Libel Suit by “King of Vape” Against N.Y. Post, Over Allegations of Misconduct and Anti-Israel Actions, Thrown Out

From Judge Sheri Polster Chappell (M.D. Fla.) yesterday in Shriteh v. NYP Holdings, Inc.:

This is a defamation case. Plaintiff operates seventeen vape retail stores in southwest Florida under the trademark name “the King of Vape.” Christenson, writing for the New York Post, authored and published an article about Plaintiff titled, “Florida’s Israel-hating ‘King of Vape’ Faces Bipartisan Crackdown on Sale of Illicit, Kid-Friendly Chinese E-cigs.” The article allegedly included several false statements about Plaintiff resulting in damages….

When ruling on a prior motion to dismiss, the Court determined Plaintiff is a public figure subject to the actual malice standard. Why? Because Plaintiff’s own allegations indicated he was a public figure.

Specifically, in the Second Amended Complaint (and each preceding complaint), Plaintiff alleged that prior to immigrating 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 alleged 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 Defendants issued and made the defamatory statements with actual malice.

The Court held that these allegations indicate he is a public figure and, thus, he must allege Defendants acted with actual malice. And because Plaintiff failed to plausibly do so, the Court dismissed the Second-Amended Complaint with leave to amend to adequately allege actual malice.

Rather than comply with the Court’s directive and sufficiently allege actual malice, Plaintiff tried to get clever. In the Third-Amended Complaint, Plaintiff removed all factual allegations the Court relied upon when determining Plaintiff is a public figure. And he now argues he does not need to allege actual malice because nothing in the Third Amended Complaint suggests he is a public figure. But such creative pleading will not fly.

When a court permits a plaintiff leave to amend after dismissing a complaint, a plaintiff does not have carte blanche to amend as he sees fit. Rather, the amendment is limited to the scope permitted and instructed by the court—i.e., to correct identified pleading deficiencies. And although a court generally will grant leave to amend under Federal Rule of Civil Procedure 15(a), the court need not do so if the plaintiff is acting in bad faith.

Not only was Plaintiff’s amendment omitting allegations that implicate him as a public figure incompliant with the permitted leave to add factual allegations of actual malice, but the amendment was clearly a calculated effort to end-run the Court’s order concluding Plaintiff is a public figure. Permitting such bad-faith tactics would allow Plaintiff “to manipulate the course of litigation.” Put simply, Plaintiff’s allegations in the second amended complaint let the cat out of the bag that he is a public figure. He cannot put the cat back into the bag in the hope of keeping his case alive.

On that score, Plaintiff still has not plausibly alleged facts suggesting Defendants acted with actual malice. He does not even try. And the Court construes his attempt to dodge status as a public figure and avoid pleading actual malice as a concession that he cannot do so. Because the Court already provided Plaintiff an opportunity to cure this deficiency, the Court dismisses Plaintiff’s complaint with prejudice.

One more point. In his response, Plaintiff also moves under Rule 54(b) for the Court to reconsider its prior holding that he is a public figure. But he cannot seek affirmative relief through a response 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 defendants.