Beruflich Dokumente
Kultur Dokumente
ROBERT HUIZENGA,
Plaintiff,
No. 17-CV-2113-LTS-GWG
-against-
Oral Argument Requested
NYP HOLDINGS d/b/a/ THE NEW YORK
POST, JOELLE GWYNN and DOES 1-20,
Defendants.
Mona Houck
David S. Korzenik
488 Madison Avenue, Suite 1120
New York, New York 10022-5702
(212) 752-9200
TABLE OF CONTENTS
BACKGROUND ............................................................................................................................ 1
LEGAL STANDARD..................................................................................................................... 3
ARGUMENT .................................................................................................................................. 3
CONCLUSION ............................................................................................................................. 16
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TABLE OF AUTHORITIES
Rules
Federal Rule of Civil Procedure 12(b)(6) ....................................................................................... 3
Cases
Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328 (2d Cir. 2006) .................................. 3
AIDS Counseling & Testing Ctrs. v. Group W. Television, Inc., 903 F.2d 1000 (4th Cir.1990).. 11
Biro v. Conde Nast, 807 F.3d 541 (2d Cir. 2015) ........................................................................... 8
Diario El Pais, S.I. v. Nielsen Co. (US), No. 07 Civ. 11295(HB), 2008 WL 4833012 (S.D.N.Y.
Nov. 6, 2008) ............................................................................................................................ 10
Egiazaryan v. Zalmayev, No. 11 Civ. 2670(PKC), 2011 WL 6097136 (S.D.N.Y. Dec. 7, 2011) . 9
Fonar Corp. v. Magnetic Resonance Plus, Inc., 957 F. Supp. 477 (S.D.N.Y. 1997) ................... 15
Four Finger Art Factory, Inc. v. Dinicola, No. 99 Civ. 1259, 2000 WL 145466 (S.D.N.Y. Feb.9,
2000) ......................................................................................................................................... 15
Goldman v. Barrett, No. 15 CIV. 9223 (PGG), 2016 WL 5942529 (S.D.N.Y. Aug. 24, 2016) .. 14
Hengjun Chao v. Mount Sinai Hosp., 476 F. Appx 892 (2d Cir. 2012) ...................................... 14
Holy Spirit Assn for Unification of World Christianity v. Harper & Row, Publishers, Inc., 101
Misc. 2d 30 (Sup.Ct. 1979) ....................................................................................................... 13
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Karedes v. Ackerley Grp., Inc., 423 F.3d 107 (2d Cir. 2005) ..................................................... 4, 7
Lerman v. Flynt Distrib. Co., 745 F.2d 123 (2d Cir. 1984) ........................................................ 6, 7
Levin v. McPhee, 119 F.3d 189 (2d Cir. 1997) ....................................................................... 11, 12
Pusey v. Bank of Am., N.A., No. 14-CV-04979 FB LB, 2015 WL 4257251 (E.D.N.Y. July 14,
2015) ......................................................................................................................................... 14
Restis v. Am. Coal. Against Nuclear Iran, Inc., 53 F. Supp. 3d 705 (S.D.N.Y. 2014) ................. 14
Three Amigos SJL Rest., Inc. v. CBS News Inc., 28 N.Y.3d 82 (2016) ........................................ 10
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Defendant Joelle Gwynn submits this memorandum of law in support of her motion to
This defamation action stems from New York Post articles published in 2016 about the
NBC reality show The Biggest Loser. The articles explored the public controversy over weight-
loss methods employed on the show, including discussion of a National Institutes of Health study
that addressed why some former contestants regained weight lost on the show. Among the
sources for the Posts articles was Defendant Joelle Gwynn, a former contestant on The Biggest
Loser who shared her experiences and opinions with the Post reporter.
Plaintiff Robert Huizenga, a widely known sports doctor who has appeared in dozens of
news and entertainment programs, including The Biggest Loser, sued both the Post and Ms.
Gwynn. In complaining of five statements attributed to Ms. Gwynn in the Post articles, Plaintiff
fails to plead any facts that could support a finding of actual malice, as he must to pursue a
defamation claim as a public figure. He also complains of statements that do not refer to him and
are no more than an expression of opinion. Neither can be the basis for a defamation claim.
