20

- 642

Oakley v. Dolan et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 1 CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS 2

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 3

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A 4

SUMMARY ORD ER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST 5 CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH 6 THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY 7

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY 8

COUNSEL. 9

At a stated term of the United States Court of Appeals for the Second Circuit, held at the 10 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16 th 11

d ay of November, two thousand twenty

. 12

13

PRESENT: 14
J ON O. N EWMAN

, 15

G UIDO C ALABRESI

, 16

S USAN L. C ARNEY

, 17 Circuit Judges

. 18

_________________________________________ 19

20

C HARLES O AKLEY

, 21

22 Plaintiff

- Appellant

, 23

24

v. No. 20

- 642 25

26

J AMES D OLAN

, IN HIS INDIVIDUAL CAPACITY



### , IN HIS PROFESSIONAL 27

CAPACITY



### , MSG N ETWORKS

, I NC

., M ADISON S QUARE G ARDEN 28

C OMPANY

, AND MSG S PORTS & E NTERTAINMENT

, LLC, 29

30 Defendant s

-

Appellee s

. 31

_________________________________________ 32

33

FOR APPELLANT: D OUGLAS H. W IGDOR , Wigdor Law (Renan 34 F. Varghese, on the brief ), New York , NY

. 35

36

N ELSON A. B OXER , Petrillo Klein & Boxer 37

LLP, New York, NY. 38

### 2 1

FOR APPELLEE: R ANDY M. M ASTRO ( Akiva Shapiro

, Declan T. 2
Conroy, Grace E. Hart, on the brief ), Gibson

, 3

Dunn & Crutcher LLP, New York , NY

. 4

5 Appeal from a judgment of the United States District Court for the Southern District of 6

New York ( Sullivan, J

. ). 1 7

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 8

ADJUDGED, AND DECREED that the judgment ente red on February 20, 2020

, is 9

AFFIRMED in part

, REVERSE D in part

, and the case REMANDED , consistent with th is 10

O rder and an accompanying Opinion filed on th e same date

. This Order addresses only th at portion 11

of the judgment that the panel affirm s

. 12

Charles Oakl e y appeals from the District Court’s dismissal of his claims arising from his 13

ejection f rom Madison Square Garden (the “Garden” or “MSG”) on February 8, 2017, shortly after 14

he arrived to attend a New York Knicks basketball game as an audience member . Oakley brings 15

New York law claims of assault and battery, defamation, and false imprisonment, as well as a claim 16

for unlawful denial of public accommodation under the Americans with Disabilities Act (“ADA”) 17

and New York State Human Rights Law (“NYSHRL”)

. 2 We assume the parties’ familiarity with the 18

underlying allegations, procedural history, and arguments on appeal, to which we refer only as 19

necessary to explain our decision to affirm the dismissal of all c laims except th ose for assault and 20

battery , which we address in the accompanying O pinion. 3 21

We review de novo a district court’s grant of a motion to dismiss under Federal Rule of Civil 22

Procedure 12(b)(6) . In doing so, we must assum e the truth of all allegations and draw all reasonable 23

1 Judge Richard J. Sullivan, United States Circuit Judge, sitting by designation. Judge Sullivan was a District
Judge when Oakley’s complaint was filed. Judge Sullivan retained the case when he became a Circuit Judge in

October 2018. All references to the D istrict Court in this Order are to Judge Sullivan’s rulings filed in the

District Court.

2 Oakley also brought a New York law claim for abuse of process that was dismissed by the District Court.
He does not challenge that dismissal on appeal.

3 Oakley app eals the District Court’s denial of leave to further amend his pleading under Federal Rule of

Civil Procedure 15. Because we affirm the dismissal of most claims in this Order

, and we hold that the assault
and battery claims are adequate as pleaded, we affirm the denial of leave to amend

.

