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Catalanello v. Kramer

United States District Court, S.D. New York

May 7, 2014


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[Copyrighted Material Omitted]

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For Robert Catalanello, Plaintiff: THOMAS JOSEPH CAFFERTY, LEAD ATTORNEY, PRO HAC VICE, GIBBONS, P.C., Newark, NJ, USA; Jonathan Daniel Klein, PRO HAC VICE, Gibbons P.C., Newark, NJ, USA.


For Western New England University School of Law, Defendant: MARC D. HAEFNER, LEAD ATTORNEY, CONNELL FOLEY, LLP, Roseland, NJ, USA.


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Paul A. Engelmayer, United States District Judge.

This defamation suit arises out of the treatment by a scholar, both in a law review article and a related lecture, of an incident involving a securities industry trader that had been the subject of a publicized employment lawsuit.

Plaintiff Robert Catalanello (" Catalanello" ) is a managing director for Credit Agricole CIB (formerly known as Calyon) (" Credit Agricole" ) in New York. He

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brings claims of defamation and false-light invasion of privacy against defendant Zachary Kramer (" Kramer" ), an associate dean and professor of law at the Sandra Day O'Connor College of Law at Arizona State University. Catalanello's claims arise out of (1) an article titled " Of Meat and Manhood," which Kramer wrote and which was published in the Washington University Law Review, and which in part addressed a previous employment-discrimination lawsuit brought against Catalanello; and (2) a lecture given by Kramer at the Western New England University School of Law, titled " Of Meat and Manhood/The New Sex Discrimination." Kramer moves to dismiss the Amended Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, that motion is granted.

I. Background[1]

A. Factual Background

1. The Pacifico Lawsuit Against Catalanello

On January 26, 2009, Ryan Pacifico, a former junior foreign exchange trader at Credit Agricole, filed a lawsuit in New York State Supreme Court. The suit alleged that Catalanello, Pacifico's former supervisor, had discriminated against him and subjected him to a hostile work environment, in violation of the human rights laws of New York State and New York City. See Am Compl. ¶ 11; Dkt. 69 (Affidavit of Zachary A. Kramer (" Kramer Aff." )) Ex. G (" Pacifico Compl." ). Relevant here, Pacifico alleged that Catalanello perceived him to be gay because Pacifico was a vegetarian, and that Catalanello had subjected Pacifico to harassment based on this assumption. Pacifico Compl. ¶ ¶ 10-22. Specifically, Pacifico's Complaint alleged that Catalanello would call Pacifico " gay" or " homo" in front of coworkers, and would harass him for not eating meat. See, e.g., id. ¶ 10 (alleging that " [i]n or about 2007, Pacifico was showing a colleague pictures of himself online competing in a triathlon. Catalanello approached, and referring to Pacifico's biker shorts, said 'That's you? Those are some pretty gay tights. Figures you'd like them.'" ); id. ¶ 14 (alleging that " [w]hile arranging for a dinner for [Credit Agricole's] New York foreign exchange traders . . . Catalanello told the traders they were all going out to a Brazilian steakhouse. When one asked what Pacifico can eat there, Catalanello replies, 'Who the fuck cares? It's his fault for being a vegetarian homo.'" ). On August 12, 2009, Catalanello filed an Answer, denying the allegations in Pacifico's Complaint. Am. Compl. ¶ 12; Kramer Aff. Ex. G at 12-18.

On August 22, 2012, Pacifico voluntarily terminated his suit against Catalanello with prejudice. Am. Compl. ¶ 14; Dkt. 68 (Declaration of Peter T. Shapiro (" Shapiro Decl." )) Ex. B.

2. Kramer's Law Review Article

In August 2010, while Pacifico's lawsuit was pending, Kramer began researching and writing an article about emerging issues

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in employment discrimination law. See Am. Compl. ¶ 8; Kramer Aff. ¶ 23. In February or March 2011, Kramer submitted the article to law reviews for publication, using an online service operated by the Berkeley Electronic Press. See Am. Compl. ¶ 8; Kramer Aff. ¶ 24. In March 2011, Kramer accepted an offer from the Washington University Law Review to publish the Article and, during that same month, posted the Article to the Social Science Research Network (SSRN), an online repository of academic research. See Am. Compl. ¶ 8; Kramer Aff. ¶ 24. On March 15, 2012, a revised version of the article was published in print and online in the Washington University Law Review. See Am. Compl. ¶ ¶ 9-10; Kramer Aff. ¶ 25.

