Case Document 69 Filed 08/02/18 Page 1 of 20

 

 

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

 

 

 

JOEL RICH and MARY RICH,

 

 

 

 

Plaintiffs,

MEMORANDUM DECISION
AND ORDER

 

-against?
FOX NEWS NETWORK, LLC, MALIA . 
ZIMMERMAN, in her individual and professional 18 Cw. 2223 (GED)
capacities, and ED BUTOWSKY, in his individual
and professional capacities,

Defendants.

GEORGE B. DANIELS, United States District Judge:

Plaintiffs Joel and Mary Rich bring this action against Defendants Fox News Network, LLC,
Fox News reporter Malia Zimmerman (together with Fox News, the ?Fox Defendants?), and ox
News contributor Ed Butowsky asserting claims for intentional in?iction of emotional distress
and for aiding and abetting and conspiring to intentionally in?ict emotional distress on
Plaintiffs. (Compl., ECF No. 7, 135?71.) Plaintiffs principally allege that Defendants conspired
to cause Plaintiffs severe emotional distress by publishing a news article reporting that their son, Seth
Rich, a former Democratic National Committee employee, was murdered for leaking
sensitive, private emails from DNC servers to WikiLeaks. (See id.) Plaintiffs also assert a claim
against all Defendants for tortious interference with Plaintiffs? contract with Fox News contributor
and private investigator Rod Wheeler, as well as a claim against Fox News for its negligent

supervision and/or retention of Zimmerman and Wheeler.1 (Id. 172?84.) Defendants move to

 

1 Before Plaintiffs brought this suit, Rod Wheeler ?led an action pending before this Court in which he asserts
claims for defamation and libel against Fox News, Zimmerman, and Butowsky arising out of Fox News?s
coverage of Wheeler?s investigation into Seth Rich?s murder. (Am. Compl, Wheeler v. Twenty?First Century

 

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dismiss the complaint for failure to state a claim pursuant to Rule l2(b)(6) of the Federal Rules of


Defendants? motions to dismiss for failure to state a claim are GRANTED.

I. FACTUAL BACKGROUND

Plaintiffs are the parents of Seth Rich, a Democratic National Committee employee
who was murdered on July 10, 2016. (Compl. 2, 13, 16.) Although the murder is still being
investigated by the Washington DC. Metropolitan Police Department and remains
unresolved, the investigation supports the conclusion that Seth Rich?s murder was the result
of a botched robbery. (Id. 1] 17.) According to Plaintiffs, however, Defendants have publicized a
different and patently fictitious story about the circumstances of their son?s murder.

On July 22, 2016, more than 44,000 private emails from the DNC were published on a website
maintained by the organization known as WikiLeaks. (Id. ii 19.) According to Plaintiffs, a conspiracy
theory developed among some political groups that Seth Rich was murdered because he provided the
DNC emails to WikiLeaks. (Id. 3, 22.) On August 22, 2016, Plaintiffs issued a response to the
conspiracy theory, which stated, in part:

[S]ome are attempting to politicize this horrible tragedy, and in their
attempts to do so, are actually causing more harm than good and
impeding . . . the ability of law enforcement to properly do their job.
For the sake of finding Seth?s killer, and for the sake of giving the
family the space they need at this terrible time, they are asking for the
public to refrain from pushing unproven and harmful theories about

Seth?s murder.

aayza)

 

Fox, Inc, No. 17?cv-5807 (S.D.N.Y. Oct. 23, 2017), ECF No. 56.) The defendants in that case filed motions
to dismiss, which are addressed in a separate opinion ?led today.

2 Butowsky also moves to dismiss the complaint for lack of personal jurisdiction pursuant to Rule l2(b)(2) of
the Federal Rules of Civil Procedure. However, because Plaintiffs? claims against all Defendants fail on their
merits, see Section in?a, this Court declines to address Butowsky?s jurisdictional arguments.

2

 

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On or about December 17, 2016, Butowsky made contact with Plaintiffs through a Facebook
post indicating that he was ?looking to connect with anyone Jewish in Omaha[,] Nebraska.? (Compl.
11 25.) Butowsky spoke with Plaintiffs by phone and informed them that he had heard WikiLeaks
received the DNC emails from Seth Rich. (Id. 1111 25?26.) Plaintiffs, however, denied that their son
had done so. (Id. 11 26.) On January 3, 2017, Butowsky sent Joel Rich a follow?up email with the
subject line, ?Please call ed [sic] Butowsky. We met through Jeremy from your temple.? (Id. 11 27.)

That same day, Zimmerman emailed Brad Bauman, who was handling press inquiries on
Plaintiffs? behalf, asking for information about Seth Rich?s murder. (Id. 11 28.) When Bauman
responded, Zimmerman wrote back that she ?would want to get the information directly from [Joel
Rich] or law enforcement to ensure its accuracy.? (Id) Accordingly, on January 5, 2017, Zimmerman
emailed Joel Rich requesting information about Seth for stories she was writing, claiming that she
wanted to ?bring further attention to his case.? (Id. 11 30.) Joel Rich responded by sending
Zimmerman information about Seth as well as photographs of him. (Id)

On January 20, 2017, Butowsky called Joel Rich and encouraged him to look at Seth?s bank
account to see if there were any payments posted from WikiLeaks. Plaintiffs, however, again assured
Butowsky that rumors about Seth Rich and WikiLeaks were ?baseless.? (Id. 1111 31?32.)

