Oakley v. Dolan

• Court: District Court, S.D. New York
• Decided: February 19, 2020
• Docket: 1:17-cv-06903
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK [fo] Te | USDS SDNY No. 17-cv-6903 (RJS) | {| DOCUMENT tt {| ELECTRONICALLY FILED iy. ye □ CHARLES OAKLEY, jo on □□□□ | DATE FILED: éoag FY Plaintiff,

VERSUS JAMES DOLAN ET AL., Defendants.

OPINION AND ORDER February 19, 2020

RICHARD J. SULLIVAN, Circuit Judge: Plaintiff Charles Oakley brings this I. BACKGROUND action against MSG Networks, Inc., The ' Madison Square Garden Company, and A. Facts MSG BP ore & EintenteInntertt,. Lhe As any basketball fan knows, Oakley is a (collectively, the “MSG Defendants”), and ; former NBA All-Star power forward who James Dolan, alleging claims for : : defamati it hati fal played for the New York Knicks from 1988 ceramatyon, ——_assaunt, palerys aise to 1998. (Am. Compl. 46, 14, 15.) Dolan imprisonment, abuse of process, and denial of a public accommodation in violation of New York state law, and denial of a public ' The following facts are taken from the Amended accommodation in violation of the Complaint, filed on February 9, 2018 (Doc. No. 36 Americans with Disabilities Act (42 U.S.C. ae ee or “om. Compl) and the “6 ” video footage of Dolan’s The Michael Kay Show 4) ( AD a ): ae ae me interview (Doc. No. 43 Ex. 6 (“Dolan Interview”)), OUEL 18 DORTEA ants mOuGH $0: GISHAISS ‘the which was incorporated therein by reference. See Amended Complaint for failure to state a ATSI Comme'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d claim upon which relief can be granted 87, 98 (2d Cir. 2007). In ruling on Defendants’ under Federal Rule of Civil Procedure motion, the Court has also considered Defendants’ : memorandum of law (Doc. No. 42 (“Mem.”)), "pea PoE the ae neasONs, Plaintiff's opposition (Doc. No, 50 (“Opp’n”)), and efendants’ motion Is . Defendants’ reply (Doc. No. 54 (“Reply”)).

is the Executive Chairman of the MSG “push[ing] their hands away,” whereupon Defendants, which own and _ operate six guards grabbed him and threw him to the Madison Square Garden (“the Garden”) and ground. (/d. 946-47.) The guards then the Knicks. (Ud. 2, 7-10.) Although restrained him, escorted him out of the Oakley asserts that he never met Dolan until Garden, and delivered him to police officers, long after his playing days had ended, he who arrested him and charged him with alleges that Dolan harbored animosity assault. (Id. 79 49, 51, 123.) toward him, “constantly disrespect[ing] . [him]” and “even having security harass Following the February 8 incident, him” “[w]ithout any justification” when he Defendants made a series of statements that attended Knicks games. (Jd. § 2; see also id. Oakley alleges were defamatory. First, on q 23, 26-28.) the night of the incident, the Knicks public relations Twitter account, @NY_KnicksPR, Things came to a head on February 8, which is owned and operated by Defendants, 2017, when Oakley attended a Knicks game tweeted that Oakley: at the Garden against the Los Angeles . . Clippers. (Id. §30.) Oakley insists that he behaved in a highly Inappropriate was “neither intoxicated nor otherwise and completely abusive manner. He behaving inappropriately” when he arrived has been ejected and is currently at the Garden (id. 31), and that he took his being arrested by the New York City seat, “coincidentally” located several rows Police Department. He was a great behind where Dolan was sitting, without Knick and we hope he gets some fanfare (id. § 32). However, a few minutes help soon. after Oakley sat down, three men identifying (Id. 458.) Second, on February 9; themselves as members of the Garden’s ; ; ‘ @NY_KnicksPR tweeted: security team approached him and asked him to leave the arena, (Id. 34.) Oakley There are dozens of security staff, claims he asked the guards why he was employees and NYPD that witnessed being asked to leave, only to have one of the Oakley’s abusive behavior. It started guards respond: “Why are you sitting so when he entered the building and close to Mr. Dolan?” (dd. { 35.) continued until he was arrested and Oakley acknowledges that he did not oe eee ve dn mnrhediately eomply wll ae guards: consistent in describing his actions. request, instead attempting to explain that Everything he said since the incident “he had done nothing wrong and simply is pure-fiction wanted to watch the game in peace.” (dd. , 437.) He then “turn[ed] around” and (Id. J 62.) “return[ed] to his seat.” (/d. 40.) As he did so, two of the guards grabbed him, Third, on February 10, Dolan appeared pushed him to the ground, and demanded on ESPN Radio’s The Michael Kay Show that he leave the Garden “immediately.” and made a number of statements about (Id. 442, 44.) Once back on his feet, Oakley and the February 8 incident, Oakley continued to ask why he was being including the following: ejected from the Garden, at which point the xs pect . guards again attempted to force him from ° “T think the most important thing the arena. (Id. 445.) Oakley responded by with that is that we need to keep

the Garden a _ place that’s e “We'll probably hear chants comfortable and safe for tonight in support of Mr. Oakley, everybody who goes there. So but I would like...those same anybody who comes to the people to look around and look at Garden, whether they’ve been the people who are working at drinking too much alcohol, Madison Square Garden, and they’re looking for a fight, understand that the person that they’re abusive, disrespectful to they’re chanting for may have the staff and the fans, they’re been a great Knick player, but he going to be ejected and they’re was terribly abusive to those going to be banned.” same people who are there to help them.” e “To me, I think that Charles has got a problem. I’ve said this e “There were security people before, we’ve said it before. We there who were abused. There said it one time that he’s his own were service people there who worst problem. He has a were abused. The same people problem. People need to sort of that the fans who come to the understand that. He has a game tonight, who are going to problem with anger. He’s both help those fans find their seats, physically and verbally abusive. get them food, try and make He may have a problem with them comfortable, they were alcohol, we don’t know, right.” abused. And abused not — in a really horrible, angry, nasty way. e “We know that he talked about With racially — with racial on TV that he was drinking overtones, sexual overtones. The beforehand. We've heard stuff you never ever want to hear. statements from some of the How do you bring your kids to a police and security that he game if you think that’s going to appeared to be impaired, ef happen?” cetera. Yes, they clearly, our staff... could see that.” e “Tt’s very clear to us that Charles Oakley came to the Garden with e “When you have issues like this, an agenda, with a mission in the first step for anybody is to mind and from the moment he ask for help.” stepped into the Garden, and I e “The No. | concern always has Casa Oe iets ie “walle through the first set of doors, he to be the safety and the comfort began with this behavior. ofthe fans. Abusive behavior, disrespectful ———— behavior. Stuff that I don’t think 2 Where there are discrepancies between the you...want to say on the Amended Complaint and the original sources on . os which it relies, the Court quotes the latter, which are radio. ... And it just accelerated incorporated by reference into the Amended and accelerated and accelerated, Complaint. ‘The oral statements printed here have all the way down to his seats, and also been cleaned up to remove filler words (e.g., then ultimately with a “uh,” “um,” “you know”). confrontation with security, and