In the article, Kramer challenges how existing employment discrimination law characterizes sex discrimination--specifically, the law's treatment of gender stereotyping. Kramer argues that courts " have grown increasingly suspicious of gender-stereotyping claims that they view as attempts to capture traits not protected under Title VII," such as sexual orientation, and " have regularly rejected these claims, characterizing them as impermissible attempts to 'bootstrap' protection for sexual orientation into Title VII." Kramer Aff. Ex. H (" Article" ) at 6. The goal of the article, according to Kramer, " is to show that this bootstrapping logic is faulty," and to advocate for a more " holistic" approach to complex sex discrimination claims, which recognizes " that sometimes sex discrimination manifests as other forms of bias." Id. at 7, 8. At several points, the article uses the allegations in the Pacifico Complaint regarding male vegetarianism in support of that discussion. Id. at 7-9, 20-28. Relevant here, the article describes the Pacifico Complaint as a " case study" or " vehicle" to " highlight[] the messiness of modern sex discrimination" both " in terms of how employees experience discrimination" and " in terms of how courts analyze sex discrimination claims." Id. at 7. After discussing Pacifico's Complaint, Kramer concludes by stating that " [t]he lesson of Pacifico's case is that sex discrimination sometimes manifests as other forms of discrimination--in this case, as a hybrid of vegetarian and sexual orientation discrimination," which, in turn, reveals " a fundamental limitation of Title VII's discriminatory causation analysis: the mismatch between the legal regulation of discrimination and the lived experience of discrimination." Id. at 28.

3. Kramer's Lecture

On April 10, 2012, Kramer gave a lecture, based on the article, at the Western New England University School of Law in Massachusetts. Am. Compl. ¶ 30; Shapiro Decl. Ex. D (" Lecture Video" ). His lecture also discussed the Pacifico Complaint and Kramer's theory to the effect that male vegetarianism is, wrongly, an unprotected trait in federal employment discrimination law. See Am. Compl. ¶ 34; Lecture Video. In discussing the Pacifico Complaint in the lecture, Kramer stated that " the facts are still contested at this point, but it doesn't look good." Lecture Video at 25:55. Although Kramer did not identify Catalanello by name in the lecture, Kramer did cite the article, in which Catalanello is identified by name. Am. Compl. ¶ 51. A recording of the lecture was later published by Western New England University School of Law's website under " School of Law News." Am. Compl. ¶ 32.

B. Procedural History

On December 28, 2012, Catalanello filed his original Complaint in this case in the District of New Jersey, naming Kramer, the Washington University School of Law, and the Western New England University School of Law as defendants. Dkt. 1. On

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May 23, 2013, Washington University School of Law was voluntarily dismissed with prejudice. Dkt. 37. On September 19, 2013, Western New England University School of Law was also voluntarily dismissed with prejudice. Dkt. 47. At that point, the District of New Jersey lacked personal jurisdiction over Kramer, the sole remaining defendant. Accordingly, the case was transferred to this Court. Dkt. 44.

On October 31, 2013, Kramer submitted a motion to dismiss the Complaint. Dkt. 57. On November 21, 2013, Catalanello filed an Amended Complaint, Dkt. 64, alleging four causes of action: two counts of defamation and two of false light invasion of privacy (one each for the article and lecture). Am. Compl. ¶ ¶ 35-62. The Amended Complaint alleges, in substance, that, in both the article and the lecture, Kramer defamed Catalanello and placed him in a false light by presenting Catalanello's purported harassment of Pacifico as established fact, and by attributing to him certain discriminatory motivations. On November 27, 2013, Kramer submitted another motion to dismiss, Dkt. 67, with an accompanying memorandum of law, Dkt. 72 (" Def. Br." ). On December 11, 2013, Catalanello submitted his opposition to Kramer's motion to dismiss. Dkt. 73 (" Pl. Br." ). On December 18, 2013, Kramer submitted a reply brief. Dkt. 75 (" Def. Rep. Br." ). On January 31, 2014, the Court heard argument on the pending motion.

II. Applicable Legal Standards

To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege facts that, accepted as true, " state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. " Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).

A complaint is not required to provide " detailed factual allegations," but it must assert " more than labels and conclusions" and more than " a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. The facts pled " 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." Id. (internal citations omitted). The Court must accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the nonmoving party. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007); Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). In applying these principles, the Court " must confine its consideration to facts stated on the face of the complaint," Tarshis v. Riese Org., 211 F.3d 30, 39 (2d Cir. 2000), and " documents attached to the complaint as an exhibit or incorporated in it by reference, . . . matters of which judicial notice may be taken, or . . . documents either in plaintiff['s] possession or of which plaintiff[] had knowledge and relied on in bringing suit," Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (internal quotation marks and citation omitted).

Furthermore, " there is particular value in resolving defamation claims at the pleading stage, so as not ...

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