Here, there is neither a showing by the defendants of prejudice nor surprise resulting from plaintiffs' delay in asserting their new causes of action. However, granting plaintiffs' motion to amend would be futile since the allegations set forth in the proposed Second Amended Complaint are not sufficient to state a cause of action, as will be discussed below in defendants' motions to dismiss.
In determining a motion to dismiss a pleading for failure to state a cause of action, the court must "accept the facts as alleged in the Complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory.
In a defamation action, the court must determine if the alleged defamatory statements are not actionable as a matter of law. Steinhilber v Alphonse, 68 NY2d []. Constitutional due process requires that a court have a basis on which to assert its jurisdiction. Traditionally, this basis was supplied by the party's presence within the court's geographical jurisdiction. However, the advent of a more mobile society and the growth of national markets has made it possible for a substantial volume of business to be transacted within a state without a party ever entering into that state.
Recognizing this, the U. Supreme Court has expanded the permissible powers of states to obtain personal jurisdiction over non-residents. Supreme Court set forth the standard for determining whether a non-resident may be subjected to the jurisdiction of a state's courts as follows: "Due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.
In a series of decisions, the U. Supreme Court has further detailed the essential considerations to be weighed in determining whether a court had personal jurisdiction over an out-of-state defendant. Defamation cases are treated differently "to reflect the state's policy of preventing disproportionate restrictions on freedom of expression" SPCA of Upstate New York, Inc.
The Court of Appeals further expounded on these policy concerns as follows: "The Legislature has manifested its intention to treat the tort of defamation differently from other causes of action and we believe that, as a result, particular care must be taken to make certain that non-domiciliaries are not haled into court in a manner that potentially chills free speech without an appropriate showing that they purposefully transacted business here and the proper nexus exists between the transaction and the defamatory statements at issue.
Thus, this Court needs to examine what type of purposeful activities the defendants engaged in here that bears a substantial relationship to the alleged defamatory statements. An added consideration is how to construe the transaction of business on the internet as it relates to defamation cases. One particular federal court examined the issue of long-arm jurisdiction as it relates to conducting business on the internet and concluded that personal jurisdiction is exercised in direct proportion to "the nature and quality of commercial activity that an entity conducts on the Internet.
PA ]. It reviewed the applicable cases and developed a "sliding scale" to measure the commercial activity, which has been widely quoted and accepted. However, the Second Circuit has limited its applicability in defamation cases as "to whether the defendant, through the website, purposefully avail[ed] himself of the privilege of conducting activities within New York, thus invoking the benefits and protections of its laws.
In other words, it is insufficient to gauge the overall commercial activity of the defendant on its website alone, without determining whether such purposeful activities in this state were substantially related to the alleged defamatory statements. There was certainly no purposeful activities in this state which were substantially related to the alleged defamatory statements as defendants neither wrote the alleged defamatory statements in this state nor did they direct them to our state alone.
The statements were posted on the internet with potential world-wide accessibility. This Court rejects plaintiffs' primary argument in opposition that defendants received "commercial benefits" from the hyper-links contained in their websites to invoke long-arm jurisdiction.
This connection to New York, if any, is too attenuated to exercise personal jurisdiction over the out-of state defendants. Plainly stated, there are insufficient contacts with this state to "hale" into court multiple defendants living thousands of miles away in other states which would "chill" their right to free speech. The complaint must also allege the "time, place and manner of the false statement and to specify to whom it was made.
Plaintiffs set forth many statements published by the defendants in print and an on-line that they allege are false and defamatory which can be isolated into two discrete categories: 1 Defendants' alleged mis-characterization of Rakofsky's e-mail request to "trick" a witness and Bean's subsequent motion which Judge Jackson stated raised "ethical issues" "the trick e-mail, the Bean Motion and Judge Jackson's comments" ; and 2 Defendants' incorrectly reported that Judge Jackson declared a mistrial due to Rakofsky's competence or inexperience "no mistrial due to incompetence".
The apparent purpose of the privilege is to promote the dual public policy interest of ensuring the free flow of true information without fear of being sued, and public dissemination of judicial decisions and proceedings for proper administration of justice. Beary v West Publishing Co. This privilege has been liberally interpreted to provide broad protection for news reports of judicial proceedings.