eventually ending up with his to dismiss. (Doc. No. 51 Ex. 1.) In light of being ejected and arrested... . I the discussions at that conference and mean I’m not inside of Charles Oakley’s voluntary withdrawal of his Oakley’s mind. He did say a NYCHRL claim, Oakley filed an Amended bunch of things along the way Complaint on February 9, 2018 that that looked like he was headed in included an additional claim for defamation my direction. I didn’t hear them per quod but was otherwise substantially myself but we heard from our similar to the original Complaint. (Am. employees ef cetera that he was Compl. ff 94-148.) using my name a lot. But this isn’t because I’m nervous. This On March 5, 2018, the Court granted is because you can’t do what he Defendants’ request to stay discovery did and stay. We clearly did not pending the disposition of Defendants’ — we weren’t perfect here, and 1 motion to dismiss the Amended Complaint. think that Charles never should (Doc. No. 38.) Defendants filed their have made it to his seats. That’s motion to dismiss on March 30, 2018, on us. We’re doing things to asserting that Oakley had failed to state a remedy that. To make sure that claim for which relief can be granted under doesn’t happen again with Rule 12(b)(6). (Doc. No. 41.) Oakley filed anybody.” his opposition brief on May 24, 2018 (Doc. No. 50), and Defendants filed their reply (Id. {§] 68-73; Dolan Interview.) brief on June 11, 2018 (Doc. No. 54). Oakley thereafter submitted a series of B. Procedural History letters to the Court — on March 13, 2019 On September 12, 2017, Oakley filed the (Doc. No. 56), July 29, 2019 (Doe. No. 58), ie i : 5 and November 15, 2019 (Doc. No. 63) — original Complaint in this action against . ez “3 Dolan and the MSG Defendants, asserting selsing forth additional aii rites anid eats New York state law claims of defamation — it Opposition to the motion t cians including defamation per se, libel, and Defendants OF onded to each letter with dade — ssontl battery false submissions of their own on March 13, 2019 ° (Doc. No. 57), July 30, 2019 (Doc. No. 59), imprisonment, abuse of process, and denial dN ber 18. 2019 (Doc, No. 64). I of a public accommodation in violation of SEE ao iat Sis □□ the New York State Human Rights Law September 2019 and January 2020, 2 abley a ai also requested that the Court lift the (N.Y. Exec. L. § 290 et seq.) (““NYSHRL”) : ts split and the New York City Human Rights Law Se natn ae in this foie on Nos (N.Y.C. Admin. Code § 8-101 ef seq.) ay which the Court denied (Doc. Nos. 62, (“NYCHRL”). He also alleged a federal , claim of denial of public accommodation in Il. LEGAL STANDARD violation of the ADA.*? (Doc. No. 1.) The Court held a conference on January 12, 2018 To withstand a motion to dismiss under to discuss Defendants’ contemplated motion Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must “provide the Re bathe od Flee epee grounds upon which [the] claim rests.” The libel, assault, battery, and false imprisonment ATSI Commc’ns, 493 F.3d at 98; see also claims were brought only against the MSG . ‘ Defendants, whereas the remainder of the claims Fed. R. Civ. P. 8(a)(2) (CA pleading that were asserted against all Defendants. states a claim for relief must contain...a

short and plain statement of the claim reference, the court may nevertheless showing that the pleader is entitled to consider it where the complaint ‘relies relief....”). To meet this standard, a heavily upon [it],’ thereby rendering [it] plaintiff must allege “enough facts to state a ‘integral’ to the complaint.” Jd. (quoting claim to relief that is plausible on its face.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d Bell Atl. Corp. v. Twombly, 550 U.S. 544, 104, 111 (2d Cir. 2010)). A “necessary 570 (2007). “A claim has facial plausibility prerequisite” for taking into account when the plaintiff pleads factual content that materials extraneous to the complaint “is allows the court to draw the reasonable that the ‘plaintiff rely onthe... [item] in inference that the defendant is liable for the drafting the complaint; mere notice or misconduct alleged.” Ashcroft v. Iqbal, 556 possession is not enough.’” Jd at 231 U.S. 662, 678 (2009). (quoting Global Network Comme’ns, Inc. v. City of New York, 458 F.3d 150, 156 (2d In reviewing a Rule 12(6)(6) motion to Cir. 2006) (alterations omitted)). “[I]f dismiss, a court must accept as true all material is not integral to or otherwise factual allegations in the complaint and draw incorporated in the complaint, it may not be all reasonable inferences in favor of the considered unless the mation to disiniss is plaintiff. ATST Comme’ns, 493 F.3d at 98. converted to a motion for summary That tenet, however, “is inapplicable to legal judgment and all parties are ‘given a conclusions.” Iqbal, 556 U.S. at 678. Thus, reasonable opportunity to present all the a pleading that offers only “labels and material that is pertinent to the motion.”” Jd. conclusions” or “a formulaic recitation of (quoting Fed. R. Civ. P. 12(d)). The Court the elements of a cause of action will not may also consider “matters of which judicial do.” Twombly, 550 U.S. at 555. If the notice may be taken,” Brass v. Am. Film plaintiff “ha[s] not nudged [its] claims Techs., Inc., 987 F.2d 142, 150 (2d Cir. across the line from conceivable to 1993), namely, facts that are “not subject to plausible, [its] complaint must be reasonable dispute because” they “(1) [are] dismissed.” Jd. at 570. generally known within the trial court’s IIL DIESuEsION territorial jurisdiction; or (2) can accurately and readily determined from A. Extrinsic Evidence sources whose accuracy cannot reasonably be questioned,” Fed. R. Evid. 201. As an initial matter, the Court must first address Defendants’ request that it consider Defendants urge the Court to consider extrinsic evidence outside the Amended “certain highly relevant extrinsic evidence” Complaint in analyzing the motion to in ruling on the motion to dismiss, including dismiss. (1) video footage — from a variety of sources — of the February 8 incident at the Garden, A complaint “is deemed to include any (2) video footage of Dolan’s February 10 written instrument attached to it as an appearance on The Michael Kay Show, exhibit or any statements or documents (3) documents from Oakley’s New York incorporated in it by reference.” Nicosia v. state criminal case and other unrelated civil Amazon.com, Inc., 834 F.3d 220, 230 (2d court proceedings commenced by Oakley Cir. 2016) (quoting Chambers v. Time against third parties, and (4) information Warner, Inc., 282 F.3d 147, 152 (2d Cir. posted on the website of the Rebound 2002)). “Where a document [or other Institute (a drug and alcohol rehabilitation extrinsic evidence] is not incorporated by clinic), Oakley’s website

“oakleyinthekitchen.com,” and Twitter. them, much less relied upon them in drafting (Am. Compl. 9] 92-93; Mem. at 12-15.) the complaint”). For the reasons set forth below, the Court determines that, aside from the video of The Court further declines to take Dolan’s February 10 appearance on The judicial notice of the video footage. The Michael Kay Show — which is expressly videos do not represent facts | that are referenced in and relied upon by the generally well known within this Court's Amended Complaint — the Court will not territorial jurisdiction, and since the videos consider any of the extrinsic evidence in have not been authenticated, their accuracy examining Defendants’ motion to dismiss. cannot reasonably be assumed at this stage The Court likewise declines to take judicial of the proceedings. See, e.g., Harasz v. notice of these materials. orn 239 F. Supp. 3d 461, 474 (D. Conn. 1. Video Footage of the February 8 Incident 2. Video Footage of Dolan’s February 10 Defendants contend that the Court Interview on The Michael Kay Show should consider video footage of the February 8 incident “because it is objective, Defendants likewise assert that the Court dispositive, and the best evidence of the may examine a video of Dolan’s appearance event at issue.” (Mem. at 13.) They on The Michael Kay Show because “Oakley maintain that Oakley had access to the relies on and quotes extensively from that internal Madison Square Garden arena interview in [his] Amended Complaint.” camera footage and other publicly available (Mem. at 14.) The Court agrees. Dolan’s video, so the Court’s consideration of those statements from The Michael Kay Show are videos would “pose[] no surprise or expressly referenced in the Amended prejudice to Oakley.” (Jd. at 13-14.) Complaint and are the very defamatory However, Defendants fail to satisfy the statements on which Oakley is proceeding. necessary requirements for this Court to In a defamation case, the Court must analyze consider the video footage as extrinsic the allegedly defamatory statements in total evidence at the motion to dismiss stage. and in context. See Elias v. Rolling Stone Oakley does not incorporate the video LLC, 872 F.3d 97, 109 (2d Cir. 2017). footage by reference in his Amended Oakley selectively quotes from Dolan’s Complaint, nor does he imply that the Interview 1n the Amended Complaint, footage was integral to that complaint. See, providing snippets of Dolan’s remarks but e.g., Marlin y. City of New York, No. 15-cv- eliding the full context in which those 2235 (CM), 2016 WL 4939371, at *8 statements were uttered. (See Am. Compl. (S.D.N.Y. Sept. 7, 2016) (refusing to 1768-73.) That context may affect the consider video clips at the motion to dismiss meaning of Dolan’s statements. Therefore, stage because they were not integral to the the Court is free to consider the video of complaint nor did the complaint reference Dolan’s appearance on The Michael Kay them); Gersbacher v. City of New York, 134 Show. See Edwards v. Raymond, 22 F. F. Supp. 3d 711, 719 (S.D.N.Y. 2015) Supp. 3d 293, 297 (S.D.N.Y. 2014) (declining to consider video of arrest at the (considering recording not attached to motion to dismiss stage where plaintiff “may complaint but on which plaintiff “clearly have been aware that his arrest was filmed, relied” in filing suit). but... nothing... indicate[d] that he had seen the videos prior to Defendants raising

