VALERIE CAPRONI, District Judge.
Plaintiff Paul Conti, a psychiatrist, has sued his former patient, Defendant John Doe, for defamation, intentional infliction of emotional distress, and violations of several state criminal statutes.
Plaintiff is a psychiatrist practicing in Portland, Oregon. See Am. Compl. ¶¶ 10, 19. Beginning in May 2016, Plaintiff provided psychiatric treatment to Defendant, a domiciliary of Ohio, as Defendant was addicted to Xanax, was an excessive gambler, and had repeatedly engaged in threatening and destructive behavior. See id. ¶¶ 3, 16-18. Within a few months, Plaintiff diagnosed Defendant with "Narcissistic Personality Disorder, including Borderline and Antisocial traits." Id. ¶ 25. Plaintiff recommended that Defendant taper off his use of Xanax, with the goal of eventually ceasing it altogether, a process known as titration. See id. ¶¶ 26, 28. Defendant, however, continued to abuse Xanax and to engage in other destructive behaviors while under Plaintiff's care. See id. ¶ 27. In April 2017, Plaintiff terminated his treatment of Defendant. See id. ¶ 36. Plaintiff told Defendant and his family that treatment could not be continued safely because Defendant was continuing to abuse drugs, refusing to comply with Plaintiff's treatment program, and sending Plaintiff threatening text messages. See id. ¶¶ 35-36; id. Ex. D.
Between April and November 2017, Defendant sent Plaintiff numerous emails and text messages accusing Plaintiff, inter alia, of committing "fraud" and "malpractice." See id. ¶¶ 37-51; id. Exs. E-I. The emails were laced with profanity and other invectives. See, e.g., id. Exs. B, C, E, F. In several emails, Defendant stated that Plaintiff had "abandoned" him by being "unreachable" while Defendant was attempting to reduce his use of Xanax. See, e.g., id. ¶¶ 40, 43; id. Exs. C, E, F, H, N, O. Defendant also stated that Plaintiff had lied to Defendant's family about Defendant's failure to follow Plaintiff's course of treatment and about the reasons that Plaintiff terminated his treatment of Defendant. See, e.g., id. ¶¶ 42, 44; id. Exs. H, I, J, K. Additionally, Defendant stated that his parents had "caught" Plaintiff "red handed" committing misconduct. Id. Ex. I; see also id. Exs. C, J. Defendant stated that Plaintiff's actions caused Defendant to "relapse" in his drug abuse, id. Exs. C, F, and caused Defendant severe "mental pain," id. Ex N; see also id. ¶¶ 42, 44; id. Exs. I, M.
In these emails, Defendant threatened to "ruin [Plaintiff's] name" id. Ex. J; to bring legal action against Plaintiff, see, e.g., id. Ex. H ("I'm advising you get a legel [sic] team because I'm coming with everything I can. . . ."); id. Ex O ("I'm going to do everything in the power of the law to destroy [you]"); and to otherwise cause harm to Plaintiff, see, e.g., id. Ex. H ("I want to drain you of all your resources. . . ."); id. Ex. K ("I will f*****g bury your a** alive."); id. Ex. L. Defendant also stated that Plaintiff had spent his life "[b]ilk[ing] people out of money," id. Ex. B, and that, when working in a prior position at Brigham and Women's Hospital, Plaintiff did not do "the most bang up job," id. Ex. C. Defendant copied numerous third parties on these emails, including an attorney on faculty at Harvard Law School, several professors of psychiatry, Defendant's parents, and several members of Plaintiff's psychiatry practice. See id. ¶¶ 6, 37, 39, 42-45, 50-51.
In addition to these emails, Defendant orally told several employees and clinicians in Plaintiff's psychiatry practice that Plaintiff had conducted "a therapeutic telephone call while `drunk'" and had "solicited prostitutes while on a work trip." Id. ¶ 57; see also id. ¶ 33.
Plaintiff brings claims against Defendant under New York and Ohio law. As to New York law, Plaintiff brings a claim for defamation, which combines a claim for libel (based on Defendant's emails and text messages) and a claim for slander (based on Defendant's oral statements). See id. ¶¶ 54-58. Plaintiff also brings a claim for intentional infliction of emotional distress ("IIED") under New York law. See id. ¶¶ 76-79. As to Ohio law, Plaintiff brings four claims pursuant to that state's criminal statutes, which Plaintiff argues provide him a private right of action.
To survive a motion to dismiss, "a complaint must allege sufficient facts, taken as true, to state a plausible claim for relief." Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). "Although for the purposes of a motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [the court] `[is] not bound to accept as true a legal conclusion couched as a factual allegation.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). "[T]o survive a motion under Rule 12(b)(6), a complaint does not need to contain details or elaborate factual allegations, but only allegations sufficient to raise an entitlement to relief above the speculative level." Kieler v. Harlequin Enters., Ltd., 751 F.3d 64, 70 (2d Cir. 2014) (internal citation omitted).
