GIDEON RAPAPORT v. AJAY SRINIVASAN IYER, et al.
23-CV-6709 (JGLC)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
March 31, 2025
JESSICA G. L. CLARKE, United States District Judge
JESSICA G. L. CLARKE, United States District Judge:
Plaintiff Gideon Rapaport, now proceeding pro se, is a former summer associate at the law firm of Kirkland & Ellis LLP, and a recent graduate of New York University School of Law (“NYU Law“). Plaintiff filed this action on July 28, 2023 against three John Does—a Reddit.com user, a Top-Law-Schools.com user, and a current or former NYU Law student. The original complaint alleged that the John Does engaged in a conspiracy to defame his character and ruin his professional reputation by spreading rumors on law school website forums. After conducting discovery to ascertain the identity of these individuals, Plaintiff, with the assistance of counsel, filed an Amended Complaint on May 24, 2024 amending the case caption to list the names of the John Doe defendants, and asserting similar causes of action premised on the same alleged defamatory statements and conspiracy.
Defendants now move to dismiss this action, asserting, among other things, that Plaintiff has failed to state any claims against them, and that his claims are barred by applicable statutes of limitation and legal immunities. Plaintiff subsequently filed a motion for leave to amend his complаint to survive dismissal to which he attached a proposed seconded amended complaint. For the reasons set forth below, Defendants’ motions to dismiss are GRANTED in part and DENIED in part, and Plaintiff‘s motion for leave to amend is partially GRANTED. The Court
BACKGROUND
The following facts are, unless otherwise noted, taken from the Amended Complaint and presumed to be true for the purposes of this Order. See J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004).
During the summer of 2022, Plaintiff was a summer associate at the law firm Kirkland & Ellis, LLP (“K&E“). ECF No. 38 (“Amended Complaint” or “AC“) ¶ 1. On July 15, 2022, Plaintiff attended a get together for members of the NYU Law Federalist Society. Id. ¶ 31. Defendants Ajay Iyer and Zach Garrett (collectively, “Student Defendants“) also attended. Id. At the get together, Plaintiff alleges he told Student Defendants that he would be attending the James Kent Academy in early August. Id. The James Kent Academy is a fellowship sponsored by the Federalist Society‘s faculty division. Id. ¶ 21. Defendant Richard Epstein wrote a recommendation letter for Plaintiff in support of his candidacy for the fellowship. Id. ¶ 60.
A few weeks later, on July 28, 2022, Defendant Iyer photographed a guard desk at the lobby of 601 Lexington Avenue (where Kirkland & Ellis is located). Id. ¶ 35. Defendant Iyer then digitally altered the photograph to replace it with a picture of Plaintiff‘s face and the following text:
DO NOT ADMIT
GIDEON RAPAPORT
KIRKLAND AND ELLIS
Id.; see ECF No. 38-1. Plaintiff alleges that Iyer then posted the altered image online on two internet sites: Reddit.com and Top-Law-Schools.com. Id. ¶ 37. These postings included
On July 29, 2022, Defendant Iyer returned to the guard desk at 601 Lexington Avenue to take another photograph, which he used to make a second image that was “more technically sophisticated.” Id. ¶ 48; ECF No. 38-2. Iyer sent the second image to Garrett and Professor Epstein. Id. ¶ 50. On August 2, 2022, Defendant Garrett again contacted Mr. Redpath and Ms. Alcantara, writing “[a]s I mentioned to you over the weekend, my understanding is that Gideon Rapaport was fired from his summer associate position at Kirkland & Ellis NY last week for sexually harassing a practice assistant or an attorney.” Id. ¶¶ 54, 55. Garrett also wrote Plaintiff had been “banned from entering the building” and included the manipulated photo Defendant Iyer had created in his correspondence. Id. ¶ 56. Again, neither Mr. Redpath nor Ms. Alcantara took any further action. Id. ¶ 61. Defendant Epstein, however, forwarded the email containing these statements to Lee Otis.1 Id. ¶ 63.
On July 28, 2023, shortly before filing this suit, Plaintiff met with Defendant Epstein. He asked Defendant Epstein to review the complaint later filed in this case, and asked if Epstein had any corrections or changes to the proposed draft. Id. ¶¶ 80–82. Epstein maintained he did not want to be involved. Id. ¶ 83.
