The opinion of the court was delivered by: P. Kevin Castel, District Judge
Plaintiff Ashot Egiazaryan brings this action against defendant Peter Zalmayev asserting claims for defamation and injurious falsehood. Zalmayev counterclaims, alleging that Egiazaryan's suit is a strategic lawsuit against public participation (a "SLAPP" suit, entitling defendant to damages under N.Y. Civ. Rights Law § 70-a) and that Egiazaryan defamed him by circulating copies of the Complaint. Zalmayev moves to dismiss the injurious falsehood claim and all defamation claims, except for one arising from an article written by Zalmayev. Egiazaryan moves to dismiss the Counterclaims in their entirety or, in the alternative, to strike certain paragraphs from the Counterclaims. For the reasons discussed, Zalmayev's motion is granted, and Egiazaryan's motion is granted in part and denied in part.
Ashot Egiazaryan is a Russian businessman and member of the Duma, Russia's lower house of parliament. (Compl. ¶ 4.) He is "engaged in a complex international legal dispute" to recover his ownership interest in a project to redevelop the "landmark Moskva hotel." (Compl. ¶ 10). He alleges that a rival businessman, Suleyman Kerimov, and his associates orchestrated a "corporate raid" to steal his ownership interest, and that Kerimov and his associates are behind various threats leveled against him and his family. (Compl. ¶¶ 10, 12, 15-16.) The threats include criminal charges, the stripping of his parliamentary immunity from prosecution, and death. (Compl. ¶¶ 12, 15.) Because of the threats, Egiazaryan moved with his family to the United States in 2010. (Compl. ¶ 16.) Were they to return to Russia, Egiazaryan and his family would "face a real and imminent risk of losing life and liberty." (Compl. ¶¶ 17-18.)
Since his arrival in the United States, Egiazaryan has been the subject of negative publicity ("a black . . . public relations campaign against Mr. Egiazaryan, designed to discredit him, undermine his chances of remaining in the United States and force him to return to Russia"). (Compl. ¶ 18.) Peter Zalmayev, the director of the New York-based organization "Eurasia Democracy Initiative," is alleged to have been the source of some of this publicity. (Compl. ¶ 5.) Specifically, Zalmayev has allegedly written or caused to be written several negative and allegedly defamatory articles and letters. Each will be separately described.
Zalmayev Article (Count I). On March 8, 2011, an article authored by Zalmayev, titled "Hiding in Beverly Hills," appeared in the Jewish Journal, a Jewish weekly with 150,000 readers and a popular website. (Compl. ¶¶ 23-25 and Ex. A.) The subject of the article is Egiazaryan, and it questions the desirability of his presence in the United States. (Compl. ¶¶ 26-27 and Ex. A.) The article asserts that Egiazaryan is a "prominent financial backer and member of the ultranationalist Liberal Democratic Party of Russia (LDPR), headed by his friend Vladimir Zhirinovsky." (Compl. Ex. A.) At one point, the article refers to the LDPR as the "ZhirinovskyEgiazaryan party." (Id.) It goes on to assert that Jewish groups have "repeatedly condemned" Zhirinovsky and the LDPR as "anti-American" and "anti-Semitic." (Id.) The article concludes by commending Christian Dior's swift condemnation of designer John Galliano's anti-Semitic rant, and it urges the United States "likewise [to] put anti-Semites worldwide on notice: You are not welcome in this country." (Id.) Egiazaryan alleges that, contrary to the assertions of the article, he is not a member or leader of the LDPR, a friend of Zhirinovsky, or an anti-Semite. (Compl. ¶¶ 36-39).
Komarovsky Article (Count II). Subsequent to the publication of Zalmayev's article, on March 14, 2011, an article by Leonid Komarovsky, titled "No Safe U.S. Haven for Hatemongers," appeared in the Moscow Times, an English-language daily published in Moscow. (Compl. ¶¶ 41-42 and Ex. B.) Therein, Komarovsky asserts that Egiazaryan is a "long-standing member of the [LDPR], and, consequently its anti-Semitic and xenophobic agenda." (Compl. Ex. B.) Komarovsky also makes reference to the Galliano scandal and urges "Washington [to] follow the example of the fashion label," and "get real on anti-Semitism" by creating a no-entry list for "characters like [E]giazaryan." (Id.)