3. Documents from Oakley’s New York with police security...and then State Criminal Case and Other brought suits against the very police officers Proceedings and security guards who were the victims of Defendant + ask the Court ¢ his abuse,” alleging that he is “abusing the consider (1) the criminal complaint ‘in the a tions □□ seat "ld a 5 New York state case related to the February Obviously, Oakley’s credibility and 8 incident, (2) a notice of trespass signed by motivations in bringing suit are not relevant oe ee as part on a motion to dismiss, for which the factual € plea disposition in that case, an allegations are presumed to be true. See (3) pleadings Oakley has filed in prior civil Bie v. WY. ee Co., 940 F.3d 804, 812 cases “in connection with his prior physical (2d Cir. 2019) (holding that the district court altercations with he a □ The erred in making credibility determinations aw enforcement. em. a . Se □ sat Court declines this request. Oakley does not on a motion to dismiss). remotely reference the criminal complaint, The Court therefore rejects Defendants’ trespass notice, or pleadings in prior civil request to consider the criminal complaint, cases in the Amended Complaint, let alone trespass notice, and pleadings Oakley has rely on those documents such that they are filed in prior civil cases. integral to the complaint. See, eg., □ . . McLennon v. City of New York, 171 F. Supp. 4. Information Published on Public 3d 69, 90 (E.D.N.Y. 2016) (refusing to Websites consider “documents related to [the Defendants finally request that the Court plaintiff's] criminal case” where they were tales Exticlal-noiivs uteansau wosiines— on not “incorporated by reference” into the a jue ee conan Posnns complaint). Furthermore, although a court = aie ate ceed may take judicial notice of documents from coh ne vnstitecmn ss ha Twite. other proceedings “to establish the fact of dias lope ly aha A light on Oakley’s such litigation and related filings,” it may ; ots . not do so “for the truth of the matters relationship with the Rebound Institute and asserted in the other litigation.” Kramer v. ion ip te tha. oe special Sama. Time Warner Inc., 937 F.2d 767, 74 (2d (ulema, at TS) The Canet ReGines 1 ake Cir, 1991). judicial notice of this information. As Oakley notes, the materials have not been While Oakley’s pleadings in prior civil properly authenticated (Opp’n at 18), and cases he commenced against unrelated third Defendants do not explain why □ the parties do “constitute the admissions of a materials’ asserted inconsistency with the party-opponent” and therefore may be Amended Complaint renders them admissible evidence in this case, see United competent evidence that must be considered States v. McKeon, 738 F.2d 26, 31 (2d Cir. at the motion to dismiss stage instead of on a 1984), Defendants seek to use this evidence motion for summary judgment or at trial to demonstrate Oakley’s “recidivist history” (Mem. at 15). See, e.g., Moukengeschaie v. (Mem. at 15) and to show that “this is not Eltman, Eltman & Cooper, P.C., No.14-cv- the first time Oakley has misbehaved and 7539 (MKB), 2016 WL 1274541, at *13 then resorted to litigation as cover for his n.13 (E.D.N.Y. Mar. 31, 2016); Galley own misconduct” (id. at 4), Defendants Schuler v. Rainforest All., Inc., No. 14-cv- insist that Oakley “has repeatedly clashed

226 (CR), 2016 WL 10516026, at *2 (D. Vt. at 266. “Whether particular words are Feb. 10, 2016). defamatory presents a legal question to be << * # resolved by the court in the first instance.” Aronson v, Wiersma, 483 N.E.2d 1138, 1139 For all these reasons, the Court will not (hs. Lae). It's plaintitt un a detatiation consider the extrinsic evidence Defendants Sunt Ia public officer ar p 9 Tigure, the ; plaintiff must show actual malice on the part proffer, except for the video of Dolan’s f th k blish See Curti February 10 appearance on The Michael Kay ° ie BPeARer Or PUBMAET, Mee Cun Show. Publ’g Co. v. Butts, 388 U.S. 130, 155 (1967). Bs Meson to Dismiss In broad strokes, Oakley alleges that Oakley claims that he was defamed by Defendants defamed him by falsely accusing statements Defendants made on February 8, him of assaulting Garden workers on 9, and 10. He also alleges assault, battery, February 8, 2017 and of being an alcoholic. false imprisonment, abuse of process, denial Defendants respond that Oakley has failed to of a public accommodation in violation of sufficiently plead three necessary elements New York state law, and denial of a public of his New York defamation claims: (1) that accommodation in violation of the ADA the statements were defamatory statements based on the February 8 incident. The Court of fact, as opposed to opinion; (2) actual will address each of these claims in turn. malice; and (3) per se actionability or special damages. (Mem. at 17-30.) 1. Defamation a. Assault Accusations ‘Defamation, consisting of the twin torts of libel and slander, is the invasion of the Oakley claims that Defendants | made interest in a reputation and good name.” defamatory statements accusing him of Albert v. Loksen, 239 F.3d 256, 265 (2d Cir. having committed the “serious crime of 2001) (quoting Hogan v. Herald Co., 84 assault” and of having been “abusive” A.D.2d 470, 474 (N.Y. App. Div. 1982)). toward others. (Am. Compl. {{ 103, 111, Slander is defamation by spoken expression, 117.) On February 8, 2017, and libel is defamation by written @NY_KnicksPR tweeted _ that “Charles expression. Jd. Under New York law, a Oakley came to the game tonight and defamation claim requires a plaintiff to behaved in a highly inappropriate and establish (1) a “defamatory statement of fact completely abusive manner. He has been concerning the plaintiff;” (2) “publication to ejected and is currently being arrested by the a third party;” (3) “fault (either negligence New York City Police Department.” (id. or actual malice depending on the status of 458.) The next day, @NY_KnicksPR again the [defamed] party);” (4) “falsity of the tweeted about the incident, stating that defamatory statement;” and (5) “special “[t]here are dozens of security staff, damages or per se actionability.” Celle v. employees and NYPD that witnessed Filipino Reporter Enters. Inc., 209 F.3d 163, Oakley’s abusive behavior.” (Id. { 62.) 176 (2d Cir. 2000) (libel); Albert, 239 F.3d Furthermore, on February 10, 2017, Dolan at 265-66 (slander). For slander claims, appeared on The Michael Kay Show and New York law also requires a plaintiff to stated that Oakley was “physically and establish that the statements in question are verbally abusive” and that he “abused” not shielded by a privilege. Albert, 239 F.3d many individuals at the February 8 game.

Ud. J] 69, 72; see also supra section I.A., Moreover, the Court concludes that pp. 2-4.) The Court concludes that Oakley Defendants’ statements accusing Oakley of fails to plead defamation based on these subjecting other individuals to “abusive statements because (1) they are not conduct” at the February 8 game are not defamatory statements of fact concerning defamatory because those statements him, (2) he has failed to allege actual malice, constitute nonactionable statements of and (3) he has not alleged special damages opinion. “An expression of pure opinion is ged sp g Pp p Pp p or per se actionability. not actionable” because “[i]t receives the p Federal constitutional protection accorded to (1) Defamatory Statements of Fact the expression of ideas, no matter how : ei 98 ituperative or unreasonable it may be.” First, the statements Oakley identifies viuper neither explicitly accuse nor ‘imply that Steinhilber v. Alphonse, 501 N.E.2d 550, Oakley committed assault. In New York, oe ). h tho New ; □ Me third-degree assault requires an individual to Pct or an o = ie a . Ce eae “cause physical injury to another person,” eee eee eee aan ‘ ’ * second-degree assault requires “serious” 2015 WL 1290775, at 5 (S.D.N.Y. Mar. 19, physical injury, id § 120.05. But the 2015). The Court examines four factors in allegedly defamatory statements do not making ais determination: LL) “arhetier the accuse Oakley of causing physical injury to BR eutiie ney age Mn issue has a precise anyone. Oakley weaves together meaning which is readily understood or Defendants’ statements in a misleading Whether it 18 indefinite and BERDIEUOUR fashion, joining statements as connected that 2) whether the statement 1s cap ake: OF : . being objectively characterized as true or were originally uttered at different times and false:” (3)“the full context of the in different contexts, to maintain that □□□ any ; “(tlaken together, the statements that communication in which the Statement [Oakley] was ‘arrested’ for ‘engaging in appears;” and (4) “the broader social context physically shenwiea! behavior that or setting surrounding the communication jeopardized the safety of Knicks fans, give including the SELENE at any @PP Heable rise to the reasonable inference that he was customs ef Bottrensions win unipyt signal ‘ to readers or listeners that what is being read arrested for physically attacking members of 5 4 5d the public.” (Opp’n at 20.) The Court or heard is likely to be opinion, not fact. Kirch v. Liberty Media Corp., 449 F.3d 388, disagrees. Defendants never accused : 4 ‘ . 402 n.7 (2d Cir. 2006) (internal quotation Oakley of causing physical injury to anyone, wae ; and their statements that Oakley was and ciation mitted). pene “abusive” to individuals at the February 8 context is important to the analysis, courts Knicks game and that he was ejected from do not consider the words in isolation, but the game and arrested by the NYPD do not “eonstrue[] [them] in the context of the give rise to the implication that Oakley a committed assault.* criminality,” id. at 193-94 (quoting Caffee v. Arnold, 104 A.D.2d 352, 353 (N.Y. App. Div. 1984)), and thus be defamatory. However, Spreweil is inapposite. In Spreweill, the allegedly defamatory * Oakley cites Sprewell v. NYP Holdings, Inc., 772 statements referred to specific physical actions the N.Y.S.2d 188 (N.Y. Sup. Ct. 2003), for its plaintiff took, such as “punching a wall.” Jd. at 193. explanation that though a statement may not use the Here, Defendants’ statements do not refer to any “technical words of a criminal indictment,” it can still specific physical actions Oakley took. be “reasonably susceptible to a connotation of

