Opinion
401845/2013
09-06-2019
Donnell BAINES, Plaintiff, v. DAILY NEWS, L.P.; John Does 1 through 4; Janon Fisher ; Tracy Connor; Shayna Jacobs; Jane Doe a/k/a "Barbara,", Defendants.
Donnell Baines, plaintiff pro se. Matthew A. Leish, Assistant General Counsel, Daily News, L.P., New York City, and Davis Wright Tremaine LLP, New York City (Geoffrey S. Brounell and Laura R. Handman of counsel), for Daily News, L.P. and others, defendants.
Donnell Baines, plaintiff pro se.
Matthew A. Leish, Assistant General Counsel, Daily News, L.P., New York City, and Davis Wright Tremaine LLP, New York City (Geoffrey S. Brounell and Laura R. Handman of counsel), for Daily News, L.P. and others, defendants.
Alan C. Marin, J.
Donnell Baines has brought a defamation suit because of an article entitled Torture of Guilt that appeared in the Daily News on October 25, 2012, which described the response of a spectator in the courtroom when the jury returned guilty verdicts against Mr. Baines on charges including rape, assault, coercion and unlawful imprisonment:
(Defendant’s May 8, 2019 affirmation, exhibit 3.) Baines’ brief on appeal to the First Department stated that he had been convicted of three counts of sex trafficking; one count each of promoting prostitution in the first and second degrees; three counts of assault in the second degree; one count of rape in the first degree; one count of criminal sexual act in the first degree; one count of sexual abuse in the first degree; one count of unlawful imprisonment in the second degree and one count of coercion in the first degree (Baines’ aff on why he is not a limited-purpose figure, dated June 21, 2019, exhibit 1 at 1-2).
"As the jury said guilty 13 times, Barbara put her hands over her face and choked back tears, her hands shaking ... She stayed as the lawyers packed up, watching closely as court officers took Baines out of the courtroom ..."
In the article, Barbara Doe said she had met Baines in the East Village six years earlier when she was down on her luck, was lured back to his apartment on East 77th Street and over a period of 24 hours was beaten, raped and threatened with dismemberment. She said Baines had beaten her with a rubber mallet and slats from his window blinds; the Daily News included a photo of a mallet. Mr. Baines has denied knowing Barbara Doe.
* * *
This Court has denied, without prejudice, motions by plaintiff and defendants to compel and stay discovery (nos. 009 and 010 in its Order of March 4, 2019, 63 Misc. 3d 1201[A], 2019 WL 1234024 ). Further, the Order directed that the parties brief the issue of whether Mr. Baines was a limited-purpose public figure. A claim for defamation so categorized is subject to the same legal standard as a general-purpose public figure, namely, actual malice.
By letter to the Court, dated August 7, 2019, Mr. Baines requested oral argument on the issue, which the Court did not find necessary.
Previously, Justice Lucy Billings and Justice Carmen St. George had ruled that Mr. Baines' case involved a matter of legitimate public concern subject to a standard of gross irresponsibility ( 2015 WL 13699421 ; 59 Misc. 3d 1207[A], 2018 WL 1546555 ). These decisions (and a preceding one from Justice Billings, 51 Misc. 3d 229, 26 N.Y.S.3d 658 ) did not consider whether Baines was a limited-purpose public figure. Baines essentially argues that if a factual pattern is slotted into one category, it is effectively the law of the case and precludes additional characterization. It is unnecessary to reach this issue, inasmuch as this Decision and Order finds that Donnell Baines is not a limited-purpose public figure. "An individual becomes a ‘general-purpose’ public figure if he ‘achieve[s] such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts’ " ( McKee v. Cosby , 874 F.3d 54, 61, 1st Cir., cert denied ––– U.S. ––––, 139 S. Ct. 675, 203 L.Ed.2d 247, citing Gertz v. Robert Welch, Inc. , 418 U.S. 323, 351-352, 94 S.Ct. 2997, 41 L.Ed.2d 789 ).
