Button v. Doherty (Sept. 30, 2025)

Case details
Full caption
Mitchell Taylor Button & Dusty Button v. Juliet Doherty et al.
Country
United States
Jurisdiction
Federal
Decided
Sept. 30, 2025
Disposition
Motion Denied
DUSTY BUTTON and MITCHELL TAYLOR BUTTON, Plaintiffs, v...., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 2776069Only the Westlaw citation is currently available.United States District Court, S.D. New York.DUSTY BUTTON and MITCHELLTAYLOR BUTTON, Plaintiffs,v.JULIET DOHERTY, KRISTA KING-DOHERTY, and LUIS PONS, Defendants.24 Civ. 5026 (JPC) (KHP)|Filed 09/30/2025ORDER ADOPTING REPORTAND RECOMMENDATIONJOHN P. CRONAN United States District Judge*1 Plaintiffs Dusty Button and Mitchell Taylor Buttoncommenced this action on June 27, 2024, by filing aComplaint alleging various tort causes of action againstDefendants Juliet Doherty, Krista King-Doherty, and LuisPons. Dkt. 1. Plaintiffs filed an Amended Complaint re-pleading their causes of action on November 6, 2024. Dkt.41 (“Am. Compl.”). On December 6, 2024, Defendants filedmotions to dismiss the Amended Complaint. Dkts. 42, 46.On July 30, 2025, the Honorable Katharine H. Parker, towhom this case has been referred for general supervision ofpretrial proceedings and to issue recommendations on anydispositive motions, issued a Report and Recommendation,recommending that the undersigned dismiss Plaintiffs’ claimsagainst King-Doherty for lack of personal jurisdiction anddismiss Plaintiffs’ claims against Doherty and Pons for failureto state a claim. Dkt. 59 (“R&R”) at 17-21, 25-38. JudgeParker further recommended that Plaintiffs’ assault, battery,malicious prosecution, and civil conspiracy claims againstDoherty and Pons be dismissed with prejudice, and thatPlaintiffs’ remaining claims be dismissed without prejudiceand with leave to amend. Id. at 39. Plaintiffs filed objectionsto Judge Parker's Report and Recommendation on October18, 2025, Dkt. 63 (“Objections”), and Defendants respondedon September 2 and September 3, 2025, Dkts. 65, 66. OnSeptember 16, 2025, Plaintiffs moved for permission to file areply to Defendants’ responses and to file certain depositiontranscripts under seal. Dkt. 67.1A district court “may accept, reject, or modify, in wholeor in part, the findings or recommendations made by themagistrate judge” in a Report and Recommendation, and mustconduct de novo review of any part of the magistrate judge'sdisposition to which a party submits a proper objection. 28U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). “To be proper,an objection must be clearly aimed at particular findings,and may not be conclusory or general.” Riaz v. Comm'r ofSoc. Sec., No. 20 Civ. 8418 (JPC) (SLC), 2022 WL 4482297,at *2 (S.D.N.Y. Sept. 27, 2022) (internal quotation marksand citations omitted). “Parties may neither regurgitate theoriginal briefs to the magistrate judge nor raise new argumentsnot raised to the magistrate judge in the first instance.” Id.(internal quotation marks omitted); accord United States v.Gladden, 394 F. Supp. 3d 465, 480 (S.D.N.Y. 2019). A districtcourt reviews for clear error those parts of a Report andRecommendation to which no party has filed proper or timelyobjections. 28 U.S.C. § 636(b)(1)(A); see Lewis v. Zon, 573 F.Supp. 2d 804, 811 (S.D.N.Y. 2008) (“To accept those portionsof the report to which no timely objection has been made, adistrict court need only satisfy itself that there is no clear erroron the face of the record.” (internal quotation marks omitted)).*2 Plaintiffs raise nine objections to the Report andRecommendation. First, Plaintiffs argue that the Report andRecommendation erred in concluding that their defamationclaim was untimely as to statements made more than oneyear before the Complaint was filed. Specifically, Plaintiffsargue that the statements were republished within the one-year statute of limitations, Objections at 3-4, and thatequitable tolling should apply because the statements were,until recently, “hidden or unknowable” to Plaintiffs “throughno fault of their own,” id. at 3.2 These arguments areunpersuasive. First, the Amended Complaint never allegesthat the untimely statements were republished—i.e., that therewas “a separate aggregate publication from the original, ona different occasion.” Firth v. State, 775 N.E.2d 463, 466(N.Y. 2002).3 So the statute of limitations as to these pre-June 27, 2023 statements was not recommenced on accountof republication. Second, “New York courts consistently havedeclined to recognize a so-called ‘discovery rule’ ” that wouldequitably toll defamation claims until a victim's discoveryof the defamatory statement. Hanly v. Powell Goldstein,L.L.P., 290 F. App'x 435, 439 (2d Cir. 2008) (summary order)(collecting cases). Nor have Plaintiffs alleged “exceptionalcircumstances” to warrant equitable estoppel. Abercrombie v.Andrew College, 438 F. Supp. 2d 243, 265 (S.D.N.Y. 2006)
