08-2111-cv Michtavi v. New York Daily News, The Polish Daily News, Mathew Kalman, Does #1-#10

1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2009 6 7 8 (Submitted: October 23, 2009 Decided: November 25, 2009) 9 10 Docket No. 08-2111-cv 11 12 - - - - - - - - - - - - - - - - - - - -x 13 14 SHEMTOV MICHTAVI, 15 16 Plaintiff-Appellant, 17 18 - v.- 08-2111-cv 19 20 NEW YORK DAILY NEWS, THE POLISH DAILY NEWS, 21 MATHEW KALMAN, DOES #1-#10 22 23 Defendants-Appellees. 24 25 - - - - - - - - - - - - - - - - - - - -x 26

27 Before: JACOBS, Chief Judge, KEARSE, Circuit 28 Judge, and GARDEPHE,* District Judge. 29 30 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. The district court held that the reports could

3 not be defamatory under New York law. We affirm.

4 Shemtov Michtavi, pro se, White 5 Deer, Pennsylvania, for Appellant. 6 7 Marion Bachrachm, Dana Moskowitz, 8 DePetris & Bachrach, LLP, New York, 9 NY; Laura R. Handman, Davis Wright 10 Tremaine LLP, Washington DC; Anne B. 11 Carroll, Deputy General Counsel, 12 Daily News, L.P., New York, NY, for 13 Appellees. 14 15 16 DENNIS JACOBS, Chief Judge: 17 18 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. Michtavi appeals from the

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). Michtavi v. New

27 York Daily News, No. 06-Civ-8260,

24997, *2-5 (S.D.N.Y. Mar. 12, 2008) . The district court

29 held that the reports could not be defamatory under New York

2 1 law, and we agree.

2 I

3 Michtavi is serving a twenty-year prison sentence for

4 narcotics offenses. In March 2006, the defendant newspapers

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.

at *1-2 .

9 Michtavi, a citizen of Israel, invoked diversity

10 jurisdiction. This matter is governed by New York law.

11 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. Any such claim is waived.

14 Norton v. Sam’s Club,

(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.

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,

, 594 (N.Y.

3 1 1985). Under New York law, a statement is defamatory only

2 if it would expose an individual to shame “in the minds of

3 right-thinking persons.” Kimmerle v. New York Evening

4 Journal, Inc.,

(N.Y. 1933); see also

5 Celle v. Filipino Reporter Enters.,

(2d

6 Cir. 2000). It is becoming increasingly hard to ascertain

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 and the Myth of Community,

, 20-28 (1996).

11 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.,

(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.” Restatement (Second) of

22 Torts § 559, cmt. e (1977).

4 1 The population of right-thinking persons unambiguously

2 excludes “those who would think ill of one who legitimately

3 cooperates with law enforcement.” Agnant v. Shakur,

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,

,

8 329-30 (Sup. Ct. N.Y. County 1941) (“At most the language

9 claimed to have been used accuses the plaintiff of giving

10 information of violations of the law to the proper

11 authorities. Are such acts reprehensible? Is such language

12 defamatory? This court thinks not.”).

13 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. For

16 the foregoing reasons, we affirm.

5