Additionally, Plaintiff brings a claim for intentional interference with prospective business
relations that is both duplicative of his defamation claims and inadequately pleaded. His
BACKGROUND
Plaintiff Huizenga is a famous health expert and sports doctor whose approach to weight
loss has been featured for 17 seasons on the reality show The Biggest Loser. Compl. 1. He has
been the team physician for the Los Angeles Raiders and a national medical correspondent on
FOX and ABC programs. Id. 18. He has repeatedly been interviewed as a health expert on
numerous national news programs and had roles in dozens of entertainment productions. Id. 21.
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In May 2016, The New York Post published three articles about The Biggest Loser. Id.
2. The articles addressed public controversy over the shows methods, including discussion of
reaction to a study conducted by the National Institutes of Health that measured long-term
changes in metabolic rate and body composition among former contestants. Compl. Ex. A, B and
C. Defendant Gwynn was among the sources for the articles, sharing her first-hand account of
Plaintiff brought this action against The New York Post and Ms. Gwynn, alleging
defamation and intentional interference with prospective economic relations. Plaintiff identifies
in two paragraphs the material he claims is defamatory and attributable to Ms. Gwynn. Compl.
29(g) and (l).1 (These paragraphs are repeated in the statements of the first cause of action (
44(g) and (l)) and the second cause of action ( 55(g) and (l).) For ease of reference in this
motion, the challenged material attributable to Ms. Gwynn is identified as five separate
statements:
1. Gwynn claims that she took an illicit yellow and black pill supposedly given to her by
a Show staff member, stating I felt jittery and hyper. ( 29(g))
2. I went and told the sports medicine guy. ( 29(g))
3. The next day, Dr. H gave us some lame explanation of why they got added to our
regimen and that it was up to us to take them. ( 29(g))
4. People chastise Bill Cosby for allegedly offering meds to women, but its acceptable
to do to fat people to make them lose weight. I feel like we got raped, too. ( 29(g))
5. Joelle Gwynn, of Season 7, said of the shows doctor, Rob Huizenga, told them it was
up to us to take [the illicit drugs]. ( 29(l))
Plaintiffs Complaint alleges, without explanation or support, that these statements were
published with knowledge of falsity of the statements and/or reckless disregard for the truth of
the statements ( 49, 60) and that the published statements constitute egregious conduct
1 Plaintiffs
Complaint improperly includes in the challenged statements words not spoken by
Ms. Gwynn. For the purposes of this motion, however, Defendant Gwynn addresses the
statements as presented in the Complaint.
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constituting malice. ( 51, 62.) These allegations are not specifically addressed to the five
statements attributed to Ms. Gwynn. The Complaint also alleges, again without explanation or
support, that Defendants intentionally interfered with Plaintiffs business relationships. ( 67,
68.) It lacks any required details as to which relationships were affected and how.
LEGAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure requires dismissal of a complaint
that fails to state a claim upon which relief can be granted. 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) (quoting Bell Atl. Corp. v.
further factual enhancement, Id. at 678 (quoting Twombly, 550 U.S. at 557), and
suffice to [defeat] a motion to dismiss. Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d
ARGUMENT
Plaintiff has failed to adequately plead either his defamation claims or his claim for
interference claim is wholly duplicative of the defamation claims. His Complaint against
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I.
PLAINTIFFS COMPLAINT AGAINST DEFENDANT GWYNN
SHOULD BE DISMISSED BECAUSE HE HAS NOT ADEQUATELY PLEADED
AND CANNOT ESTABLISH ACTUAL MALICE
To state a claim for defamation in New York, a public figure must establish that the
statements ... complain[ed] of were (1) of and concerning [the plaintiff], (2) likely to be
understood as defamatory by the ordinary person, (3) false, and (4) published with actual
malice. Karedes v. Ackerley Grp., Inc., 423 F.3d 107, 113 (2d Cir. 2005) (citation omitted)
(alteration in original). This standard is a requirement under both the United States and New
York Constitutions, reflecting the broad interest in encouraging vigor and variety in public
debate. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279 (1964). See also Immuno AG. v. Moor-
Jankowski, 77 N.Y.2d 235, 249 (1991) (Noting that the protection afforded by the guarantees of
free press and speech in the New York Constitution is often broader than the minimum required
The facts as presented by Plaintiff, and accepted as true in a motion to dismiss, leave no
room for dispute that Plaintiff is a public figure. He must therefore both plead and prove actual
malice in other words, that Defendant knew her statements were false or demonstrated reckless
disregard for their falsity to prevail on a defamation claim. Times v. Sullivan, 376 U.S. at 279
80. The actual malice showing must be made with convincing clarity, or by clear and
convincing proof. Karedes, 423 F.3d at 114, citing Phila. Newspapers v. Hepps, 475 U.S. 767,
773 (1986). Plaintiff has pleaded no facts plausibly supporting or even pointing toward actual
malice as to Ms. Gwynn, and his defamation claims should therefore be dismissed.
