Uchechukwu Egbujo v. Jackson Lewis P.C. ( 2023 )

22-2854-cv
Uchechukwu Egbujo v. Jackson Lewis P.C.
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 1st day of December, two thousand twenty-three.
PRESENT:
RICHARD C. WESLEY,
DENNY CHIN,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
Uchechukwu Egbujo,
Plaintiff-Appellant,
v. 22-2854-cv
Jackson Lewis P.C.,
Defendant-Appellee.
_____________________________________
FOR PLAINTIFF-APPELLANT: CLIFFORD THIER, Thier Law Offices, LLC, West
Hartford, CT.
FOR DEFENDANT-APPELLEE: JAMES F. SHEA (Carolyn A. Trotta, on the brief),
Jackson Lewis P.C., Hartford, CT.
Appeal from a judgment of the United States District Court for the District of Connecticut
(Dooley, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Uchechukwu Egbujo appeals the district court’s judgment, entered on October 31, 2022,
dismissing his amended complaint against law firm Jackson Lewis P.C. (“Jackson Lewis”), in
which Egbujo asserted a defamation claim in connection with the law firm’s dissemination of
written reports about the results of an internal investigation. We assume the parties’ familiarity
with the underlying facts, procedural history, and issues on appeal, to which we refer only as
necessary to explain our decision to affirm.
The amended complaint alleged that Egbujo, while he was a medical resident at Norwalk
Hospital (the “Hospital”) in Connecticut, was accused of sexual assault by another medical
resident. The Hospital hired Jackson Lewis to investigate the allegations and report its findings to
it. After conducting interviews, Jackson Lewis allegedly shared written reports of its investigation
with the Hospital, Egbujo’s attorney, and possibly other individuals. Egbujo asserts that these
reports repeated false statements about him made by his accuser and others during the interviews,
and that the republication by Jackson Lewis of those false statements in the written reports
constituted defamation under Connecticut law.
The district court granted Jackson Lewis’s motion to dismiss the amended complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). Egbujo v. Jackson Lewis, P.C., No. 3:21-
CV-01450 (KAD), 2022 WL 4585688, at *5 (D. Conn. Sept. 29, 2022). The district court
concluded that Egbujo had failed to establish a prima facie case of defamation because he had not
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alleged that the defendant published any defamatory statements to a third party, as required under
Connecticut law. Id. at *2 (citing Simms v. Seaman, 308 Conn. 523, 547–48 (2013)). Applying
principles of agency law, the district court held that neither Jackson Lewis’s communications with
its client, i.e., the Hospital, nor its communications with Egbujo’s attorney constituted a
publication to a third party because an attorney’s knowledge is imputed to the client. Id. at *3.
Having found that dismissal was warranted because of a lack of publication, the district court did
not reach the issues of whether the underlying statements were false or whether Jackson Lewis’s
dissemination of the reports to its client and Egbujo’s attorney was protected by a qualified
privilege. However, the district court noted that the public policy considerations undergirding its
reasoning with respect to publication would also support a finding of qualified privilege. Id. at *4
n.9.
On appeal, Egbujo argues that the district court erred by: (1) concluding that Jackson
Lewis’s transmission of the investigative reports to the Hospital and to his attorney did not
constitute publication of defamatory statements to a third party; and (2) disregarding the allegation
in the amended complaint that other persons, in addition to the Hospital and Egbujo’s attorney,
reviewed one of Jackson Lewis’s written reports about the investigation.
“We review de novo the 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.”
Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir. 2015) (collecting cases). To survive a motion to
dismiss, “a complaint must contain ‘enough facts to state a claim to relief that is plausible on its
face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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“A federal court sitting in a diversity case will apply the substantive law of the forum
state . . . .” McCarthy v. Olin Corp., 119 F.3d 148, 153 (2d Cir. 1997) (citing Erie R.R. Co. v.
Tompkins, 304 U.S. 64 (1938)). We determine the law of the forum state de novo, affording “the
greatest weight to decisions of” the forum state’s highest court. Id. Where that court is silent, our
role “is carefully to predict how [it] would resolve the uncertainty or ambiguity[,]” considering
decisions of the lower state courts and, to the extent that the forum state’s highest court would
consider them persuasive, cases from other jurisdictions. Id. (internal quotation marks and
citations omitted). Here, both parties agree that Connecticut law applies to Egbujo’s defamation
claim.
