United States District Court, D. Connecticut
RULING ON MOTION TO DISMISS, OR, IN THE ALTERNATIVE,
FOR SUMMARY JUDGMENT
R. Underhill, United States District Judge.
case, Altice USA (“Altice”) moves to dismiss
James Lawrence's (“Lawrence”) amended
complaint, or in the alternative, for summary judgment.
Lawrence's amended complaint alleges, essentially, that
Altice defamed him when it referred to him as a
“stalker” in a series of television and print
news reports. On December 19, 2019, I held a hearing in this
matter and took the instant motion under advisement. I now
grant Altice's motion for summary
judgment because the statements at issue are substantially
true and are not defamatory.
Nature of the Motion
motion was styled as one to dismiss, or, in the alternative,
for summary judgment. A Rule 12(b)(6) motion to dismiss is
confined to the pleadings; if “matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56.” Fed.R.Civ.P. 12(d). “All parties must be
given a reasonable opportunity to present all the material
that is pertinent to the motion.” Id. The
major harm of considering extrinsic materials on a Rule
12(b)(6) motion is “the lack of notice that the
material may be considered.” Chambers v. Time
Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (citing
Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d
42, 48 (2d Cir. 1991)). When the plaintiff “has actual
notice of all the information in the movant's papers and
has relied upon these documents in framing the complaint[, ]
the necessity of translating a Rule 12(b)(6) motion into one
under Rule 56 is largely dissipated.” See Id.
(internal quotation marks and citation omitted).
Second Circuit, a court may consider extrinsic materials on a
Rule 12(b)(6) motion without converting it to a Rule 56
motion if the materials are either (1) integral to the
complaint, or (2) facts appropriate for judicial notice.
See Global Network Commc'ns, Inc. v. City of New
York, 458 F.3d 150, 156 (2d Cir. 2006). For materials to
be “integral” to a complaint, the plaintiff must
have relied on those materials in drafting the complaint; it
is not enough that the plaintiff had mere notice or
possession of them. See Id. (citing
Chambers, 282 F.3d at 152-53). Courts may take
judicial notice of facts “not subject to reasonable
dispute” either because they are generally known in the
relevant community or “can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned.” Fed.R.Evid. 201(b).
an open question in the Second Circuit whether courts can
take judicial notice of police incident reports, but it seems
that many courts refrain from doing so. See, e.g.,
Alvarez v. County of Orange, N.Y., 95 F.Supp.3d 385,
398 (S.D.N.Y. 2015); Bejaoui v. City of New York,
2015 WL 1529633, at *6 (E.D.N.Y. Mar. 21, 2015); Serrata
v. Givens, 2019 WL 1597297, at *4 (E.D.N.Y. Apr. 15,
2019). A court may take judicial notice of recordings,
articles, and transcripts when a plaintiff in a defamation
action either submits them or clearly relies on them and if
taking them into account would not create unfairness to
either party. See, e.g., Condit v. Dunne,
317 F.Supp.2d 344, 357-58 (S.D.N.Y. 2004) (all three);
Goldman v. Barrett, 2017 WL 4334011, at *2 n.4
(S.D.N.Y. July 25, 2017) (article); Murawski v.
Pataki, 514 F.Supp.2d 577, 589 (S.D.N.Y. 2007) (article,
even when submitted by defendants).
treat the instant motion as one for summary judgment.
Although I believe, under the foregoing standards, I could
take into consideration some of Altice's submissions
without converting this motion into one for summary judgment,
I will not do so. For one, at the hearing I held on December
19, 2019, Lawrence requested that I treat this motion as one
for summary judgment, and Altice did not object. In addition,
Lawrence has submitted evidence that fairness dictates I
consider. Thus, I will treat this motion as one for summary
judgment and take into consideration all the evidence that
has been presented.
Standard of Review for Summary Judgment
judgment is appropriate when the record demonstrates that
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff
must present affirmative evidence in order to defeat a
properly supported motion for summary judgment).
ruling on a summary judgment motion, the court must construe
the facts of record in the light most favorable to the
nonmoving party and must resolve all ambiguities and draw all
reasonable inferences against the moving party.
Anderson, 477 U.S. at 255; Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Adickes v. S.H. Kress & Co., 398 U.S.
144, 158-59 (1970); see also Aldrich v. Randolph Cent.
Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (court is
required to “resolve all ambiguities and draw all
inferences in favor of the nonmoving party”). When a
motion for summary judgment is properly supported by
documentary and testimonial evidence, however, the nonmoving
party may not rest upon the mere allegations or denials of
the pleadings but must present sufficient probative evidence
to establish a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986); Colon v.
Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
when reasonable minds could not differ as to the import of
the evidence is summary judgment proper.” Bryant v.
Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see
also Suburban Propane v. Proctor Gas, Inc., 953
F.2d 780, 788 (2d Cir. 1992). If the nonmoving party submits
evidence that is “merely colorable, ” or is not
“significantly probative, ” summary judgment may
be granted. Anderson, 477 U.S. at 249-50.
The mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact. As to materiality, the
substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.