Plaintiff filed this action pro se on July 28, 2023 against three John Does—the people he alleges created the fake photographs and wrote the online posts—asserting claims for defamation
On November 22, 2023, Plaintiff sought leave to conduct expedited discovery for the limited purpose of identifying and effectuating service on the John Doe defendants. ECF Nos. 10, 11. On January 2, 2024, the Court approved limited document subpoenas tailored to that purpose. ECF No. 21. In that same order, the Court also extended Plaintiff‘s deadline to serve the summons and complaint on Defendants to 45 days after Plaintiff received information from the third-party subpoenas. Id. On April 29, 2024, Plaintiff, who was then represented by counsel, informed the Court that he received responses to the subpoenas on March 15, 2024, stated his intention to file an amended complaint, and sought an extension to effectuate service of the amended complaint, which the Court granted. ECF Nos. 34, 35, 37. Plaintiff filed the Amended Complaint on May 24, 2024, and asserted claims for defamation, intentional infliction of emotional distress (“IIED“), injurious falsehood, false light and invasion of privacy, and civil conspiracy against all defendants (the “Omnibus Claims“). AC ¶¶ 90–127. Plaintiff also asserted claims for fraud and tortious interference with economic advantage against Defendant Epstein only. Id. ¶¶ 128–142. On May 27, 2024, and June 11, 2024, Plaintiff sent waivers of service to Student Defendants and Defendant Epstein, respectively. ECF Nos. 39, 42, 43. On June 17, 2024, Defendant Epstein executed a waiver of service of the Amended Complaint. ECF No. 39. Student Defendants also executed a waiver of service of the Amended Complaint on June 25, 2024. ECF Nos. 42, 43.
Defendant Epstein and Student Defendants filed the instant motions to dismiss on August 12 and August 16, respectively. ECF Nos. 50, 51 (“Epstein Mem.“), 53, 54 (“Students Mem.“).
The Court notes that Plaintiff Rapaport has also commenced two related actions involving similar assertions and alleged tortious conduct, both of which remain pending. On August 5, 2024, Plaintiff filed an action against Abigail Finkelman as sole defendant, alleging claims for defamation and false light and invasion of privacy based on Finkelman allegedly retweeting and resharing the faked photographs at issue in this case. See Complaint, Rapaport v. Finkelman, No. 24-CV-5942 (S.D.N.Y. Aug. 5, 2024), ECF No. 1. And on September 27, 2024, Plaintiff filed an action against multiple individuals, including all of the Defendants in this case, alleging civil RICO violations and attempted monopolization in violation of the Sherman Act, arising out of substantially the same conduct asserted in this case. See Complaint, Rapaport v. Epstein, et al., No. 24-CV-7439 (S.D.N.Y. Sept. 27, 2024), ECF No. 1.
LEGAL STANDARD
In reviewing a motion to dismiss under
Pro se complaints “must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal citation omitted). “Such a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Hughes v. Rowe, 449 U.S. 5, 10 (1980) (internal citation omitted); see also Boykin v. KeyCorp., 521 F.3d 202, 216 (2d Cir. 2008) (“[D]ismissal of a pro se claim as insufficiently pleaded is appropriate only in the most unsustainable of cases.“). Because Plaintiff is proceeding pro se, the Court must liberally construe his Amended Complaint2 and interpret it “to raise the strongest claims that it suggests.” Hardaway v. Hartford Pub. Works Dep‘t, 879 F.3d 486, 489 (2d Cir. 2018) (internal quotation marks omitted).
DISCUSSION
The Court first considers whether New York or New Jersey law applies to Plaintiff‘s claims, concluding that choice of law rules require the Court to apply the former. Second, the
Notwithstanding the Court‘s dismissal of the claims, the Court will allow Plaintiff, in accordance with the Second Circuit‘s broad and liberal reading of
I. New York Law Applies to This Action and Plaintiff‘s False Light and Invasion of Privacy Claim Is Dismissed with Prejudice
Plaintiff purports to rely on New York law for the majority of his claims. However, he attempts to invoke New Jersey law solely with respect to his false light and invasion of privacy claim. AC ¶¶ 115–116. According to Plaintiff, New Jersey “redresses the violation of a right of privacy which is not afforded by the State of New York to its citizens, but which pertains to
“When a federal court sits in diversity, it applies the choice of law rules of the forum state . . . .” Chau v. Lewis, 771 F.3d 118, 126 (2d Cir. 2014). In New York, a choice of law analysis is only required “[w]here the applicable law from each jurisdiction provides different substantive rules.” Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998). “In the absence of substantive difference . . . a New York court will dispense with choice of law analysis; and if New York is among the relevant choices, New York courts are free to apply it.” Int‘l Bus. Machs. Corp. v. Liberty Mut. Ins. Co., 363 F.3d 137, 143 (2d Cir. 2004). Here, a conflict plainly exists with respect to the false light and invasion of privacy claim, because New York does not recognize this claim as cognizable. Satz v. Org. for Resol. of Agunot Inc., No. 23-CV-36 (MKV), 2024 WL 1330011, at *10 (S.D.N.Y. Mar. 28, 2024) (collecting cases). The Court must therefore conduct a choice of law analysis.
