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21-1330-cv

Isaly v. Boston Globe Media Partners LLC

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 

13th day of January, two thousand twenty-two.

Present:

DENNIS JACOBS,

REENA RAGGI,

WILLIAM J. NARDINI,

Circuit Judges.

_____________________________________

SAMUEL D. ISALY,

Plaintiff-Appellant,

v. 21-1330-cv

BOSTON GLOBE MEDIA PARTNERS LLC,

Defendant-Appellee,

BOSTON GLOBE MEDIA PARTNERS LLP, 

DAMIEN GARDE

Defendants.

_____________________________________

For Plaintiff-Appellant: ALAN S. LEWIS (John J. Walsh, Nicholas W. Tapert 

on the brief), Carter Ledyard & Milburn LLP, New 

York, NY

For Defendant-Appellee: JONATHAN M. ALBANO (Kenneth I. Schacter on the 

brief), Morgan, Lewis & Bockius LLP, New York, 

NY
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Appeal from orders and judgment of the United States District Court for the Southern

District of New York (Laura Taylor Swain, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the orders and judgment of the district court are AFFIRMED.

Plaintiff-Appellant Samuel Isaly appeals from the district court’s September 23, 2020, 

Memorandum Order granting Defendant-Appellee Boston Globe Media Partners LLC’s

(“BGMP”) motion to dismiss Isaly’s Second Amended Complaint (“SAC”), the judgment entered 

by the district court on September 23, 2020, and the district court’s May 13, 2021, Memorandum 

Order denying Isaly’s motion for reconsideration. We assume the reader’s familiarity with the 

record. 

We review the dismissal of the SAC de novo, accepting as true all factual allegations and 

drawing all inferences in the plaintiff’s favor. Biro v. Conde Nast, 807 F.3d 541, 544 (2d Cir. 

2015). “Under New York law a defamation plaintiff must establish five elements: (1) a written 

defamatory statement of and concerning the plaintiff, (2) publication to a third party, (3) fault, (4) 

falsity of the defamatory statement, and (5) special damages or per se actionability.” Palin v. N.Y. 

Times Co., 940 F.3d 804, 809 (2d Cir. 2019). The parties agreed that, for the purposes of the 

motion to dismiss, the applicable standard of fault was “gross irresponsibility.” See Chapadeau v. 

Utica Observer-Dispatch, 38 N.Y.2d 196, 199 (1975) (holding publisher not at fault where it had 

not “acted in a grossly irresponsible manner without due consideration for the standards of 

information gathering and dissemination ordinarily followed by responsible parties”). Several 

factors are relevant to whether a publisher acted in a grossly irresponsible manner, including

whether sound journalistic practices were followed in preparing the defamatory 

article, whether normal procedures were followed and whether an editor reviewed 

the copy, whether there was any reason to doubt the accuracy of the source relied 

upon so as to produce a duty to make further inquiry to verify the information, for 

example, by checking secondary sources, and whether the truth was easily 

accessible.

Hawks v. Record Printing and Pub. Co., 486 N.Y.S.2d 463, 466 (App. Div. 1985) (citations 

omitted); accord Dalbec v. Gentleman’s Companion, Inc., 828 F.2d 921, 924-25 (2d Cir. 1987).

Isaly argues that he is physically incapable of taking the actions attributed to him in the 

article—primarily, sending inappropriate emails—published by BGMP because he is quadriplegic, 

a condition that “imposes severe, immobilizing limitations on the use of his arms, legs, hands, and 

fingers which require him to have the assistance of a personal aide” to carry out many daily 

activities, SAC ¶ 5, including “operating communications devices[] such as a computer keyboard 

and mouse, telephones[,] and other workplace mechanisms,” SAC ¶ 10. Because BGMP’s 

reporter, Damien Garde, had an opportunity to observe him at a pre-publication interview, Isaly 

argues that Garde should have realized that his sources’ allegations were inconsistent with the 

reality of Isaly’s physical condition. But none of the allegations in the SAC and nothing in the 
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transcript of the pre-publication interview1 suggest that what Garde witnessed that day was 

inconsistent with his sources’ stories or even suggested that they might be untrue. The SAC alleges 

that Isaly retains limited use of his arms and hands, and the interview transcript reflects that Isaly 

could use a fork. The transcript further reflects that Isaly receives help from a number of 

colleagues and assistants with daily tasks, including eating and operating computers. The reality 

of Isaly’s physical condition and the level of support he receives, as observed by Garde during the 

interview, do not undermine the allegations made in the article. Isaly has therefore not sufficiently 

alleged that BGMP acted in a grossly irresponsible manner by publishing Garde’s story.2

Isaly’s remaining arguments in support of the sufficiency of his allegations of gross 

irresponsibility are similarly unavailing. Isaly asserts that Garde made no meaningful attempt 

during the interview to test the allegations that would be made in the forthcoming article. This 

contention is flatly contradicted by the interview transcript, which reflects that Garde asked 

whether nearly all of the specific allegations made in the article were true. Isaly next points to 

statements by his colleagues during the interview, which he characterizes as “unequivocal” and 

“squarely in tension with the notion that Mr. Isaly engaged in sexual misconduct in the workplace.” 