### 3 inferences from those allegations in the plaintiff ’s favor

. See Biro v. Conde Nast , 807 F.3d 541, 544 (2d 1

Cir. 2015). 4 2

T he operative amended complaint alleges that, on February 8, 2017, Oakley, a former 3

Knicks player, attended a Knicks game at the Garden

. Oakley and Defendant James Dolan

— the 4

Executive Chairman of Defendants MSG Networks, Inc., The Madison Square Garden Company, 5

and MSG Sports & Entertainment, LLC (collectively, the “MSG Defendants”)

— have long had a 6

relationship characterized by “ animosity

. ” Am. Compl. ¶ 26

. Within minutes of Oakley taking his 7

ticketed se a t a few rows behind Dolan

, MSG security guards approached Oakley and demanded that 8

he leave, asking “why [ Oakley was] sitting so close to Mr. Dolan.” Am. Compl. ¶ 35. Oakley did not 9

immediately comply and questioned why he was being forced to leave

. The situation quickly 10

escalated

. The security guards threw Oakley to the floor twice , handcuffed him, and escorted him t o 11

police waiting outside the venue, who placed him under arrest

. 12

That evening and the next day, Defendants published statements about the incident on the 13

Knicks’ public relations Twitter account . Defendants tweeted that Oakley had been “ejected” 14

because he had “behaved in a highly inappropriate and completely abusive manner.” Am. Compl. 15

¶ 5 8 . Th ey further tweeted that “[e]verything [Oakley] said since the incident is pure fiction” and 16

that Defendants’ account was “consistent” with “[e]very single statement ” from witnesses about 17

Oakley’s “abusive ” behavior. Am. Compl. ¶ 62

. 18

Two days after the incident, Defendant Dolan appeared on ES PN ’ s The Michael Kay Show and 19

made similar statements : Oakley “ has a problem with anger. He’s both physically and verbally 20

abusive. He may have a problem with alcohol, we don’t know

, right.” Am. Compl. ¶ 69 ; Oakley v. 21

Dolan , No. 17

- CV

- 6903 (RJS), 2020 WL 818920, at *2 (S.D.N.Y. Feb. 19, 2020) (quoting video of 22

show that was incorporated by reference into the amended complaint)

. Dolan claimed that Oakley 23

had arrived to the game “impaired ” and was “drink[ing] beforehand,” and then proceeded to 24

“abus e [] ” the “security people,” the “service people,” and other staff in a manner “with racial 25

overtone s , sexual overtones.” Am. Compl. ¶ ¶ 69, 72. 26

4 Unless otherwise noted, in quotations from caselaw, this Order omits all alterations, brackets, citations,
emphases and internal quotation marks.

### 4 I. Defamation 1

Oakley asserts that Defendants defamed him both by “falsely accusing him of being an 2

alcohol ic ” and “ of having committed the serious crime of assault against members of the public” in 3

the Knicks’ tweets and Dolan’s interview. Am. Compl. ¶¶ 97, 103. For substantially the same 4

reasons as were cited by the D istrict Court, we conclude that t hese claims fail as a matter of law. 5

Under New York law, defamation comprises both slander ( for injurious spoken statements) 6

and libel ( for injurious written statement s ). Oakley alleges claims for slander against all Defendants 7

and for libel against only the MSG Defendants. Both types of claims require pleading the same basic 8

elements: (1) a defamatory statement of fact about the plaintiff ; (2) publication to a third party ; 9

(3) fault by the defendan t ; (4) falsity of the statement ; and (5) special damages or per se actionability. 10

See Palin v. New York Times Co. , 940 F.3d 804, 809 (2d Cir. 2019) (libel); Sleepy’s LLC v. Select Comfort 11

Wholesale Corp ., 909 F.3d 519, 528 (2d Cir. 2018) (slander). 12

First, regarding Oakley’s theory that Defendants falsely accused Oakley of alcoholism, the 13

amended complaint fails to plead actual malice as required. Because Oakley is a public figure, his 14

complaint satisfies the fault element of defamation only if he plausibly alleges that Defendants acted 15

with “actual malice

. ” In defamation law, “actual malice” means only “with knowledge that [the 16

challenged statement] was false or with reckless disregard of whether it was false or not.” Palin , 940 17