“In general, under New York choice of law principles ‘the law of the place of the tort gоverns.‘” Fisher v. APP Pharms., LLC, 783 F. Supp. 2d 424, 428 (S.D.N.Y. 2011) (quoting Padula v. Lilarn Prop. Corp., 84 N.Y.2d 519, 522 (1994)). A court must endeavor to apply the law of the jurisdiction having the “most significant” relationship to the transaction and parties. Press v. Primavera, 685 F. Supp. 3d 216, 226–27 (S.D.N.Y. 2023). In short, a court should give effect to the “law of the jurisdiction with the strongest interest in the resolution of the particular
Here, New York has the “strongest interest” in the resolution of this matter. According to the Amended Complaint, Student Defendants (NYU Law students) and Defendant Epstein (a resident of New York and a professor at NYU Law) conspired to ruin Plaintiff‘s reputation with allegedly defamatory statements regarding his employment at K&E‘s New York office, which were purportedly distributed to members of the NYU Law Federalist Society, and disseminated online more broadly. Moreover, Plaintiff concedes New York law should apply to all but one of his claims (false light). Students MTD Opp. at 24.
Still, Plaintiff claims that New Jersey law should apply to the false light and invasion of privacy claim because it is his “local community.” Id. To be sure, courts have generally instructed that in a defamation action, the choice of law analysis can be resolved by reference to the plaintiff‘s domicile. See, e.g., Catalanello v. Kramer, 18 F. Supp. 3d 504, 512 (S.D.N.Y. 2014). However, this “presumptive rule” does not apply where “some other state has a more significant relationship to the issue or the parties.” Id. (cleaned up). Here, Plaintiff has conceded that New York law should apply to his defamation claim and brings a slew of other claims also under New York law. It is clear that Plaintiff views New York as having the most significant relationship to the issues and parties in this case.
Plaintiff‘s position thus makes clear that he merely wishes to avail himself of a cause of action that New York does not recognize. Indeed, if Plaintiff truly believed New Jersey had the greatest interest in the allegations from the Amended Complaint, he would advocate that it should apply across the board because the same conduct underlies all his claims. The Court therefore concludes that New York law applies. See Satz, 2024 WL 1330011, at *10 (S.D.N.Y.
For substantially similar reasons, the Court declines to invoke the doctrine of dépeçage, which allows a Court to apply the law of different states to distinct issues. See Seidel v. Houston Cas. Co., 375 F. Supp. 2d 211, 219 n.13. (S.D.N.Y. 2005). “The [d]epeçage doctrine recognizes that in a single action different states may have different degrees of interests with respect to different operative facts and elements of a claim or defense.” 2002 Lawrence R. Buchalter Alaska Tr. v. Philadelphia Fin. Life Assur. Co., 96 F. Supp. 3d 182, 200 (S.D.N.Y. 2015) (quoting Simon v. Philip Morris Inc., 124 F. Supp. 2d 46, 75 (E.D.N.Y. 2000)). This case, however, does not involve, for instance, multiple overlapping issues and parties from multiple jurisdictions. As discussed above, the conduct at issue almost exclusively occurred in New York. Cf. Simon v. Philip Morris Inc., 124 F. Supp. 2d 46, 75 (E.D.N.Y. 2000) (applying dépeçage in nationwide class action on numerous overlapping issues of damages and liability). Accordingly, and because Plaintiff does not cite any authority requiring a different result, the Court will apply New York law, and thereforе dismisses Plaintiff‘s claim for false light and invasion of privacy with prejudice. See Satz, 2024 WL 1330011, at *10.
