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August 22, 2002


The opinion of the court was delivered by: Spatt, District Judge.



The following facts are taken from the complaint. On May 21, 1997, the plaintiff, an orthopaedic surgeon who is now retired, was arrested and charged with insurance fraud. The Nassau County District Attorney's Office prosecuted the plaintiff, and on March 3, 1999, following a jury trial, he was acquitted of all charges.

On May 24, 2001, at 9:00 p.m., the Learning Channel, "a channel of Discovery Communications, Inc." (complaint ¶ 13) broadcast a television program entitled, "World's Most Outstanding Undercover Stings". Kornblau appeared on the program and described "Operation Backbone," the sting operation that resulted in the plaintiffs arrest. In particular, Kornblau explained that she was one of the supervisors of the operation, which targeted professionals who had allegedly provided false information to insurance companies or had submitted false insurance claims. Kornblau also said that personnel involved in Operation Backbone videotaped doctors performing examinations of patients, and the prosecutors used the videotapes extensively during their grand jury presentations. In the televised interview, Kornblau opined that the videotapes led many defendants to enter guilty pleas.

At one point during the television program, several clips from the videotapes were shown while Kornblau or a narrator spoke in the background. In one clip, the plaintiff is shown examining a patient during a follow-up visit. According to Lehman, the clip from the videotape also shows him taking x-rays of the patient, performing range-of-motion tests, and discussing a diagnosis and treatment plan with the patient. While this clip is being shown, the narrator states, "Twelve undercover agents found corruption on every level from doctors willing to spend only seconds examining a phoney patient" (complaint ¶ 23).

Further, while the plaintiff appears in another videotape clip, the narrator states. "With enough evidence in their possession, twenty professionals involved in billing more than two million dollars in false claims are brought to justice" (complaint 25).

The third clip consists of pictures of three health care providers. Two of the people displayed had been convicted of insurance fraud, while the third person was the plaintiff who had been acquitted of such charges. While these three pictures were shown, the following comments were made: "Operation Backbone is a success but the fight to elim[i]ante false insurance claims continue[s.] [F]or anyone tempted to try this get rich quickly scheme[, l]isten to Ted Kerner, "Be careful when you consider faking an insurance claim. In the modern era, we are going to find out, and a felony conviction as an adult changes the expectation of the rest of your adult life'" (complaint ¶ 26).

Lehman claims that the comments made by Kornblau and the narrator were false because he had been acquitted of all criminal charges brought against him. The complaint alleges that at the time Kornblau made her comments for the television program, she knew that Lehman had been acquitted. The complaint further alleges that because the ultimate disposition of the charges against Lehman were public knowledge, the Learning Channel and Discovery willfully disregarded the truth or failed to take the most elementary steps to ascertain the true facts. Accordingly, Lehman contends that these statements were made willfully, maliciously, and with a reckless disregard for the truth. The complaint alleges that, therefore, the comments by Kornblau and the narrator of the program constitute libel and slander. In addition, Lehman asserts that the program and its broadcast caused damage to the plaintiffs good name and reputation and caused him to suffer emotional distress.

The complaint raises two causes of action. The first cause of action alleges that the conduct of the defendants constitutes common law libel and slander, which allegedly violates 28 U.S.C. § 1337. The second cause of action alleges that the plaintiff was deprived of his good name and reputation without due process of law in violation of the Fourteenth Amendment and 42 U.S.C. § 1983.


The County defendants move to dismiss the complaint on the ground that the Court lacks federal subject matter jurisdiction over the action. They argue that 28 U.S.C. § 1337 does not provide litigants with a cause of action but, rather, provides federal subject matter jurisdiction in certain cases. In addition, the County defendants contend that harm to one's reputation does not give rise to a cause of action under Section 1983.

A. The Standard

When considering a motion to dismiss the complaint for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1), the Court may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional question. See Robinson v. Gov't of Malaysia, 269 F.3d 133, 141 n. 6 (2d Cir. 2001); Antares Aircraft, L.P. v. Fed. Rep. of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991), vacated on other grounds, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992); Exch. Nat'l Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126, 1130 (2d Cir. 1976). Under Rule 12(b)(1), the court must accept as true all material factual allegations in the complaint but will not draw inferences favorable to the party asserting jurisdiction. See Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998); Atl. ...

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