Michtavi v. New York Daily News,, No. 08-2111 (2d Cir. 2009)

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08-2111-cv Michtavi v. New York Daily News, The Polish Daily News, Mathew Kalman, Does #1-#10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2009 (Submitted: October 23, 2009 Decided: November 25, 2009) Docket No. 08-2111-cv - - - - - - - - - - - - - - - - - - - -x SHEMTOV MICHTAVI, Plaintiff-Appellant, - v.- 08-2111-cv NEW YORK DAILY NEWS, THE POLISH DAILY NEWS, MATHEW KALMAN, DOES #1-#10 Defendants-Appellees. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, KEARSE, Circuit Judge, and GARDEPHE,* District Judge. Appeal from a judgment of the United States District 31 Court for the Southern District of New York (Sand, J.), 32 dismissing a complaint alleging libel and emotional 33 distress. * The defendant newspapers reported that the Paul G. Gardephe, of the United States District Court for the Southern District of New York, sitting by designation. 1 plaintiff, who is incarcerated, planned to cooperate with 2 prosecutors. 3 not be defamatory under New York law. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 The district court held that the reports could We affirm. Shemtov Michtavi, pro se, White Deer, Pennsylvania, for Appellant. Marion Bachrachm, Dana Moskowitz, DePetris & Bachrach, LLP, New York, NY; Laura R. Handman, Davis Wright Tremaine LLP, Washington DC; Anne B. Carroll, Deputy General Counsel, Daily News, L.P., New York, NY, for Appellees. DENNIS JACOBS, Chief Judge: Shemtov Michtavi, pro se, alleges defamation and 19 intentional infliction of emotional distress based on news 20 reports, published by the New York Daily News and the Polish 21 Daily News, that Michtavi, who is incarcerated, planned to 22 cooperate with prosecutors. 23 judgment of the United States District Court for the 24 Southern District of New York (Sand, J.) dismissing the 25 complaint for failure to state a claim on which relief could 26 be granted, under Fed. R. Civ. P. 12(b)(6). 27 York Daily News, No. 06-Civ-8260, 2008 U.S. Dist. LEXIS 28 24997, *2-5 (S.D.N.Y. Mar. 12, 2008) . 29 held that the reports could not be defamatory under New York Michtavi appeals from the 2 Michtavi v. New The district court 1 law, and we agree. 2 3 I Michtavi is serving a twenty-year prison sentence for 4 narcotics offenses. 5 reported [i] that he was a key lieutenant of Ze ev 6 Rosenstein, an organized crime figure, and [ii] that 7 Michtavi planned to cooperate with prosecutors and testify 8 against Rosenstein. 9 10 11 In March 2006, the defendant newspapers Id. at *1-2 . Michtavi, a citizen of Israel, invoked diversity jurisdiction. This matter is governed by New York law. Michtavi does not contest on appeal the dismissal of 12 any claim stemming from the statement that he was a key 13 lieutenant of Rosenstein. 14 Norton v. Sam s Club, 145 F.3d 114, 117 (2d Cir. 1998). 15 Michtavi s remaining claim, stemming from the report that he 16 planned to cooperate with the authorities, fails on the 17 ground that the statement is, as a matter of law, not 18 defamatory. Any such claim is waived. 19 II 20 Whether particular words are defamatory presents a 21 legal question to be resolved by the court in the first 22 instance. See Aronson v. Wiersma, 65 N.Y.2d 592, 594 (N.Y. 3 1 1985). 2 if it would expose an individual to shame in the minds of 3 right-thinking persons. 4 Journal, Inc., 186 N.E. 217, 218 (N.Y. 1933); see also 5 Celle v. Filipino Reporter Enters., 209 F.3d 163, 177 (2d 6 Cir. 2000). 7 as a matter of law what a right-thinking person would think, 8 and the line of cases has drawn some scholarly criticism. 9 See, e.g., Lyrissa Barnett Lidsky, Defamation, Reputation, 10 11 Under New York law, a statement is defamatory only Kimmerle v. New York Evening It is becoming increasingly hard to ascertain and the Myth of Community, 71 Wash. L. Rev. 1, 20-28 (1996). To test for defamation, courts construe the words as 12 they would be read and understood by the public to which 13 they are addressed. November v. Time, Inc., 194 N.E.2d 14 126, 128 (N.Y. 1963). The newspapers may not have been 15 addressed specifically to the prison population, but that is 16 clearly the group whose good opinion matters to Michtavi. 17 However, [t]he fact that a communication tends to prejudice 18 another in the eyes of even a substantial group is not 19 enough [to make the statement defamatory] if the group is 20 one whose standards are so anti-social that it is not proper 21 for the courts to recognize them. 22 Torts ยง 559, cmt. e (1977). 4 Restatement (Second) of 1 The population of right-thinking persons unambiguously 2 excludes those who would think ill of one who legitimately 3 cooperates with law enforcement. 4 Supp. 2d 420, 424 (S.D.N.Y. 1998) (Mukasey, J.) (noting that 5 every American court surveyed has held that identifying 6 someone as a government informant is not defamatory as a 7 matter of law); see also Connelly v. McKay, 28 N.Y.S.2d 327, 8 329-30 (Sup. Ct. N.Y. County 1941) ( At most the language 9 claimed to have been used accuses the plaintiff of giving Agnant v. Shakur, 30 F. 10 information of violations of the law to the proper 11 authorities. 12 defamatory? 13 Are such acts reprehensible? Is such language This court thinks not. ). We therefore agree with the district court that as a 14 matter of law the defendants reports were not defamatory. 15 Michtavi s other arguments are likewise without merit. 16 the foregoing reasons, we affirm. 5 For

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