OPINION
Defendant has moved to dismiss the Plaintiffs complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Based on the conclusions set forth below, Defendant’s motion is denied.
I. Prior Proceedings
Plaintiff filed a complaint in this Court on September 21, 2015, alleging a single defamation claim. See Compl.
On December 1, 2015, Defendant filed the instant motiop to dismiss and a motion to stay discovery pending a decision on the motion to dismiss, or in the alternative, for an extension of time. Oral argument was held on both motions and the matters deemed fully submitted on January 14, 2016. The motion to stay discovery was denied and the motion to extend granted for fourteen days by Opinion dated January 19, 2016.
II. Applicable Standard
On a motion to dismiss pursuant to Rule 12(b) (6), all factual allegations in the complaint are accepted as true, and all inferences are drawn in favor of the pleader. Mills v. Polar Molecular Corp.,
Additionally, while “a plaintiff may plead facts alleged upon information and belief ‘where the belief is based on factual information that makes the inference of culpability plausible,’ such allegations must be ‘accompanied by a statement of the facts upon which the belief is founded.’ ” Munoz-Nagel v. Guess, Inc., No. 12-1312,
III. The Motion to Dismiss is Denied
Defendant’s cites four grounds for dismissal: (1) the allegedly defamatory statements are protected by the self-defense privilege; (2) the allegedly defamаtory statements are protected by the pre-litigation privilege; (3) the allegedly defamatory statements are non-actionable; (4) pleading defects in the Complaint, specifically, failure to allege adequate identifying details related to the statements, and failure to Plead special damages. Def.’s Mem. in Supp. Mot. Dismiss Compl. 9-25 (“Def.’s MTD”).
A. The Complaint is Adequately Pled
At the center of this case is the veracity of a contextual world of facts more broad than the allegedly defamatory statements. Specifically, as a minor, Plaintiff was a victim of sustained underage sexual abuse between 1999 and 2002. Compl. 3-6, ¶¶ 8-27. Plaintiff has since identified Defendant as closely involved in Plaintiffs trafficking for the purpose of this abuse. Id. ¶¶ 8-10, 13, 17-19, 27. Defendant has responded to those allegations, and this case concerns those responses.
Plaintiff has identified two statements as allegedly defamatory. The first is a statement Defendant made thrоugh her agent on January 3, 2015 (the “January 3 Statement”). Compl. at 6, 129-30. Plaintiff alleges that the content of this statement contained actionable falsehoods in stating that Plaintiffs own allegations “against Ghis-laine Maxwell are untrue,” that Plaintiffs allegations have been “shown to be untrue,” and that Plaintiffs “claims are obvious lies.” Id. ¶ 30. The second concerns a January 4, 2015 on-camera statement made to the New York Daily News (the “January 4 Statement”). Id. at 7, ¶ 37. Plaintiff alleges that this statement constitutes an actionable falsehood by referring back to the January 3 statement in response to a question regarding the allegations Plaintiff had made against Maxwell. Id.
Under New York law,
Defendant argues that the statements in question are not susceptible to a defamatory meaning.
In distinguishing between fact and opinion, the Court asks “(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are cаpable of being proved true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact.” Id. (citations omitted). The Davis court held that to “communicate that [sexual assault victims] lied, [and] their motive-.was financial gain” constituted defamatory meaning. Id.
Courts recently grappling with the distinction between actionable defamation and non-actionable protected speech in the context of denials of sexual assault claims have come to different conclusions. In Green v. Cosby, the Defendant had called allegations of sexual assault “nothing” that had “proved to be nothing,” and an “absurd fabrication.” No. 14 Civ. 30211 (MGM),
This ease therefore requires the same finding as that in Davis and Green. First, statements thаt Giuffre’s claims “against [Defendant] are untrue,” have been “shown to be untrue,” and are “obvious lies” have a specific and readily understood factual meaning: that Giuffre is not telling the truth about her history of sexual abuse and Defendant’s role, and that some verifiable investigation has occurred and come to a definitive conclusion proving that fact. Second, these statements (as they themselves allege), are capable of being proven true or false, and therefore constitute actionable fact and not opinion. Third, in their full context, while Defendant’s statements have the effect of generally denying Plaintiffs story, they also clearly constitute fact to the reader.
