Rubinson v. RubinsonRubinson v. Rubinson
Case Information
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 20-CV-80527-KAM
SETH IAN RUBINSON,
Plaintiff,
vs.
HARVEY CHARLES RUBINSON,
Defendant.
________________________________/
OPINION AND ORDER
THIS Cаuse is before the Court upon Defendant’s Motion to Dismiss [DE 13]. Plaintiff Seth Rubinson filed a Complaint [DE 1] alleging defamation per se and intentional infliction of emotional distress. Defendant Harvey Rubinson moves to dismiss both counts under Fed. R. Civ. P. 12(b)(6). Plaintiff filed a Response in Opposition [DE 14]. The Court has carefully considered the matter and is fully advised in the premises.
I. BACKGROUND
Plaintiff Seth Rubinson (“SIR” or “Plaintiff”) filed the instant action against his father Defendant Harvey Rubinson (“HCR” or “Defendant”) claiming defаmation per se and intentional infliction of emotional distress [DE 1]. The Complaint alleges that Plaintiff is an attorney who practices out of Houston, Texas and is licensed to practice in Florida, Massachusetts, and Texas. [ Id. at ¶ 1]. Plaintiff has a “minor daughter who is developmentally delayed and medically fragile arising from a profoundly rare Grade IV intraventricular hemorrhage suffered as a neonate and requiring a lifetime of dirеct care and financial support.” [ at ¶ 10]. Plaintiff’s daughter “attends a highly specialized private school in Houston for developmentally delayed children with learning ability which she shall attend until 21 years of age, thereafter continuing to reside with SIR and relying on SIR’s income for her lifetime.” [ Id. ].
Defendant resides in West Palm Beach, Florida and is a senior financial operations manager who recently served as the chief financial officer of Micelle Biopharma. [ Id. at ¶¶ 3, 6]. Defendant also operates an independent turnaround and management consulting business. [ Id. at ¶ 5].
The Complaint alleges Defendant sent several emails to Defendant’s business colleagues that contained statements that defamed Plaintiff. [ Id. at ¶ 21]. Plaintiff explains he had access to Defendant’s email account as he purchased and maintains the email service for Defendant and frequеntly assists Defendant with technological difficulties. [ Id. at ¶ 16]. Plaintiff alleges that during one such incident assisting Defendant in accessing a device specific password, Plaintiff encountered the emails. [ Id. at ¶ 21].
The emails are not attached to the Complaint but are paraphrased or quoted in part or in whole within the Complaint. The first email sent on March 8, 2019 to Jing Liang, a venture capitalist, allegedly stated Defendant requested a large intеrest in the company because he used his retirement savings in an effort to provide experimental cancer medications for Defendant’s wife and Plaintiff’s mother, as well as “[HCR’s] continuing financial assistance for [SIR’s] daughter who had a brain bleed at birth and has severe epilepsy. The financial support is necessary so she can attend a wonderful special needs school in Houston.” [ at ¶¶ 21-22].
The Complaint alleges Defendant also sent a defamatory email on May 24, 2019 to Pete DeLay, one of the Tennessee businessmen who purchased Micelle Biopharma, “stating to Mr. DeLay that he was not in a position to make certain recommended real estate investments because, in pertinent part of HCR’s ‘continuing financial assistance for my older son’s daughter who had a brain bleed at birth and has severe epilepsy. The financial supрort is necessary so she can attend a wonderful special needs school in Houston.’” [ Id. at ¶ 25]. The Complaint further alleges that within that email Defendant invoked his continuing financial assistance to Plaintiff’s daughter when requesting a performance bonus. [ Id. ].
The Complaint alleges that Defendant “committed on July 20, 2019, what was the pinnacle of defamation and injury” when Defendant emailed Mr. Liang writing:
Hi Jing,
You mentioned while I was driving you to the airport two weeks ago that you would send me a letter describing my agreement with Heliomebio since Matthew Weill has not sent me any documentation. I hate to bother you, but I am only asking you now because my bi-polar son’s wife called me this morning asking for money and my son with the brain damaged daughter is also asking me for money even though they know that I used almost all of my retirement savings paying for experimental cancer treatments in an attempt to save my wife’s life. Thank you for your consideration in this matter.
Best regards, Harvey
[ Id. at ¶ 26].
