Combier v. Portelos

ELIZABETH BETSY COMBIER, Plaintiff, v. FRANCESCO PORTELOS, LUCIO CELLI,BRYAN GLASS, ESQ., JORDAN HARLOW,ESQ., CARMEN FARINA, and NEW YORK CITY DEPARTMENT OF EDUCATION, Defendants.

LUCIO CELLI, Counterclaimant, v. ELIZABETH BETSY COMBIER, Counter-Defendant.

17-CV-2239 (MKB) (RLM)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 28, 2018

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiff Elizabeth Betsy Combier, proceeding pro se, commenced the above-captioned action on April 13, 2017, against Defendants Francesco Portelos, Lucio Celli, Bryan Glass, Esq., and Jordan Harlow, Esq. (the "Individual Defendants"), and against the New York City Department of Education (the "DOE") and Carmen Fariña, the former Chancellor of the DOE, (together, the "DOE Defendants"). (Compl., Docket Entry No. 1.) Plaintiff filed an Amended Complaint on April 28, 2017, (Am. Compl., Docket Entry No. 5), and subsequently filed a Second Amended Complaint on December 12, 2017, asserting violations of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et seq. ("CFAA"), the Stored Communications Act, 18 U.S.C. § 2701 et seq. ("SCA"), constitutional violations under 42 U.S.C. § 1983, and various claims under New York state law, (Sec. Am. Compl. ("SAC"), Docket Entry No. 39). Defendants moved to dismiss the SAC for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Celli Mot. to Dismiss ("First Celli Mot."), Docket Entry No. 44; Portelos Mot. to Dismiss ("Portelos Mot."), Docket Entry No. 57; DOE Defs. Mot. to Dismiss ("DOE Defs. Mot."), Docket Entry No. 51; Glass and Harlow Mot. to Dismiss ("Glass and Harlow Mot."), Docket Entry No. 68 (collectively "Mots. to Dismiss").) Celli also separately moved to dismiss the SAC for failure to prosecute. (Mot. to Dismiss ("Second Celli Mot."), Docket Entry No. 60.) On April 4, 2018, the Court referred Defendants' motions to Magistrate Judge Roanne L. Mann for a report and recommendation. (Order dated Apr. 4, 2018.)

By report and recommendation dated July 5, 2018 (the "R&R"), Judge Mann recommended that the Court grant the motions to dismiss pursuant to Rule 12(b)(6). Plaintiff filed objections to the R&R on July 23, 2018. (Pl. Obj. to R&R ("Pl. Obj."), Docket Entry No. 138.) For the reasons set forth below, the Court adopts the R&R in its entirety.

Celli also filed counterclaims against Plaintiff, as well as various additional motions. (See Def. Countercl., Docket Entry No. 46; (Mot. for Statement, Docket Entry No. 45; Mot. to Stay Seal, Docket Entry No. 61; Mot. to Unseal, Docket Entry No. 62.) The Court also considers Celli's counterclaims and motions. For the reasons set forth below, the Court dismisses Celli's counterclaims and motions.

I. Background

a. Factual background

The Court assumes the truth of the factual allegations in the SAC for the purposes of this Memorandum and Order.

This case involves what is essentially a dispute between private parties competing to represent tenured New York City public school teachers in disciplinary hearings ("3020-a hearings"). (See generally SAC.) Since 2010, Plaintiff has been self-employed as an advocate for tenured New York City public school teachers subject to 3020-a hearings, and also assists attorneys in such hearings. (Id. at 5, 15.)¹ She is also the editor of several websites and blogs pertaining to education and her advocacy practice. (See id. at 6.) Plaintiff alleges that in an effort to destroy her business as a non-attorney advocate, the Individual Defendants engaged in a scheme to hack into her website, alter the content of her blog, and disseminate false information about her, through, inter alia, internet postings and mass emails. (See id.) The Individual Defendants "broadcast[ed]" a false accusation that Plaintiff was practicing law without a license and should be prosecuted for participating in 3020-a hearings. (Id. at 20.)

Beginning in 2011, Plaintiff worked with attorneys Glass and Harlow on 3020-a hearings. (Id. at 8, 15.) At some point thereafter, Glass and Harlow sought to steal Plaintiff's clients, in part by speaking negatively about Plaintiff to her clients. (Id. at 8-10, 15.) Beginning in September of 2015, Celli, a DOE teacher acting at the direction of Portelos, another DOE teacher, engaged in a scheme designed to harm Plaintiff's business by defaming Plaintiff and her friends, thereby denying her "the right to earn money." (Id. at 8, 19.) From November of 2015 to the present, Portelos and Celli also spread negative information about Plaintiff through mass emails and postings on Portelos' Facebook page, website, and other social media. (Id. at 20-21.) In March of 2016, Celli sent a series of emails to about fifty addresses, including those of the Manhattan and Bronx District Attorneys and other public officials and members of the media,accusing Plaintiff of working against teachers and colluding with the General Counsel of the DOE. (Id. at 21.) In July or August of 2016,² Portelos hacked into Plaintiff's blog, "NYC Rubber Room Reporter," deleted a section titled "The 3020-a Arbitration Newswire," and, on September 30, 2016, added the deleted section to his own website. (Id. at 7, 22.)

