Deaton v. Napoli

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JOHN DEATON and MARIA F. DEATON,

Plaintiffs, MEMORANDUM AND ORDER

-against- 17-CV-4592 (RRM) (GRB)

PAUL NAPOLI and MARIE NAPOLI,

Defendants.

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ROSLYNN R. MAUSKOPF, United States District Judge.

Plaintiffs John Deaton and Maria F. Deaton (“the Deatons”), proceeding pro se, bring this

action pursuant to the Court’s diversity jurisdiction, alleging defamation and tortious interference

with business relations by defendants Paul Napoli and Marie Napoli (“the Napolis”). Presently

before the Court is the Napolis’ motion for judgment on the pleadings, pursuant to Rule 12(c) of

the Federal Rules of Civil Procedure. For the reasons that follow, the motion is granted and the

amended complaint is dismissed.

BACKGROUND1

The Deatons are attorneys in Rhode Island who were previously married. (Am. Compl.

(Doc. No. 28) at ¶ 11.) The Deatons filed for divorce on June 5, 2007, and a formal divorce

hearing was held on December 18, 2007. (Id. at ¶ 31.) John Deaton is the owner of the Deaton

Law Firm, LLC, which is headquartered in Rhode Island and almost exclusively practices

asbestos litigation. (Id. at ¶ 12.) The Napolis are attorneys who reside in New York. (Id. at ¶¶

1 The following facts are drawn from the amended complaint and its attachments, and are assumed true for the

purpose of this Order. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The facts of this case

are also set forth in the January 10, 2019, Order of the Honorable Joseph F. Bianco, to whom this case was

originally assigned. See Deaton v. Napoli, No. 17-CV-04592 (JFB) (GRB), 2019 WL 156930 (E.D.N.Y. Jan. 10,

2019) (finding New York law applies to this case).

4, 5, 12.) The Deaton Law Firm is a competitor of Paul Napoli’s former firm, Napoli Bern Ripka

Shkolnik LLP (“Napoli Bern”). (Id. at ¶ 12.)

In November 2007, John Deaton employed a woman named Vanessa Dennis. (Id. at ¶

14.) Dennis worked as an associate or paralegal at the Deaton Law Firm for several years before

giving her notice in December 2010. (Id. at ¶¶ 14–15.) Shortly thereafter, she began working at

Napoli Bern, where it is alleged that she had a relationship with Paul Napoli. (Id. at ¶¶ 15–16.)

As the amended complaint further alleges, the relationship was discovered by Marie Napoli, and

Dennis was fired from Napoli Bern. (Id. at ¶ 16.) Several lawsuits have been filed related to

these circumstances. (Id. at ¶ 17.)

On May 21, 2013, Marie Napoli sent a Facebook message to the Deatons, asking whether

John had a relationship with Dennis, and whether that had caused their divorce. (Id. at ¶ 19.)

John denied the relationship and claimed that the divorce was not due to infidelity. (Id.) He told

Marie that his divorce was underway before he ever met and hired Dennis, and he asked Marie

not to contact him or his family again. (Id.) She replied, “I want to know so I can warn any

future employer’s wives of this if it [is] a recurring problem.” (Id.)

The Deatons allege that despite John Deaton’s denial, Marie Napoli proceeded to make

knowingly false statements about a relationship between John Deaton and Vanessa Dennis in

letters, emails, texts, and social media messages. (Id. at ¶ 18.) First, on August 27, 2013, Marie

Napoli posted on Dennis’ Facebook page: “[Dennis] has lost her last two jobs for sexually

perusing [sic] her last two bosses who were both married at the time. It ended badly.” (Id. at ¶

20; 8/27/2013 Facebook Post, Pls.’ Ex. A to Am. Compl.) A few months later, around

November 2013, Marie Napoli wrote letters to two wives of Dennis’ “current employers,” who

reside in Houston, Texas, and who are referred to as Mrs. Shroder and Mrs. Stomel in the

amended complaint. (Am. Compl. at ¶ 21.) The amended complaint’s reference to “current

employers” appears to refer to Shrader & Associates LLP., a Texas-based law firm focusing on

asbestos litigation, where Dennis began working after she was fired from Napoli Bern. (Id. at ¶

18 & n.1.) The letters intended to warn the women about Dennis’ history with her former

bosses, stating that Dennis “assisted her previous boss in his divorce” and that he “bought her a

Mercedes and expensive gifts.” (Id. at ¶ 21; Letters from Marie Napoli, Pls.’ Ex. B and Ex. F to

Am. Compl.) The letters stated that Dennis had received harassing emails from John Deaton,

that she was “petrified to see him,” and that after Marie Napoli contacted Maria Deaton, Maria

would not allow John Deaton to see his children. (Am. Compl. at ¶ 21.) 2

Shrader & Associates previously had a business relationship with John Deaton and the

