Williams v. Kelsey

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CHRISTINA WILLIAMS,
REPORT AND
RECOMMENDATION
25-CV-1968 (LDH) (TAM)
Plaintiff,
-against-
SHIRROD K. KELSEY,
Defendant.
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TARYN A. MERKL, United States Magistrate Judge:
Christina Williams (“Plaintiff”) initiated this action against Shirrod K. Kelsey
(“Defendant”) on April 9, 2025. See Compl., ECF 1. Plaintiff brings numerous claims
against Defendant, including a violation of the Computer Fraud and Abuse Act
(“CFAA”), 18 U.S.C. § 1030. Additionally, Plaintiff alleges tort claims for defamation
(libel and slander); public disclosure of private facts; invasion of privacy; conversion;
intentional infliction of emotional distress (“IIED”); and tortious interference with
employment.
Currently pending before the Court is Plaintiff’s motion for default judgment
against Defendant, which the Honorable LaShann DeArcy Hall referred to the
undersigned Magistrate Judge for a report and recommendation. See Clerk’s Entry of
Default, ECF 8; Pl.’s Mot. for Default J. (“Mot.”), ECF 9; June 10, 2025 ECF Order
Referring Mot. For the reasons set forth below, the Court respectfully recommends
denying Plaintiff’s default motion and giving Plaintiff leave to amend her complaint.
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FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. 	Factual Background1
Plaintiff Christina Williams is an employee of Delta Airlines. Compl., ECF 1, ¶ 4.
She also operates a notary business. Id. ¶ 5. Plaintiff was in a relationship with
Defendant Shirrod K. Kelsey. Id. ¶ 7. During the relationship, Plaintiff alleges that
“Defendant gained access to Plaintiff’s personal iPad and Delta Airlines work account.”
Id. ¶ 8. After obtaining this access, Defendant, “[w]ithout Plaintiff’s knowledge or
authorization,” accessed her Delta account and sent “updated login credentials to
himself.” Id. ¶ 9. Moreover, Plaintiff entrusted Defendant with her notary stamp;
Defendant did not return the stamp, and she “was forced to report the stamp stolen due
to concerns that he may use it unlawfully.” Id. ¶ 10. Due to the alleged theft of the
notary stamp, Plaintiff’s notary business suffered — she has lost both clients and
income. Id. ¶ 11.
Additionally, Plaintiff asserts that Defendant has “engaged in a campaign of
harassment against Plaintiff,” including: (1) “[p]ublishing private text messages out of
context”; (2) “[a]ppearing in video interviews to distort Plaintiff’s character and make
defamatory claims”; (3) “[e]ncouraging others to call Plaintiff’s workplace and leave
malicious messages on Delta’s employee tip line”; and (4) “[a]ttempting to damage her
professional reputation.” Id. ¶ 12. Plaintiff further represents that “Defendant’s conduct
has extended into deeply personal territory, including efforts to destabilize Plaintiff’s
1 The Court recites the facts as alleged in the complaint. See, e.g., Mikhlin v. Oasmia Pharm.
AB, No. 19-CV-4349 (NGG) (RER), 2021 WL 1259559, at *1 (E.D.N.Y. Jan. 6, 2021).
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emotional wellbeing during an ongoing IVF treatment cycle.” Id. ¶ 13. Plaintiff avers
that the stress and psychological trauma of Defendant’s actions not only may jeopardize
her IVF treatment but have also taken a toll on her emotional and mental health and
caused reputational harm, including “scrutiny at her workplace” and disruption of her
notary business. Id. ¶¶ 14–15. Plaintiff asserts she has “retained legal counsel and PR
advisors to manage the fallout and protect her interests.” Id. ¶ 16.
II. Procedural History
As noted above, Plaintiff filed her complaint, pro se, on April 9, 2025. See generally
id. On that same day, summons was issued to Defendant Kelsey. See Summons Issued,
ECF 4. On May 7, 2025, summons to Defendant was returned executed, indicating that
Defendant was served on April 12, 2025, rendering his answer due by May 5, 2025. See
Proof of Service, ECF 6.
Defendant did not answer the complaint. See generally Docket. On May 9, 2025,
Plaintiff submitted her request for a certificate of default against Defendant, which was
entered by the Clerk of Court on May 13, 2025. See Req. for Certificate of Default, ECF 7;
May 13, 2025 Clerk’s Entry of Default. On May 22, 2025, Plaintiff filed her motion for
default judgment, which Judge DeArcy Hall referred to the undersigned Magistrate
Judge on June 10, 2025. Mot., ECF 9; June 10, 2025 ECF Order Referring Mot.