Plaintiff further alleges that when he confronted Defendant about the alleged defamatory emails, Defendant “became infuriated and threatened that if [Plaintiff] took legal action, [Defendant] would contact SIR’s clients to accuse him of ‘elder abuse,’ . . . .” [ Id. at ¶¶ 31-32]. The Complaint claims that before bringing the instant action, Plaintiff demanded that Defendant “immediately send emails with carbоn copy to [Plaintiff] fully retracting his statements” to Liang and DeLay “concerning both support of [Plaintiff]’s developmentally delayed daughter, as well as using his purported retirement funds for life-saving measures for the cancer care of [Plaintiff]’s mother,” but Defendant refused “claiming that he placed telephone calls . . . retracting his defamatory statements.” [ at ¶ 33].
II. LEGAL STANDARD
Rule 8(a) of the Federal Rules of Civil Procedure requires a short and plain statement of
the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). The Supreme Court
has held that, “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff s obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do;” additionally, “[f]actual allegations must be enough to raise a right to
relief above the speculative level.”
Bell Atl. Corp. v. Twombly
,
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal
, 556 U.S.
662, 678 (2009) (internal quotation marks omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id.
Thus, “only a complaint that states a plausible
claim for relief survives a motion to dismiss.”
Id.
at 679. The Court must accept all plaintiff s
factual allegations as true in determining whether a plaintiff has stated a claim for which relief
could be granted.
Hishon v. King & Spalding
,
III. DISCUSSION
1. Defamation per se:
Plaintiff’s first count, defamation per se, is a tort recognized under Florida law when
brought against a non-media defendant.
Blake v. Giustibelli
,
Here, Plaintiff asserts that his libel per se claim satisfies two of the three recognized bases: that the statements made by Defendant subject Plaintiff to hatred, distrust, ridicule, contempt or disgrace; and that the “statements tend to injure Plaintiff in his profession as lawyer in the stаtes of Florida, Texas, and Massachusetts whereas the hallmarks of an attorney include trustworthiness and professionalism.” [DE 1 at ¶ 39].
Plaintiff asserts the statements identified in the Complaint portray him as a “compassionless victimizer unable to provide for his family.” [DE 1 at ¶ 38]. He also contends that Defendant defamed him by implying Plaintiff “is unable to provide for his daughter’s education and welfare without the assistance of [Defendant] notwithstanding that [Defendant] does not and has not provided support to [Plaintiff] for the benefit of [Plaintiff]’s daughter’s education or otherwise.” [ Id. at ¶ 37].
Defendant moves to dismiss this claim arguing that “none of the quoted language Plaintiff attributes to Defendant contains any statements that could be interpreted in the ways in which Plaintiff’s narrative describes them.” [DE 13 at 2]. Additionally, Defendant notes that the quotes allegedly attributable to Defendant in paragraphs 22, 25, 26, and 27 of the Complaint do not “еven contain the Plaintiff’s name or relate to his profession as a lawyer.” [ at 2-3]. Moreover, Defendant underscores that the Court is not only limited to the four corners of the Complaint in assessing the motion to dismiss, but further, the Court is constrained to the four corners of the publication and may not consider outside context in a libel per se claim. See Ortega Trujillo v. Banco Cent. Del Ecuador , 17 F. Supp. 2d 1334, 1339 (S.D. Fla. 1998) (“When determining whether a published statement constitutes libel per se, an arbitеr of fact may consider only the ‘four corners’ of the publication. In addition, the language of the document should not be interpreted in the extreme, but construed as the ‘common mind’ would naturally understand it.”) (citations omitted).
In assessing the first category of statements, the Court fails to see how, even if false, a
grandfather invoking his developmentally delayed granddaughter’s significant medical expenses
would subject Plaintiff to “hatred, distrust, ridicule, сontempt, or disgrace.”
Scobie v. Taylor
, No.
13-60457-CIV,
Adding to the traumatic nature of [Defendant]’s efforts to use [Plaintiff]’s daughter for financial gain was the fact that throughout [Plaintiff]’s life, notwithstanding his success as an attorney, when financial strain arising from [daughter]’s dangerous medical condition and developmental disabilities were such that [Plaintiff] would request financial assistance from [Defendant] years ago, any amounts provided by [Defendant] for financial assistance associated with his granddaughter were loans for which [Defendant] kept strict records and required repayment from [Plaintiff].
[DE 1 at ¶ 23]. Accordingly, if Plaintiff himself has volunteered in a federal court filing that he has requested financial assistance from Defendant due to expenses relating to Plaintiff’s daughter, it is hard to conceive of hоw, when considering the emails alone, Defendant’s mention of virtually the same conduct suddenly casts Plaintiff in a negative light, let alone, subjects him to hatred, distrust, ridicule, contempt, or disgrace.
