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Galland v. Johnston

United States District Court, S.D. New York

March 19, 2015

CLAUDE GALLAND, et al., Plaintiffs,
v.
JAMES JOHNSTON, et al., Defendants.

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

RICHARD J. SULLIVAN, District Judge.

Claude and Violaine Galland (together, "Plaintiffs"), proceeding pro se, bring this action against James and Judith Johnston (the "Johnstons"), and Stephen and Terri Bowden (the "Bowdens, " and, together with the Johnstons, "Defendants") for, inter alia, breach of contract, defamation, and tortious interference with business relations, stemming from reviews left by the Johnstons and the Bowdens on a property rental website. (Doc. No. 2 ("Compl.").) Now before the Court is the Report and Recommendation of the Honorable Ronald L. Ellis, Magistrate Judge, recommending that the Court dismiss the Complaint with the exception of the breach of contract claims, deny Plaintiffs' motion for summary judgment, and deny Plaintiffs' motion to amend the Complaint. (Doc. No. 30 ("Rep." or "Report").) For the reasons set forth below, the Court adopts the Report in its entirety.

l. BACKGROUND

A. Facts

The Court assumes the parties' familiarity with the facts of this case and summarizes only those facts necessary to the disposition of the pending motions.[1]Plaintiffs are the owners of an apartment in Paris, France (the "Apartment"), which they list on the short term property rental website VRBO for rental by people traveling to Paris. (PAC ¶ 8.) From May 17 to May 23, 2014, the Bowdens stayed in the Apartment, and from May 24 to May 28, 2014, the Johnstons stayed in the Apartment. (PAC ¶ 63; PAC, Exhibits, at 43.)[2] Each couple signed a rental agreement prior to renting the Apartment, in which they promised, among other things, "not to use blogs or websites for complaints, anonymously or not." (Compl., Exhibits, at 11.) Following their respective stays, each of the Bowdens and Johnstons left a review of the Apartment on VRBO, connected to the Apartment's listing on that website. As set forth in the Proposed Amended Complaint, the Bowdens wrote:

Small and noisy but close to the Notre Dam [ sic. ]
This apartment was much smaller than it appeared in the pictures. There is a mirrored wall that makes it look larger than it is. To be fair, it does compare in size with other places I have stayed in Paris. It is in a very noisy neighborhood, The Latin Quarter, and we could hear people on the street most of the night and on the weekends they were very loud going up and down the stairs at all hours of the night!! Be prepared for no air conditioner. There is a portable fan which was a big help. Pack light as there is no closet and no drawers to put your clothes. The kitchen is really [too] small to cook in other than fix coffee or heat something up. The bathroom is also tiny. I would not recommend this for more than 2 people! On the plus side, it is attractive enough and very close to the metro and Notre Dam [ sic. ].

(PAC ¶ 63.) The Johnstons wrote:

Retired couple -
We just left this apartment today. This was an awful experience. The studio itself will look like the photo & the sheets are clean, but the entry "behind the blue door" is awful and is shared as the back door to a Pizza Place. They prop the door open with a beer keg, right next to the trash cans. Expect a 2 story climb of narrow stairs, sloping floor, poor lighting, exposed utilities, broken and patched plaster. There is no way this Apt is getting all 4 & 5 stars. The reviews are way too wordy and sound like the owner. There was no mgr. Samy to help us even when we called him. Microwave didn't work, hair dryer with broken wires shorted out. This self-described archeological building is a physical mess and a fire hazard. We were embarrassed to enter and couldn't wait to get out of there. We have stayed in several lovely ancient apartments in Europe. The building conditions always matched the interior of the apt. Don't be deceived by the #20279 advertisement.

( Id. )

Additionally, on or around June 26, 2014 - after the commencement of the instant lawsuit but presumably before the Bowdens had been served with a copy of the Complaint, given the reference to threatened litigation - Terri Bowden wrote a letter to VRBO, which was not posted or otherwise available to the public, complaining about her experiences with Claude Galland. In the letter, she noted that after she left her three-star review of the Apartment, Claude Galland sent her two emails which she perceived to be "threatening and disturbing, " and which requested that she remove the review from VRBO. The letter indicated that Mr. Galland offered the Bowdens $300 for the removal of the review, which Terri Bowden found "equivalent to bribery and extortion." The letter further stated that Terri Bowden had "no intention of caving in to Mr. Galland's threats and attempts to intimidate me, " and wondered "how many people he has done this to and how many of those people have been intimidated enough to withdraw their less than 4 to 5 star reviews. There is no way this property could be considered to be 4 or 5 stars!" (PAC ¶ 63.) Finally, the letter requested that the Gallands be banned from making any listing on VRBO or any affiliated website, because VRBO is "not the place for a person who chooses to run his business in a threatening manner to get good reviews." ( Id. )

B. Procedural History

On June 18, 2014, Plaintiffs commenced this action by filing the Complaint, bringing claims for (1) breach of fiduciary duty, (2) breach of contract, (3) "intentional negligence, " (4) extortion, and (5) defamation. (Compl. ¶¶ 36-40.) The gist of the Complaint is that the reviews left by the Johnstons and the Bowdens, and the letter sent by Terri Bowden, are defamatory. On July 11, 2014, the Johnstons filed a motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 4.) Plaintiffs filed an opposition to the Johnstons' motion, along with a crossmotion for summary judgment as to the breach of contract claims, on July 28, 2014. (Doc. No. 10.) On August 25, 2014, Plaintiffs filed a motion to amend the Complaint, together with the PAC. The PAC adds a claim for tortious interference with business relations and, for the first time, sets forth in their entirety the reviews and letter upon which the claims are based. The Johnstons filed an opposition to the motion to amend on September 12, 2014. (Doc. No. 19.) On ...


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