Hodges v. Lutwin ( 2023 )

22-974-cv
Hodges v. Lutwin
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 11th day of May, two thousand twenty-three.
PRESENT:
JOHN M. WALKER, JR.,
RICHARD C. WESLEY,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
Jamie Hodges, On the Move Ltd.,
Plaintiffs-Appellants,
v. 22-974-cv
Molly Kathleen Lutwin, Irish Dancing Teachers
Association of North America-Mid-Atlantic
Region, Inc., Keith L. Labis, Francis Academy
of Irish Dance, James Early,
Defendants-Appellees.
_____________________________________
FOR PLAINTIFFS-APPELLANTS: TOM M. FINI (Christina Taylor, on the
briefs), Catafago Fini LLP, New York, NY.
FOR DEFENDANTS-APPELLEES: BENJAMIN R. ALLEE (Russell M. Yankwitt,
on the brief), Yankwitt LLP, for Defendants-
Appellees Irish Dancing Teachers
Association of North America-Mid-Atlantic
Region, Inc., Keith L. Labis, and James
Early, White Plains, NY.
Appeal from an order and judgment of the United States District Court for the Southern
District of New York (Carter, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiffs-appellants Jamie Hodges and his company, On the Move Ltd. (“On the Move”),
appeal from the district court’s judgment, entered on March 31, 2022, dismissing their defamation
claims pursuant to Federal Rule of Civil Procedure 12(b)(6). We assume the parties’ familiarity
with the underlying facts and procedural history of this case, to which we refer only as necessary
to explain our decision to affirm.
BACKGROUND 1
Hodges is an Irish Dance performer and instructor who, through the operation of On the
Move, is involved in teaching students Irish Dance in the United States and around the world. On
November 18, 2019, Hodges received approval from defendant-appellee Irish Dancing Teachers
Association of North America-Mid-Atlantic Region, Inc. (the “Mid-Atlantic Teachers”) to conduct
a summer camp within the association. On November 24, 2019, defendant Molly Lutwin sent an
email (the “Lutwin Email”) to the board of the Mid-Atlantic Teachers, stating that On the Move’s
Instagram account sent a video containing nudity to two minors who were enrolled in Lutwin’s
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For purposes of reviewing the district court’s grant of the motion to dismiss, this summary of facts relies
on allegations contained in the complaint, as well as “assertions . . . contained in documents attached to the
pleadings or in documents incorporated by reference.” Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001).
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Irish Dance school, defendant Francis Academy of Irish Dance (“Francis Academy”), which is
located in Syracuse, New York.
On January 26, 2020, the Mid-Atlantic Teachers held a regularly scheduled quarterly
meeting for its members. During this meeting, defendant-appellee James Early, the Regional
Director of the Mid-Atlantic Teachers, read the contents of the Lutwin Email to the other members,
which included “hundreds of Irish Dance teachers[,] . . . including teachers from New York, New
Jersey, Pennsylvania, and Delaware[.]” Joint App’x at 12. Later during the meeting,
defendant-appellee Keith Labis, an attorney for the Mid-Atlantic Teachers, stated that he had
informed federal and state law enforcement about plaintiffs’ alleged conduct.
On November 23, 2020, Hodges and On the Move brought the instant action against the
Mid-Atlantic Teachers, Early, and Labis (collectively, the “Mid-Atlantic defendants”), as well as
against Lutwin and Francis Academy (collectively, the “Lutwin defendants”), asserting claims for
defamation, defamation per se, and tortious interference with prospective business relations. The
Mid-Atlantic defendants and the Lutwin defendants each moved to dismiss under Rule 12(b)(6).
The district court granted the defendants’ motions to dismiss, concluding that, on the face of the
complaint, the allegedly defamatory statements were subject to the common interest privilege and
that plaintiffs had not plausibly alleged facts to support any exception to the privilege — namely,
excessive publication or malice. The district court also dismissed plaintiffs’ tortious interference
claim, finding that no independent tort or crime had been committed, which is necessary to allege
such a claim. On appeal, plaintiffs argue that the district court erred in concluding that they had
not plausibly alleged an exception to the common interest privilege. After commencing this
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appeal, plaintiffs settled their claims with the Lutwin defendants. Accordingly, this appeal only
concerns plaintiffs’ claims against the Mid-Atlantic defendants.