DUSTY BUTTON and MITCHELL TAYLOR BUTTON, Plaintiffs, v...., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.2(internal quotation marks omitted). As Judge Parker aptlysummarized in her Report and Recommendation:Plaintiffs affirmatively plead thatDoherty gave them direct noticeof the statements she was makingwhen she joined the Nevada Action.Additionally, there is no showingthat Defendants misrepresented orconcealed material facts intendingthat Plaintiffs would act on suchmisrepresentation or concealment todelay the bringing of this action. Norcan Plaintiffs show, on their pleading,that they relied on conduct of any ofthe Defendants in delaying bringingthis action. Plaintiffs plead that theywere aware of rumors about themand were fully aware of the substanceof Doherty's assertions about themwhen she joined the Nevada actionand plead that they did not bringdefamation claims sooner out ofconcern for Doherty's emotional state.Thus, their decision to delay bringingsuit was conscious and not based onmisrepresentations or concealment offacts by Defendants.R&R at 29.Second, Plaintiffs argue that the Report and Recommendation“misapplie[d] the litigation privilege” by “applying itto extrajudicial, non-litigation communications, includingsocial media and third-party gossip campaigns,” therebyshielding Defendants’ otherwise actionable statements fromtheir defamation claim. Objections at 4. But this objectionmischaracterizes the Report and Recommendation, whichmerely noted in a passing footnote that “generally adefamation claim cannot be premised on statements madein a court filing.” R&R at 28 n.21. Judge Parker did notactually rely on the “litigation privilege” in concluding thatPlaintiffs failed to state a claim for defamation with respect toany extrajudicial statements, or with respect to any allegedlydefamatory statements for that matter. Instead, Judge Parkerdetermined that the allegedly defamatory statements made byDoherty and Pons before June 27, 2023, were time-barred,id. at 27-30, and that Plaintiffs fail to state a claim fordefamation with respect to the three alleged statements byDoherty or Pons that arguably were made within one year ofthe commencement of this action, id. at 30-35.4*3 Third, Plaintiffs argue that the Report andRecommendation “fails to analyze well-pled claims formalicious prosecution and abuse of process.” Objectionsat 5. But Plaintiffs’ Amended Complaint never purportedto plead a claim for “abuse of process.” And althoughPlaintiffs did allege malicious prosecution, the Report andRecommendation carefully and correctly explained whyPlaintiffs’ cause of action was untimely and also ultimatelyfailed to state a claim on the merits. See R&R at 26 (explainingthat Plaintiffs’ malicious prosecution claim is time-barredby New York's one-year statute of limitations because “thelatest date the cause of action could have accrued is the datethat Doherty withdrew her claims in Nevada, which Plaintiffsplead to be February 24, 2023”); id. at 26 n.19 (noting “[f]orcompleteness” that Plaintiffs have failed to state a maliciousprosecution claim under the law in Nevada, the forum ofthe allegedly malicious prosecution, which requires lackingprobable cause in a prior criminal proceeding).Fourth, Plaintiffs argue that the Report and Recommendations“wrongly concludes there is no personal jurisdiction overKrista King-Doherty”5 because “[u]nder CPLR § 302(a)(1)and (a)(2), New York courts routinely exercise jurisdictionwhere tortious acts outside the state cause injury within it.”Objections at 5. This argument, which merely “regurgitate[s]the original briefs to the magistrate judge,” Riaz, 2022 WL4482297, at *2, is unpersuasive. New York Civil PracticeLaw and Rules Section 302(a)(1) allows a court to exercisepersonal jurisdiction over “any non-domiciliary ... who inperson or through an agent ... transacts any business withinthe state or contracts anywhere to supply goods or servicesin the state.” N.Y. C.P.L.R. § 302(a)(1); see Al Rushaid v.Pictet & Cie, 68 N.E.3d 1, 7 (N.Y. 2016) (“The CPLR 302(a)(1) jurisdictional inquiry is twofold: under the first prong thedefendant must have conducted sufficient activities to havetransacted business in the state, and under the second prong,the claims must arise from the transactions.”). But as JudgeParker explained, the Amended Complaint makes “no clearallegations regarding any specific business transactions inwhich King-Doherty was engaged in New York that have anexus with the claims against her.” R&R at 20. Without suchan allegation, the Court cannot exercise personal jurisdictionover King-Doherty under Section 302(a)(1). See Best VanLines, Inc. v. Walker, 490 F.3d 239, 248 (2d Cir. 2007) (“New