Under Connecticut law, “[t]o establish a prima facie case of defamation, the plaintiff must
demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory
statement identified the plaintiff to a third person; (3) the defamatory statement was published to
a third person; and (4) the plaintiff’s reputation suffered injury as a result of the statement.” Simms,
308 Conn. at 547–48 (internal quotation marks and citation omitted). The publication of the
defamatory statement must be unprivileged. Strada v. Conn. Newspapers, Inc., 193 Conn. 313,
316 (1984). Privileged communications fall into two categories: those protected by an absolute
privilege (i.e., nonactionable even if made with malice) and those protected by a qualified
privilege. See Khan v. Yale Univ., 347 Conn. 1, 49–50 (2023). “A qualified privilege protects
false statements that are not made maliciously.” Gallo v. Barile, 284 Conn. 459, 463 n.6 (2007).
“When considering whether a qualified privilege protects a defendant in a defamation case, the
court must resolve two inquiries[:] . . . whether the privilege applies, [and] . . . whether the
applicable privilege nevertheless has been defeated through its abuse . . . .” Gambardella v. Apple
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Health Care, Inc., 291 Conn. 620, 628 (2009) (internal citations omitted). Whether the privilege
applies is a question of law, while the issue of whether the applicable privilege has been defeated
through its abuse is a question of fact. Id.Connecticut’s lower courts “have traditionally placed the onus on the defendant to plead
and prove privilege” in light of the Connecticut Appellate Court’s “determination that privilege is
an affirmative defense in a defamation action . . . .” Shea v. City of Waterbury, No. CV085007926,
2009 WL 1057986, at *3 (Conn. Super. Ct. Feb. 20, 2009) (alteration adopted) (internal quotation
marks and citations omitted). However, where it is possible “to ascertain, on the face of the
pleadings [and] as a matter of law” that a privilege applies, a court may properly dismiss a claim
of defamation before the factual record is developed. Id. (collecting cases); see also Staehr v.
Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008) (“[A] defendant may raise an
affirmative defense in a pre-answer Rule 12(b)(6) motion if the defense appears on the face of the
complaint.” (citations omitted)).
As set forth below, it is apparent on the face of the amended complaint that Jackson Lewis
was protected by a qualified privilege to disseminate the allegedly defamatory statements to its
client and Egbujo’s attorney, and there are no allegations plausibly supporting an abuse of that
privilege. Therefore, because we conclude that the claim fails as a matter of law based on qualified
privilege, we need not address whether the district court erred in holding that the amended
complaint failed to properly allege that the statements contained in the reports were published to
third persons. See Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005) (“[W]e
may affirm on any ground supported by the record.” (internal quotation marks and citation
omitted)).
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The elements of qualified privilege are: “(1) an interest to be upheld, (2) a statement limited
in its scope to this purpose, (3) good faith, (4) a proper occasion, and (5) a publication in a proper
manner to proper parties only.” Miles v. Perry, 11 Conn. App. 584, 595 (Conn. App. Ct. 1987).
“A qualified privilege is appropriate when it ‘is based on a public policy that recognizes that it is
desirable that true information be given whenever it is reasonably necessary for the protection of
the actor’s own interests, the interests of a third person or certain interests of the public.’” Khan,
347 Conn. at 49–50 (alterations adopted) (quoting Gallo, 284 Conn. at 468 n.12).
Here, the written reports were shared by Jackson Lewis with the Hospital pursuant to the
Hospital’s valid interest in investigating allegations of sexual assault and learning about the results
of that investigation. The Connecticut Supreme Court has made clear that, although an
intracorporate communication may constitute a “publication” of a defamatory statement in some
circumstances, “communications between managers regarding the review of an employee’s job
performance and the preparation of documents regarding an employee’s termination are protected
by a qualified privilege.” Torosyan v. Boehringer Ingelheim Pharms., Inc., 234 Conn. 1, 27–29
(1995). Connecticut courts have similarly recognized the attorney-client relationship as a potential
“interest to be upheld” for purposes of qualified privilege. Pryor v. Brignole, No.
