Niklesh Parekh v. CBS Corporation ( 2020 )

Case: 19-11794 Date Filed: 06/19/2020 Page: 1 of 17
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11794
Non-Argument Calendar
________________________
D.C. Docket No. 6:18-cv-00466-PGB-TBS
NIKLESH PAREKH,
Plaintiff-Appellant,
versus
CBS CORPORATION,
BRIAN CONYBEARE,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 19, 2020)
Before JORDAN, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
Case: 19-11794 Date Filed: 06/19/2020 Page: 2 of 17
Niklesh Parekh, proceeding pro se, appeals the district court’s dismissal of his
complaint for defamation against CBS Corporation and reporter Brian Conybeare.
He also appeals the district court’s denial of his motion to amend the judgment and
award of attorneys’ fees to CBS and Mr. Conybeare under Florida’s anti-SLAPP
statute, Fla. Stat. § 768.295. After careful review of the parties’ briefs and the record,
we affirm.
I
A
This case arises out of a scam orchestrated by Mr. Parekh’s ex-girlfriend,
Vedoutie Hoobraj a/k/a Shivonie Deokaran. Ms. Deokaran pretended to have cancer
and solicited funds to support her purported medical treatment. For instance, among
other fundraising schemes, she created a “GoFundMe” web site, which described
the “unexpected financial burden” that her “fight with cancer has brought . . . to her
and her family[.]” D.E. 1-1 at 3. She raised approximately $50,000 in donations
from members of her community in Ardsley, New York, and elsewhere based on
these representations. But rather than using the funds for medical care, she “used
the donations for her ordinary living and business expenses[.]” Id. at 2.
In February of 2016, Mr. Parekh found out that Ms. Deokaran lied about
having cancer. After learning that her illness was a farce, he contacted local
2
Case: 19-11794 Date Filed: 06/19/2020 Page: 3 of 17
authorities and spoke to the media—including interviewing with CBS reporter Mr.
Conybeare—to set out the truth.
On April 2, 2017, CBS published a broadcast and accompanying online news
article about the scam. The article, written by Mr. Conybeare, is titled “Ex-
Boyfriend Says Westchester Woman Lied About Having Cancer in Scam.” D.E. 19-
2. The article and the broadcast are substantially identical, so we will refer to them
collectively as the “news report.”1
The news report states that Mr. Parekh “claim[ed] he had no idea she made
the whole thing up” and quotes him stating: “Shivonie has lied to me; has lied to my
friends, my family, her kids, my kids!” Id. at 1–2. It further reports that “[d]espite
Parekh’s claim he was fooled, Ardsley police confirmed they are investigating both
him and Deokaran in the cancer fraud probe.” Id. at 2. In addition, it quotes a victim
of the scam, Rob Wootten, stating that he “wants the couple—both of them—to be
charged and own up to the scam.” Id.
B
1
The broadcast and accompanying article were attached as exhibits to the defendants’ motion to
dismiss and may be viewed at https://newyork.cbslocal.com/2017/04/02/westchester-cancer-
scam-allegations/. Mr. Parekh incorporated the broadcast and article by reference in his complaint,
which provides the web address. See D.E. 1 ¶ 14. See also Day v. Taylor, 400 F.3d 1272, 1276
(11th Cir. 2005) (explaining that a document is incorporated by reference to a complaint, and
therefore may be considered in reviewing a motion to dismiss, if it is “(1) central to the plaintiff’s
claim and (2) undisputed”).
3
Case: 19-11794 Date Filed: 06/19/2020 Page: 4 of 17
On March 28, 2018, Mr. Parekh sued CBS and Mr. Conybeare for defamation.
His claim is based on the following two parts of the news report, which he asserts
falsely imply that he was in on Ms. Deokaran’s ruse.
First, the news report states:
Parekh was once Deokaran’s staunchest supporter. They suddenly
moved to Florida last year when people started getting suspicious, but
Parekh said he now knows the truth and their relationship is over.
Id. (emphasis added). Mr. Parekh alleged that contrary to this statement, he told Mr.
Conybeare “that the reason [he] moved to Florida was not because of any suspicion
within the community but rather that [Ms. Deokaran] stated that she was given 18
months to live and New York was too cold for her and [they] had to move to
Florida.” D.E. 1 ¶ 23.
Second, the news report states:
Parekh said he has nothing to hide. When he started asking questions,
he said Deokaran invented a fake cancer doctor whose name resembled
a real doctor at the Memorial Sloan Kettering Cancer Center – even
sending typo-filled emails to prove her diagnosis.