On February 23, 2017, Butowsky sent a text message to Rod Wheeler stating that he was
?looking for some assistance on something that happened in Washington? and asking him to call.
(Id. 11 34.) Wheeler, a former MPDC homicide detective turned private investigator, was then under
contract with Fox News to appear as an on?air contributor, as well as to provide ?off?air assistance,

as requested by Fox.?3 (Id. 11 33.) When Wheeler called, Butowsky stated that he was working with

 

3 Plaintiffs have not named Wheeler as a Defendant in this lawsuit.

3

 

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Zimmerman at Fox News on an article about Seth Rich and wanted Wheeler to conduct an
investigation into his murder. (Id. 35.)

On February 28, 2017, Wheeler met with Butowsky and Zimmerman. (Id 1[ 37.) Plaintiffs
allege that Butowsky, Zimmerman, and Fox News ?sought to have Wheeler plausibly corroborate the
sham story . . . that Seth gave the DNC emails to WikiLeaks.? (Id. 1] 39.) That same day, Butowsky
sent an email to Plaintiffs offering to hire Wheeler on their behalf to investigate their son?s murder.
(Id. 1[ 41.) Wheeler also spoke with Plaintiffs directly about the prospective investigation, though he
did not mention that he had met with Zimmerman. (Id. 1[ 43.)

On March 3, 2017, Butowsky sent Joel Rich a draft of an engagement agreement between
Plaintiffs and Wheeler, which stated that Wheeler would provide ?media representation? for the Rich
family and that he would ?[i]nte1view, investigate, and represent? Seth? 3 family members ?in any and
all media contacts and with regards to the official police investigation surrounding the death of Seth
Rich.? (Id. 1[ 45.) Plaintiffs, however, told Butowsky and Wheeler that they would not allow Wheeler
to serve as their media representative unless Plaintiffs would have complete control over the
comments Wheeler made publicly on their behalf. (Id. 46?47.) Butowsky told Plaintiffs that he
would accept Plaintiffs? condition. (Id. ii 47.)

On March 5, 2017, Butowsky followed upland urged Plaintiffs to allow him to hire and pay
for Wheeler?s services on their behalf, appealing to their ?need to get closure, as a family.? (Id. 49.)
Butowsky assured Plaintiffs that his motivation in offering to pay Wheeler on Plaintiffs? behalf was
purely altruistic, and that he was concerned about the rumors circulating about Seth. (Id. 1] 50.)
Butowsky further assured Plaintiffs that he would not be involved any longer and that Wheeler would
take his directions from, and provide all information directly to, Plaintiffs. (Id. 1] 51.) Butowsky told

Plaintiffs that they would ?never see me ever talk about this anywhere.? (Id) In a phone call with

 

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Joel Rich on March 13, 2017, Butowsky reiterated that he would respect Wheeler?s obligation not to
speak about his investigation to anyone but Plaintiffs. (Id. 1] 54.)

On March 14, 2017, Plaintiffs executed a contract with Wheeler?s private investigation ?rm,
Capitol Investigations, LLC. (Id. 1] 56.) The contract stated, among other things, that ?[t]he
representation shall not include media representation, unless otherwise permitted by [Plaintiffs] in
writing.? (Id. 1] 57.) The contract also stated, ?Capitol Investigations shall not release any information
regarding the investigation, including but not limited to findings, working theories or path [sic]
forward to any third party without prior authorization by [Plaintiffs] unless that third party is an
investigating agency, i.e. Metropolitan Police Department and the (Id)

On April 9, 2017, Wheeler sent a text message to Zimmerman stating, ?I?m ready to say Seths
[sic] Death [sic] was not a botched robbery.? (Id 1] 60.) On April 18, 2017, Butowsky sent Wheeler
a text message stating that he would be ?meeting [White House Press Secretary] Sean Spicer and
want you with me.? (Id. 1] 61.) Wheeler and Butowsky met with Spicer two days later and provided
Spicer with written materials relating to Wheeler?s investigation. (Id. 1] 63.) Neither Wheeler nor
Butowsky asked Plaintiffs for permission prior to meeting with Spicer, nor had they informed
Plaintiffs of the meeting. (Id. 1] 65.)

On April 24, 2017, and with Plaintiffs? approval, Wheeler obtained an interview with MPDC
Detective Della-Camera, the lead homicide detective investigating Seth Rich?s murder. (Id. 1] 66.)
The night before the interview, Butowsky sent an email to Wheeler stating, ?Della camera [sic] is
either helping us or we will go after him as part of the coverup (Id. 1] 67.) Zimmerman then
sent Wheeler several emails, some of which were copied to Butowsky, with information about

Detective Della-Camera and the investigation into Seth Rich?s murder. (Id. 1] 68.)

 

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On May 10, 2017, Butowsky and Zimmerman advised Wheeler that an FBI source had
con?rmed that emails were exchanged between Seth and WikiLeaks. (Id. 69.) Butowsky and
Zimmerman also told Wheeler that they would be meeting with the source and would provide Wheeler
with details from the meeting. (Id) However, Plaintiffs allege that, in fact, Zimmerman and
Butowsky did not have such a source. (Id. 7 79.) The next day, Zimmerman sent Wheeler a copy of
an article she had drafted for publication by Fox News (the ?Zimmerman/Fox Article?), reporting on
Seth Rich?s alleged disclosure of DNC emails to WikiLeaks. (Id. 1111 70, 72.) Zimmerman worked
on and exchanged multiple drafts of the Zimmerman/Fox Article with Butowsky. (Id. 71.)

