Ctr. for Med. Progress v. Planned Parenthood Fed'n of Am.

551 F.Supp.3d 320

The CENTER FOR MEDICAL PROGRESS and David Daleiden, Plaintiffs,

v.PLANNED PARENTHOOD FEDERATION OF AMERICA, Defendant.

No. 20 Civ. 7670 (CM)

United States District Court, S.D. New York.

Signed July 27, 2021

Harmeet Kaur Dhillon, Dhillon Law Group Inc., San Francisco, CA, Ronald David Coleman, Dhillon Law Group Inc., New York, NY, Off Christopher A. Ferrara, Whitestone, NY, for Plaintiffs.

Diana Katherine Sterk, Dori Ann Hanswirth, Arnold & Porter Kaye Scholer LLP, New York, NY, for Defendant.

MEMORANDUM AND ORDER DISMISSING PLAINTIFFS’ COMPLAINT

McMahon, U.S.D.J.

Plaintiffs, the Center for Medical Progress ("CMP") and David Daleiden, bring this action against Planned Parenthood Federation of America ("PPFA"). Between 2016 and 2019, the parties were embroiled in a lawsuit – in which PPFA ultimately prevailed – after Plaintiffs infiltrated conferences using false identities, surreptitiously recorded conversations with abortion providers using hidden cameras, and released portions of those recordings online. Daleiden and an associate presently face criminal charges for the same conduct.

In reaction to rulings in those court cases, PPFA released two statements that were critical of Plaintiffs. Plaintiffs now allege that discrete portions of those statements are defamatory.

PPFA moves to dismiss the complaint for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6). PPFA's motion is GRANTED.

BACKGROUND

I. Factual Background

A. PPFA's Lawsuit Against Plaintiffs

Plaintiffs are active in the anti-abortion movement.

In 2013, Plaintiffs embarked on an "investigative reporting project," in connection with their anti-abortion activities. Daleiden and several others attended abortion industry conferences using assumed names and fake IDs, and secretly recorded conversations with abortion providers. (Compl. ¶ 13.) Plaintiffs released these videos, including "shorter summary version[s]" in 2015 as part of their "Human Capital Project." (Id. ¶¶ 12, 14.) The point of the project was to assert that PPFA was involved in the illegal sale of fetal tissue – a claim that has been widely debunked.¹

The videos generated a tremendous amount of attention, controversy, and litigation.

In January 2016, PPFA and several affiliates of Planned Parenthood filed a fifteen-count lawsuit in the Northern District of California against several defendants, including CMP and Daleiden, alleging, among other things, fraud, trespass, invasion of privacy, and civil RICO violations. ("California Civil Case"; Compl. ¶ 20.) PPFA did not assert a defamation counterclaim or bring a defamation claim against the defendants at that time. (Id. ¶ 21.)

PPFA prevailed on all its claims, and the jury awarded the plaintiffs more than $2 million in damages, including $870,000 in punitive damages.²

Daleiden and his associate, Sandra Merritt, are also facing criminal charges in San Francisco Superior Court for illegal recording, aided by use of false identities, identification documents, and a fictitious company. ("California Criminal Case"; see Defs. Mot. Exs. 4, 5.) Daleiden filed a motion to dismiss nine counts against him, which was denied on July 28, 2020. The criminal case is expected to go to trial sometime during 2021.

B. The Allegedly Defamatory Statements

On September 18, 2019, the San Francisco Superior Court denied Daleiden's motion to quash a search warrant that was executed on his apartment in connection with the California Criminal Case. That day, PPFA's Senior Vice President of Communications and Culture, Melanie Newman, issued a public statement, in which she said that Daleiden and Merritt should face the legal consequences of their "multiyear illegal effort to manufacture a fake smear campaign against Planned Parenthood." (Compl. ¶ 26, "First Challenged Statement.")

On November 15, 2019, after the jury found in favor of PPFA in the California Civil Case, PPFA posted to its Twitter feed, "We're thrilled with today's verdict, which found that the so-called ‘Center for Medical Progress,’ David Daleiden, and others who created a false smear campaign against Planned Parenthood broke multiple state and federal laws." (Compl. ¶ 27, "Second Challenged Statement.")

Plaintiffs allege that the similar phrases "manufacture a fake smear campaign" and "created a false smear campaign" are defamatory. They allege that the videos they recorded and released are true, and that "a reasonable reader would have understood the statements to mean that Plaintiffs had ‘created’ or ‘manufactured’ video footage that was ‘false’ or ‘fake’ in an effort to harm (‘smear’) Defendant." (Compl. ¶ 38.) Plaintiffs allege further that these statements are defamatory per se because they tend to harm them in their claimed profession of "truthful and accurate investigative reporting by use of authentic video footage, and the statements accused them of false and deceitful reporting and producing inauthentic video footage." (Compl. ¶ 39.)