Defendant moves to dismiss Plaintiff's claim for libel on the ground that Defendant's emails and texts are not reasonably susceptible of a defamatory construction. The statements in Defendant's emails that Plaintiff abandoned Defendant in treatment, that Plaintiff lied to Defendant's family about the reasons for terminating treatment, and that Plaintiff was "caught" committing misconduct are all reasonably susceptible of a defamatory construction; accordingly, Defendant's motion to dismiss is DENIED as to those statements. The statements in Defendant's emails that Plaintiff "[b]ilked people out of money" and that Plaintiff did not do a "bang up job" while working at Brigham and Women's Hospital, however, cannot support a defamatory construction; accordingly, Defendant's motion to dismiss is GRANTED as to those statements.
The parties agree that New York law applies to Plaintiff's defamation claim.
Defendant's motion focuses primarily on the first element. See Def.'s Mem. of Law at 4-11. "Whether particular words are defamatory presents a legal question to be resolved by the court in the first instance." Celle, 209 F.3d at 177 (quoting Aronson v. Wiersma, 65 N.Y.2d 592, 593 (1985)); see also Davis v. Boeheim, 24 N.Y.3d 262, 268 (2014). The Court must determine "whether the contested statements are reasonably susceptible of a defamatory connotation," Davis, 24 N.Y.3d at 268 (quoting Armstrong v. Simon & Schuster, Inc., 85 N.Y.2d 373, 380 (1995)), that is, "whether any reading of the complaint supports" a defamatory construction, id. at 272. "If any defamatory construction is possible, it is a question of fact for the jury whether the statements were understood as defamatory." Purgess v. Sharrock, 33 F.3d 134, 140 (2d Cir. 1994).
A "defamatory" writing is one that contains a statement of fact, rather than a statement of "pure opinion." See Davis, 24 N.Y.3d at 268-69 (quoting Gross v. New York Times Co., 82 N.Y.2d 146, 153 (1993)); see also Chau v. Lewis, 771 F.3d 118, 129 (2d Cir. 2014); Purgess, 33 F.3d at 140. New York courts apply a three-factor test to determine whether a reasonable person would consider a statement a "fact" or a nonactionable "opinion":
Davis, 24 N.Y.3d at 270 (quoting Mann v. Abel, 10 N.Y.3d 271, 276 (2008)); see also Gross, 82 N.Y.2d at 153. In applying this test, "the court must give the disputed language a fair reading in the context of the publication as a whole." Armstrong, 85 N.Y.2d at 380; see also Celle, 209 F.3d at 177; Davis, 24 N.Y.3d at 270.
In addition, New York courts distinguish between statements of "pure opinion" and those of "mixed opinion." Davis, 24 N.Y.3d at 269; see also Chau, 771 F.3d at 129; Steinhilber v. Alphonse, 68 N.Y.2d 283, 289 (1986). Statements of "pure opinion" cannot support a defamation claim, as they are protected from liability under New York's constitution, but statements of "mixed opinion" can. See Celle, 209 F.3d at 178; Davis, 24 N.Y.3d at 269; Steinhilber, 68 N.Y.2d at 289-90. A statement of "mixed opinion" is one that "implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it." Davis, 24 N.Y.3d at 269 (quoting Steinhilber, 68 N.Y.2d at 289); see also Chau, 771 F.3d at 129. Put differently, a statement of mixed opinion is one that "may be reasonably understood as implying the assertion of undisclosed facts justifying the opinion." Celle, 209 F.3d at 178 (quoting Steinhilber, 68 N.Y.2d at 289). A statement of "pure opinion," on the other hand, is one that "does not imply that it is based upon undisclosed facts," or one that is fully "accompanied by a recitation of the facts upon which it is based." Davis, 24 N.Y.3d at 269; see also Chau, 771 F.3d at 129; Gross, 82 N.Y.2d at 154-55; Steinhilber, 68 N.Y.2d at 289-90.
Defendant's emails contain several clear statements of fact. In numerous emails, Defendant stated that Plaintiff "abandoned [him] in treatment," Am. Compl. Ex. B, including by being "unreachable" while Defendant was attempting to reduce his use of Xanax, id. Ex. C. Defendant provided examples and details to support these allegations, asserting that Plaintiff was "out of town at least 2 weeks of the month" during which Defendant was attempting to reduce his Xanax use, id. Ex. H, and that, in one instance, Defendant "had to beg and plead with [Plaintiff's] assistant [to] get ahold [of]" Plaintiff, id. Ex. E.
