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Malhotra v. Aggarwal

United States District Court, S.D. Florida

July 30, 2019

SUSHIL MALHOTRA, Plaintiff/Counter-Defendant,
v.
SANJAY AGGARWAL, Defendant/Counter-Plaintiff.

          ORDER

          DARRIN P. GAYLES UNITED STATES DISTRICT JUDGE.

         THIS CAUSE comes before the Court on Plaintiff's Motion to Dismiss Defendant's Counterclaim (“Motion”). [ECF No. 49]. The Court has carefully reviewed the submissions of the parties and the applicable law. For the reasons that follow, the Motion is granted.

         I. BACKGROUND

         According to the Second Amended Complaint, on July 10, 2013, Plaintiff Sushil Malhotra (“Plaintiff”) wired $500, 000 to Defendant Sanjay Aggarwal (“Defendant”), which Defendant accepted that day. [ECF No. 26 at ¶ 13]. In September 2016, during an accounting review and audit, Plaintiff discovered that the wire transfer was a mistake and notified Defendant of the mistake. Id. at ¶¶ 18-20. Plaintiff requested that Defendant return the money; however, Defendant failed to do so. Id. at ¶ 20. On November 2, 2017, Plaintiff filed suit in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. [ECF No. 1-1]. Plaintiff brought claims for civil theft, unjust enrichment, and fraud against Defendant. Id. On December 6, 2017, the case was removed to this Court based on diversity jurisdiction. [ECF No. 1]. Plaintiff filed his Second Amended Complaint on July 3, 2018. [ECF No. 26]. This case previously came before the Court on two separate Motions to Dismiss the Complaint and the Second Amended Complaint. [ECF Nos. 13 & 27]. The Court granted in part those motions leaving only Plaintiff's claim for fraud remaining. [ECF Nos. 25 & 36].

         On April 29, 2019, Defendant filed his Answer, Affirmative Defenses, and Counterclaim for defamation against Plaintiff. [ECF No. 47]. According to the Counterclaim, around 2016 and “several times thereafter” Plaintiff told multiple people that Defendant was “a liar and a thief and that he owed him a debt of money and he would not pay.” Id. at ¶ 5. Defendant maintains that those oral statements were false, intentional, not privileged, and defamatory. Id. at ¶¶ 6-9. Defendant claims that “falsely calling someone a liar[, ] a thief[, ] and a debtor is defamation per se.” Id. at ¶ 9.

         II. Legal Standard

         In order for a complaint to withstand a motion to dismiss, it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is considered facially plausible when the court is able to draw a reasonable inference that the defendant is liable based on the factual content pleaded by the plaintiff. Id. The “plausibility standard” requires there be “more than sheer possibility that a defendant acted unlawfully.” Id. A determination of a claim's plausibility “is a context-specific task that requires the reviewing court to draw on its judicial experiences and common sense.” Id. at 679. It is not enough for a complaint to recite the statutory elements of a cause of action. Id. at 678. Allegations within a complaint must be more than conclusory and must have a factual basis. Id. at 679.

         In reviewing a motion to dismiss, courts accept the allegations presented in the complaint as true and view those facts “in the light most favorable to the plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). The issue before the Court is “‘not whether [Plaintiff] will ultimately prevail' . . . but whether his complaint [is] sufficient to cross the federal court's threshold.” Skinner v. Switzer, 562 U.S. 521, 529-30 (2011) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

         While a federal court sitting in diversity applies a state's substantive law, it need not adhere to a state's pleading standard. Instead, a federal court sitting in diversity follows the standards set forth in Federal Rule of Civil Procedure 8(a). Caster v. Hennessey, 781 F.2d 1569, 1570 (11th Cir. 1986). In contrast to Florida's heightened fact-pleading standard, a well-pleaded complaint under Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Id. (citing Fed.R.Civ.P. 8(a)(2)); see also Grief v. Jupiter Med. Ctr., Inc., N o. 08-80070-CIV-MARRA, 2008 WL 2705436, at *5 (S.D. Fla. July 9, 2008).

         III. Discussion

         A. Defamation

         Plaintiff moves to dismiss the Counterclaim arguing that Defendant has failed to state a claim for defamation. To state a counterclaim for defamation, Defendant “must allege that (1) [Plaintiff] published a false statement; (2) about [Defendant]; (3) to a third party; (4) proximately damaging [Defendant].” SZS Sols., Inc. v. Brother Int'l Corp., No.17-CV-61942, 2018 WL 3126220, at *2 (S.D. Fla. June 26, 2018) (citing Forston v. Colangelo, 434 F.Supp.2d 1369, 1378 (S.D. Fla. 2006)). Plaintiff argues that Defendant failed to identify the specific statements claime d to be defamatory, identify who the statements were made to, and attach copies of the publication in which the statements are contained.

         First, Plaintiff correctly notes that Defendant failed to identify the specific statements claimed to be defamatory. In a defamation case, “a plaintiff ‘must allege certain facts such as the identity of the speaker, a description of the statement, and provide a time frame within which the publication occurred.'” Five for Entm't S.A. v. Rodriguez, 877 F.Supp.2d 1321, 1328 (S.D. Fla. 2012) (quoting Morrison v. Morgan Stanley Props., No. 06-CV-80751, 2008 WL 1771871, at *10 (S.D. Fla. Apr. 15, 2008)). For the description of “oral statements, a plaintiff must ‘set out the substance of the spoken words with sufficient particularity to enable [the] court to determine whether the publication was defamatory.'” B & D Nutritional Ingredients, Inc. v. Unique Bio Ingredients, LLC, No. 16-CV-62364, 2017 WL 8751751, at *4 (S.D. Fla. Jan. 25, 2017) (quoting Spitalny v. Insurers Unlimited, Inc., No. 2:05-CV-12FTM-29SPC, 2005 WL 1528629, at *3 (M.D. Fla. June 24, 2005)).

         Defendant identified Plaintiff as the publisher of the oral statements but failed to provide an adequate description of the statements and time frame. The Counterclaim merely states that, “[c]ommencing on or about 2016 and several times thereafter [Plaintiff] told multiple persons that [Defendant] was a liar and a thief and that he owed [Plaintiff] a debt of money and he would not pay.” [ECF No. 47 at ¶ 5]. Such conclusory allegations are insufficient to state a claim for relief. See Five for Entm't S.A., 877 F.Supp.2d at 1328 (noting that a defamation claim based on a press release and statements allegedly uttered by defendant “in the days or ...


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