health expert and that he is one of the most esteemed sports doctors of all time. Compl. 1.
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He claims he has a reputation as the best in his field. Id. 17. The Complaint states that he has
been the team doctor for the Los Angeles Raiders ( 18); he wrote a groundbreaking book that
was adapted into the feature film Any Given Sunday ( 18); he was the national medical
correspondent for programs on the FOX and ABC television networks ( 18); he has been
repeatedly interviewed on national television programs, including the ABC Evening News, the
Today Show, Nightline and Larry King Live, as well as in national print media such as The New
York Times and The Los Angeles Times ( 21); he has had recurring roles as writer,
correspondent, advisor and doctor on numerous TV shows and movies, including 26 such
shows and movies identified in the Complaint ( 21); he lectures throughout the country ( 23);
and he runs a fat-loss facility bearing his name, The Clinic by Dr. H, in Southern California (
23).
In short, Plaintiff is, by his own description, famous, even world renowned. Compl.
1. He is sought after for appearances on news and entertainment programs. He is a person who
has assumed roles of especial prominence in the affairs of society, the Supreme Courts
definition of a public figure. Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974). Plaintiffs
claims to fame are so broad that he is surely a public figure for all purposes. At a minimum,
however, he is a limited-purpose public figure, or one who has thrust himself to the forefront of
particular public controversies in order to influence the resolution of the issues involved. Id.
The core requirement for each type of public figure is indisputably found in Plaintiffs
actions: In either event, they invite attention and comment. Id. Or, as the New York Court of
Appeals has explained, [t]he essential element underlying the category of public figures is that
the publicized person has taken an affirmative step to attract public attention. James v. Gannett
Co., 40 N.Y.2d 415, 422 (1976). Whether a person is a public figure is a question of law for the
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court, and one that can be determined at the motion to dismiss stage. Biro v. Conde Nast, 963 F.
Supp. 2d 255, 270 (S.D.N.Y. 2013), affd, 807 F.3d 541 (2d Cir. 2015), and affd, 622 F. Appx
The Second Circuit has synthesized the case law on limited-purpose public figures into a
four-part test. A limited-purpose public figure is a plaintiff who has (1) successfully invited
public attention to his views in an effort to influence others prior to the incident that is the
subject of litigation; (2) voluntarily injected himself into a public controversy related to the
subject of the litigation; (3) assumed a position of prominence in the public controversy; and (4)
maintained regular and continuing access to the media. Lerman v. Flynt Distrib. Co., 745 F.2d
Plaintiffs actions easily satisfy all four prongs. He has sought and received public
attention to his views on the subject of the challenged articles: extreme weight loss, and, in
particular, the kind of extreme weight loss featured on The Biggest Loser. Plaintiff highlights this
in his Complaint, touting his 2008 book, Where Did the Fat Go? The Wow! Prescription to
Reach Your Ideal Weight and Stay There, which he describes as being about the radical
exercise-centric obesity treatment he first pioneered in over 766 overweight applicants to NBCs
The Biggest Loser and resulting in over 20 published peer-reviewed medical abstracts, articles
or major medical conference presentations. ( 22). Plaintiff also voluntarily injected himself
into the public controversy by collaborating on the National Institutes of Health study cited by
the Post articles. Compl. 29(d). He claims a position of prominence on the subject of extreme
weight loss, having written multiple scientific papers on his approach and presenting them at
national medical conferences. Compl. 15. And he undoubtedly has maintained regular access to
the media, as demonstrated by his repeated appearances in the national media. Compl. 21.
