United States District Court, S.D. New York
April 12, 2004.
FRIENDS OF ROCKLAND SHELTER ANIMALS, INC. (FORSA), Plaintiff, -against- SAMANTHA MULLEN and HUMANE SOCIETY OF THE UNITED STATES (HSUS), Defendants
The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge
Plaintiff Friends of Rockland Shelter Animals, Inc. ("FORSA") brings
this action against defendants Samantha Mullen and the Humane Society of
the United States ("HSUS") alleging tortious interference with a
prospective business advantage.*fn1
Defendants have interposed a
counterclaim alleging that plaintiffs suit is a strategic lawsuit against
public participation ("SLAPP suit") and that they are entitled to their
attorney's fees and damages under N.Y. Civ. RIGHTS LAW § 70-a.
Defendants move for judgment on the pleadings pursuant to FED. R. Civ. P.
12(c). For the reasons stated herein, defendants' motion is granted and
plaintiffs Complaint and defendants' counterclaim are dismissed.
Beginning in July 2002, FORSA entered into negotiations with the County
of Rockland (the "County") to operate an animal shelter on premises
leased from the County. (Complt. ¶ 7.) At that time, Hi Tor Animal
Care Center ("Hi Tor") had a contract with the County to run the shelter
that was due to expire. (Id. ¶ 8.) Hi Tor regularly utilizes
euthanasia to control the animal population of the shelter and was found
by an inspector to be in violation of County Resolution 319 ("Resolution
319"), a provision that imposes certain minimum standards upon animal
shelters located within the County. (Id. ¶¶ 14, 18.) FORSA
advised the County that it could run a "no-kill" shelter on the premises,
update the shelter, and comply with Resolution 319 on a budget that was substantially the same as Hi Tor's budget. (Id. ¶¶
9-10.) The County's finance committee appeared quite receptive to this
proposal and it approved unanimously a resolution granting FORSA the
contract to run the shelter (the "FORSA Resolution"). (Id. ¶
11.) The FORSA Resolution was scheduled for consideration by the County
Legislature on March 4, 2003. (Id. ¶ 12.)
On February 19, 2003, Mullen, a program coordinator with HSUS, sent to
County Executive C. Scott Vanderhoef a letter asking the County Executive
to reconsider his decision to recommend approval of the FORSA Resolution.
(Norwick Affm., Ex. D.) She noted that although Hi Tor needed to make
improvements, her "overall impression of the shelter was positive." In
her opinion, the shelter was clean and the animals seemed "in good health
and non-stressed." Although the premises required certain repairs, Hi
Tor's failure to make those repairs was caused by budget constraints, not
neglect. Mullen defended Hi Tor's euthanasia policy on the ground that
there are more animals than acceptable homes for them. Finally, she
stated that while the shelter appeared to be in violation of Resolution
319, the standards imposed by that resolution are too difficult for Hi
Tor, or other shelters operating under similar circumstances, to abide
FORSA contends that this letter contained false and misleading
statements and was sent maliciously to interfere with its prospective
business advantage. (Complt. ¶ 13.) Specifically: (1) Mullen's
statement that Resolution 319 imposed unrealistic standards was false
because those standards were followed by many shelters across the country
including one in Ulster County, New York (id. ¶ 16); and (2)
Mullen's statements defending Hi Tor ran contrary to the positions HSUS
adopted in its "Seven Basic Policies for Every Animal Shelter."
(Id. ¶¶ 14, 18.)
Thereafter, at the March 4, 2003 session of the County Legislature, the
FORSA Resolution was defeated. A number of legislators that voted against
replacing Hi Tor quoted from Mullen's letter to Vanderhoef. (Id. ¶ 20.) FORSA filed suit in
the Supreme Court of the State of New York, County of Rockland seeking $2
million in damages for alleged tortious interference. Defendants removed
the action to this Court on the basis of diversity jurisdiction.
I. Governing Standard
The governing standard for a grant of judgment on the pleadings
pursuant to FED. R. Civ. P. 12(c) is identical to the standard applied
when considering a motion to dismiss under FED. R. Civ. P. 12(b)(6) for
failure to state a claim. Patel v. Contemporary Classics of Beverly
Hills, 259 F.3d 123, 126 (2d Cir. 2001) (citations omitted). "In
both postures, the district court must accept all allegations in the
complaint as true and draw all inferences in the non-moving party's
favor." Id. A complaint should not be dismissed under Rule 12(c)
unless it appears that the plaintiff "cannot state any set of facts that
would entitle him to relief." Id. Generally, "[c]onclusory
allegations or legal conclusions masquerading as factual conclusions will
not suffice to prevent" dismissal under Rule 12(c). See 2 JAMES
WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 12.34[l][b] (3d ed.