entire statement or publication as a whole, figure. (Am. Compl. □□ □□ 6, 14-17.) tested against the understanding of the Individuals who have “assumed roles of average reader.” Dillon vy. City of New York, especial prominence in the affairs of 261 A.D.2d 34, 38 (N.Y. App. Div. 1999). society” and “invite[d] attention and comment” are generally considered public According to the Amended Complaint, figures. Gertz v. Robert Welch, Inc., 418 Defendants’ statements referred to Oakley’s U.S. 323, 345 (1974); see also, e.g., Time behavior as being “inappropriate” and Ine. v. Johnston, 448 F.2d 378, 380 (4th Cir. abusive, with Dolan stating that Oakley 1971) (holding that a former professional was “physically and verbally abusive” and basketball player was a public figure); that he “abused” many individuals at the Pippen v. NBC Universal Media, LLC, No. February 8 game. However, “abusive” is a 11-cv-8834 (SJC), 2012 WL 12903167, at subjective term that the New York courts *2 (NLD. Ill. Aug. 2, 2012) (holding that have held to constitute a “nonactionable Scottie Pippen, a former professional statement]] of opinion.” See Rotondi v. The basketball player, was a public figure); Madison Square Garden Co. No. Wilsey v. Saratoga Harness Racing, Inc., 150097/2015, 2017 WL 4083093, at "3 140 A.D.2d 857, 858 (N.Y. App. Div. 1988) (N.Y. Sup. Ct. Sept. 12, 2017) (finding that (explaining that “professional statements “mostly consist[ing] of assertions athletes...are often public figures”). that the plaintiff was abusive and interfered Oakley describes himself as a “Knicks with [a __ basketball] game” —_ were legend,” a “premier” “17-year veteran of the “nonactionable statements of opinion”); see NBA” who was “inarguably the greatest also Colantonio v. Mercy Med. Cir., 73 power forward in Knicks history” and who A.D.3d 966, 968 (N.Y. App. Div. 2010) appeared in the NBA All-Star Game in (determining that statements that plaintiff 1994. (Am. Compl. ff 1, 6, 16-17, 54.) He “has poor judgment,” “is belligerent and also states that he has spent significant time very unreasonable,” is “not stable,” and is since his retirement’ making “guest “inappropriate” = were “nonactionable appearances” from which he earns tens of expressions of opinion”); Farrow. thousands of dollars. (Id. 94.) Based O'Connor, Redd, Gollihue & Sklarin, LLP, on the pleadings alone, there can be no 51 A.D.3d 626, 627 (N.Y. App. Div. 2008) doubt that Oakley is a public figure. (holding that a “subjective characterization of the plaintiff's behavior... constituted a A public figure cannot recover damages nonactionable expression of opinion”). for defamation unless he proves, by clear □ and convincing evidence, that the relevant Accordingly, Oakley has failed to allege statements were made with actual malice at that Defendants’ statements are defamatory the time they were spoken or written. See statements of fact concerning him. Palin, 940 F.3d at 817; see also Dunlop- : McCullen v. Rogers, No. 00-cv-3274 (JSR), (2p GHISLAIN 2002 WL 1205029, at *7 (S.D.N.Y. Feb. 21, Oakley’s defamation claim based on 2002). A statement is made with “actual Defendants’ allegedly false accusation that malice” where it is made “with knowledge he committed the crime of assault also fails that the statement[] [is] false or with to allege that Defendants harbored actual reckless disregard as to [its] falsity.” Biro v. malice toward Oakley. Actual malice is a Condé Nast, 807 F.3d 541, 544 (2d Cir. necessary requirement of Oakley’s 2015). Actual malice concerns “the defamation claim because Oakley is a public speaker’s subjective doubts about the truth

of the publication.” Church of Scientology [s]tanding alone...[are] not sufficient to Int'l v. Behar, 238 F.3d 168, 174 (2d Cir. establish actual malice” (quoting Celle, 209 2001). “[A] public-figure plaintiff must F.3d at 183)). And the mere repetition of plead ‘plausible grounds’ to infer actual the assertion that the MSG Defendants and malice by alleging ‘enough fact[s] to raise a Dolan made their statements either knowing reasonable expectation that discovery will they were false or with reckless disregard reveal evidence of actual malice.” Biro, for their truth is simply not enough to eke 807 F.3d at 546 (quoting Twombly, 550 U.S. out a cause of action. (Am. Compl. {J 59, at 556). “Conclusory allegations are 70.) insufficient... .” Amadasu- v. Bronx . . Lebanon Hosp. Cir., No. 03-cv-6450 (AJP), Oakley thus fails to satisfy his burden 2005 WL 121746, at *13 (S.D.N.Y. Jan. 21, “to plead facts giving rise to the plausible 2005) (citations omitted), report and inference that [Defendants] [made] the recommendation adopted by Amadasu y. allegedly defamatory [statements] with Rosenberg, No. 03-cv-6450 (LAK), 2005 actual malice.” Palin, 940 F.3d at 815; see WL 954916 (S.D.N.Y. Apr. 26, 2005). also Hughes v. Twenty-First Century Fox, Inc., 304 F. Supp. 3d 429, 453 (S.D.N.Y. Oakley fails to satisfy this requirement. 2018) (dismissing “conclusory” allegations Indeed, he does not offer any facts beyond regarding actual malice that “provide[d] no conclusory allegations that the MSG detail” as to the defendants’ “knowledge or Defendants or Dolan acted with actual mental state”). malice. The Amended Complaint asserts □ repeatedly that the MSG Defendants and (3) Special Damages and Per Se Dolan were “fully aware that [their] Actionability comments were and are entirely without Oakley also fails to plead that basis dai Hct a nd/or that che Coninstite Defendants’ allegedly false accusations of ne. we a reckless — a assault and/or abusive conduct caused him te Auentet couldnt ios not vole to suffer *P ecial damages Or were Per Se mye grounds to. support those Toone. "Seva damages a speci concur alegaons, These ar the OPE leged wih. sulicint pariculry recitation[s] of the elements of a cause of ideartily pote Losses any) e related causally oo 5 to the alleged tortious acts.” Kanciper v. action” that must be disregarded under Iqbal Lato, 989 F. Supp. 2d 216, 237 (E.D.N.Y. and Twombly. Twombly, 550 U.S. at 555; 2013) (citation omitted). Oakley h t . y has no Biro v. Condé Nast, 963 F. Supp. 2d 255, alleged that he suffered special damages as a (8-D.N.Y.2015), result of Defendants’ purportedly false In fact, the only assertion that the accusations that he committed the crime of Amended Complaint makes regarding actual assault and was abusive toward the Garden malice is that Dolan harbored a general staff. In fact, the only damages alleged in animosity toward Oakley. (Am. Compl. the Amended Complaint relate to Oakley’s 28.) But evidence of ill will alone, asserted loss of $40,000 from the Rebound without more, cannot establish actual Institute, but that loss was expressly tethered malice. See Dunlop-McCullen, 2002 WL to Defendants’ statements claiming that 1205029, at *16 n.3 (explaining that “past Oakley was an alcoholic, not to the assault disputes between the parties and grudges .. . accusation. (Am. Compl. { 93.)

