17-1719-cv
Hollander v. Brooks, et al.
                                   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 30th day of January, two thousand eighteen.

PRESENT:             GUIDO CALABRESI,
                     JOSÉ A. CABRANES,
                     RAYMOND J. LOHIER, JR.,
                            Circuit Judges.


ROY DEN HOLLANDER,

                              Plaintiff-Appellant               17-1719-cv

                              v.

MAJOR ELLIOTT GARRETT, CBS NEWS REPORTER,
KATHARINE BEAR TUR, NBC NEWS REPORTER,
CHARLES DAVID TODD, NBC MODERATOR OF MEET
THE PRESS, THOMAS LLAMAS, ABC NEWS REPORTER
AND ANCHOR, ABILIO JAMES ACOSTA, CNN
REPORTER, DAVID BROOKS, COMMENTATOR FOR THE
NEW YORK TIMES AND PBS NEWS HOUR, JENNA
JOHNSON, WASHINGTON POST REPORTER, CBS
NEWS INC., ABC NEWS DIVISION, CABLE NEWS
NETWORK, INC., LISA DESJARDINS, LESTER DON
HOLT, JR., HALLIE MARIE JACKSON, JONATHAN
DAVID KARL, ANDREA MITCHELL, NBCUNIVERSAL
NEWS GROUP, NEWSHOUR PRODUCTIONS LLC, NEW
YORK TIMES NEWSROOM, MEGAN M. TWOHEY,
CECILIA M. VEGA, KRISTEN WELKER, WASHINGTON
POST NEWSROOM, JOHN YANG,

                              Defendants - Appellees,
                                                        1
GWENDOLYN L. IFILL,

                        Defendant.


FOR PLAINTIFF-APPELLANT:                                      Roy Den Hollander, pro se, New York,
                                                              New York


FOR DEFENDANTS-APPELLEES MAJOR ELLIOTT GARRETT, ET AL.:

                                                              Katherine M. Bolger, Elizabeth A.
                                                              McNamara, Eric J. Feder, David Wright
                                                              Tremaine LLP, New York, New York

FOR DEFENDANTS-APPELLEES DAVID BROOKS, ET AL.:
                                   David E. McCraw, Ian MacDougall, The
                                   New York Times Company, New York,
                                   New York

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Paul A. Engelmayer, Judge).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the May 10, 2017 judgment of the District Court is
VACATED and REMANDED with instructions to the District Court to enter a judgment of
dismissal without prejudice.

         Plaintiff-Appellant Roy Den Hollander (“Hollander”), an attorney proceeding pro se, appeals
from the District Court’s decision to grant a motion to dismiss his complaint. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

         Hollander sued seven television and print news organizations and 17 journalists associated
with them. He alleged that these news organizations are “enterprises” within the meaning of the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (“RICO”). He alleges
that these organizations and journalists violated RICO § 1962(c) by reporting false information
related to the 2016 United States presidential election—and each piece of false information was a
predicate act of wire fraud supporting a claim of racketeering. Defendants moved to dismiss under
Fed R. Civ. Pro. 12(b)(1) and (12)(b)(6), arguing that 1) Den Hollander’s claim violated the First
Amendment; 2) Den Hollander lacked standing to assert his claim; and 3) Den Hollander failed to
adequately allege a viable civil RICO claim. The District Court granted their motion, stating that
“each of these arguments is meritorious.”

         We review de novo a district court’s dismissal of a complaint for lack of standing or failure to
state a claim. See Allco Fin. Ltd. v. Klee, 805 F.3d 89, 93 (2d Cir. 2015). When evaluating a motion to
dismiss, a court “must accept as true all of the factual allegations set out in [a] plaintiff’s complaint,
draw inferences from those allegations in the light most favorable to the plaintiff, and construe the
complaint liberally.” Roth v. Jennings, 489 F.3d 499, 510 (2d Cir. 2007) (internal citation omitted).
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        We conclude that the District Court properly granted defendants’ motion to dismiss for lack
of standing, as Hollander did not suffer any particularized injury. Because we affirm the District
Court’s decision to grant the motion to dismiss on this ground, we need not reach the other
elements of defendants’ motion to dismiss.

         However, dismissal for subject matter jurisdiction must be without prejudice, and here the
District Court granted Hollander’s motion to dismiss with prejudice. See Hernandez v. Conriv Realty
Assoc., 182 F.3d 121, 123 (2d Cir. 1999).

        We have reviewed all of the arguments raised by plaintiff on appeal and find them to be
without merit. For the foregoing reasons, we VACATE the judgment and REMAND with
instructions to the District Court to enter a judgment of dismissal without prejudice.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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