Deaton Law Firm. (Id. at ¶ 38.) However, the Deatons allege that after “Partners” at Shrader &

Associates received Marie Napoli’s letters, “claiming John Deaton not only had an affair with

Ms. Dennis resulting in his ex-wife preventing him from seeing his children, but most

significantly, was harassing Ms. Dennis at her new employment, Shrader and Associates decided

to no longer continue their business relationship” with the Deaton Law Firm. (Id.)3

Marie Napoli also sent LinkedIn e-mails to “individuals associated with Ms. Dennis’s

current employer in Texas” in May 2014, stating, inter alia, “[Dennis] caused her boss from RI’s

2 Although not entirely clear, the amended complaint appears to allege that the Deatons did not learn of these letters

until February 2017. (Am. Compl. at ¶ 29.)

3 The Court notes that in sections of the amended complaint, the Deatons refer to “letters” sent by the Napolis to

John Deatons’ colleagues, without naming the recipients or clarifying whether or not these are the same letters

referenced supra, sent to Mrs. Shroder and Mrs. Stomel. See Am. Compl. at ¶ 29 (alleging that the Napolis wrote

“several letters to colleagues and fellow plaintiff attorneys of Plaintiff John Deaton and their wives, Mrs. Shroder

and Mrs. Stomel”); see also id. at ¶ 46 (alleging that statements were made to “Plaintiff’s small asbestos legal

community”). Regardless, as explained infra, both defamation and tortious interference claims require plaintiffs to

identify specific third-parties, and thus, vague allegations regarding statements to the “legal community” or

unnamed “colleagues” are not actionable.

divorce. She had to relocate and move to NY.” (Id. at ¶ 22; 5/15/2014 LinkedIn E-mails, Pls.’

Ex. C to Am. Compl.)

Marie then sent a message to Dennis’ husband in June 2014, containing “other”

knowingly false statements about an affair between Dennis and John Deaton. (Am. Compl. at ¶

24.) She also sent messages to Dennis’ Facebook friends in June and July 2014, stating that

Dennis was forced to leave her job in Rhode Island due to an affair with her boss. (Id. at ¶ 23.)

In November 2014, Paul Napoli spoke to the New York Post. (Id. at ¶ 26; Nov. 2014

News Article, Pls.’ Ex. D to Am. Compl.) He allegedly stated, “[e]verything my wife said in any

email whether it sounds terrible or not was all true and was all factually correct.” (Am. Compl.

at ¶ 26.)

Additionally, the Napolis allegedly made false statements about the Deatons in the course

of various lawsuits. The Deatons first discovered this in February 2017 through civil defense

attorneys, their colleagues in the asbestos litigation community, who told them that their divorce

and children had been discussed in court filings. (Id. at ¶ 28.)

Marie Napoli filed at least three lawsuits relevant to the Deatons’ claims. First, on June

15, 2015, Marie filed a complaint against Dennis in Cook County, Illinois. (Id. at ¶ 27.) The

Deatons allege that she made false statements in connection with that case, including, inter alia,

that Dennis’ “previous boss had bought her expensive gifts . . . and was harassing her via texts

and emails after his divorce,” and that Dennis was “the cause” his divorce. (Id.)

On December 9, 2016, Marie Napoli commenced an action, Napoli v. Ratner, which was

removed to the United States District Court for the Eastern District of New York. See 16-CV-

6483 (JMA) (AKT) (E.D.N.Y.). (Id. at ¶ 28.) The Deatons attach an excerpt of the complaint in

Ratner to the pleading, and allege that it contained several false statements, including that Dennis

“had a sexual relationship with her previous employer from Rhode Island,” that “Deaton was

harassing” Dennis, that he was “threatening” to “tell her husband everything,” and that he was

unable to see his children after his wife discovered the affair. (Ratner Compl., Pls.’ Ex. E to Am.

Compl. at ¶¶ 27, 28, 30.) The Ratner complaint also alleged that Dennis “specifically targets her

bosses and uses sex to advance her career,” and that “[s]he has done this with her previous boss

from Rhode Island, with [Marie Napoli’s] husband, and appears to be doing it now with her

current boss.” (Id. at ¶ 55.)

Finally, on April 28, 2017, Marie Napoli filed claims against Dennis and other third

parties in the Eastern District of New York in the case of Napoli v. Kern, et al., 17-CV-2563

(ADS) (AKT) (E.D.N.Y.). (Am. Compl. at ¶¶ 32, 33.) A portion of the relevant complaint in

Kern is attached to the amended complaint. (See Kern Compl., Ex. H to Am. Compl.) The Kern

complaint restates the aforementioned allegations, including that Dennis claimed John Deaton

harassed and threatened her. (See Am. Compl. at ¶ 32; Kern Compl. at ¶¶ 63–66.)