Holy Spirit Assn. In view of the above purpose and the liberal interpretation, courts have established the meaning of a"fair and true" report as a substantially accurate report.
In contrast, courts have rejected the notion that a news report be tested for literal accuracy because the language should not be "dissected and analyzed with a lexicographer's precision. The standard must comport with substantial as opposed to literal accuracy because a "newspaper article [or on-line report] is, by its very nature, a condensed of events which must, of necessity, reflect to some degree the subjective viewpoint of its author.
Even the failure to report other facts that were favorable to the complainant in the published news report constitutes a fair report where "those omissions did not alter the substantially accurate character of the article. In this case, plaintiffs' Amended Complaint and proposed Second Amended Complaint are replete with hyper-technical allegations that defendants "misrepresented and misquoted" various statements of Rakofsky, Bean and Judge Jackson.
Rather than wading through the hundreds of alleged defamatory statements, this Court will analyze the statements through two general categories: 1 the trick e-mail, the Bean motion and Judge Jackson's comments, and 2 whether the mistrial was due to incompetence. A comparison of the initial Washington Post Articles and the subsequent news reports and comments, and Rakofsky's e-mail to Bean requesting that he "trick" a witness, Bean's later motion filed in court to obtain compensation for his investigative services and Judge Jackson's comment that the same raises "ethical issues," reveals that they are a substantially and contextually accurate report.
While the precise words are not exactly identical, they are similar enough to convey a fair report of the Rakofsky e-mail and the Bean motion that were inextricably intertwined with the judicial proceedings before Judge Jackson in the Deaner case. Even though the "trick" e-mail, the Bean motion and Judge Jackson's comments do not portray Rakofsky in a positive light, and Rakofsky may wish to disavow or interpret them in a different way, the defendants were permitted to publicly disseminate them as a report of a judicial proceeding.
The second category encompasses the many alleged defamatory statements that Judge Jackson declared a mistrial due to Rakofsky's competence or inexperience. Rakofsky does not deny Judge Jackson made several comments that he was not competent and too inexperienced to provide a proper defense to Deaner in a murder trial. The gravamen of Rakofsky's argument is that there was no causal connection between the mistrial and his competence and inexperience.
Rather, Rakofsky contends that Judge Jackson declared a mistrial based on Rakofsky's own application due to a conflict between him and Deaner. Rakofsky may be correct that on March 31, , he made the initial application to Judge Jackson to withdraw as Deaner's counsel.
However, at that point, Judge Jackson inquired of Deaner, and Deaner then requested new counsel. Judge Jackson adjourned the trial to the next morning, April 1, , to follow-up on Deaner's request for new counsel. On April 1, , Judge Jackson granted Deaner's request for new counsel after making considerable comments concerning Rakofsky's competence and lack of trial experience.
You can not look at Judge Jackson's comments in isolation, but in context considering all of his comments and Rakofsky's trial performance. The clear import of Judge Jackson's rulings was to excuse Rakofsky due to his lack of competence and inexperience to defend Deaner in a murder trial. It is acknowledged that the Deaner murder trial was Rakofsky's first trial in a foreign jurisdiction and with which he was totally unfamiliar, and Judge Jackson was vigilant in protecting Deaner's right to effective assistance of counsel.
Significantly, the reported fact that Judge Jackson declared a mistrial in the Deaner case was not defamatory because even Rakofsky initially celebrated the mistrial as a positive development in his career. In other words, defendants' report that a mistrial occurred does not constitute defamation. Republication Exception. Some defendants also assert that plaintiffs' defamation claims are barred by the "republication" exception or otherwise known as the "wire service defense.
This exception applies where one news agency republishes the content of a news story that was originally published by another reputable news agency or source.
Travel Serv. In this case, many defendants republished direct quotes or summarized the content of articles that were originally published by The Washington Post on April 1st and 9th, These defendants were entitled to rely upon the research and reporting of The Washington Post, a reputable news agency, which was clearly a substantially accurate report as stated above, in their republication.