On May 15, 2017, Zimmerman told Wheeler that the ?bosses at Fox? wanted the
Zimmerman! Fox Article published the next day, while Butowsky left Wheeler a voicemail telling him
to ?close this deal, whatever you got to do.? (Id. 1[ 74.) That same day, Zimmerman also contacted
Plaintiffs to request their comment on a FBI report showing that Seth Rich had disclosed the DNC
emails to WikiLeaks. (Id. 78.) Also on May 15, 2017, Wheeler spoke with Joel Rich about the
Zimmerman/Fox Article, which Rich maintained was false. (Id. 1] 80.)

Nevertheless, on May 16, 2017, Fox News published the Zimmerman/Fox Article. (Id. 1] 87.)
The article contained a quote from an unnamed federal investigator stating, have seen and read the
emails between Seth Rich and WikiLeaks.? (Id) The article also noted that the federal investigator?s
?revelation? was ?consistent with the ?ndings of Rod Wheeler, a former DC homicide detective and
Fox News contributor whose private investigation ?rm was hired by Rich?s family to probe the case.?
(Id. ?ll 88.) In addition, the article quoted Wheeler as stating, investigation up to this point
shows there was some degree of email exchange between Seth Rich and WikiLeaks.? (Id. 1] 89.)
Plaintiffs allege that the quotes attributed to the federal investigator and Wheeler were false.

(Id. 1m 87, 91.)

 

 

Case Document 69 Filed 08/02/18 Page 7 of 20

Later that day, Fox News published a second article that stated, among other things, ?Rod
Wheeler, a retired Washington homicide detective and Fox News contributor investigating the
case on behalf of the Rich Family, made the WikiLeaks claim, which was corroborated by a federal
investigator who spoke to Fox News.? (Id. ii 90.) The second article also stated that ?a spokesman
for Rich?s family on Tuesday said Wheeler was not authorized to speak for the family. . . (Id)

Over the next several days following the publication of both articles, Seth Rich?s murder and
the Zimmerman/ Fox Article were covered on various Fox News pro grams and in other media sources.
(Id 11 104.) In addition, on May 22, 2017, Wheeler issued a public media release indicating that he
was ?of the personal opinion that the information/ article reported by Fox News Channel was
essentially correct and worthy of further investigation.? (Id. 11 105.) However, the next day, Fox
News issued a retraction of the Zimmerman/F ox Article, explaining that the article ?was not initially
subjected to the high degree of editorial scrutiny we require for all our reporting[]? and that ?[u]pon
appropriate review, [it] was found not to meet those standards and has since been removed.? (Id.
106?07.)

Even after the Zimmerman/F ox Article was retracted, various Fox News programs continued
to discuss Seth Rich?s murder. (Id. ii 108.) Plaintiffs allege that this coverage was designed to
?exploit the sham story? that was the subject of the Zimmerman/Fox Article in order to boost Fox
News?s ratings. (Id. 109.) Plaintiffs further allege that Butowsky continued to publicly discuss the
Zimmerman] Fox Article, including on Twitter. One Tweet, for example, suggested that Plaintiffs had
con?rmed that Aaron Rich, Seth?s brother, received money from WikiLeaks in his personal bank
account. (Id. 1i 113.) In-addition, on August 16, 2017, Butowsky told National Public Radio that

?every word? of the Zimmerman/Fox Article was true. (Id. ?ll 114.)

 

Case Document 69 Filed 08/02/18 Page 8 of 20

After the retraction of the Zimmerman/Fox Article, Butowsky remained in contact with
Plaintiffs. On May 25, 2017, for instance, Butowsky sent Joel Rich a text message stating, in part, 
kept thinking at some point you would explain the things written about me were not true but you
never did. . . . The idea that I conspired to do something which I have no idea what that could?ve been
is complete hogwash made up by . . . Bauman.? (Id 11 Ill.) The text message stated further, ?You
should call Malia Zimmerman. She found the person and the gun that was used to shoot your son. . . .
When you ?nd out who did it you are going to be very very emotional.? (Id) Plaintiffs allege that
Butowsky continued calling, texting, and leaving voicemails for Joel Rich. (Id. ii 117.)

Plaintiffs further allege that the ZimmermanIFox Article, together with the Defendants?
overall conduct, has caused them ?intense distress.? (Id. 128.) Plaintiffs allege that they both new
exhibit consistent with post-traumatic stress disorder and obsessive-compulsive behavior
and that Mary Rich experiences consistent with social anxiety disorder. (Id. 130?3 1.)
Plaintiffs further allege that they experience feelings of anxiety, and have developed a
?hypersensitivity to potentially being harassed, threatened, and harmed.? (Id. As a
result, they claim they have installed three video cameras outside their home to detect unwanted
visitors. (Id. 

In addition, Plaintiffs allege that Mary Rich was laid off shortly before her son?s death, but
that she had received a job offer on the same night that the Zimmerman/F ox Article was published.
(Id?i 133.) Plaintiffs allege that as a result of the publication of the Zimmerman/Fox Article and
subsequent media coverage, she became distraught and was unable to accept the job. (Id) Plaintiffs
further allege that although Mary Rich had a ?preexisting neurological condition, which was being
managed with regular treatment,? her condition has become aggravated such that she has been unable

to return to work. (Id)

 

Case Document 69 Filed 08/02/18 Page 9 of 20

II. LEGAL STANDARDS

Rule 12(b)(6) motion challenges the legal suf?ciency of the claims asserted in a
complaint.? Trs. of Upstate Y. Eng ?rs Pension and v. Ivy Asset Mgmt., 131 F. Supp. 3d 103, 119?
20 (S.D.N.Y. 2015). To survive such a motion, the plaintiff must plead ?enough facts to state a claim
to relief that is plausible on its face.? 3631 At}. Corp. v. Twombly, 550 US. 544, 570 (2007). claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.? Ashcro? v. Iqbal, 556
US. 662, 678 (2009). In deciding a Rule 12(b)(6) motion, a court ?accept[s] all factual allegations
in the complaint as true . . . and draw[s] all reasonable inferences? in favor of the plaintiff. Holmes
v. 568 F.3d 329, 335 (2d Cir. 2009). A court is ?not, however, ?bound to accept conclusory.
allegations or legal conclusions masquerading as factual conclusions.?? aber v. Metro. Life Ins. Co.,
648 F.3d 98, 104 (2d Cir. 2011) (quoting Rolon v. Henneman, 517 F.3d 140, 149 (2d Cir. 2008)).

