Jang v. Trustees of St. Johnsbury Academy, The et al

Filing 42

OPINION AND ORDER: Plaintiff's 37 MOTION to Alter Judgment, MOTION to Amend Judgment, and 38 MOTION for Leave to Amend Complaint are DENIED. Signed by Judge John M. Conroy on 10/12/2018. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Soojung Jang, Ph.D.,
Plaintiff,
v.

Civil Action No. 2:17-cv-162-jmc

Trustees of St. Johnsbury Academy,
Kingdom Development Company, Inc.,
Defendants.
OPINION AND ORDER
(Docs. 37, 38)
On July 9, 2018, this Court dismissed the Complaint in this matter for failure
to state a claim plausibly alleging defamation (Doc. 35 at 46), and, on the same day,
entered judgment against Plaintiff Soojung Jang, Ph.D. (Doc. 36.) Dr. Jang now
moves to alter or amend the judgment (Doc. 37), and, if the judgment is altered or
amended, Dr. Jang moves for leave to amend her Complaint in order “to set forth all
the remaining elements for a claim of defamation.”1 (Doc. 38 at 1.) Defendants
Trustees of St. Johnsbury Academy (the Academy) and Kingdom Development
Company, Inc. (KDC) jointly oppose both motions. (Docs. 40, 41.) Concluding that
Dr. Jang has failed to provide an adequate basis for vacating the judgment and
that, in any case, amendment would be futile, Dr. Jang’s Motion to Alter or Amend

This Court also dismissed Dr. Jang’s Complaint for failure to state a claim plausibly
alleging “interference with a professional relationship,” but Dr. Jang does not seek to amend her
Complaint to allege the elements of this tort. (See generally Docs. 35, 37, 38.)
1

the Judgment (Doc. 37) and her Motion for Leave to Amend the Complaint (Doc. 38)
are DENIED.
Factual and Procedural Background
The brief summary that follows contains only the facts and procedural
background necessary to resolve the motions presently before the Court. A
comprehensive account of the factual and procedural background giving rise to
Dr. Jang’s suit may be found in this Court’s previous Opinion and Order. (See
generally Doc. 35.)
In late October 2017, the Academy and KDC successfully opened the
St. Johnsbury Academy-Jeju (SJA-Jeju) on Jeju Island in the Republic of Korea.
(Doc. 8 at 7.) In establishing SJA-Jeju, the Academy and KDC entered into a
confidential Cooperative Venture Agreement (CVA) with the Jeju Free
International City Development Center, a corporation owned by the Republic of
Korea, and Haewul, Inc., a wholly owned subsidiary of the Jeju Free International
City Development Center. (Doc. 8 at 4; see Doc. 8-2 at 1–2, § d; id. at 1, § a.)
Dr. Jang was a member of the Establishment and Operation of International
Schools Subcommittee (the Establishment Subcommittee), a subcommittee formed
by the Jeju Provincial Office of Education to review and approve the SJA-Jeju
project. (Doc. 1 at 3, ¶ 23.) Dr. Jang is also a member of Jeju Solidarity for
Participatory Self Government and Environmental Preservation (Jeju Solidarity), a
community organization focused on ensuring that students on Jeju receive a proper
education. (Id. at 2, ¶¶ 9, 11, 12–13.) In her role on the Establishment

2

Subcommittee, Dr. Jang asserted in her original Complaint that she was authorized
to investigate the relationship between the entities founding SJA-Jeju and, in
particular, to ascertain the Academy and KDC’s role in the governance and
financing of SJA-Jeju. (Id. at 3, ¶ 23; see also Doc. 15 at 2.) Specifically, as she
stated in her original Complaint, her investigations included seeking “clarification
of [the Academy and KDC’s] relationship, their control of [SJA-Jeju], and liability
for any losses on behalf of [Jeju Solidarity]” (Doc. 1 at 3, ¶ 24), requesting “records
concerning the viability of the CVA, as member of POE” (id. ¶ 25), and pursuing
“records and information.” (Id. at 4, ¶ 27.) Dr. Jang’s investigation also led her to
contact Attorney Debra Wilson, the Chief Counsel of the National Association of
Independent Schools in the United States. (See Doc. 8-4.) Attorney Wilson
corresponded with Dr. Jang regarding the specific business structure of the
Academy and KDC and their relationship to SJA-Jeju; eventually, Attorney Wilson
offered to reach out to the Academy and KDC on behalf of Dr. Jang. (Id. at 6.)
After contacting the Academy and KDC, Attorney Wilson concluded that Dr. Jang’s
claims had no merit, at least according to the Academy and KDC. (Doc. 1-1 at 2,
§ a; Doc. 8-1 at 4, ¶ 10.) Ultimately, Attorney Wilson’s findings were presented to
the Establishment Subcommittee, who voted to reconfirm the CVA despite
Dr. Jang’s objections. (Doc. 1-1 at 2, § e.)
Subsequently, on July 12, 2016, Attorney Bruce Palmer, as counsel for the
Academy and KDC, sent a letter (the Letter) to the Governor of Education for Jeju
Island, and copied the Establishment Subcommittee on which Dr. Jang sat. (See

