United States District Court, N.D. New York
LAURIE J. FINE, Plaintiff,
ESPN, INC., a subsidiary of Walt Disney, Inc.; MARK SCHWARZ, in his individual capacity and as an employee of ESPN; and ARTHUR BERKO, in his individual capacity and as an employee of ESPN, Defendants
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For Laurie J. Fine, Plaintiff: Kevin W. Tucker, Lawrence H. Fisher, LEAD ATTORNEYS, Cohen, Willwerth Law Firm, Pittsburgh, PA.
For ESPN, Inc., a subsidiary of Walt Disney, Inc., Mark Schwarz, in his individual capacity and as an employee of ESPN, Arthur Berko, in his individual capacity and as an employee of ESPN, Defendants: Nathan E. Siegel, LEAD ATTORNEY, Levine, Sullivan Law Firm - DC Office, Washington, DC; Paul J. Safier, LEAD ATTORNEY, PRO HAC VICE, Levine, Sullivan Law Firm - Philadelphia Office, Philadelphia, PA; Thomas Curley, LEAD ATTORNEY, PRO HAC VICE, Levine, Sullivan Law Firm - DC Office, Washington, DC; Elizabeth Seidlin-Bernstein, Levine, Sullivan Law Firm - N.Y. Office, New York, NY.
MEMORANDUM-DECISION and ORDER
Lawrence E. Kahn, United States District Judge.
This libel action returns to the Court on Defendants ESPN, Mark Schwarz, and Arthur Berko's (collectively, " Defendants" ) Motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Dkt. No. 45 (" Motion" ); see Dkt. Nos. 45-2 (" Memorandum" ); 50 (" Response" ); 52 (" Reply" ). Because the Court determines that it cannot now consider certain materials upon which the Motion is based, the Motion is denied.
The Court stated the basic facts of this case in a Memorandum-Decision and Order granting Defendants' Motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss part of Plaintiff Laurie J. Fine's (" Plaintiff" ) claim as barred by New York Civil Rights Law § 74. See Dkt. No. 21 (" February Order" ) at 1-4, available at 2013 WL 528468. The Court will discuss additional facts as needed. The thrust of Plaintiff's Complaint is that Defendants defamed her in two articles and an accompanying video describing allegations that she and her husband, Bernie Fine (" Mr. Fine" ), sexually abused underage boys in their care. See generally Dkt. Nos. 1 (" Complaint" ); 45-14 (" First Article" ); 45-15 (" Second Article" ) (collectively with the First Article, the " Articles" ); 45, Ex. C-5 (" Video" ) (collectively with the Articles, the " Publications" ); see also Dkt. No. 45-16 (" Video Transcript" ). The Publications focus largely on an audiotape (" Tape" ) purportedly of a conversation between Bobby Davis (" Davis" ) and Plaintiff regarding Mr. Fine's previous sexual abuse of Davis and Plaintiff's awareness and facilitation of that abuse. See generally Compl.; Publications. Plaintiff alleges that certain parts of the Publications defamed her: (1) the description and analysis of, and selective quotations from, the Tape; (2) statements from Davis and Davis's babysitter Danielle Roach (" Roach" ) regarding the Tape and Plaintiff's conduct; and (3) the title of the First Article (" Bernie Fine's wife had abuse concerns" ). See Compl. ¶ ¶ 174-222, 232-41.
Defendants now seek judgment that the remainder of Plaintiff's claim is barred by § 74, or that the Publications are not actionable because Defendants merely reported Plaintiff's own words and were not grossly irresponsible in their reporting. See generally Mem.; Reply. Defendants' arguments are premised almost exclusively on the following materials appended to their Motion: (1) a digital copy of the Tape; (2) Syracuse Police Department (" SPD" ) reports; (3) a transcript of a press conference given by Onondaga County District Attorney William Fitzpatrick (" Fitzpatrick" ); and (4) a search warrant application filed by Secret Service Agent
Alexander C. Brown (" Agent Brown" ). See Mem; Reply; Dkt. No. 45, Exs. C-2 (" Tape Copy" ), A (" SPD Reports" ), F (" Fitzpatrick Transcript" ), B (" Warrant Application" ) (collectively with the SPD Reports and the Fitzpatrick Transcript, the " Law Enforcement Records" ).