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Plaintiff must, therefore, be held to be at least a public figure with respect to accounts about this
As a public figure, Plaintiff is subject to the actual malice standard. To prevail on his
defamation claim he must adequately plead and prove facts demonstrating that each defendant
acted knowing that the allegedly defamatory statements were false or with reckless disregard as
to the statements falsity. See, e.g., Times v. Sullivan, 376 U.S. at 27980 (public officials);
Curtis Publg Co. v. Butts, 388 U.S. 130, 15455 (1967) (public figures); Lerman v. Flynt
Distrib. Co., 745 F.2d 123, 137, 139 (2d Cir. 1984) (limited-purpose public figures). Because
Plaintiff has failed to plead any such facts, his claim against Ms. Gwynn must be dismissed.
The pleading standard in defamation actions must necessarily be rigorous, in line with the
constitutionally required proof standard in these actions. A defamation plaintiff must establish
actual malice by clear and convincing proof (Karedes, 423 F.3d at 114 (citations omitted)),
and a complaint that lacks any factual support for its allegations cannot meet that bar. When that
is the case, dismissal is the proper course. [T]here is, according to the New York Court of
Appeals, particular value in resolving defamation claims at the pleading stage, so as not to
protract litigation through discovery and trial and thereby chill the exercise of constitutionally
protected freedoms. Biro, 963 F. Supp. 2d at 264 (quoting Armstrong v. Simon & Schuster,
The concern over protracted litigation and chilled speech are of particular concern in a
case such as this one, involving an individual defendant offering a first-hand account of her own
experiences and opinions. Plaintiff has not come forward with a single fact supporting any
showing of actual malice, and Ms. Gwynn should not be subjected to the demands of discovery
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and protracted litigation as he fishes for support he can never find. Pleading requirements are
The Supreme Court has clearly identified those requirements for civil actions. To survive
a motion to dismiss, a complaint must allege enough facts to state a claim to relief that is
plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Where a particular
state of mind is an element of a claim as actual malice is here it must be plausibly pleaded
and supported by factual allegations. Iqbal, 556 U.S. at 68687. A claim is plausible 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. at 678. [N]aked assertions or conclusory
The Second Circuit long ago stated that [d]efamation actions are, for procedural
purposes, ... to be treated no differently from other actions. Yiamouyiannis v. Consumers Union,
619 F.2d 932, 940 (1980). And that Court recently emphasized that this rule applies to pleading
standards in defamation cases requiring actual malice. Biro v. Conde Nast, 807 F.3d 541, 545
To meet this standard, Plaintiff must plead facts that could lead to a reasonable inference
that Ms. Gwynn entertained serious doubts as to the truth of her challenged statements. Id. at
546, citing St. Amant v. Thompson, 390 U.S. 727, 731 (1968). Plaintiff has failed to do so.
Plaintiffs Complaint lacks any specific facts alleging actual malice on the part of Ms.
Gwynn. The only related allegations that could be interpreted as applying to Ms. Gwynn are the
general, broad-brush and conclusory statements that: Defendants knew the statements to be
false at the time the May 22, 2016 Post was published. ( 27); Defendants knew the statements
were false at the time the First May 23, 2016 and Second May 23, 2016 Post were published. (
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28); and The foregoing false statements of fact were made by defendants with the intention and
knowledge that they were false and were likely to harm Dr. Hs personal and professional
reputation, and/or with reckless disregard for the truth of the statements. ( 30).
Though they contain actual malice buzzwords, these are simply conclusory allegations
for which Plaintiff pleads no supporting facts with regard to Ms. Gwynn. The allegations are no
more than bare legal conclusions, not the well-pleaded facts the Supreme Court requires in
The District Court in Biro (affirmed by the Second Circuit) followed a First Circuit
roadmap for determining whether actual malice has been adequately pleaded: To begin, the
court must strip away and discard the complaints conclusory legal allegations. Next, the court
must determine whether the remaining factual content permits the reasonable inference that the
defendant is liable for the misconduct alleged. Biro, 963 F. Supp. 2d at 280 (citing Shay v.
