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Case 1:08-cv-04581-LTS -THK Document 97 Filed 01/11/11 = Page 1 of 7

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UNITED STATES DISTRICT COURT (Jue 1#
SOUTHERN DISTRICT OF NEW YORK
------x
DATE PILED- IJi,/ /lJ
YAHOO, INC., I I
08 Civ. 4581 (LTS) (THK)

Plaintiff,

-against­
(PRO SE)

DAIANN NAKCHAN, et al.,

Defendants.

----- ------ ----- --x

TO: HON. LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE.
FROM: THEODORE H. KATZ, UNITED STATES MAGISTRATE JUDGE.

Plaintiff Yahoo, Inc. brings this action claiming, inter

trademark infringement, counterfeiting, false signation of

gin, and dilution, arising out of a conspiracy involving

defendants around the world who deceived internet users into

believing that they had won a lottery or ze of by Yahoo.

Presently before the Court is Plaintiff's motion to dismiss the

counterclaim of Defendant Emmanuel C. On ("Onyema"). For the

reasons that follow the Court recommends that Plaintiff's motion be

granted.

DISCUSSION

In an Order, dated October 13, 2010, the District Court

granted Plaintiff's motion for judgment on the pleadings and

di ssed Onyema's counterclaims hout prejudice to ading.

The Order gave Onyema until November 15, 2010 to replead his
 Case 1:08-cv-04581-LTS -THK Document 97 Filed 01/11/11 Page 2 of 7

counterclaims, and specifically stated that "[i]f no t y answer

wi th countercl is filed and served by November 15, 2010,

Onyema's counte aims will be smissed with judice without

further notice." Onyema did not file his Amended Answer and

Counterclaim until November 16, 2010. Docket Entry # 80.)

PIa iff now seeks the dismiss of the counterclaim arguing (1)

the counterclaim is untimely, and (2) it fails to state a claim for

reI f. (See Memorandum of Law in Support of PIa iff's Motion to

Dismiss the Counterclaim of Defendant Emmanuel C. Onyema and Stay

of Discovery ("Pl.' s Mem.).) Onyema has not responded to the

motion.

Although Onyema's amended answer and counterclaim is, i

untimely, in view of fact that (1) it was late by only one day,

(2) Onyema is proceeding pro se, (3) Plaintiff has not

prejudi by the delay, the Court will address the counterclaim on

its me s.

I. Motion to Dismiss Standard

In iding a mot to dismiss under Rule 12 (b) (6), a court

"must as true all of the 1 allegations set out in

[the] plaintiff's complaint, draw inferences from t e allegations

in the 1 most favorable to [the] p intiff, construe

complaint 1 lly." Roth v. Jennings, 489 F.3d 499, 510 (2d Cir.

2007) (quot Gregory v. Daly, 243 F. 687, 691 (2d Cir. 2001));

