Case Document Filed Page of UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK VIRGINIA GIUFFRE Plaintiff against GHISLAINE AXWELL Defendant APPEARANCES Counsel for Plaintiff BOEIS SCHILLER FLEXNER LLP USDC SDNY_ ocuMENT ELECTRONICAT LY F1LED DOC DATE FILED Civ RWS OPINION East Las Olas Boulevard Suite Fort Lauderdale FL By Sigrid Mccawley Esq Counsel for Defendant HADDON MORGAN AND FOREMAN P.C East Tenth Avenue Denver CO By Laura A Menninger Esq Case Document Filed Page of Sweet D.J Defendant has moved to dismiss the Plaintiffs complaint pursuant to Federal Rule of Civil Procedure Based on the conclusions set forth below Defendants motion is denied I Prior Proceedings Plaintiff filed a complaint in this Court on September alleging a single defamation claim See Compl Defendant sought an extension of her time to answer move or otherwise respond to Plaintiffs Complaint to November The request was granted on October By Order filed October the parties were directed to complete fact discovery by July and expert discovery by August On December Defendant filed the instant motion to dismiss and a motion to stay discovery pending a decision on the motion to dismiss or in the alternative for an extension of time Oral argument was held on both motions and the matters deemed fully submitted on January The motion to stay Some paragraph m.t:eri in Plaintiffs Complaint repeats Where cessa for clarification citations will reference page numbers either in lieu of or addition to paragraph numbering Case Document Filed Page of discovery was denied and the motion to extend granted for fourteen days by Opinion dated January II Applicable Standard On a motion to dismiss pursuant to Rule all factual allegations in the complaint are accepted as true and all inferences are drawn in favor of the pleader Mills Polar Molecular Corp F.3d 2d Cir A complaint must contain sufficient factual matter accepted as true to state a claim to relief that is plausible on its face Ashcroft Iqbal U.S quoting Bell Atl Corp Twombly U.S Ct Ed 2d A claim is facially plausible when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged Iqbal U.S at quoting Twombly U.S at In other words the factual allegations must possess enough heft to show that the pleader is entitled to relief Twombly U.S at internal quotation marks omitted Additionally while a plaintiff may plead facts alleged upon information and belief where the belief is based on Case Document Filed Page of factual information that makes the inference of culpability plausible such allegations must be accompanied by a statement of the facts upon which the belief is founded Munoz-Nagel Guess Inc No WL S.D.N.Y Apr quoting Arista Records LLC Doe F.3d 2d Cir Prince Madison Square Garden Supp 2d S.D.N.Y Williams Calderoni No WL S.D.N.Y Mar The pleadings however must contain something more than a statement of facts that merely creates a suspicion of a legally cognizable right of action Twombly U.S at citation and internal quotation omitted I The Motion to Dismiss is Denied Defendants cites four grounds for dismissal the allegedly defamatory statements are protected by the self defense privilege the allegedly defamatory statements are protected by the pre-litigation privilege the allegedly defamatory statements are non-actionable pleading defects in the Complaint specifically failure to allege adequate identifying details related to the statements and failure to plead special damages Def em in upp Mot Dismiss Compl Def.s MTD Case Document Filed Page of A The Complaint is Adequately Pled At the center of this case is the veracity of a contextual world of facts more broad than the allegedly defamatory statements Specifically as a minor Plaintiff was a victim of sustained underage sexual abuse between and Compl JI JI Plaintiff has since identified Defendant as closely involved in Plaintiffs trafficking for the purpose of this abuse Id JI JI Defendant has responded to those allegations and this case concerns those responses Plaintiff has identified two statements as allegedly defamatory The first is a statement Defendant made through her agent on January the January Statement Compl at Plaintiff alleges that the content of this statement contained actionable falsehoods in stating that Plaintiffs own allegations against Ghislaine Maxwell are untrue that Plaintiffs allegations have been shown to be untrue and that Plaintiffs claims are obvious lies Id The second concerns a January on-camera statement made to the New York Daily News the January Statement Id at JI Plaintiff alleges that this statement constitutes an actionable falsehood by referring back to the January statement in Case Document Filed Page of response to a question regarding the allegations Plaintiff had made against Maxwell Id Under New York law written defamation constituting actionable libel requires Plaintiff to plead a written defamatory statement of fact concerning the plaintiff publication to a third party fault either negligence or actual malice depending on the plaintiffs status falsity special damages or per se libel Krepps Reiner Supp 2d S.D.N.Y affd Appx 2d Cir citing Celle Filipino Reporter Enters Inc 3d 2d Cir Defendant argues that the statements in question are not susceptible to a defamatory meaning Def.s MTD at Def.s Plaintiff is a citizen of Colorado Compl The statements in question were made in New York Defendant resides in New York Plaintiff has brought suit in New York Id There is no conflict between New York and Colorado defamation law Compare Kforce Inc Alden Personnel Inc Supp 2d S.D.N.Y with Zerr Johnson Supp Colo Because New York has the most significant interest New York law applies Catalanello Kramer Supp 3d