3

generally Doc. 1-1.) The Letter detailed Dr. Jang’s investigatory efforts in the
Republic of Korea and the United States and characterized her investigation as an
attempt to undermine the establishment of SJA-Jeju. (Id.) In particular, Attorney
Palmer expressed a “deep concern[] about unauthorized and disruptive actions and
false statements by Dr. Soonjung Jang.” (Id. at 1.) Given these purported concerns,
Attorney Palmer asked the Governor of Education to remove Dr. Jang from the
subcommittee or, at the least, to censure and disqualify Dr. Jang from “any further
participation in or consideration of the approval of [SJA-Jeju].” (Id.)
As a basis for this recusal request, Attorney Palmer alleged that Dr. Jang, at
every turn, “challenged the legality and legitimacy of [the Academy’s] and KDC’s
efforts to participate in this project”; that Dr. Jang “attacked the validity of the
Cooperative Venture Agreement”; that Dr. Jang “knowingly defamed [the Academy]
and KDC in the process, alleging without any factual basis that each seeks through
the CVA and other contracts to avoid paying taxes”; that Dr. Jang accused the
Academy’s headmaster and KDC’s CEO of “illegally entering into the agreements
without actual authority”; and that Dr. Jang repeatedly questioned the quality of
the Academy. (Id.) According to the Letter, these actions and statements by
Dr. Jang amounted to “an unjustified, concerted campaign of mistruth about [the
Academy] and KDC . . . in a transparent effort to scuttle [SJA-Jeju].” (Id. at 2.)
Finally, counsel highlighted Dr. Jang’s investigatory efforts, including
Dr. Jang’s contact with Attorney Wilson and Attorney Wilson’s subsequent

4

independent review and approval of the CVA2 (id. at 2, §§ a, c); Dr. Jang’s attempts
to refute Attorney Wilson’s analysis (id. § d); and, the Establishment
Subcommittee’s subsequent vote reapproving the CVA. (Id. § e.) In sum, counsel
concluded that “[t]he campaign by Dr. Jang to impugn SJA and the integrity of its
officials demonstrates her deep bias and disregard for traditional customs and laws”
and “merit[s] disqualification to serve on the [Establishment Subcommittee]
responsible to review and approve the project.” (Id. at 3.)
On August 31, 2017, Dr. Jang filed the Complaint in this case, attaching the
Letter to her Complaint, and alleged that the Letter is “libelous and defamatory in
that it maliciously claimed that the statements of [Dr. Jang] were unauthorized,
disruptive and false.” (Doc. 1 at 4, ¶ 30.) As noted above, on July 9, 2018, this
Court dismissed Dr. Jang’s Complaint for failure to state a defamation claim.
(Doc. 35 at 46.) In dismissing the Complaint, this Court concluded that Dr. Jang
failed to state a defamation claim for two reasons. First, Dr. Jang failed to
adequately plead the elements of common law defamation under Vermont law;3
specifically, Dr. Jang’s Complaint did not contain sufficient factual allegations for
this Court to reasonably infer either that the allegedly defamatory Letter contained
a substantially false statement or that, in publishing the Letter, the Academy and

The Court notes that, in the Letter, counsel described Dr. Jang’s interaction with Attorney
Wilson as occurring in February 2015. (Doc. 1-1 at 2, § a.) But given the other evidence in the
record (see, e.g., Doc. 8 at 4; Doc. 8-4 at 9–10), it is clear that the correct date is February 2016.
2