On March 28, 2017, the Deatons commenced this action against the Napolis for

defamation and tortious interference. The action was initially filed in the Superior Court of

Rhode Island, (Doc. No. 2), but the case was removed to the United States District Court for the

District of Rhode Island on the grounds of diversity jurisdiction. (Notice of Removal (Doc. No.

1).) Upon the Napolis’ motion to dismiss for lack of personal jurisdiction and improper venue,

in which they moved in the alternative to transfer venue, (Doc. No. 8), the case was transferred

to the Eastern District of New York. (Doc. No. 15).4

In the amended complaint, the Deatons bring claims for (1) defamation, specifically libel

per se, libel, and slander, and (2) tortious interference with business relations. They allege that

4 On May 21, 2019, the case was reassigned to this Court from the Honorable Joseph F. Bianco upon Judge Bianco’s

elevation to the Second Circuit Court of Appeals.

the Napolis made defamatory statements with malicious and intentional disregard for the truth,

and that the statements “originated” with Paul Napoli and were repeated by Marie. (Am. Compl.

at ¶¶ 35–36.) They assert that the Napolis (1) “knew their statements were false” because John

Deaton told Marie Napoli as much in 2013; (2) had “no reliable basis” for their claims; and (3)

“fabricated” details. (Id. at ¶ 36.) The Deatons emphasize that the Napolis are sophisticated

attorneys who ignored readily available legal documents which would have confirmed that their

divorce was filed five months before John Deaton ever met Dennis, and that the alleged affair

“clearly could not have been a cause” of the Deatons’ divorce. (Id. at ¶ 31.)

The Deatons assert that the alleged defamation implicated their entire family in a

“malicious tale,” and also “intentionally interfere[d] with business relationships between” the

Deatons, “fellow attorneys, and clients.” (Id. at ¶ 1.) They believe that the Napolis spread lies

“in an effort to intentionally harm” the reputations of John Deaton and the Deaton Law Firm, a

“direct competitor[]” to Napoli Bern. (Id. at ¶ 37.) . (Id. at ¶ 36.) They believe that Shrader &

Associates’ decision to end its business relationship with the Deaton Law Firm was driven by

Marie Napoli’s accusation that John Deaton harassed Dennis, a then-new Shrader & Associates

employee. (Id. at ¶ 38.) The Deatons allege that the loss of that relationship cost the Deaton

Law Firm hundreds of thousands of dollars in attorney fees, and the “continued loss will

ultimately result in a loss of millions of dollars.” (Id.) They claim that by “making and widely

disseminating” defamatory statements, the Napolis have “directly caused” them to “suffer

reduced referrals of clients and income.” (Id. at ¶ 40.) The Deatons also contend that Dennis, at

Paul Napoli’s “direction, attempted to use employees at the Deaton Law Firm to secretly file

asbestos cases” in Rhode Island for Napoli Bern. (Id. at ¶ 36.)

The Deatons seek declaratory and injunctive relief, as well as damages. They ask the

Court to declare that the defamatory statements are false, and they seek an order requiring the

Napolis to retract any false statements and permanently enjoining them from making defamatory

statements. (Am. Compl. at 10–11.) The Deatons seek special damages of $3,000,000 for

tortious interference with business relations, and $10,000,000 in compensatory damages for the

“emotional distress and loss of reputation” resulting from the alleged libel per se, libel, and

slander. (Id. at 11–12.)

In their motion to dismiss, the Napolis argue that (1) the majority of statements at issue

are barred by the statute of limitations; (2) the remaining statements are privileged because they

were made in the course of litigation; (3) the amended complaint fails to allege that Paul Napoli

made any defamatory statements; and (4) to the extent the Deatons base their claim on Paul’s

statements to Marie Napoli, those communications are subject to spousal privilege. (Defs.’

Mem. (Doc. No. 39).)

The Deatons insist that their claims are timely, as the Napolis’ republished statements fall

within the statute of limitations. (Pls.’ Opp’n (Doc. No. 41) at 3–4.) Further, they assert that the

statements are not subject to the litigation privilege because they were not only immaterial to the

proceedings at issue, but were motivated solely by malice. (Id. at 5.) The Deatons allege that

they should be afforded the opportunity to prove malice through discovery. (Id. at 5–6.)

STANDARD OF REVIEW

While the Deatons proceed pro se, they are experienced attorneys. Accordingly, their

pleading is “not entitled to the degree of liberality given to non-attorney pro se plaintiffs.”

Bliven v. Hunt, 418 F. Supp. 2d 135, 137 (E.D.N.Y. 2005) (citations omitted). Still, the Court

construes the complaint liberally, accepting all factual allegations in it as true and “drawing all

reasonable inferences in the plaintiff’s favor.” Kim v. Kimm, 884 F.3d 98, 103 (2d Cir. 2018)

(internal quotation marks omitted) (citation omitted).