S.D.N.Y Defendant submits this argument primarily as part of the self-defense privilege argument arguing that Defendant was taking advantage of her right to generally deny the claims against her Def.s MTD at Both parties argue this point in the form of supplementary authority See Pl.s Supp Auth filed Jan Def.s Supp Auth filed Jan Because this issue goes to the heart of whether the statements Plaintiff identifies as allegedly defamatory can meet the pleading requirement of a defamatory statement of fact it will be addressed in this pleading sufficiency Part Case Document Filed Page of Reply see also Def.s Supp Auth Plaintiff submits that Defendant has effectively called her a liar while Defendant points out the word liar was never used in the statements alleged Pl.s Opp at Def.s Reply at The dispositive inquiry is whether on the basis of the over-all context in which the assertion were made a reasonable reader could have concluded that the statements were conveying facts about the plaintiff Davis Boeheim N.Y.3d N.E.3d internal citations ellipses and brackets omitted The distinction is one between fact and opinion the latter of which is non-actionable Id In distinguishing between fact and opinion the Court asks whether the specific language in issue has a precise meaning which is readily understood whether the statements are capable of being proved true or false and whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion not fact Id citations omitted The Davis court held that to communicate that sexual assault victims lied and their motive was financial gain constituted defamatory meaning Id Case Document Filed Page of Courts recently grappling with the distinction between actionable defamation and non-actionable protected speech in the context of denials of sexual assault claims have come to different conclusions In Green Cosby the Defendant had called allegations of sexual assault nothing that had proved to be nothing and an absurd fabrication No Civ MGM WL at Mass Oct In short the Defendant had denied the allegations and as here given the impression that they were wholly untrue The court concluded that given the different nature of the sexual assault allegations in this case and the wording of the denial response the court cannot conclude here that as a matter of law Defendants response is incapable of negatively impacting Plaintiff Greens reputation within the community Id at Hill Cosby involved statements that a sexual assault allegations were unsubstantiated fantastical stories that the allegations constituted innuendos that ought to have been fact-checked and vetted No Civ AJS WL at W.D.Pa The Hill court found none of the alleged statements defamatory Id at Hill is distinguishable Unlike Hill this case like Green involves statements that explicitly claim the sexual assault all ions are false Hill concerned statements that Case Document Filed Page of the sexual assault allegations were unsubstantiated The difference is slight but significant both true and false allegations can be accurately described as unsubstantiated and insufficiently vetted Vetting may make claims more or less likely to be true but lack thereof does not alone establish falsity Conversely true allegations can never be accurately described as Qproved to be nothing or absurd fabrication as in Green or obvious liesn shown to be untrue.n This case therefore requires the same finding as that in Davis and Green First statements that Giuffres claims against Defendant are untrue have been shown to be untrue,n and are obvious liesn have a specific and readily understood factual meaning that Giuffre is not telling the truth about her history of sexual abuse and Defendants role and that some verifiable investigation has occurred and come to a definitive conclusion proving that fact Second these statements as they themselves allege are capable of being proven true or false and therefore constitute actionable fact and not opinion Third in their full context while Defendants statements have the effect of generally denying Plaintiffs story they also clearly constitute fact to the reader Case Document Filed Page of Though Defendant never called Plaintiff a liar to call her claims obvious lies that have been shown to be untrue demands the same meaning Plaintiff cannot be making claims shown to be untrue that are obvious lies without being a liar Furthermore to suggest an individual is not telling the truth about her history of having been sexually assaulted as a minor constitutes more than a general denial it alleges something deeply disturbing about the character of an individual willing to be publicly dishonest about such a reprehensible crime Defendants statements clearly imply that the denials are based on facts separate and contradictory to those that Plaintiff has alleged Sexual assault of a minor is a clear-cut issue either transgression occurred or it did not Either Maxwell was involved or she was not The issue is not a matter of opinion and there cannot be differing understandings of the same facts that justify diametrically opposed opinion as to whether Defendant was involved in Plaintiffs abuse as Plaintiff has claimed Either Plaintiff is telling the truth about her story and Defendants involvement or Defendant is telling the truth and she was not involved in the trafficking and ultimate abuse of aintiff The answer depends on facts Defendants statements are therefore actionable as defamation Whether they ultimately prove to meet the standards of defamation including but not limited to falsity is a matter for the fact-finder Case Document Filed Page of Defendant also argues that the allegedly defamatory statements are non-actionable because