Though Defendant never called Plaintiff a “liar,” to call her claims “obvious lies” that “have been shown to be untrue” demands the same meaning. Plaintiff cannot be making claims shown to be untrue that are obvious lies without being а liar. Furthermore, to suggest an individual is not telling the truth about her history of having been sexually assaulted as a minor constitutes more than a general denial, it alleges something deeply disturbing about the character of an individual willing to be publicly dishonest about such a reprehensible crime. Defendant’s statements clearly imply that the denials are based on facts separate and contradictory to those that Plaintiff has alleged. Sexual assault of а minor is a clear-cut issue; either transgression occurred or it did not. Either Maxwell was involved or she was not. The issue is not a matter of opinion, and there cannot be differing understandings of the same facts that justify diametrically opposed opinion as to whether Defendant was involved in Plaintiffs abuse as Plaintiff has claimed. Either Plaintiff is telling the truth about her story and Defendant’s involvement, or Defendant is telling the truth and she was not involved in the trafficking and ultimate abuse оf Plaintiff. .The answer depends on facts. Defendant’s statements are therefore actionable as defamation. Whether they ultimately prove to meet the standards of defamation (including but not limited to falsity) is a matter for the fact-finder.
Defendant also argues that the allegedly defamatory statements are non-actionable because Plaintiff has “fail[ed] to provide the context within which the Statements were delivered.” Def.’s MTD at 18. An allegеdly defamatory must be examined in “the full context of the communication in which the statement appears” and within its broader social context and setting. Celle,
With respect to the January 3 Statement, Defendant argues that the claim fails for failure to plead “to whom, where, or in what manner” the statement was made. Def.’s MTD at 20-1. “Failure to state the particular person or persons to whom the allegedly slanderous or libelous comments were made as well as the time and manner in which the publications were made warrants dismissal.” Hawkins v. City of New York, No. 99 Civ. 11704 (RWS),
Unlike the cases Defendant cites, Plaintiff has alleged that the January 3 Statement was made in a press release for distribution to the media and the public for the purposes of refuting Giuffre’s story regarding her history of sexual abuse. See Compl. ¶ 30. Plaintiffs Complaint identifies the specific allegedly defamatory content by direct quotation. See id. By Defendant’s own admission, the January 3 Statement was made to media in response to Plaintiffs publicized sexual abuse history. See e.g. Def.’s MTD at 10 (“Each attributed statement responds directly to allegations and claims made by Plaintiff.”), 17-18 (“The January 3 Statement appears, inter alia, in a telegraph [sic] article ... [containing] the following response by Ms. Maxwell’s spokesman ... made in response to repeated reputation-harming allegations”). Plaintiff has sufficiently pled to specificity of the content and context of the allegedly defamatory statements.
Defendant furthеr argues that the January 4 Statement is not actionable, as it was a non-substantive response to reporters that amounts to a declination to comment. Def.’s MTD at 20. Defendant points out the sum total of the interaction and statements recorded were as follows:
Defendant: “I wish you a happy new year and thank you so much.”
Off-Camera Individual 1: “So you’re basically not commenting, is that...”
Defendant: “I’m referring to the statement that was made.”
Off-Camera Individual 2: “Is any of that true?”
Defendant: “C’mon, guys...”
Defi’s MTD at 20.
Plaintiff has pled that the comment “I’m referring to the statement that wаs made” concerns the January 3 Statement, and in doing so, reiterates its content. Compl. ¶ 37. “[I]f, upon any reasonable view of the stated facts, plaintiff would be entitled to
Finally, Defendant argues the Complaint is facially defective for failure to plead special damages. Def.’s MTD at 23. “However, it is wеll established that com-pensable injury is presumed if the defamatory statement falls within a category of libel per se.” Computech Int’l, Inc. v. Compaq Computer Corp., No. 02 Civ. 2628 (RWS),
Plaintiff has specifically pled libel per se on two grounds: First, “Maxwell’s false statements constitute libel per se inasmuch as they exposed Giuffre to public contempt, ridicule, aversion, and disgrace, and induced an evil opinion of her in the minds of right-thinking persons.” Compl. at 9, ¶ 10. Second, “Maxwell’s false statements also constitute libel per se inasmuch as they tended to injure Giuffre in her professional capacity as the president of a non-profit corporation designed to help victims of sex trafficking, and inasmuch as they destroyed her credibility and reputation among members of the community that seeks her help and that she seeks to serve.” Id. ¶ 11.
