Watson v. Doe

439 F.Supp.3d 152

Ralph WATSON, Plaintiff,

v.NY DOE 1 et al., Defendants.

19cv533 (JGK)

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

Signed February 11, 2020

Michael W. Ayotte, Law Offices of Michael W. Ayotte, Hermosa Beach, CA, for Plaintiff.

Laura Pamela MacDonald, Tali Ravit Leinwand, Jenner & Block LLP, New York, NY, Christine M. Bowman, Jenner & Block LLP, Chicago, IL, for Defendant NY Doe 2.

Tyler Maulsby, Maura Wogan, Nicole Bergstrom, Frankfurt Kurnit Klein & Selz P.C., New York, NY, Rondiene Erin Novitz, Cruser, Mitchell & Novitz LLP, Farmingdale, NY, for Defendant NY Doe 3.

Ammon Louis Dorny, Gordon Rees Scully Mansukhani, LLP, Los Angeles, CA, David John Grech, Gordon & Rees, LLP, New York, NY, Tanya N. Blocker, Jamaica, NY, for Defendant Illinois Doe 1.

Errol Frederic Margolin, Margolin & Pierce, LLP, New York, NY, for Defendant Doe 1.

OPINION & ORDER

JOHN G. KOELTL, District Judge:

The plaintiff, Ralph Watson, brings this diversity action for defamation and other common law torts under New York law against Doe defendants related to alleged statements by the defendants to the effect that the plaintiff had committed acts of workplace sexual misconduct. The accusations allegedly led to the plaintiff's termination from the advertising agency Crispin, Porter & Bogusky ("CP+B"). Four defendants – Illinois Doe 1, NY Doe 2, Doe 1, and NY Doe 3 – now move to dismiss the Amended Complaint (the "Complaint"). For the reasons that follow, the motions are granted in part and denied in part .

I.

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Although the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions." Id. at 678, 129 S.Ct. 1937. When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).

II.

The following facts are taken from the Complaint, exhibits incorporated by reference in the Complaint, and documents of which this Court may take judicial notice. The facts are accepted as true for the purposes of deciding this motion.

Beginning in April 2014, the plaintiff was the Chief Creative Officer of the advertising agency, CP+B, and worked in Boulder, Colorado. Am. Compl. ¶ 20. The plaintiff alleges that, as early as October 2017, NY Doe 3 began compiling a private list of alleged male harassers in the advertising industry. Id. at ¶¶ 12, 14. Also in October 2017, NY Doe 3 allegedly helped form a group that called itself Diet Madison Avenue ("DMA") whose stated purpose was "exposing sexual harassment & discrimination in ad agencies since Oct 2017, cuz HR won't. Stories researched and confidential." Id. at ¶ 14. As part of these efforts, DMA set up Instagram, Facebook, Twitter, Snapchat, GoFundMe, Wordpress, and Gmail accounts which were allegedly jointly operated by twenty individual members including twelve people from the advertising industry, four Ph.D. students, two professors, and two lawyers. Id. at ¶¶ 14-16. The Instagram account, from which many of the alleged defamatory statements at issue in this case were made, was allegedly operated by the twelve people working in the advertising industry. Id. at ¶ 14.

In October 2017, NY Doe 3 allegedly began providing the list of alleged harassers to the operators of the DMA accounts; the list included about 150 names which at the time did not include the plaintiff's name. Id. at ¶ 15. Beginning in December 2017, the group allegedly began publicly naming men that had been subjected to DMA's alleged internal vetting process in which a "name is only released after a minimum of 6 corroborated stories." Id. at ¶¶ 15, 18.¹ DMA would then publish certain names through its social media platforms allegedly labeling men as "serial predators and rapists, attaching pig noses to pictures of the men, and repeatedly calling for their immediate firing by their employers." Id. at ¶ 18. In January 2018, the DMA Instagram account published a list of thirteen people working in the advertising industry who were alleged sexual harassers which did not include the plaintiff's name. Id. at ¶ 19. On or around January 15, 2018, DMA actively began seeking anonymous complaints of sexual harassment at specific advertising agencies, including CP+B. Id.