DISCUSSION
“We review de novo a district court’s grant of a motion to dismiss under Rule 12(b)(6),
accepting as true the factual allegations in the complaint and drawing all inferences in the
plaintiff’s favor.” Kinsey v. N.Y. Times Co., 991 F.3d 171, 175 (2d Cir. 2021). To survive a
motion to dismiss, the pleadings “must contain ‘enough facts to state a claim to relief that is
plausible on its face.’” Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir. 2015) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). However, we “are not bound to accept as true a
legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555 (internal quotation
marks and citation omitted); accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.”).
Under New York law, a plaintiff can recover for a defamation claim “by proving that the
defendant published to a third party a defamatory statement of fact that was false, was made with
the applicable level of fault, and either was defamatory per se or caused the plaintiff special harm,
so long as the statement was not protected by privilege.” Chandok v. Klessig, 632 F.3d 803, 814
(2d Cir. 2011). One such privilege is the “common interest privilege,” which “extends to a
communication made by one person to another upon a subject in which both have an interest.”
Liberman v. Gelstein, 80 N.Y.2d 429, 437 (1992) (internal quotation marks and citation omitted).
Here, it is clear from the allegations in the complaint that the common interest privilege
applies to the defamatory statements at issue. The members of the Mid-Atlantic Teachers shared
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an interest in protecting the welfare of the children who participated in their Irish Dance programs,
as well as receiving information that an Irish Dance company approved by the association to run
a summer camp in the Mid-Atlantic region allegedly sent an obscene video to two minor students
in a member’s school. See Porges v. Weitz, 205 A.D.3d 13, 18 (2d Dep’t 2022) (concluding that
New York “courts have applied the so-called common interest privilege to shield from defamation
litigation statements made in a good faith effort to address a potentially unsafe environment which
children in the declarant’s community frequented, as well as communications that were motivated
by an asserted concern for the best interests of the children to whom the communication pertained”
(alternations adopted) (internal quotation marks and citations omitted)); Bulow v. Women in Need,
Inc., 89 A.D.3d 525, 526 (1st Dep’t 2011) (applying the common interest privilege to a
supervisor’s allegation that the plaintiff engaged in “inappropriate ‘sexual horseplay’ with a
coworker in an area where children could see them”).
However, this qualified privilege may be overcome if plaintiffs can show that the
defamatory statements were excessively published or motivated by malice. See Konikoff v.
Prudential Ins. Co. of Am., 234 F.3d 92, 98 (2d Cir. 2000). As set forth below, the district court
correctly determined that plaintiffs have failed to plausibly allege either excessive publication or
malice in the complaint.
I. Excessive Publication
Plaintiffs contend that they have sufficiently pled excessive publication because the
complaint alleges that Early and Labis made the allegedly defamatory statements at the Mid-
Atlantic Teachers’ meeting in the presence of hundreds of Irish Dance instructors who teach across
various states. We disagree.
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A defamatory statement is excessively published when “it was made to persons with an
insufficient interest in it for it to warrant protection.” Id. at 98; accord Restatement (Second) of
Torts § 604 (1977) (“One who . . . knowingly publishes [a defamatory] matter to a person to whom
its publication is not otherwise privileged, abuses the privilege . . . .”); id. at § 599 cmt. a
(explaining that an abuse of the privilege may occur where “the publication is made to some person
not reasonably believed to be necessary for the accomplishment of the purpose of the particular
privilege”). Thus, when a statement is made to those whom the speaker reasonably believes share
a common interest with the speaker, those statements are not excessively published. See Berger
v. Temple Beth-El of Great Neck, 41 A.D.3d 626, 627 (2d Dep’t 2007) (holding that plaintiff’s
claim that “the challenged statements were excessively published” failed where “the recipients all
shared a common interest” of the religious organization); accord Anas v. Brown, 269 A.D.2d 761,
762 (4th Dep’t 2000) (emphasizing that the common interest privilege is “broadly applied” such
that “[t]he parties need only have such a relation to each other as would support a reasonable
ground for supposing an innocent motive for imparting the information”).