II. Plaintiff‘s Omnibus Claims Are Timely with Respect to Certain Defamatory Statements
Student Defendants argue that Plaintiff‘s claims for defamation, injurious falsehood, IIED, and civil conspiracy (the Omnibus Claims) are time-barred because he did not file the Amended Complaint until May 24, 2024, far outside the applicable one-year statute of limitations which ended by September 1, 2023 at the latest. Students Mem. at 3–6. Plaintiff
A. Affirmative Defenses at Motion to Dismiss Stage
As an initial matter, the Court rejects Plaintiff‘s argument concerning affirmative defenses. He argues that Defendants’ invocation of the applicable statute of limitations constitutes an affirmative defense, and a complaint need not anticipate and affirmatively plead facts in avoidance of such defenses. Students MTD Opp. at 11 (citing Michael Grecco Prods., Inc. v. RADesign, Inc., 112 F.4th 144, 149–50 (2d Cir. 2024)). This argument misconstrues applicable law. To be sure, “[t]he lapse of a limitations period is an affirmative defense that a defendant must plead and prove.” Staehr v. Hartford Fin. Servs. Grp., 547 F.3d 406, 425 (2d Cir. 2008) (citing
In New York, a one-year statute of limitations period applies to claims for defamation, IIED, and injurious falsehood. See Conte v. Cnty. of Nassau, 596 F. App‘x 1, 4–5 (2d Cir. 2014) (summary order). New York does not recognize an independent tort of civil conspiracy, and so this claim adopts the statute of limitations applicable to the underlying tort, meaning it would also be one year. See Deans v. Bank of Am., Nо. 10-CV-9582 (RJH), 2011 WL 5103343, at *3 (S.D.N.Y. Oct. 27, 2011) (internal citation omitted). Because Plaintiff alleges the relevant conduct occurred in July and August of 2022, see generally AC ¶¶ 31–71, the limitations period expired by September 1, 2023 at the latest.
Even though Plaintiff arguably filed the original complaint within the limitations period, the Amended Complaint requires its own timeliness analysis because it adds new claims and parties. The Amended Complaint updated the caption with the actual identities of the John Does, and courts have observed that replacing a “John Doe” with a named party in effect constitutes a change in the party sued. Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013). As this Circuit has made clear, “John Doe” pleadings “cannot be used to circumvent statutes of limitations.” Chinese Am. Citizens All. Greater New York v. New York City Dep‘t of Educ., No. 20-CV-8964 (LAK), 2024 WL 1795390, at *3 (S.D.N.Y. Apr. 25, 2024) (citing Hogan, 738 F.3d at 517).
Instead, “John Doe” substitutions may only be accomplished when all the specifications for “relation back” under
The Court analyzes both portions of
i. Rule 15(c)(1)(C)
With respect to
ii. Rule 15(c)(1)(A)
Plaintiff can, however, establish the necessary requirements under
Section 203 can be summarily rejected because the Court has already concluded the requirements for
The Court next considers
With respect to the first element, a plaintiff must exercise due diligence before designating a defendant as “John Doe” by showing that he made diligent efforts to ascertain the identity of the unknown defendant prior to commencement of the action and up to and including thе expiration of the applicable statute of limitations. See Bumpus, 66 A.D.3d at 29. As Plaintiff conceded in his original complaint, he had no idea who the John Does were at the time he filed the original complaint. AC ¶ 81. And in the Amended Complaint, Plaintiff does not allege sufficient steps he took prior to filing the original complaint in order to ascertain the identities of the John Does, aside from a single conversation with Defendant Epstein in August 2022 (id. ¶ 84) and a lunch meeting with Epstein (id. ¶¶ 80–83) the day he filed the original complaint on July 28, 2023. Students MTD Opp. at 12–13. Indeed, even after filing the original complaint, Plaintiff waited nearly four months before seeking leave of this Court to serve subpoenas to identify the John Does to effectuate service. See ECF Nos. 10, 11.
Plaintiff now asserts—for the first time in his motion for leave to amend reply brief—that he made “six total inquiries” to Defendant Epstein and also spoke with Lee Otis and other “rank and file members” of the Federalist Society. ECF No. 96. at 12–13. While the Court is not required to consider these new allegations, it nonetheless opts to do so given the importance of these additions to the potential survival of the Omnibus Claims. See Atadzhanov v. City of New York, No. 21-CV-5098, 2022 WL 4331304, at *1 (S.D.N.Y. Sept. 19, 2022) (exercising discretion to consider new factual allegations brought by the pro se plaintiff in his opposition brief and sur-reply). These new allegations, while not extensive, are sufficient to demonstrate adequate
Construing the allegations in the light most favorable to Plaintiff, who filed this action pro se, the original complaint can be read so as to satisfy the second element as well, but only with respect to defamation as it related to the faked photographs and online posts. The original complaint alleged that around July 30, 2022, John Does 1-3 conspired to perpetrate an “internet hoax,” which included the forged document allegedly placed in the lobby of Kirkland and Ellis. ECF No. 1 ¶¶ 6–9. The original complaint described the forged document and internet posts with pаrticularity, and therefore could be read to have fairly apprised Student Defendants they were the intended parties. See Kennedy v. City of New York, No. 12-CV-4166 (KPF), 2015 WL 6442237, at *5 (S.D.N.Y. Oct. 23, 2015) (“Courts have found that where a plaintiff provides specific contextual information, that may satisfy the description requirement of [CPLR] 1024.“).