Nor do we reach Baines' argument that the subject issue had been decided when defendants failed to make a timely response to his notice to admit (see page 27 of Baines submission on why he is not a limited-purpose figure, dated June 21, 2019). In any case, a notice to admit under "CPLR 3123 (a) is to be used only for disposing of uncontroverted questions of fact or those that are easily provable, not for the purpose of compelling admission of fundamental and material issues ..." (Meadowbrook-Richman, Inc v. Cicchiello , 273 A.D.2d 6, 709 N.Y.S.2d 521, 1st Dept ).
Gertz is cited in Huggins v. Moore , 94 N.Y.2d 296, 301-302, 704 N.Y.S.2d 904, 726 N.E.2d 456, which discusses the interplay in defamation cases between federal constitutional and state law.
As for a ‘limited-purpose’ public figure, an individual becomes one when "he ‘voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues,’ the scope of which is determined by the ‘nature and extent of [his] participation in the particular controversy giving rise to the defamation’ ..." [ id. ].
Defendants argue that an individual who is something less than a voluntary participant in a matter of public concern can still be a limited-purpose public figure. They reference "drawn into" in the phrase "voluntarily injects himself or is drawn into a particular public controversy."
The Gertz court goes on to impart something more of an activist cast: "The critical questions for limited-purpose public figure status are whether a matter of ‘public controversy’ existed prior to the alleged defamation, and whether the defamed individual deliberately ‘thrust [herself] into the vortex’ of that controversy or otherwise ‘engage[d] the public's attention in an attempt to influence its outcome’ " ( 874 F.3d at 61, citing 418 U.S. at 351-352, 94 S.Ct. 2997 ).
* * *
Baines' trial and conviction were reported in other media outlets besides the Daily News. Baines found his prey online with his identity shielded: "Well she responded to an advertisement. I put an advertisement online in a bunch of different places. And she was one of the people who responded, and she sent me [an] email. I replied with my telephone number. She called me, we talked for a while, and then we met for an initial interview at the apartment. Q. What did the advertisement say it was for? A. For models." (Exhibit 5 to defendants' May 8, 2019 Affirmation. Pages 89-90 of Baines June 26, 2018 testimony before a jury in Baines v. White et al. , 10 CV 9545 [SD NY] ).
As the sole plaintiff, Baines brought several section 1983 lawsuits in the Southern District against the City of New York and its police officers, arising out of the entry into his apartment and the level of force used to effect his arrest in December of 2009. These were captioned Baines v. City of New York, et al : 2017 WL 3425746, app dismissed 2018 WL 1444498, 2d Cir. ; 2016 WL 3042787 ; 2015 WL 3555758 ; and 2014 WL 1087973.
No evidence has been advanced that plaintiff ever attempted to have an impact on any issue. Other than using websites to find vulnerable women, Baines sought no attention, and would clearly have preferred it if noone else ever learned of his existence. On the use of online sites to ensnare young women, defendants submit: i) articles and transcripts from the New York Times, CNN and NPR, none of which mention Baines; and ii) testimony before a U.S. Senate hearing by the chief assistant district attorney for New York County, which contained brief descriptions of five successful sex trafficking prosecutions by her office, including People v. Baines (exhibits 10 and 11 to defendants' May 8, 2019 Affirmation)
* * *
The cases defendants rely upon are distinguishable from the facts that obtain here. Ms. McKee "came forward after more than twenty other women had leveled highly publicized sexual assault accusations against Cosby ... By purposefully disclosing to the public her own rape accusation against Cosby via an interview with a reporter, McKee ‘thrust’ herself to the ‘forefront’ of this controversy, seeking to ‘influence its outcome.’ 874 F.3d at 62.