Ponomarev and Alexeyeva Letters (Count III). Prior to the publication of the Zalmayev and Komarovsky articles, human rights activists Lev Ponomarev and Lyudmilla Alexeyeva sent letters to Representative Chris Smith, "Ranking Member of the Commission on Security and Cooperation in Europe," stating their concern over Egiazaryan's presence in the United States. (Compl. ¶¶ 51-53 and Ex. C., Ponomarev Ltr., January 29, 2011, and Alexeyeva Ltr., January 31, 2011.) Colleagues of Ponomarev "indicated that Mr. Zalmayev provided drafts of the letters to Mr. Ponomarev." (Compl. ¶ 69.) Zalmayev admits that he "collaborated with [Ponomarev and Alexeyeva] in the preparation of the referenced letters." (Answer ¶ 51.)
Both letters assert that Egiazaryan is associated with the LDPR. (Ex. C.) Both add the assertion that Egiazaryan helped create and then became deputy chairman of the Duma Committee for Assistance in Political Regulation and Observance of Human Rights in Chechnya (The "Chechnya Committee"). (Id.) Both assert that funds entrusted to the Chechnya Committee never reached their intended recipients. (Id.) Ponomarev concludes that this makes Egiazaryan "a contributor to the destructive second Chechen war." (Id., Ponomarev Ltr.) Alexeyeva further asserts that the Committee "provid[ed] cover for the numerous well-documented atrocities during the war." (Id., Alexeyeva Ltr.) Both letters reference the possible creation of a no-entry list; both urge the recipient to raise their concerns with the Department of State and the Department of Homeland Security so that those departments might reconsider the appropriateness of Egiazaryan's continued presence in the United States. (Id.)
Ponomarev and Alexeyeva almost immediately sent retractions of their letters to Representative Smith. (Compl. ¶ 61 and Ex. D, Ponomarev Retraction and Alexeyeva Retraction, February 7, 2011.) Ponomarev stated that he "made a grave mistake," while Alexeyeva explained that she "had been misled." (Compl. ¶ 67 and Ex. D.)
Freedom House Letters (Count IV). In March 2011, Zalmayev visited another human rights organization, "Freedom House," with copies of the Ponomarev and Alexeyeva letters but not their retractions. (Compl. ¶ 73.) He did not make known his own participation in the production of the letters or that the letters had been retracted. (Compl. ¶ 73.) On March 14, 2011, Freedom House sent letters to the Department of Homeland Security and the United States Department of State Office to Monitor and Combat Anti-Semitism. (Compl. ¶ 74 and Ex. E.) The nearly identical letters assert that Egiazaryan "has for years been one of the leaders and a Duma representative of the LDPR, which is known for its virulently anti-Semitic, anti-American and xenophobic views." (Ex. E.) The letters conclude by urging the United States to take swift action and deny any bid by Egiazaryan for asylum. (Id.)
Zalmayev alleges that Egiazaryan has defamed him by producing and circulating the Complaint in this action and that Egiazaryan's lawsuit is a SLAPP suit against Zalmayev, which entitles Zalmayev to damages. (Countercl. ¶¶ 52-53; 54-61.)
To support the defamation claim, Zalmayev points to the following allegedly defamatory aspects of the Complaint. The Complaint alleges that Zalmayev is working with corrupt Russian authorities. (Countercl. ¶ 44(d); Compl. ¶ 18.) It further alleges that Zalmayev misled people into participating in a "dirty tricks" campaign, which included manipulating sophisticated adults into writing untrue statements that Zalmayev knew were untrue. (Countercl.
¶ 44(e)-(f); Compl. ¶¶ 20-21, 40.) In Zalmayev's view, the Complaint alleges falsely that Zalmayev "conspired to return Mr. Egiazaryan to Russia," where Egiazaryan and his family face grave danger. (Countercl. ¶ 44(g); see Compl. ¶¶ 18, 89, 99.)*fn1
Zalmayev alleges that, on June 9, 2011, a Moscow Times reporter called Zalmayev and said that he had received a copy of the Complaint; he did not say who had sent him the Complaint. (Countercl. ¶ 46.) Zalmayev notes that Egiazaryan has used lawyers, consultants and public relations professionals to respond to the negative publicity. (Countercl. ¶ 46; Compl. ¶ 89(iv).)
DISCUSSION I. Standard of Review Under Rule 12(b)(6)
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "a complaint [or counterclaim] must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In assessing plausibility, courts draw all reasonable inferences in favor of the non-movant. See In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007). However, legal conclusions are not entitled to any assumption of truth, and a court assessing the sufficiency of a complaint disregards them. Iqbal, 129 S.Ct. at 1950. Instead, the court examines ...