Although the Napolis frame the instant motion as one for judgment on the pleadings

under Rule 12(c), the Court will treat it as a motion for failure to state a claim under Rule

12(b)(6), as no answer has been filed to the amended complaint. See FED. R. CIV. P. 12(c)

(“After the pleadings are closed . . . a party may move for judgment on the pleadings.” (emphasis

added)); see also S&L Vitamins, Inc. v. Australian Gold, Inc., No. 05-CV-1217 (JS) (MLO),

2006 WL 8423836, at *4 (E.D.N.Y. Mar. 30, 2006) (construing a Rule 12(c) motion as a

12(b)(6) motion because no answer had been filed to amended counterclaims). In any event,

courts apply the same standard in deciding motions under Rules 12(b)(6) and 12(c). See

Alcantara v. Bakery & Confectionery Union & Indus. Int’l Pension Fund Pension Plan, 751 F.3d

71, 75 (2d Cir. 2014).

To survive a Rule 12(b)(6) motion to dismiss, a complaint “must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Cohen v.

Rosicki, Rosicki & Assocs., P.C., 897 F.3d 75, 80 (2d Cir. 2018) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)). “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.” Iqbal, 556 U.S. at 678 (citation omitted). Detailed facts are not required,

but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. (citation omitted). Indeed, “the tenet that a court must accept as

true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal,

556 U.S. at 678. The determination of whether “a complaint states a plausible claim for relief” is

“a context-specific task” requiring the court to “draw on its judicial experience and common

sense.” Id. at 679 (citation omitted).

On a Rule 12(b)(6) motion to dismiss, a court may consider facts alleged in the

complaint, exhibits attached to it, and documents incorporated therein by reference. See Roth v.

Jennings, 489 F.3d 499, 509 (2d Cir. 2007). Additionally, Rule 201(b) of the Federal Rules of

Evidence permits courts to take judicial notice of certain documents. A judicially noticed fact

must be one “that is not subject to reasonable dispute,” in that it is either (1) “generally known

within the trial court’s territorial jurisdiction,” or (2) “can be accurately and readily determined

from sources whose accuracy cannot reasonably be questioned.” FED. R. EVID. 201(b). “Judicial

notice may encompass the status of other lawsuits in other courts and the substance of papers

filed in those actions.” Johnson v. Levy, 812 F. Supp. 2d 167, 176 (E.D.N.Y. 2011) (internal

quotation marks omitted) (citation omitted). However, judicial notice of court filings is taken for

the limited purpose of establishing “the fact of such litigation and related filings,” not for “the

truths of the matters asserted . . . .” Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir.

1991) (citation omitted); see also Glob. Network Commc’ns Inc. v. City of New York, 458 F.3d

150, 157 (2d Cir. 2006).

DISCUSSION

I. Defamation

Defamation, “consisting of the twin torts of libel and slander,” is “the invasion of the

interest in a reputation and good name.” Albert v. Loksen, 239 F.3d 256, 265 (2d Cir. 2001)

(citation omitted). Written defamatory words are classified as libel, while spoken defamatory

words are slander. See Greene v. Paramount Pictures Corp., 340 F. Supp. 3d 161, 168

(E.D.N.Y. 2018). Defamatory statements “tend[] to expose a person to hatred, contempt or

aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of

the community.” Daytree at Cortland Square, Inc. v. Walsh, 332 F. Supp. 3d 610, 629

(E.D.N.Y. 2018) (internal quotation marks omitted) (citation omitted).

To state a claim for defamation under New York law, the complaint must allege (1) a

false statement, (2) published to a third party, (3) without authorization or privilege, (4) through

fault amounting to at least negligence, which (5) either constitutes defamation per se or caused

“special damages.” See Greene, 340 F. Supp. at 168; see also Elias v. Rolling Stone LLC, 872

F.3d 97, 104 (2d Cir. 2017); Albert, 239 F.3d at 266–67. A statement is defamatory per se if it

“tends to injure [the plaintiff] in her trade, business, or profession . . . or if the statement is so

severe that serious injury to the plaintiff’s reputation may be presumed.” Baez v. JetBlue

Airways, No. 09-CV-0596 (ENV) (RML), 2014 WL 11462719, at *8 (E.D.N.Y. July 7, 2014)

(internal quotation marks omitted) (citation omitted); see also Celle v. Filipino Reporter Enters.

Inc., 209 F.3d 163, 179 (2d Cir. 2000); Travelex Currency Servs., Inc. v. Puente Enterprises,

Inc., No. 18-CV-1736 (ER), 2019 WL 1259102, at *8 (S.D.N.Y. Mar. 19, 2019).