To the extent that defendants republished content from The Washington Post Articles, plaintiffs' claims for defamation are barred by the "republication" exception. Expressions of Pure Opinion. Sandals Resorts Intl. The First Department explained that defamation must be premised on published assertions of fact rather than on assertions of opinion. In the leading case of Steinhilber v Alphonse 68 NY2d [] , the Court of Appeals articulated the standard for distinguishing between fact and opinion as follows: "A pure opinion' is a statement of opinion which is accompanied by a recitation of the facts upon which it is based.
An opinion not accompanied by such a factual recitation may, nevertheless, be pure opinion' if it does not imply that it is based upon an undisclosed fact.
When, however, the statement of opinion implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, it is a mixed opinion' and is actionable. The actionable element of a mixed opinion' is not the false opinion itself — it is the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking.
Based on long-standing precedent, the First Department emphasized that the court needs to examine the entirety of the words, including its tone and purpose, as well as the "broader social context" to determine whether the content of the published statement constitutes defamation. Sandals, 86 AD3d at The "broader social context" is one of four factors enunciated by the federal courts to distinguish between protected opinions and unprotected factual assertions.
This determination is quite a complex balancing act as "even apparent statements of fact may assume the character of statements of opinion, and thus privileged, when made in public debate, heated labor disputes, or other circumstances in which the audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole.
With this in mind, the proper inquiry is, "whether the reasonable reader would have believed that the challenged statements were conveying facts about the. The Appellate Division seemed to make a distinction between traditional print outlets and on-line posts and e-mails when considering the "broader social context" of the communications. It stated that "[t]he culture of Internet communications, as distinct from that of print media such as newspapers and magazines, has been characterized as encouraging a " freewheeling, anything goes writing style.
The Appellate Division observed that readers give less credence to allegedly defamatory comments published on the Internet, as well in e-mail posts or blogs, than in other contexts. In this case, a review of the complained of statements show that they are non-actionable opinions. This Court did not view the words in isolation, but considered the entirety of the communications which contained references to the Washington Post Articles or contained hyper-links to them.
These references and hyper-links provide sufficient basis for the reader to understand the facts upon which they were based. The hostile tone of the complained statements indicates that the writer was expressing his or her strongly-held personal view as to whether Rakofsky, as a newly minted lawyer who may have marketed himself as an experienced litigator, was justified in representing Deaner as lead counsel in a murder trial without any trial experience, and terminating the investigator without compensation as a result of his refusal to comply with Rakofsky's alleged instruction to "trick" a witness at trial which Judge Jackson stated raised "ethical concerns.
When viewed from the broader social context, it is readily apparent that the on-line commentary and posts on legal blogs discussing Rakofsky were exchanges of opinions between criminal defense lawyers and other individuals who were concerned that Deaner was denied the constitutional right to effective assistance of counsel for his defense that has been the hallmark of our criminal justice system for more than fifty years.
See Gideon v Wainright, US []. It was essentially a public debate on the internet with on-line users posting their partially anonymous statements in response to the Washington Post Articles and later articles and commentary featured on the legal blogs.
Plaintiffs allege that defendants' false statements subjected him to public ridicule. In order to protect our prized First Amendment rights to free speech and press as well as debate on public issues, courts have insulated defendants from liability for stating opinions that another person was "immoral" and "unethical" Hollander v Cayton, AD2d , [2d Dept ] , and for "lying, deceiving, [and] making false promises" Epstein v Board of Trustees of Dowling College, AD2d , [2d Dept ].
Plaintiffs may not recover from defendants for expressing their opinions of Rakofsky's performance on the Deaner case no matter how unreasonable or erroneous Rakofsky believes them to be. See New York Times Co. Plaintiffs asserted a second cause of action for intentional infliction of emotional distress premised on the same facts underpinning the defamation claims. Howell v New York Post Co. In this case, the Amended Complaint and proposed Second Amended Complaint fail to state a cause of action as to the elements stated above.
Specifically, the pleadings falls short of the extreme and outrageous conduct required to substantiate plaintiffs' claims. See Freihofer v Hearst Corp. In addition, plaintiffs can not recover for intentional infliction of emotional distress caused by duplicative claims of defamation alleged in the pleadings. This conclusion is based on the well settled law that " a cause of action for intentional infliction of emotional distress should not be entertained where the conduct complained of falls well within the ambit of other traditional tort liability.