The Amended Complaint is equally necessary elements and consequently fails deficient with respect to per se actionability. on those three independent grounds. To plead per se actionability in lieu of pleading special damages, a plaintiff must b. Alcoholism Statements allege that the purportedly defamatory statements fit into one of four categories: sehen! tee Is contends ne onaants statements (1) “charging plaintiff with a \ . 2 eee a a sedoué arine®”’ 2) “het wend. to infor alcoholic. He maintains that Defendants another in his or her trade. business or statements “were inarguably spreading the rofession;” (3) “that laintiff hes false rumor that [he] was an alcoholic who athmre’ discase:” or P 4) “Smpoting had a habitual problem that required ‘help.’” unchastity to a woman » Liberman v eat San ee Sp ee Oukiny ‘ alleges that the MSG Defendants stated on : Gelstein, 605 N.E.2d 344, 347 (N.Y. 1992), February 8, 2017 that they “hopefd] For those categories of statements, damages [Oakley] gets some: help soon.” Ud 458.) may be presumed, and a defendant need not & P ” moped plead specific damages. Jd But “whether During his appearance on The Michael Kay the contested statements are reasonably Show, Dolan made further comments about ge Oakley “drinking before[]” the game, that susceptible of a defamatory connotation” are lj d ‘ty had said “h q matters for the Court to decide. Armstron Police and security hac’ said “ne appeare □ & be impaired,” that Oakley “may have a v. Simon & Schuster, Inc., 649 N.E.2d 825, bl th alcohol ser nae” wad 829 (N.Y. 1995) problem with alcohol, we don’t know,” an “ □ that “[w]hen you have issues like this, the Here, Oakley asserts that Defendants’ first step for anybody is to ask for help.” statements “accus[ed] him of having (Ud. 169; Dolan Interview.) Once again, committed the serious crime of assault Oakley has failed to plead defamation against members of the public, warranting because (1) he has failed to allege actual his arrest.” (Am. Compl. $103.) But as malice, and (2)he has not sufficiently explained above, Defendants’ statements alleged special damages or per se neither explicitly nor implicitly accused actionability. Oakley of committing assault. They merely ‘ alleged that he was “abusive,” which is too (1) Actual Malice vague a term to support a claim of per se As noted above, Oakley is a public defamation. See Colantonio, 73 A.D.3d at figure who must demonstrate that the 968; Farrow, 51 A.D.3d at 627; Rotondi, allegedly defamatory statements were made 2017 WL 4083093, at *3. with actual malice at the time they were Accordingly Oakley does At uttered. Palin, 940 F.3d at 809-10. But : ‘ once again, Oakley does not offer any proof Se plead special damages’ of pet te beyond conclusory allegations _— of SEER: Defendants acting with actual malice. oe # Though he pleads that he has never abused alcohol (Am. Compl. 70), Oakley never For the reasons stated above, Oakley’s pleads that the MSG Defendants or Dolan defamation claim based on Defendants’ knew that purported fact. He merely pleads purported accusations that Oakley conclusory statements that reflect the committed the crime of assault and/or elements of actual malice and a generalized engaged in abusive behavior toward Garden assertion that the MSG Defendants and gag staff fails to sufficiently plead three Dolan knew — somehow — that he was not, in

fact, an alcoholic. Consequently, Oakley challenged statements speak only to fails to sufficiently plead actual malice. Oakley’s general personal qualities, and . Oakley has not alleged any connection (2) Special Damages and Per Se between the allegedly defamatory statements Actionability and his trade, business, or profession. The Oakley also fails to plead special second ground fails because New York law damages caused by Defendants’ statements docs not consider alcoholism to be a or per se actionability. First, the Amended loathsome disease, Complaint does not plausibly allege that “Courts have consistently held that any Defendants’ statements caused the purported allegedly defamatory statements that do not damages. To plead special damages, a affect a plaintiff's actual business plaintiff must identify actual losses that are profession, rather than simply qualities that “causally related to the alleged tortious act.” are important for business, are not LW.C. Agency, Inc. v. St. Paul Fire & defamatory per se.” Kalimantano GMBH □□□ Marine Ins. Co., 125 A.D.2d 371, 373 (N.Y. Motion in Time, Inc., 939 F. Supp. 2d 392, App. Div. 1986). The Amended Complaint, 420 (S.D.N.Y. 2013). A statement that however, merely states Mw & conclusory tends to injure another in his or her trade, manner that “as a direct result” of business, or profession is one that “must be Defendants’ statements, the Rebound made with reference to a matter of Institute “conclu[ded] that it was not significance and importance for [the proper appropriate for someone with... a conduct of the business, trade, profession, or reputation [for alcoholism] to interact with office itself], rather than a more general their patients” and that “Oakley was reflection upon the plaintiff's character or [therefore] not able to receive $40,000” in qualities.” Medcalf v. Walsh, 938 F. Supp. appearance fees from the Rebound Institute. 2d 478, 487 (S.D.N.Y. 2013) (quoting (Am. Compl. 4193, 95.) He does not Liberman, 605 N.E.2d at 348). explain on what basis he reached this conclusion or proffer any facts to support a Defendants’ statements can only be direct causal connection —_ between construed as general reflections upon Defendants’ statements and the Rebound Oakley’s character or qualities, not as Institute’s alleged decision not to pay specific comments regarding his purported Oakley $40,000 in appearance fees. Simply trade, business, or profession. Here, the assuming that Defendants’ statements allegedly defamatory statements include no “directly” caused the Rebound Institute to reference to Oakley’s business or profession, withhold appearance requests is not enough and merely reference Oakley himself. But to support an allegation of special damages. as Judge Swain recently observed, “[i]t is not sufficient that [statements] tend to injure Second, the Amended Complaint does plaintiff in his business, they must have been not plausibly allege per se actionability spoken of him in his business.” Tacopina v. based on either of the grounds Oakley Kerik, No. 14-cv-749 (LTS), 2016 WL proffers: that Defendants’ purported 1268268, at *4 (S.D.N.Y. Mar. 31, 2016) statements that he is an alcoholic (1) tended (emphasis omitted) (quoting Gurtler vy. to injure him in his trade, business, or Union Parts Mfg. Co., 285 A.D. 643, 646 profession (id. | 105); or (2) accused him of (N.Y. App. Div. 1955)); see also Walker v. suffering from a loathsome disease (id. Urban Compass, Inc., No. 652554/2016, q 104). The first ground fails because the 2017 WL 608308, at *6 (N.Y. Sup. Ct. Feb.

15, 2017) (determining that accusations that also Marino y. Jonke, Nos. 11-cv-430, 11- plaintiff abused alcohol did “not specifically cv-4425 (VB), 2012 WL 1871623, at *11 relate to plaintiff’s ability to” perform his (S.D.N.Y. Mar. 30, 2012). Alcoholism is job, “but rather reflect{ed] more generally neither a venereal disease nor upon his character,” and thus were not communicable. Consequently, alcoholism defamatory per se under the injury to trade, does not qualify as a loathsome disease for business, or profession category). purposes of per se actionability under New York law. Significantly, the Amended Complaint does not even specify what Oakley’s trade, Precedent supports this conclusion. In business, or profession is. Instead, the Ruderman v. Stern, No. 39179/97, 2004 WL complaint merely asserts that Oakley has 3153217, at *16 (N.Y. Sup. Ct. Oct. 25, “made guest appearances at drug and 2004), the court held that “[d]efendants’ alcohol rehabilitation clinics to speak with statements that plaintiff was an alcoholic” patients and provide other services, did “not constitute [defamation] per se” including cooking them meals” (Am. because they did not “fit into the [per se Compl. 792), and that he “works with actionability] categories.” Oakley cites individuals who suffer from substance Hayes v. Sweeney, 961 F. Supp. 467, 481 issues” (id. 105). Though Oakley’s brief (W.D.N.Y. 1997), for the proposition that contends that he “derived significant income “an imputation of alcohol consumption is opportunities” from appearances at drug and defamatory when accompanied by some alcohol rehabilitation centers (Opp’n at 21), aggravating factor, such as the suggestion the Amended Complaint is silent on that that [such] conduct is habitual or that the point and merely alleges that “it is a matter person is ‘a drunk.’” (Opp’n at 21.) Hayes of common knowledge that [Oakley] works is inapplicable, however, because it involved with individuals who suffer from substance a claim of per se actionability based on abuse issues” (Am. Compl. § 105). Since injury to trade, business, or profession — not Oakley does not plead that working with an assertion that alcoholism was a loathsome individuals who suffer from substance abuse disease. 961 F. Supp. at 479-81. In that issues is his trade, business, or profession, context, the court determined that he has not established per se actionability on defendants’ statement accusing plaintiff of this basis. having “an alcohol problem that affected her ability to perform her job” as a New York Oakley next alleges that Defendants’ State Department of Labor regional director purported statements accused him of was per se actionable. /d. at 481. The court “suffering from the loathsome disease of noted, however, that “[i]t is not actionable alcoholism.” (id. 4 104.) This contention per se to charge a man orally with being also fails because New York law does not drunk or in the habit of getting drunk, consider alcoholism to be a loathsome unless” the statements qualified under a disease, and therefore Oakley does not plead different category of per se actionability. Id. per se actionability on this basis. _Under (quoting Morrison v. News Syndicate Co., New York law, loathsome diseases “include 247 A.D. 397, 399 (N.Y. App. Div. 1936)). only existing venereal disease[s] and other ‘loathsome and communicable’ disease[s].” Accordingly, Oakley has neither TC & KC v. Valley Cent. Sch. Dist., 777 F. sufficiently pleaded special damages nor per Supp. 2d 577, 603 (S.D.N.Y. 2011) (quoting se actionability for Defendants’ statements Restatement (Second) of Torts § 572); see

