The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Plaintiffs Steven Triano ("Triano") and James Morrone ("Morrone") (collectively, "Plaintiffs") bring this suit against Gannett Satellite Information Network ("Gannett") and ten unnamed Defendants alleging claims of defamation and intentional and negligent infliction of emotional distress. Plaintiffs were involved in a hunting accident and bring claims based on a news story concerning the accident. Gannett moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, Gannett's motions are granted.
Plaintiffs originally filed these actions in the United States District Court for the District of New Jersey claiming defamation, false light, and emotional distress. (09-CV-2533 Dkt. No. 1; 09-CV-2497 Dkt. No. 1.)*fn1 Gannett filed Motions to Dismiss or, in the alternative, to Transfer Venue. (Triano Dkt. No. 1; Morrone Dkt. No. 1.) Gannett's Motions to Dismiss were denied without prejudice and the Motions to Transfer Venue, to the Southern District of New York, were granted. (Triano Dkt. No. 1; Morrone Dkt. No. 1.) On September 18, 2009, Gannett filed Motions to Dismiss with this Court. (Triano Dkt. No. 12; Morrone Dkt. No. 13.) The Motions were fully submitted as of February 2, 2010. (Triano Dkt. No. 17; Morrone Dkt. No. 18.) On May 4, 2010, the Court, sua sponte, ordered Plaintiffs to show cause why the case should not be dismissed for lack of jurisdiction as the pleadings were insufficient to establish either subject matter or diversity jurisdiction, and also because the pleadings failed to name a proper defendant.*fn2 (Order (May 4, 2010).) The Court also invited Plaintiffs to "state whether they object to the Court consolidating the two actions." (Id. at 6.) Plaintiffs responded by stating that they had no objection to consolidation, and that they would file amended complaints. (Letter from Martin V. Asatrian, Esq., to the Court (May 18, 2010).) Though the Court has not formally consolidated the cases, it will consider them together. On June 21, 2010, Gannett informed the Court that it was in possession of the Amended Complaints, though the Amended Complaints had not been filed, and that it wished to proceed with its Motions to Dismiss without the need for amended briefing. (Letter from Mark. A Fowler, Esq., to the Court (June 21, 2010).) On June 23, 2010, the Court endorsed Gannett's letter and ordered Plaintiffs to file their Amended Complaints. (Id. at memorandum endorsement.) This Plaintiffs still have not done, so the Court will respectfully direct the Clerk of the Court to file them on Plaintiffs' behalf.
The Court has authority to "dismiss  an action or claim for failure to prosecute or failure to comply with court orders." Ptak Bros. Jewelry, Inc. v. Ptak, No. 06-CV-13732, 2009 WL 807725, at *7 (S.D.N.Y. Mar. 30, 2009). However, there is a "preference for resolving cases on their merits." Id. In this case, Gannett has actual notice of the Amended Complaints and wishes the Court to proceed. As the Court also has copies of the Amended Complaints, the Motions shall be resolved as if the Amended Complaints had been timely filed. Furthermore, though the only filed pleadings are facially deficient in establishing jurisdiction, where subject matter jurisdiction is at issue, the Court is "permitted to look to materials outside the pleadings." Romano v. Kazacos, 609 F.3d 512, 520 (2d Cir. 2010). Here, there is diversity jurisdiction, as Plaintiffs are New York citizens, Gannett is a Virginia corporation, and the amount in controversy allegedly exceeds $75,000. (Triano Am. Compl. § II; Morrone Am. Compl. § II); see also 28 U.S.C. § 1332.
For the purposes of these Motions, the Court accepts the allegations in the Amended Complaints as true. On November 19, 2007, Plaintiffs, who are friends, were hunting together in Harpersfield, New York. (Morrone Am. Compl.§ V, ¶ 1.)*fn3 Morrone was tracking a deer that had been wounded by another hunter when Triano was "accidentally wounded" by being shot in the lower left part of the knee. (Id. § V, ¶¶ 2-3.) When Morrone realized that Triano had been shot, he immediately called 911. (Id. § V, ¶ 4.) According to the Amended Complaints, Triano is currently recovering from his injury. (Id. § V, ¶ 6.) On November 23, 2007, Gannett's subsidiary, The Journal News, and its online entity, www.lohud.com, published an on-line article about this incident with the headline "Purchase Man Charged with Felony in Hunting Death."*fn4
(Id. § V, ¶ 9 (internal quotation marks omitted).) Plaintiffs only allege that the statement in the headline that a "Hunting Death" occurred is false; no other statement in the article is alleged to be false, let alone defamatory. (Id. § V, ¶ 10.) A printed version of the article appeared in the November 23, 2007, issue of the Journal News, and contained an accurate headline: "Purchase Man, 44, charged in upstate hunting accident." (Fredericks Decl. Ex. B.)*fn5
"On a Rule 12(b)(6) motion to dismiss a complaint, the court must accept a plaintiff's factual allegations as true and draw all reasonable inferences in [the plaintiff's] favor." Gonzalez v. Caballero, 572 F. Supp. 2d 463, 466 (S.D.N.Y. 2008); see also Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) ("We review de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiff's favor." (internal quotation marks omitted)). "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 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (internal citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level," id., and "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint," id. at 563.
Simply put, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570. If a plaintiff "ha[s] not nudged [his or her] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Id.; see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009) ("Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" (internal citation omitted) (alteration in original) (quoting Fed. R. Civ. P. 8(a)(2))).
Finally, in adjudicating a Rule 12(b)(6) motion, a court must confine its consideration to "facts stated in the complaint or documents attached to the complaint as exhibits or incorporated by reference" or facts of which the Court may take judicial notice. Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005); see also Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999). In this case, Plaintiffs have not attached the actual article to the Amended Complaints, and Gannett wishes the Court to consider the article in deciding its Motions. The Court may consider the online article because it forms the entire basis for Plaintiffs' claims, and Plaintiffs relied on and referred to the article in bringing their claims. See Svensson v. Securian Life Ins. Co., No. 08-CV-10148, 2010 WL 1544352, at *2 (S.D.N.Y. Mar. 31, 2010) (considering an insurance policy when the complaint "explicitly refer[ed] to, and relie[d] on" the policy); McKevitt v. Mueller, 689 F. Supp. 2d 661, 665 (S.D.N.Y. 2010) (noting that a court may consider "documents that the plaintiff relied on in bringing suit and that are either in plaintiff's possession or that the plaintiff knew of when ...