Plaintiffs asserted a third cause of action for intentional interference with contract based again on the same facts underpinning the defamation claims. To establish such a cause of action, plaintiffs must demonstrate the following elements: I a valid contract exists; ii a third party had knowledge of the contract;.
Israel v Wood Dolson Co. Specifically, the plaintiffs failed to plead the existence of any specific valid contract between plaintiffs and their clients, that defendants had any knowledge of such undisclosed valid contract, that defendants intentionally procured the breach of such contract, and how plaintiffs were thereby damaged.
Parker Hardware Mfg. New York does not recognize a common-law right to privacy. Roberson v Rochester Folding Box Co. Freihofer v Hearst Corp. These sections also do not apply to reports of "newsworthy events or matters of public interest" otherwise known as the newsworthy exception.
To foster freedom of expression, the meaning of "newsworthiness" has been broadly construed to permit a wide and liberal interpretation. In this case, it is abundantly clear that coverage of a murder trial in the Deaner case comes within the broadly construed newsworthy exception as a report of a newsworthy event or a matter of public concern.
Plaintiffs also seek leave to assert several new causes of action for injurious falsehood, prima facie tort and negligence. With respect to injurious falsehood, plaintiffs' claims are duplicative of their claims of defamation which have been found to fail to state a cause of action. The same holds true for the both injurious falsehood and need not be repeated.
While plaintiffs withdrew their new claim of negligence in open court on April 8, , which was primarily premised on the rejected defamation theory, they would nonetheless be unable to recover for negligence because the facts alleged are "inseparable from the tort of defamation, and as such, plaintiff[s] [are] relegated to any remedy that would have been available on that basis.
In other words, plaintiffs can not simply transpose the defamation claim into a contrived negligence claim.
In order to prove a cause of action for prima facie tort, plaintiffs must demonstrate the following elements: I the intentional infliction of harm; ii which results in special damages;. Freihofer, 65 NY2d at The failure to allege special damages would require dismissal of the claim. This cause of action would also fail as a "catch-all alternative" for other unsupported tort claims because it cannot be "a basis to sustain a pleading which otherwise fails to state a cause of action in conventional tort.
Here, plaintiffs' claim of prima facie tort must fail because they cannot demonstrate the first element of intentional infliction of harm which was inextricably intertwined with the dismissed second cause of action for intentional infliction of emotional distress.
Plaintiffs also failed to sufficiently plead special damages which is a critical element of prima facie tort. Plaintiffs also seek to impose sanctions against Marc J. In order to meet this definition of frivolousness under this statute, a court must find either that 1 the "claim. Conduct is frivolous if: 1 it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; 2 it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or 3 it asserts material factual statements that are false.
In determining whether the conduct was frivolous, "the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent or should have been apparent, or was brought to the attention of counsel or the party.
Defendants assert that plaintiffs commenced this action and continued this action in bad faith. Moreover, defendants argue that plaintiffs knew or should have known that they did not have a good faith basis in law or fact for any of the original four causes of action and the proposed three new claims.
Plaintiffs contend that Randazza screamed expletives at Rakofsky and illegally threatened to commence a "wiretapping civil suit" against plaintiff's former counsel, Richard D. Borzouye, Esq. Plaintiffs have several redeeming arguments to avoid sanctions.
First, there was some basis in fact for plaintiffs to argue that defendants did not fairly report Judge Jackson's comments as to the cause of the mistrial. It is uncontroverted that Rakofsky initially requested a mistrial due to a break-down of communications between him and his client. The record is unclear as to whether Judge Jackson considered Rakofsky's request in isolation, or in conjunction with later comments concerning Rakofsky's trial performance, when Judge Jackson ultimately declared a mistrial.
Second, plaintiffs partially acted in good faith in withdrawing the new claim of negligence. Third, there is a fine legal line for interpretation of alleged actionable defamatory statements of fact as opposed to non-actionable pure opinion statements. In this regard, plaintiffs made colorable legal arguments that some of the alleged defamatory material included actionable statements of fact or "mixed opinion" that may have been sufficient to survive the dismissal motions.
Fourth, some of the statements were extremely offensive or unnecessarily derogatory. There are also no grounds to impose sanctions on Randazza. Plaintiffs opposed Randazza's motion [FN13] for admission pro hac vice with essentially the same reasons as this instant motion for sanctions.