III. LEGAL STANDARD
Rule 12(c) motions for judgment on the pleadings are decided under the same standard as Rule 12(b)(6) motions to dismiss for failure to state a claim upon which relief can be granted. Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). Thus, " [t]o survive a Rule 12(c) motion, the complaint must contain sufficient factual matter to 'state a claim to relief that is plausible on its face,'" Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)), when the complaint's factual allegations are taken as true and all reasonable inferences are drawn in a plaintiff's favor. Kirkendall v. Halliburton, Inc., 707 F.3d 173, 178 (2d Cir. 2013). The movant bears the burden of showing " 'that no material issue of fact remains to be resolved and that [it] is entitled to judgment as a matter of law.'" Juster Assocs. v. City of Rutland, 901 F.2d 266, 269 (2d Cir. 1990) (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1368 (1969)); accord 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1368 (3d ed. 2012).
A. New York Civil Rights Law § 74
Section 74 of New York Civil Rights Law provides that " fair and true" reports of any " official proceeding" are absolutely privileged. See Corp. Training Unlimited, Inc. v. Nat'l Broad. Co., 868 F.Supp. 501, 508 (E.D.N.Y. 1994). The parties dispute whether the challenged parts of the Publications reported on an official proceeding and, if they did, whether they were fair and true reports. See Mem. at 16-20; Reply at 5-10; Resp. at 3-16.
1. " Official Proceeding"
Defendants assert that the Publications constitute reports on two official proceedings: (1) the SPD's investigation (" SPD Investigation" ) into the sexual abuse allegations; and (2) Agent Brown's application for a warrant to search the Fines' home. See Mem. at 16-20; Reply at 6-7. Plaintiff responds that the SPD Investigation was not an official proceeding. See Resp. at 4-7.
a. SPD Investigation
Plaintiff argues that a police investigation does not constitute an official proceeding until an arrest is made or a request for judicial action is lodged. See Resp. at 4-5. But the weight of authority indicates otherwise. " New York courts have broadly construed the meaning of an official proceeding as used in Section 74." Test Masters Educ. Servs., Inc. v. NYP Holdings, Inc., 603 F.Supp.2d 584, 588 (S.D.N.Y. 2009). " The test is whether the report concerns actions taken by a person
officially empowered to do so." Sanders v. Long Island Newsday, No. CV 09-2393, 2010 WL 3419653, at *7 (E.D.N.Y. May 19, 2010) (quotation marks omitted); Test Masters, 603 F.Supp.2d at 588 (quotation marks omitted); Freeze Right Refrigeration & Air Conditioning Servs., Inc. v. New York, 101 A.D.2d 175, 475 N.Y.S.2d 383, 388 (App.Div. 1984) (quotation marks omitted). Investigations of various types have been found to be official proceedings under § 74 and its predecessors. See, e.g., Test Masters, 603 F.Supp.2d 584 (New York Consumer Protection Board investigation regarding consumer complaints); Easton v. Public Citizens, Inc., No. 91 Civ. 1639, 1991 WL 280688, at *1 (S.D.N.Y. Dec. 26, 1991) (New York State Commission on Quality of Care for the Mentally Disabled investigation regarding the finances of a Brooklyn psychiatric facility), aff'd, 969 F.2d 1043 (2d Cir. 1992); Muscarella v. Berkshire Hathaway, Inc., 278 A.D.2d 854, 721 N.Y.S.2d 432, 433 (App.Div. 2000) (federal agency audit); Freeze Right, 101 A.D.2d 175, 475 N.Y.S.2d 383 (New York City Department of Consumer Affairs investigation into the practices of air conditioner repair shops); Baumann v. Newspaper Enters., 270 A.D. 825, 60 N.Y.S.2d 185 (App.Div. 1946) (District Attorney investigation); Ibrahim v. Fox Television Stations, ...