Additionally, this is analogous to
Aflalo v. Weiner
, where the court dismissed a defamation
per se claim where the defendant allegedly posted about the plaintiff on Facebook.
Aflalo v.
Weiner
, No. 17-61923-CIV, 2018 WL 3235529, at *1 (S.D. Fla. July 2, 2018). There, the
statement read: “Yurim and Isaac took advantage of a old 94plus sick man elder abuse [sic]”.
Id.
The court rejected the plaintiff’s argument that the statement qualified as defamation per se on two
grounds: imputation of the commission of an infamous crime and that it subjects plaintiff to hatred,
distrust, ridicule, or contempt.
Id.
Critically, the court contrasted the Facebook post with a
seminal defamation per se case; “[w]hereas in
Caldwell
a widely-circulated newspaper published
damaging statements abоut a sitting governor, here the Defendant wrote a grammatically flawed
and incoherent post on his Facebook wall about Plaintiff, a distant relative.”
Id.
at *4 (citing
Caldwell v. Crowell-Collier Pub. Co.
,
Similarly, the Court here finds that Plaintiff fails to state a claim for libel per se under this
theory.
See id.
at *2 (“Analyzing the Statement as the ‘common mind’ would understand it,
‘[w]here the court finds that a communication could not possibly have a defamatory or harmful
effect, the court is justified in ... dismissing the complaint for failure to state a cause of action.’”
(quoting
Wolfson
,
As for the theory that the statements may interfere with a claimant’s profession, Florida
law recognizes two iterations. “One iteration finds actionable any language that ‘tend[s] to injure
a person in [his] office, occupation, business, or employment and which in natural and proximate
consequence will necessarily cause injury.’”
Scobie
,
Here, Plaintiff argues in his Response that Defendant’s emails sent to “numerous highly influential businesspeople” communicated “that the Plaintiff was purportedly victimizing him for money despite that he (the Defendant) had purportedly spent all of his retirement savings trying to save the deceased mother of the Plaintiff from terminal cancer.” [DE 14 at PDF 7]. Plaintiff insists “these defamatory statements place the moral character and professional code of ethics of the Plaintiff at issue to anyone reading these outrageous statements.” [ ].
“Where courts have found conduct to be incompatible with one's profession, the conduct
referred to in the defamatory statement went directly to a person's ability to perform duties essential
to his or her employment, or was sufficiently related to skills required of the profession.”
Klayman
v. Judicial Watch, Inc.
,
In Klayman v. Judicial Watch, Inc. , the court, considering a motion for summary judgment about a website post that accused the plaintiff of being convicted of failing to pay child support, explained its two-step process. Id. First, the court found that “[a] person reading the statement at issue could reasonably understand it to implicate [plaintiff]’s moral character and professional code of ethics.” Id. at 1250. The court elaborated, “[o]n its face, the statement is reasonably cаpable of a defamatory meaning as it accuses [plaintiff] of being convicted of a crime relating to his moral character. Whether the statement actually impugns [plaintiff]’s trade or profession as an attorney, thereby constituting defamation per se, is a matter for the jury.”
Here, the statements in Defendant’s emails are not reasonably capable of having a defamatory meaning or being understood to implicate Plaintiff’s moral chаracter and professional code of conduct. Even the email that Plaintiff describes as the “pinnacle of defamation,” which stated, “my son with the brain damaged daughter is also asking me for money even though they know that I used almost all of my retirement savings paying for experimental cancer treatments in an attempt to save my wife’s life,” falls short of actionable conduct under this prong. [DE 1 at 7].
The instant case is distinguishable from оther cases where the plaintiff’s profession is
directly invoked, the statement overtly reflects negatively on the plaintiff’s professional capacity,
or the statement was made directly to plaintiff’s clients or employers.
See e.g. Hoch v. Rissman,
Weisberg, Barrett
,
Instead, this case is more analogous to
Scobie v. Taylor
, which dismissed a defamation per
se claim.
Scobie
, 2013 WL 3776270, at *1. The Court contrasted the case with others where
“the
per se
defamatory statements imputed conduct to the plaintiffs incompatible with the essential
functions of their respective jobs,” however, “the conduct suggested of [plaintiff]—that he was
interviewing with competitors of Star Creations—does not impute to him a characteristic
inconsistent with his duties as a framed art and wall décor salesman. Thus, there can bе no claim
for defamation
per se
under the facts alleged.” at *3. The Court elaborated that “[w]hile
[defendant]’s statements
might,
under some set of facts, conceivably cause injury to his
employment with Star Creations, the statements are not injurious in and of themselves and, hence,
not defamatory
per se.