The elements of defamation under Vermont law are as follows: “(1) a false and defamatory
statement concerning another; (2) some negligence, or greater fault, in publishing the statement;
(3) publication to at least one third person; (4) lack of privilege in the publication; (5) special
damages, unless actionable per se; and (6) some actual harm so as to warrant compensatory
damages.” Lent v. Huntoon, 143 Vt. 539, 546–47, 470 A.2d 1162, 1167–68 (1983) (footnote omitted).
3

5

KDC acted with the common law malice necessary to overcome their privileged
communication. (Id. at 50–51, 56.) Second, Dr. Jang failed to plead credible facts
justifying an inference that the Academy and KDC acted with “some negligence, or
greater fault, in publishing” the Letter to the Governor and the Establishment
Subcommittee.4 (Id. at 60.) For these reasons, on July 9, 2018, this Court
dismissed Dr. Jang’s Complaint for failure to state a claim plausibly alleging
defamation, and, on the same day, entered judgment against Dr. Jang. (Doc. 36.)
Subsequently, on July 16, 2018, Dr. Jang filed her Motion and Memorandum
to Alter or Amend Judgment (Doc. 37), and her Motion for Leave to Amend her
Complaint. (Doc. 38.) In her first postjudgment motion, Dr. Jang seeks “to alter or
amend the judgment dismissing her defamation complaint, to allow plaintiff leave
to amend her complaint for defamation with more specificity pursuant [to] Fed. R.
Civ. P. 59 and 60(b)(6).” (Doc. 37 at 1.) As a basis for invoking Rule 59 and
Rule 60(b)(6), Dr. Jang states that “leave to alter and amend the judgment should
be granted, since [her] motion to amend her defamation complaint would not be
futile.” (Id.) In the second postjudgment motion—the Motion for Leave to Amend

In interpreting the federal constitution and the U.S. Supreme Court’s relevant
jurisprudence, the Vermont Supreme Court has stated that one of the elements of defamation is
“some negligence, or greater fault, in publishing the statement.” Lent, 143 Vt. at 546–47 n.1,
470 A.2d at 1167, 1168 n.1 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974)); see also
Stone v. Banner Pub. Corp., 677 F. Supp. 242, 246 (D. Vt. 1988) (“Under the United States Supreme
Court’s ruling in Gertz v. Robert Welch, 418 U.S. 323, 347 . . . (1974) a private plaintiff in a
defamation suit must prove some fault on the part of the defendant.”). In other words, “strict
liability for all state defamation now appears impermissible” and the plaintiff must plausibly allege,
at least, that the defendant negligently published the allegedly defamatory statement. Lent, 143 Vt.
at 546 n.1; see also Restatement (Second) of Torts § 580B cmt. c (“The strict liability of the common
law has thus expressly been ruled unconstitutional” and “[a] significant measure of fault on the part
of the defendant in regard to the falsity of the communication is required.”).
4

6

her Complaint—Dr. Jang states that she “has now amended the complaint to allege
that the facts asserted by [the Academy and KDC] . . . were substantially false
statements of fact with actual malice, and made without privilege, since the letter
was not in response to any request.” (Doc. 38 at 1.) As support for this contention,
Dr. Jang has appended a redlined Amended Complaint (Doc. 38-1), as well as a
document entitled “False Statements,” which purportedly sets forth the false
statements made in the Letter by counsel for the Academy and KDC. (Doc. 38-3.)
The Academy and KDC oppose both motions. (Docs. 40, 41.) In their joint
memorandum opposing Dr. Jang’s Motion to Alter or Amend the Judgment, the
Academy and KDC argue that Dr. Jang has advanced no cognizable argument for
vacating the judgment under the standards set forth under either Rule 59 or
Rule 60(b)(6). (Doc. 40 at 1.) Similarly, the Academy and KDC jointly oppose
Dr. Jang’s attempt to amend her original complaint, asserting that Dr. Jang’s
proposed Amended Complaint fails to adequately plead defamation. (Doc. 41 at 2.)
Analysis
As set forth below, the Court concludes that Dr. Jang does not identify a valid
basis for vacating or setting aside the judgment under either Rule 59 or
Rule 60(b)(6) and that, in any case, amendment would be futile under Fed. R. Civ.
P. 15(a). Accordingly, Dr. Jang’s Motion and Memorandum to Alter or Amend
Judgment (Doc. 37), and her Motion for Leave to Amend her Complaint (Doc. 38),
must be DENIED.