Elmer Gertz, a lawyer representing a family suing a Chicago police officer for killing their son, had brought suit against a magazine publisher for calling him a "Communist-fronter" and a "Leninist" who had an agenda to discredit local police ( 418 U.S. at 326, 94 S.Ct. 2997 ). The Supreme Court found that while long active in professional and community affairs, Gertz was not a public figure. Nor was he a limited-purpose public figure as for the particular controversy that gave rise to the claim of defamation: "[H]is participation related solely to his representation of a private client. He took no part in the criminal prosecution of [the officer]. Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so" ( 418 U.S. at 352, 94 S.Ct. 2997 ).
In Daniel Goldreyer, Ltd v. Dow Jones & Co. , 259 A.D.2d 353, 687 N.Y.S.2d 64, the First Department described plaintiff, an art-restorer, as "being cast as an involuntary limited purpose public figure [who was] controversial and well-known in the profession, but not outside of it." The Court dismissed the suit, not finding actual malice in a Wall Street Journal article that implied Goldreyer used questionable techniques on a painting belonging to a Dutch museum.
Defendant also relies on Alcor Life Extension Foundation v. Johnson , 43 Misc. 3d 1225(A), 2014 WL 2050661, Supreme Court, N.Y. Co., affd 136 A.D.3d 464, 24 N.Y.S.3d 629, 1st Dept. Alcor was a cryogenics firm involved in preserving bodies for revival until the science catches up. Plaintiff brought a defamation action for a book describing defendant Dr. Larry Johnson's experiences when he worked for Alcor. Alcor conceded it was a limited-purpose public figure, having given interviews to national media outlets as part of its efforts to influence public opinion and oppose regulation.
Winklevoss v. Steinberg , 170 A.D.3d 618, 619, 96 N.Y.S.3d 561, 1st Dept, is a fairly classic example of what it takes to be a limited-purpose public figure: "Through their voluntary participation in numerous interviews, in widely-covered conferences and meetings with entrepreneurs, and in their own radio broadcasts, they have attracted public attention to themselves as investors in start-ups, have voluntarily injected themselves into the world of investing, and have sought to establish their reputation as authorities in the field." The Fourth Circuit in Wells v. Liddy , 186 F.3d 505, 538, states that Gertz tells us that involuntary public figures "must be exceedingly rare" ( 418 U.S. at 345, 94 S.Ct. 2997 ). On that score, a case Goldreyer references from the U.S. Court of Appeals for the D.C. Circuit, is a potentially supportive one for defendants' position: Dameron v. Washington Magazine, Inc. , 779 F.2d 736 (D.C. Cir.), cert denied 476 U.S. 1141, 106 S.Ct. 2247, 90 L.Ed.2d 693. A magazine article partly blamed air traffic control for a fatal crash. Merle Dameron, as the sole controller on duty at that time, felt implicated.
The First Department went on to state that the Winklevoss brothers were also general purpose public figures because of their portrayal in a film, participation in the Olympics and routine coverage in popular media. Under either categorization, actual malice is the standard, which plaintiffs could not meet.
In Colantonio v. Mercy Med. Ctr. , 135 A.D.3d 686, 692, 24 N.Y.S.3d 653, the Second Department found plaintiff to be a limited-purpose public figure on what can be described as a "less public" set of facts than in Winklevoss - - and still qualitatively more public than Donnell Baines. Plaintiff doctor, after being terminated from the defendant hospital, made numerous public complaints about the quality of its medical care.
The federal appeals court described Dameron as "an involuntary public figure" ( 779 F.2d at 743 ). The National Transportation Safety Board conducted an extensive, public investigation into the crash. Plaintiff appeared at these hearings and testified for many hours about his role in the crash. The hearings, and Dameron's role in them, were widely publicized.
Baines references Wolston v. Reader's Digest Ass'n, Inc. , 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450, a defamation suit over the publication of a book on Soviet espionage in the United States. Plaintiff and others were named as spies. Many were convicted or pled to espionage, including plaintiff's aunt and uncle, but not plaintiff. Wolston initially failed to respond to a grand jury subpoena and pled guilty to contempt, which drew media attention.