”
Id.
at *4. “To gauge whether the statements are defamatory, the Court
would have to look outside the four corners of the statements to evaluаte all the surrounding facts
and circumstances. When context is considered and ‘extrinsic facts and innuendo are needed to
prove the defamatory nature of the words,’ the statements are not defamatory
per se.
”
Id.
(quoting
Carlson v. WPLG/TV10, Post–Newsweek Stations of Fla.,
Plaintiff’s claim fails for similar reasons. Interpreting the statements as the “common mind” would, the Complaint fails to state a claim under this prong. Without considering outside context, the veiled statements that Plaintiff, often unnamed, allеgedly asked his father, Defendant, for money to help provide for Plaintiff’s daughter’s needs are not injurious in and of themselves. Plaintiff simply fails to allege how this implicates his moral character and professional code of conduct.
Accordingly, the defamation claim is dismissed with prejudice as Plaintiff has not sought
leave to amend.
Isaiah v. J.P. Morgan Chase Bank, N.A.
,
2. Intentional Infliction of Emotional Distress
Count II asserts a claim of intentional infliction of emotional distress (“IIED”), alleging Defendant’s “defaming of [Plaintiff] in the manner set forth above constitutes deliberate or reckless infliction of mental suffering upon [Plaintiff]” and that the “defaming . . . constitutes outrageous conduct” which “caused and continues to cause [Plaintiff] severe emotional distress.” [DE 1 at ¶¶ 41-43].
“Under Florida law, a plaintiff must plead the following elements in order to state a claim
for intentional infliction of emotional distress: 1) extreme and outrageous conduct; 2) an intent to
cause, or reckless disregard to the probability of causing, emotional distress; 3) severe emotional
distress suffered by the plaintiff and 4) that the conduct complained of caused the plaintiff's severe
emotional distress.”
Broberg v. Carnival Corp.
,
Defendant moves to dismiss arguing the claim consists of conclusory allegations. [DE 13 at 4]. Defendant also argues the emotional distress claim “rests on the identical allegations on which Plaintiff bases his defamation claim” and should be dismissed because it pleads no independent basis for infliction of emotional distress. [ Id. at 4-5].
Plaintiff responds that the Complaint adequately pleads a claim for IIED and highlights a range of cases where courts found actionable conduct. [DE 14 at PDF 7-10].
While Plaintiff notes that a multitude of instances can suppоrt a claim for IIED, Defendant correctly argues that the IIED claim must be distinct from the defamation claim.
“In Florida, a single publication gives rise to a single course of action.”
Ortega Trujillo v.
Banco Cent. del Ecuador
, 17 F. Supp. 2d 1340, 1343 (S.D. Fla. 1998). “[A] plaintiff cannot
transform a defamation action into a claim for intentional infliction of emotional distress simply
by characterizing the alleged defamatory statements as ‘outrageous.’”
Fridovich v. Fridovich
, 598
So. 2d 65, 70 (Fla. 1992);
see also Boyles v. Mid-Fla. Television Corp.
,
In
Boyles
, the Florida Fifth District Court of Appeal held that “the рroblem with Count II,
as we view it in the factual context alleged in this case, is that it does not set forth
an
independent
tort for the recovery of damages for emotional distress. That factor has been an
intrinsic, historic aspect of the tort.” (citing
LaPorte v. Associated Independents, Inc.,
163 So.
2d 267 (Fla. 1964);
Slocum v. Food Fair Stores of Florida,
By the Complaint’s own phrasing, Count II is entirely based on the conduct described in Count I and therefore cannot serve the basis for an independent tort.
Moreover, even if not barred by the single-publication rule, Plaintiff has failed to allege
any facts supporting the allegations of аll the required elements. Count II consists of merely
conclusory allegations, which cannot support a claim for IIED. Even considering the few facts
applicable to the IIED claim, the Court finds that the conduct alleged does not meet the standard
of outrageousness under Florida law. “Liability does not extend to ‘mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities.’”
Roberts
,
For the same reasons the defamation per se count is dismissed with prejudice, the Court
also dismisses this claim with prejudice.
Isaiah,
IV. CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED : 1. Defendant’s Motion to Dismiss [ DE 13 ] is GRANTED .
2. Counts I and II are DISMISSED WITH PREJUDICE .
3. The Clerk shall CLOSE the case. Any other pending motions are DENIED AS MOOT . DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 24 th day of July, 2020.
KENNETH A. MARRA United States District Judge
Notes
[1]
Horowitch v. Diamond Aircraft Indus., Inc.
,