607 F. App'x 22
2d Cir.2015Background
- Plaintiff Elizabeth Cucinotta Sorvillo was the manager of the website www.burnandrotinhell.com and a former employee of St. Francis Preparatory School.
- In 2013 Brother Leonard Conway, the school principal, sent a letter to the school community stating he had received emails alleging that numerous blog postings on the site were defamatory, that he was investigating with legal counsel, and that speech used to bully or spread malicious lies is not "free."
- Sorvillo sued the school and related defendants for defamation based on the statements in the letter.
- The U.S. District Court for the Eastern District of New York dismissed Sorvillo’s complaint; she appealed to the Second Circuit.
- The Second Circuit reviewed de novo whether the complaint plausibly alleged actionable defamation under New York law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the letter stated defamatory facts or actionable implications | Sorvillo argued the district court mischaracterized her claim as defamation by implication and that the statements implied undisclosed defamatory facts about her | Defendants argued the statements were opinion or reports of complaints and thus non-actionable (or privileged) | Court held the statements were non-actionable: either disclosed factual basis/opinion or not "of and concerning" Sorvillo |
| Whether the letter gave rise to a mixed opinion-fact defamation claim | Sorvillo contended the opinions implied undisclosed facts supporting defamatory conclusions about her | Defendants contended the letter either recited its factual basis (emails) or merely expressed pure opinion | Court held no implication of undisclosed facts — the letter disclosed basis (received emails) and announced an investigation, so no actionable mixed opinion |
| Whether the statements were "of and concerning" Sorvillo individually | Sorvillo argued the statements targeted the website manager (her) | Defendants argued statements targeted authors of the blog posts, not Sorvillo personally | Court held statements concerned the blog authors and not Sorvillo in her individual capacity |
| Whether dismissal was inappropriate on pleadings | Sorvillo argued the complaint sufficiently alleged defamation under correct standard | Defendants argued complaint failed to plead actionable defamatory statements | Court affirmed dismissal for failure to state a claim; did not reach qualified privilege defense |
Key Cases Cited
- Adelson v. Harris, 774 F.3d 803 (2d Cir. 2014) (standard of review for Rule 12(b)(6) dismissal)
- Chau v. Lewis, 771 F.3d 118 (2d Cir. 2014) (elements of libel under New York law)
- Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163 (2d Cir. 2000) (court decides whether words are reasonably susceptible to defamatory meaning)
- Levin v. McPhee, 119 F.3d 189 (2d Cir. 1997) (threshold issue: susceptible defamatory meaning for jury)
- Armstrong v. Simon & Schuster, Inc., 649 N.E.2d 825 (N.Y. 1995) (defamation by implication defined)
- Herbert v. Lando, 781 F.2d 298 (2d Cir. 1986) (combined truthful statements can create defamatory inference)
- Steinhilber v. Alphonse, 501 N.E.2d 550 (N.Y. 1986) (mixed opinion/fact defamation and implication of undisclosed facts)
- Gross v. N.Y. Times Co., 623 N.E.2d 1163 (N.Y. 1993) (opinion accompanied by disclosed facts is non-actionable)
- Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400 (2d Cir. 2006) (appellate court may affirm on any record-supported grounds)
- Kirch v. Liberty Media Corp., 449 F.3d 388 (2d Cir. 2006) ("of and concerning" requirement limits who may sue for defamation)