Walters, 702 F.3d 76, 8283 (1st Cir. 2012)). Once the conclusory allegations of this complaint
are stripped away, nothing remains to support any inference that Ms. Gwynn could have acted
Other courts in the Southern District have also dismissed claims where allegations of
actual malice were conclusory and lacked plausibility. See, e.g., Egiazaryan v. Zalmayev, No. 11
assertion that Zalmayev acted with malice is unavailing because it is a legal conclusion not
entitled to presumption of truth, and he alleges no facts plausibly supporting that conclusion.
(citing Iqbal, 556 U.S. at 67879)); Orenstein v. Figel, 677 F.Supp.2d 706, 711 (S.D.N.Y.2009)
(Orenstein alleges that Figel ... acted knowingly, recklessly, and maliciously in writing the
March 20, 2009 letter .... The Complaint provides neither factual support for these conclusions
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nor any explanation of why either Figel or his law firm would have an interest in acting
maliciously toward Orenstein.); Diario El Pais, S.I. v. Nielsen Co. (US), No. 07 Civ.
Because Plaintiffs Complaint lacks any factual support for its conclusory legal
allegations that Ms. Gwynn acted with actual malice, it has failed to state a claim for defamation
II.
THREE OF THE ALLEGED DEFAMATORY STATEMENTS
DO NOT PERTAIN TO PLAINTIFF SO CANNOT SUPPORT A DEFAMATION CLAIM
To state a claim for defamation, Plaintiff must demonstrate that the allegedly defamatory
statements are of and concerning him. Three Amigos SJL Rest., Inc. v. CBS News Inc., 28
N.Y.3d 82, 86 (2016). In other words, Plaintiff must plead and prove that the challenged
statement referred to him and that a person hearing or reading the statement reasonably could
have interpreted it as such. Id. The question of whether a statement is of and concerning a
plaintiff is one for the court to decide. Id. Although the pleading failures noted above should
result in full dismissal, statements that are not of and concerning Plaintiff should be dismissed on
The bulk of the statements sourced to Ms. Gwynn in the Complaint do not refer to
1. Gwynn claims that she took an illicit yellow and black pill supposedly given to her by
a Show staff member, stating I felt jittery and hyper. ( 29(g))
2. I went and told the sports medicine guy. ( 29(g))
3. The next day, Dr. H gave us some lame explanation of why they got added to our
regimen and that it was up to us to take them. ( 29(g))
4. People chastise Bill Cosby for allegedly offering meds to women, but its acceptable
to do to fat people to make them lose weight. I feel like we got raped, too. ( 29(g))
5. Joelle Gwynn, of Season 7, said of the shows doctor, Rob Huizenga, told them it was
up to us to take [the illicit drugs]. ( 29(l))
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The only reference to Plaintiff is in one sentence, repeated in Statements 3 and 5. Plaintiff is
neither the subject nor the object of any criticism in the remainder of the challenged statements
and therefore cannot claim injury from them. See AIDS Counseling & Testing Ctrs. v. Group W.
Television, Inc., 903 F.2d 1000, 1005 (4th Cir.1990) (holding that [a]llegations of defamation
by an organization and its members are not interchangeable (internal quotations omitted)).
Only statements that are of and concerning Plaintiff may be the basis of a defamation
claim. Only one sentence of the material attributable to Ms. Gwynn could reasonably be
interpreted as referring to Plaintiff. Any claim based on the remaining material should be
III.
PLAINTIFFS COMPLAINT BASED ON ALLEGED STATEMENT NO. 4
SHOULD BE DISMISSED AS NON-ACTIONABLE OPINION
A claim for defamation can be based only on a false statement of fact about the plaintiff,
not opinion or rhetorical hyperbole. This is especially so under the New York State Constitution,
which provides, under Article I 8, even greater protection to speech than does the U.S.