However, Student Defendants could not have been fairly apprised as to the other alleged defamatory statements, because they were not mentioned in the original complaint, which focused only on the “anonymous internet posts.” See, e.g., AC ¶¶ 13, 14, 16. “The main inquiry under
Finally, regarding the third element, Plaintiff consistently sought, and received, extensions to effectuate service. To satisfy the 120-day requirement, Plaintiff initially had to effectuate service of the original complaint by November 25, 2023. However, Plaintiff first sought, and received, in September 2023, an extension from this Court to effectuate service of the original complaint on or before January 24, 2024. See ECF Nos. 7, 8. Then, on January 2, 2024, the Court again extended Plaintiff‘s deadline to serve the summons and complaint on Defendants to until 45 days after Plaintiff received information from the third-party subpoenas. ECF No. 21. On April 29, 2024, Plaintiff, who was then represented by counsel, informed the Court that he received responses to the subpoenas on March 15, 2024, stated his intention to file an amended complaint, and sought an extension to effectuate service of the amended complaint. ECF No. 35. Plaintiff filed the Amended Complaint on May 24, 2024, and all Defendants effectuated waivers of service as to the Amended Complaint. Plaintiff thus satisfies the 120-day requirement in light of the Court‘s continued grant of extensions to effectuate serve in this action. ECF Nos. 38, 39, 42, 43.
III. Plaintiff Fails to State a Claim for Defamation
As an initial matter, and as mentioned above, the Court will only consider Plaintiff‘s defamation claim based on the alleged fake photographs and internet posts. Because only Student Defendants are alleged to have engaged in this conduct, the defamation claim is dismissed as against Defendant Epstein with prejudice.
Proceeding to the merits, Plaintiff asserts that the fake photograph published online, and the related statements purportedly made by Student Defendants on those online posts, are defamatory per se, and that he has suffered “special damages” by loss of economic opportunities and reputation. AC ¶¶ 90–100. Student Defendants argue that a review of Exhibit 3 to the Amended Complaint makes clear that the online posts did not actually contain the faked photograph, and that the Amended Complaint otherwise fails to allege the requisite factual specificity as to the othеr online statements. Student Defs. MTD at 14–20. The Court agrees.
“Defamation is ‘the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of plaintiff in the minds of right-thinking persons, and to deprive plaintiff of their friendly intercourse in society.‘” 3P-733, LLC v. Tawan Davis, 135 N.Y.S.3d 27, 29–30 (1st Dep‘t 2020) (cleaned up). “There are two categories of defamation under New York law: libel, for written statements, and slander, for spoken statements.” Carroll v. Trump, 650 F. Supp. 3d 213, 225 (S.D.N.Y. 2023). The Amended Complaint does not specify whether the alleged defamation is libel or slander, but does specify the following allegedly defamatory statements which the Court has not dismissed: (1) the faked
Under New York law, a claim for libel requires a plaintiff to allege (1) a written defamatory statement of fact concerning the plaintiff, (2) publication to a third-party, (3) the applicable level of fault, (4) falsity, and (5) special damages or a showing of libel per se. Celle v. Filipino Rep. Enterprises Inc., 209 F.3d 163, 176 (2d Cir. 2000). A plaintiff can make a showing of “libel per se” if “it tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or to induce an evil opinion of him in the minds of right-thinking persons.” Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 379 (1977); see also Nolan v. State, 158 A.D.3d 186, 195, 69 N.Y.S.3d 277 (2018) (“A defamation plaintiff must plead special damages unless the defamation falls into any one of four per se categories: (1) statements charging the plaintiff with a serious crime; (2) statements that tend to injure the plaintiff in her trade, business or profession; (3) statements that impute to the plaintiff a ‘loathsome disease‘; and (4) statements that impute unchastity to a woman.“).
