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Punski v. Karbal

January 28, 2009


The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge


Before the Court are Defendant's motion to dismiss [28] Plaintiff's Second Amended Complaint ("SAC"), Plaintiff's response brief in opposition [31], and Defendant's reply brief [34]. For the reasons stated below, Defendant's motion to dismiss is granted in part and denied in part.

I. Background

Plaintiff initially filed this lawsuit in the United States District Court for the Eastern District of New York invoking the diversity jurisdiction of the federal courts, 28 U.S.C. § 1332. The lawsuit subsequently was transferred to this district. Judge Guzman, to whom this case initially was assigned, granted Plaintiff's application to proceed in forma pauperis. After Defendant moved to dismiss Plaintiff's first amended complaint, Plaintiff filed a motion for appointment of counsel. This Court granted Plaintiff's motion, and appointed counsel filed a four-count, second amended complaint on Plaintiff's behalf. In that complaint, Plaintiff asserts claims for (i) defamation, (ii) breach of fiduciary duty, (iii) misrepresentation, and (iv) intentional interference with custodial relations. Defendant now has moved to dismiss Plaintiff's second amended complaint in its entirety.

At the motion to dismiss stage, the facts are taken from the well pleaded allegations of Plaintiff's operative second amended complaint. Around November 2005, Plaintiff contacted Defendant by telephone seeking her professional services as a licensed clinical professional counselor. SAC ¶ 5. Plaintiff alleges that Defendant was not licensed in the State of New York to practice as a counselor at that time, and remains unlicensed. Id. ¶¶ 6-7. Plaintiff further alleges that Defendant was aware that Plaintiff believed that she was licensed in New York as a clinical professional counselor. Id. ¶ 8.

Plaintiff also alleges that Defendant represented to Plaintiff that she worked often with clients in New York and met with clients personally in New York. SAC ¶ 9. Plaintiff agreed to retain Defendant as a counselor in November 2005. Id. ¶ 10. According to Plaintiff, Defendant suggested that the therapy sessions be conducted by telephone, and in fact Plaintiff and Defendant engaged in two therapy sessions by telephone, each lasting approximately thirty minutes. Id. ¶¶ 11-12. After those two sessions, Plaintiff chose to stop counseling with Defendant, but paid in full ($150 total) for the two sessions. Id. ¶¶ 13-14.

Plaintiff alleges that during the two therapy sessions, he did not discuss any details of his prior marriage to Miriam Punski.*fn1 SAC ¶ 15. Plaintiff further alleges that he has never granted Defendant permission to discuss any aspect of his therapy sessions with any other person, including, but not limited to, Miriam Punski or Wendy Sonneborn. Id. ¶ 16. In addition, Plaintiff alleges that he had never discussed, disclosed, or revealed to anyone that he had therapy sessions with Defendant. Id. ¶ 17. On or about March 29, 2007, Miriam Punski commenced an action for child custody and an order of protection in New York City Family Court in Kings County, New York. Id. ¶ 18. On June 28, 2007, Defendant delivered a letter to Ms. Punski's attorney, Ms. Sonneborn. Id. ¶ 22. On or about July 27, 2007, Ms. Punski, through her attorney, Ms. Sonneborn, submitted the June 28 letter to the Family Court. Id. ¶ 19. Plaintiff alleges that the letter (which is attached as Exhibit A to Plaintiff's second amended complaint) contained statements falsely represented as accurate summaries of statements made by Plaintiff during therapy sessions with Defendant. Id. ¶¶ 19, 22, 23.

Among other things, the letter states that it is being written "regarding your client, Miri Polsky" and that it was written with Ms. Polsky's permission. SAC, Ex. A. The letter further states that Defendant had been "counseling with Miri for the past year and a half." Id. It also reports that when Defendant's therapy with Ms. Polsky began, Defendant also "spoke several times with her husband, Shimon, as well." Id. It next remarks parenthetically that Defendant "assume[s] that my evaluation will not be admitted by the court," but suggests that "perhaps you [Ms. Sonneborn] might benefit from knowing some facts about this case." Id. The letter then states that Plaintiff admitted to sexual abuse, physical abuse, and extreme bouts of anger. Id. Defendant further stated that she "felt that Shimon had very serious issues that I chose not to deal with on the phone, and then referred him to a male therapist in Boro Park." Id. The letter closes by offering to speak with Ms. Sonneborn. Id.

Plaintiff also alleges, upon information and belief, that at some time between November 2005 and June 2008, Defendant disclosed to Ms. Punski that Plaintiff "had engaged in therapy sessions with Defendant." SAC ¶ 21; see also id. ¶ 32 (alleging that Defendant "disclos[ed] information regarding Plaintiff's attendance at therapy sessions with Defendant" to Ms. Punski and Ms. Sonneborn). He also alleges that Defendant "acted in concert" with Ms. Punski to provide false information to Ms. Sonneborn that was intended "to be used to craft an argument to interfere with Plaintiff's custodial rights in his minor child." Id. ¶¶ 46-47.

In his defamation count, Plaintiff alleges that he was damaged "in that the New York City Family Court ordered a period of only supervised visitation between Plaintiff and his child and in circulation of Defendant's allegations in Plaintiff's community, resulting in a loss of reputation and pain and suffering." SAC ¶ 26. In his breach of fiduciary duty count, Plaintiff alleges that he was damaged "in that the fact of his attendance at therapy sessions was improperly used to interfere with his visitation and custody rights with his minor child for a period of time" and "that he paid Defendant for her services in exchange for consideration which included, in part, confidentiality in their sessions." Id. ¶¶ 33-34. In his misrepresentation count, Plaintiff alleges that he was damaged "in that he paid Defendant for her services and his retention of Defendant's services was improperly used to interfere with his visitation and custody rights with his minor child for a period of time." Id. ¶ 44. And, in his intentional interference with custodial rights count, Plaintiff similarly alleges that he was damaged "in that his custodial rights to his minor child were infringed." Id. ¶ 49. Plaintiff seeks damages in an amount greater than $75,000, as well as attorneys' fees and costs.

II. Analysis

A. Legal Standard on Motion to Dismiss

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case.See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1969 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Bell Atlantic, 127 S.Ct. at 1965, 1973 n.14). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atlantic, 127 S.Ct. at 1969. The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).

Rule 9(b) of the Federal Rules of Civil Procedure creates exceptions to the federal regime of notice pleading and specifies that, for "all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed. R. Civ. P. 9(b); see also Borsellino v. Goldman Sachs Group, Inc., 477 F.3d 502, 507 (7th Cir. 2007). "Read together, Rule 9(b) and Rule 8 require that the complaint include the time, place and contents of the alleged fraud, but the complainant need not plead evidence." Amakua Development LLC v. Warner, 411 F. Supp. 2d 941, 947 (N.D. Ill. 2006) (citing Nissan Motor Acceptance Corp. v. Schaumburg Nissan, Inc., 1993 WL 360426, at *3 (N.D. Ill. Sept. 15, 1993)). In other words, the complaint ...

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