 Case 1:08-cv-04581-LTS -THK Document 97 Filed 01/11/11 Page 3 of 7

~~~:::£.. .!.!.~~=-.......:-=--.=:..::!...!...-.:~....::::.;:,:~~, 287 F. 3d 138, 145 (2d Cir. 2002).

"This is especially true when deal ing with .121:Q. se complaints

al ing c I rights lations." Weixel, 287 F.3d at 146.

Notwithstanding lowances that courts make r pro se litigants,

however, they are not exempt from the usual pleading requirements.

See Graham v. Knebel, No. 08 Civ. 4363 (LAP), 2009 WL 4334382, at

*2 (S.D.N.Y. Dec. 1, 2009).

Supreme Court's decision in Bell Atlantic Corp. v.

Twombly, 550 U.S. 544,127 S. Ct. 1955 (2007), adds a "plaus lity

standard," in evaluat the sufficiency of a complaint, which is

guided by "[t]wo working principles." Ashcroft v. Iqbal, U.S.

, 129 S. Ct. 1937, 1949 (2009); see also Harris v. Mills, 572

F.3d 66, 72 (2d Cir. 2009); Bilello v. J.P. Morgan Chase Ret. Plan,

No. 07 Civ. 7379 (DLC), 2009 WL 2461005, at *5-6 (S.D.N.Y. Aug. 12,

2009). "rst, tenet that a court must accept as true I of

the allegations contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of elements of a cause of

action, supported by mere conclusory statements, do not suffice."

Iqbal, 129 S. Ct. at 1949; see also Harris, 372 F.3d at 72.

"Second, only a complaint that states a plausib claim for relief

survives a motion to dismiss," and "[d]etermining whether a

compla states a plausible claim for relief will be a

context-specific task that requires the reviewing court to draw on

 Case 1:08-cv-04581-LTS -THK Document 97 Filed 01/11/11 Page 4 of 7

its judicial experience and common sense." Iqbal, 129 S. Ct. at

1950.

For a pleading to su a motion to dismiss , it must

"contain sufficient factual matter, accepted as true, to 'state a

claim to relief that is s Ie on its face.'" at 1949

(quoting Twombly, 550 U.S. at 570, 127 S. Ct. at 1973-74). "Fac 1

plausibility" exists when a" a iff pleads factual content t

allows the court to draw reasonable inference t

is liable for the misconduct alleged." (citing

550 U.S. at 556, 127 S. Ct. at 1965); see also

No. 06 Civ. 4156 (KMW) (JCF), 2009 WL 3401256, at *3 (S.D.N.Y.

Oct. 22, 2009).

II. Failure to State a Claim for Relief

In s counterclaim, Onyema asserts that the Complaint in this

action lsely accuses him of engaging spam and fraud

without any cause. Onyema claims that a iff's action against

him is 1 and has seriously i ured his reputation in the

community.

Under New York law, a claim for de ion, which can be

either slander (if spoken) or libel (if wr en), must allege

(1) a false statement about the ]; (2)

published to a third party without authorization or
privilege; (3) through fault amount to at least
negligence on [the] part of the publisher; (4) that
either const defamation per se or caused 1

4
 Case 1:08-cv-04581-LTS -THK Document 97 Filed 01/11/11 Page 5 of 7

damages. A statement tend[sJ to injure anot r in

his or her trade, bus ss or profession is ory
per se. A pleading asserting a cause of action for
defamation is only s ficient if it adequately ntif s
the purported communication, and an indication of who
made the communication, when was made, and to whom
was communicated.

669 F. Supp. 2d 405, 411

(S.D.N.Y. 2009) (footnotes and 1 quotation marks ) ;

~==== Gargiulo v. Forster & Garbus Esgs., 651 F. Supp. 2d 188, 192

(S.D.N.Y. 2009);

Rather than identifying particular statement t is

al to be libelous, and by whom was made, Onyema appears to

premise his counterclaim on the nt as a whole as it pert

to him, a that its assert t he, among others, e

in t k infringement and false signation of origin on

internet is 1 lous. The counte does not state a claim for

relief cause "[a] statement made in the course of legal

proceedings is absolutely privileged if it is at all pertinent to

the liti ion./I Lacher v. Engel, 33 A.D.3d 10, 13, 817 N.Y.S.2d

37, 40 (1st ' t 2006) (citing Youmans v. Smith, 153 N.Y. 214,

219, 47 N.E. 265, 266 (1897); accord 651 F. Supp. 2d at

192 n.4; 532 F. Supp. 2d 586, 593-94 (S.D.N.Y.

 Case 1:08-cv-04581-LTS -THK Document 97 Filed 01/11/11 Page 6 of 7

2008) . The allegations in the Compla describing the conduct

which Onyema allegedly engaged are obviously pertinent to the

litigation. Accordingly, they are olutely privileged.

CONCLUSION

For the foregoing reasons, the Court recommends that

Plaintiff's motion to dismiss Defendant Onyema's counterclaim with

prejudice be grant Pursuant to 28 U.S.C. § 636(b) (1) (C) and

Rule 72 of the Federal Rules of C 1 Procedure, the parties shall

have fourteen (14) days from se ce of this Report to Ie wr en

ections. See also Fed. R. Civ. P. 6(a) and (d). Such objections

shall be filed with the Clerk of the Court, with extra copies

del red to the chambers of the Honorable Laura T. Swain, Un ed

States strict Judge, and to the chambers of the undersigned, Room

1660. Any requests for an extension of t for filing objections

must directed to Judge Swain. Failure to file objections will

result in a waiver of those objections for purposes of appeal.

Thomas v. Arn, 474 U.S. 140, 155, 106 S. Ct. 466, 475 (1985); Frank

v. Johnson, 968 F.2d 298, 300 (2d C 1992);

The Court need not resolve which state's law governs

Onyema's counterclaim, as the law in Texas, where Onyema resides,
affords the same absolute privilege to statements made the
course of legal proceedings. See James v. Brown, 637 S.W.2d 914,
916 (1982) ("Communications in the due course of a judicial
proceeding will not serve as the basis of a civil action for
libel or slander, regardless of the negligence or malice with
which they are made.").

6
Case 1:08-cv-04581-LTS -THK Document 97 Filed 01/11/11 Page 7 of 7

8 F.2d 15, 16 (2d Cir. 1989).

Respectfully Submitted,

THEODORE H. KATZ
UNITED STATES MAGISTRATE JUDGE

January 11, 2011

New York, New York