The Court first considers the July 29, 2022 faked photograph attached as Exhibit 1 to the Amended Complaint. Plaintiff contends this fake photograph was posted online by Defendant Iyer on Reddit and Top-Law-Schools.com. AC ¶ 37; ECF No. 38-3. But while the Amended Complaint alleges Defendant Iyer posted the fake photograph to these websites, Exhibit 3 of the Amended Complaint—which Plaintiff refers to as the relevant internet posts for his claims—does not reflect that the fake photograph was actually ever posted. ECF No. 38-3 at RAPAPORT0002–13. Further, the email attached to the Amended Complaint (which is similarly
“Allegations in the complaint that are ‘contradicted by more specific allegations or documentary evidence’ are not entitled to a presumption of truthfulness.” KatiRoll Co. v. Kati Junction, Inc., 33 F. Supp. 3d 359, 365 (S.D.N.Y. 2014) (quoting Kirkendall v. Halliburton, 707 F.3d 173, 175 n. 1 (2d Cir. 2013)). Accordingly, because the Amended Complaint‘s exhibits contradict Plaintiff‘s allegations that the fake photograph was posted to the two websites, Plaintiff has not adequately alleged the photograрhs were published to a third party, and therefore fails to state a claim for defamation with respect to the faked photograph. See Koulkina v. City of New York, 559 F. Supp. 2d 300, 329 (S.D.N.Y. 2008) (where allegations were contradicted by documents attached to complaint, they were insufficient to defeat a motion to dismiss); see also Richards v. Sec. Res., 133 N.Y.S.3d 12, 14 (1st Dep‘t 2020) (dismissing defamation claim where plaintiff failed to allege that the statements were made to a third party). To the extent Plaintiff alleges that other posts exist beyond those identified in Exhibit 3, as discussed later in this Order, he will be given leave to amend so as to cure this deficiency.
Considering next the statements by anonymous users on the internet posts, Plaintiff alleges the “postings were accompanied by false and defamatory statements that the plaintiff was fired for sexual harassment, was banned from the building and was accompanied by a significant amount of material about his personality, habits, mannerisms, modes of dress and pastimes.” AC ¶ 38. The text of the posts also allegedly mentioned “plaintiff‘s political, ideolоgical and jurisprudential beliefs.” Id. ¶ 39. But Plaintiff does not allege which individual Defendant made
In light of the foregoing, Plaintiff‘s defamation claim must therefore be dismissed. See BCRE 230 Riverside LLC v. Fuchs, 874 N.Y.S.2d 34, 36 (1st Dep‘t 2009) (dismissing defamation counterclaim where party failed to allege what false statements were and who made them).
IV. Plaintiff‘s Remaining Omnibus Claims Are Dismissed
Plaintiff‘s remaining Omnibus Claims can be summarily dismissed. Plaintiff‘s claim for civil conspiracy fails because he has failed to plead any defamation, and without an underlying tort, there can be no conspiracy claim. See Williams v. Williams, 53 N.Y.S.3d 152 (2d Dep‘t 2017) (concluding where plaintiff could not maintain underlying causes of action for fraud, unjust enrichment, or negligent and intentional infliction of emotional distress, plaintiff could similarly not maintain cause of action alleging civil conspiracy); Arvanitakis v. Lester, 44 N.Y.S.3d 71, 73 (2d Dep‘t 2016) (“A cause of action alleging conspiracy to commit a tort stands or falls with the underlying tort.“).
In addition, Plaintiff‘s claims for IIED and injurious fаlsehood are dismissed as duplicative, given that they rely on the same allegations and conduct as the defamation claim. For example, with respect to Plaintiff‘s claim for injurious falsehood, he claims the “fake photographs and statements” caused him damages, which is the exact same conduct underlying his defamation claim. AC ¶ 102. And while Plaintiff tries to assert the IIED claim “is not duplicative” because “the faked photographs and false statements were only part of the defendants’ campaign of destruction,” he then goes on to state they are “evidence of their malicious intentions and sheer malevolence.” AC ¶ 112. This allegation, too, makes clear the alleged tortious conduct underlying the IIED claim is identical to the defamation claim. Both claims are therefore dismissed as duplicative. See Perez v. Violence Intervention Program, 984 N.Y.S.2d 348, 349 (1st Dep‘t 2014) (“The remaining claims of injurious falsehood, tortious interference with prospective contractual/business relations, and intentional infliction of emotional distress should have been dismissed as duplicative of the defamation claim, as they allege no new facts and seek no distinct damages from the defamation claim.“); LoanStreet, Inc. v. Troia, No. 21-CV-6166 (NRB), 2022 WL 3544170, at *8 (S.D.N.Y. Aug. 17, 2022) (dismissing injurious falsehood claim as duplicative where it related to same set of statements and alleged harm giving rise to the defamation claims).
V. Plaintiff‘s Remaining Claims Against Defendant Epstein Are Not Barred by Section 230 or the Common Interest Privilege
Defendant Epstein argues he is immune, under
The Court alsо need not address whether Section 230 immunity applies, because any conferred immunity would not bar Plaintiff‘s claim for fraud and tortious interference, which are the only remaining claims against Epstein.