Defendant's accusations that Plaintiff lied to Defendant's family and that Plaintiff was caught committing misconduct are also reasonably susceptible of a defamatory connotation. According to Defendant, Plaintiff told Defendant's family that Plaintiff had to terminate his treatment of Defendant because Defendant "wasn't following the titration process." Am. Compl. Ex. H. In his messages, Defendant asserted that this explanation was false and a "poor attempt of deflection." Id.; see also, e.g., id. Ex. J ("You flat out lied about the titration."). Defendant stated that the true reason that Plaintiff terminated treatment was that Defendant's parents "caught" Plaintiff committing some sort of misconduct. See, e.g., id. Ex. C ("[T]he only reason you terminated treatment was because my parents caught you. . . ."); id. Ex. I ("[Y]ou got red handed caught."); Ex. J ("I still ask myself why . . . did you end treatment?? Was it because it was disrespectful? Was it you were spending to [sic] much time on my case shaming me[?] No it's you got caught. . . . You were caught red handed."). But Defendant did not specify what his parents caught Plaintiff doing, nor did Defendant otherwise describe the factual basis for this assertion. See id. Exs. C, I, J. Drawing all inferences in Plaintiff's favor, as the Court must at this stage, a reader could reasonably infer that some of these statements were assertions of fact (such as the statements that Plaintiff lied to Defendant's family about the reasons for terminating treatment) and others were statements of "mixed opinion" (such as the statements that implied undisclosed facts about misconduct that Plaintiff was "caught" doing). Thus, these statements are actionable under the defamation laws. See Davis, 24 N.Y.3d at 269; see also, e.g., Biro v. Conde Nast, 883 F.Supp.2d 441, 462 (S.D.N.Y. 2012) (statement that the plaintiff had been "[caught] in different lies" implied undisclosed facts about the plaintiff's conduct and, therefore, was an actionable defamatory statement).
The Court is mindful that Defendant's messages were filled with insults, profanity, and other invective, see, e.g., Am. Compl. Ex. F ("Your [sic] nothing but a coward."); id. Ex. J ("Your [sic] a f*****g true definition of cruelty."), and that rhetorical hyperbole, name-calling, and generalized insults are not, without more, actionable under the defamation laws, see Treppel v. Biovail Corp., No. 03-CV-3002, 2004 WL 2339759, at *12 (S.D.N.Y. Oct. 15, 2004) (collecting cases); see also, e.g., McNamee v. Clemens, 762 F.Supp.2d 584, 603-04 (E.D.N.Y. 2011) (accusations that plaintiff "wanted to shake [defendant] down," that plaintiff "is constantly lying," and that plaintiff is "really just crawling up your back to make a buck" were not actionably defamatory); Wahrendorf v. City of Oswego, 72 A.D.3d 1604, 1605 (4th Dep't 2010) (defendant's statements that plaintiffs were "slumlords" and "sociopaths," and that plaintiffs' rental property was a "garbage heap" and a "pig pen" were not actionable). Defendant, however, did more than hurl generalized insults at Plaintiff: Defendant alleged specific instances of Plaintiff's misconduct, including occasions when Plaintiff was allegedly unavailable to help Defendant and particular misrepresentations that Plaintiff allegedly made to Defendant's family. Because these statements are capable of being proven true or false, they can reasonably be viewed as statements of fact. See, e.g., Flamm v. Am. Ass'n of Univ. Women, 201 F.3d 144, 154-55 (2d Cir. 2000); Grayson v. Ressler & Ressler, 271 F.Supp.3d 501, 516-17 & n.8 (S.D.N.Y. 2017) (distinguishing between a statement that an attorney "was subject to a conflict of interest" in a particular case (which was actionable) and a statement that an attorney was generally "uncooperative, abrasive, and dilatory" (which was not actionable); "When the criticism takes the form of accusations of criminal or unethical conduct, or derogation of professional integrity in terms subject to factual verification, the borderline between fact and opinion has been crossed."); Restis v. Am. Coal. Against Nuclear Iran, Inc., 53 F.Supp.3d 705, 721-22 (S.D.N.Y. 2014); Starace v. Chicago Tribune Co., No. 85-CV-9704, 1990 WL 71504, at *3 (S.D.N.Y. May 24, 1990); Armstrong, 85 N.Y.2d at 379 n.5 (accusation that an attorney suborned perjury and committed other unethical conduct was "based not on `opinion' but on alleged factual misstatements").
Defendant argues that no reasonable reader could understand his messages as containing statements of fact, as the messages were a "series of late-night email rants with non-linear contents, frequent misspellings, questionable grammar, and over-the-top vulgarity." Def.'s Mem. of Law at 7. While the Court agrees with Defendant's description of these messages, the Court disagrees with Defendant's legal conclusion. Defendant's rambling and non-linear tone would not be wholly unexpected to a reasonable reader aware of his psychiatric condition. Defendant had been diagnosed with a personality disorder, the symptoms of which included "erratic and impulsive behavior" and "verbal threats," Am. Compl. ¶ 25, and his emails repeatedly stated that he was depressed and suffering emotional distress. See, e.g., id. Ex. I ("I'm sitting here with a depression I never thought I could feel."); id. Ex. M ("You have zero idea the alienation you have caused and me not wanting to live in the world anymore."). Under these circumstances, a reasonable reader might find it unsurprising that Defendant did not take a "business-like and solemn tone," Def.'s Mem. of Law at 7, when complaining about Plaintiff's alleged misconduct. A reasonable reader could discount the erratic and emotional tone from these messages and, nevertheless, view them as expressing underlying, verifiable statements of fact.
