Bellavia Blatt & Crossett, P.C. v. Kel & Partners LLC

151 F. Supp. 3d 287, 2015 U.S. Dist. LEXIS 168325, 2015 WL 8941120
CourtDistrict Court, E.D. New York
DecidedDecember 16, 2015
DocketNO. 15-CV-1478 (JFB)(GRB)
StatusPublished
Cited by17 cases

This text of 151 F. Supp. 3d 287 (Bellavia Blatt & Crossett, P.C. v. Kel & Partners LLC) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bellavia Blatt & Crossett, P.C. v. Kel & Partners LLC, 151 F. Supp. 3d 287, 2015 U.S. Dist. LEXIS 168325, 2015 WL 8941120 (E.D.N.Y. 2015).

Opinion

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Plaintiff Bellavia Blatt & Crossett, P.C. (“plaintiff’) brings this action in diversity against defendants Kel & Partners LLC d/b/a Kel & Partners and Kel Kelly (“Kelly”) (collectively, “defendants”), asserting a claim of defamation under.New York state common law. Specifically, plaintiff alleges that defendants defamed plaintiff by posting a comment to an Automotive News webpage.

Defendants moved to dismiss plaintiffs cause of action for failure to state a claim under Rule 12(b)(6). At oral argument, this Court notified the parties that it was converting the motion to dismiss to a Rule 56 motion for summary judgment to consider certain evidence from the internet site submitted .by defendants. Plaintiffs counsel advised the Court that plaintiff did not wish to conduct , any discovery on. that issue or submit any evidence. For the reasons set forth below, defendants’ motion is granted in its entirety and the .case is dismissed.

I. Background

A. Facts

For purposes of the motion for summary judgment, the Court has taken the facts described below from the complaint (“Compl.”) and from the exhibits submitted in connection with the pending motion. Upon consideration of a motion for summary judgment, the Court construes the facts in the light - most favorable to plaintiff, the nonmoving party. See Capobianco v. City of N.Y., 422 F.3d 47, 50 n. 1 (2d Cir.2005).

Plaintiff is a law firm that represents franchised or licensed automobile and marine dealerships in an assortment of legal matters.’ (ComplV 7.) Defendant Kel & Partners LLC is a public relations firm and defendant Kel Kelly is a manager of the firm. ' (Compl.lfii 12-13.) TrueCar, Inc. is a corporation that assists consumers in purchasing automobiles. (ComplV 14.) Kel & Partners was retained by TrueCar to provide public relations services. (ComplA 16.)

On or about March 9, 2015, plaintiff, on behalf of 117 of its automotive dealership clients, commenced a lawsuit against True-Car in the United States District Court for the Southern District of New York entitled Dependable Sales and Services, Inc. et al v. True Car, Inc., 15-CV-1742 (“True Car lawsuit”). " (Compl. V 20.) The True Car [290]*290lawsuit , asserted . claims for, inter alia, false advertising and unfair competition under federal and state law. (CompLl 21.)

On or about March 9, 2015, the date that the True Car lawsuit was filed, an industry-publication entitled Automotive ■' News posted an article describing and summarizing the lawsuit. (Comply 23.) At the bottom of the article,- Automotive News wrote: “Have an opinion about this story? Click here to submit a Letter to the Editor, and we may publish it in print. Or submit an online comment below.” (Def.’s Mem. Ex. A, Article and Comment Thread, at 6.) At the time that the motion was filed, 117 comments were submitted online in response to the story. (Id.) On March 10, 2015, Kelly posted the following comment:

It is sadly becoming true that in order to be genuinely successful in modern business you must, at some point, become the target of fraudulent litigation. It’s a reality that anyone in America can sue for any reason. The law firm behind this suit has a reputation for making a living by opportunistically attempting to sue others. Word of the street is they have been attempting to induce dealers to join this lawsuit for quite some time with the misleading promise of millions in reward. Additionally what is. being whispered throughout the auto industry is that participating dealers must pay thousands of dollars to participate and the claims are just a fishing exercise____

(ComplJ 25.)

Others replied to Kelly’s post, both positively and negatively, and individuals voiced a variety of opinions regarding the automotive industry and the lawsuit, among other topics. (Ex. A, at 6-21.)

B. Procedural History

On March 20, 2015, plaintiff filed the instant action. Defendants filed their motion to dismiss on August 3, 2015. Plaintiff filed its response- on October 2, 2015, and defendants filed their reply on October 23, 2015. Oral argument was held on November 9, 2015.

Defendants’ submissions on the motion to dismiss attached several exhibits including the entire Automotive News article and accompanying comment thread. In its opposition brief, plaintiff argued that “[t]he statements of other posters may not be considered by the Court in the context of this motion to dismiss, and should be disregarded.” (Pl.’s Opp. at 10.) In response, defendants- cited several cases, including Brahms v. Carver, 33 F.Supp.3d 192 (E.D.N.Y.2014), for the proposition that “courts deciding motions to dismiss based on statements made in Internet debates routinely examine the comments made by non-party participants in that debate.” (Def.’s Reply at 7.) The Court agrees with defendants that “[a] court may consider on a Rule 12(b) motion, in addition to the pleading itself, documents that are annexed to or referenced in the complaint [and] documents that the plaintiff relied on in bringing suit.”' Brahms, 33 F.Supp.3d at 197 (citing Chambers v. Time Warner, 282 F.3d 147, 152-153 (2d Cir. 2002)); see also Holowecki v. Fed. Express Corp., 440 F.3d 558, 565-66 (2d Cir.2006) (“ ‘[W]hen a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it' solely relies and which is integral to the complaint, the court may nevertheless take the document into consideration in deciding the defendant’s motion to dismiss, without converting the proceeding to one for summary judgment,’ ”) (alteration in original) (quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.1995)). However, in an abundance of caution, at oral argument, the Court gave plaintiff notice that it was converting the [291]*291motion to dismiss into a motion for summary judgement under Rule 56 so that the Court could consider the context and'-surrounding circumstances of the Automotive Neios website in analyzing the defamation claim.

When materials are submitted on a motion to dismiss that are outside of the pleadings, the Court has discretion to either exclude these materials or convert the motion to dismiss into a motion for summary judgment. See Chambers v. Time Warner, Inc., 282 F.3d 147, 154 (2d Cir.2002); see also Carione v. United States,

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151 F. Supp. 3d 287, 2015 U.S. Dist. LEXIS 168325, 2015 WL 8941120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bellavia-blatt-crossett-pc-v-kel-partners-llc-nyed-2015.