Constitution. Immuno AG, 77 N.Y.2d at 239, 249. [T]he thrust of the dispositive inquiry under
both New York and constitutional law is whether a reasonable [reader] could have concluded
that [the publications were] conveying facts about the plaintiff. Levin v. McPhee, 119 F.3d 189,
196 (2d Cir. 1997) (quotations omitted) (alterations in original). This determination is a matter
for the court. Id. In addition to the pleading failures noted above, Statement No. 4 contains no
assertion of objective fact about Plaintiff and therefore any claim based on it must be dismissed
The statement at issue is this: People chastise Bill Cosby for allegedly offering meds to
women, but its acceptable to do to fat people to make them lose weight. I feel like we got raped,
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too. Compl. 29(g). This statement is no more than Ms. Gwynns subjective opinion about her
own experience and the general treatment of people who are overweight, using colorful language
to emphasize her point. This statement falls firmly into the category of rhetorical hyperbole or
imaginative expression that the Supreme Court has ruled is not actionable because such
statements cannot reasonably [be] interpreted as stating actual facts. Milkovich v. Lorain
Journal, 497 U.S. 1, 20 (1990) (alteration in original) (citation omitted). The use of loose,
figurative, or hyperbolic language tends to negate the impression that the speaker was
seriously intending to convey facts. Id. at 21. See also Immuno AG, 77 N.Y.2d at 245 (Even
statements that contain or imply assertions of false fact are not actionable when expressed in
New York law grants even broader protection to statements of opinion under Article 1,
Section 8 of the New York Constitution. The New York Court of Appeals has emphasized that
[e]xpressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter
how offensive, cannot be the subject of an action for defamation. Mann v. Abel, 10 N.Y.3d 271,
276 (2008). New York courts employ a three-stage inquiry to distinguish fact from opinion: 1)
whether the specific language used has a precise and readily understood meaning; 2) whether
the statements are susceptible of being proven false; and 3) whether the context of the
statements signals to the reader that what is being conveyed is likely to be opinion rather than
opinion, not fact. The language used is the loose, hyperbolic kind that signals non-actionable
opinion, not precise facts. No reasonable reader would believe that Ms. Gwynn was claiming that
she or any other contestant was actually raped. Rather, that hyperbolic language is used to
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convey her feelings about general attitudes about overweight people and weight loss. That
expression of feeling is not one capable of being proved false. And the context makes clear to the
reader that she is sharing her opinion, not asserting facts. Further, nothing in the statement refers
in any way to Plaintiff. Nor can any comparison to Cosby be construed as a statement of fact.
Courts have treated comparisons as opinions, not as statements of fact. See, e.g., Holy Spirit
Assn for Unification of World Christianity v. Harper & Row, Publishers, Inc., 101 Misc. 2d 30,
33 (Sup. Ct. 1979) (Dismissing complaint based on comparison to Nazis and noting: Clearly,
the comparison of one organization with another and pointing out similarities between them,
In the absence of any factual assertion about Plaintiff, no defamation claim can survive.
Any claim based on Statement No. 4 should be dismissed, or the statement should be stricken
IV.
PLAINTIFFS CLAIM FOR INTENTIONAL INTERFERENCE
WITH PROSPECTIVE ECONOMIC RELATIONS MUST BE DISMISSED
Plaintiffs claim for intentional interference with prospective economic relations (Compl.
at 22) is both duplicative of his defamation claims and inadequately pleaded. It should therefore
be dismissed.
Plaintiffs claim for intentional interference with prospective economic relations is based
is therefore duplicative of his defamation claims and should be dismissed. New York law
considers claims sounding in tort to be defamation claims ... where those causes of action seek
damages only for injury to reputation, [or] where the entire injury complained of by plaintiff
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flows from the effect on his reputation. Hengjun Chao v. Mount Sinai Hosp., 476 F. Appx 892,
895 (2d Cir. 2012), citing Jain v. Sec. Indus. and Fin. Mkts. Assn., No. 08 Civ. 6463, 2009 WL
As in Chao, the facts underlying Plaintiffs intentional interference claim are virtually
identical to the facts underlying his defamation claimnamely, that the defendants made false
statements regarding [his] ... integrity. Id. In addition, the harm he asserts in this claim flows
from the effect on his reputation caused by defendants alleged defamatory statements. Id.
Indeed, Plaintiffs Complaint states as much: The only act Plaintiff points to as creating such
intentional interference is that of making false, fabricated, fictitious and outright libelous
statements. Compl. 67, 68. That is the basis for a defamation claim, not an intentional
interference claim. Courts have consistently dismissed intentional interference claims that are
based only on allegations of harm to reputation from defamatory statements. See, e.g., Restis v.