* * *
Memorial Sloan Kettering Cancer Center confirmed that the doctor
named in the emails never worked there, and in fact, no doctor by that
name even has a license in the state of New York.
D.E. 19-2 at 2 (emphasis added).
Mr. Parekh alleged that the latter part of this statement is false, and that there
is in fact a doctor with the name used in the emails associated with Memorial Sloan
4
Case: 19-11794 Date Filed: 06/19/2020 Page: 5 of 17
Kettering Cancer Center. He attached as an exhibit a sealed complaint filed in the
U.S. District Court for the Southern District of New York charging Ms. Deokaran
with wire fraud. The sealed complaint includes an FBI agent’s sworn statement that
“a doctor bearing the same name as the name in the Doctor-1 Gmail Account works
as an oncologist at Sloan Memorial Kettering Center in New York,” but based on
the agent’s interview of that doctor, “the doctor did not recall ever meeting or having
any contact with” Ms. Deokaran and “never owned or used the Doctor-1 Gmail
Account.” See D.E. 1-1 ¶ 13.
Mr. Parekh also alleged that CBS and Mr. Conybeare published pictures of
him with Ms. Deokaran, despite his request not to post photos of them together. See
D.E. 1 ¶ 18. He claims that the pictures “portray a very different picture about [him]
in the public’s eye[.]” Id. ¶ 19.
CBS and Mr. Conybeare moved to dismiss the complaint for failure to state a
claim. In the same motion, they also requested attorneys’ fees and costs pursuant to
Florida’s anti-SLAPP statute, Fla. Stat. § 768.295(4).
The district court granted the motion, dismissing Mr. Parekh’s complaint with
prejudice. In doing so, the district court explained that the first statement—regarding
the move to Florida—was not reasonably capable of defamatory meaning when read
in context. The district court further explained that the second statement—regarding
Ms. Deokaran falsifying the existence of a doctor—could not form the basis for a
5
Case: 19-11794 Date Filed: 06/19/2020 Page: 6 of 17
defamation claim because it was not “of and concerning” Mr. Parekh. In addition,
the district court denied leave to amend the complaint because amendment would be
futile, and awarded fees under Florida’s anti-SLAPP statute because the suit was
“without merit” and the news report addressed a “public issue.” D.E. 104 at 10. 2
Mr. Parekh moved to alter or amend the judgment pursuant to Rule 59(e),
which the district court construed as a motion for reconsideration. The district court
denied the motion because Mr. Parekh did “nothing more than re-argue the positions
he previously set forth[.]” D.E. 127 at 2.
This appeal followed.
II
As a preliminary matter, CBS and Mr. Conybeare argue that the scope of this
appeal is limited to the district court’s denial of Mr. Parekh’s Rule 59(e) motion
based on the language in his notice of appeal. Mr. Parekh’s notice of appeal states,
in pertinent part, that he is appealing “from the final judgment entered by [the district
court] on April 12th, 2019 in denying Plaintiffs’ 59(e) Motion to Alter or Amend
Judgment, which this court construed as a motion for reconsideration from the courts
order granting defendants motion to dismiss with Prejudice on January 9th,
2019 . . .” D.E. 130.
2
To the extent that Mr. Parekh also pled a claim for intentional infliction of emotional distress,
the district court dismissed that claim with prejudice too. That claim is not at issue in this appeal.
6
Case: 19-11794 Date Filed: 06/19/2020 Page: 7 of 17
A notice of appeal must “designate the judgment, order, or part thereof being
appealed.” Fed. R. App. P. 3(c)(1)(B). We “liberally construe” the requirements of
Rule 3, and “we do not narrowly read the notice of appeal where the defect in the
notice of appeal did not mislead or prejudice the respondent.” Nichols v. Ala. State
Bar, 815 F.3d 726, 730–31 (11th Cir. 2016) (citations and internal quotation marks
omitted) (entertaining jurisdiction over the plaintiff’s appeal even though his notice
of appeal did not specify which orders he intended to appeal because it was apparent
from the record which orders he was challenging and the defendant had an
opportunity to brief the issues).
Given this standard—and that we liberally construe pro se filings, see Bellizia
v. Fla. Dep’t of Corr., 614 F.3d 1326, 1329 (11th Cir. 2010)—we have jurisdiction
to review both the dismissal of Mr. Parekh’s complaint and the denial of his Rule
59(e) motion. His notice of appeal references both orders, and his initial brief makes
clear that he intends to appeal both rulings, as well as the award of attorneys’ fees.