On August 18, 2025, the undersigned scheduled a default motion hearing for
September 18, 2025, noted that Defendant Kelsey could participate in the conference,
and directed the Clerk of Court to send a copy of the notice and scheduling order to
Defendant. See Aug. 18, 2025 ECF Scheduling Order; Notice to Def., ECF 10. The Court
also noted that the filings on the docket did not indicate that Defendant was served the
Clerk’s Certificate of Default, as required by E.D.N.Y. Local Civil Rule 55.2(a)(3). See
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Aug. 18, 2025 ECF Scheduling Order. Accordingly, the Court directed Plaintiff to
demonstrate compliance with the rule. Id. The Court further directed Plaintiff to file an
affidavit or declaration pursuant to E.D.N.Y. Local Rule 55.2(a)(1)(B), indicating her
compliance with both “(1) Local Civil Rule 55.2(a)(1)(C), which requires that Plaintiff
file an affidavit or declaration showing that ‘the party against whom judgment is
sought it not known to be a minor or incompetent person,’ and (2) the Servicemembers’
Civil Relief Act (‘SCRA’).’” Id. (quoting Lopez v. Metro & Graham LLC, No. 22-CV-0332
(CBA) (RER), 2022 WL 18809176, at *5 (E.D.N.Y. Dec. 16, 2022), report and
recommendation adopted, 2023 WL 2140418 (E.D.N.Y. Feb. 21, 2023)). On September 8,
2025, Plaintiff filed a declaration with the requested information. See Williams Decl.,
ECF 11.
At the default motion hearing on September 18, 2025, Defendant appeared pro se,
along with Plaintiff. See Sept. 18, 2025 ECF Min. Entry & Order. Plaintiff expressed her
intent to move forward with the default motion, and Defendant expressed an interest in
defending the case. See id. The Court directed Defendant Kelsey to either have counsel
enter their appearance on his behalf, or to send a letter to the E.D.N.Y. Pro Se Office
indicating his intent to proceed pro se by October 10, 2025. See id. On September 24, 2025,
Defendant provided a letter to the E.D.N.Y. Pro Se Office, informing the Court of his
intention to proceed pro se. See Def.’s Letter, ECF 13. The Court then directed Defendant
to file a response to Plaintiff’s motion for a default judgment by October 24, 2025, and
notified Plaintiff that she may file a reply by November 7, 2025. See Oct. 3, 2025 ECF
Scheduling Order. The Court also set a status conference for November 17, 2025. See id.
On October 20, 2025, Defendant’s response to Plaintiff’s default motion was filed.
See Def.’s Resp., ECF 14. In the response, Defendant asserted he is “a 100% disabled
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United States military veteran who suffers from a seizure disorder that affects my
memory and cognitive function.” Id. at ECF p. 1. He maintained that on the morning he
received the summons in this matter, he “experienced a seizure episode that resulted in
confusion and memory loss,” leaving him “disoriented and unable to fully comprehend
the nature of the legal documents” he had received for several days. Id. He went on to
assert that with the help of his personal aide, he was able to review and understand the
summons and was “under stable medical care.” Id. at ECF p. 2. He maintained that he is
taking seizure medication and is “capable of proceeding with this case responsibly,”
requesting that the Court deny Plaintiff’s motion for default judgment, and allowing
him the opportunity to file an answer in response to the complaint to defend the case on
the merits. Id.
Plaintiff then filed her reply. See Pl.’s Reply, ECF 15. Plaintiff argued, inter alia,
that Defendant’s letter offered “only a personal explanation for missing deadlines and a
request for leniency” but did not “not cite a single rule, standard, or authority
addressing the default criteria . . . nor does it rebut the sufficiency of Plaintiff[’]s”
claims. Id. at ECF p. 2. Plaintiff asserted that, therefore, Defendant did not “establish
‘good cause’ to set aside default.” Id.
At the status conference on November 17, 2025, both Plaintiff and Defendant
appeared pro se. See Nov. 17, 2025 ECF Min. Entry & Order. Defendant expressed his
desire to provide additional information regarding his medical records in support of his
response to Plaintiff’s default motion. Id. The Court directed Defendant to file a
supplemental response to Plaintiff’s motion for default judgment by December 1, 2025,
including any documentation he seeks to submit regarding his medical visits and
treatment in the months following the filing of the complaint, or any evidence he wishes
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the Court to consider pertaining to his failure to appear in this case after being
personally served. Id. The Court further noted that following receipt of this
supplemental filing, the Court would take the motion for default under advisement. Id.
