951 F. Supp. 2d 504
S.D.N.Y.2013Background
- Lan Sang, former Chinese gymnast, sued Ming Hai and Law Offices of Ming Hai, P.C. for defamation, invasion of privacy, and related claims stemming from statements Hai made after a prior AOL Time Warner representation.
- Hai published allegedly false statements on his Chinese-language blog, at a October 2011 press conference, and in a March 2012 interview, organized into four groups: Bestiality, Criminal Activity, Mistress, and Lawsuit statements.
- Sang alleges the statements were false and defamatory, and that the Blog and press events were public-facing, with substantial reach in China and New York.
- Hai’s prior suit against Sang in Queens County (defamation, fees, assault) is part of the背景, but Sang’s federal action is the vehicle for addressing the new statements.
- The Court evaluates jurisdiction, first-to-file transfer doctrine, and several state-law tort claims under Rule 12(b)(6) standards, dismissing some claims while allowing others to proceed.
- Defendants move to dismiss in full or transfer via first-to-file doctrine; the court denies transfer and partially grants dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Lawsuit Statement defamation claim is actionable. | Best to preserve all defamation claims. | Lawsuit Statement is a fair, true report of a judicial proceeding. | Lawsuit Statement defamation claim dismissed. |
| Whether Bestiality, Mistress, and Criminal Activity statements are actionable. | Statements are capable of false, defamatory meanings. | Some statements are pure opinion or not defamatory. | Bestiality, Mistress (some parts), and Criminal Activity statements survive. |
Key Cases Cited
- Biro v. Condé Nast, 883 F.Supp.2d 441 (S.D.N.Y.2012) (defamation elements; opinions not actionable; distinguishing fact from opinion)
- Levin v. McPhee, 119 F.3d 189 (2d Cir.1997) (contextual factors determine whether statements are actionable as fact or opinion)
- Gross v. New York Times Co., 82 N.Y.2d 146 (N.Y.1985) (tests for distinguishing fact from opinion; Milkovich guidance cited)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S.1989) (constitutional protection for opinions; falsity requirement for defamation remains for facts)
- Karedes v. Ackerley Group, Inc., 423 F.3d 107 (2d Cir.2005) (defamation per se and caution on interpretations; substantial damages)
- Cholowsky v. Civiletti, 69 A.D.3d 110 (2d Dep’t 2009) (Civil Rights Law § 74 fair and true report privilege; absolute privilege for judicial proceedings)
- Holy Spirit Ass’n for Unification of World Christianity v. N.Y. Times Co., 49 N.Y.2d 63 (N.Y.1979) (substantial accuracy standard for fair and true report privilege)
- Lacker v. Engel, 33 A.D.3d 10 (1st Dep’t 2006) (statements that summarize pleadings fall within § 74 privilege)
- Messenger v. Gruner + Jahr Printing & Publ’g, 94 N.Y.2d 436 (N.Y.2000) (newsworthiness and privacy exemptions; First Amendment balance)