1997). In assessing the legal sufficiency of a claim, the court may
consider those facts alleged in the complaint, documents attached as an
exhibit thereto or incorporated by reference. See FED. R. CIV.
P. 10(c); De Jesus v. Sears, Roebuck & Co., Inc.,
87 F.3d 65, 69 (2d Cir. 1996).
II. FORSA's Interference Claim
Although we are wholeheartedly sympathetic with FORSA's mission to
operate a "no-kill" shelter in the County, this lawsuit is not the proper
vehicle for FORSA to air its grievances or achieve its goals because defendants' participation in the
political process is protected by the First Amendment as implemented in
the Noerr-Pennington doctrine.
Interference with a party's prospective business advantage is
actionable only where the interfering party employs "wrongful means."
Hannex Corp. v. GMI, Inc., 140 F.3d 194, 205 (2d Cir. 1998).
`The definition of wrongful means under New York law includes `physical
violence, fraud or misrepresentation, civil suits and criminal
prosecutions, and some degrees of economic pressure.'" Id. When
a plaintiff claims the defendant tortiously interfered with a prospective
business advantage by lobbying a governmental entity, courts applying New
York law analyze the First Amendment issue under the
Noerr-Pennington doctrine. See Fox News Network, L.L.C. v.
Time Warner Inc., 962 F. Supp. 339, 345 (S.D.N.Y. 1997) (holding
that the Noerr-Pennington doctrine applied to claims for
interference with prospective business relations); Alfred Weissman
Real Estate v. Big V, 272 A.D.2d 391, 707 N.Y.S.2d 647, 651-55 (2d
Dep't 2000) (same); cf. Suburban Restoration Co. v. ACMAT Corp.,
700 F.2d 98, 102 (2d Cir. 1983) (concluding that the Connecticut Supreme
Court would apply the Noerr-Pennington doctrine to common law
claims for interference because the doctrine is an application of the
The Noerr-Pennington doctrine was developed in a trilogy of
cases wherein the Supreme Court held that attempts to influence
governmental action are not actionable under the antitrust laws unless
the attempts fell within the "sham exception." See E. R.R. Presidents
Conference v. Noerr Motor Freight, 365 U.S. 127 (1961); United
Mine Workers v. Pennington, 381 U.S. 657 (1965); Cal. Motor
Transp. Unlimited, 404 U.S. 508(1972). Lobbying activities fall
within the "sham exception" when "they are found to be a `sham' to
disguise what is otherwise nothing more than an attempt to directly
injure a competitor and the political actor has no real interest in the
outcome." Hamilton v. Accu-Tek, 935 F. Supp. 1307, 1317 (E.D.N.Y. 1996). Overtly
corrupt conduct, such as threatening or bribing a public official, has
also been ruled to be outside the protection of the doctrine. See
Fed. Prescription Serv. v. Am. Pharm. Ass'n, 663 F.2d 253, 263 (D.C.
Cir. 1981). Fraudulent acts are not protected by the
Noerr-Pennington doctrine when they occur in the adjudicatory
process or where false information is filed with an administrative agency
with deceptive intent. See id.; Twin City Bakery Workers &
Welfare Fund v. Astra Aktiebolag, 207 F. Supp.2d 221, 224 (S.D.N.Y.
2002). The Second Circuit has recognized that because an important policy
behind the Noerr-Pennington doctrine is the need to protect the
right of the people to participate in the political process, the doctrine
is "an application of the first amendment." Suburban
Restoration, 700 F.2d at 101. Therefore, it is relevant outside the
context of antitrust actions. See id. Accordingly, courts apply
the Noerr-Pennington doctrine to state law claims for tortious
interference. See Dr. Reddy's Labs., Ltd. v. aaiPharma Inc., No.
01 Civ. 10102, 2002 U.S. Dist. LEXIS 17287, at *40 (S.D.N.Y. Sept. 19,
2002) (collecting cases).
Mullen's letter to County Executive Vanderhoef is an attempt to
influence the government within the meaning of the
Noerr-Pennington doctrine. Therefore, her statements in that
letter are not actionable unless defendants' actions fall within the
"sham exception" to the doctrine or were overtly corrupt. The "sham
exception" does not apply in the present case because FORSA's
interference claim is premised on its contention that defendants
misrepresented the true facts to the County Legislature in order to help
Hi Tor remain in business, not solely to damage FORSA. Even lobbying
activities that are unethical or result in deception are not actionable
under the Noerr-Pennington doctrine. See Noerr Motor
Freight, 365 U.S. at 140; Big V., 272 A.D.2d 391, 707
N.Y.S.2d at 653. Moreover, there is no indication that defendants engaged
in any overtly corrupt criminal behavior in an effort to influence the County Legislature.