Defendant did not file the supplemental response by the designated deadline. See
generally Docket. For the reasons set forth below, the Court respectfully recommends
that the motion for default judgment be denied, and that Plaintiff be given leave to
amend her complaint.
DISCUSSION
I. 	Default Standard
Federal Rule of Civil Procedure 55 provides a “two-step process” for obtaining a
default judgment. Priestley v. Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011). The
plaintiff must first obtain an entry of default when a defendant “has failed to plead or
otherwise defend” in an action. Fed. R. Civ. P. 55(a). Second, after the certificate of
default is entered, and on the plaintiff’s application, the district court may then enter a
default judgment. Fed. R. Civ. P. 55(a)–(b); see also E.D.N.Y. Loc. Civ. R. 55.2(b). A
“plaintiff is not entitled to a default judgment as a matter of right simply because a
party is in default.” Finkel v. Universal Elec. Corp. (“Universal Elec.”), 970 F. Supp. 2d 108,
118 (E.D.N.Y. 2013). Rather, the decision to grant a motion for default judgment is “left
to the sound discretion of [the] district court because it is in the best position to assess
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the individual circumstances of a given case and to evaluate the credibility and good
faith of the parties.”2 Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993).
The district court must also determine whether the plaintiff’s “allegations
establish [the defendant’s] liability as a matter of law.” Finkel v. Romanowicz, 577 F.3d 79,
84 (2d Cir. 2009). In making this determination, the “court is required to accept all of
the . . . factual allegations as true and draw all reasonable inferences in [the plaintiff’s]
favor.” Id. It is “the plaintiff’s burden to demonstrate that those uncontroverted
allegations, without more, establish the defendant’s liability on each asserted cause of
action.” Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d 76, 83 (E.D.N.Y. 2012).
Moreover, while a default constitutes an admission of liability as to well-pleaded
allegations, a default is “not considered an admission of damages.” Greyhound
Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). “The district
court must instead conduct an inquiry in order to ascertain the amount of damages with
reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d
Cir. 1999). Here, too, the “[p]laintiff bears the burden of presenting proof of damages,
which may take the form of documentary evidence or detailed affidavits.” J & J Sports
Prods., Inc. v. Ahuachapan Corp., 422 F. Supp. 3d 652, 663 (E.D.N.Y. 2019) (citing CIT Bank,
2 A plaintiff must also establish compliance with the procedural requirements of
E.D.N.Y. Local Civil Rules 7.1, 55.1, and 55.2. Having carefully reviewed the filings in this case,
the Court finds that Plaintiff’s motion papers comport with these rules. First, Plaintiff requested
a certificate of default in accordance with Local Rule 55.1(a)(1), which was served on Defendant
via mail and email. See Req. for Certificate of Default, ECF 7; Williams Decl., ECF 11. Second,
Plaintiff has demonstrated that Defendant has failed to defend the action and that the pleadings
were properly served. See Proof of Service, ECF 6 (establishing personal service on Defendant);
Williams Decl., ECF 11, ¶¶ 2, 3 (stating that Defendant is not a minor, incompetent, or engaged
in active military service). Third, Plaintiff has certified the mailing of all of the default motion
papers to Defendant’s last known address, in accordance with Local Rule 55.2(a)(3). See
Certificate of Service, ECF 9-4; Aff. of Service, ECF 12.
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N.A. v. Dambra, No. 14-CV-3951 (SLT) (VMS), 2015 WL 7422348, at *5 (E.D.N.Y. Sept. 25,
2015); Action S.A. v. Marc Rich & Co., Inc., 951 F.2d 504, 508 (2d Cir. 1991)); see also
Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d Cir. 1993) (explaining that courts can
assess damages based on “‘detailed affidavits and documentary evidence’” (quoting
Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)). In the default
posture, the moving party is “entitled to all reasonable inferences from the evidence
offered.” Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981).
Additionally, “[i]t is well established that a court is ordinarily obligated to afford
a special solicitude to pro se litigants.” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010).
Pro se complaints, in particular, “‘must be held to less stringent standards than formal
pleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle
v. Gamble, 429 U.S. 97, 106 (1976) (internal quotation marks omitted)). The Court is
therefore required to interpret the submissions of a pro se litigant “to raise the strongest
arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d
Cir. 2006) (quotation marks omitted). Nevertheless, the “special solicitude in pro se
cases . . . has its limits.” Liverpool v. City of New York, No. 19-CV-5527 (JGK), 2020 WL
5995028, at *1 (S.D.N.Y. Oct. 9, 2020) (citation and quotation marks omitted).