C. The Parties

Plaintiff CMP is a non-profit public benefit corporation that "comprises a group of citizen journalists dedicated to monitoring and reporting medical ethics and advances with a special focus on bioethical issues impacting human dignity." (Compl. ¶ 8.) It is an active anti-abortion group. CMP has its principal place of business and registered office in California.

Plaintiff Daleiden claims to be "an investigative journalist who founded CMP to monitor and report on medical ethics and advances." (Compl. ¶ 7.) Daleiden resides in California.

Defendant PPFA is a 501(c)(3) nonprofit organization headquartered in New York. (Compl. ¶ 9.)

DISCUSSION

II. Legal Standard

To survive a motion to dismiss made pursuant to either Federal Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. When evaluating whether the Complaint meets this standard, the Court must accept all factual allegations as true and draw all reasonable inferences in Plaintiff's favor. ATSI Comms., Inc. v. Shaar Fund, Ltd. , 493 F.3d 87, 98 (2d Cir. 2007). The Court is not, however, obligated to accept as true legal conclusions couched as factual allegations. Rolon v. Henneman , 517 F.3d 140, 148–49 (2d Cir. 2008) ; see also Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Unless a plaintiff's well-pleaded allegations have "nudged [its] claims across the line from conceivable to plausible, [the plaintiff's] complaint must be dismissed." Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ; Iqbal , 556 U.S. at 680, 129 S.Ct. 1937.

"In determining the adequacy of a claim under Rule 12(b)(6), consideration is limited to facts stated on the face of the complaint, in documents appended to the complaint or incorporated into the complaint by reference, and to matters of which judicial notice may be taken." Allen v. WestPoint-Pepperell, Inc. , 945 F.2d 40, 44 (2d Cir. 1991). The court may consider the full text of documents that are cited in, incorporated by reference in, or "integral" to the complaint. San Leandro Emergency Med. Grp. Profit Sharing Plan v. Philip Morris Companies, Inc. , 75 F.3d 801, 809 (2d Cir. 1996).

III. Analysis

Plaintiffs assert a defamation per se claim against Defendants in connection with the two challenged statements: (1) the quote from Newman, in the September 18, 2019 Rewire article (First Challenged Statement), and (2) PPFA's November 15, 2019 Tweet (Second Challenged Statement).

Defamation is the injury to one's reputation either by written expression, which is libel, or by oral expression, which is slander. See Morrison v. Nat'l Broad. Co. , 19 N.Y.2d 453, 280 N.Y.S.2d 641, 227 N.E.2d 572, 574 (1967). The law of defamation serves to protect an individual's right to one's reputation. See Gertz v. Welch , 418 U.S. 323, 343–45, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

However, courts have held that, "Because a defamation suit may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself, courts should, where possible, resolve defamation actions at the pleading stage." Adelson v. Harris , 973 F. Supp.2d 467, 481 (S.D.N.Y. 2013), (internal quotations and citations omitted), aff'd , 876 F.3d 413 (2d Cir. 2017).

To establish libel under New York law, a plaintiff must prove five elements: "(1) a written defamatory factual statement [of and] concerning the plaintiff; (2) publication to a third party; (3) fault; (4) falsity of the defamatory statement; and (5) special damages or per se actionability." Chau v. Lewis , 771 F.3d 118, 126–27 (2d Cir. 2014). Falsity is a necessary element of a defamation cause of action and because "only ‘facts’ are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action." Rosner v. Amazon.com , 18 N.Y.S.3d 155, 157, 132 A.D.3d 835 (2d Dep't 2015) (internal quotations and citations omitted). "Whether particular words are defamatory presents a legal question to be resolved by the court in the first instance." Celle v. Filipino Rep. Enters., Inc. , 209 F.3d 163, 176 (2d Cir. 2000).

Defendants moves to dismiss the Complaint on grounds that (1) the Challenged Statements are nonactionable, (2) Plaintiffs are libel-proof, and (3) Plaintiffs failed to plead defamation per se.

A. The Challenged Statements Are Nonactionable

Defendant asserts that the Challenged Statements are nonactionable because they are (1) privileged under Section 74 of the New York Civil Rights Law, (2) nonactionable statements of opinion, and (3) substantially true. The first and third arguments are correct; the Court need go no further in order to dismiss the...