Of course, a reasonable reader could also draw the opposite conclusion: that Defendant was so unstable that his messages were simply emotional rants, not statements of fact. But at this stage, the Court's task is to determine whether "any reading of the complaint supports" a defamatory connotation. Davis, 24 N.Y.3d at 272 (emphasis added); see also Purgess, 33 F.3d at 140 ("If any defamatory construction is possible, it is a question of fact for the jury whether the statements were understood as defamatory."). In light of the specific allegations of misconduct in Defendant's messages, the question whether the messages are defamatory cannot be resolved on a motion to dismiss.
For all these reasons, Defendant's motion to dismiss Plaintiff's libel claim is denied as to the statements that Plaintiff abandoned Defendant, that Plaintiff lied about the reasons for terminating his treatment of Defendant, and that Plaintiff was caught committing misconduct.
In one email, Defendant complained about Plaintiff's billing practices and stated that Plaintiff has "[b]ilked people out of money." Am. Compl. Ex. B ("[W]hat the f*** have you done in your life?? Bilked people out of money. . . . I realized you equate everything to money you whore."); id. ("Why was Iam [sic] being billed for those appointments. . . . And in all this sadness I have the only thing you care about is $$$$$$."). Plaintiff argues that these statements are tantamount to allegations that Plaintiff engaged in "fraudulent billing" and, therefore, that they are actionable defamatory statements. Pl.'s Mem. of Law at 9, 16-17. The Court disagrees. Read in context, these statements are clearly hyperbole: they indicate that Defendant was dissatisfied with Plaintiff's services and that, in Defendant's opinion, Plaintiff's treatment sessions were not worth the money. No reasonable reader could interpret these statements as alleging concrete, provable facts, such as that Plaintiff engaged in overbilling or other misconduct. Thus, these statements are not reasonably susceptible of a defamatory connotation.
Defendant also stated that Plaintiff did not do "the most bang up job" when Plaintiff was working at Brigham and Women's Hospital. Am. Compl. Ex. C ("[Y]ou work at brighams women's hospital I hear you didn't [do] the most bang up job."). Plaintiff argues that this statement is actionable because it "implies that other, undisclosed people, for undisclosed reasons, hold a low opinion of [Plaintiff's] performance" at Brigham and Women's Hospital. Pl.'s Mem. of Law at 9 n.3. The Court disagrees. Whether third parties believe that Defendant did not do a "bang up job" is not a fact that is provable as true or false, because the term "bang up job" is imprecise and not readily understood. In addition, the argument that this statement implies something about Plaintiff's professional reputation is a stretch: the statement merely asserts that Defendant "hear[d]" the opinion about Plaintiff's performance, without implying that the opinion is widely held. Accordingly, no reasonable reader could interpret this statement as defamatory.
For all these reasons, Defendant's motion to dismiss is granted as to the statements in his emails about Plaintiff's billing practices and about Plaintiff's performance at Brigham and Women's Hospital.
Plaintiff also sues for slander, alleging that Defendant orally told members of Plaintiff's psychiatry practice that Plaintiff held "a therapeutic telephone call while `drunk'" and "solicited prostitutes while on a work trip." Am. Compl. ¶ 57; see also id. ¶ 33. Defendant moves to dismiss this claim on the grounds that Plaintiff has failed to allege special damages
In order to bring a claim for slander, a plaintiff must either plead special damages or show that the claim falls within one of four "established exceptions." See Liberman, 80 N.Y.2d at 434. The four exceptions, known collectively as "slander per se," are statements that: charge the plaintiff with a serious crime; tend to injure the plaintiff in his or her trade, business or profession; imply that the plaintiff has a loathsome disease; or impute unchastity to a woman. Id. "When statements fall within one of these categories, the law presumes that damages will result, and [special damages] need not be alleged or proven." Id.
Defendant's alleged statement that Plaintiff was "drunk" during a therapeutic session is slander per se because it tends to injure Plaintiff in his profession. "To be actionable as words that tend to injure another in his or her profession, the challenged statement must be more than a general reflection upon [the plaintiff's] character or qualities. Rather, the statement must reflect on her performance or be incompatible with the proper conduct of her business." Golub v. Enquirer/Star Grp., Inc., 89 N.Y.2d 1074, 1076 (1997). The assertion that Plaintiff was intoxicated while conducting a telephonic therapy session bears directly on his fitness to perform his professional duties. Cf. Rutman v. Giedel, 67 A.D.2d 662, 662 (2d Dep't 1979) ("The false accusation that a police officer was drunk or intoxicated while on duty is slanderous per se and requires no allegation or proof of special damages."). Accordingly, because Defendant's statement tended to injure Plaintiff in his profession, it is actionable without proof of special damages.