However, the Court need not address whether the amended complaint makes out a claim

for defamation. For the reasons explained below, the Deatons’ claim is not actionable because

the statements upon which the claim is based are either untimely or privileged.

A. Statute of Limitations

New York law sets a one-year statute of limitations for defamation claims. See N.Y.

C.P.L.R. § 215(3); see also Solomon v. Amazon.com, Inc., No. 18-CV-5528 (ERK) (PK), 2019

WL 2601794, at *2 (E.D.N.Y. June 24, 2019). Under New York’s “single publication rule,” the

statute of limitations “ordinarily begins to run at the time of the ‘first publication’ . . . .”

Etheredge-Brown v. Am. Media, Inc., 13 F. Supp. 3d 303, 305 (S.D.N.Y. 2014) (citing Van

Buskirk v. N.Y. Times Co., 325 F.3d 87, 89 (2d Cir. 2003)); see also Thomas v. City of New York,

No. 17-CV-06079 (ARR) (JO), 2018 WL 5791965, at *6 (E.D.N.Y. Nov. 5, 2018). An

exception exists where a statement is republished in a new format, in which case the time

“begins to run anew from the date of republication.” Enigma Software Grp. USA, LLC v.

Bleeping Comput. LLC, 194 F. Supp. 3d 263, 276 (S.D.N.Y. 2016) (citing Firth v. State, 98

N.Y.2d 365, 371 (N.Y. 2002)). However, republication only occurs “upon a separate aggregate

publication from the original, on a different occasion, which is not merely a delayed circulation

of the original edition” and is intended to reach a “new audience.” Firth, 98 N.Y.2d at 371

(internal quotation marks omitted) (citations omitted). Moreover, a “later discovery of

defamatory material does not toll the one-year statute of limitations.” Kamdem-Ouaffo v.

Pepsico, Inc., 160 F. Supp. 3d 553, 571 (S.D.N.Y. 2016) (citations omitted), aff’d, 657 F. App’x

949 (Fed. Cir. 2016).

Here, the one-year statute of limitations mandates that the statements must have been

published no earlier than March 28, 2016, as the Deatons filed the original complaint on March

28, 2017. There are only two sets of statements that are not time-barred: (1) allegations made in

December 2016, in the complaint filed in Napoli v. Ratner, et al., 16-CV-6483 (JMA) (AKT)

(E.D.N.Y.), and (2) allegations made in April 2017, in the complaint filed in Napoli v. Kern, et

al., 17-CV-2563 (ADS) (AKT) (E.D.N.Y.). Most of the statements at issue – the Facebook

messages, letters, emails, Paul Napoli’s statement to the media, and Marie Napoli’s statements in

relation to her Illinois lawsuit – were made prior to 2016, well outside the one-year limitations

period. Thus, the majority of statements are time-barred.

To the extent the Deatons attempt to circumvent the limitations period by broadly

asserting that the Napolis republished statements “to as many new audiences as they possibly

could,” this portrayal of continuous republication, without more, does not suffice. (Pls.’ Opp’n

at 4.) In order to survive a motion to dismiss, the Deatons must point to a concrete statement

made to an identifiable third party. See Kamdem-Ouaffo, 160 F. Supp. 3d at 572 & n.24 (finding

plaintiff could not “seek to evade the statute of limitations” by alleging that “[u]p to this date,”

defendants “continued to defame” her, without identifying a particular statement made within the

limitations period); see also Germain v. M & T Bank Corp., 111 F. Supp. 3d 506, 537 (S.D.N.Y.

2015) (finding that a “complaint must at least identify” the statements, the publisher, the time the

statements were made, and the third parties to whom they were made). Moreover, “a cause of

action for defamation accrues immediately upon the occurrence of the tortious act and thus, is

not appropriate for the continuing violation exception.” Lettis v. U.S. Postal Serv., 39 F. Supp.

2d 181, 205 (E.D.N.Y. 1998).

Accordingly, the Court is compelled to dismiss as untimely any defamation claim

predicated on statements published prior to March 28, 2016.

B. Litigation Privilege

With respect to the remaining statements made in connection with the civil complaints

related to this action, although they are not time-barred, they are privileged and thus not

actionable.

One of the requisite elements of a defamation claim is the publication of a false statement

made without privilege or authorization. New York law “accord[s] an absolute privilege” to

statements made “in the course of judicial proceedings and which relate to the litigation.”