DUSTY BUTTON and MITCHELL TAYLOR BUTTON, Plaintiffs, v...., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.3York courts do not interpret ‘transacting business’ to includemere defamatory utterances sent into the state.” (alterationsadopted)).Plaintiffs’ objections fare no better with respect to Section302(a)(2), which allows a court in New York to exercisepersonal jurisdiction over “any non-domiciliary ... who inperson or through an agent ... commits a tortious act withinthe state, except as to a cause of action for defamationof character arising from the act.” N.Y. C.P.L.R. § 302(a)(2). Invoking this provision, Plaintiffs seem to rely on theexistence of a “joint conspiracy” to justify the Court's exerciseof personal jurisdiction over King-Doherty. See Objectionsat 5-6. But Judge Parker correctly noted that Plaintiffs “offernothing more than conclusory assertions regarding King-Doherty's alleged participation in any conspiracy to defamethem,” R&R at 21, and a “bland assertion of conspiracy ...is insufficient to establish jurisdiction for purposes of section302(a)(2),” id. at 20-21 (ellipse in original) (quoting In reTerrorist Attacks on September 11, 2021, 349 F. Supp. 2d 765,805 (S.D.N.Y. 2005)).*4 Fifth, Plaintiffs argue that the Report andRecommendation failed to consider whether an amendmentwould be futile before recommending dismissal oftheir assault, battery, malicious prosecution, and civilconspiracy claims against Doherty and Pons with prejudice.Objections at 6-7.6 The Court disagrees. As the Reportand Recommendation explained, all the facts underlyingPlaintiffs’ assault, battery, and malicious prosecution claimsoccurred outside the applicable limitations periods, seeR&R at 25-26, and Plaintiffs’ civil conspiracy claim is notcognizable as “an independent cause of action,” id. at 38.“[B]etter pleading will not cure” these deficiencies, Cuoco v.Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000), so Judge Parkercorrectly recommended the dismissal of those claims withprejudice. See Livingston v. Mejia, No. 20 Civ. 2009 (JPC),2022 WL 976808, at *7 (S.D.N.Y. Mar. 31, 2022) (denyingleave to amend time-barred claims because “it would be futileto do so”).Sixth, Plaintiffs argue that the Report and Recommendationrecommended dismissal of their civil conspiracy claimbased on the “erroneous premise” that civil conspiracyis not an independent cause of action. Objections at 7.But the Report and Recommendation correctly stated thatNew York “recognizes civil conspiracy only as a theoryof liability to connect Defendants.” R&R at 38; accordPhilip S. Schwartzman, Inc. v. Pliskin, Rubano, Baum &Vitulli, 187 N.Y.S.3d 702, 707 (2d Dep't 2023) (“Althoughan independent cause of action for civil conspiracy is notrecognized [under New York law], a plaintiff may plead theexistence of a conspiracy in order to connect the actionsof the individual defendants with an actionable, underlyingtort and establish that those actions were part of a commonscheme.” (quoting Faulkner v. City of Yonkers, 963 N.Y.S.2d340, 341 (2d Dep't 2013))). Plaintiffs’ own objections evenconcede that “conspiracy is not a standalone tort.” Objectionsat 7. In any event, Judge Parker correctly concluded that“Plaintiffs’ conclusory allegations of conspiracy are whollyinsufficient,” R&R at 38, particularly given Plaintiffs’ failureto adequately allege any underlying tort. See Bigio v. Coca-Cola Co., 675 F.3d 163, 176 (2d Cir. 2012) (“To state aclaim for civil conspiracy under New York law, a plaintiff,in addition to alleging an underlying tort, must plead factssufficient to support an inference of the following elements:(1) an agreement between two or more parties; (2) an overtact in furtherance of the agreement; (3) the parties’ intentionalparticipation in the furtherance of a plan or purpose; and(4) resulting damage or injury.” (internal quotation marksomitted)).Seventh, Plaintiffs argue that the Report andRecommendation “fails to address” their claim for intentionalinfliction of emotional distress (“IIED”). Objections at 8. Butthe Report and Recommendation spent two pages explainingwhy Plaintiffs fail to state a claim for IIED. See R&R at35-36. As Judge Parker concluded, “neither of the statementsas pleaded