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Message: <blockquote data-quote="Snarf Zagyg" data-source="post: 9349217" data-attributes="member: 7023840">I've done a review of the Court's opinion.The issues, in no particular order-1. The dismissal of (the wife) was proper, and that's going to be hard to appeal, especially because it was without prejudice and it was based on a lack of process. 2. The main issue that normally would succeed is that Courts normally will allow amendment liberally, but the Court explained in detail why the dismissal was with prejudice. First, LaNasa (I will refer to him as inclusive of Plaintiff DHSM, and with the understanding it is done by counsel) never responded to the argument that dismissal should be with prejudice, or requested leave to amend. Which is sufficient to dismiss with prejudice. Moreover the Court explains why, even if he had (which he did not) there is no reason to believe that a fourth amendment would state a claim (aka, futility). 3. Prima Facie. Just ... no. This isn't going anywhere on appeal. As every first-year associate is told, "It's never RICO, and it's never a prima facie tort. But it's more likely to be RICO than a prima facie tort."4. IIED. Big nope on that as well. Under New York law (federal courts apply the substantive law of the state) this is always going to be loser; see Chanko (explaining that the standard for IIED was unmet in every case that the court had considered). In addition, defamatory statement will almost never support an independent IIED claim.5. IMO, that leaves defamation. This is a slightly closer call given the motion to dismiss standards. While the Court does a thorough job going through the issues related to opinion and name-calling, and the pleading standards, there is at least some argument regarding the Court's analysis on the failure to plead an element issue (pp. 23-25). To try and simplify this for everyone-1. The Court thoroughly trashed most of the allegations as being either (1) opinion, or (2) mere name-calling. My favorite example is as follows (I am putting this in spoiler because although it is from a court document, and the relevant language has appropriate asterisks, I am giving you a heads-up that it contains partially edited, but identifiable, vulgar language)-[SPOILER= Court opinion p. 22]{Although LaNasa alleged Defendant made statements such as} LaNasa was an “ignorant c**t” and that {Defendant} “just told {LaNasa} that she would grow a c**k so {LaNasa} could eat that c**k,” are unquestionably vulgar, they lack objective truth value and thus cannot be defamation.[/SPOILER]That's called ... understatement, if you know what I mean. That said, if there was any possible daylight in the appeal, it's that the Court acknowledges that there is at least one statement that might be defamatory, but notes that LaNasa failed to plead the required falsity as a factual matter, instead just asserting it as boilerplate.  To illustrate the difference, imagine someone is bringing a defamation claim against a newspaper for a false allegation that they were being investigated by the law enforcement for unicorn murderin'. You would plead something like the following:1. The Article makes the following defamatory statement about Bugs Bunny:The ToonTown Unicorn Murdering Task Force showed up at ACME headquarters and went to CEO, Wile E. Coyote's office, not to investigate Mr. Coyote, but to gather information on Bugs Bunny in order to charge him for multiple unicorn murders.2.    Mr. Coyote did meet with the ToonTown Unicorn Murdering Task Force, but the discussion between Mr. Coyote and the Task Force agents was only the possibility of using ACME devices to catch unicorn murderers.3.   Mr. Coyote has stated that during the conversation about ACME devices, the only name that came up was Mr. Beep-Beep Roadrunner.Now, imagine you have (1), above, and then the following instead-2. This is a knowingly, malicious, and intentionally false statement.In other words, you can't just assert it, you have to provide some minimal factual support.  That said, if there is even the smallest bit of support anywhere that can be found, that would be the way to appeal. But given everything I have seen from LaNasa and counsel, I find it hard to believe that this will be anything other than another painful experience with the legal system.</blockquote>

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