Here, Early and Labis made their statements during a regularly scheduled, quarterly
meeting that was limited to members of the Mid-Atlantic Teachers organization. Plaintiffs do
not allege that the statements were made to anyone outside of the Mid-Atlantic Teachers
organization. Moreover, plaintiffs fail to allege any facts from which one can plausibly infer that
the members of the organization did not share a common interest in learning about this allegation
of misconduct to, among other things, ensure the welfare of their students who might enroll in On
the Move’s summer camp or otherwise be involved in its instructional programs. Indeed, the
complaint describes Hodges as “a highly successful Irish Dance performer and instructor . . . in
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the close-knit Irish Dance community” who was “known by nearly every attendee of the . . .
meeting by virtue of . . . attending various events at many of their dance schools.” Joint App’x
at 10, 33. The complaint further states that “at least 54 children had already signed up for On the
Move’s summer camp” and that On the Move was “on a course to sell out the camp.” Id. at 40–
41. Thus, as members of an organization focused on teaching minor students Irish Dance, the
teachers shared a common interest in learning about alleged misconduct by an instructor in this
close-knit community to ensure the welfare of their students.
Given this shared common interest among the members of the Mid-Atlantic Teachers
regarding the misconduct allegation related to On the Move, the large number of members in that
organization with whom the statements were shared does not undermine the application of the
privilege in this particular case. See, e.g., Chandok, 632 F.3d at 817 (applying the common
interest privilege to statements made to “fellow scientists, at Cornell or other institutions, who
shared [an] interest in NOS research”); Hoyt v. Kaplan, 263 A.D.2d 918, 918-19 (3d Dep’t 1999)
(applying the common interest privilege to statements made to the membership of a professional
organization); Brockman v. Frank, 149 Misc.2d 399, 401 (N.Y. Sup. Ct. 1991) (“The ‘common
interest’ qualified privilege is generally applied where members of an organization discuss among
themselves matters of concern to the organization.” (collecting cases)).
In sum, based upon the allegations in the complaint, we conclude that plaintiffs failed to
allege facts that plausibly support overcoming the common interest privilege based on excessive
publication.
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II. Malice
Plaintiffs also assert that the common interest privilege is defeated because the complaint
sufficiently alleges malice. Malice can take two forms: (1) common law malice, i.e., “spite or ill
will,” or (2) actual malice, i.e., “knowledge that [the statement] was false or . . . reckless disregard
of whether it was false or not.” Liberman, 80 N.Y.2d at 437–38 (internal quotation marks and
citation omitted). As we have explained, “[t]he critical difference between common-law malice
and constitutional (i.e., actual) malice . . . is that the former focuses on the defendant’s attitude
toward the plaintiff, the latter on the defendant’s attitude toward the truth.” Chandok, 632 F.3d
at 815 (alterations adopted) (internal quotation marks and citation omitted). Although plaintiffs
contend they have sufficiently alleged that both types of malice apply to the statements made by
Early and Labis, we find their arguments unpersuasive.
To successfully allege that the common interest privilege is overcome because of common
law malice, plaintiffs must plausibly allege that malice was the sole reason the defamatory
statements were made. See Konikoff, 234 F.3d at 98-99; see also Stukuls v. State, 42 N.Y.2d 272,
281-82 (1977) (explaining that plaintiff has the “burden of proving that malice was the one and
only cause for the publication”). The factual allegations in the complaint do not support a
plausible inference that malice was the sole reason that Early or Labis made the statements at the
Mid-Atlantic Teachers’ meeting. To be sure, the complaint does allege that the defendants’ “sole
purpose” was to harm plaintiffs and destroy On the Move’s business relationships with its
customers for its Irish Dance camp and future teaching opportunities. Joint App’x at 51.
However, to overcome the common interest privilege, “[m]ere conclusory allegations, or charges
based upon surmise, conjecture, and suspicion are insufficient . . . .” Golden v. Stiso, 279 A.D.2d
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607, 608 (2d Dep’t 2001); see also Panghat v. N.Y. Downtown Hosp., 85 A.D.3d 473, 474 (1st
Dep’t 2011) (holding that the allegedly defamatory statements were “protected by the common
interest privilege,” because “[p]laintiff merely asserted in conclusory fashion that the statements
at issue were made with malice, which is insufficient to overcome the privilege”). Indeed,
although the complaint generally alleges that Early suffered from a “conflict of interest” because
he worked at a competing camp and used the statements to destroy plaintiffs’ business, Joint App’x
at 51, the complaint also noted that Early had approved Hodges’s application to run a summer
camp, indicating that Mid-Atlantic Teachers had “no problem” with that arrangement, id. at 1718.