Defendant's statement regarding Plaintiff's having solicited prostitutes is slander per se because it charges Defendant with a "serious crime." See Casper v. Lew Lieberbaum & Co., No. 97-CV-3016, 1998 WL 150993, at *7 (S.D.N.Y. Mar. 31, 1998) (prostitution is a "sufficiently serious crime[] for the purposes of slander per se"). A crime is "serious" for purposes of the defamation laws if it is "(a) punishable by imprisonment in a state or federal institution, or (b) regarded by public opinion as involving moral turpitude." Id. (quoting Restatement (Second) of Torts § 571); see also Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 62 (2d Cir. 1993). Patronizing a prostitute is a Class A Misdemeanor under New York law, see N.Y. Penal Law § 230.04, punishable by up to one year in prison, see id. § 70.15(1). This crime is sufficiently "serious" to support a claim for slander per se. See Casper, 1998 WL 150993, at *7; see also Weldy, 985 F.2d at 62 (misdemeanors under New York law may be "serious" crimes for purposes of slander per se).
For all these reasons, Plaintiff need not plead special damages as to his claim for slander because he has alleged statements that are slander per se. Defendant's motion to dismiss Plaintiff's slander claim on this ground is, therefore, denied.
Defendant also moves to dismiss Plaintiff's slander claim on the ground that the Amended Complaint fails to plead it with specificity. See Def.'s Mem. of Law at 12-13. Unlike in state court, defamation claims brought in federal court are not subject to a heightened pleading standard. See Biro, 883 F. Supp. 2d at 456. Nevertheless, allegations of defamation pleaded in federal court must "be specific enough to afford [the] defendant sufficient notice of the communications complained of to enable him to defend himself." Id. (quoting Gristede's Foods, Inc. v. Poospatuck (Unkechauge) Nation, No. 06-CV-1260, 2009 WL 4547792, at *8-9 (E.D.N.Y. Dec. 1, 2009)). Specifically, a complaint must "identify the allegedly defamatory statements, the person who made the statements, the time when the statements were made, and the third parties to whom the statements were published." Neal v. Asta Funding, Inc., No. 13-CV-2176, 2014 WL 3887760, at *3 (S.D.N.Y. June 17, 2014) (quoting Mobile Data Shred, Inc. v. United Bank of Switzerland, No. 99-CV-10315, 2000 WL 351516, at *6 (S.D.N.Y. Apr. 5, 2000)).
Here, the Amended Complaint alleges vaguely that Defendant told various "employees and clinicians at Pacific," Plaintiff's practice group, that Plaintiff was "drunk" when he participated in a therapeutic call with Defendant from London and that Plaintiff was "in the company of prostitutes" at around the same time. Am. Compl. ¶ 33; see also id. ¶ 57. The Amended Complaint does not, however, identify precisely to whom Defendant made these statements or the approximate date on which they were made.
Accordingly, Defendant's motion to dismiss Plaintiff's slander claim is granted. Plaintiff is granted leave to file a Second Amended Complaint to include more specific allegations regarding the timing of the oral statements and the identity of the person(s) to whom the statements were made.
Defendant moves to dismiss both defamation claims on the ground that the allegedly defamatory statements are protected by the common interest privilege. Under New York law, "communication[s] made by one person to another upon a subject in which both have an interest" are subject to a "qualified privilege," known as the common interest privilege. Liberman, 80 N.Y.2d at 437; see also Boyd v. Nationwide Mut. Ins. Co., 208 F.3d 406, 409-10 (2d Cir. 2000) ("[G]ood faith communications of a party having an interest in the subject, or a moral or societal duty to speak, are protected by a qualified privilege if made to a party having a corresponding interest or duty."). "The qualified privilege creates a rebuttable presumption of good faith that may constitute a complete defense." Boyd, 208 F.3d at 410 (internal quotation marks omitted).
Defendant argues that his statements are protected by the common interest privilege, because the people to whom Defendant sent the emails and made the oral statements all "share a common interest in [Defendant's] health and well-being." Def.'s Mem. of Law at 11-12. This argument fails, as the pleadings do not contain factual allegations to support it. Defendant, for example, asserts that Alan Dershowitz and Dr. Robin Lippert, who were copied on several messages, are members of Defendant's legal and psychiatric team, respectively; the Amended Complaint and its exhibits, however, do not contain factual allegations to support that assertion. See id. at 11-12. Because the Court may not look outside the pleadings when deciding a motion to dismiss, see Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007), Defendant's argument is without merit. Additionally, the Second Circuit has cautioned district courts against dismissing defamation claims based on the common interest privilege when deciding a Rule 12(b)(6) motion, holding that the privilege is better considered on a motion for summary judgment. See Boyd, 208 F.3d at 410-11; Yukos Capital S.A.R.L. v. Feldman, No. 15-CV-4964, 2016 WL 4940200, at *7 (S.D.N.Y. Sept. 14, 2016). Accordingly, Defendant may re-raise this defense in a future motion for summary judgment if the facts support it.
For all these reasons, Defendant's motion to dismiss Plaintiff's defamation claims based on the common interest privilege is denied.
Plaintiff brings claims pursuant to four Ohio penal statutes, arguing that Ohio law allows private causes of action for violations of the state's criminal provisions.