D’Annunzio v. Ayken, Inc., 876 F. Supp. 2d 211, 216 (E.D.N.Y. 2012). A statement made in the

course of a judicial proceeding is absolutely privileged, “so long as it is considered material and

pertinent to the litigation.” Id. (citations omitted); see also Weinstock v. Sanders, 42 N.Y.S.3d

205, 207–08 (2d Dep’t 2016) (noting that the privilege applies “at all stages” of litigation). “The

test of pertinency . . . is extremely liberal, so as to embrace anything that may possibly or

plausibly be relevant or pertinent.” Weinstock, 42 N.Y.S.3d at 208 (citing cases). While the

Second Circuit recently emphasized that pertinence is “an important (if rarely implemented)

limitation on [the] scope” of the litigation privilege, Brown v. Maxwell, 929 F.3d 41, 53 n.47 (2d

Cir. 2019), it is generally considered “the broadest possible of privileges,” covering “any matter

which, by any possibility, under any circumstances, at any stage of the proceeding, may be or

may become material or pertinent.” Kelly v. Albarino, 485 F.3d 664, 666 (2d Cir. 2007) (per

curiam) (internal quotation marks omitted) (citations omitted).

Courts routinely find that statements in pleadings are shielded by absolute privilege. See

Lader v. Delgado, 941 F. Supp. 2d 267, 273 (E.D.N.Y. 2013) (finding statements “made in

pleadings that relate to the subject matter” of the action were “absolutely privileged” (citation

omitted)); see also D’Annunzio, 876 F. Supp. 2d at 217. Further, these statements are protected

“irrespective of the motive” of the publisher. Kelly, 485 F.3d at 666. If the litigation privilege

applies, then the protection is absolute, and it is “not lost even in the presence of malice.”

Bilinski v. Keith Haring Found., Inc., 96 F. Supp. 3d 35, 48 (S.D.N.Y. 2016) (citation omitted),

aff’d in part, 632 F. App’x 637 (2d Cir. 2015).

Here, the only statements published within the one-year statute of limitations were all

made in the context of civil lawsuits brought by Marie Napoli. The Deatons argue that the

statements are nevertheless not privileged because they “did not address ‘the core of the

underlying proceeding,’” (Pls.’ Opp’n at 5 (citation omitted)), “had no legal justification, and

provided no value to any legitimate legal claims made by the Defendants.” (Am. Compl. at ¶

36.) While the Court must accept the factual allegations in the amended complaint as true, it will

not accept the Deatons’ legal conclusion that the statements were not valuable to the judicial

proceedings.

In both cases at issue, the defamatory statements were made by Marie Napoli in the

pleadings. In Napoli v. Ratner, Marie asserted claims for abuse of process, infliction of

emotional distress, and prima facie tort against Dennis’ lawyers, who had filed a lawsuit against

her.5 She alleged injuries sustained as a result of Dennis’ affair with her husband, and the

complaint was premised on a theory that Dennis is a sex addict who habitually engages in affairs

with her bosses. The complaint focused on how “Dennis specifically targets her bosses,” citing

John Deaton repeatedly as a prime example. (Ratner Compl., Pls.’ Ex. E to Am. Compl. at ¶¶

27–30, 55.) Accordingly, the Court finds that the allegations in the Ratner complaint that Dennis

had an affair with John Deaton and caused the Deatons’ divorce were material and pertinent to

Marie Napoli’s claims and her ability to prove damages in that case.

In Napoli v. Kern, Marie Napoli brought claims against Dennis, Dennis’ attorneys, and a

New York State Supreme Court Justice pursuant to 42 U.S.C. § 1983, alleging violations of her

constitutional rights under the First Amendment and the Due Process Clause of the Fifth and

Fourteenth Amendments. (See Kern Compl., Pls.’ Ex. H to Am. Compl. at ¶ 2.) Napoli alleged

that a gag order imposed on her in a separate lawsuit prevented her from exercising her right to

free speech and to warn others about Dennis. As in Ratner, the portrayal of Dennis as a

“predatory” sex addict who targets married colleagues was central to Napoli’s theory of her case.

(Id. at ¶ 60.) The Kern complaint’s numerous allegations about Dennis’ affair with John Deaton

5 While excerpts of the Ratner and Kern complaints are attached to the Deatons’ amended complaint, the Court takes

judicial notice of the complaints in their entirety, in order to note the causes of action brought and relief sought in

those cases. See Hargrove v. N.Y.C. Sch. Const. Auth., No. 11-CV-6344 (CBA) (LB), 2013 WL 2285173, at *4

(May 23, 2013) (taking judicial notice of related actions filed by parties (citing cases)). The Court views these

documents solely to observe the existence of the allegations made therein, not for the truth of the matters asserted.

provided factual support for this theory. (See id. at ¶¶ 61, 63-66.) Accordingly, the Court simply

cannot say that such statements were not “possibly or plausibly” material and pertinent.

Weinstock, 42 N.Y.S.3d at 207–08.

Considering the relative importance of the allegations about John Deaton in the Kern and

Ratner complaints, and in light of the Second Circuit’s characterization of the litigation privilege

as “the broadest possible of privileges,” Kelly, 485 F.3d at 666, the Court finds that the alleged

defamatory statements were material and pertinent to the underlying lawsuits, and are therefore

absolutely privileged.