Plaintiff has failed to provide the context within which the Statements were delivered Def.s MTD at An allegedly defamatory must be examined in the full context of the communication in which the statement appears and within its broader social context and setting Celle F.3d at Failure to providen context is not fatal to Plaintiffs complaint Plaintiff has pled the relevant elements of the January press release calling Giuffres claims false constitute defamation identifying the particular defamatory words Compl Likewise Plaintiff alleges the January statement constitutes defamation by referring back to the January statement Defendant cites dismissals of vague and conclusory defamation actions but these cases are inapposite See Def.s MTD at Plaintiffs claims are specific and reasoned defamatory on the basis of the history of sexual abuse Plaintiff sets forth in her Complaint See Compl Plaintiffs claim is therefore sufficient Plaintiff further argues that when considered in context it is clear that the January Statement was issued in self defense and in anticipation of good-faith litigation Def.s MTD at This is not a pleading defect argument but one that goes to the Defendants self defense and pre-litigation privilege arguments The court will therefore address this point in considering Defendants privilege arguments Case Document Filed Page of With respect to the January Statement Defendant argues that the claim fails for failure to plead to whom where or in what manner the statement was made Def.s MTD at Failure to state the particular person or persons to whom the allegedly slanderous or libelous comments were made as well as the time and manner in which the publications were made warrants dismissal Hawkins City of New York No Civ RWS WL at S.D.N.Y Aug collecting citations Each case Defendant cites involved a complaint so defective it lacked a claim of particular allegedly defamatory words See id failure to identify to whom the statement was allegedly made and the content of that statement J.P.R Cafeteria Inc Kingsborough Cmty Coll of City Univ of N.Y Misc 3d A N.Y.S.2d Sup Ct The Complaint fails to set forth the particular words alleged to be defamatory Cruz Marchetta No Civ WL at S.D.N.Y Oct Here Plaintiff has not pled that Defendant published any statements to the various media outlets with specificity nor demonstrated any fault Unlike the cases Defendant cites Plaintiff has alleged that the January Statement was made in a press release for distribution to the media and the public for the purposes of Case Document Filed Page of refuting Giuffres story regarding her history of sexual abuse See Compl Plaintiffs Complaint identifies the specific allegedly defamatory content by direct quotation See id By Defendants own admission the January Statement was made to media in response to Plaintiffs publicized sexual abuse history Def.s MTD at Each attributed statement responds directly to allegations and claims made by Plaintiff.n The January Statement appears inter a lia in a telegraph sic article containing the following response by Ms Maxwells spokesman made in response to repeated reputation-harming allegations Plaintiff has sufficiently pled to specificity of the content and context of the allegedly defamatory statements Defendant further argues that the January Statement is not actionable as it was a non-substantive response to reporters that amounts to a declination to comment Def.s MTD at Defendant points out the sum total of the interaction and statements recorded were as follows Defendant I wish you a happy new year and thank you so much Off-Camera Individual So youre basically not commenting is that Defendant Im referring to the statement that was made Off-Camera Individual Is any of that true Defendant Cmon guys Def.s MTD at Case Document Filed Page of Plaintiff has pled that the comment Im referring to the statement that was maden concerns the January Statement and in doing so reiterates its content Compl i If upon any reasonable view of the stated facts plaintiff would be entitled to recovery for defamation the complaint must be deemed to sufficiently state a cause of actionn that survives a motion to dismiss Davis N.Y.3d at collecting citations It is a reasonable reading that in referring to the statement that was made,n Defendant was implying the content of the previous days press release particularly in the absence of any other statement that was made Whether another listener could interpret Defendants self-described reference merely as a declination to comment does not defeat the fact that Plaintiffs alleged reading is plausible Finally Defendant argues the Complaint facially defective for failure to plead special damages Def.s MTD at However it is well established that compensable injury is presumed if the defamatory statement falls within a category of libel per se.n Computech Intl Inc Compaw Computer Corp No Civ RWS WL at S.D.N.Y May citations and internal quotation marks omitted Case Document Filed Page of Libel is actionable per se if it tends to expose another to public hatred shame obloquy contempt ridicule aversion ostracism degradation or disgrace or to induce an evil opinion of one in the minds of right thinking persons and to deprive one of ones confidence and friendly intercourse in society or tends to disparage a person in the way of his office profession or trade.ff Idema Wager Supp 2d S.D.N.Y internal marks and citations omitted Plaintiff has specifically pled libel per se on two grounds First Maxwells false statements constitute libel per se inasmuch as they exposed Giuffre to public contempt ridicule aversion and disgrace and induced an evil opinion of her in the minds of