THE COMPLAINT FAILS TO STATE A CLAIM

Plaintiffs assert several state law claims against Fox News, Zimmerman, and Butowsky for
IIED, as well as conspiring to commit and aiding and abetting IIED, and tortious interference with
contract. (See id. 136?44, 146?56, 158?71, 173?77.) Plaintiffs also assert a claim against Fox
News for the negligent supervision and/or retention of Zimmerman and Wheeler. (Id. 179h84.)
However, each of Plaintiffs? claims fail to adequately allege essential elements of the causes of action
asserted. Accordingly, Plaintiffs? complaint is dismissed in its entirety.

A. Intentional Infliction of Emotional Distress

To state a claim for IIED under New York law, a plaintiff must adequately allege: extreme

and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection between

 

Case Document 69 Filed 08/02/18 Page 10 of 20

the conduct and the injury, and (4) severe emotional distress? Friedman v. Self Heip sz?y. Sam?s,
Inc, 647 F. App?x 44, 47 (2d Cir. 2016). To form the basis of an IIED claim, the conduct must be
?so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a civilized society.? Howell v. New York
Post Co, 612 699, 702 (N.Y. 1999)).

This ?standard . . . is ?rigorous, and dif?cult to satisfy.? Conboy v. Corp, 241 F.3d
242, 258 (2d Cir. 2001) (quoting HoweZZ, 612 at 702); see aZso DiRuzza v. Lama, 685 F.
App?x 34, 36 (2d Cir. 2017) claim for must satisfy an ?exceedingly high legal standard?
and is available ?only as a last resort?). ?Actions ?likely [to] be considered reprehensible by most
people? are not sufficient.? DiRuzza, 685 F. App?): at 37 (citation omitted); see also Ponticelli v.
Zurich Am. Ins. Grp., 16 F. Supp. 2d 414, 441 (S.D.N.Y. 1998) [that is] undoubtedly
unprofessional, distasteful, and improper, does not rise to the level of extreme and outrageous .
behavior required for an HED claim in New York?) Indeed, of all the IIED claims the New York
Court of Appeals has considered, ?every one has failed because the alleged conduct was not
sufficiently outrageous.? DiRuzza, 685 F. App?x at 37 (quoting Chanko 12. Am. Broad. Cos, 49
1171, 1179 (N .Y. 2016)) (alterations and omission in original).

As courts have observed, defamatory statements to news outlets ?fall well short of meeting
the high standard for extreme and outrageous conduct.? Cruz v. Marchez?to, No. 11 Civ. 8378 (RWS),

2012 WL 4513484, at *5 (S.D.N.Y. Oct. 1, 2012) (collecting cases); see also Restis v. Am. Cool.

 

Where, as here, a federal court?s ?subject matter jurisdiction is grounded on the diversity statute, and . . . the
[d]istriot [c]ourt . . . sits in New York,? a court ?determine[s] the body of law that applies . . . with reference
to New York?s choice of law rules.? Booking v. Gen. Stangmr. Ca, 254 F.3d 414, 419 (2d Cir. 2001). Under
those rules, ?the ?rst step . . . is to determine whether there is an ?actual con?ict? between the laws invoked by
the parties.? Id. ?If there is no actual con?ict, then the choice of law question is inconsequential and the forum
state? may ?appl[y] its own law.? Johnson. v. Nexrel Commc?ns, Inc, 660 F.3d 131, 138 (2d Cir. 2011).
Because the parties rely on New York law and they have not identi?ed an actual con?ict between the relevant
laws of New York and Nebraska, this Court applies New York law as the law of the forum.

10

 

Case Document 69 Filed 08/02/18 Page 11 of 20

Against Nuclear Iran, Inc, 53 F. Supp. 3d 705, 729 (S.D.N.Y. 2014) in this Circuit have
recognized[] [that] defamatory statements generally cannot constitute the extreme and outrageous
behavior required for an claim?). Moreover, ?it is well established that where the crux of 
complaint sounds in defamation, court[s] will refuse to allow a cause of action for emotional distress,?
because a plaintiff cannot ?circumvent[] the restrictions on defamation claims? by styling his claim
as one for IIED. Croskey v. Med. Tech. Servs., Inc, No. 05 Civ. 6641 (LMM), 2006 WL 2347816,
at *3 (S.D.N.Y. Aug. 10, 2006) (citing Wilson v. Merrill Pierce, Fenner cf: Smith, Inc, 490
553, 555 (App. Div. 2d Dep?t 1985)). Similarly, ?courts have held that false statements or
misrepresentations?even if intentionally made?do not rise to the level of extreme and outrageous
conduct.? Baralia v. Vinya Capital, L.P., No. 07 Civ. 4626 (MHD), 2009 WL 959578, at *12
(S.D.N.Y. Mar. 31, 2009) (citations omitted). Allegations that the false statements ?would
have . . . an [emotionally distressing] effect because [plaintiff] is a religious [person]? do not render
the statements suf?ciently outrageous to form the basis for an claim. Lawson v. N. Y. Billiards
Corp, 331 F. Supp. 2d 121, 133 (E.D.N.Y. 2004).

