     08-2111-cv
     Michtavi v. New York Daily News,
     The Polish Daily News, Mathew Kalman, Does #1-#10


 1                       UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                               August Term, 2009
 6
 7
 8   (Submitted: October 23, 2009              Decided: November 25, 2009)
 9
10                            Docket No. 08-2111-cv
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   SHEMTOV MICHTAVI,
15
16                     Plaintiff-Appellant,
17
18               - v.-                                      08-2111-cv
19
20   NEW YORK DAILY NEWS, THE POLISH DAILY NEWS,
21   MATHEW KALMAN, DOES #1-#10
22
23                     Defendants-Appellees.
24
25   - - - - - - - - - - - - - - - - - - - -x
26

27         Before:           JACOBS, Chief Judge, KEARSE, Circuit
28                           Judge, and GARDEPHE,* District Judge.
29
30         Appeal from a judgment of the United States District

31   Court for the Southern District of New York (Sand, J.),

32   dismissing a complaint alleging libel and emotional

33   distress.     The defendant newspapers reported that the



           *
           Paul G. Gardephe, of the United States District Court
     for the Southern District of New York, sitting by
     designation.
1    plaintiff, who is incarcerated, planned to cooperate with

2    prosecutors.   The district court held that the reports could

3    not be defamatory under New York law.    We affirm.

 4                           Shemtov Michtavi, pro se, White
 5                           Deer, Pennsylvania, for Appellant.
 6
 7                           Marion Bachrachm, Dana Moskowitz,
 8                           DePetris & Bachrach, LLP, New York,
 9                           NY; Laura R. Handman, Davis Wright
10                           Tremaine LLP, Washington DC; Anne B.
11                           Carroll, Deputy General Counsel,
12                           Daily News, L.P., New York, NY, for
13                           Appellees.
14
15
16   DENNIS JACOBS, Chief Judge:
17
18       Shemtov Michtavi, pro se, alleges defamation and

19   intentional infliction of emotional distress based on news

20   reports, published by the New York Daily News and the Polish

21   Daily News, that Michtavi, who is incarcerated, planned to

22   cooperate with prosecutors.   Michtavi appeals from the

23   judgment of the United States District Court for the

24   Southern District of New York (Sand, J.) dismissing the

25   complaint for failure to state a claim on which relief could

26   be granted, under Fed. R. Civ. P. 12(b)(6).    Michtavi v. New

27   York Daily News, No. 06-Civ-8260, 2008 U.S. Dist. LEXIS

28   24997, *2-5 (S.D.N.Y. Mar. 12, 2008) .   The district court

29   held that the reports could not be defamatory under New York


                                   2
1    law, and we agree.

2                                  I

3        Michtavi is serving a twenty-year prison sentence for

4    narcotics offenses.   In March 2006, the defendant newspapers

5    reported [i] that he was a “key lieutenant” of Ze’ev

6    Rosenstein, an organized crime figure, and [ii] that

7    Michtavi planned to cooperate with prosecutors and testify

8    against Rosenstein.   Id. at *1-2 .

9        Michtavi, a citizen of Israel, invoked diversity

10   jurisdiction.   This matter is governed by New York law.

11       Michtavi does not contest on appeal the dismissal of

12   any claim stemming from the statement that he was a “key

13   lieutenant” of Rosenstein.    Any such claim is waived.

14   Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998).

15   Michtavi’s remaining claim, stemming from the report that he

16   planned to cooperate with the authorities, fails on the

17   ground that the statement is, as a matter of law, not

18   defamatory.

19                                 II

20       “Whether particular words are defamatory presents a

21   legal question to be resolved by the court in the first

22   instance.”    See Aronson v. Wiersma, 65 N.Y.2d 592, 594 (N.Y.

                                    3
1    1985).   Under New York law, a statement is defamatory only

2    if it would expose an individual to shame “in the minds of

3    right-thinking persons.”    Kimmerle v. New York Evening

4    Journal, Inc., 186 N.E. 217, 218 (N.Y. 1933); see also

5    Celle v. Filipino Reporter Enters., 209 F.3d 163, 177 (2d

6    Cir. 2000).   It is becoming increasingly hard to ascertain

7    as a matter of law what a right-thinking person would think,

8    and the line of cases has drawn some scholarly criticism.

9    See, e.g., Lyrissa Barnett Lidsky, Defamation, Reputation,

10   and the Myth of Community, 71 Wash. L. Rev. 1, 20-28 (1996).

11       To test for defamation, courts construe the words “as

12   they would be read and understood by the public to which

13   they are addressed.”    November v. Time, Inc., 194 N.E.2d

14   126, 128 (N.Y. 1963).    The newspapers may not have been

15   addressed specifically to the prison population, but that is

16   clearly the group whose good opinion matters to Michtavi.

17   However, “[t]he fact that a communication tends to prejudice

18   another in the eyes of even a substantial group is not

19   enough [to make the statement defamatory] if the group is

20   one whose standards are so anti-social that it is not proper

21   for the courts to recognize them.”     Restatement (Second) of

22   Torts § 559, cmt. e (1977).


                                    4
1         The population of right-thinking persons unambiguously

2    excludes “those who would think ill of one who legitimately

3    cooperates with law enforcement.”    Agnant v. Shakur, 30 F.

4    Supp. 2d 420, 424 (S.D.N.Y. 1998) (Mukasey, J.) (noting that

5    every American court surveyed has held that identifying

6    someone as a government informant is not defamatory as a

7    matter of law); see also Connelly v. McKay, 28 N.Y.S.2d 327,

8    329-30 (Sup. Ct. N.Y. County 1941) (“At most the language

9    claimed to have been used accuses the plaintiff of giving

10   information of violations of the law to the proper

11   authorities.    Are such acts reprehensible?   Is such language

12   defamatory?    This court thinks not.”).

13       We therefore agree with the district court that as a

14   matter of law the defendants’ reports were not defamatory.

15   Michtavi’s other arguments are likewise without merit.     For

16   the foregoing reasons, we affirm.




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