No Civil Court Claim Over Publicizing Religious Court's Statement That Litigant Refuses to Appear in the Religious Court

Plaintiff had argued that defendants' publicizing the religious court's statement "serves as a form of social pressure, calling on the community to shun or ostracize the individual until they comply with the court's demands."

From today's decision by Judge Rachel Kovner (E.D.N.Y.) in Esses v. Rosen:

Plaintiff Regina Esses has moved for a preliminary injunction under Federal Rule of Civil Procedure 65 against defendants Tanya Rosen and Tanya Rosen Inc. enjoining defendants from disseminating a declaration from a rabbinical court and an accompanying instructional document. Plaintiff's motion for a preliminary injunction is denied….

The following facts are taken from plaintiff's filings in support of her motion for a preliminary injunction and are assumed true for purposes of this motion.

Both plaintiff and defendant Tanya Rosen are members of the Orthodox Jewish community. As relevant to plaintiff's request for a preliminary injunction, plaintiff asserts that, before she filed this lawsuit, Rosen secured the issuance of a summons against plaintiff by a Jewish rabbinical court, or beth din, called Badatz Mishpitei Yisroel ("BMY"), regarding plaintiff's former employment contract with defendant Tanya Rosen Inc. According to plaintiff, "[u]nder Jewish law, when an individual is summoned to beth din, the recipient has the right to propose an alternative beth din to avoid potential bias or undue influence from the summoner's chosen venue." Plaintiff alleges that "BMY, at Rosen's request, continued to issue summonses demanding [plaintiff's] appearance," even though plaintiff proposed an alternative rabbinical court in New Jersey.

Plaintiff asserts that Rosen later "sought a seiruv from BMY against" plaintiff. According to plaintiff, a "seiruv is a public declaration issued by beth din that a person has refused to comply with rabbinic court orders to appear." The seiruv lists plaintiff's home address and states:

Whereas, close to a year has passed since we have sent out our first summons to [plaintiff] and until this day a Din torah has not been scheduled, we have no choice but to declare [plaintiff] a Mesareves, in addition to her filing in court against [Rosen] without permission from a Bais Din. She claims to have permission from her Rabbi, which she has not substantiated to the Beis Din. Anyone that may impress upon her the severity of the grave sin of refraining from appearing in Beis Din shall do so and it will be to his merit.

Rosen distributed the seiruv, along with an "instructional document" purporting to describe what a seiruv generally entails, "throughout [plaintiff's] neighborhood," in various "Jewish community Whatsapp group chats," and to Rosen's listserv, which contains thousands of recipients. The instructional document describes a seiruv as "a form of contempt order issued by a rabbinical court." It states that the "public declaration serves as a form of social pressure, calling on the community to shun or ostracize the individual until they comply with the court's demands."

It adds that "the treatment of someone with a [seiruv] can vary depending on the community's customs," but that, generally, "[t]he community may avoid social interaction with the individual, including not inviting them to communal events, not including them or their spouse in a minyan (quorum for prayer), and refraining from doing business with them." In addition, "[t]he community may be informed of the [seiruv], and the person's refusal to comply with the court's ruling is to be publicized." Plaintiff claims that Rosen's dissemination of the seiruv has caused her "significant emotional distress" and fear, amplified by plaintiff's pregnancy and a recent "armed break-in at [plaintiff's] home" by unknown persons. Plaintiff also claims that she has "lost a client who terminated their business relationship upon becoming aware of the seiruv." …

Plaintiff's operative amended complaint alleges a wide-ranging "campaign of harassment" by Rosen against plaintiff, beginning after plaintiff left defendants' employment in October 2022. For example, plaintiff alleges that Rosen arranged a box containing feces to be sent to plaintiff's home, sent harassing text messages to plaintiff's husband, and created an Instagram account under plaintiff's name that Rosen used to write posts designed to portray plaintiff in a negative light….

Those arguments aren't being resolved in this decision, but the decision does discuss plaintiff's request for a preliminary injunction, "focus[ed] solely on defendants' distribution of the seiruv":

Specifically, plaintiff moves for a preliminary injunction "restraining the Defendants from further disseminating the notice of seiruv … or any similar documents … that contain the plaintiff's home address or false claims regarding the plaintiff's failure to appear at a Beth Din." Plaintiff also requests that the Court order defendants "to take down or request the removal of any existing copies of the Seiruv or similar materials from any platforms where it has been disseminated."