In addition, ?[c]ourts are reluctant to allow recovery under the banner of absent a
deliberate and malicious campaign of harassment or intimidation.? Margrahe v. Sexter Warm?ash,
P. C., 353 F. App?x 547, 550 (2d Cir. 2009) (quoting Cohn?Frankel v. United Synagogue of
Conservative Judaism, 667 360, 362 (App. Div. Dep?t 1998)). To find such a campaign
exists, ?New York courts appear to require that plaintiffs allege either an unrelenting campaign of
day in, day out harassment or that the harassment was accompanied by physical Lawson,
331 F. Supp. 2d at 133 (quoting Nunez v. Info, Inc, 957 F. Supp. 438, 442 (S.D.N.Y. 1997));
see also Fleming v. Hymes?Esposito, No. 12 Civ. 1154 (JPO), 2013 WL 1285431, at *9 (S.D.N.Y.

Mar. 29, 2013) (dismissing an HED claim based on ?defamation, . .. numerous phone calls,

11

 

Case Document 69 Filed 08/02/18 Page unannounced visits . . . and [defendant?s] refusal to leave after one particular visit?). When
the alleged campaign is ?based on ?abuse by defendant of some relation or position which gives the
defendant actual or apparent power to damage the plaintiffs interests . . . liability usually has rested
on a prolonged course of hounding by a variety of extreme methods.?? iorito v. Ramos?KeZZy, No.
10 Civ. 4645 (LAP), 2010 WL 4967976, at *3 (S.D.N.Y. Dec. 2, 2010) (quoting Lopez v. City ofN. Y.,
901 F. Supp. 684, 691 (S.D.N.Y. 1995)).

Where a plaintiff asserts an IIED claim against multiple defendants, as here the ?[p]laintiff
cannot rest his claim merely on defendants? alleged agreement to collaborate against him . . . .
Instead, he must set forth, clearly and concisely, allegations of speci?c instances of each individual?s
conduct that rise to the level of ?extreme and outrageous? conduct.? Jones v. Trump, 971 F. Supp.
783, 787 (S.D.N.Y. 1997). Absent such allegations, a plaintiff cannot recover for IIED even though
the defendant may have acted with a tortious or criminal intent, or ?his conduct has been characterized
by ?malice? or a degree of aggravation which would entitle the plaintiff to punitive damages for
another tort.? Sarto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999) (quoting Restatement (Second)
of Torts 46 cmt. (1965)); see also Cusimarzo v. United Health Servs. Hosps., Inc, 937 
413, 416, 418 (App. Div. 3d Dep?t 2012) (?nding plaintiff who alleged defendants ?harbored ill will
towards her? failed to state an IIED claim because the defendants? alleged conduct was
not ?outrageous?).

Plaintiffs? allegations fall short of stating a claim for IIED. Plaintiffs allege that Butowsky
and Zimmerman, acting in concert with Fox News, deceived Plaintiffs and capitalized on their

vulnerability in the wake of their son?s murder to develop a fake story that Fox News could report.5

 

5 Plaintiffs and the Fox Defendants argue about whether the First Amendment would permit a claim for IIED
based solely on speech. (See Pls. Consolidated Mom. in Opp?n to Defs.? Mots. to Dismiss ECF
No. 56, at 16, 19?22', Fox Defs. Mem. at 10?12). However, because the parties agree that Plaintiffs? IIED

l2

 

Case Document 69 Filed 08/02/18 Page 13 of 20

(Compl. ?l It is understandable that Plaintiffs might feel that their grief and personal loss
were taken advantage of, and that the tragic death of their son was exploited for political purposes.
However, a general allegation that Defendants had an ?agreement to collaborate against? Plaintiffs
cannot form the basis for an IIED claim; rather, ?speci?c instances of each individual?s conduct? are
required. Jones, 971 F. Supp. at 787.

Plaintiffs allege that the Zimmerman/Fox Article was false because it inaccurately stated that
Seth Rich had leaked the DNC emails to WikiLeaks. (Id. ii 70.) Plaintiffs also allege that Zimmerman
falsely told Plaintiffs about an FBI report that she claims showed Seth Rich had disclosed the DNC
emails to WikiLeaks. (Compl. 78-49.) However, even though Zimmerman?s statements in the
Zimmei'maanox Article and to Plaintiffs about the FBI rep01t were false, such ?false statements or
misrepresentations??even if intentionally madewdo not rise to the level of extreme and outrageous
conduct.? Baraliu, 2009 WL 959578, at *12.

Plaintiffs also alleges that Butowsky used Plaintiffs? Jewish heritage and community ties to
gain a favorable introduction to them by posting on his Facebook page that he was ?looking to connect
with anyone Jewish in Omaha[,] Nebraska.? (Compl. ii 25.) Yet, merely posting a false statement on
Facebook is not ?outrageous? conduct, and the fact that the post relates to Plaintiffs? religion does not
make it so. Lawson, 331 F. Supp. 2d at 133. Plaintiffs further allege that Butowsky made false
statements to Plaintiffs concerning his motivations for paying for Wheeler?s services, the degree of
control Plaintiffs would have over Wheeler?s and Butowsky?s statements to the media, and Wheeler?s
independence and impartiality. (Compl. 41, 47?48, 50?62, 54?55.) As noted above, however,
making false statements does not constitute ?extreme and outrageous conduct.? Baraliu, 2009 WL

959578, at *12.

