Marom v. Pierot

Background

Michael Marom brought claims for defamation per se and slander under New York law against Audrey Pierot and Mark Gordon. The opinion states that the alleged statements involved a Town Board meeting. The court noted that the factual and procedural background was discussed in the magistrate judge’s Report and Recommendation, and it presumed familiarity with that background.

Before the district court were six matters: Gordon’s motion to dismiss for failure to state a claim and for lack of personal jurisdiction; Pierot’s motion to dismiss for lack of personal jurisdiction; Marom’s motion for default judgment; Marom’s motion for summary judgment; Gordon’s motion for an extension of time to respond to submissions and to enforce a state-court stipulation; and Marom’s motion for leave to file additional documents.

Report and Recommendation and objections

Magistrate Judge Judith C. McCarthy recommended that Gordon’s motion to dismiss for failure to state a claim be granted in part and denied in part, while Gordon’s personal-jurisdiction motion be denied as moot. She recommended that Pierot’s personal-jurisdiction motion be denied as moot; that Marom’s motions for default judgment, summary judgment, and leave to file additional documents be denied; and that Gordon’s motion for an extension of time and to enforce the state-court stipulation be denied. She also recommended dismissing the complaint in its entirety without prejudice and allowing Marom to amend it.

Both Marom and Gordon objected to the Report and Recommendation. The district court explained that it reviews disputed portions of a magistrate judge’s recommendation independently when timely, specific objections are made, and may adopt undisputed portions unless clear error appears. The court overruled Marom’s objections.

Failure to state a claim

The court agreed that Marom’s complaint did not plausibly allege defamation per se or slander because it did not adequately allege that the defendants’ statements were false. The court stated that, under New York law, a defamation claim requires an allegedly false statement, among other elements. It also stated that a slander claim requires either special damages or allegations fitting one of the recognized categories of slander per se.

The court rejected Marom’s argument that the Report and Recommendation should have addressed scienter, explaining that scienter is not an element of defamation per se or slander. The court also agreed with the finding that Pierot could not be held responsible for statements she did not make at the Town Board meeting. Because Marom was allowed to amend, however, he could allege facts, if supported by his knowledge, information, and belief, indicating that Pierot also engaged in the alleged defamation.

The court adopted the recommendation that Gordon’s motion to dismiss for failure to state a claim be granted in part. The opinion’s footnote states that Judge McCarthy had rejected Gordon’s separate argument that the complaint was barred by a 2014 New York state-court stipulation; Marom had not objected to that recommendation, so the district court did not address that argument.

Additional documents

The court denied Marom’s motion for leave to file additional documents. In deciding a motion to dismiss for failure to state a claim, a court generally considers the complaint, documents attached to it, and documents incorporated into it. If the court considers other materials, it may need to exclude them or convert the motion into one for summary judgment and allow appropriate discovery.

Here, the additional materials Marom sought to submit—including a DVD recording that purportedly depicted the Town Board meeting and a police chief’s letter—were not included in or incorporated into the complaint and were subject to dispute. The court therefore agreed with the decision to exclude them at the pleading stage.

Disposition

The court adopted the Report and Recommendation in its entirety as the opinion of the court. It ruled as follows:

- Gordon’s motion to dismiss for failure to state a claim was granted in part and denied in part. - The complaint was dismissed in its entirety without prejudice. - The defendants’ motions to dismiss for lack of personal jurisdiction were moot. - Gordon’s motion for an extension of time and to enforce the state-court stipulation was denied. - Marom’s motions for default judgment, summary judgment, and leave to file additional documents were denied. - Marom was granted leave to file an amended complaint for defamation per se and slander.

The court required Marom to file the amended complaint, or seek additional time, by April 27, 2020. It stated that failure to do so would result in the case being deemed abandoned and could lead the Clerk to enter judgment for the defendants and close the case. The court also denied a fee-free appeal because it certified that an appeal would not be taken in good faith.