To the extent the Deatons attempt to avoid application of the privilege by arguing that

statements made in the course of litigation actually constitute republications, this argument

defies logic. Even if the statements made in the Ratner and Kern complaints were

republications, they were made in complaints filed in court. The Deatons cannot avoid the

inescapable fact that the only timely defamatory statements alleged in their complaint were made

in judicial proceedings and are shielded by absolute privilege.

Finally, the Deatons assert that this case should proceed to discovery to afford them an

opportunity to prove malice. (Pl. Opp’n at 5–6.) As explained supra, when a statement is

absolutely privileged, the publisher’s motive is irrelevant. See Kelly, 485 F.3d at 666. Even

assuming that Marie Napoli maliciously accused John Deaton of infidelity and harassment, and

even if she made those statements to harm the business interests of the Deaton Law Firm, she did

so through civil complaints related to ongoing litigation. Because those statements were

pertinent to her case, they are afforded absolute protection.

Given that none of the alleged statements are actionable, the defamation claim is

dismissed. 6

II. Tortious Interference

Under New York law, to state a claim for tortious interference with business relations, a

plaintiff must satisfy four conditions: “(1) the plaintiff had business relations with a third party;

(2) the defendant interfered with those business relations; (3) the defendant acted for a wrongful

purpose or used dishonest, unfair, or improper means; and (4) the defendant’s acts injured the

relationship.” Catskill Dev., L.L.C. v. Park Place Entm’t Corp., 547 F.3d 115, 132 (2d Cir.

2008) (citations omitted); see also Chanicka v. JetBlue Airways Corp., 243 F. Supp. 3d 356, 360

(E.D.N.Y. 2017). Failure to identify a specific business relationship with a third party is a

“fatal” deficiency to pleading tortious interference. Stephens v. Trump Org. LLC, 205 F. Supp.

3d 305, 311 (E.D.N.Y. 2016) (citing DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 115 (2d

Cir. 2010)). Moreover, plaintiffs face a “high bar” in establishing wrongful interference. 16

Casa Duse, LLC v. Merkin, 791 F.3d 247, 262 (2d Cir. 2015); see also Symquest Grp., Inc. v.

Canon U.S.A., Inc., 186 F. Supp. 3d 257, 268 (E.D.N.Y. 2016). In the specific context of

tortious interference with business relations, distinct from tortious interference with contract,

“[c]onduct that is not criminal or tortious will generally be ‘lawful’ and thus insufficiently

‘culpable’ to create liability for interference with prospective contracts or other nonbinding

economic relations.” Carvel Corp. v. Noonan, 3 N.Y.3d 182, 190 (N.Y. 2004); see also XYZ

Two Way Radio Serv., Inc. v. Uber Techs., Inc., 214 F. Supp. 3d 179, 187 (E.D.N.Y. 2016).

While New York courts have found an exception to this rule where the defendant “engage[d] in

6 As such, the Court need not address the Napolis’ additional arguments concerning spousal privilege.

conduct for the sole purpose of inflicting intentional harm,” that exception is “narrow.” 16 Casa

Duse, LLC, 791 F.3d at 262.

Here, the amended complaint only names one identifiable business relationship with a

third party.7 The Deatons point to their prior connection to Shrader & Associates, alleging that

the “relationship previously led to attorney fees being earned,” and that the relationship ended

after “the Partners received Defendant Marie Napoli’s letters.” (Id. at ¶ 38.) The Deatons allege

two acts that might be construed as interference: the letters sent to the wives of employees at

Shrader & Associates, and the LinkedIn e-mails sent to “individuals associated with Ms.

Dennis’s current employer in Texas.” (Id. at ¶ 22.) However, for the reasons explained below,

the claim for tortious interference is dismissed as time-barred or, alternatively, duplicative of the

defamation claim.

A. Statute of Limitations

Under New York law, claims for tortious interference with business relations are

generally governed by a three-year statute of limitations. See Gym Door Repairs, Inc. v. Young

Equip. Sales, Inc., 331 F. Supp. 3d 221, 239 (S.D.N.Y. 2018), reconsideration denied, No. 15-

CV-4244 (JGK), 2018 WL 5650004 (S.D.N.Y. Oct. 30, 2018); see also Antonios A.