 

claim is based on a course of conduct that involves more thanjust speech, (see Opp?n at 3, 1 l, 18; Fox Defs.
Mem. at 13?15; Butowsky Mem. at 10, 13), this Court need not reach that question.

13

 

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Additionally, Plaintiffs allege that after the Zimmerman/F ox Article was published, Butowsky
was quoted in several news reports as falsely stating that Plaintiffs had continued that Seth Rich
leaked the DNC emails to WikiLeaks.6 (Compl. 115416.) However, such statements, even if false
and defamatory, do not constitute extreme and outrageous conduct. Cruz, 2012 WL 4513484, at 
Plaintiffs also allege that after the publication of the Zimmerman! Fox Article, Butowsky sent a text
message to Joel Rich designed to ?exploit oel?s emotions,? posted tweets about the Zimmerman/Fox
Article, and sent Joel Rich additional text messages and voicemails. (Compl. 111, 117, 136(1),
139.) Although such conduct may be ?unprofessional, distasteful, and improper,? it ?does not rise to
the level of extreme and outrageous behavior.? Ponticellz?, 16 F. Supp. 2d at 441.

As to Fox News, Plaintiffs allege generally that Fox News participated in a scheme with and
directed Zimmerman?s and Butowsky?s activities. (Compl. fl 8; see also id. 165, 167-68.)
However, the only conduct that Plaintiffs specifically attribute to Fox News relates to its publication
of articles and news reports containing allegedly false statements? (See Compl. 1i 8; see also id.
'll?ll 138.) Thus, the ?crux? of the conduct Plaintiffs attribute to Fox News is defamation.
However, Plaintiffs cannot ?circumvent[] the restrictions on defamation claims? by styling their
defamation claim as one for IIED. Croskey, 2006 WL 2347816, at Moreover, the statements

Plaintiffs identify concern Seth Rich, not Plaintiffs, (See Compl. 70, 87?89, 96), and it is well

 

6 The Complaint also alleges that Butowsky sent an email to individuals at Fox News stating that he was ?the
one who?s been putting this [Zimmerman/Fox Article] together,? and that Zimmerman sent drafts of the
Zimmerman/F ox Article to Butowsky. (Compl. 71, 82.) However, the complaint does not identify any
speci?c actions Butowsky took relating to the Zimmermaanox Atticle.

7 Plaintiffs also allege that Fox News ?exploit[ed] the sham story? claiming Seth Rich had communicated with
WikiLeaks ?because it was good for ratings.? (Compl. 1[ 109; see also id. 1[ But the statements
Plaintiffs identify as ?propagat[ing]? the story were made by third parties, not by Fox News. (Id. 1i 108.)
Moreover, even if those third parties could be considered to have been acting as agents of Fox News, a decision
by a news network to publicize a false and defamatory story to increase its ratings, while perhaps ?considered
reprehensible by most people,? DiRuzza, 685 F. App?x at 37, does not rise to the level of extreme or outrageous
conduct.

14

 

Case Document 69 Filed 08/02/18 Page 15 of 20

settled that under New York law, ?libel or slander upon . . . a deceased person which makes no direct
re?ection upon his relatives gives them no cause of action for defamation.? Infanre v. Dignan, 782
F. Supp. 2d 32, 37 (W.D.N.Y. 2011) (quoting Rose 12. Daily Mirror, 31 182, 182 (NY. 1940)).

Plaintiffs allege that the Zimmerman/Fox Article ?implicated Joel and Mary? because readers
would ?infer[] that they were involved in establishing the (fictitious) facts? of the Zimmerman/Fox
Article. (Compl. 1] Yet, the Zimmerman/Fox Article expressly noted that ?[Seth] Rich?s
father, Joel Rich, could not be reached for comment? and that Joel Rich had ?told Fox News in January
that he did not believe his son would leak the emails.? 8 (Declaration of Joseph M. Terry dated May
7, 2018 (?Terry EX. 1, ECF No. 37-1, at 5.) Nonetheless, Plaintiffs assert, because the article
states that Wheeler was hired by Plaintiffs, a reasonable reader could understand the Zimmerman/Fox
Article as implying that Plaintiffs believed ?what their own investigator found.? (Opp?n at 14?15;
see also Comp]. 1] However, Fox News published a second article stating that, according to
a spokesperson for the Rich family, Wheeler had not been authorized to speak for Plaintiffs. (Compl.
1i 90.) The second article further stated that the family viewed the Zimmermaanox Article?s
statements concerning Seth Rich?s disclosure of the DNC emails to WikiLeaks as ?unsubstantiated.?
(See Terry Decl., EX. 3, ECF No. 37-3, at 2.)

Plaintiffs also allege that Fox News is vicariously liable for the conduct of Zimmerman and
Wheeler because they were ?employees and agents? of Fox News. (Compl. 1[ 142.) However, even
assuming that Zimmerman and Wheeler were acting within the scope of their employment with Fox
News when they engaged in the conduct alleged, their conduct is neither suf?ciently extreme or nor

outrageous to state a claim for IIED. Moreover, as with Zimmerman, Plaintiffs have failed to Show

 

3 Though neither the Zimmerman/Fox Article, nor the second article published by Fox News is attached to
Plaintiffs? complaint, this Court may consider both articles because they are ?incorporated into the complaint
by reference, . . . and documents possessed by or known to the [P]laintiff[s] and upon which [they] relied in
bringing the sui Commc ?m V. Shaar Fund Ltd, 493 F.3d 87, 98 (2d Cir. 2007).