It is plausible that а comment indicating that an individual is lying about a history of underage sexual abuse tends to expose that individual to public contempt as someone willing to lie and accuse others of a truly unfathomable and morally disgraceful course of action. Society takes accusations of pedophilia and sexual abuse sufficiently seriously that it is plausible to allege that to claim an individual has made false accusations of underage sex abuse would expose that individual to public contempt, ridicule, aversion, and disgrace in the minds of right-thinking persons.
Furthermore, for an individual acting in the capacity of president of a non-profit corporation designed to help victims of sex trafficking, publication of a false narrative of sex trafficking would tend to disparage that individual in the way of her profession. Defendant’s argument that Plaintiff may not take advantage of this second ground оn the basis that “victim” is not a profession ignores the valid profession of non-profit advocacy, and the very real importance of perceived competence and integrity in the conduct of that profession.
B. Defendant’s Intent to Assert Affirmative Privilege Defenses Does Not Justify Dismissal
Defendant argues that the alleged defamatory statements are protected by the self-defense and pre-litigation privileges, and thus provide grounds to dismiss Plaintiffs complaint. Def.’s MTD at 7-16. “New York courts have articulated the standard for libel and defamation using various terms, not all of which explicitly include malice or the requirement that the statement in question laсk privilege.” Orenstein v. Figel,
Defendant acknowledges that these privileges are, even if applicable, qualified. Def.’s MTD at 8 (“New York... recognizes a qualified privilege to respond in self-defense”) (citing Kane v. Orange Cty. Publications,
“Qualified privilege is an affirmative defense that must be pleaded and proved by the defendant.” Kroemer v. Tantillo,
Moreover, to the extent the privileges do apply or lack of privilege is a requisite element of Plaintiffs claim, Plaintiff has met her burden by pleading fаcts supporting a plausible conclusion that the privileges may be rebutted. “Under New York law, a qualified or conditional privilege may exist where statements are made, without malice, in furtherance of a common interest.” Block v. First Blood Assoc.,
Plaintiff has repeatedly pled that the January 3 and 4 Statement were made with malice and knowledge of their falsity. Compl. at 9, ¶ 10; 10, ¶ 17. The Complaint pleads adequate facts to support these- conclusions. See Compl. at 3-7. Specifically,
IV. Conclusion
For the foregoing reasons and as set forth above, Defendant’s motion to dismiss is denied.
It is so ordered.
Notes
. Some paragraph numbering in Plaintiff's Complaint repeats. Where necessary for clarification, citations will reference page numbers either in lieu of or addition to paragraph numbering.
. Plaintiff is a citizen of Colorado. Compl. ¶ 7. The statements in question were made in New York, Defendant resides in New York, Plaintiff has brought suit in New York. Id. ¶¶ 7, 29-32, 37. There is no conflict between New York and Colorado defamation law. Compare Kforce, Inc. v. Alden Personnel, Inc.,
. Defendant submits this argument primarily as part of the self-defense privilege argument (arguing that Defendant was taking advantage of her right to generally deny the claims against her). Def.'s MTD at 10-11. Both parties argue this point in the form of supplementary authority. See Pl.’s Supp. Auth., filed Jan. 8, 2016; Def.'s Supp. Auth., filed Jan. 21, 2016. Because this issue goes to the heart of whether the statements Plaintiff identifies as allegedly defamatory can meet the pleading requirement of a defamatory statement of fact, it will be addressed in this pleading sufficiency Part.
. Plaintiff further argues that, when considered in context, "it is clear that the January 3 Statement was issued in self defense and in anticipation of good-faith litigation.” Def.'s MTD at 18. This is not a pleading defect argument, but one that goes to the Defendant’s self-defense and pre-litigation privilege arguments. The Court will therefore address this point in considering Defendant's privilege arguments.
. For example, Somaly Mam, аn internationally celebrated anti-sex trafficking advocate and head of the Somaly Mam Foundation was accused of fabricating her personal story of having been trafficked. Despite the irrefutable work of the Foundation on behalf of other victims of trafficking, Mam was forced to resign and the Foundation closed as a result of the scandal. See Gerhard Joren, Somaly Mam: The Holy Saint (and Sinner) of Sex
. The matter of falsity ,is for the fact-finder and not appropriate for resolution at the pleading stage. Moreover, the celebrity of third parties implicated in Plaintiff's allegations has no bearing on the veracity of her claims, as Defendant suggests