7

I.

Legal Standard
“‘[A] party seeking to file an amended complaint postjudgment must first

have the judgment vacated or set aside pursuant to [Rules] 59(e) or 60(b).’”
Williams v. Citigroup Inc., 659 F.3d 208, 213 (2d Cir. 2011) (second alteration in
original) (quoting Ruotolo v. City of New York, 514 F. 3d 184, 191 (2d Cir. 2008));
Nat’l Petrochemical Co. of Iran v. M/T Stolt Sheaf, 930 F.2d 240, 245 (2d Cir. 1991)
(“Unless there is a valid basis to vacate the previously entered judgment, it would
be contradictory to entertain a motion to amend the complaint.”) By requiring a
party to advance a valid basis for vacating the judgment, the liberal amendment
policy set forth in Fed. R. Civ. P. 15(a) is “tempered by considerations of finality.”
Williams, 659 F.3d at 213. “The merit of this approach is that ‘[t]o hold otherwise
would enable the liberal amendment policy of Rule 15(a) to be employed in a way
that is contrary to the philosophy favoring finality of judgments and the expeditious
termination of litigation.’” Nat’l Petrochemical Co. of Iran, 930 F.2d at 245
(alteration in original) (quoting 6 C. Wright & A. Miller, Federal Practice and
Procedure § 1489, at 694 (1990); see also State Trading Corp. of India v.
Assuranceforeningen Skuld, 921 F.2d 409, 418 (2d Cir. 1990) (“When the moving
party has had an opportunity to assert the amendment earlier, but has waited until
after judgment before requesting leave, a court may exercise its discretion more
exactingly.”). Still, the Second Circuit has made clear that “considerations of
finality do not always foreclose the possibility of amendment, even when leave to
replead is not sought until after the entry of judgment.” Williams, 659 F.3d at 213.

8

As a result, the Second Circuit has indicated that, in view of the liberal pleading
standards set forth in Rule 15(a), it “‘might be appropriate in a proper case to take
into account the nature of the proposed amendment in deciding whether to vacate
the previously entered judgment,’” id. (quoting Ruotolo, 514 F. 3d at 191),
“imply[ing] that the merits of the proposed amendment should factor into the
Court’s calculus in certain circumstances.” Faryniarz v. Ramirez, 62 F. Supp. 3d
240, 248 (D. Conn. 2014).
Given the precedent, this Court first considers Dr. Jang’s postjudgment
motions under the standards applicable to Rule 59 and Rule 60(b)(6) and then turns
to analyzing Dr. Jang’s postjudgment motions under Rule 15(a).
II.

Rule 59 and Rule 60(b)(6)
As an initial matter, the Court concludes that Dr. Jang does not identify a

valid basis for vacating or setting aside the judgment under either Rule 59 or
Rule 60(b)(6).
“It is well-settled that Rule 59 is not a vehicle for relitigating old issues,
presenting the case under new theories, securing a rehearing on the merits, or
otherwise taking a ‘second bite at the apple.’” Sequa Corp. v. GBJ Corp., 156 F.3d
136, 144 (2d Cir. 1998). For that reason, the standard for granting a motion under
Rule 59 is “strict,” and “reconsideration will generally be denied unless the moving
party can point to controlling decisions or data that the court overlooked.”
Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012)
(quoting Shrader v. CSX Transp., Inc., 70 F. 3d 255, 257 (2d Cir. 1995)).

9

Specifically, a motion for reconsideration should be granted “only when the
defendant identifies an intervening change of controlling law, the availability of
new evidence, or the need to correct a clear error or prevent manifest injustice.”
Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104
(2d Cir. 2013) (internal quotation marks omitted). Ultimately, the decision to grant
or deny a motion for reconsideration is within “the sound discretion of the district
court.” Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009) (internal quotation marks
omitted).
Like Rule 59, the decision to grant relief under Rule 60(b) is “committed to
the sound discretion of the district court.” Shukla v. Sharma, No. 07-CV-2972
(CBA)(CLP), 2014 WL 4437278, at *3 (E.D.N.Y. Sept. 9, 2014) (citing Nemaizer v.
Baker, 793 F.2d 58, 61 (2d Cir. 1986)). “[T]his discretion is especially broad under
[Rule 60(b)(6)], because relief under it is to be granted when appropriate to
accomplish justice.” Id. (quoting Int’l Controls Corp. v. Vesco, 556 F.2d 665, 670 (2d
Cir. 1977)). Although Rule 60(b)(6) provides “a grand reservoir of equitable power
to do justice in a particular case,” this power “is properly invoked only when
extraordinary circumstances justify relief or when the judgment may work an
extreme and undue hardship.” Empresa Cubana Del Tabaco v. Gen. Cigar Co. Inc.,
385 F. App’x 29, 31 (2d Cir. 2010) (internal quotation marks omitted). “New
arguments based on hindsight regarding how a movant would have preferred to
have argued its case do not provide grounds for Rule 60(b) relief.” Westport Ins.
Corp. v. Goldberger & Dubin, P.C., 255 F. App’x 593, 595 (2d Cir. 2007).