allegedly accusing him of being an explanation.” (Am. Compl. 34.) Oakley alcoholic. alleges that he “attempted to defuse the □□ situation by...explaining to the security personnel that he had done nothing wrong Because Oakley has failed to allege ae Sunply wibatadl 16 wal ihe ganic □□ . □ peace.” (Jd. 37.) He maintains that he actual malice or special damages, his defamation claim based on Defendants’ wien tarn[ed) around and ---return[ed] to ; : his seat” (id. §/40), in an unspoken, but statements purportedly accusing him of . being an alcoholic must be dismissed. explicit, tetsal 0 mE: ly Wit MS Defendants’ lawful directive as property 2. Assault and Battery owners of the Garden. After this refusal to comply, Oakley alleges that “two of the In addition to his defamation claims, security guards grabbed [him] and pushed Oakley contends that the MSG Defendants him to the ground.” (id. 442.) Oakley committed assault and battery against him asserts that this conduct “clearly exceeded when they “physically and forcibly removed the bounds of reasonable behavior” because [him] from the Garden and subsequently there had been no “physical threat or detained him until police could arrive to provocation from [him].” (/d. 43.) unjustifiably arrest him.” (Am. Compl. q 127.) Oakley further alleges that after he got up and once more tried to request an Assault is the “intentional placing of explanation for the security guards’ another person in fear of imminent harmful behavior, the guards reiterated their demand or offensive contact.” Green v. City of New that he leave the Garden and grabbed him York, 465 F.3d 65, 86 (2d Cir. 2006) again to compel his removal. (Ud. J] 4445.) (citation omitted). Civil battery is “an “Fearing for his safety,” Oakley claims he intentional wrongful physical contact with then “pushed their hands away in self- another person without consent.” Id. defense.” (/d. 46.) At this point, Oakley (citation omitted). The law is clear that “a alleges that “six [security] officials” grabbed property owner has the right to use him and “thr[ew]” him to the ground, reasonable force to eject a trespasser from “crowding around him and impeding his its premises,” but “the use of unnecessary ability to” stand up. (/d. J] 47-48.) Oakley force or evidence of intent to injure as maintains that he was then “put into opposed to an intent to guard the owner’s restraints” and that the “security guards property removes the privilege.” Mitchell v. roughly threw him out of the Garden.” (/d. N.Y. Univ., No. 150622/2013, 2014 N.Y. 749.) Oakley asserts that by “grabbing Misc. LEXIS 105, at *17 (N.Y. Sup. Ct. Jan. [him], restraining him, dragging him to the 8, 2014) (citing Noonan v. Luther, 99 N.E. ground and refusing his repeated requests 178, 179 (N.Y. 1912); McGovern v. Weis, that he be allowed to stand up, Defendants 265 A.D. 367, 370 (N.Y. App. Div. 1943); greatly exceeded the amount of force that Hill v. Greeley Square Hotel Co., 175 A.D. was necessary in the situation.” (Ud. J 50.) 421, 422-23 (N.Y. App. Div. 1916)). As an initial matter, Oakley grossly According to the Amended Complaint, misunderstands the law concerning a three Madison Square Garden security landlord’s right to remove a trespasser from guards approached Oakley at his seat and its property. The law is clear that the MSG ordered him to leave the Garden “without Defendants had the right to expel Oakley

from the Garden and that his refusal to leave requested to do so. (See Am. Compl. § 43.) justified their use of reasonable force to Were Oakley’s version of property rights remove him — a licensee who became a accurate, property owners would be trespasser by refusing to leave their property powerless to remove trespassers, who would after being directed to do so.’ See, e.g., be free to ignore the entreaties of property Noonan, 99 N.E, at 179; McGovern, 265 owners to an inevitable stalemate. The law A.D. at 370; Hill, 175 A.D. at 422-23; see is not so anemic. To the contrary, it permits also Impastato vy. Hellman Enters., Inc., 147 property owners to use reasonable force to A.D.2d 788, 789 (N.Y. App. Div. 1989) eject trespassers from their premises. This is (explaining that “[a]n admission ticket to a true even for venues like theaters and sports place of public amusement is merely a arenas. See, e.g., Mathews v. N.Y. Racing license which is revocable, without cause, at Ass’n, Inc., 193 F. Supp. 293, 295 (S.D.N.Y. the will of the proprietor”); Gottlieb v. 1961) (horse racing track); cf People ex rel. Sullivan Cty. Harness Racing Ass’n, 25 Burnham y. Flynn, 114 A.D. 578, 581 (N.Y. A.D.2d 798, 798 (N.Y. App. Div. 1966); App. Div. 1906) (explaining that theater Madden v. Queens Cty. Jockey Club, Inc., owners had right to prevent individual from 72 N.E.2d 697, 698 (N.Y. 1947); Aaron vy. entering theater “by such reasonable force as Ward, 96 N.E. 736, 737 (N.Y. 1911); People was necessary”). Therefore, the only issue ex rel. Burnham v. Flynn, 82 N.E. 169, 185- with respect to Oakley’s assault and battery 86 (N.Y. 1907) (explaining that a concert claim is whether Defendants used ticket is a revocable license and that a unnecessary force or intended to injure him, ticketholder, if he remains on the premises in which case the privilege to use force after that license has been revoked, would be forfeited. “becomes a trespasser, and may be removed by the use of force necessary for the In his Amended Complaint, Oakley purpose”). Oakley’s pleadings and brief alleges that Defendants grabbed him and reveal a mistaken belief that he could forced him to the ground, but he does not “negotiate” with security personnel to avoid claim that this unwanted touching occurred being ejected, and that the MSG Defendants » before he refused to comply with the had to justify his ejection to his satisfaction security guards’ directive that he leave the before he was required to comply with their Garden. Indeed, Oakley never alleges that directive to leave. (See, e.g., Am. Compl. he attempted to comply with the security 4134-53; Opp’n at 29-32.) Equally guards’ directive. In his view, the guards’ unfounded is Oakley’s assertion _ that use of force was unreasonable because he reasonable force to remove a trespasser did “nothing wrong and simply wanted to cannot be employed unless the trespasser watch the game in peace.” (Am. Compl. first engages in physical threats or 37.) But the guards were not required to provocation, even if that trespasser justify their request, and Oakley’s admitted steadfastly refuses to leave after being refusal to comply is what justified their use of force. Of course, the force used by the 5 See Rosenstiel v. Rosenstiel, 20 A.D.2471, 76 (Ny. guards had to be reasonable, but the mere App. Div. 1963) (“[A] licensee is one who enters allegation that the guards subsequently upon or occupies lands by permission, express or “grabbed [him] and pushed him to the implied, of the owner... without possessing any ground” (id. §42) is not enough to interest in the property, and who becomes a demonstrate unreasonable force, see, e.g., trespasser therech upon revocation of the permission Kalfus v. N.Y. & Presbyterian Hosp., 476 F. of privilege.”). App’x 877, 880-81 (2d Cir. 2012)