HHDCV156059311S, 2016 WL 1102508, at *4 (Conn. Super. Ct. Mar. 8, 2016). Therefore,
communications between an attorney (whether an in-house attorney or outside counsel) and his or
her corporate client regarding the results of an investigation of sexual harassment allegations by
its employee, including written reports of the investigation, are protected by the qualified privilege
under Connecticut law because “[s]uch communications and documents are necessary to effectuate
the interests of the employer in efficiently managing its business,” including its interest in properly
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investigating allegations of sexual harassment. Torosyan, 234 Conn. at 29; see also Khan, 347
Conn. at 51–52 (emphasizing the importance of encouraging victims of sexual assaults to report
their abuse in holding that a qualified privilege applies to statements made by individuals alleging
sexual assault to proper authorities at institutions of higher education); State v. AFSCME, Council
4, Loc. 391, 309 Conn. 519, 526 (2013) (“[T]here is a clear, well-defined and dominant policy
against sexual harassment in this state.”). As the district court correctly noted, “[t]he alternative
would chill the well-established public policy in favor of ‘full and frank communications between
attorneys and their clients’” and “would also interfere with the well-recognized public policy
against sexual harassment in the workplace.” Egbujo, 2022 WL 4585688, at *4 (quoting CFTC v.
Weintraub, 471 U.S. 343, 348 (1986) (additional citations omitted)).
These interests—in investigating allegations of sexual assault or harassment, in protecting
an organization from possible misconduct by an employee, and in maintaining a candid attorney-
client relationship—align here. The amended complaint concedes that Jackson Lewis’s written
reports, including the allegedly defamatory statements contained therein, were provided to the
Hospital in response to the Hospital’s request for an investigative report regarding the alleged
sexual assault by Egbujo of another medical resident. See App’x at 35 (“The administration of
Norwalk Hospital hired [Jackson Lewis] to investigate the accusations and report back to said
administration.”). Thus, based on the allegations in the amended complaint, any defamatory
statements that were transmitted from Jackson Lewis to the Hospital about Egbujo were contained
within investigatory reports that Jackson Lewis was retained to provide to its client, which is an
“interest to be upheld.” Miles, 11 Conn. App. at 595. Moreover, any defamatory statements
included in the written report shared with Egbujo’s attorney likewise served the interest of advising
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the employee of the results of the internal investigation conducted by Jackson Lewis with respect
to the accusations levelled against that employee. 1 In short, in this context, Jackson Lewis has
asserted “objective interest[s] sufficiently compelling to warrant protection of an otherwise
defamatory communication.” Bleich v. Ortiz, 196 Conn. 498, 501 (1985). Accordingly, a qualified
privilege applies under Connecticut law to communications made for these purposes.
“Because a qualified privilege is available to [Jackson Lewis], the question becomes
whether the privilege has been defeated.” Khan, 347 Conn. at 54–55. Thus, we must turn to the
remaining elements of the qualified privilege: whether the scope, occasion, and manner of
communication were proper; and whether the defendant acted with malice, an improper motive,
or bad faith. Miles, 11 Conn. App. at 595; see also Bleich, 196 Conn. at 501 (“The privilege is
defeated despite assertion of such an interest . . . if the defendant acts with an improper motive or
if the scope or manner of publication exceeds what is reasonably necessary to further the
interest.”); Gambardella, 291 Conn. at 633–34 (holding that a qualified privilege can be defeated
by malice, which includes “‘actual malice,’ namely, the publication of a false statement with actual
1
On appeal, Egbujo argues that his allegation that Jackson Lewis transmitted one of the reports to
“Plaintiff’s attorney” should be interpreted to allege that Jackson Lewis provided the report to Egbujo’s
current attorney, rather than to the attorney who represented him in the Hospital investigation. See
Appellant’s Br. at 15–16 (quoting App’x at 36). That distinction cannot be discerned from the vague
allegation in the amended complaint. See Figlomeni v. C.S.R. Getty, LLC, No. CV030479244S, 2003 WL
22708694, at *1 (Conn. Super. Ct. Nov. 3, 2003) (“Every favorable inference must be given to the complaint
subject to [a motion to strike a claim] but a court cannot create inferences from facts that are not alleged or
base inferences on conclusory allegations.”). In any event, there is no allegation that the law firm’s
provision of a copy of its investigative report to one of Egbujo’s attorneys was done with any purpose other
than to make Egbujo aware of the results of the internal investigation, and thus, that act fell within the scope
of the qualified privilege even if the report was sent to his current attorney, rather than the attorney in the
underlying Hospital investigation.