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Case Document 69 Filed 08/02/18 Page 16 of 20

that Wheeler?s conduct meets the ?exceedingly high legal standard? of ?extreme and outrageous?
conduct needed to state an IIED claim. Dz'Ruzza, 685 F. App?x at 36.

Plaintiffs allege that Wheeler failed to disclose to Plaintiffs that he met with Zimmerman and
Butowsky. Plaintiffs also allege that Wheeler falsely represented to them that he would not speak to
the press about his investigation without Plaintiffs? approval, and that he made false statements to the
news media about Seth. (Compl. 43?44, 59, 63, 65, 75, 91, 93?94.) As explained above, false or
defamatory statements, whether made to Plaintiffs or the news media, do not constitute extreme and
outrageous conduct. Cruz, 2012 WL 4513484, at Baraiiu, 2009 WL 959578, at 12. Moreover,
to the extent Plaintiffs assert Wheeler violated the con?dentiality provisions in his agreement with
Plaintiffs, such a claim may implicate a breach of contract by Wheeler, not IIED by Defendants.
Because IIED may only be employed as a ?last resort,? the existence of such an alternative remedy
precludes Plaintiffs from relying on these allegations as the basis for an IIED claim. DiRuzza, 685 F.
App?x at 36. Thus, even assuming Zimmerman and Wheeler were acting as employees or agents of
Fox News, Plaintiffs? allegations fail to state an IIED claim against Fox News.

Plaintiffs? characterization of Defendants? and Wheeler?s actions as a ?campaign? does not
save their IIED claim. (Compl. 1] 4; Opp?n at 36.) Plaintiffs do not allege that Defendants? actions
occurred ?day in? and ?day out,? or that Defendants made any physical threats. Lawson, 331 F. Supp.
2d at 133. Though Plaintiffs allege that Butowsky and Zimmerman pursued them to gain their trust
and that Butowsky ?deliberately and successfully cultivated Joel?s trust,? (Compl. 29, 50),
Plaintiffs? allegations regarding Zimmerman and Butowsky do not amount to ?hounding by. . .
extreme methods.? foriz?o, 2010 WL 4967976, at 

Plaintiffs also assert claims against all Defendants for conspiring to commit, and aiding and

abetting the commission of, an IIED. (Compl. 145?71.) Because ?[c]onspiracy allegations merely

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Case Document 69 Filed 08/02/18 Page 17 of 20

serve to ?connect the actions of separate defendants with an otherwise actionable tort? . . . allegations
of an underlying tort are an essential component of a suf?ciently pleaded claim of civil conspiracy.?
Andres v. N. Y. Univ, No. 17 Civ. 2511 (ALC), 2018 WL 1737540, at (S.D.N.Y. Mar. 12, 2018)
(quoting Alexander Alexander of N. K, Inc. v. Fritzerz, 503 102, 103 (NY. 1986)); see also
Wilson v. Doritos, 746 .3d 530, 537 n.4 (2d Cir. 2014) (?As [plaintiff] has not alleged any actionable
torts, his claim for civil conspiracy . . . also fails?) (citing Anesthesia Assoes. ofMoant Kisco, LLP
v. N. Westchesz?er Hosp. Cat, 873 679, 685 (App. Div. 2d Dep?t 2009). A claim for aiding
and abetting also requires, among other things, ?the existence of a[n underlying tort].? Bigio v. Coca-
Cola Ca, 675 F.3d 163, 172 (2d Cir. 2012) (quoting Lerner v. Fleet Bank, NA, 459 F.3d 273, 292
(2d Cir. 2006)) (alteration in original). Because Plaintiffs have not adequately pled their IIED claim,
their conspiracy and aiding and abetting claims must also be dismissed.

B. Tortious Interference with Contract

To state a claim under New York law for tortious interference with contract, a plaintiff must
allege: ?the existence of a valid contract between the plaintiff and a third party?; (2) the
?defendant's knowledge of the contract?; (3) the ?defendant?s intentional procurement of the third-
party?s breach of the contract without justification?; (4) ?actual breach of the contract?; and (5)
?damages resulting therefrom?? Kirclz v. Liberty Media Corp, 449 F.3d 388, 401 (2d Cir. 2006)
(quoting Lama Holding Co. v. Smith Barney Inc, 668 1370, 1375 (N .Y. 1996)). In addition,
the plaintiff must show that ??but for? the activities of the defendant, there would have been no breach
of the contract.? Int?l Minerals (Si: Res, SA. v. Bomar Res, Inc, 5 F. App?): 5, 8 (2d Cir. 2001)
(quoting Sharma v. Skaarup Ship Mgmi. Corp. 916 F.2d 820, 828 (2d Cir. 1990)). If the ?plaintiff
alleges facts . . . establishing that the breaching party was predisposed toward breaching its
agreement, the claim for tortious interference must be dismissed for failure to plead ?but for?
causation.? Granite Partners, LP. 12. Bear, Stearns (lit (30., 17 F. Supp. 2d 275, 293?94 (S.D.N.Y.

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Case Document 69 Filed 08/02/18 Page 18 of 20

1998); see 0250 N. Shipping Funds I, LLC v. Icon Capital Corp, No. 12 3584 (JCF), 2013 WL
1500333, at *6 (S.D.N.Y. Apr. 12, 2013) (dismissing tortious interference claim where plaintiff
?allege[d] . . . that [the breaching party] ?lacked a good faith intention to carry out its material
obligations in the . . . 

