 2021) (citation & internal quotation marks omitted). This
particular privilege “applies only to communications that are ‘published to an extremely limited,
clearly defined group of private persons with an immediate relationship to the speaker, such as a
family member or an employer’s own employees.’” Id. (quoting Konikoff v. Prudential Ins. Co.
of Am., 234 F.3d 92, 99 (2d Cir. 2000)). “To invoke the privilege, the parties need only have such
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a relation to each other as would support a reasonable ground for supposing an innocent motive
for imparting the information.” Id. (quoting Scott v. Thayer, 75 N.Y.S.3d 603, 605 (2018))
(internal quotation marks omitted).
Here, Osborn argues that the common-interest privilege protects the statements in his
opinion letter because he was acting as QLS’s “outside counsel” and he wrote the email to the
Board of Directors during, and in furtherance of, that representation. ECF No. 5-1 at 16. In
response, Boyd contends that the PAC plausibly pleads that Osborn made the statements at issue
“in bad faith,” and that they are therefore not protected by the privilege. ECF No. 8-1 at 3.
1. Whether Privilege Applies
First, the Court considers whether the qualified common-interest privilege applies in the
first place. “New York courts have found that the qualified privilege protects an attorney’s
statements made in furtherance of her representation of her client.” Orenstein, 677 F. Supp. 2d at
710 (citation & internal quotation marks omitted). Indeed, “Courts recognize a common interest
privilege in instances where ‘the good that may be accomplished by permitting an individual to
make a defamatory statement without fear of liability outweighs the harm that may be done to the
reputation of others.’” Loughlin, 558 F. Supp. 3d at 152 (quoting Boehner v. Heise, 734 F. Supp.
2d 389, 399 (S.D.N.Y. 2010)).
Here, Boyd alleges in the PAC that Osborn was retained as “QLS’s legal counsel” and “as
an advisor to the corporation.” ECF No. 8-4 ¶¶ 18, 21. Osborn was acting in the course of that
representation when he made the alleged defamatory statements. See id. ¶ 1 (“This Complaint
seeks damages for defamation per se engaged in by Defendant Steven M. Osborn, Esq. when acting
as legal counsel in New York State to [QLS].”). The importance of permitting Osborn to freely
make statements while counseling his client on internal business affairs “without fear of liability”
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outweighs the potential harm faced by Boyd. See Loughlin, 558 F. Supp. 3d at 152. As in
Orenstein, Osborn’s statements made during his representation of QLS are protected by the
qualified common-interest privilege. See Orenstein, 677 F. Supp. 2d at 710.
Boyd argues that that Osborn cannot rely on any such privilege because he is licensed to
practice law in California—not in New York. However, this argument fails for at least two
reasons. First, the qualified common-interest privilege is not limited to statements made by a
licensed attorney. Rather, it applies more broadly to protect “defamatory communications made
by one person to another upon a subject in which both have an interest.” Orenstein, 677 F. Supp.
2d at 710. Here, QLS and its Board of Directors undoubtedly had an interest in the subject of
Osborn’s communications—QLS’s finances and possible fraud. Moreover, Osborn had been hired
by the Board of Directors precisely for the purpose of providing such communications to the Board
of Directors. Boyd does not argue that the common-interest privilege is too narrow to capture such
communications. See ECF No. 8-1. Indeed, Osborn noted this in his reply brief. See ECF No. 9
at 12.
Second, Boyd cites no case law, nor develops any meaningful argument, as to why
Osborn’s admission to practice law in California but not New York defeats the common-interest
privilege. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“It is not enough merely
to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work,
create the ossature for the argument, and put flesh on its bones.”). Accordingly, Osborn’s cursory
arguments to the contrary fail and the Court finds that the qualified common-interest privilege
applies to the statements made in this case. However, that does not end the inquiry as the Court
must consider whether Boyd has plausibly alleged malice so as to overcome the privilege.
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2. Common Law Malice
As stated above, common law malice is established by a showing of “spite or ill will.”
Kamchi, 1 N.Y.S.2d at 182. In addition, common law malice requires that “spite or ill will” to
have been “the one and only cause for publication.” Hengjun Chao v. Mount Sinai Hosp., 476 F.
App’x 892, 895 (2d Cir. 2012) (summary order).