On January 19, 2018, DMA published an Instagram story² viewable by its roughly 7,500 followers that stated: "Ralph Watson. The women that you targeted & groomed (like all predators do), because they were young & just starting out their careers ... the women that you assumed would stay quiet are stronger than you ever gave them credit for. And their voices have created a timeline. Going back years. Corroborated stories. Spanning across multiple agencies. And even continents." Id. at ¶ 22.

Immediately following the publication of this statement on Instagram on January 19, 2018, the plaintiff contacted CP+B's human resources director in order to inquire about the source of the rumors and to assure CP+B that there was no credible evidence of sexual harassment by the plaintiff. Id. at ¶ 24. On January 25, 2018, CP+B held a "Town Hall meeting" to address the various issues raised by virtue of the publication of the January 19, 2018 Instagram story. Id. at ¶ 25. Immediately following the Town Hall meeting, at which CP+B allegedly stated that there were no credible claims of sexual harassment and that no one would be fired over the rumors, DMA published the following message by means of an Instagram Story: "Apparently during the @cpbgroup townhall today, they claimed to support the Me Too campaign ... Are they letting go of Ralph AKA the unrepentant serial predator?" Id. at ¶¶ 26-27. On the same day, January 25, 2018, DMA allegedly published an additional post stating as follows: "FYI – HR has all the reports. The things stated aren't rumors. They literally have every single report ... In other words they are lying ... So yeah, keep digging a bigger hole guys ... clearly nobody has learned a lesson." Id. at ¶¶ 28-29.

Sometime prior to February 2, 2018, NY Doe 2 lodged a complaint with the CB+P human resources department alleging that the plaintiff had sexually harassed her when she was employed at CB+P. Id. at ¶ 38. The plaintiff alleges that NY Doe 2's statement was made to the human resources department in retaliation for an incident that occurred some years before when the plaintiff had allegedly placed NY Doe 2 on probation for unsatisfactory job performance after her "unwanted and unreturned advance on Plaintiff," including an unexpected and nonconsensual kiss. Id. at ¶ 39. In October 2018, CP+B allegedly provided the plaintiff's attorney with the contents of NY Doe 2's unsworn statement. Id. at ¶ 38. The plaintiff alleged that NY Doe 2 made the statements even though the statements were categorically false. Id. at ¶ 40.

On February 2, 2018, CB+P terminated the plaintiff, allegedly for cause; the plaintiff claims he had been "an exemplary performer during his entire tenure with the agency and [had] no prior complaints of sexual impropriety lodged against him at any time." Id. at ¶ 30. The plaintiff's termination came after an alleged three-or-four-day investigation in which the plaintiff was allegedly never presented with the identities of his accusers, any specific instances of misconduct, or any supporting evidence. Id. at ¶ 34.

Shortly after the plaintiff's termination, DMA posted the following by means of an Instagram story: "Ralph Watson, Chief Creative Officer of @cpbgroup has been fired. To the nine particular women who shared painful stories with us. We support you all so much. You are incredibly strong & brave. None of you deserved what happened to you." Id. at ¶ 41; Dorny Decl., Ex. C. Around this time, Illinois Doe 1, an alleged member of DMA, published the "nine particular women" post as a public Facebook comment on another public Facebook account's post that had shared an Adweek news article reporting the plaintiff's termination. Am. Compl. ¶ 42. Specifically, in response to comments made on the post of the Adweek article in which various commenters speculated on the plaintiff's termination – "I worked for Ralph at Goodby. I'd be surprised if it was sexual harassment," "I worked with him as well and agree," and "This would be a terrible time to get fired quietly for creative differences" – Illinois Doe 1 interjected that "9 women reported him." Dorny Decl., Ex. C. Shortly thereafter, Illinois Doe 1 posted a screenshot of DMA's "nine particular women" Instagram story. Id. Around the same time, several private text messages between women assisting DMA allegedly discussed the plaintiff's termination, stated...