"A federal court sitting in diversity . . . must apply the choice of law rules of the forum state," here, New York. Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 672 F.3d 155, 157 (2d Cir. 2012) (per curiam) (hereinafter Licci I) (quoting Rogers v. Grimaldi, 875 F.2d 994, 1002 (2d Cir. 1989)); see also Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Under New York's choice-of-law rules for tort cases, "[t]he first step . . . is to determine whether there is an actual conflict between the laws of the jurisdictions involved." Licci I, 672 F.3d at 157 (quoting Wall v. CSX Transp., Inc., 471 F.3d 410, 415 (2d Cir. 2006)); see also In re Allstate Ins. Co., 81 N.Y.2d 219, 223 (1993). If an "actual conflict" exists, "[t]he law of the jurisdiction having the greatest interest in the litigation will be applied." Licci I, 672 F.3d at 157 (quoting GlobalNet Financial.Com, Inc. v. Frank Crystal & Co., 449 F.3d 377, 384 (2d Cir. 2006)); see also Schultz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189, 197 (1985). "Interest analysis is a `flexible approach intended to give controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation.'" Licci I, 672 F.3d at 157-58 (quoting Finance One Pub. Co. v. Lehman Bros. Special Fin., Inc., 414 F.3d 325, 337 (2d Cir. 2005)); see also Cooney v. Osgood Mach., Inc., 81 N.Y.2d 66, 72 (1993).
"[I]nterest analysis distinguishes between two sets of rules: conduct-regulating rules and loss-allocating rules." Licci I, 672 F.3d at 158. Conduct-regulating rules are those that "people use as a guide to governing their primary conduct." Id. Loss-allocating rules are those that "prohibit, assign, or limit liability after the tort occurs." Id. If the conflict concerns conductregulating rules, "the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders." Id. (quoting GlobalNet, 449 F.3d at 384). If the conflict concerns loss-allocating rules, then the choice-of-law analysis requires application of the three-step test articulated in Neumeier v. Kuehner, 31 N.Y.2d 121, 128 (1972). See Sheldon v. PHH Corp., 135 F.3d 848, 853 (2d Cir. 1998); Padula v. Lilarn Properties Corp., 84 N.Y.2d 519, 521 (1994); Cooney, 81 N.Y.2d at 73-74.
Pursuant to Neumeier, if the plaintiff and defendant are domiciled in the same state, then the law of that state controls. See Cooney, 81 N.Y.2d at 73. If the parties are domiciled in different states, then the court must determine whether the law of each state favors its respective domiciliary; if it does, then the law of the state in which the relevant injury occurred should generally be applied. See id. at 73-74. In all other situations, the law of the place of injury
The parties agree that there is an "actual conflict" between the laws of Oregon, where Plaintiff is domiciled, and those of Ohio, where Defendant is domiciled. See Def.'s Mem. of Law at 15; Pl.'s Mem. of Law at 20. Ohio has created a statutory cause of action for damages resulting from any criminal act. See Ohio Rev. Code Ann. § 2307.60(A)(1) ("Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action" brought pursuant to the relevant criminal statute); Jacobson v. Kaforey, 149 Ohio St.3d 398, 400 (2016). Oregon, in contrast, allows private parties to bring statutory causes of action only in limited circumstances, specifically, only if allowing the action "would be consistent with the [relevant] statute, appropriate for promoting its policy, and needed to ensure its effectiveness." Doyle v. City of Medford, 356 Or. 336, 363 (2014). Due to this narrow approach, Oregon's state and federal courts have never created a private right of action to enforce a criminal statute (as far as this Court is aware).
This conflict concerns loss-allocating rules. Conduct-regulating rules establish the standards for determining whether conduct is wrongful, whereas loss-allocating rules determine the remedy for such wrongful conduct. See GlobalNet, 449 F.3d at 384; Cooney, 81 N.Y.2d at 72; Schultz, 65 N.Y.2d at 198. Put differently, conduct-regulating rules lay down the behavioral "rules of the road," GlobalNet, 449 F.3d at 384, whereas loss-allocating rules "prohibit, assign, or limit liability" for violations of those rules, Padula, 84 N.Y.2d at 522; see also Cooney, 81 N.Y.2d at 72 (referring to loss-allocating rules as "postevent remedial rules"); Schultz, 65 N.Y.2d at 198. Here, Ohio's and Oregon's criminal statutes establish the rules for appropriate conduct in those states. In contrast, a private right of action to enforce those statutes determines how to compensate people once those rules have been broken. The private right of action defines the remedy, not the wrong. It is, therefore, a loss-allocating rule under New York's choice-of-law principles.
Because the conflict here concerns loss-allocating rules, the Court must apply the Neumeier framework to determine which state's law applies. See Cooney, 81 N.Y.2d at 73-74. Plaintiff and Defendant are not domiciled in the same state, and the law of each state does not favor its respective domiciliary (because the state of Defendant's domicile, Ohio, would provide a cause of action for Plaintiff, whereas the state of Plaintiff's domicile, Oregon, would not). Thus, the law of the state where Plaintiff sustained his injuries, Oregon, presumptively applies, unless applying a different state's law would advance the purposes of the "relevant substantive law" without "impairing the smooth working of the multistate system" or producing uncertainty.
