14-740-cv
Kavanagh v. Zwilling
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 17th day of September, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 CHRISTOPHER F. DRONEY,
8 Circuit Judges,
9
10 LEWIS A. KAPLAN,
11 District Judge.*
12
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14 CHARLES M. KAVANAGH,
15 Plaintiff-Appellant,
16
17 -v.- 14-740-cv
18
19 JOSEPH ZWILLING, JOHN WOODS,
20 ARCHDIOCESE OF NEW YORK, CATHOLIC NEW
21 YORK,
22 Defendant-Appellees.
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*
The Honorable Lewis A. Kaplan, United States District
Judge for the Southern District of New York, sitting by
designation.
1
1 FOR APPELLANT: DAVID R. PARKER, Charfoos &
2 Christensen, P.C., Detroit,
3 Michigan.
4
5 FOR APPELLEES: JOHN M. CALLAGY (Nicholas J.
6 Panarella, on the brief), Kelley
7 Drye & Warren LLP, New York, New
8 York.
9
10 Appeal from a judgment of the United States District
11 Court for the Southern District of New York (Furman, J.).
12
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14 AND DECREED that the judgment of the district court be
15 AFFIRMED.
16
17 Charles Kavanagh appeals from the judgment of the
18 United States District Court for the Southern District of
19 New York (Furman, J.), dismissing his complaint for failure
20 to state a cause of action. We assume the parties’
21 familiarity with the underlying facts, the procedural
22 history, and the issues presented for review.
23
24 We review a district court’s dismissal of a complaint
25 under Rule 12(b)(6) de novo, “accepting all factual claims
26 in the complaint as true, and drawing all reasonable
27 inferences in the plaintiff’s favor.” Famous Horse Inc. v.
28 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). We
29 do not accept as true conclusions unsupported by the facts
30 alleged, legal conclusions, bald assertions, or unwarranted
31 inferences. Bell Atl. Corp. v. Twombley, 550 U.S. 544, 555-
32 56 (2007). To avoid dismissal, a plaintiff must plead
33 “enough facts to state a claim to relief that is plausible
34 on its face,” and not merely “conceivable.” Id. at 570.
35
36 1. Kavanagh argues that the district court erred in
37 dismissing his claim of defamation by implication because
38 the press release of the Archdiocese, while true, suggests
39 he was convicted of multiple criminal violations in a
40 secular court with full due process of law. “To survive a
41 motion to dismiss a claim for defamation by implication
42 [under New York law] . . . the plaintiff must make a
43 rigorous showing that the language of the communication as a
44 whole can be reasonably read both to impart a defamatory
45 inference and to affirmatively suggest that the author
46 intended or endorsed that inference.” Stepanov v. Dow Jones
47 & Co., 987 N.Y.S.2d 37, 44 (1st Dep’t 2014).
2
1 Kavanagh’s complaint does not satisfy the Stepanov test
2 for at least three reasons. First, the press release stated
3 that Kavanagh was disciplined by a “church court.” J.A. at
4 33. No further information regarding the nature of the
5 tribunal would be needed--especially in a publication
6 directed to the local Catholic community. See Biro v. Conde
7 Nast, 883 F. Supp. 2d 441, 466 (S.D.N.Y. 2012). Second,
8 Kavanagh’s challenge to the use of the word “counts” in the
9 press release, which he characterizes as prosecutorial,
10 abstracts the word from its context: the statement plainly
11 states that the conviction arose in a religious court. See
12 James v. Gannett Co., 40 N.Y.2d 415, 419 (1976) (In
13 reviewing an allegedly defamatory statement, a court should
14 “not pick out and isolate particular phrases but will
15 consider the publication as a whole.”). Third, Kavanagh’s
16 complaint fails to allege that the defendants “intended or
17 endorsed” the native inference allegedly made in the press
18 release. Stepanov, 987 N.Y.S.2d at 44.
19
20 2. As to Kavanagh’s libel per quod claim, the failure
21 to plead special damages is a “fatal defect.” Idema v.
22 Wagner, 120 F. Supp. 2d 361, 368 (S.D.N.Y. 2000); see also
23 Ava v. NYP Holdings, Inc., 885 N.Y.S.2d 247, 251 n.3 (1st
24 Dep’t 2009); Sharratt v. Hickey, 799 N.Y.S.2d 299, 301 (3d
25 Dep’t 2005). (Kavanagh never sought to amend his complaint
26 in the district court.)
27
28 For the foregoing reasons, and finding no merit in
29 Kavanagh’s other arguments, we hereby AFFIRM the judgment of
30 the district court.
31
32 FOR THE COURT:
33 CATHERINE O’HAGAN WOLFE, CLERK
34
3