CBS and Mr. Conybeare are not prejudiced by any lack of clarity in the notice of
appeal, as they briefed each of these issues in their answer brief. We therefore
address each of Mr. Parekh’s arguments: that the district court erred in dismissing
his defamation claim, denying him leave to amend, denying his Rule 59(e) motion,
and awarding attorneys’ fees to CBS and Mr. Conybeare.
7
Case: 19-11794 Date Filed: 06/19/2020 Page: 8 of 17
III
A
We review de novo the district court’s dismissal of Mr. Parekh’s defamation
claim. See Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1169 (11th Cir. 2014).
We accept the factual allegations in the complaint as true and construe them in the
light most favorable to Mr. Parekh. See id.
Under Florida law, “[d]efamation has the following five elements: (1)
publication; (2) falsity; (3) [the] actor must act with knowledge or reckless disregard
as to the falsity on a matter concerning a public official, or at least negligently on a
matter concerning a private person; (4) actual damages; and (5) [the] statement must
be defamatory.” Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008).
A statement is defamatory if it “tends to harm the reputation of another by
lowering him or her in the estimation of the community or, more broadly stated, . . .
exposes a plaintiff to hatred, ridicule, or contempt or injures his business or
reputation or occupation.” Id. at 108–09. “To determine if a statement is
defamatory, it must be considered in the context of the publication.” Smith v. Cuban
Am. Nat’l Found., 731 So. 2d 702, 705 (Fla. 3d DCA 1999). See also Byrd v. Hustler
Magazine, Inc., 443 So. 2d 593, 595 (Fla. 4th DCA 1983) (“The court must consider
all the words used, not merely a particular phrase or sentence.”) (citation and internal
8
Case: 19-11794 Date Filed: 06/19/2020 Page: 9 of 17
quotation marks omitted). Whether a statement is defamatory is a question of law.
See Turner v. Wells, 879 F.3d 1254, 1262–63 (11th Cir. 2018).
As discussed earlier, the first challenged statement in the news report provides
that Mr. Parekh and Ms. Deokaran “suddenly moved to Florida last year when
people started getting suspicious, but Parekh said he now knows the truth and their
relationship is over.” D.E. 19-2 at 2 (emphasis added). We agree with the district
court that, read in context, this statement is not defamatory.
Mr. Parekh argues that stating that they moved to Florida “when people started
getting suspicious” implies that he was a part of the scam. But the second half of
the sentence—which states that Mr. Parekh “now knows the truth and their
relationship is over”—makes clear that he did not know that Ms. Deokaran was lying
about having cancer at the time they moved, and that he terminated their relationship
upon finding out the truth. As the district court noted, the news report also repeatedly
quotes Mr. Parekh’s assertions that Ms. Deokaran lied to him. Indeed, it states at
the outset that Mr. Parekh claims “he had no idea.” D.E. 19-2 at 1. It then quotes
him throughout the report stating that “Shivonie has lied to me,” that “[s]he’s been
shaving her head, she’s been shaving her eyebrows, and [he] had no idea that’s what
she was doing,” and that “[b]ecause of Shivonie and her lies, [his] whole life is
upside down.” Id. at 2. Given this context, an ordinary reader would not understand
the first challenged statement to have a defamatory meaning.
9
Case: 19-11794 Date Filed: 06/19/2020 Page: 10 of 17
Mr. Parekh also challenges the statement that “Memorial Sloan Cancer Center
confirmed that the doctor named in the emails never worked there, and in fact, no
doctor by that name even has a license in the state of New York.” D.E. 19-2 at 2.
The district court reasoned that this statement “does not concern” Mr. Parekh, as it
merely “concerns whether Deokaran falsified the existence of a doctor who worked
at Memorial Sloan Kettering Cancer Center.” D.E. 104 at 6. The district court
therefore concluded that it could not form the basis of Mr. Parekh’s defamation
claim, as a defamatory statement must be “of and concerning” the plaintiff to be
actionable. See Thomas v. Jacksonville Television, Inc., 699 So. 2d 800, 802 (Fla.
1st DCA 1997).
Mr. Parekh argues that this statement is about him, as it suggests that he lied
when he “said Deokaran invented a fake cancer doctor whose named resembled a
real doctor at the Memorial Sloan Kettering Cancer Center,” D.E. 19-2 at 2, sending
him emails from the purported doctor to confirm her diagnosis. We take Mr.