Here, Boyd alleges in the PAC that Osborn made the statements in his capacity as a retained
advisor to QLS. See ECF No. 8-4 ¶¶ 18, 21. Thus, the Court cannot plausibly infer that spite or
ill will toward Boyd was “the one and only cause for publication” of the statements made by
Osborn. Instead, the allegations in the PAC show that Osborn was making the statements—at least
in part—for the purpose of fulfilling his professional obligation to QLS. In such situations, courts
applying New York law have found no common law malice. See Chao, 476 F. App’x at 895 (“As
the district court correctly recognized, defendants made their allegedly defamatory statements in
the course of fulfilling their professional obligation to investigate and offer their studied views on
Chao’s research integrity.”). Accordingly, Boyd has failed to allege facts supporting a plausible
inference that Osborn made the statements out of spite or ill will.
3. Actual Malice
Finally, the Court turns to actual malice. “To show actual malice, a plaintiff must prove
that the defendant either knew his statements were false or acted with reckless disregard as to
whether they were false.” Conti, 535 F. Supp. 3d at 279. “A person acts with reckless disregard
when he publishes the statement at issue entertaining serious doubts as to the truth of the statement
or having a high degree of awareness that the statement is probably false.” Id.
Here, Boyd alleges Osborn published the statements despite knowing that their source was
QLS President Sam Weiner (whom Boyd alleges undertook illegal actions himself) and Benjamin
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Weiner. ECF No. 8-4 ¶ 21; ECF No. 8-1 at 4. Further, he alleges that Osborn published the
statements without conducting due diligence as to their truthfulness because he did not “review[ ]
the bank records or contact [ ] Mr. Boyd or engage[ ] in any other investigation.” ECF No. 8-4 ¶
20. Putting the email aside, Boyd argues that Osborn “continued to make these same defamatory
and false statements about theft and unlawful conduct by [Boyd]” at the Board meeting even after
Boyd had informed him that the statements were not true. ECF No. 8-4 ¶ 27. Each of these
arguments fail.
First, the Court notes that “[f]ailure to investigate does not in itself establish bad faith,” and
thus Boyd’s allegations that Osborn should have reviewed additional documents, such as bank
records, is not, standing alone, sufficient for a finding of actual malice. See Biro v. Conde Nast,
807 F. 3d 541, 546 (2d Cir. 2015). Second, even if the Weiners were an unreliable source,
Osborn’s email makes clear that his statements were made based upon information reviewed in,
and an interpretation of, QLS’s bylaws, charter, and voting agreement. In addition, he reviewed
and considered an email from Boyd. See ECF No. 16 at 1-4. To establish actual malice based
upon an unreliable source, the statement must have been made “wholly” based upon information
from that source. See Biro, 807 F. 3d at 546. Here, Boyd’s allegations, and the October 10, 2020
email itself, do not permit the plausible inference that Osborn wholly relied on statements from
the alleged unreliable source in making his statements.
Finally, the Court considers whether Boyd has stated a claim based upon Osborn making
the statements at the Board meeting after Boyd had informed him of their falsity. “Publication in
the face of a denial by plaintiffs of a statement’s truth does not demonstrate actual malice.”
Contemporary Mission, Inc. v. New York Times Co., 665 F. Supp. 248, 270 (S.D.N.Y. 1987).
Accordingly, Osborn making the statements a second time at that Board meeting despite “being
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on notice within one hour of sending his October 10, 2020 email” that the statements in the email
were false, is not sufficient to support a finding of actual malice. ECF No. 8-4 ¶ 23.
Though the PAC is replete with conclusory allegations that Osborn’s statements were made
“knowingly,” “in bad faith,” and “intentionally made to damage [Boyd] and his reputation,” ECF
No. 8-4 ¶¶ 2, 15, 22, the PAC “provides neither factual support for these conclusions nor any
explanation of why either [Osborn] or his law firm would have an interest in acting maliciously
toward [Boyd].” See Orenstein, 677 F. Supp. at 711.
For all the reasons stated above, Boyd has not alleged facts from which the Court can draw
a plausible inference that Osborn made the statements with common law or actual malice.
Accordingly, the statements are protected by the qualified common-interest privilege and Osborn’s
motion to dismiss is GRANTED.
CONCLUSION
For the foregoing reasons, Osborn’s motion to dismiss, ECF No. 5, is GRANTED and
Boyd’s motion to amend the complaint, ECF No. 8, is DENIED. Because Boyd amended his
complaint in response to Osborn’s motion, the Court declines to provide him with another
opportunity to do so. The Clerk shall enter judgment and close this case.
IT IS SO ORDERED.
Dated: May 6, 2022
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
United States District Judge
Western District of New York
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