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Whitney Information Network, Inc. v. Weiss

March 18, 2008


The opinion of the court was delivered by: Hurley, Senior District Judge



Plaintiff Whitney Information Network, Inc. ("Plaintiff" or "WIN") filed the instant action alleging that defendant Susan Weiss ("Defendant" or "Weiss") "has and continues to publish defamatory statements" about Plaintiff. (Compl. ¶ 7.) Defendant moves to dismiss the Complaint in its entirety pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6).

Defendant also moves for sanctions pursuant to Rule 11(c). For the reasons stated below, Defendants' motions are denied.


The following facts are taken from the Complaint and will be presumed true for purposes of this motion. Plaintiff and Defendant are both shareholders in Monterey del Mar, S.A., a corporation that owns and operates a hotel and resort located in Costa Rica. On June 22, 2006, Defendant sent an e-mail to other stockholders of Monterey del Mar in which Defendant stated that:

WIN had been "caught in the midst of a scheme," was "trying to sweep their dirty work under the rug," had been "caught with their hands in the proverbial cookie jar," that WIN "tried to bilk us," and that WIN had engaged in "sleazy shenanigans." (Compl. ¶ 7.) Plaintiff alleges that as a direct result of Defendant's e-mail, Plaintiff's business and reputation have been damaged.


I. Motion to Dismiss: Legal Standards

Rule 8(a) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Supreme Court recently clarified the pleading standard applicable in evaluating a motion to dismiss under Rule 12(b)(6). In Bell Atl. Corp. v. Twombly, -- U.S.--, 127 S.Ct. 1955 (2007), the Court disavowed the well-known statement in Conley v. Gibson, 355 U.S. 41 (1957) that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 45-46. Instead, to survive a motion to dismiss under Twombly, a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." 127 S.Ct. at 1974.

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Id. at 1964-65 (citations and internal quotation marks omitted).

The Second Circuit has stated that Twombly does not require a universally heightened standard of fact pleading, but "instead requir[es] a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). In other words, Twombly "'require[s] enough facts to 'nudge [plaintiffs'] claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., -- F.3d --, No. 06-3128-CV, 2007 WL 2471805, at *2 (2d Cir. Sept. 4, 2007) (quoting Twombly, 127 S.Ct. at 1974).*fn1 As always, the Court must "accept[] all factual allegations in the complaint and draw[] all reasonable inferences in the plaintiff's favor." ATSI Commcn's, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).

II. The Court Will Consider the E-mail Message in its Entirety

Although a court in deciding a Rule 12(b)(6) motion is generally limited to considering the facts alleged in the complaint, a district court may also consider documents that are attached to, incorporated by reference in, or integral to the complaint. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152--53 (2d Cir. 2002); see also McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). Courts apply this exception where, as here, a plaintiff sues primarily on the basis of a document and only attaches selected portions of that document, or fails to attach the document at all. See Int'l Audiotext Network, Inc. v. Am. Te. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) ("In addition, we have held that when a plaintiff chooses not to attach to the complaint or incorporate by reference a prospectus upon which it solely relies and which is integral to the complaint, the defendant may produce the prospectus when attacking the complaint for its failure to state a claim, because plaintiff should not so easily be allowed to escape the consequences of its own failure.") (citing I. Meyer Pincus and Assocs., P.C. v. Oppenheimer & Co., 936 F.2d 759, 762 (2d Cir. 1991)).

Here, Plaintiff claims that Defendant "has and continues to publish defamatory statements" about Plaintiff. (Compl. ¶ 7.) Despite this language, the Complaint alleges only one example of purported defamation, viz. the June 22, 2006 e-mail. The Complaint contains selected excerpts of the e-mail, connected by Plaintiff's own language, but does not attach a copy of the actual e-mail.

In support of her motion, Defendant submits a copy of the entire e-mail. Because Plaintiff's claim is based exclusively on the content of the e-mail, the Court will consider the entire e-mail in deciding the present motion.*fn2

III. Defendant's Motion to Dismiss is Denied

Defendant makes three arguments in favor of dismissal: (1) the allegedly defamatory statements are non-actionable opinion; (2) even if the e-mail contains defamatory statements, such statements were not directed to Plaintiff; and (3) Defendant's communication was protected by a ...

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