10

Here, other than a passing reference to Rule 59, Dr. Jang does not identify an
intervening change of controlling law, the availability of new evidence, or the need
to correct a clear error or prevent manifest injustice. Cf. Kolel Beth Yechiel Mechil
of Tartikov, 729 F.3d at 104. Similarly, Dr. Jang only briefly cites Rule 60(b)(6) and
makes no argument that “extraordinary circumstances justify relief” or that the
judgment “work[s] an extreme and undue hardship.” Empresa Cubana Del Tabaco,
385 F. App’x at 31. Instead, rather than advancing a valid basis to satisfy either
rule, Dr. Jang seeks to submit an Amended Complaint in order “to set forth all the
remaining elements of defamation.” (Doc. 38.) In other words, Dr. Jang is
attempting to vacate this Court’s judgment in order to relitigate the same issues
previously decided by this Court. This is not a sufficient basis under either Rule 59
or Rule 60(b)(6) for disregarding the value of finality and the expeditious
termination of litigation. See Sequa Corp., 156 F.3d at 144; Westport Ins. Corp.,
255 F. App’x at 595.
Nevertheless, as noted above, the Second Circuit has made clear that
“considerations of finality do not always foreclose the possibility of amendment
[under Rule 15], even when leave to replead is not sought until after the entry of
judgment.” Williams, 659 F.3d at 213. In this case, Dr. Jang asserts that “leave to
alter and amend the judgment should be granted, since [her] motion to amend her
defamation complaint would not be futile.” (Doc. 37.) Although “futility” is not a
valid basis for vacating or setting aside a judgment under Rule 59 or Rule 60(b)(6),
see Empresa Cubana Del Tabaco, 385 F. App’x at 31, whether or not an amendment

11

is “futile” does apply to the inquiry under Rule 15(a). For that reason, in deciding
whether to vacate the judgment, the Court now turns to analyzing the merits of
Dr. Jang’s proposed Amended Complaint under Rule 15(a). See Faryniarz, 62 F.
Supp. 3d at 248 (analyzing motion to amend, despite plaintiff’s failure to satisfy
Rule 60(b)).
III.

Rule 15(a)
“[A] Rule 15(a) motion should be denied only for such reasons as undue delay,

bad faith, futility of the amendment, and perhaps the most important, the resulting
prejudice to the opposing party.” Aetna Cas. & Sur. Co. v. Aniero Concrete Co., Inc.,
404 F.3d 566, 603 (2d Cir. 2005) (internal quotation marks omitted); see also Foman
v. Davis, 371 U.S. 178, 182 (1962) (stating a court should deny leave to amend only
upon “undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment, futility of
amendment”). “An amendment is considered ‘futile’ if the amended pleading fails to
state a claim.” Faryniarz, 62 F. Supp. 3d at 249 (citing S.S. Silberblatt, Inc. v. East
Harlem Pilot Block, 608 F.2d 28, 42 (2d Cir. 1979)). In order to state a claim upon
which relief may be granted, “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. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). Although the court must accept factual assertions in a complaint as
true, this presumption of truth does not apply “to legal conclusions” or “[t]hreadbare