Plaintiff cannot defeat the presumption that Oregon law applies, as Ohio has a minimal interest in applying its law to this case. Having created a private right of action arising under the state's criminal laws, Ohio has an interest in ensuring that its residents are fully compensated for crimes that cause them injury. This case, however, concerns a resident of Oregon—not Ohio. The Court is hard-pressed to see why Ohio would care whether an Oregon resident were able to recover for violations of Ohio's criminal laws. See Sheldon, 135 F.3d at 854 (when plaintiffs were New York residents, and Michigan law allowed a cause of action for loss of parental consortium but New York law did not, New York law applied; although Michigan had an interest in compensating its residents for this loss, "Michigan can have no appreciable interest in securing that recovery for . . . New Yorkers"); see also Caruolo v. John Crane, Inc., 226 F.3d 46, 58-59 (2d Cir. 2000) ("[B]ecause plaintiffs were Rhode Island domiciliaries, Rhode Island has a significant interest in ensuring that they are adequately compensated. . . . New York, on the other hand, has at best a lesser interest . . . because neither party is a New York domiciliary. . . ."); Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 13 (2d Cir. 1996) ("[A]ny interest that Scotland may have in application of its laws to [a case involving an airplane crash in Scotland] is minimal. Scotland has a legitimate and strong interest in promoting safe air travel and in preventing future accidents in its skies. But that interest is not advanced by the assessment of the loss suffered by this plaintiff [an American domiciliary]." (citation omitted)).
The Court acknowledges that civil causes of action are often intended not only to compensate victims for wrongful conduct, but also to punish and deter that conduct. See, e.g., Restatement (Second) of Conflict of Laws § 146, cmt. e. To the extent that a rule is intended to punish conduct, the state in which the conduct occurred would presumably have a stronger interest in applying its law, in order to police that conduct. See id. Invoking this principle, Plaintiff argues that "Ohio. . . has a stronger interest in regulating criminal conduct in violation of Ohio law that occurs within its borders than Oregon." Pl.'s Mem. of Law at 20; see also id. at 22. The Court is not persuaded. First, it is not clear that Defendant sent the emails and text messages at issue from Ohio. Defendant's connection to Ohio during the relevant time period is tenuous at best: throughout 2016 and 2017, Defendant traveled to Israel, New York, and Las Vegas, and he lived in Oregon for several months while Plaintiff was treating him. See Am. Compl. ¶¶ 17, 19, 24, 27-28. Defendant also moved to Los Angeles at around the time that he began sending the emails and texts at issue. See Am. Compl. ¶ 34. There is no indication in the Amended Complaint that Defendant subsequently returned to Ohio and continued communicating with Plaintiff from there. Because there is no indication that Defendant's allegedly criminal conduct took place in Ohio, Ohio's interest in punishing and deterring that conduct is minimal.
Additionally, by its plain terms, Ohio's right of action does not appear to be intended to punish criminal conduct, as much as it is intended to compensate victims for that conduct. The statute creating the right of action limits Plaintiff's recovery to compensatory damages, and does not allow punitive damages absent special circumstances.
This result is consistent with New York's choice-of-law principles. Like Ohio, Oregon also does not have a strong interest in applying its law to this case: although Oregon restricts private rights of action to limited circumstances, Oregon has no interest in enforcing this rule in a lawsuit in a federal court in New York. When, as here, "the interest of each State in enforcement of its law is roughly equal . . . the situs of the tort is appropriate as a `tie breaker' because that is the only State with which both parties have purposefully associated themselves in a significant way." Cooney, 81 N.Y.2d at 74 (citation omitted). Under these circumstances, "the place of injury," Oregon, is "the traditional choice of law crucible." Id.
For all the foregoing reasons, Oregon law applies to Plaintiff's statutory causes of action. Because Oregon would not allow a private right of action under these circumstances, Plaintiff's statutory claims are dismissed with prejudice.
The parties agree that New York law applies to Plaintiff's IIED claim.
Here, Plaintiff fails to allege any facts suggesting that he experienced severe emotional distress. On the contrary, Plaintiff's responses to Defendant's emails suggest that, as a trained clinician, Plaintiff remained calm and largely unaffected by Defendant's harangues. See, e.g., Am. Compl. Ex. C ("I do not mind him insulting or cursing at me."); id. Ex. D (telling Defendant that "while it is hard not to find [a recent text message] offensive, I see in it primarily your suffering, and it moves me to even greater hope that you will at some point engage in real treatment."); id. ("I truly wish you well, and I have tried to be as respectful and collaborative as possible."). Because there are no facts in the Amended Complaint that plausibly allege that Plaintiff suffered severe emotional distress, Plaintiff has not stated a claim for IIED.
For all these reasons, Defendant's motion to dismiss Plaintiff's IIED claim is GRANTED. Although the Court has serious doubts that Plaintiff can allege facts supporting a plausible inference of severe emotional distress, the Court will allow Plaintiff to amend his pleading to attempt to do so, if he wishes. Accordingly, the IIED claim is DISMISSED WITH LEAVE TO AMEND.