Because these allegations embrace and depend on conduct beyond just Epstein‘s emails,
VI. Plaintiff Fails to State a Claim for Tortious Interference
To state a claim for tortious interference with economic advantage under New York law, a plaintiff must prove that (1) there is a business relationship between the plaintiff and a third party; (2) the defendant, knowing of that relationship, intentionally interferes with it; (3) the defendant acts with the sole purpose of harming the plaintiff, or, failing that level of malice, uses dishonest, unfair, or improper means; and (4) the relationship is injured. See Dardashtian v. Gitman, No. 17-CV-4327 (LLS), 2017 WL 6398718, at *8 (S.D.N.Y. Nov. 28, 2017) (citing Catskill Dev., L.L.C. v. Park Place Entm‘t Corp., 547 F.3d 115, 132 (2d Cir. 2008)).
Plaintiff does not plead sufficient facts to support this claim. Plaintiff merely alleges, in conclusory fashion, that Epstein “repeated his disparagement at every possible opportunity to anyone who would listen.” AC ¶ 139. But the Complaint does not identify the substance of any “disparagement” aside from an assertion that Epstein told unnamed and unspecified “others” that Plaintiff was “frequently absent from his classes.” Id. ¶ 88. Nor does Plaintiff allege Epstein had any awareness of Plaintiff‘s “contractor position” or his position with the Manhattan Institute, id. ¶¶ 140–141, let alone that Epstein intentionally sought to interfere with those relationships. Plaintiff also provides no information about these positions, mentioning them only in two sentences in the Amended Complaint.
Even assuming Epstein spoke to any entities or individuals associated with these positions—a fact which the Amended Complaint does not allege—Plaintiff does not allege what Epstein communicated to them. See Evliyaoglu Tekstil A.S. v. Turko Textile LLC, 2020 WL 7774377, at *2 (S.D.N.Y. Dec. 30, 2020) (dismissing tortious interference claim because, among
VII. Plaintiff Fails to State a Claim for Fraud
Plaintiff has also failed to state a plausible fraud claim against Defendant Epstein. Under New York law, Plaintiff must allege: (1) a material misrepresentation or omission of fact; (2) made by defendant with knowledge of its falsity; (3) intent to defraud; (4) reasonable reliance on the part of the plaintiff; and (5) resulting damage to the plaintiff. Skyline Risk Management, Inc. v. Legakis, 733 F. Supp. 3d 316, 329–30 (S.D.N.Y. 2024) (citing Structured Cap. Sols., LLC v. Commerzbank AG, 177 F. Supp. 3d 816, 836 (S.D.N.Y. 2016)). “A plaintiff may bring a fraud claim based on an omission rather than an affirmative misrepresentation only ‘if the non-disclosing party has a duty to disclose.‘” Harris v. Pfizer Inc., 586 F. Supp. 3d 231, 241 (S.D.N.Y. 2022) (quoting Remington Rand Corp. v. Amsterdam-Rotterdam Bank, N.V., 68 F.3d 1478, 1483 (2d Cir. 1995)). In addition,
Plaintiff has not pleaded sufficient facts to satisfy these elements. Here, the gravamen of Plaintiff‘s fraud claim is that Epstein failed to disclose something to him and thereby omitted a material fact: the identities of Student Defendants. As a result, Plaintiff must allege some duty to disclose by Defendant Epstein, which the Amended Complaint fails to do. Instead, Plaintiff merely insists no “fiduciary duty” is necessary to substantiate his claim. ECF No. 76 (“Epstein
The fraud claim also fails because Plaintiff does not allege compensable damages as a result of the fraud. To sustain a fraud claim, Plaintiff must allege he sustained some pecuniary loss as a result. Ithaca Cap. Invs. I S.A. v. Trump Panama Hotel Mgmt. LLC, 450 F. Supp. 3d 358, 369 (S.D.N.Y. 2020) (internal citation omitted). Indeed, a plaintiff can only recover the actual pecuniary loss sustained as a direct result of the alleged fraud. Joseph v. Mobileye, N.V., 225 F. Supp. 3d 210, 218 (S.D.N.Y. 2016) (internal citations omitted). Here, Plaintiff only alleges Defendant Epstein “knowingly lied” about the identities of Student Defendants, which “delay[ed]” his investigation “to determine and identify the true and proper defendants . . . .” AC ¶¶ 130, 133. But Plaintiff did not suffer any actionable injury: Defendant Epstein‘s failure to disclose the identities of Student Defendants left Plaintiff in the exact same situation as he began, and similarly left him free to exhaust other options to identify Student Defendants. Epstein‘s non-disclosure did not inhibit or otherwise prevent Plaintiff from proceeding as he eventually did by filing subpoenas. The Amended Complaint does not allege, for example, that Epstein sent Plaintiff on a wild-goose chase by giving him incorrect names or that he falsely promised, in an effort to string Plaintiff along, that he would eventually inform Plaintiff the identities of Student Defendants and failed to do so.