Isaly Br. 27–28. Again, this argument is contradicted by the transcript. At most, the other 

employees interviewed stated that they had not heard of any complaints about Isaly’s behavior. 

And the firm’s human resources director acknowledged receiving some complaints about Isaly’s 

behavior but maintained that these complaints did not rise to “a level of harassment or sexual 

harassment” which she defined as “severe, pervasive activity.” App’x 121. Nor does Isaly explain 

how it was grossly irresponsible for BGMP to credit its own reporting over sources provided by 

the subject of that reporting. Isaly must plausibly plead not just that there was some evidence 

against the allegations of the article, but that BGMP acted in a “grossly irresponsible manner 

without due consideration for the standards of information gathering and dissemination ordinarily 

followed by responsible parties.” Chapadeau, 38 N.Y.2d at 199; see also Hawks, 386 N.Y.S.2d at 

466 (stating that publisher acts in grossly irresponsible manner when, in light of “reason to doubt 

the accuracy of the source relied upon,” it neglects a “duty to make further inquiry to verify the 

information”).

1 The district court correctly concluded that it could consider the transcript in ruling on BGMP’s motion to dismiss 

because it was a document of which Isaly had knowledge and upon which Isaly relied in bringing suit. See Chambers 

v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). Moreover, Isaly failed to challenge the district court’s reliance 

on the transcript and, to the contrary, relied on the transcript in both his opening and reply briefs on appeal. Any 

objection to the district court’s consideration of the transcript is therefore waived. Pettaway v. Nat’l Recovery Sol., 

LLC, 955 F.3d 299, 305 n.2 (2d Cir. 2020).

2 Isaly also argues that the article misrepresented his physical condition by describing him as “partially paralyzed,” 

App’x 33, and “without the use of his legs,” id. at 39, and that these misrepresentations alone establish BGMP’s gross 

irresponsibility. Even assuming that such a misrepresentation could establish gross irresponsibility, this argument is 

contradicted by the allegations of the SAC and the interview transcript. Isaly specifically alleged in the SAC that he 

retains some use of his arms and hands. And, as noted above, the interview transcript reflects that Isaly retains enough 

motor function to feed himself using a fork. Moreover, Isaly’s characterization of the article overlooks the article’s 

acknowledgement that Isaly occasionally requires assistance with eating, undermining his assertion that the article 

unambiguously portrays him as capable of full use of his arms and hands. While Isaly is entitled to reasonable

inferences in his favor in defending against a motion to dismiss, it is the court’s duty to review the “entire publication 

. . . in terms of its effect upon the ordinary reader.” Silsdorf v. Levine, 462 N.Y.S.2d 822, 825 (1983).
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Isaly next questions Garde’s use of anonymous sources. But none of the allegedly 

defamatory statements in the article “were based wholly on information from unverified and 

anonymous sources.” Biro, 807 F.3d at 546 (internal quotation marks omitted) (stating that use of 

anonymous sources was insufficient to establish plausibility that publisher of allegedly defamatory 

statement acted with requisite level of fault—there, actual malice). The article cites a named 

source with contemporaneous documentary evidence in addition to the anonymous sources. And 

Isaly pleads no facts that cast doubt on the reliability of Garde’s anonymous sources or that call 

into question the article’s assertion that each was first contacted by Garde and interviewed 

separately. His argument that depositions might reveal that the article mischaracterized the 

sources’ statements is purely speculative. See DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012) 

(“A court cannot credit a plaintiff’s merely speculative or conclusory assertions.”).

“[W]ithout ‘substantial reasons’ to doubt the accuracy of the material or the trustworthiness 

of its author, a publisher is entitled to rely on the research of an established writer.” Weiner v. 

Doubleday & Co., Inc., 74 N.Y.2d 586, 596 (1989). Because Isaly has not pleaded facts plausibly 

alleging that BGMP acted in a grossly irresponsible manner, we affirm the district court’s dismissal 

of the SAC and denial of Isaly’s motion for reconsideration.

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We have considered Isaly’s remaining arguments and find them to be without merit. 

Accordingly, we AFFIRM the decisions and judgment of the district court. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk