     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,
 4       on the 17th day of September, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                CHRISTOPHER F. DRONEY,
 8                              Circuit Judges,
 9
10                    LEWIS A. KAPLAN,
11                                  District Judge.*
12
13       - - - - - - - - - - - - - - - - - - - -X
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.
23       - - - - - - - - - - - - - - - - - - - -X


                *
               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




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