Solstein v. Gold

Background

Eric H. Solstein, proceeding without a lawyer, sued Ernesto Mirra and Thomas Senator for defamation, specifically libel per se. The motion addressed in this opinion was Senator’s motion to dismiss the Second Amended Complaint under Federal Rule of Civil Procedure 12(b)(6), which asks whether the complaint states a legally sufficient claim.

Solstein alleged that Facebook users posted or repeated statements accusing him of drug dealing, child abuse, crack dealing, and related conduct. He alleged that Senator commented on Facebook posts about Solstein and posted an image that appeared to be Solstein’s mugshot with the words “Crack head Slasher.” Solstein alleged that the posts appeared on a Facebook page with more than 10,000 subscribers and that he suffered public contempt, ridicule, and damage to his reputation. He sought $2,000,000 from each defendant.

Mirra had not appeared in the action. The opinion addressed only Senator’s motion. The court also noted that Solstein described an alleged conspiracy between the defendants but clarified that he was not asserting conspiracy as a separate cause of action.

Senator’s Arguments

Senator argued that the challenged statement was protected opinion rather than an actionable factual statement. He also argued that Solstein was not sufficiently identified, that the Facebook exchange was not published to third parties, that Solstein had not pleaded libel per se, and that he had not pleaded special damages.

Court’s Analysis

Under New York law, a libel claim generally requires a written defamatory statement about the plaintiff, publication to a third party, fault, falsity, and either special damages or a statement actionable on its face. Statements accusing someone of serious criminal conduct may be defamatory per se, meaning special damages do not have to be pleaded.

The court recognized that Senator’s use of phrases such as “I guess,” rhetorical questions, and a response to another person’s post could support an argument that the statement was opinion. But on a motion to dismiss, the court had to consider whether any reasonable reading of the allegations supported Solstein’s claim. The court concluded that the allegations plausibly suggested Senator’s statement was based on allegedly false facts about drug dealing and child abuse. The surrounding comments and the mugshot post could also lead readers to draw a damaging inference about Solstein. The court further noted that repeating another person’s defamatory statement does not automatically shield the person who republishes it from liability.

The court found that Solstein plausibly alleged that readers who knew him could identify him from the home address and related information in the Facebook posts, as well as from the mugshot. It also found that the alleged publication to a page with more than 10,000 subscribers was sufficient at the pleading stage, even though the exchange did not identify Solstein by name.

Finally, the court held that accusations of selling drugs could constitute libel per se because they allege serious criminal activity punishable by imprisonment. Therefore, Solstein did not need to plead special damages to pursue the claim.

Ruling

Judge Kenneth M. Karas denied Senator’s motion to dismiss. The court did not determine whether the statements were actually false, whether Senator was ultimately liable, or whether Solstein would prevail at trial. The court set a status conference for October 22, 2020, and directed the clerk to terminate the pending motion and mail the opinion to Solstein.