Am. Coal. Against Nuclear Iran, Inc., 53 F. Supp. 3d 705, 726 (S.D.N.Y. 2014) (Dismissing
claim because the entire injury pleaded in relation to the tortious interference with prospective
economic advantage cause of action flows from the effect of the defamatory comments on
Plaintiffs reputation.); Krepps v. Reiner, 588 F. Supp. 2d 471, 485 (S.D.N.Y. 2008), affd, 377
F. Appx 65 (2d Cir. 2010) (Plaintiff is not permitted to dress up a defamation claim as a claim
918 F. Supp. 2d 221, 224 (S.D.N.Y. 2013) (Moreover, courts in New York have also kept a
watchful eye for claims sounding in defamation that have been disguised as other causes of
action.); Goldman v. Barrett, No. 15 CIV. 9223 (PGG), 2016 WL 5942529, at *7 (S.D.N.Y.
Aug. 24, 2016) (causes of action for tortious interference dismissed as duplicative of plaintiffs
defamation claims); Pusey v. Bank of Am., N.A., No. 14-CV-04979 FB LB, 2015 WL 4257251,
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at *4 (E.D.N.Y. July 14, 2015) (same); Pasqualini v. MortgageIT, Inc., 498 F. Supp. 2d 659, 670
(S.D.N.Y. 2007) (In the present case, plaintiff's claim is based wholly on [defendants]
dissemination of negative statements about her and the resulting harm to her professional
Because the only injury Plaintiff cites flows from the alleged defamatory statements
which are themselves the only acts Plaintiff alleges his claim for tortious interference with
Even were Plaintiffs claim for tortious interference not duplicative of his defamation
claims, it must be dismissed because the Complaint fails to allege facts supporting it. To state a
claim for tortious interference with prospective economic advantage, a plaintiff must show (1)
business relations with a third party; (2) defendants interference with those business relations;
(3) defendants acted with the sole purpose of harming the plaintiff or used dishonest, unfair, or
improper means, and (4) injury to the relationship. Purgess v. Sharrock, 33 F.3d 134, 141 (2d
Cir.1994). Plaintiff must allege relationships with specific third parties and state how the
defendant interfered with those relationships. Four Finger Art Factory, Inc. v. Dinicola, No. 99
Civ. 1259, 2000 WL 145466, at *7 (S.D.N.Y. Feb.9, 2000). Vague claims of indirect interference
are not enough: in order for a party to make out a claim for tortious interference with
prospective economic advantage, the defendant must interfere with the business relationship
directly; that is, the defendant must direct some activities towards the third party and convince
the third party not to enter into a business relationship with the plaintiff. Fonar Corp. v.
Magnetic Resonance Plus, Inc., 957 F. Supp. 477, 482 (S.D.N.Y. 1997). See also Carvel Corp. v.
Noonan, 3 N.Y.3d 182, 192 (2004) (As federal courts applying New York law have recognized,
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conduct constituting tortious interference with business relations is, by definition, conduct
directed not at the plaintiff itself, but at the party with which the plaintiff has or seeks to have a
relationship.)
Plaintiffs claim does not meet these requirements. He makes only the most general
allegations regarding any affected relationships, identifying them only as his role on The
Biggest Loser, a role as a medical expert on a national network news show and a production
deal for a reality TV show. Compl. 67. Only one of those specifically identifies any third
party, and, most important, Plaintiff fails to allege any fact showing that Ms. Gwynn directed any
activity toward any third party or convinced any third party not to enter a business relationship
with Plaintiff. In fact, the only third party the Complaint alleges Ms. Gwynn had any contact
with at all is The New York Post, and the only activity it alleges is her interview with the Post.
These allegations are insufficient to state a claim for tortious interference with prospective
economic advantage.
CONCLUSION
Plaintiffs Complaint fails to provide the constitutionally required factual support for its
expressions of opinion and statements of fact that do not refer to Plaintiff. It seeks to assert
duplicative causes of action even while failing to properly plead them. All of this poses the risk
of unjustly forcing Defendant Joelle Gwynn to face the significant burdens of litigation while
also chilling protected speech. Defendant therefore respectfully asks this Court to dismiss
Plaintiffs Complaint against her and to award such further relief as it deems just and proper.
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