F. 3 d at 809. 18

W e agree with the District Court that the amended complaint lacks sufficient allegations 19

from which to infer that Defendants knew or recklessly disregarded that their statements about 20

Oakley’s drinking were false. For inst ance, the amended complaint bases th e alcoholism theory of 21

defamation on alleged statements by Dolan that witnesses at the Garden claimed Oakley had 22

appeared to be impaired ; that Oakley said on television that he had been drinking before the 23

incident ; and that Dolan questioned on ESPN whether Oakley might “ have a problem ,” 24

commenting further, “ we don’t know

, right. ” Am. Compl. ¶ 69 ; Oakley , 2020 WL 818920, at *2 25

(quoting vide o incorporated by reference)

. The Knicks ’ tweets also stated ambiguously that Oakley 26

might need “help

. ” Am. Compl. ¶ 58

. To the extent that such statements can be deemed false, the 27

amended complaint contains in sufficient allegations that Defendants knew or recklessly disregarded 28

that they were false

, as is necessary to establish actual malice. See Palin , 940 F. 3 d at 810 (“When 29

actual malice in making a defamatory statement is at issue, the critical question is the state of mind of 30

those responsible for the publication.”) (emphasis added)

. 31

### 5 Second, regarding Defendants’ alleged false accusations of assault

, we endo rse the D istrict 1

C ourt’s ruling that the amended complaint does not adequately plead that these statements are per se 2

actionable or resulted in special damages. Oakley bases this “assault” theory on Defendants’ 3

numerous statements that during the incident he acted “abusive[ly]” toward the public, security, and 4

staff at MSG, and that those “abusive” actions eventually le d to his arrest. 5

As the D istrict C ourt explained, o nly four types of st atements are per se actionable under 6

New York law: those that “imput[e] unchastity to a woma n,” assert that a plaintiff has a “loathsome 7

disease,” tend to injure him in his profession, or charge a plaintiff with a serious crime

. Liberman v. 8

Gelstein

, 590 N.Y.S.2d 857, 860 (1992). The statements complained of here fall into none of these 9

categories. P lainly , they do not concern chastity. Nor do they concern a “loathsome disease,” a 10

traditional common law category limited to “ venereal” or “communicable d iseases” that are 11

“lingering and chronic” and that impel others to avoid contact with the disease “carrier .” See 12

Restatement (Second) of Torts § 572 (noting that “decided cases have not gone beyond these 13

diseases,” including syphilis, gonorrhea, or leprosy ). 14

The amended complaint also fails to allege that the statements injured Oakley in his trade , as 15

it does not identify what Oakley’s cognizable trade is

. Although Oakley argues the statements led an 16

addiction c linic to cancel a scheduled paid appearance, Oakley does not allege that these occasional 17

appearances are his trade. He simply alleges that he is a former professional athlete. The 18

complained

- of charges of abusive behavior bear only on his general character and not on his ability 19

to perform any job. See Liberman , 590 N.Y.S.2d at 861 ( a n injury

- to

- trade statement must do more 20

than impugn a plaintiff’s general “character or qualities,” rather, it must specifically impair the 21

“conduct of [ his ] business” or “a matter of significance” in his trade). 22

Finally, the statements fail to portray Oakley as having committed a serious crime. See id. 23

( “ [T] he law distinguishes between serious and relatively minor offenses, and only statements 24

regarding the former are [per se] actionable.” ). As the District Court found, the statements do not 25

support an inference that Oakley ’s actions amounted to criminal assault. See Oakley , 2020 WL 26

818920, at *7 ( “[ Defendants’ ] statements that Oakley was ‘abusive’ . . . do not give rise to the 27

implication that Oakle y committed [criminal] assault.”). While some of the statements reference his 28

arrest, they also suggest that the only consequence for the incident should be a focus on Oakley’s 29

well

- being

, not any of the legal consequences that usually attend a serious crime

. See Am. Compl. ¶ 30

58 (quoting Defendants’ tweet that Oakley was “being arrested by the New York City Police 31

### 6 Department. He was a great Knick and we hope he gets some help soon”); Am. Compl. ¶ 69 1

(quoting Dolan’s statement, “When you have issu es like this, the first step for anybody is to ask for 2

help”)

