Rich v. Fox News Network LLC

Background

Joel and Mary Rich sued Fox News Network, LLC, Malia Zimmerman, and Ed Butowsky over reporting that their son, Seth Rich, a former Democratic National Committee employee, was murdered for leaking private emails from Democratic National Committee servers to Wikileaks. The original complaint asserted intentional infliction of emotional distress, conspiracy and aiding and abetting related to that tort, tortious interference with contract, and negligent supervision or retention against Fox News.

The court had previously dismissed all claims for failure to state a legally sufficient claim. On appeal, the Second Circuit concluded that the Riches had plausibly stated claims for intentional infliction of emotional distress and tortious interference with contract. It also held that they should be allowed to amend their negligent-supervision claim. The Second Circuit did not decide whether the conspiracy and aiding-and-abetting claims could proceed.

The amended complaint added a vicarious-liability claim against Fox News and retained the negligent-supervision claim. Fox News and Zimmerman moved under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not state a legally sufficient claim, seeking dismissal of the negligent-supervision, vicarious-liability, conspiracy, and aiding-and-abetting claims.

Negligent Supervision

Under New York law, a negligent-supervision or retention claim requires, in addition to ordinary negligence, an employer-employee relationship, facts showing that the employer knew or should have known of the employee’s tendency to engage in the conduct that caused the injury, and conduct occurring on the employer’s premises or using the employer’s property.

The court held that the amended complaint cured the deficiencies identified in its earlier decision. The Riches alleged several earlier incidents in which Zimmerman and another individual, Wheeler, allegedly manufactured or misrepresented facts in news stories. The court concluded that prior conduct need not be identical to the alleged misconduct; it was enough at the pleading stage that the allegations plausibly showed a tendency toward the type of conduct at issue. The court also found sufficient allegations that the conduct used Fox News’s premises, television programs, research, and website. The court therefore concluded that the amended complaint adequately stated a negligent-supervision claim against Fox News.

The court also noted that the Riches alleged physical harm to Mary Rich, including aggravation of a preexisting neurological condition, in response to the defendants’ argument that physical injury was required.

Vicarious Liability

Vicarious liability is an employer’s potential responsibility for an employee’s conduct performed within the scope of employment. The court relied on the earlier appellate determination that the Riches adequately alleged employment relationships between Fox News and Zimmerman and between Fox News and Wheeler. The amended complaint alleged that the relevant conduct occurred within the scope of their employment and furthered Fox News’s interests.

The defendants argued that Fox News could not be vicariously liable for Wheeler’s conduct because the Riches could not maintain an intentional-infliction-of-emotional-distress claim against Wheeler while having an alternative breach-of-contract claim. The court rejected that argument at this stage, stating that the alternative claim was not a tort claim and that the defendants cited no authority requiring dismissal on that basis. The court held that the amended complaint adequately stated a vicarious-liability claim against Fox News.

Conspiracy Claim

The court dismissed the conspiracy-to-commit-intentional-infliction-of-emotional-distress claim as duplicative. Under New York law, a civil-conspiracy claim may connect a defendant to an adequately pleaded underlying tort, but it cannot merely repeat the allegations supporting that tort as a separate claim. The court found that the conspiracy claim relied on the same allegations as the underlying emotional-distress claim and added no new allegations.

Aiding-and-Abetting Claim

The court also dismissed the aiding-and-abetting claim. Such a claim generally requires an underlying violation, knowledge of that violation, and substantial assistance in the underlying wrong. The Riches alleged that Fox News, Zimmerman, and Butowsky aided and abetted one another’s intentional infliction of emotional distress.

The court reasoned that the Second Circuit’s earlier analysis treated the defendants’ alleged actions together as the conduct supporting the emotional-distress claim, rather than finding that any individual defendant independently committed that tort. Because the amended complaint alleged no distinct conduct supporting aiding and abetting, the court concluded that the claim effectively alleged that the defendants aided and abetted themselves and could not stand independently.

Disposition

The court held that the amended complaint adequately stated negligent-supervision and vicarious-liability claims against Fox News. It dismissed the conspiracy and aiding-and-abetting claims. The conclusion states that the Fox Defendants’ motion to dismiss those claims was granted. The court did not decide Butowsky’s renewed motion challenging personal jurisdiction; it stated that the motion would be addressed by separate opinion after review of any objections to the magistrate judge’s recommendation.