qualifies as ‘extreme and outrageous;’ nor havePlaintiffs pleaded the requisite level of intent to cause severeemotional distress.” Id. at 36; see In re Sears Holding Corp.,No. 21-1095, 2023 WL 3938982, at *1 (2d Cir. June 12,2023) (summary order) (“To state a claim for [IIED] underNew York law, a plaintiff must plausibly allege (1) extremeand outrageous conduct, (2) intent to cause severe emotionaldistress, (3) a causal connection between the conduct andthe injury, and (4) severe emotional distress. Extreme andoutrageous conduct is so outrageous in character, and soextreme in degree, as to go beyond all possible boundsof decency, and to be regarded as atrocious, and utterlyintolerable in a civilized society.” (internal citations andquotation marks omitted)).*5 Eighth, Plaintiffs argue that the Report andRecommendation found certain claims to be time-barred after“ignoring that Plaintiffs pled ongoing and continuing harm.”Objections at 8. This argument was not raised before JudgeParker, but in any event, the Court disagrees. New York
DUSTY BUTTON and MITCHELL TAYLOR BUTTON, Plaintiffs, v...., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.4“applie[s] the [‘continuing wrong’] doctrine in certain casessuch as nuisance or continuing trespass where the harmsustained by the complaining party is not exclusively traced tothe day when the original objectionable act was committed.”Covington v. Walker, 819 N.E.2d 1025, 1027 (N.Y. 2004).But here, there is no suggestion that Defendants engagedin continuing injurious acts. Rather, Plaintiffs argue onlythat Defendants’ time-barred conduct “continues to [cause]damage.” Objections at 9; see Henry v. Bank of Am., 48N.Y.S.3d 67, 70 (1st Dep't 2017) (“The doctrine may onlybe predicated on continuing unlawful acts and not on thecontinuing effects of earlier unlawful conduct.” (internalquotation marks omitted)).Finally, Plaintiffs argue that the Report and Recommendationfailed to consider Exhibit A to their Amended Complaint,“even though the Complaint expressly incorporates it byreference.” Objections at 9. However, the Report andRecommendation cited to various exhibits, see R&R at 8(citing Dkt. 44 (“McCawley Decl.”), Exhs. A, B); id. at25 (citing McCawley Decl., Exh. C), and Judge Parkerexplicitly recognized that “a court may consider any writteninstrument attached to the complaint as an exhibit, [and] anystatements or documents incorporated by reference,” id. at16-17 (internal quotation marks omitted). Plaintiffs also donot identify what particular information in Exhibit A theybelieve the Report and Recommendation failed to consider.The Court thus overrules Plaintiffs’ objections to the Reportand Recommendation. The Court also finds no clear errorin the portions of the Report and Recommendation to whichPlaintiffs did not object. Indeed, the Court has conducted denovo review of the entire Report and Recommendation andfinds it to be well-reasoned and its conclusions well-founded.The Court therefore adopts the Report and Recommendationin its entirety. Plaintiffs’ claims for assault, battery, maliciousprosecution, and civil conspiracy against Doherty and Ponsare dismissed with prejudice as plainly time-barred or,with respect to the civil conspiracy claim, not cognizable.Plaintiffs’ remaining claims, including all claims againstKing-Doherty, are dismissed without prejudice and with leaveto amend. If Plaintiffs decide to file a second amendedcomplaint, they must do so within thirty days of this Order.Plaintiffs should file a second amended complaint only ifthey believe that they can remedy the pleading deficienciesidentified in the Report and Recommendation and in thisOrder. If Plaintiffs fail to file a second amended complaint bythat deadline, or fail to obtain an extension of time to do soin advance of that deadline, the Court will direct the Clerk ofCourt to enter judgment in Defendants’ favor and to close thecase.7*6 The Clerk of Court is respectfully directed to terminatethe motions pending at Docket Numbers 42, 46, and 67.SO ORDERED.All CitationsSlip Copy, 2025 WL 2776069Footnotes1The Court denies Plaintiffs’ motion for leave to file a reply and the deposition transcripts under seal, Dkt. 67,as it concludes that those materials would not assist or otherwise impact its analysis of Defendants’ motionsto dismiss.2Plaintiffs do not object to the Report and Recommendation's determination that certain alleged statementswere made more than one year before this action was filed, and the Court finds no clear error in JudgeParker's findings to that effect. To be sure, the Report and Recommendation appears to have concluded thatDoherty made certain statements in September 2018 and March 2019 based on information found in exhibitsthat were incorporated by reference in Plaintiffs’ Amended Complaint and submitted by Doherty and King-Doherty in support of their motion to dismiss. See R&R at 8 (citing Dkt. 44, Exhs. A, B). Typically, “in caseswhere the plaintiff ... incorporates a document for purposes other than the truthfulness of the document,” it is“inappropriate to treat the contents of that document as true.” Pearson v. Gesner, 125 F.4th 400, 407 (2d Cir.2025) (internal quotation marks omitted). But here, Plaintiffs’ own Amended Complaint suggests that these