Plaintiffs? claim for tortious of interference with contract fails because the facts alleged in the
complaint establish that Wheeler ?was predisposed toward breaching? his agreement with Plaintiffs.
Granite Partners, 17 F. Supp. 2d at 293?94. Indeed, the complaint itself alleges that Wheeler treated
Butowsky, Zimmerman, and Fox News as his clients, rather than Plaintiffs, as he had promised them.
(Compl. 1i Plaintiffs assert that Defendants were the ?but for? cause of Wheeler?s breach
because Defendants ?orchestrat[ed] the relationship between Wheeler and Joel and Mary.? (Opp?n
at 32.) However, Plaintiffs do not allege that Wheeler entered into the relationship intending to honor
his obligations to them and that Defendants then induced Wheeler to breach the contract. Rather,
Plaintiffs allege that Wheeler was ?recruited? by Defendants to help them in their scheme to ?develop
sham story.? (Compl. 1[ Thus, from the very beginning of his relationship with Plaintiffs,
Wheeler ?lacked a good faith intention to carry out [his] material obligations? in his agreement with
them.9 N. Shipping ands, 2013 WL 1500333, at Accordingly, Plaintiffs? tortious interference

claim must be dismissed.

 

9 Plaintiffs? tortious interference claim fails for the additional reason that they have not suffered damages as a
result of Wheeler?s breach. Plaintiffs? conclusory assertion that they ?suffered signi?cant damage as a result
of th[e] interference with their contract with Rod Wheeler,? (Compl. if 176), is insufficient to plead damages
resulting from Defendants? alleged tortious interference. In re Refer) Inc. Sec. Ling, 826 F. Supp. 2d 478, 520
(S.D.N.Y. 2011). Although Plaintiffs assert that the ?[c]omplaint alleges a wide range of economic damages,?
Plaintiffs characteriize these damages as the ?result of Wheeler?s breach of contract and cooperation with
Defendants to publish the [Zimmermanf]Fox Article.? (Opp?n at 32 (emphasis added).) Thus, Plaintiffs have
not speci?cally identified damages that are attributable to Defendants? interference with Wheeler?s contract,
rather than the reputational and emotional injury caused by the publication of the Zimmermaan ox Article.

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C. Negligent Supervision and/or Retention

claim for negligent supervision or retention arises when an employer places an employee
in a position to cause foreseeable harm, . . . which the injured party most probably would have been
spared had the employer taken reasonable care in supervising or retaining the employee.? Bouchard
v. N. Y. Archdiocese, 719 F. Supp. 2d 255, 261 (S.D.N.Y. 2010) (citation omitted). To state such a
claim under New York law, a plaintiff must show, in addition to the standard elements of negligence,
that: (1) ?the tort-feasor and the defendant were in an employee?employer relationship;? (2) ?the
employer knew or should have known of the employee? 3 propensity for the conduct which caused the
injury prior to the injury?s occurrence,? and (3) ?the tort was committed on the employer?s premises
or with the employer?s chattels.? Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004)
(internal quotation marks and citations omitted).

Plaintiffs allege that Fox News is liable for its negligent supervision and/or retention of
Zimmerman and Wheeler. (Compl. ii 183.) They allege that Zimmerman and Wheeler both have
employer?employee relationships with Fox News, that ?Fox News knew or should have known of the
tortious propensities of Zimmerman and Wheeler prior to their tortious conduct that in?icted
emotional distress on Joel and Mary [Rich,]? and that ?Zimmerman and Wheeler engaged in tortious
conduct against Joel and Mary [Rich] on Fox News?s premises and/or using property of Fox News.?
(Id. 17982.) However, Plaintiffs allege no speci?c facts plausibly showing that ox News knew
or had reason to know of Zimmerman and Wheeler?s alleged ?propensity? to commit an IIED. Nor
do Plaintiffs allege credible facts showing that Zimmerman and Wheeler committed tortious conduct
on, or using, Fox News?s property. Plaintiffs? negligent supervision and/0r retention claim therefore
fails. See Twombly, 550 US. at 555 formulaic recitation of the elements of a cause of action

will not see also Doe v. Alsaud, 12 F. Supp. 3d 674, 680 (S.D.N.Y. 2014) (?Conclusory

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allegations of negligent supervision are insuf?cient to overcome a motion to dismiss?) (citation
omitted).

Plaintiffs? reliance on Hwang v. Grace Road Church, No. 14 Civ. 7187 (KAM) (RML), 2016
WL 1060247 (S.D.N.Y. Mar. 14, 2016), (Opp?n at 35?36), is misplaced. There, the plaintiff alleged
that members of the defendant church forcibly prevented him from taking medication
and then, two weeks later, forcibly restrained him in a manner that caused him to develop gangrene
in his leg. Hwang, 2016 WL 1060247, at The court found that the church was placed on notice
of its members? tortious propensities from when they prevented plaintiff from taking his medication
such that the later conduct could be attributed to the church?s negligent failure to supervise. Id. at
15. In so ?nding, the court noted that the deprivation of the medication ?would likely state a claim
for Id. at *15 n.13. Here, by contrast, Zimmerman?s, Butowsky?s, and Wheeler?s
interactions with Plaintiffs neither form the basis of an IIED claim, nor were they otherwise tortious.

Plaintiffs? claim for negligent supervision and/or retention is dismissed.

IV. CONCLUSION

Defendants? motions to dismiss for failure to state a claim pursuant to Rule l2(b)(6) of the

Federal Rules of Civil Procedure, (ECF Nos. 35, 51), are GRANTED.

Dated: New York, New York
August 2, 2018
SO ORDERED.

ggortqg B. DANIELS
ted States District Judge

 

 

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