12

recitals of the elements of a cause of action, supported by mere conclusory
statements.” Id.; see also Faber v. Metropolitan Life Ins. Co., 648 F.3d 98, 104
(2d Cir. 2011) (“We are not . . . bound to accept conclusory allegations or legal
conclusions masquerading as factual conclusions.” (internal quotation marks
omitted)).
Here, because Dr. Jang’s proposed Amended Complaint does not plausibly
state a claim for relief on its face, amendment would be futile under these
circumstances. As discussed above, this Court dismissed Dr. Jang’s original
defamation claim for several reasons. First, she did not adequately plead the
elements of common law defamation under Vermont law;5 specifically, Dr. Jang’s
Complaint did not contain sufficient factual allegations for this Court to reasonably
infer either that the allegedly defamatory Letter contained a substantially false
statement or that, in publishing the Letter, the Academy and KDC acted with the
common law malice necessary to overcome their privileged communication. (Doc. 35
at 50–51, 56.) Second, Dr. Jang failed to plead credible facts justifying an inference
that the Academy and KDC acted with “some negligence, or greater fault, in
publishing” the Letter to the Governor and the Establishment Subcommittee.6

To reiterate, the elements of defamation under Vermont law are as follows: “(1) a false and
defamatory statement concerning another; (2) some negligence, or greater fault, in publishing the
statement; (3) publication to at least one third person; (4) lack of privilege in the publication; (5)
special damages, unless actionable per se; and (6) some actual harm so as to warrant compensatory
damages.” Lent, 143 Vt. at 546–47, 470 A.2d at 1167–68.
5

As noted above, the Vermont Supreme Court has stated that one of the elements of
defamation is “some negligence, or greater fault, in publishing the statement.” Lent, 143 Vt. at 546–
47 n.1, 470 A.2d at 1167, 1168 n.1 (citing Gertz, 418 U.S. at 347); see also Stone, 677 F. Supp. at 246.
6

13

Dr. Jang’s proposed Amended Complaint (Doc. 38-1) does not resolve any of these
flaws, any one of which undermines her defamation claim.
First, to demonstrate that the Letter contained a substantially false
statement, Dr. Jang’s proposed Amended Complaint now states that she “was
within her authority as a member of the [Establishment Subcommittee]” to
investigate the Academy and KDC (Doc. 38-1 at 3, ¶ 20), and further asserts that
the Letter contained “false statements of facts” as set forth in the appended
“exhibit.” (Id. at 4, ¶ 24.) This “exhibit” contains a list of “False Statements” that
generally correspond to the Letter’s claims7 and are meant to refute those claims.
For example, Dr. Jang states that, contrary to the Letter’s assertion, she “never
claimed that [St. Johnsbury Academy] was not a private school, but that it is a
voucher school and not a ‘typical’ private school, for which most of the parents pay
tuition directly, as opposed to a government funded high school in Vermont.”
(Doc. 38-3 at 1, § a.) Likewise, the remaining list of “false statements” summarizes
Dr. Jang’s investigations and justifies her “accusations concerning [the Academy]
and KDC.” (Id. at 1, § g.)
As stated in this Court’s previous opinion, however, in portraying her
investigations as justified and “authorized,” Dr. Jang effectively acknowledges that

The Court notes that Dr. Jang has again failed to quote directly from the Letter, despite
this Court’s clear instruction that “[v]agueness as to the complained-of conduct is particularly
inappropriate when pleading a defamation claim” because “the complaint [must] afford defendant
sufficient notice of the communications complained of to enable him to defend himself.” Tannerite
Sports, LLC v. NBCUniversal News Grp., a div. of NBCUniversal Media, LLC, 864 F.3d 236, 251
(2d Cir. 2017) (second alteration in original) (internal quotation marks omitted); see also Bloom v.
Fox News of L.A., 528 F. Supp. 2d 69, 74 (E.D.N.Y. 2007) (“[F]ederal courts do require that the
alleged defamatory statements be pleaded with sufficient specificity to put the defendants on notice.”
(internal quotation marks omitted)).
7

