    17-2651-cv
    Robert Goldman v. Stephen Barrett

                           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 9th day of May, two thousand eighteen.

    PRESENT: JOHN M. WALKER, JR.
             DENNIS JACOBS,
                             Circuit Judges,
             KATHERINE B. FORREST,*
                             District Judge.

    - - - - - - - - - - - - - - - - - - - -X

    Dr. Robert M. Goldman, Dr. Ronald
    Klatz,
             Plaintiffs-Appellants,

                 -v.-                                          17-2651-cv

    Dr. Stephen J. Barrett, Quackwatch,
    Inc.,
             Defendants-Appellees.

    - - - - - - - - - - - - - - - - - - - -X

    FOR APPELLANTS:                        Wesley J. Paul, Paul Law group
                                           LLP, New York, NY.

    * Judge Katherine B. Forrest of the United States District
    Court for the Southern District of New York, sitting by
    designation.
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FOR APPELLEES:             Charles A. Michael, Stepoe &
                           Johnson LLP (Michael A. Keough,
                           on the brief), New York, NY.

     Appeal from the judgment of the United States District
Court for the Southern District of New York (Gardephe, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that that the judgment of the district court is
AFFIRMED.

     Drs. Robert Goldman and Ronald Klatz appeal from the
judgment of the United States District Court for the
Southern District of New York, which dismissed their
Amended Complaint alleging defamation and tortious
interference with prospective economic advantage. We
assume the parties’ familiarity with the underlying facts,
the procedural history, and the issues presented for
review.

     Plaintiffs are self-styled “anti-aging” specialists who
practice in Illinois and hold medical degrees from a school
in Belize. Defendant Dr. Barrett, a retired psychiatrist,
owns and operates the website www.quackwatch.org, which he
created to identify and distribute information about
persons who (in his view) employ questionable medical
techniques. In December 2000, an article appeared on
quackwatch.org describing a settlement agreement reached
between Plaintiffs and the State of Illinois Department of
Professional Regulation. Per the article, each Plaintiff
agreed by consent order to pay a $5,000 penalty and to
“immediately Cease and Desist from identifying himself, in
the State of Illinois, as an M.D.,” since their degrees
(Central American M.D.s and osteopathic medicine degrees
awarded in the United States) did not qualify them to
display that credential. Supp. App’x at 23.

     In November 2015, Plaintiffs sued Barrett for
defamation and tortious interference with prospective
economic advantage (the “Complaint”), claiming that the
Defendants’ publication and promotion of the article harmed
their business by creating a negative association between
the Plaintiffs and fake or discredited medicine. The
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district court dismissed the Complaint without prejudice,
concluding that Plaintiffs failed to “allege that any
statement made in the Article constitutes a false statement
of fact.” App’x at 32.

     Plaintiffs’ amended complaint, filed in October 2016,
added new allegations, including that Dr. Barrett had
maligned the plaintiffs in phone conversations with their
potential business partners in China and Malaysia as
recently as April 2015. The district court concluded that
the revised defamation claim was time-barred, and that the
new allegations in the amended complaint did not relate
back to the facts set out in the Complaint. It also
determined that the tortious interference claims were
duplicative of the defamation claim. Plaintiffs appeal
only the dismissal of the amended complaint. We review de
novo the district court’s grant of a motion to dismiss.
Carpenters Pension Trust Fund of St. Louis v. Barclays PLC,
750 F.3d 227, 232 (2d Cir. 2014).

     The amended complaint, filed in October 2016, alleged
defamatory statements from April 2015, and is therefore
presumptively barred by New York’s one-year statute of
limitations. See N.Y. C.P.L.R. 215(3). Plaintiffs contend
that the new allegations relate back pursuant to Federal
Rule of Civil Procedure 15. “An amendment to a pleading
relates back to the date of the original pleading when ...
the amendment asserts a claim or defense that arose out of
the conduct, transaction, or occurrence set out” in the
original pleading. Fed. R. Civ. P. 15(c). To relate back,
an amendment must concern “the general fact situation
alleged in the original pleading.” Rosenberg v. Martin,
478 F.2d 520, 526 (2d Cir. 1973). “[E]ven where an amended
complaint tracks the legal theory of the first complaint,
claims that are based on an ‘entirely distinct set’ of
factual allegations will not relate back.” Slayton v. Am.
Express Co., 460 F.3d 215, 228 (2d Cir. 2006) (quoting
Nettis v. Levitt, 241 F.3d 186, 193 (2d Cir. 2001)); see,
e.g., Pruiss v. Bosse, 912 F. Supp. 104, 106 (S.D.N.Y.
1996) (“An amendment will not relate back if it sets forth
a new set of operational facts; it can only make more
specific what has already been alleged.”).