Portelos, Celli, Glass and Harlow also created a poster of Plaintiff, threatening her with criminal prosecution for allegedly posting a former client's Social Security number on her website (the "Poster"). (SAC 22, 23; see also Pl. Opp'n to Mots. to Dismiss ("Pl. Opp'n") at 55, Docket Entry No. 67).) On September 21, 2017, "[w]ith the support of the [I]ndividual Defendants in this case," Plaintiff's former client filed a complaint against Plaintiff with the West Milford, New Jersey, Police Department for posting his Social Security number. (Id. at 23, 25.) Individual Defendants used the Poster to solicit Plaintiff's former clients to "sign up" to be refunded the money they had paid Plaintiff. (Id. at 23-24.)

On October 19, 2016, Portelos sent an email to teachers in New York City and Los Angeles, warning them about Plaintiff rendering "illegal legal consultation" to a teacher in connection with the teacher's 3020-a hearing. (Id. at 24.) Portelos posted articles on another blog, "nycrubberroom.com," and listed Plaintiff's foundation, the E-Accountability Foundation, as the owner of the blog with Plaintiff's home address and telephone number, without Plaintiff's knowledge. (Id. at 25.) As a result, in March of 2017, a photographer threatened Plaintiff with a federal lawsuit for posting a photograph taken by him on the blog without his authorization. (Id.) On December 4, 2017, Portelos posted false information on the website for UFT Solidarity, an advocacy group he started and of which Celli is a member, alleging that the Manhattan DistrictAttorney's Office was investigating Plaintiff. (Id. at 25.)

The SAC contains virtually no allegations regarding Chancellor Fariña or the DOE. (See generally id.) Plaintiff contends that the DOE "bears vicarious liability" for the acts of the Individual Defendants for failing to supervise its employees and enforce its internet and computer abuse policies. (Id. at 11.) According to Plaintiff, the DOE was aware of the Individual Defendants' scheme to malign Plaintiff's reputation but did not act to prevent it. (Id. at 19.) In addition, Plaintiff alleges that Celli and Portelos sent the mass emails disparaging Plaintiff using their DOE email addresses and/or DOE computers during the school day, in violation of DOE policies, without repercussion. (Id. at 26.)

b. Procedural background

Plaintiff, initially represented by counsel, commenced this action on April 13, 2017, (Compl.), and amended her Complaint on April 28, 2017, (Am. Compl.). Following the withdrawal of Plaintiff's counsel, (see Order dated Aug. 22, 2017, Docket Entry No. 31), Defendants requested a pre-motion conference in anticipation of filing motions to dismiss, (Mot. for PMC, Docket Entry No. 26). At a pre-motion conference held on October 3, 2017, the Court dismissed Plaintiff's section 1983 claims against Defendants and granted Plaintiff thirty days to further amend her pleading to assert facts supporting a federal claim. (See Minute Order dated Oct. 3, 2017.) Plaintiff filed the SAC on December 12, 2017, restating her claims under section 1983 and adding federal claims under the CFAA and SCA. (See SAC.) In response, Defendants moved to dismiss. (See Mots. to Dismiss.)

c. Judge Mann's recommendations

Judge Mann recommended that the Court grant Defendants' motions to dismiss the SAC. (See R&R.) Judge Mann found the SAC fails to satisfy the pleading requirements of Rule 8 ofthe Federal Rules of Civil Procedure because it is "rambling," "filled with extraneous details," and "fails to differentiate among the various defendants." (Id. at 10.)

Judge Mann also found that Plaintiff's section 1983 claims against the Individual Defendants fail because they were not acting under color of state law with respect to the alleged wrongful conduct. (Id. at 10-15.) Judge Mann also found that section 1983 liability does not attach to the DOE because (1) the DOE had no duty to protect Plaintiff from private conduct, (2) Plaintiff has not alleged the existence of a municipal policy, custom, or practice that caused the claimed civil rights violation, and, (3) even if Portelos and Celli acted under color of law, municipalities are not liable under section 1983 for the actions of their employees. (Id. at 15-18.) As to the section 1983 claims against Fariña, Judge Mann found that she could not be liable under section 1983 absent personal involvement or constitutional violations by either Portelos or Celli. (Id. at 18-19.)

In addition, Judge Mann recommended that the Court dismiss Plaintiff's CFAA claims against Portelos and Celli because Plaintiff alleges only "non-economic losses such as reputational harms and emotional distress," and her claim that an interruption in service caused her $5000 in...