The Supreme Court reversed the D.C. Circuit's finding that Wolston was a limited-purpose public figure. Pointedly, the Court noted that "this is not a case where a defendant invites a citation for contempt in order to use the contempt citation as a fulcrum to create public discussion about the methods being used in connection with an investigation or prosecution."
And then a basic concept highlighted in Baines' brief: "[We] reject the further contention ... that any person who engages in criminal conduct automatically becomes a public figure ..." ( 443 U.S. at 168, 99 S.Ct. 2701 ).
To answer the inquiry posed in the Order of March 4: plaintiff Donnell Baines was not a limited-purpose public figure.
* * *
As noted above, in the March 4 Order, a motion to compel discovery and one to stay it were denied without prejudice. Moreover, on June 19 of this year, plaintiff made an application seeking the sealing or redaction of certain documents and for the imposition of sanctions to be imposed on defendants' lawyers.
As for the sanctions under 22 NYCRR § 130—1.1, the Second Department has stated that "The intent of that regulatory scheme is to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics ..." ( Matter of Kernisan v. Taylor , 171 A.D.2d 869, 567 N.Y.S.2d 794 ). This case has been a little messy, but there have been complicating circumstances, and the subject matter is a subtle one. In any event, things have not gotten to the stage of what transpired in, for example, Gassab v. R.T.R. , 22 Misc. 3d 1140(A), 2009 WL 806805, Supreme Court, New York Co., affd 69 A.D.3d 511, 893 N.Y.S.2d 540, 1st Dept., or Tsabbar v. Auld , 26 A.D.3d 233, 809 N.Y.S.2d 66, 1st Dept. No hearing thereon is required. The application is denied.
To avoid identifying his victims, Baines seeks an order of confidentiality or redaction with respect to exhibits 1, 2 and A (which are attached to his Affidavit denying he was a limited-purpose public figure). Section 50-b (1) of the Civil Rights Law provides that the identity of the victim of a sex offense shall be confidential.
Exhibit A contains transcripts from his criminal proceedings and trial (People v. Baines , brought under indictment 5299/2010). Exhibit 1 is the brief filed for his appeal before the First Department. The Statement of Facts runs to 40 pages, and the names of the victims are referenced throughout. For example on page 35, four names are mentioned in one sentence of the prosecution's opening to the jury. The brief does use only the first name of two women (page 27) and the nickname of another (page 29). Exhibit 2 is Baines' supplemental brief to the appellate court, with the same confidentiality issue.
* * *
Discovery shall proceed, bearing in mind that the proof will be directed toward the standard of gross irresponsibility, one which "demands no more than that [defendant] utilize methods of verification that are reasonably calculated to produce an accurate copy" ( Karaduman v. Newsday, Inc. et al., 51 N.Y.2d 531, 549, 435 N.Y.S.2d 556, 416 N.E.2d 557 ).
With that said, these are the contours for the discovery that will now ensue:
Discovery by plaintiff may only proceed via written interrogatories of one or more defendants, which focus on the basis for submitting and publishing the Torture of Guilt article. If an interrogatory response references a specific email or document directly relating to the basis for submitting and publishing the article, it shall be produced. What is known as metadata is not to be requested or produced.
Any other names that are known or that may come up shall only become the subject of his or her interrogatory or document production with the approval of the Court.
No discovery shall be directly sought from the Office of District Attorney of New York County. It cannot reasonably be viewed as a subject for a trier of fact why prosecution would not pursue a case against a 37-year old man who had just been convicted and sentenced to 68 years in prison.
The Court will not consider the deposition testimony of Kira Treyvus, Esq., who was Mr. Baines' criminal attorney.
The names of Baines' victims shall be redacted, but if it becomes necessary, the Court has the authority under subdivision 2 of section 50-b to permit disclosure only for use in this lawsuit.
NOW therefore, in view of the foregoing:
IT IS ORDERED that plaintiff Donnell Baines was not a limited-purpose public figure; and
IT IS FURTHER ORDERED that discovery shall be conducted in accordance with the foregoing, and that motion 009 shall be granted to the extent that it is consistent therewith, and otherwise denied.