The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
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
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. ...