Nonetheless, Plaintiff argues a delay in exercising legal rights is cognizable for a fraud claim, citing Lawrence v. Houston, 172 A.D.2d 923 (3d Dep‘t 1991). Epstein MTD Opp. at 28. But Lawrence is plainly distinguishable: there, the defendant advised plaintiff he should not retain a lawyer because he would settle with plaintiff directly when the plaintiff (who was then
VIII. Plaintiff‘s Motion to Disqualify Student Defendants’ Counsel Is Denied
The Court denies Plaintiff‘s request to disqualify Schaerr Jaffe LLP, counsel for Student Defendants, based on the potential for any adverse and conflicting interests. ECF No. 68. The Court need not address the underlying substance of Plaintiff‘s assertions because any conflict that may exist between Defendants Garrett and Iyer are waived, given both have consented to be represented by Schaerr Jaffe. Indeed, Student Defendants each filed sworn declarations to this effect. ECF Nos. 75-1, 75-2. Accordingly, Plaintiff‘s motion for disqualification is denied.
IX. Plaintiff‘s Motion for Leave to Amend Is Granted in Part and Denied in Part
Plaintiff‘s motion for leave to amend is partially granted. “Leave to amend should be freely given, and a pro se litigant in particular should be afforded every reasonable opportunity to demonstrate that [he] has a valid claim.” Atherley v. N.Y.C. Dep‘t of Educ., No. 23-CV-383 (JGLC), 2024 WL 1345741, at *13 (S.D.N.Y. Mar. 29, 2024) (internal citation omitted). The Second Circuit interprets
The Court finds that permitting Plaintiff to amend the complaint would not be futile, overly prejudicial, or cause undue delay. Loc. 3599, N.Y.C. Dep‘t of Env‘t Prot. Tech. Pro. Emps. v. City of New York, No. 23-CV-1035 (JGLC), 2024 WL 966077, at *16 (S.D.N.Y. Mar. 6, 2024). Although Plaintiff amended his complaint once, he has not previously had an opportunity to cure the deficiencies of which he is now on notice. And based on a cursory review of his proposed SAC, some pleading deficiencies have already been addressed, including, for example, more allegations relevant to his tortious interference claim against Defendant Epstein. See ECF No. 78 ¶¶ 101–104. Accordingly, the Court will permit Plaintiff to file a second amended complaint with respect to the defamation (based on the internet postings), civil conspiracy, fraud, and tortious interference claims only. Further directives with respect to this amended complaint are in the Conclusion Section.
X. The Court Sua Sponte Consolidates This Action with its Related Action
Finally, the Court sua sponte consolidates this action with Rapaport v. Epstein, et al., No. 24-cv-7439 (the “Related Action“) for all purposes. By order dated March 5, 2025 in the Related Action (ECF No. 54), the Court noted that it was inclined to consolidate these two matters given the overlapping parties, issues, and claims, and stated that it would provide further instructions with respect to consolidation in this Order. The Court now does so.
While the Court finds consolidation of this matter with the Related Action promotes judicial efficiency and economy, the Court does not, at this time, consolidate this action with the Finkelman action. However, the Court may consider consolidation as to that action at a later time.
CONCLUSION
For the reasons stated above, the Court GRANTS Student Defendants’ motion to dismiss, and GRANTS in part and DENIES in part Defendant Epstein‘s motion to dismiss. Plaintiff‘s false light and invasion of privacy, injurious falsehood, and IIED claims are DISMISSED with prejudice, and the other claims are DISMISSED without prejudice as set forth in this Order. Plaintiff‘s motion to disqualify Student Defendants’ counsel is also DENIED.
Thе Clerk of Court is respectfully directed to consolidate this action with the Related Action (Rapaport v. Epstein, et al., No. 24-CV-7439) and to designate that action as the lead case given all the parties have been named therein. Plaintiff is directed to file a single, amended complaint (which Plaintiff shall title the “First Consolidated Amended Complaint“) that may (1)
The Clerk of Court is further, and respectfully, directed to terminate ECF Nos. 50, 53, and 77.
Dated: March 31, 2025
New York, New York
SO ORDERED.
JESSICA G. L. CLARKE
United States District Judge