. 3

In the absence of per se actionab ility , Oakley must instead plead that the statements resulted 4

in special damages

, or “actual losses” that were specifically and “causally related to the alleged 5

tortious act

. ” L.W.C. Agency v. St. Paul Fire & Marine Ins. Co. , 125 509 N.Y.S.2d 97, 97 (2d Dep’t 6

1986). The amended complaint fails to propose or support any such theory. At most, it alleges that 7

the addiction clinic canceled Oakley’s paid appearance, because some statements portrayed him as 8

“ an alcoholic ” who would not be “appropriate” for the clinic’s patients to meet. Am. Compl. ¶ 93

. 9

Such an allegation is tied t o Oakley’s theory about Defendants’ false accusations about his 10

alcoholism, not about his alleged commission of assault. 11

As no more than these conclusions are necessary to determine that Oakley’s defamation 12

allegations fail to state a claim under New York law , we go no further

. We accordingly affirm the 13

District Court’s dismissal of the se claims. 14

II. Denial o f Public Accommodation 15

Oakley alleges in the alternative that Defendants violated the ADA and NYSHRL by 16

“den ying him access to the Garden based on their perception that he suffers from alcoholism

, ” a 17

protected disability

. Am. Compl. ¶¶ 141, 146. To successfully plead this claim under either statute a 18

plaintiff must allege “ (1) that s he is disabled . . . ; ( 2) that defendants own, lease, or operate a place of 19

public accommodation ; and (3) that defendants discriminated against her by denying her a full and 20

equal opportunity to enjoy ” the public accommodation

. Camarillo v. Carrols Corp. , 518 F.3d 153, 156 21

(2d Cir. 2008) ; Rodal v. Anesthesia Grp. of Onondaga, P.C. , 369 F.3d 113, 117 n.1 (2d Cir. 20 04) (“New 22

York State disability discrimination claims are governed by the same legal standards as federal ADA 23

claims.”). 24

As the District Court correctly held, the amended complaint fails to plead plausibly that 25

Defendants acted against Oakl e y as a result of his perceived alcoholism, as opposed to his alleged 26

inebriation at that time and the resulting disrupti on

. See Klaper v. Cypress Hills Cemetery , 593 F. App’x 89, 27

90 (2d Cir. 2015) (rejecting discrimination claim where defendant’ s actions could be explained as 28

reaction to plaintiff’s inability to work, as opposed to plaintiff’s alcoholism). At most, the amended 29

complaint alleges that Dolan speculated after the fact that Oakley had a problem with alcohol. But 30

Dolan’s statements (as alleged in the amended complaint) described that, at the time of the incident 31

### 7 itself

, staff were concerned that Oakley appeared “impaired ” because he had been drinking right 1

“beforehand.” Am. Compl. ¶ 69

. These allegations fail to show that

, in removing him from the 2

Gar den that evening, Defendants believed, let alone discriminated against him because they 3

believed , that Oakley was an alcoholic

. 4

III. False Imprisonment 5

Finally, Oakley seeks reinstatement of his false imprisonment claim, but only to the extent 6

that the public accommodation claim is reinstated. This is because, for the public accommodation 7

claim to be viable, Oakley must allege that Defendants’ “confinement” of him was not “privileged.” 8

McGowan v. United States , 825 F.3d 118, 1 26 (2d Cir. 2016). Oakley’s theory is that the security guards’ 9

detention of him was not privileged whe n Defendants acted for unlawful discriminat ory reasons 10

(that is, on the basis of his alcoholism ) , in violation of the ADA and NYSHRL . Because we affirm 11

t he dismissal of those claims , we also affirm the dismissal of Oakley’s false imprisonment claim. 12

* * * 13

For the foregoing reasons, the District Court’s judgment is AFFIRMED in part by this 14

Order , and REVERSED in part and the case REMANDED as set forth in the accompanying 15

Opinion

. 16

17

FOR THE COURT: 18

Catherine O’Hagan Wolfe, Clerk of Court 19