14-740-cv Kavanagh v. Zwilling



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 17 th** **day of September, two thousand fourteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **CHRISTOPHER F. DRONEY,** 7 **Circuit Judges ,**  8 9 **LEWIS A. KAPLAN,** 10 **District Judge**

**.** ***** 11 12 - - - - - - - - - - - - - - - - - - - -X 13 **CHARLES M. KAVANAGH,** 14 **Plaintiff-Appellant ,**  15 16 **-v.- 14-740-cv** 17 18 **JOSEPH ZWILLING, JOHN WOODS,** 19 **ARCHDIOCESE OF NEW YORK, CATHOLIC NEW** 20 **YORK,** 21 **Defendant-Appellees**

**.** 22 - - - - - - - - - - - - - - - - - - - -X 23

* The Honorable Lewis A. Kaplan, United States District Judge for the Southern District of New York, sitting by designation.

1**FOR APPELLANT:** DAVID R. PARKER, Charfoos & 1 Christensen, P.C., Detroit, 2 Michigan. 3 4 **FOR APPELLEES:** JOHN M. CALLAGY (Nicholas J. 5 Panarella, on the brief ), Kelley 6 Drye & Warren LLP, New York, New 7 York. 8 9 Appeal from a judgment of the United States District 10 Court for the Southern District of New York (Furman, J. ). 11 12 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 13 **AND DECREED**that the judgment of the district court be 14 **AFFIRMED**

. 15 16 Charles Kavanagh appeals from the judgment of the 17 United States District Court for the Southern District of 18 New York (Furman, J. ), dismissing his complaint for failure 19 to state a cause of action

. We assume the parties’ 20 familiarity with the underlying facts, the procedural 21 history, and the issues presented for review. 22 23 We review a district court’s dismissal of a complaint 24 under Rule 12(b)(6) de novo , “accepting all factual claims 25 in the complaint as true, and drawing all reasonable 26 inferences in the plaintiff’s favor.” Famous Horse Inc. v. 27 5th Ave. Photo Inc. , 624 F.3d 106, 108 (2d Cir. 2010). We 28 do not accept as true conclusions unsupported by the facts 29 alleged, legal conclusions, bald assertions, or unwarranted 30 inferences. Bell Atl. Corp. v. Twombley , 550 U.S. 544, 555- 31 56 (2007). To avoid dismissal, a plaintiff must plead 32 “enough facts to state a claim to relief that is plausible 33 on its face,” and not merely “conceivable.” Id. at 570. 34 35 1. Kavanagh argues that the district court erred in 36 dismissing his claim of defamation by implication because 37 the press release of the Archdiocese, while true, suggests 38 he was convicted of multiple criminal violations in a 39 secular court with full due process of law. “To survive a 40 motion to dismiss a claim for defamation by implication 41 [under New York law] . . . the plaintiff must make a 42 rigorous showing that the language of the communication as a 43 whole can be reasonably read both to impart a defamatory 44 inference and to affirmatively suggest that the author 45 intended or endorsed that inference.” Stepanov v. Dow Jones 46 & Co. , 987 N.Y.S.2d 37, 44 (1st Dep’t 2014). 47

2Kavanagh’s complaint does not satisfy the Stepanovtest 1 for at least three reasons. First, the press release stated 2 that Kavanagh was disciplined by a “church court.” J.A. at 3 33. No further information regarding the nature of the 4 tribunal would be needed--especially in a publication 5 directed to the local Catholic community. SeeBiro v. Conde 6 Nast , 883 F. Supp. 2d 441, 466 (S.D.N.Y. 2012). Second, 7 Kavanagh’s challenge to the use of the word “counts” in the 8 press release, which he characterizes as prosecutorial, 9 abstracts the word from its context: the statement plainly 10 states that the conviction arose in a religious court. See 11 James v. Gannett Co. , 40 N.Y.2d 415, 419 (1976) (In 12 reviewing an allegedly defamatory statement, a court should 13 “not pick out and isolate particular phrases but will 14 consider the publication as a whole.”). Third, Kavanagh’s 15 complaint fails to allege that the defendants “intended or 16 endorsed” the native inference allegedly made in the press 17 release. Stepanov , 987 N.Y.S.2d at 44. 18 19 2. As to Kavanagh’s libel per quod claim, the failure 20 to plead special damages is a “fatal defect.” Idema v. 21 Wagner , 120 F. Supp. 2d 361, 368 (S.D.N.Y. 2000); see also 22 Ava v. NYP Holdings, Inc. , 885 N.Y.S.2d 247, 251 n.3 (1st 23 Dep’t 2009); Sharratt v. Hickey , 799 N.Y.S.2d 299, 301 (3d 24 Dep’t 2005). (Kavanagh never sought to amend his complaint 25 in the district court.) 26 27 For the foregoing reasons, and finding no merit in 28 Kavanagh’s other arguments, we hereby **AFFIRM** the judgment of 29 the district court. 30 31 FOR THE COURT: 32 CATHERINE O’HAGAN WOLFE, CLERK 33 34

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