I understand that we are a monopolistic and self-policing profession dealing with a very complicated and arcane subject area.
In an ideal world, a person looking for a lawyer should be able to hire someone with confidence that the lawyer who accepts the representation is fully competent to provide that representation. And, yes, Rakofsky should certainly be disciplined. Nothing I say below should be construed as an attempt to excuse his behavior. There is a reason that most lawyers would charge double or triple what Rakofsky demanded. That he came so cheaply should have served as extra reason to check him out.
There may well have been limitations to the avenues available to them. I have no idea whether or not they have any friends in the legal community who could have referred a lawyer to them and, as I understand these things, calling the relevant state bar would only have informed them whether or not he had ever been the subject of a complaint.
As for what I imagine many people would do, checking him out on the Internet, you have been one of the more passionate and articulate voices warning of the dangers of Internet marketing. You and others have given a lot more thought to the whole notion of ethics on the Internet than I, and, lest I repeat mistakes I have made in the past, I should probably avoid saying things until I have thought them through a little bit further. For example, I have always thought that, with all the due process protections in place, the state bars are the only appropriate place to raise these types of issues.
I have also had qualms about lawyers calling out other lawyers on the Internet without these due process protections in place. Given the fact that we are a self-policing profession, and with the whole system reliant on people actually reporting abuses and these organizations clearly not up to the task of performing such a herculean task, I am having to reevaluate my thinking on all of this.
And to preempt you on this, yes, my thinking still has a long way to go. This is not an issue of client due diligence based upon a contract model of legal representation. It is also more than simply an innocent more accurately a negligent, if not fraudulent misrepresentation about legal ability made by an inexperienced attorney whose ineffective counsel led to his removal from the case and a mistrial. The attorney-client relationship is fiduciary in nature; built upon trust and confidence.
Full stop. I repeat. Even a sophisticated client is owed a duty to be represented by competent counsel. It is not caveat emptor: the legal supermarket concept is anathema to our noble profession. While the social media law marketing crowd yammers on about SEO unbundling of legal services, virtual law practice and cloud computing under the guise of client needs, new lawyers should take the Rakofsky story as an object lesson on how the profession of law can never be subsumed to the business of law.
I have been a practicing criminal defense attorney for more than 13 years. I am fully convinced that to be a successful criminal lawyer one only needs to speak well and dress well.
I know lawyers that know absolutely nothing about criminal law but they are just as successful, both financially and with positive results, as lawyers with book smarts, perhaps even more successful. I get the same dispositions and trial results that the incompetent lawyer get. I guess if you know the law you know when the District Attorney is trying to roll you. But I suppose the incompetent lawyer can sense weakness just as well, its just not founded in law.
There are two extensive advertising criminal law firms in Los Angeles where I practice. One charges very little and pleads every client out on the first or second appearance. The other charges a huge amount and pleads the client out on the day of trial after a full trial fee has been paid.
I hope it continues to be discussed, and discussed a lot. I hope every law school puts this case in their professional responsibility case materials. The responsibility, first, is on the lawyer. I represented a client on various charges. Four years into my representation, after a trial, and more charges, the client was indicted for murder.
I worked on the case for a while, having handled murder cases in the past, but was then told the state was seeking the death penalty. I had never, and still have never handled by choice a death case. My client had no idea, and was concerned about me leaving the case, so I discussed it with several experienced death penalty lawyers. They all said I was experienced enough to continue working on the case, and that I should seek continuation of my appointment, and just attend the required certification class.
I chose not to. I would just hire a second chair lawyer, some experts, and advocate? But I said no, withdrew, the judge was even surprised I was not certified to handle death cases and 2 experienced death penalty lawyers took over. I did what I thought was right for the client, not me. But no one would have ever known I was not technically qualified for a death case, unless I said so myself.
I could have quietly taken the class, and continued. Is there a venue where I can set the record straight on this or provide more information??? I was a juror on this trial and am absolutely astounded by what happened in court.
While my interest in the story is purely academic, I can think of at least two parties who would be very interested in hearing what you have to say. The first party would be the relevant state bar. The second would be David Benowitz, who is now representing Dontrell Deaner.
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