DUSTY BUTTON and MITCHELL TAYLOR BUTTON, Plaintiffs, v...., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.5statements were made well outside the limitations period. See Am. Compl. 126 (alleging that the relevantstatements were made “because [Doherty] knew that Plaintiffs’ allegations against her would be made knownand publicized during the course of the Nevada litigation,” which itself began in 2021).3Plaintiffs do not object to the Report and Recommendation's choice-of-law analysis, including itsrecommendations that New York's statutes of limitations apply, see R&R at 22, and that New York andNevada substantive law do not meaningfully differ in ways relevant to this case, see id. at 22-25. In fact,Plaintiffs abandon the argument that Nevada law applies by citing only New York cases in their objections.Regardless, the Court finds no clear error in the Report and Recommendation's choice-of-law analysis.4Judge Parker did not reach the alleged defamatory statements made by King-Doherty because shedetermined that personal jurisdiction was lacking over that Defendant. R&R at 17-21.5Plaintiffs’ additional argument that the Report and Recommendation “wrongly concludes there is no personaljurisdiction over ... Luis Pons,” Objection at 5, relies on a mistaken premise. The Report and Recommendationnever concluded that this Court lacks jurisdiction over Pons. To the contrary, and as noted above, JudgeParker addressed why Plaintiffs’ claims against Pons should be dismissed under Rule 12(b)(6). R&R at 27-35.6At various points, Plaintiffs contend that Judge Parker erroneously recommended dismissal of “all claimswith prejudice.” Objections at 6; accord id. at 1, 2. As discussed, the Report and Recommendation did notmake that recommendation. Judge Parker recommended that Plaintiffs’ claims for assault, battery, maliciousprosecution, and civil conspiracy against Doherty and Pons be dismissed with prejudice, and that Plaintiffs’remaining claims be dismissed without prejudice. R&R at 39.7The Court notes that Plaintiffs’ objections appear to rely, at least in part, on an artificial intelligence tool andcontain many obvious errors. For instance, Plaintiffs object to various findings that Judge Parker did notmake, such as her supposed application of the litigation privilege to extrajudicial communications, Objectionsat 4-5, her supposed determination that personal jurisdiction was lacking over Pons, id. at 5-6, her supposedrecommended dismissal of all their claims with prejudice, id. at 1, 2, 6, and her supposed failure to addresstheir IIED claim, id. at 8. In addition, Plaintiffs seem to present quotations from cases that do not exist. Seeid. at 3 (purportedly quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)); id. at 7(purportedly quoting Foman v. Davis, 371 U.S. 178, 182 (1962)); id. at 8 (purportedly quoting Howell v. NewYork Post Co., 81 N.Y.2d 115, 122 (N.Y. 1993)).Plaintiffs are reminded that all litigants, including pro se litigants, are individually responsible for verifying theaccuracy of any output produced by an artificial intelligence tool. In the event that Plaintiffs make further filingsin this case directed to the undersigned for which they use an artificial intelligence tool, that filing must, inaccordance undersigned's Individual Rules and Practices for Pro Se Litigants, include a signed certification(1) stating whether the litigant personally reviewed the filing for accuracy of cited legal authorities and factualassertions; and (2) if so, describing in detail the steps taken to verify the accuracy of all legal authoritiesand factual assertions generated by the tool. A model certification may be found on the Court's website(https://www.nysd.uscourts.gov/hon-john-p-cronan). The Court may strike any filing that fails to comply withthis requirement.End of Document© 2025 Thomson Reuters. No claim to original U.S. Government Works.
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