In short, it cannot be plausibly inferred from the complaint that either Early or Labis was motivated
solely by a desire to harm plaintiffs’ business in making the statements during the meeting about
the complaint of misconduct lodged against On the Move.
We conclude that the allegations regarding actual malice are similarly insufficient. On
that issue, plaintiffs point to allegations in the complaint that Early and Labis were reckless in
repeating Lutwin’s allegations given that their statements were based on hearsay, they did not
conduct their own investigation of the allegations, they failed to ascertain plaintiffs’ side of the
story, and they were aware that the global Irish Dance governing body Coiste Faire and law
enforcement had closed their respective investigations. To properly allege actual malice,
plaintiffs’ factual allegations must support a plausible inference that the statements were made
“‘with a high degree of awareness of the publication’s probable falsity’ or while ‘the defendant in
fact entertained serious doubts as to the truth of the publication.’” Konikoff, 234 F.3d at 99(alterations adopted) (quoting Liberman, 80 N.Y.2d at 438). No such plausible inference can be
made here.
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First, the fact that Lutwin’s complaint contained hearsay is insufficient to raise a plausible
inference that Early and Labis made the allegedly defamatory statements “with a high degree of
awareness” that those statements were false. Liberman, 80 N.Y.2d at 438. The Lutwin Email
contained a detailed description of both the inappropriate video and the deleted conversation on
Instagram between the minors and the On the Move account. See, e.g., Glover v. Lambrix, No.
87/3376, 1988 WL 410949, at *1 (N.Y. Sup. Ct. Oct. 5, 1988) (rejecting plaintiff’s claim of actual
malice where “[d]efendants possessed information, albeit largely hearsay, which furnished a basis
for the defamatory statements they allegedly uttered . . . .”).
Second, under New York law, plaintiffs cannot establish actual malice on the basis that the
Mid-Atlantic defendants declined to consider plaintiffs’ account of the events underlying the
allegedly defamatory statements or failed to conduct their own investigation. See Sanderson v.
Bellevue Maternity Hosp. Inc., 259 A.D.2d 888, 890 (3d Dep’t 1999) (rejecting plaintiff’s claim
that defendant exhibited actual malice by her “refusal to listen to plaintiff’s explanation” and
failure to investigate the truth of the statements); see also Sweeney v. Prisoners’ Legal Servs. of
N.Y., Inc., 84 N.Y.2d 786, 793 (1995) (“[T]he failure to investigate [an allegedly defamatory
statement’s] truth, standing alone, is not enough to prove actual malice even if a prudent person
would have investigated before publishing the statement.”). Without other allegations that
plausibly support a finding that the Mid-Atlantic defendants “purposefully avoided the truth,”
Sweeney, 84 N.Y.2d at 793, regarding the purported Instagram message—no allegations of which
are provided in the complaint—plaintiffs cannot point to the lack of an investigation or failure to
consider their side of the story to survive a motion to dismiss.
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Finally, although the complaint alleges that the Mid-Atlantic defendants were aware at
the time of their statements that the Coiste Faire investigation into plaintiffs was closed and that
the law enforcement authorities did not believe a crime had been committed, such an awareness
also does not support a plausible inference that the statements were false. Coiste Faire’s letter
regarding the alleged misconduct (which was attached to the complaint) explained that, because
plaintiffs were not members of the organization, there were “severe restrictions on actions that
Coiste Faire can take” and the investigation was being closed. Joint App’x at 70. However, it
also articulated other steps the organization could nevertheless take to address the alleged
misconduct, which further demonstrated that Coiste Faire did not close the investigation because
it determined the allegations were false. Similarly, any determination by law enforcement that a
crime did not occur does not mean that the alleged conduct did not happen or that it was appropriate
conduct for an instructor.
In sum, even considering the allegations collectively and drawing all reasonable inferences
in plaintiffs’ favor, we conclude that the statements made by Early and Labis were protected by
the common interest privilege and that the complaint does not plausibly allege that the privilege is
overcome by excessive publication or malice. Accordingly, the district court properly dismissed
the defamation claims against the Mid-Atlantic defendants.
* * *
We have considered plaintiffs’ remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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