Parekh’s point that the statement pertains to whether he was truthful when he stated
that a doctor “whose name resembled a real doctor” sent him emails regarding Ms.
Deokaran’s diagnosis. But we are “free to affirm the district court’s dismissal on
any ground that is supported by the record.” Michel v. NYP Holdings, Inc., 816 F.3d
686, 694 (11th Cir. 2016) (citation and internal quotation marks omitted). We
10
Case: 19-11794 Date Filed: 06/19/2020 Page: 11 of 17
conclude that the district court’s dismissal of the claim based on this statement is
correct because the statement is not defamatory.
The news report states that Mr. Parekh said Ms. Deokaran “invented a fake
cancer doctor whose name resembled a real doctor . . .” D.E. 19-2 at 2 (emphasis
added). Even if there was no doctor working at the cancer center with the exact
same name used in the emails, Mr. Parekh’s statement is true so long as there was a
doctor with a similar name working at the cancer center. The news report thus does
not imply that he was lying. Instead, an ordinary reader would interpret it to mean
that Ms. Deokaran duped Mr. Parekh into believing that she was sick by inventing a
doctor with a name that resembled the name of a real doctor.
We acknowledge that Mr. Parekh plausibly alleged that the statement that
there was no doctor at the cancer center with the name used in the emails—and no
doctor by that name licensed in New York—is inaccurate. The affidavit from the
FBI agent attached to the complaint indicates that there was indeed a doctor with
that name. But “[u]nder the substantial truth doctrine, a statement does not have to
be perfectly accurate if the ‘gist’ or the ‘sting’ of the statement is true.” Smith, 731
So. 2d at 706 (“A statement is not considered false unless it would have a different
effect on the mind of the reader from that which the pleaded truth would have
produced.”) (citations and internal quotation marks omitted). Even if this statement
is false, it is not actionable because it is not defamatory. We affirm the district
11
Case: 19-11794 Date Filed: 06/19/2020 Page: 12 of 17
court’s dismissal of Mr. Parekh’s complaint for defamation, as he did not plausibly
allege that either statement in the news report is defamatory.
B
We now turn to whether the district court erred in denying Mr. Parekh leave
to amend. We generally review the denial of leave to amend a complaint for abuse
of discretion, but when the denial is based on futility, we review de novo “because
it is concluding that as a matter of law an amended complaint would necessarily
fail.” Hollywood Mobile Estates Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1264
(11th Cir. 2011). Although a pro se litigant must generally be given an opportunity
to amend his complaint, a district court need not allow an amendment that would be
futile. See Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007). “Leave to
amend a complaint is futile when the complaint as amended would still be properly
dismissed or be immediately subject to summary judgment for the defendant.” Id.
We agree with the district court that leave to amend would be futile, because
no amendment could correct the deficiency that the statements in the news report are
not defamatory as a matter of law. Mr. Parekh argues that if he were granted leave
to amend, he could state a cause of action for defamation by implication.
Defamation by implication arises where “the defendant juxtaposes a series of facts
so as to imply a defamatory connection between them,” even though the particular
facts stated are true. See Rapp, 997 So. 2d at 1108. It may also arise where the
12
Case: 19-11794 Date Filed: 06/19/2020 Page: 13 of 17
defendant “creates a defamatory implication by omitting facts[.]” Id. In other
words, it allows “impos[ing] liability upon the defendant who has the details right
but the ‘gist’ wrong.” Id.
As explained earlier, despite omitting that Mr. Parekh moved to Florida
because Ms. Deokaran said New York was too cold for her, the “gist” of the news
report is still true—Mr. Parekh did not know that Ms. Deokaran’s cancer was a farce
until after they moved to Florida, and when he found out, he terminated their
relationship. And although the news report did not mention that an FBI agent
interviewed a doctor with the same name as that used in the emails, omission of this
fact does not create a defamatory implication about Mr. Parekh.
Nor could the pictures of Mr. Parekh with Ms. Deokaran form the basis of a
defamation by implication claim. Mr. Parekh argues that including pictures of them
together created a false, defamatory implication that he was still affiliated with Ms.
