Yesterday, Judge Sheri Polster Chappell of the U.S. District Court for the Middle District of Florida weighed in on Shriteh v. NYP Holdings, Inc.:
This is a defamation dispute. The plaintiff runs seventeen vape retail locations in southwest Florida under the brand name “the King of Vape.” Christenson, writing on behalf of the New York Post, produced an article about the plaintiff titled, “Florida’s Israel-hating ‘King of Vape’ Faces Bipartisan Crackdown on Sale of Illicit, Kid-Friendly Chinese E-cigs.” The piece allegedly contained several false statements about the plaintiff that caused damages….
In ruling on an earlier motion to dismiss, the Court concluded that the plaintiff is a public figure and therefore must plead actual malice. The reason is that the plaintiff’s own pleadings indicated public figure status.
Specifically, in the Second Amended Complaint (as in every prior filing), the plaintiff asserted that before he immigrated to the United States in 2000, he was “a respected journalist working in Gaza and reporting for the New York Times, Reuters, and CBS News, whose courageous efforts were recognized in 1993 when he received the John R. Aubuchon International Freedom of the Press Award.” He also claimed he co-authored a book, Beyond Intifada, with “esteemed Israeli professors,” which “has been recognized for its contribution to understanding the human impact of the Israeli-Palestinian conflict.” And he repeatedly alleged that the Defendants issued and made the defamatory statements with actual malice.
The Court held that these allegations indicate he is a public figure and, accordingly, he must allege that Defendants acted with actual malice. And because the plaintiff failed to plausibly do so, the Court dismissed the Second-Amended Complaint with leave to amend to adequately plead actual malice.
Rather than comply with the Court’s instruction and properly plead actual malice, the plaintiff attempted to be clever. In the Third-Amended Complaint, the plaintiff removed all factual assertions the Court relied upon when determining that the plaintiff is a public figure. And he now contends that he does not need to plead actual malice because nothing in the Third-Amended Complaint suggests public figure status. But such inventive pleading will not succeed.
When a court grants a plaintiff leave to amend after dismissing a complaint, the plaintiff does not receive unfettered freedom to amend as he sees fit. Instead, the amendment is confined to the scope set by the court—i.e., to address specified pleading deficiencies. Although a court normally grants leave to amend under Federal Rule of Civil Procedure 15(a), the court may decline if the plaintiff acts in bad faith.
Not only was the plaintiff’s amendment that omitted allegations tying him to public-figure status out of bounds with the permitted scope to add factual allegations of actual malice, but the amendment appeared to be a calculated move to circumvent the court’s determination that the plaintiff is a public figure. Allowing such bad-faith tactics would permit the plaintiff to manipulate the course of the litigation. Simply put, the second amended complaint revealed that he is a public figure. He cannot restore the status in the hope of keeping his suit alive.
In this respect, the plaintiff still has not plausibly alleged facts showing that the Defendants acted with actual malice. He does not make any real effort to do so. The Court views his attempt to sidestep the public-figure designation and dodge malice pleading as a concession that he cannot meet the standard. Because the Court had already given the plaintiff an opportunity to cure this deficiency, it dismisses the plaintiff’s complaint with prejudice.
One final matter. In his response, the plaintiff also moves under Rule 54(b) for the Court to revisit its prior determination that he is a public figure. But relief cannot be sought through a responsive brief… “A request for a court order must be made by motion.” …
Benjamin Joseph Tyler and Scott D. Ponce (Holland & Knight LLP) and Chelsea T. Kelly, Laura R. Handman, and Leena M. Charlton (Davis Wright Tremaine LLP) represent the defendants.
