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,

on the 17th 4 day of September, two thousand fourteen.

5

6 PRESENT: DENNIS JACOBS,

7 CHRISTOPHER F. DRONEY,

8 Circuit Judges,

9

10 LEWIS A. KAPLAN,

District Judge.* 11

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