The court said plaintiff hadn't established "a likelihood of success or serious questions going to the merits of her supplemental defamation claim":

The First Amendment limits courts' ability to adjudicate some defamation claims involving religion. The Establishment Clause bars state actors from deciding disputes of religious doctrine or practice. Federal courts therefore consistently refuse to adjudicate defamation claims that would require them to decide questions of religious law…. [Plaintiff's] declaration, even if fully credited, does not establish that the statements in the seiruv or accompanying document are actionable as substantially false statements. Plaintiff offers four theories to establish this element, but none withstand scrutiny.

Plaintiff first asserts that the seiruv defames her because it "states that Plaintiff improperly initiated this matter in court in lieu of bringing it to beth din." While plaintiff does not dispute that she brought the claims in this case before a secular court rather than a religious one, she suggests that the seiruv is defamatory because it indicates that her doing so was "improper[]." That statement is nowhere contained in the seiruv itself. But even if the seiruv is read to convey that implication through its reference to plaintiff's civil filing, the First Amendment would prevent this Court from second-guessing a religious court's view of impropriety. Any implication of impropriety in the order of the beth din is "plainly made in the context of the Orthodox Jewish faith." Plaintiff's claim thus invites the Court to determine whether a rabbinical court properly applied religious principles in disapproving of plaintiff's conduct—the type of "judicial intrusion into ecclesiastical doctrine and practice" that "is unquestionably forbidden ground under the First Amendment.

Plaintiff next suggests that the seiruv is defamatory because it states that plaintiff "has not 'substantiated'" to BMY that she received permission from her rabbi "to forego beth din proceedings." But plaintiff has not shown serious questions going to the merits of a claim based on this statement because she does not contend that she did provide substantiation of rabbinical permission to the beth din. While plaintiff suggests that the seiruv "falsely implies the beth din requested substantiation from Plaintiff," she has not made the requisite "rigorous showing," that this inference is supported by the seiruv, which simply states that plaintiff "has not substantiated" her "claim[] to have permission from her Rabbi" not to appear.

Plaintiff next claims that the instructional document distributed with the seiruv is defamatory because it falsely conveys "that the rabbis of the beth din were encouraging social ostracism and shaming in this case." Again, such a statement appears nowhere on the face of the instructional document, which makes no reference to BMY or the specific seiruv BMY issued regarding plaintiff. It instead appears to describe what the issuance of a seiruv generally entails. In any event, the Establishment Clause would preclude this Court from finding defamation on that ground. To decide whether the instructional document was true or false in its asserted characterization of plaintiff's seiruv, the Court would be "called upon to inquire into the rules and customs governing rabbinical courts as they are utilized in the Orthodox Jewish religion" to determine whether a seiruv should be understood to encourage social ostracism or shaming, and then to give an authoritative construction to a religious court's declaration in light of those religious rules and customs. Again, this is the type of intrusion into religious practice that the First Amendment prohibits.

Finally, plaintiff claims that "the seiruv in its entirety" is defamatory because it "was procured under false pretenses" by Rosen. Specifically, plaintiff alleges that Rosen "procur[ed] the seiruv … to falsely and disingenuously defame" plaintiff, as suggested by the fact that Rosen's "behavior in this forum directly contradicts her claim to the beth din that she wishes to pursue arbitration." But plaintiff cannot establish a defamation claim based on asserted bad motives, unaccompanied by evidence of falsity, because defamation requires falsity.

And the court likewise concluded that plaintiff hadn't established "a likelihood of success or serious questions going to the merits" of her intentional infliction of emotional distress claim:

Under New York law, an IIED claim requires the plaintiff to establish "four elements: (1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection between the conduct and the injury, and (4) severe emotional distress." The defendant's conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." The "extreme and outrageous conduct" standard is "rigorous[] and difficult to satisfy." …

Plaintiff's motion seeking a preliminary injunction based on IIED does so exclusively based on "[t]he dissemination of the seiruv," which she argues "cannot be classified as anything other than a malicious campaign of harassment and intimidation." But as explained above, plaintiff has not plausibly alleged any inaccuracy in the seiruv or accompanying flier that is within the competence of this Court to adjudicate.

Plaintiff cannot meet her burden of establishing "extreme and outrageous conduct" that "go[es] beyond all possible bounds of decency" and is "utterly intolerable in a civilized community" based merely on dissemination of true statements. And because plaintiff cannot invite the Court to intrude on questions of religious law in the context of an IIED claim any more than in the context of a defamation claim, plaintiff cannot base an IIED claim on the theory that the seiruv erred in treating plaintiff's conduct as improper or that the informational document misstates the implications of the seiruv under Jewish law….

Brandon David Okano (Leeds Brown Law) and Rick Ostrove represent defendants.