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     The allegations in the amended complaint are factually
distinct from the transactions and occurrences detailed in
the November 2015 Complaint, which did not mention or
reference any conversations between Dr. Barrett and Chinese
or Malaysian officials. That those alleged conversations
derived from or relate in some sense to the December 2000
article is insufficient to satisfy Rule 15. See App’x at
74-75 (quoting from plaintiffs’ submissions claiming the
article served as a “catalyst” for the newly pled
allegations); see also Slayton, 460 F.3d at 228. These
later events were separate transactions of a distinct
character notwithstanding their connection to the
allegations in the original complaint. A defendant reading
the November 2015 Complaint would not have been put on
notice of the specifics or even the nature of the newly
alleged defamatory conduct, which occurred a decade and a
half later and involved different parties. See Rosenberg,
478 F.2d at 526.

     Plaintiffs respond that the amended complaint merely
provides greater specificity as to how Defendants
interfered with business opportunities. This argument
mistakes the function of relation back under Rule 15: the
amended complaint alleges new defamatory statements that do
not bear upon--much less “specify”--the content of the
article or any of the other issues animating the underlying
Complaint, such as search engine optimization techniques.2

     Plaintiffs also argue that the district court erred in
concluding that the claim of tortious interference with
prospective economic advantage was duplicative of the
defamation claim.

     “New York law considers claims sounding in tort to be
defamation claims ... where ‘the entire injury complained
of by plaintiff flows from the effect on his reputation.’”

2 Plaintiffs also suggest that the new allegations in the
FAC refer only to the amount of damages, and that the core
defamatory conduct remains the content of the December 2000
article. Plaintiffs did not appeal the dismissal of the
Complaint for failure to allege a false statement, and we
decline to rule on issues that are not properly before us
on appeal. App’x at 35-37.
                             4
Jain v. Sec. Indus. & Fin. Mkts Ass’n, No. 08 Civ.
6463(DAB), 2009 WL 3166684, *9 (S.D.N.Y. Sep. 28, 2009)
(citing Balderman v. Am. Broad. Cos., 292 A.D.2d 67, 76
(4th Dep’t 2002)); see also Goldberg v. Sitomar, Sitomar &
Proges, 482 N.Y.S.2d 268 (N.Y. 1984)). New York courts
treat harm stemming from injury to reputation as sounding
in defamation, and do not recognize separate torts as
additional causes of action. See Morrison v. Nat’l Broad.
Co., 280 N.Y.S.2d 641, 644 (N.Y. 1967); see, e.g., Krepps
v. Reiner, 588 F. Supp. 2d 471, 485 (S.D.N.Y. 2008)(“[A]
[p]laintiff is not permitted to dress up a defamation claim
as a claim for intentional interference with a prospective
economic advantage.”); Pasqualini v. MortgageIT, Inc., 498
F. Supp. 2d 659, 669-70 (S.D.N.Y. 2007) (“New York Courts
have consistently ruled that a claim which is ostensibly
based upon the intentional torts of interference with
advantageous or contractual relations, but which alleges
injury to reputation, is a disguised defamation
claim....”)(internal quotation marks omitted)).

     Plaintiffs argue that the Defendants’ purported
intention to damage their business operations in Asia can
support a stand-alone claim because the alleged activities
are distinct from, and more extensive than, harm to
reputation. This argument is meritless. These converging
claims are premised on identical underlying factual
content: Barrett’s alleged statements to Plaintiffs’
potential business partners impugning the quality of their
practice, integrity, and legality are what is alleged to
have harmed their reputation and to have interfered with
prospective economic advantage. Even if the Defendants
possessed more than one intention, Plaintiffs have not
alleged an independent source of harm. See Lesesne v.
Brimecome, 918 F. Supp. 2d 221, 225 (S.D.N.Y. 2013)
(collecting “cases in which courts have found that claims
brought under the guise of other causes of action actually
sound in defamation, even if the plaintiff alleged economic
harm” from other transactions). The tortious interference
claim was therefore properly dismissed as duplicative of
the defamation claim because any economic damages derive
from defamatory statements. See Noel v. Interboro Mut.
Indem. Ins. Co., 31 A.D.2d 54, 55-56 (1st Dep’t 1968).



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     Lastly, Plaintiffs concede that their “conspiracy claim
cannot stand alone.” Appellants’ Br. at 21. Since we
affirm the dismissal of the substantive tortious
interference claim, the conspiracy claim falls with it.
See Kirch v. Liberty Media Corp., 449 F.3d 388, 400-401 (2d
Cir. 2006).

     For the foregoing reasons, and finding no merit in the
Plaintiffs’ other arguments, we hereby AFFIRM the judgment
of the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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