Lawrence v. Altice USA

          RULING ON MOTION TO DISMISS, OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

          Stefan R. Underhill, United States District Judge.

         In this 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.

         I. Nature of the Motion

         This 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).

         In the 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).

         It is 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).

         I will 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.

         II. Standard of Review for Summary Judgment

         Summary 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).

         When 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).

         “Only 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.

         If the 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.

         III. Background

         A. Procedural History

         Lawrence, 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.^[1] Lawrence, at the second try, ^[2] 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.^[3] Both sides have submitted extrinsic evidence, and I have considered all of it that is relevant.

         B. Facts^[4]

         On 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.”

         At a 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.

         On 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, ...