Id. at 247-48. To present a “genuine”
issue of material fact, there must be contradictory evidence
“such that a reasonable jury could return a verdict for
the non-moving party.” Id. at 248.
nonmoving party has failed to make a sufficient showing on an
essential element of his case with respect to which he has
the burden of proof at trial, then summary judgment is
appropriate. Celotex, 477 U.S. at 322. In such a
situation, “there can be ‘no genuine issue as to
any material fact,' since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at 322-23; accord Goenaga v. March of Dimes
Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995)
(movant's burden satisfied if he can point to an absence
of evidence to support an essential element of nonmoving
party's claim). In short, if there is no genuine issue of
material fact, summary judgment may enter. Celotex,
477 U.S. at 323.
proceeding pro se, filed a complaint for defamation
against Altice on November 28, 2018. Compl., Doc. No. 1.
Lawrence alleged both slander and libel. Id. at
9-10. Lawrence claimed that one of Altice's
subsidiaries-News 12 Connecticut (“News 12”)-
broadcast television segments and published online articles
that defamed him in various ways. See Id. at 7-8
(listing six ways). Altice made a motion to dismiss the
complaint on December 21, 2018. See Mot. to Dismiss,
Doc. No. 12. At a hearing on Altice's motion to dismiss
on May 9, 2019, I granted Altice's motion in substantial
part but denied it with respect to one aspect of
Lawrence's defamation claim: that News 12's use of
the word “stalker” in its reports inaccurately
portrayed Lawrence, who was in fact arrested on a breach of
peace charge. See Min. Entry, Doc. No. 30. I granted
Lawrence leave to file an amended complaint that addressed
only the “stalking” issue and fixed a
jurisdictional defect in his initial pleading. Lawrence, at the
second try,  filed an amended complaint. See
Am. Compl., Doc. No. 36. Lawrence's amended complaint
attempted to address the jurisdictional defect but did not
narrow his allegations in any meaningful way. Altice made a
motion to dismiss, or, in the alternative, for summary
judgment. See Mot. to Dismiss, or for Summ. J.
(“Mot. for Summ. J.”), Doc. No. 39. Lawrence has
filed numerous responses, see, e.g., Doc. Nos. 40,
41, 42, 45, 47, 48, 49, 51, 53, 56, 59, 60. Many of those
responses are essentially duplicative of-and reference-his
earlier responses. See Doc. Nos. 20, 26, 29. The
Defendants have filed a reply, see Doc. No. 44, and
a sur-reply, see Doc. No. 52-1. Both sides have
submitted extrinsic evidence, and I have considered all of it
that is relevant.
November 5, 2017, Lawrence began following a woman inside a
Fresh Market grocery store in Westport and then followed her
into the parking lot and to her car. See Def.'s
Local Rule 56(a)(1) Stmnt (“56(a)(1) Stmnt”),
Doc. No. 39-2, at ¶ 2. Lawrence's actions made the
woman sufficiently uncomfortable that she called the Westport
Police Department (“WPD”). See Id. By
the time a WPD officer arrived at the Fresh Market, Lawrence
was gone, but the store manager told the officer that
Lawrence had been involved in similar incidents before.
See Id. at ¶ 3. Later that day, the store
manager called the police to return to Fresh Market because
Lawrence had come back to return a $100 bill he said he found
on the ground in the store. See Id. at ¶ 4. The
officer returned and spoke with Lawrence, who explained that
he had approached the woman's car to ask if the $100 bill
was hers. See Id. Lawrence “became very
agitated” when the officer asked Lawrence why-if he
found money on the ground and was trying to return it-he left
the store with the money and then returned with it later.
See Id. The officer believed, in fact, that Lawrence
left Fresh Market to retrieve a $100 bill, and then returned
to the grocery store so that he had a cover story. See
Id. at ¶ 6. I refer to this incident throughout as
the “November 5 Incident.”
later date, the officer investigated Lawrence and found a
lengthy history of similar incidents with the WPD, including
“10 case incidents logged from 2002 [until]
present” where Lawrence “was seen following the
complainants around a store or coffee shop and then following
them out to their cars where he would either stare at them or
get right into their personal space.” See Id.
The officer also learned that many more similar incidents had
not been reported to the police. See Id. at ¶
7. Further, the officer learned that there was a current
protective order in effect against Lawrence. See id.
at ¶ 5. In addition, the officer learned that Lawrence
had an arrest record in Florida (resisting arrest,
fleeing/eluding police) and California (petty theft, theft of
personal property, stalking, inflicting corporal injury to
spouse, battery of spouse). See id. at ¶ 8.
March 5, 2018, Lawrence was arrested for breach of peace in
the second degree for his role in the November 5 Incident.
See Id. at ¶ 1 (citing Conn. Gen. Stat. §
53a-181). Lawrence was arraigned on the same charge on March
14. See Id. The same day, a News 12 reporter
interviewed Lawrence at his house, and Lawrence told the
reporter that he did nothing wrong. Am. Compl., Doc. No. 36,
at 1. News 12 reported the story of Lawrence's arrest on
its television broadcast as well as online throughout March
14 and 15. 56(a)(1) Stmnt, ...