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knowledge of its falsity or reckless disregard for its truth, or ‘malice in fact,’ namely, the
publication of a false statement with bad faith or improper motive”).
In the instant case, the amended complaint contains no plausible allegation that Jackson
Lewis furnished copies of the reports to more recipients than were necessary to properly advise its
client and Egbujo of the results of the internal investigation. The amended complaint concedes
that “[i]t is uncertain whether the second report has been delivered to persons other than Norwalk
Hospital, its employees, and [Egbujo’s] attorney,” but then alleges on “information and belief”
that “other persons have seen the second report.” App’x at 36. However, Connecticut courts have
emphasized, with respect to a defamation claim, that “[a] complaint is insufficient to withstand
dismissal for failure to state a cause of action where . . . the complaint set forth no facts of any
kind indicating what defamatory statements, if any, were made, when they were made, or to whom
they might have been made.” Ramirez v. Costco Wholesale Corp., No. CV-116020832, 2012 WL
1959059, at *5 (Conn. Super. Ct. May 2, 2012) (internal quotation marks and citation omitted).
Thus, Egbujo’s vague and speculative allegation that the second report containing
defamatory statements was published to “other persons” beyond the group to whom the qualified
privilege attached is insufficient to overcome the privilege. See, e.g., Avitable v. 1 Burr Rd.
Operating Co. II, LLC, No. FSTCV095012806S, 2010 WL 2926242, at *9–10 (Conn. Super. Ct.
June 4, 2010) (striking defamation claim alleging merely that defendant “by and through its
employees/agents, made oral and written statements, which were published to third parties” but
“fail[ing] to allege the precise identity of the alleged . . . audience, and when these statements were
made”); Crosby v. HSBC N. Am. Holdings, Inc., No. CV065000378S, 2007 WL 1599848, at *10
(Conn. Super. Ct. May 16, 2007) (striking defamation claim alleging communication to “one or
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more employees of the corporate defendants” and stating that placement of statements in personnel
file allowed them, and would continue to allow them, “to be seen by third parties,” without naming
those third parties or indicating “when they had been made aware of the statements”). Egbujo
suggests that he will be able to identify those other persons in discovery and that there is “no
heightened pleading requirement” under Rule 8 of the Federal Rules of Civil Procedure that would
“justify dismissal of a defamation claim for lack of such particularity.” Appellant’s Br. at 14.
However, that argument “misconstrues the pleading requirements” because “a plaintiff must allege
facts supporting a plausible claim before being entitled to discovery and cannot hide behind broad
legal conclusions to satisfy the pleading requirements.” Melendez v. Sirius XM Radio, Inc., 50
F.4th 294, 307 (2d Cir. 2022); see also Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009) (“Rule 8
marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior
era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.”).
Moreover, the amended complaint is similarly deficient with respect to any allegation of
actual malice. To be sure, as the Connecticut Supreme Court has articulated, “if the plaintiff
sufficiently alleges with particular facts that the defendant acted with malice when making the
statement(s) at issue, at the motion to dismiss stage, the court must take those allegations as true,
and, therefore, the [qualified] privilege will be defeated at this stage of the proceedings.” Khan,
347 Conn. at 55. However, here, the amended complaint does not allege any particular facts to
plausibly establish that the qualified privilege was abused as a result of Jackson Lewis’s malice,
improper motive, or bad faith. See id. at 55 n.42 (explaining that “[c]onclusory allegations or legal
conclusions masquerading as factual conclusions will not suffice to [defeat] a motion to dismiss”
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(quoting Kirch v. Liberty Media Corp., 449 F.3d 388, 398 (2d Cir. 2006))). Nor did Egbujo suggest
in the district court or on appeal that he had more specific allegations that could be added to an
amended pleading with regard to any abuse of the privilege.
In sum, it is clear from the face of the amended complaint that a qualified privilege attaches
to the written reports regarding the results of the internal investigation provided by Jackson Lewis
to the Hospital and Egbujo’s attorney and that Egbujo has failed to allege any facts that would
plausibly support overcoming that privilege in this case. Accordingly, dismissal of the defamation
claim was warranted.
* * *
We have considered Egbujo’s 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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