Importantly, a pro se litigant is not exempt “from compliance with relevant rules of
procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)
(quotation marks omitted). To state a claim that complies with Rule 8 of the Federal
Rule of Civil Procedure, pro se pleadings must “make a short and plain statement
showing that the pleader is entitled to relief.” Liverpool, 2020 WL 5995028, at *1; see Fed.
R. Civ. P. 8(a).
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II. Default Analysis
A. Entry of Default
In determining whether a defendant’s conduct warrants entry of a default
judgment, courts apply the same factors applicable to a motion to set aside entry of a
default. See Enron Oil, 10 F.3d at 96 (noting that “the factors examined in deciding
whether to set aside a default or a default judgment are the same”). These factors
include “1) whether the defendant’s default was willful; 2) whether [the] defendant has
a meritorious defense to [the] plaintiff’s claims; and 3) the level of prejudice the non-
defaulting party would suffer as a result of the denial of the motion for default
judgment.” Mason Tenders Dist. Council v. Duce Constr. Corp. (“Duce Constr. Corp.”), No.
02-CV-9044 (LTS) (GWG), 2003 WL 1960584, at *2 (S.D.N.Y. Apr. 25, 2003); see also Enron
Oil, 10 F.3d at 96. “Other relevant equitable factors may also be considered, for instance,
whether the failure to follow a rule of procedure was a mistake made in good faith and
whether the entry of default would bring about a harsh or unfair result.” Enron Oil, 10
F.3d at 96. In this case, the Court concludes that entry of a default is appropriate.
1. 	Willfulness
In the context of default, willfulness “refer[s] to conduct that is more than merely
negligent or careless.” SEC v. McNulty, 137 F.3d 732, 738 (2d Cir. 1998). That said, a
defendant’s “failure to respond to a complaint evinces willful default.” Antoine v.
Brooklyn Maids 26, Inc., 489 F. Supp. 3d 68, 80 (E.D.N.Y. 2020) (citing McNulty, 137 F.3d
at 738–39). Willfulness may also be presumed where, in addition to being properly
served with the complaint, the defendant is notified of court proceedings and yet fails
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to respond. See, e.g., United States v. DiPaolo, 466 F. Supp. 2d 476, 482 (S.D.N.Y. 2006);
Antoine, 489 F. Supp. 3d at 81.
Defendant’s failure to substantively respond to this action supports a finding of
willfulness. The Court notes that Plaintiff adequately served Defendant by delivering
the summons and complaint directly on Defendant, as permitted by Florida law.3 See
Fed. R. Civ. P. 4(e)(1) (establishing that an individual may be served by “following state
law for serving a summons in an action brought in courts of general jurisdiction in the
state . . . where service is made”); Fla. Stat. Ann. § 48.031(1)(a) (“Service of original
process is made by delivering a copy of it to the person to be served with a copy of the
complaint, petition, or other initial pleading or paper[.]”); Proof of Service, ECF 6; see
also Fed. R. Civ. P. 4(c)(1), (2); Req. for Certificate of Default, ECF 7, at ECF p. 1; Clerk’s
Entry of Default, ECF 8; cf. Am. Dev. Group, LLC v. Island Robots of Fla., No. 17-CV-3223
(NGG) (PK), 2019 WL 5790265, at *5 (E.D.N.Y. Oct. 4, 2019) (describing service of
Florida defendants), report and recommendation adopted, 2019 WL 5788319 (E.D.N.Y. Nov.
6, 2019). Defendant failed to respond within 21 days of service. See Proof of Service, ECF
6. Defendant himself has acknowledged his “delay in responding to the complaint in a
timely manner.” Def.’s Resp., ECF 14, at ECF p. 1.
Although Defendant briefly appeared pro se following notice of the default
motion, he never formally responded to the complaint, and ceased appearing before
this Court altogether after the Court’s November 17, 2025 status conference. Compare
Sept. 18, 2025 ECF Min. Entry & Order; Def.’s Letter, ECF 13; Def.’s Resp., ECF 14; Nov.
3 The complaint alleges that “Defendant Shirrod K. Kelsey is a resident of the State of
Florida.” Compl., ECF 1, ¶ 6. Defendant also provided the Court with a Florida address during
his brief appearance in the matter. See Def.’s Letter, ECF 13.
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17, 2025 ECF Min. Entry & Order, with Pl.’s Notice, ECF 16; see also Chudomel v. Dynamic
Recovery Servs., Inc., No. 12-CV-5365 (NGG) (RLM), 2013 WL 5970613, at *4 (E.D.N.Y.
