11‐5240
JMB Group, Inc. v. Patisso
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE
A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 3rd day of April, two thousand fourteen.
PRESENT:
RICHARD C. WESLEY,
SUSAN L. CARNEY,
Circuit Judges,
RICHARD K. EATON,*
Judge.
_________________________________________
Antonio Ferri,
Plaintiff,
v. 11‐5240
Jan M. Berkowitz, Adrienne Berkowitz, Sherry Aiken,
Edward Fortin, Edward Grieco, Robert Harris,
Edward Wilson, JMB Group, LLC, HDG
International Group, Inc.,
Defendants,
and
*
Judge Richard K. Eaton, of the United States Court of International Trade, sitting
by designation.
JMB Group, LLC, Jan M. Berkowitz,
Third‐Party‐Plaintiffs ‐
Appellants,
v.
Matteo Patisso,
Third‐Party‐Defendant ‐
Appellee,
Liquid Brick, Inc., National Fraud Constable,
Third‐Party‐Defendants.
_________________________________________
FOR APPELLANTS: Bruce E. Baldinger, Morristown, NJ.
FOR APPELLEE: Matteo Patisso, pro se, Huntington Station, NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Wexler, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
Appellants Jan Berkowitz and his company, JMB Group, LLC, through
counsel, appeal from the judgment of the district court granting default judgment
in their favor, but refusing to award damages or permanent injunctive relief. We
assume the parties’ familiarity with the case.
2
Pursuant to New York law, per se defamation is defined as, inter alia,
statements charging plaintiff with a serious crime, or tending to injure him in his
trade, business or profession. Liberman v. Gelstein, 80 N.Y.2d 429, 435 (1992).
“When statements fall within one of these categories, the law presumes that
damages will result,” and a plaintiff, therefore, need not plead nor prove special
damages, or “the loss of something having economic or pecuniary value.” Id. at
434‐35 (internal quotation marks omitted). It was therefore error for the district
court to dismiss Appellants’ claim of damages as speculative. Appellants may also
be able to show specific pecuniary harm, but presumed damages exist precisely
because damage to a plaintiff’s reputation often “cannot be proved with
mathematical accuracy.” N.Y. Pattern Jury Instr.‐‐Civil 3:29. Under New York law,
fact finders are free to consider the “plaintiffʹs standing in the community, the
nature of defendantʹs statement made about the plaintiff, the extent to which the
statement was circulated, the tendency of the statement to injure a person such as
the plaintiff, and all of the other facts and circumstances in the case” in order to
determine “[f]air compensation,” which can “rang[e] from one dollar . . . to a
substantial sum.” Id.
Following a default, the court takes as true the well pleaded allegations in
the complaint, but does not assume that the amount prayed for accurately states
damages. Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d
3
105, 111 (2d Cir. 1997). We therefore reverse and remand for the court to hold an
inquest on damages as necessary. Id.; see Wright & Miller, 10A Fed. Prac. & Proc.
Civ. § 2688 (3d ed.). Since the district court also denied sub silentio Appellants’
claim for punitive damages the court should consider in the first instance whether
punitive damages are appropriate. Prozeralik v. Capital Cities Commcʹns, Inc., 82
N.Y.2d 466, 479‐80 (1993) (discussing the standard for punitive damages in
defamation cases).2
Finally, we find no abuse of discretion in the district court’s denial of
Appellants’ request for injunctive relief. Constitutional concerns and long tradition
make courts often wary of enjoining defamation. Metro. Opera Assʹn, Inc. v. Local
100, Hotel Employees & Rest. Employees Intʹl Union, 239 F.3d 172, 177 (2d Cir. 2001);
Dan B. Dobbs, Paul T. Hayden and Ellen M. Bublick, The Law of Torts § 576 (2d
ed.).3 The proposed injunction barred not only defamatory statements, but any
“negative statements or comments” by Appellee about Appellants or Berkowitz’s
2
In light of the partial remand of the case, we need not reach Appellants’
argument that the district court erred in failing to memorialize in the judgment a $300
discovery sanction. Appellants are free on remand to ask the district court to consider
this argument.
3
Although courts are wary of enjoining speech, unprotected speech, like
defamation, may be enjoined in extraordinary circumstances. Metro. Opera Assʹn, Inc.,
239 F.3d at 177. On remand the district court remains free to craft a narrow injunction
that applies only to Appellee’s unprotected speech, should the court so choose.
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family, business associates, or lawyers. The district court reasonably concluded
that this language was over‐broad and vague.
We have considered the parties’ remaining arguments and find them
without merit. For the foregoing reasons, the judgment of the district court is
hereby AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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