(explaining that police officers’ pushing support an inference that the guards used trespasser onto the ground while arresting unnecessary force or intended to injure him. him to remove him from the premises after Notably, the Amended Complaint nowhere he refused to leave was reasonable force). alleges that Oakley was in fact injured — merely “embarrass[ed]” and “emotionall[ly] Nowhere does Oakley allege that the distress[ed].” (Jd. at 9, 25.) guards intended to injure him, and his description of the events as they unfolded Ultimately, Oakley makes no allegation does not support an inference of excessive that the force used by Garden officials was or unreasonable force. Oakley does not unreasonable. He argues instead that any allege that the guards gratuitously punched use of force was unreasonable, because it or kicked him or that any of the physical was unreasonable to ask him to leave in the contact was unnecessary or malicious. See, first place. In Oakley’s telling, the security e.g., Walsh v. Hyde & Behman Amusement guards had only one choice when he Co., 113 A.D. 42, 44 (N.Y. App. Div. 1906) declined their request that he leave the (upholding jury’s verdict of compensatory Garden: to let him return to his seat to damages for plaintiff where, in being ejected watch the game. That is not the law, which from a theater, “he was thrown down three gives property owners the right to exclude flights of stairs and badly beaten and people and the right to use reasonable force bruised, such force being wholly to eject them when they refuse to comply. unnecessary in ejecting him”); Kelmenson v. Having refused to comply with Defendants’ Metro, Opera Co., 152 N.Y.S. 1002, 1003 lawful directive that he leave the premises, (N.Y. App. Term 1915) (explaining that Oakley cannot cry foul merely because “wanton” or “malicious” force could not be Garden security guards exercised the lawful used to eject plaintiff from a theater). It was right to remove him from the arena. Since only after Oakley slapped the guards’ hands Oakley has not alleged any facts to suggest away “in self-defense” that three more that the guards’ use of force was excessive security guards arrived on the scene and or beyond what was necessary to remove forced him to the ground and “imped[ed] his him from the premises, his assault and ability to” stand up. (Am. Compl. 46— battery claims must be dismissed. 48.) But even then, Oakley does not allege . that the guards did anything more than 3. False Imprisonment restrain him. The fact that they “refused Oakley further charges that the MSG tp cated requests that'‘he be allowed Defendants committed false imprisonment stand up could hardly be described as by “intentionally confin[ing] [him], with unreasonable given that Oakley never [his] knowledge and awareness and without suggested that be was prepared to comply his consent, when...they physically and with the guards’ request that he leave the forcibly removed [him] from the Garden and arena, i. #8.) Jeventaally Hie WE subsequently detained him until police could allowed to stand up, “put into restraints, artive to unjustifiably arrest him.” (Id. nemined ont th ° Saanich, and q 130.) To state a claim for false detained . . . until police . . . arrive[d]. (la. imprisonment, a plaintiff must demonstrate WW 49, 127} SOtha than ihe Maes a being that “(1) the defendant intended to confine restrained and removed — all of which took [he plaintiff], (2) the plaintiff was conscious ont enae ae □□ ee of the confinement, (3) the plaintiff did not Garden ~ Oukleg wlleces no taote that consent to the confinement and (4) the

confinement was not otherwise privileged.” claims that he lost $40,000 in appearance McGowan v. United States, 825 F.3d 118, fees and “has suffered and continues to 126 (2d Cir. 2016) (quoting Broughton v. suffer harm for which he is entitled to an State, 335 N.E.2d 310, 314 (N.Y. 1975)). award of damages.” (/d. J 137-138.) Oakley fails to sufficiently plead a claim To establish an abuse of process claim of false imprisonment against the MSG under New York law, a plaintiff must Defendants because their confinement of demonstrate that the defendant him “until police could arrive” was “(1) employ[ed] regularly issued legal privileged. (Am. Compl. § 130.) As the process to compel performance or owners and operators of the Garden, the forbearance of some act (2) with intent to do MSG Defendants were within their rights to harm without excuse o[r] justification, and revoke Oakley’s license to be on the (3) in order to obtain a collateral objective premises and eject him. See Aaron, 96 N.E. that is outside the legitimate ends of the at 737; Burnham, 82 N.E. at 185-86; process.” Savino v. City of New York, 331 Gottlieb, 25 A.D.2d at 798. In removing F.3d 63, 76 (2d Cir. 2003) (quoting Cook □□ Oakley from the premises after he refused to Sheldon, 41 F.3d 73, 80 (2d Cir. 1994)). comply with their directive to leave, the The plaintiff must also establish that the MSG Defendants were permitted to restrain abuse of process caused “actual or special him as they led him out of the Garden. See, damages.” Kahn v. Friedlander, 90 A.D.2d e.g., Schaeffer v. Cavallero, 54 F. Supp. 2d 868, 869 (N.Y. App. Div. 1982). 350, 352 (S.D.N.Y. 1999) (dismissing false imprisonment claim against airline on Rule _ Oakley's abuse of process claim must be 50 motion because plaintiff was asked to dismissed because he does not sufficiently leave airplane but refused to comply). Once plead special damages caused by the outside the Garden, Oakley concedes that he Defendants’ alleged abuse of process. The was arrested (Am. Compl. $51), which Amended Complaint asserts that “as a direct necessarily implies that the New York result of Defendants’ statements claiming Police Department made that arrest, not the that Mr. Oakley was an alcoholic, . . . the MSG Defendants. The Court thus grants Rebound Institute[] came to the conclusion Defendants’ motion to dismiss Oakley’s that it was not appropriate for someone with false imprisonment claim. such a reputation to interact with their patients.” (Am. Compl. 793.) Thus, even 4, Abuse of Process assuming that Oakley sufficiently pleads special damages — a contention that the Oakley next claims that Defendants Court rejected above (see supra section committed abuse of process when they I11.B.1.b.(3), pp. 13-13) -— Oakley’s (1) “caused process to be issued to [him] in concession that these damages were caused the form of a criminal charge;” (2) “caused by Defendants’ statements accusing him of [him] to be charged with an intent to do being an alcoholic, not from any abuse of harm and without excuse or justification;” process, are fatal to his claim. and (3) “caused [him] to be charged in a perverted manner with the intent to Accordingly, the Court — grants accomplish the collateral objective of Defendants’ motion to dismiss Oakley’s publicly embarrassing [him] and destroying abuse of process claim. his reputation.” (d. 134-136.) As a result of Defendants’ conduct, Oakley

5. Denial of a Public Accommodation (stating in a conclusory manner that Defendants “[b]elieved [t]hat [p]laintiff was Oakley last claims, in the alternative, an [a]lcoholic”).) that Defendants discriminated against him under the ADA and the NYSHRL by Beyond these conclusory assertions, “denying him access to the Garden based on Oakley relies on three statements allegedly their perception that he suffers from uttered by Dolan to establish Defendants’ alcoholism, a disability.” (Am. Compl. perception that Oakley suffers from 141, 146.) To state a claim under the alcoholism. These include (1) Dolan’s ADA and the NYSHRL, a plaintiff must representation that “anybody who comes to allege “(1) that she is a ‘qualified individual’ the Garden [after] drinking too much alcohol with a disability; (2) that defendants are a [is] going to be ejected and . . . banned;” public accommodation as defined under (2) Dolan’s musings that Oakley “may have Title III; and □□□ that she was denied the a problem with alcohol, we don’t know;” opportunity to participate in or benefit from and (3) Dolan’s repeating of “statements defendants’ services, programs or activities, from some of the police and security that or was otherwise discriminated against by [Oakley] appeared to be impaired, ef cetera” defendants on the basis of her disability.” at the February 8 game. (Opp’n at 37; Cotz v. Mastroeni, 476 F. Supp. 2d 332, 368 Dolan Interview.) None of these, either in (S.D.N.Y. 2007); see also Rodal vy. isolation or collectively, suffices to support Anesthesia Grp. of Onondaga, P.C., 369 an inference that Defendants had a F.3d 113, 117 n.1 (2d Cir. 2004) (“New perception that Oakley suffers from York State disability discrimination claims alcoholism or that they discriminated against are governed by the same legal standards as him on that basis. federal ADA claims.”). An individual is oo, “disabled” within the meaning of the ADA Courts have long distinguished between and the NYSHRL if he is “regarded as” “being a chronic alcoholic” and “being in having a disability. See 42 USC. public while drunk on a_ particular § 12102(1)(C) (defining “disability” to occasion.” Powell v. Texas, 392 US. 514, include “being regarded as having such an 530-32 (1968) (plurality op.); see also impairment”); N.Y. Exec. Law § 292(21)(c) Clifford v. County of Rockland, 528 F. (defining “disability” to include “a condition App’x 6, 8-9 (2d Cir. 2013) (distinguishing regarded by others as such an impairment”). alcoholism from drinking — or being intoxicated in the ADA context); Baptista v. Although alcoholism qualifies as a Hartford Bd. of Educ., 427 F. App’x 39, 42 disability under the ADA and the NYSHRL, (2d Cir. 2011) (same); Macshane vy. City of Makinen vy. City of New York, 857 F.3d 491, New York, No. 06-cv-6024 (RRM), 2015 495 (2d Cir. 2017), the Amended Complaint WL 1298423, at *15 n.18 (E.D.N.Y. Mar. does not plead any fact that supports a 23, 2015) (collecting cases in the ADA plausible inference that Defendants context distinguishing alcoholism from discriminated against Oakley on the basis of actions taken under the influence of his purported alcoholism. To the contrary, alcohol). The plain meaning of Dolan’s first Oakley merely pleads in a conclusory statement is that people who drink too much manner that he was removed from the at the Garden will be ejected, and the third Garden “based on the Defendants’ alleged statement clearly references Oakley’s perception that he suffers from alcoholism.” demeanor on the night of the February 8 (Am. Compl. § 141; see also id. §§| 23-24 game, not his purported alcoholism. As for