For all the foregoing reasons, Defendant's motion to dismiss the Amended Complaint is GRANTED IN PART AND DENIED IN PART. Specifically:
1. Defendant's motion to dismiss Plaintiff's libel claim is DENIED as to the statements that Plaintiff abandoned Defendant in treatment, that Plaintiff lied to Defendant's family about the reasons for terminating treatment, and that Defendant's parents caught Plaintiff committing misconduct. Defendant's motion is GRANTED as to the statements in Defendant's emails that Plaintiff engaged in improper billing practices and that Plaintiff did not do "a bang up job" while working at Brigham and Women's Hospital.
2. Defendant's motion to dismiss Plaintiff's slander claim is GRANTED for failure to plead the claim with sufficient specificity; the slander claim is DISMISSED WITH LEAVE TO AMEND. Plaintiff is not required to plead special damages for this claim.
3. Defendant's motion to dismiss Plaintiff's Ohio statutory claims is GRANTED; those claims are DISMISSED WITH PREJUDICE.
4. Defendant's motion to dismiss Plaintiff's claim for IIED is GRANTED; that claim is DISMISSED WITH LEAVE TO AMEND.
5. The Clerk of Court is respectfully directed to close the open motion at Dkt. 41.
Am. Compl. Ex. F (profanity omitted; spelling and grammatical errors in original).
Defendant also cites Frechtman v. Gutterman, 115 A.D.3d 102, 105 (1st Dep't 2014), in support of his motion. See Def.'s Mem. of Law at 8-9. This case is also inapposite. In Frechtman, the defendants disseminated a letter containing the following statement regarding their attorney: "We believe your failure to act in our best interest. . . may equate to misconduct, malpractice, and negligence. . . . We believe that your future representation on this matter only became necessary, as a result of mistakes and oversights made by you acting as counsel." 115 A.D.3d at 103-04. The Appellate Division held that these statements were non-actionable opinion. See id. at 106. Unlike Defendant's statements, the statements in Frechtman expressed a subjective evaluation about the attorney's performance. See, e.g., id. at 104 (stating that the attorney's conduct "may equate to misconduct" (emphasis added)). Defendant's statements, in contrast, discussed specific instances of Plaintiff's conduct, statements that are objectively provable as true or false.
A different statement in Defendant's emails, that Plaintiff failed to give his "full undivided attention" to Defendant during their telephonic therapy sessions, id. Ex. C, comes closer to expressing a verifiable statement of fact. Plaintiff does not, however, rely on this statement as an independent basis for his libel claim. See Pl.'s Mem. of Law at 9, 16-17.
The Court also notes that Defendant failed to address his argument regarding special damages in his reply brief, despite the fact that Plaintiff responded to this argument in his opposition brief, see Def.'s Reply Mem. of Law at 5; Pl.'s Mem. of Law at 17; accordingly, even if the argument were not meritless, Defendant has abandoned it, see Galin v. Hamada, No. 15-CV-6992, 2016 WL 2733132, at *3 (S.D.N.Y. May 10, 2016); In re Hoti Enterprises, L.P., No. 10-CV-24129, 2014 WL 1244779, at *4 (S.D.N.Y. Mar. 26, 2014) (collecting cases), aff'd, 605 F. App'x 67 (2d Cir. 2015).
This point does not change the Court's analysis. If Ohio law does not provide Plaintiff a right of action, then there is no conflict between the laws of Ohio and Oregon. "If no actual conflict exists, and if New York is among the relevant jurisdictions, the court may simply apply New York law." Licci I, 672 F.3d at 157. New York law does not ordinarily allow parties to bring private causes of action to enforce criminal statutes. See Hammer v. Am. Kennel Club, 1 N.Y.3d 294, 299 (2003); Cablevision Sys. Corp. v. Commc'ns Workers of Am. Dist. 1, 131 A.D.3d 1087, 1088 (2d Dep't 2015). Accordingly, even if no actual conflict of laws existed, Plaintiff's claims would still be dismissed.
Plaintiff also argues that Defendant should be estopped from arguing that Oregon law applies because, in Defendant's first motion to dismiss, Defendant allegedly conceded that Ohio law applies. See Am. Compl. ¶ 60; Pl.'s Mem. of Law at 2-4, 19-20. Plaintiff's argument lacks merit. In his original Complaint, Plaintiff brought a claim pursuant to a New York Penal Law provision criminalizing harassment, see Compl., Dkt. 13, ¶¶ 54-56; Defendant moved to dismiss, arguing that New York law did not apply to the claim and that, instead, either Ohio or Oregon law applied, see Def.'s First Mem. of Law, Dkt. 29, at 5 ("Conflicts-of-law principles dictate that, in this case, the substantive law of either Oregon or Ohio applies. . . ."); id. at 11 ("In the end, on the question whether a criminal statute gives rise to an implied civil tort claim, it is immaterial whether Oregon law or Ohio law applies. . . ."). At no point in that motion did Defendant concede that Ohio law necessarily applies.
