United States District Court, S.D. New York
OPINION & ORDER
NETBURN United States Magistrate Judge.
James Collins commenced this action on May 20, 2016,
asserting claims of breach of contract, violations of the
Uniform Commercial Code, fraudulent misrepresentation,
negligence, fraud, unfair and deceptive trade practices, and
false advertising claims against defendants Travers Fine
Jewels Inc. and Sam Kassin. Defendants filed an answer on
June 20, 2016, asserting two counterclaims. Plaintiff now
moves to dismiss defendants' second counterclaim, for
defamation, pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. Plaintiff's motion is GRANTED.
relevant portion of defendants' June 20, 2016 Answer and
Upon information and belief, Plaintiff published and
distributed inaccurate, libelous and defamatory statements as
to the value of the jewelry purchased by him over a period of
time from Travers.
The allegations of value were inaccurate and incorrect, and
were procured by Plaintiff in an effort to demean, insult and
Plaintiff knew or had reason to know that the alleged
appraisals inaccurately described the items purchased by him
As a result of such false statements, Defendants were damaged
in their business and in their reputation in the amount of at
least $500, 000, together with such punitive charges as the
Court shall direct.
Affirmative Defenses and Counterclaims ¶¶ 23-26
(ECF No. 21). Plaintiff moved to dismiss this defamation
counterclaim on the ground that defendants failed to state a
Standard of Review
motion to dismiss a counterclaim is evaluated under the same
standard as a motion to dismiss a complaint.”
Radiancy, Inc. v. Viatek Consumer Prods. Grp., Inc.,
138 F.Supp.3d 303, 313 (S.D.N.Y. 2014). The allegations in
the counterclaim are accepted as true and all reasonable
inferences are drawn in the counterclaimant's favor.
See McCarthy v. Dun & Bradstreet Corp., 482 F.3d
184, 191 (2d Cir. 2007). To survive a motion to dismiss under
Rule 12(b)(6), a counterclaim must allege facts that,
accepted as true, “state a claim for relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). This standard
“require[s] enough facts to ‘nudge [the] claims
across the line from conceivable to plausible.'”
Id. (quoting Twombly, 550 U.S. at 557).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678.
outset, the Court identifies those allegations that, because
they are mere legal conclusions, are not entitled to the
assumption of truth. See Iqbal, 556 U.S. at 679.
Defendants' allegations that the purported statements
were “libelous and defamatory” are “naked
assertions devoid of further factual enhancement.”
Iqbal, 556 U.S. at 678; see also Twombly,
550 U.S. at 545 (a claim repeating “labels and
conclusions, and a formulaic recitation of the elements of a
cause of action” will not suffice). Accordingly, the
Court does not consider the portion of paragraph 23 of the
Answer and Counterclaims that simply recites the statements
as “libelous and defamatory.” Answer, Affirmative
Defenses and Counterclaims ¶ 23 (ECF No. 21).
remaining allegations assert that plaintiff “published
and distributed” statements concerning the value of
jewelry, that those statements were “inaccurate and
incorrect, ” and that plaintiff “procured”
these statements “in an effort to demean, insult and
vilify” defendants. Id. ¶¶ ...