right-thinking persons.ff Compl at Second Maxwells false statements also constitute libel per se inasmuch as they tended to injure Giuffre in her professional capacity as the president of a non-profit corporation designed to help victims of sex trafficking and inasmuch as they destroyed her credibility and reputation among members of the community that seeks her help and that she seeks to serve Id It is plausible that a comment indicating that an individual is lying about a history of underage sexual abuse Case Document Filed Page of tends to expose that individual to public contempt as someone willing to lie and accuse others of a truly unfathomable and morally disgraceful course of action Society takes accusations of pedophilia and sexual abuse sufficiently seriously that it is plausible to allege that to claim an individual has made false accusations of underage sex abuse would expose that individual to public contempt ridicule aversion and disgrace in the minds of right-thinking persons Furthermore for an individual acting in the capacity of president of a non-profit corporation designed to help victims of sex trafficking publication of a false narrative of sex trafficking would tend to disparage that individual in the way of her profession Defendants argument that Plaintiff may not take advantage of this second ground on the basis that victim is not a profession ignores the valid profession of non-profit advocacy and the very real importance of perceived competence and integrity in the conduct of that profession Plaintiff has For example Somaly Mam an internationally celebrated anti-sex trafficking advocate and head of the Somaly Mam Foundation was accused of fabricating her personal story of having been trafficked Despite the irrefutable work of the Foundation on behalf of other victims of trafficking Mam was forced to resign and the Foundation closed as a result of the scandal See Gerhard Joren Somaly Mam The Holy Saint and Sinner of Sex Trafficking Newsweek May available at sex-tra ficking-251642.html see also Taylor Wofford Somaly Mam Foundation Closes Newsweek Oct available at Case Document Filed Page of therefore met her burden of adequately pleading libelous statements constituting libel per se on two independent grounds and need not plead special damages Accordingly Plaintiff has sufficiently pled a claim of defamation Defendants Intent to Assert Affirmative Privilege Defenses Does Not Justify Dismissal Defendant argues that the alleged defamatory statements are protected by the self-defense and pre-litigation privileges and thus provide grounds to dismiss Plaintiffs complaint Def.s MTD at New York courts have articulated the standard for libel and defamation using various terms not all of which explicitly include malice or the requirement that the statement in question lack privilege Ornstein Figel Supp 2d S.D.N.Y citations omitted At least some courts require a defamation claim plead lack of privilege Id citing Dillon City of N.Y N.Y.S.2d 1st Dept Roberti Schroder Inv Mgmt Am Inc No Civ LTS THK WL at S.D.N.Y Mar citing Peters Baldwin Union Free Sch Dist F.3d 2d Case Document Filed Page of Defendant acknowledges that these privileges are even if applicable qualified Def.s MTD at New York recognizes a qualified privilege to respond in self-defensen citing Kane Orange Cty Publications A.D.2d N.Y.S.2d citations omitted stating response to unfavorable publicity against the defendant is covered by a qualified privilegen Id at Statements made by attorneys and parties pertinent to good faith anticipated litigation are conditionally privileged.n Qualified privilege is an affirmative defense that must be pleaded and proved by the defendant Kroemer Tantillo A.D.2d N.Y.S.2d Plaintiff also has a right to rebut the privilege or show it was lost The affirmative privilege defenses are therefore not appropriate for resolution on a motion to dismiss Roberti WL at Defendants alternative argument that it is entitled to dismissal of the defamation claim on qualified privilege grounds must also be rejected at this stage of the litigation because a claim of qualified privilege may be rebutted Moreover to the extent the privileges do apply or lack of privilege is a requisite element of Plaintiffs claim Plaintiff has met her burden by pleading facts supporting a plausible Case Document Filed Page of conclusion that the privileges may be rebutted Under New York law a qualified or conditional privilege may exist where statements are made without malice in furtherance of a common interest Block First Blood Assoc Supp S.D.N citing Loughry Lincoln First Bank N.A N.Y.2d N.Y.S.2d N.E.2d There is no qualified privilege under New York law when such statements are spoken with malice knowledge of their falsity or reckless disregard for their truth Id Plaintiff has repeatedly pled that the January and Statement were made with malice and knowledge of their falsity Compl at The Complaint pleads adequate facts to support these conclusions See Compl at Specifically Plaintiff has pled that Maxwell assisted and participated in Giuffres trafficking and ultimate abuse See id Taking these facts to be true as the Court must it is a logically necessary conclusion that Maxwells denial of this story would be made with knowledge of falsity Maxwell could not have participated for the purpose of Plaintiffs trafficking and falsely deny that Case Document Filed Page of fact without knowledge of falsity Plaintiff has therefore pled sufficient facts to show a plausible defeat of any qualified privilege defense IV Conclusion For the foregoing reasons and as set forth above Defend ants motion to dismiss is denied It is so ordered New York NY February