FORSA argues that Mullen's letter is not protected by the First
Amendment because the First Amendment right "to petition the Government
for a redress of grievances" only applies to petitions to one's own
government. U.S. CONST. Amend. 1. Therefore, FORSA contends, defendants'
cannot cloak themselves in the protections afforded by the First
Amendment because they are not citizens of the County or the State.
(Seligman Affm. ¶ 5.) Not surprisingly, FORSA has offered no
authority that supports its position. The only case that even arguably
supports it is Occidental Petroleum Corp. v. Buttes Gas & Oil
Co. wherein the court held that the Noerr-Pennington
doctrine does not apply when the defendant petitions a foreign
government. 331 F. Supp. 92, 108 (C.D. Cal. 1971). Occidental
Petroleum appears, however, to be the minority view. See, e.g.,
Carpet Group Int'l v. Oriental Rug Imps. Ass'n, 256 F. Supp.2d 249,
266 (S.D.N.Y. 2003) (holding that the Noerr-Pennington doctrine
applies to petitions to foreign governments); see also Coastal States
Mktg., Inc. v. Hunt, 694 F.2d 1358, 1366 (5th Cir. 1983) (same).
However, even if it were uniformly followed, Occidental
Petroleum could not be extended to deny First Amendment protection
to citizens of one state who petition another state's government without
violating the Privileges & Immunities Clause of the United States
Constitution. U.S. CONST. Art IV. Sec. 2 ("The Citizens of each State
shall be entitled to all Privileges and Immunities of Citizens in the
several states.") Accordingly, we conclude that defendants were engaged
in protected activity and that FORSA's Complaint must be dismissed in its
III. Defendants' Counterclaim
N.Y. CIV. RIGHTS LAW § 70-a allows a court, in its discretion, to
award attorney's fees and damages when the plaintiff has filed a SLAPP suit as defined in
§ 76(a). Costs and attorney's fees may be awarded if the plaintiffs
action "was commenced or continued without a substantial basis in fact
and law and could not be supported by a substantial argument for the
extension, modification or reversal of existing law." N.Y. CIV. RIGHTS
LAW § 70-a(1)(a). Compensatory and punitive damages are available
only where it is shown that the suit was brought "for the purpose of
harassing, intimidating, punishing or otherwise maliciously inhibiting
the free exercise of speech, petition or association rights."
Id. § 70-a(1)(b)(c). However, even if the defendant
establishes that the suit is a SLAPP suit brought under circumstances
that entitle it to and that it is entitled to damages under § 70-a,
the award of damages is within the sole discretion of the trial court.
See Miness v. Alter, 262 A.D.2d 374, 375, 691 N.Y.S.2d 171, 173
(2dDep't 1999); In re West Branch Conservation Assoc., Inc.,
222 A.D.2d 513, 515, 636 N.Y.S.2d 61, 63 (2d Dep't 1995).*fn2
In the present case, even if FORSA's action is as a SLAPP suit within
the meaning of the statute, defendants are not entitled to damages.
FORSA's suit was commenced under a cognizable legal theory and it
presented facts that tended to show some of Mullen's statements were
misleading. Although the arguments presented by the defendants in their
twenty-five page Memorandum of Law*fn3 convinced the Court that their
activities were protected under the Noerr-Pennington doctrine,
FORSA argued that the privilege should not apply where a party petitions
a government to which that party has no ties. Although we found that
argument unpersuasive, it is not frivolous. Moreover, even if we
concluded that FORSA's suit was brought "without a substantial basis in
law and fact," we would decline to award costs and fees at this stage of the
litigation because we do not believe they are warranted in the present
case. West Branch Conservation Assoc., 222 A.D.2d at 515, 636
N.Y.S.2d at 63 (holding that decision to award attorney's fees or damages
under § 70-a is discretionary).
Defendants contend that if we grant their motion, they should be
allowed to continue to pursue their counterclaim because they have moved
only to dismiss FORSA's Complaint. (Defs. Mem. Supp. Mot. Dismiss at 25.)
We disagree. Defendants' motion for judgment on the pleadings implicates
the same issues as its counterclaim for attorney's fees and damages.
Thus, the record is fully developed and we have concluded that FORSA's
suit was not brought "without a substantial basis in law or fact."
Allowing defendants to proceed with their counterclaim would be a fufile
exercise that would serve only to increase defendants' damages and waste
judicial resources. Accordingly, the counterclaim is also dismissed.
For the reasons stated herein defendants Samantha Mullen and the Humane
Society of the United States's motion for judgment on the pleadings
pursuant to FED. R. CIV. P. 12(c) is granted. Accordingly, plaintiff
Friends of Rockland Shelter Animals, Inc.'s Complaint and defendants'
counterclaim for damages under N.Y. CIV. RIGHTS LAW § 70-a are both
dismissed with prejudice but without costs or attorneys' fees.