Alevizopoulos & Assocs., Inc. v. Comcast Int’l Holdings, Inc., 100 F. Supp. 2d 178, 183

(S.D.N.Y. 2000) (citing N.Y. C.P.L.R. § 214(4)). The statute of limitations begins to run when

the alleged interference occurs and “the injury is sustained, not at the time the plaintiff discovers

7 Allegations that the Napolis interfered by propagating falsities “to lawyers and others involved in the nationwide

practice of asbestos litigation,” (Am. Compl. at ¶ 37), or to “fellow attorneys, and clients,” (id. at ¶ 1), do not

sufficiently identify specific business relationships. Failure to name a third-party business relationship is fatal and

the Deatons cannot base their claim on these vague allegations alone. Similarly, the claim that Paul Napoli

“attempted to use employees at the Deaton Law Firm to secretly file asbestos cases in Rhode Island” is not a

cognizable claim. (Id. at ¶ 36.) Here, too, the Deatons fail to allege that a business relationship with a third party

was harmed.

the injury.” Techno-Comp, Inc. v. Arcabascio, 130 F. Supp. 3d 734, 742 (E.D.N.Y. 2015)

(citation omitted).

Given that the Deatons filed this action on March 28, 2017, any claim predicated on acts

occurring earlier than March 28, 2014, are untimely under a three-year statute of limitations.

The letters mailed to the wives of Shrader & Associates employees were sent in November 2013,

and thus any claim based on those letters must be dismissed as untimely. To be sure, the

LinkedIn e-mails were sent in May 2014, and are not time-barred. However, the cause of action

for tortious interference is duplicative, which constitutes an independent ground for dismissal.

B. Duplicative Claim

“[I]t is well settled that a claim for tortious interference is duplicative of a defamation

claim . . . where the entire injury complained of by plaintiff flows from the effect on his

reputation.” Travelex Currency Servs., Inc., 2019 WL 1259102, at *7 (quoting Hengjun Chao v.

Mount Sinai Hosp., 476 F. App’x 892, 895 (2d Cir. 2012) (summary order)). Where defamatory

statements harmed a plaintiff’s reputation and he lost business contacts as a result, those claims

are “in truth defamation claims.” Katz v. Travelers, 241 F. Supp. 3d 397, 407 (E.D.N.Y. 2017)

(finding tort claims were actually “[d]isguised” defamation claims where the “gravamen” of the

injury was harm to plaintiff’s reputation “or harm that flows from the alleged effect” on his

reputation), reconsideration denied, No. 16-CV-4389 (ADS) (SIL), 2017 WL 4180012

(E.D.N.Y. Sept. 20, 2017). The Second Circuit has affirmed dismissals of tortious interference

claims as duplicative where “economic damages derive[d] from defamatory statements.”

Goldman v. Barrett, 733 F. App’x 568, 571 (2d Cir. 2018) (summary order) (citation omitted).

In Goldman, for example, “converging claims” for defamation and tortious interference were

“premised on identical underlying factual content”: statements made to plaintiffs’ potential

business partners impugning plaintiffs’ integrity. The Court found that, “[e]ven if the

Defendants possessed more than one intention, Plaintiffs have not alleged an independent source

of harm.” Id.; see also Wexler v. Allegion (UK) Ltd., No. 16-CV- 2252 (ER), 2018 WL 1626346,

at *8 (S.D.N.Y. Mar. 30, 2018); Pusey v. Bank of Am., N.A., No. 14-CV-04979 (FB) (LB), 2015

WL 4257251, at *4 (E.D.N.Y. July 14, 2015).

Here, too, the alleged interference and resultant loss of business flowed from reputational

damage. The Deatons allege that they lost a business relationship because the Napolis damaged

their reputation by disseminating accusations of infidelity and harassment. Insofar as their claim

is based on defamatory statements, their alleged injuries “flow directly from such statements”

and the impact they had on their reputation. Travelex Currency Servs., Inc., 2019 WL 1259102,

at *7. Because the Deatons’ tortious interference claim sounds in defamation, it must be

dismissed as duplicative.

Moreover, given the Court’s finding, the one-year statute of limitations for defamation

applies. See Guelen v. Distinctive Pers., Inc., No. 11-CV-01203 (JG) (SMG), 2011 WL

3420852, at *4–5 (E.D.N.Y. Aug. 4, 2011) (noting that “the essence” of a claim, rather than the

name plaintiff gives it, “dictates the applicable statute of limitations”). Because all of the alleged

conduct, including the LinkedIn emails, occurred before March 28, 2016, the claim is untimely.

Accordingly, the Deatons’ tortious interference claim is dismissed as time-barred, and in

addition, as duplicative.

CONCLUSION

For the foregoing reasons, the Court grants defendants’ motion, (Doc. No. 39), and the

amended complaint is dismissed in its entirety. The Clerk of Court is respectfully directed to

enter judgment in favor of defendants, to mail a copy of the judgment and this Memorandum and

Order to the pro se plaintiffs, to note the mailing on the docket, and to close this case.

SO ORDERED.

Dated: Brooklyn, New York Roslynn R. Mauskopf

September 27, 2019

____________________________________

ROSLYNN R. MAUSKOPF

United States District Judge