the second statement, Dolan in no way Corp., 482 F.3d 184, 200 (2d Cir. 2007) connected that comment to Oakley’s (quoting Fed. R. Civ. P. 15(a)). In addition, ejection from the Garden on February 8. the Second Circuit has consistently stated Therefore, though Oakley contends that that district courts may deny leave to amend these statements “support an inference that when plaintiffs request such leave in a Defendants denied [him] access to [the cursory sentence on the last page of an Garden] based on their perception that he opposition to a motion to dismiss, without suffered from alcoholism” (Opp’n at 38), the any justification or an accompanying obvious reading is that Oakley was denied proposed amended pleading. See, e.g., City access for his conduct on the night of of Pontiac Policemen’s & Firemen’s Ret. February 8, 2017, not for being an alcoholic. Sys. v. UBS AG, 752 F.3d 173, 188 (2d Cir. Indeed, as noted above, most of the 2014) (affirming denial of leave to amend Amended Complaint asserts — albeit in a where plaintiffs already had one opportunity conclusory manner — that Dolan knew that . to amend their complaint and had “identified Oakley was not an alcoholic. Without no additional facts or legal theories” to additional facts, such as similar instances of support their request to amend); Food discriminatory treatment toward perceived Holdings Ltd. v. Bank of Am. Corp., 423 F. alcoholics or other statements reflecting App’x 73, 76 (2d Cir. 2011) (affirming Defendants’ discriminatory animus toward district court’s denial of leave to amend alcoholics at the Garden, the Amended where plaintiffs requested leave to amend Complaint abjectly fails to allege a claim for “on the final page of their brief in opposition discrimination under the ADA or NYSHRL. to defendants’ motion to dismiss, in Cf Macshane, 2015 WL 1298423, at *17 boilerplate language and without any (dismissing disability discrimination claims explanation as to why leave to amend was on summary judgment in part because warranted”); Porat v. Lincoln Towers Cmty. plaintiffs “failed to identify any proof Ass'n, 464 F.3d 274, 275-76 (2d Cir. 2006). suggesting... that defendants exhibited hostility toward them based on their Here, in a footnote to the final sentence perceived disability, treated them differently of his opposition to Defendants’ motion to than similarly-situated [individuals], or dismiss, Oakley, without any legal or other applied different procedures or standards to support, states: “To the extent that the Court them”). finds deficiencies in any of [Oakley’s] claims, [Oakley] respectfully requests the Accordingly, the Court grants right to amend his pleadings to address any Defendants’ motion to dismiss as to such deficiencies.” (Opp’n at 40 n.19.) Oakley’s ADA and NYSHRL claims. Significantly, Oakley offers no basis for his request for leave to amend nor does he C. Leave to Amend attach a proposed amended complaint. See : 5 Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Finally, the Coush povsiters Oakley's Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. request for leave to amend. (Opp’n at 40 2015) (noting that a court may deny leave to n.19.) “Although Rule 15(a) of the Federal J (acne i y “ y 8 amend, on notice grounds, “where the Rules of Civil Procedure provides that leave : ‘ ‘ . oe request gives no clue as to ‘how the to amend ‘shall be freely given when justice ses sce) dy Pavan Seiat : complaint’s defects would be cured so requires,’ it is within the sound discretion . (quoting Porat, 464 F.3d at 276)). of the [Court] to grant or deny leave to ee ; a Moreover, this is not Oakley’s first attempt amend.” McCarthy v. Dun & Bradstreet a. a at repleading in this action. To the contrary,

on January 19, 2018, after the parties had even attempted to explain why an additional exchanged pre-motion letters (Doc. Nos. 19, opportunity to amend would cure the 24) and the Court had held a pre-motion Amended Complaint’s deficiencies, the conference concerning Defendants’ Court denies Oakley’s request for leave to contemplated motion to dismiss (Doc. No. amend. 51 Ex. 1), Oakley sought and received leave to amend for the purpose of addressing [V. CONCLUSION deficiencies in the Complaint that ithe tome From its inception, this case has had the (Doc. Nos. 29, 30). Notwithstanding the el of a public relations campaign, with the benefit of Defendants’ pre-motion letter and □□□ aie. pmerested nine an extensive colloquy with the Court at the their legal L arou ents, ‘That i -pethaps peSknhen, nonkeiones, akley é Biniaticlesd understandable, given the personal and plead 5 fails to aioge sumtin public nature of the dispute. But while basketball fans in general, and Knicks fans As Judge Lynch aptly noted when he in particular, are free to form their own was on the district court, “[w]hile pleading opinions about who was in the right and is not a game of skill in which one misstep whether Oakley’s ejection was motivated by may be decisive to the outcome, neither is it something more than the whims of the an interactive game in which plaintiffs file a team’s owner, the fact remains that Oakley complaint, and then bat it back and forth has failed to allege a plausible legal claim with the Court over a rhetorical net until a that can meet federal pleading standards. viable complaint emerges.” In re Refco Accordingly, for the reasons stated above, Capital Mkts., Ltd. Brokerage Customer IT IS HEREBY ORDERED THAT Sec. Litig., Nos. 06-cv-643, 07-cv-8686, 07- Defendants’ motion to dismiss is cv-8688 (GEL), 2008 WL 4962985, at *2 GRANTED. IT IS FURTHER ORDERED (S.D.N.Y. Nov. 20, 2008) (internal THAT Oakley’s request for leave to file quotation marks and citations omitted); see another amended complaint is DENIED. also Ruotolo v. City of New York, 514 F.3d The Clerk of Court is respectfully directed 184, 191 (2d Cir. 2008) (noting that courts to terminate the motion pending at document can deny leave to amend where there has number 41 and to close this case. been “repeated failure to cure deficiencies SO ORDERED by amendments previously allowed” (quoting Foman v. Davis, 371 U.S. 178, 182 (1962))); NRW, Inc. v. Bindra, No. 12-cv- 8555 (RJS), 2015 WL 3763852, at *1 (S.D.N.Y. June 16, 2015) (“To grant leave RICHARD J. SULLIVAN to amend after a plaintiff has had ample United States Circuit Judge opportunity to amend would be condoning a Sitting by Designation strategy whereby plaintiffs hedge their bets ... in the hopes of having another bite at the proverbial apple.” (internal quotation Dated: February 19, 2020 marks and citation omitted)). New York, New York Accordingly, because Oakley has not attached a proposed amended complaint or

21 .

Plaintiff Charles Oakley is represented by Douglas H. Wigdor, Renan F, Varghese, and Kenneth Walsh of Wigdor LLP, 85 Fifth Ave., 5th Fl., New York, New York 10003; and Nelson A. Boxer of Petrillo Klein & Boxer LLP, 655 Third Ave., 22nd FI., New York, New York 10017. Defendants James Dolan, MSG Networks, Inc., The Madison Square Garden Company, and MSG _~ Sports & Entertainment, LLC are represented by Randy M. Mastro of Gibson, Dunn & Crutcher LLP, 200 Park Ave., New York, New York 10166; and James Walden and Milton L. Williams of Walden Macht & Haran LLP, | Battery Park Plaza, 34th FI., New York, New York 10004.