14

she undertook the acts described in the Letter. In Vermont, “it is not necessary to
prove the literal truth of the accusation in every detail, . . . it is sufficient to show
that the imputation is substantially true, or, as it is often put, to justify the ‘gist,’
the ‘sting,’ or the ‘substantial truth’ of the defamation.” Weisburgh v. Mahady,
147 Vt. 70, 73, 511 A.2d 304, 306 (1986) (quoting W. Prosser & W. Keeton, The Law
of Torts § 116, at 842 (5th ed. 1984)). It is plain that the acts described in the Letter
and corroborated by Dr. Jang’s Amended Complaint are substantially true.
Although the parties disagree about the motivations and purpose for Dr. Jang’s
acts, those disagreements are a matter of pure opinion and are therefore not
actionable. Cf. Knelman v. Middlebury Coll., 898 F. Supp. 2d 697, 720 (D. Vt. 2012)
(“Courts have . . . routinely rejected defamation claims based upon a ‘pure’ opinion
that is not susceptible of being proven true or false.”). Accordingly, Dr. Jang’s
proposed Amended Complaint does not plausibly allege that the Letter contained a
substantially false statement.
Similarly, Dr. Jang’s Amended Complaint contains only conclusory
allegations that, in publishing the Letter, the Academy and KDC acted with the
common law malice necessary to overcome their privileged communication.
Dr. Jang’s Amended Complaint now states that the Academy and KDC
“maliciously” requested that Dr. Jang be removed the Establishment Subcommittee
because “no request was made for the [L]etter.” (Doc. 38-1 at 4, ¶ 25.) Not only
does this new and “threadbare” assertion fail to adequately allege common law
malice, Iqbal, 556 U.S. at 678, but also this allegation fails to correctly state the

15

common law privilege at issue. As recognized by Vermont law, the privilege to
publish information to protect legitimate business interests applies “as long as the
[person communicating] reasonably believes that [the] information ‘affects a
sufficiently important interest of the recipient or a third person’ and the [person
communicating] was either under a legal duty to communicate the information to
the recipient or communicated the information in response to a request.” Skaskiw
v. Vermont Agency of Agric., 2014 VT 133, ¶ 12 n.2, 198 Vt. 187, 112 A.3d 1277
(quoting Restatement (Second) of Torts § 595). Because an attorney has a legal
duty arising out of the attorney’s fiduciary relationship with his or her clients, the
privilege protects the attorney’s honest and reasonable communications intended to
protect his or her clients’ business interests. Restatement (Second) of Torts § 595
cmt. f. (“[The privilege] is applicable to . . . an attorney . . . making communications
. . . to a third person, if the communication is made in a reasonable effort to protect
the interest that is entrusted to [the attorney by his or her clients].”). In other
words, under these circumstances, it is immaterial to the privilege whether or not
the Letter was requested by the Establishment Subcommittee or Governor.
Finally, Dr. Jang’s proposed Amended Complaint contains only conclusory
allegations that the Academy and KDC negligently delivered the Letter to the
Governor and the Establishment Subcommittee. As noted above, to satisfy the
constitutional fault requirements imposed by the United States Supreme Court, a
plaintiff pleading a defamation claim in Vermont must allege “some negligence, or
greater fault, in publishing the statement.” Lent, 143 Vt. at 546–47 n.1, 470 A.2d

16

at 1167, 1168 n.1 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974)). Her
Amended Complaint now asserts that the Academy and KDC “negligently” caused
their counsel to publish the Letter and further contends that the Letter
“negligently” interfered with Dr. Jang’s relationship with the Establishment
Subcommittee. (Doc. 38-1 at 4, ¶¶ 23, 25.) But again, merely reciting the
appropriate level of fault does not constitute a credible claim. See Faber, 648 F.3d
at 104 (“We are not . . . bound to accept conclusory allegations or legal conclusions
masquerading as factual conclusions.” (internal quotation marks omitted)). There
must be some factual allegation from which this Court can infer fault and none is
present in Dr. Jang’s proposed Amended Complaint. As a result, Dr. Jang has
failed to plausibly allege negligence.
In sum, because Dr. Jang’s proposed Amended Complaint fails to state a
defamation claim, Dr. Jang’s postjudgment motion seeking leave to amend her
complaint is futile. Moreover, the Court remains mindful that Dr. Jang has failed
under either Rule 59 or Rule 60(b)(6) to identify valid grounds for vacating or
setting aside the judgment. Cf. Williams, 659 F.3d at 213. Accordingly, although
“considerations of finality [under Rule 59 and Rule 60(b)(6)] do not always foreclose
the possibility of amendment,” Williams, 659 F.3d at 213, in this case no basis
exists under Rule 15(a) to depart from the strict standards set forth under Rule 59
and Rule 60(b)(6).

17

Conclusion
For the foregoing reasons, Dr. Jang’s Motion to Alter or Amend the Judgment
(Doc. 37) and her Motion for Leave to Amend the Complaint (Doc. 38) are DENIED.
Dated at Burlington, in the District of Vermont, this 12th day of
October 2018.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge

18