Deokaran. But the pictures must also be viewed in the context of the entire news
report, which makes clear that they are no longer together. See Byrd, 433 So. 2d at
595 (“When words and pictures are presented together, each is an important element
of what, in toto, constitutes the publication. Articles are to be considered with their
illustrations; pictures are to be viewed with their captions; stories are to be read with
their headlines.”). The headline refers to Mr. Parekh as Ms. Deokaran’s “ex-
13
Case: 19-11794 Date Filed: 06/19/2020 Page: 14 of 17
boyfriend,” and the news report states that “their relationship is over.” D.E. 19-2 at
1–2.
In arguing that the news report damaged his reputation, Mr. Parekh also notes
that the report states: “Ardsley police confirmed they are investigating both him and
Deokaran in the cancer fraud probe.” But he does not assert that this statement is
false, or that he would amend the complaint to state a claim based on this statement.
He also says that the news report quotes a victim, Mr. Wootten, stating that he “wants
the couple—both of them—to be charged and own up to the scam.” But he does not
argue that he would amend to state a claim based on this statement either. Nor could
he, as Mr. Wootten’s quote is a non-actionable expression of opinion. See Hay v.
Indep. Newspapers, Inc., 450 So. 2d 293, 295 (Fla. 2d DCA 1984) (explaining that
expressions of opinion are not actionable).
Accordingly, we affirm the denial of leave to amend the complaint, as the
proposed amendment would be futile.
C
We review the denial of a Rule 59(e) motion for an abuse of discretion. See
Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007). “The only grounds for
granting a Rule 59 motion are newly-discovered evidence or manifest errors of law
or fact.” Id. (alterations, citation and internal quotation marks omitted).
14
Case: 19-11794 Date Filed: 06/19/2020 Page: 15 of 17
The district court did not abuse its discretion in denying Mr. Parekh’s Rule
59(e) motion, as he did not point to any manifest errors of law or fact. His motion
repeated arguments already made and rejected, and the exhibits do not change the
analysis of his claims. Although Mr. Parekh contends that the exhibits include text
messages between himself and a customer who will no longer do business with him
after reading the news report, that does not alter the analysis of how an ordinary
reader would interpret the report. See Rubin v. U.S. News & World Report, Inc., 271
F.3d 1305, 1306 (11th Cir. 2001) (applying Florida law) (noting that in evaluating
whether a statement is defamatory, the question is how it would be “understood by
the average reader”).3
D
We review de novo the district court’s interpretation and application of a
statute, such as Florida’s anti-SLAPP statute. See Tobinick v. Novella, 848 F.3d 935,
943 (11th Cir. 2017). Florida’s anti-SLAPP statute prohibits a person from filing a
cause of action “against another person or entity without merit and primarily because
such person or entity has exercised the constitutional right of free speech in
connection with a public issue[.]” Fla. Stat. § 768.295(3). It provides that “[t]he
3
We are also not persuaded by Mr. Parekh’s argument that the district court erred by striking his
motions to supplement his Rule 59(e) motion, which also repeated arguments previously raised.
Mr. Parekh did not obtain leave to submit these filings as required by the district court’s local
rules. See M.D. Fla. L. R. 3.01(c).
15
Case: 19-11794 Date Filed: 06/19/2020 Page: 16 of 17
court shall award the prevailing party reasonable attorney fees and costs incurred in
connection with a claim that an action was filed in violation of this section.” Fla.
Stat. § 768.295(4).
Based on the plain language of the statute, the district court properly awarded
fees to CBS and Mr. Conybeare under this provision. Mr. Parekh’s suit was “without
merit” for the reasons explained earlier, and it arose out of the defendants’ protected
First Amendment activity—publishing a news report on a matter of public concern.
See Fla. Stat. § 768.295(3).
Mr. Parekh argues, for the first time on appeal, that Florida’s anti-SLAPP
statute should not be applied in federal court. He forfeited this argument, however,
by not raising it before the district court. See Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998) (noting that although pro se pleadings are liberally
construed, “issues not raised below are normally deemed waived”). See also
Tobinick, 848 F.3d at 944 (holding that the appellants “waived their challenge to the
district court’s application of California’s anti-SLAPP statute based on the Erie
doctrine” because they did not raise the issue before the district court). He also
forfeited his argument that New York rather than Florida law should apply—and
therefore Florida’s anti-SLAPP statute is inapplicable—as he did not raise it until
his reply brief. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (“[W]e
do not address arguments raised for the first time in a pro se litigant’s reply brief.”).
16
Case: 19-11794 Date Filed: 06/19/2020 Page: 17 of 17
IV
For the foregoing reasons, we affirm.
AFFIRMED.
17