Nov. 8, 2013) (finding that the defendant’s default was willful when the defendant
“abandon[ed] its short-lived defense of this action”). Defendant also failed to provide a
supplemental response to Plaintiff’s default motion by the date this Court set. See Nov.
17, 2025 ECF Min. Entry & Order; Pl.’s Notice, ECF 16.
In light of Defendant’s failure to respond as directed by the Court, despite being
provided more than sufficient notice of this proceeding, the Court weighs this factor in
favor of default.
2. 	Meritorious Defense
“To satisfy the criterion of a ‘meritorious defense,’ the defense need not be
ultimately persuasive at this stage.” Am. All. Ins. v. Eagle Ins. Co., 92 F.3d 57, 61 (2d Cir.
1996). Rather, “‘[a] defense is meritorious if it is good at law so as to give the factfinder
some determination to make.’” Id. (quoting Anilina Fabrique de Colorants v. Aakash Chems.
& Dyestuffs, Inc., 856 F.2d 873, 879 (7th Cir. 1988)). Here, although Defendant appeared
briefly and signaled his intent to defend the litigation, Defendant has entirely failed to
respond to the complaint. See generally Docket. In such instances, courts are usually
“unable to make a determination [of] whether the defendant has a meritorious
defense.” Joseph v. HDMJ Rest., Inc., 970 F. Supp. 2d 131, 143 (E.D.N.Y. 2013). However,
as discussed below, the Court’s has concerns regarding subject matter jurisdiction,
personal jurisdiction, and the lack of details provided in the complaint. Accordingly, in
light of the Court’s reservations, the Court finds that even though Defendant has not
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responded to the complaint, this factor weighs only slightly in favor of entry of a
default.
3. 	Prejudice
“The final factor the Court must consider is whether the non-defaulting parties
would be prejudiced if the motion for default were to be denied.” Id. at 148. Denying a
motion for default is prejudicial to the plaintiff where “‘there are no additional steps
available to secure relief.’” Id. (quoting Bridge Oil Ltd. v. Emerald Reefer Lines, LLC, No.
06-CV-14226 (RLC) (RLE), 2008 WL 5560868, at *2 (S.D.N.Y. Oct. 27, 2008)).
In light of Defendant’s failure to substantively respond to both Plaintiff’s and the
Court’s notices, “there is no indication that requiring Plaintiff[] to take further steps . . .
would be effective in eliciting a response from Defendant[].” Duce Constr. Corp., 2003
WL 1960584, at *3. The Court therefore finds that Plaintiff would be unfairly prejudiced
by denial of an entry of default.
Accordingly, all three factors weigh in favor of entering a default.
III. Liability
Even though a balancing of the above factors tips somewhat in favor of an entry
of default, Plaintiff has not adequately alleged Defendant’s liability in this matter as to
the majority of her claims. The complaint alleged seven causes of action. See Compl.,
ECF 1, ¶¶ 17–36. These claims include: (1) defamation (libel and slander); (2) public
disclosure of private facts; (3) invasion of privacy; (4) violation of the CFAA;
(5) conversion; (6) IIED; and (7) tortious interference with employment. See id. As
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discussed below, this Court respectfully recommends finding that Plaintiff has not
adequately pled her claims, but should be granted leave to amend.4
A. CFAA
The Court addresses the CFAA claim first, as it forms the basis for Plaintiff’s
invocation of federal question jurisdiction. The CFAA is “aimed at preventing the
typical consequences of hacking.” Van Buren v. United States, 593 U.S. 374, 392 (2021)
(quotation marks omitted). Under the CFAA, an individual who “intentionally accesses
a protected computer without authorization” or “exceeds authorized access” and
4 The Court also notes general concerns with Plaintiff’s claims as pled in the complaint.
For one, the complaint fails to allege any dates in connection with Defendant’s alleged actions
or Plaintiff’s alleged harms. Accordingly, the Court is unable to consider whether the statute of
limitations has run as to any of Plaintiff’s claims. See generally Compl., ECF 1. The Court notes,
for example, that 18 U.S.C. § 1030(g) expressly disallows any action under that subsection
“unless such action is begun within 2 years of the date of the act complained of or the date of
the discovery of the damage.” 18 U.S.C. § 1030(g). This prohibition on bringing suit after two
years raises questions, including whether Defendant may have a meritorious defense to the
CFAA claim, considering the lack of any dates provided in the complaint related to Plaintiff’s
alleged harms under this statute. See id.; see generally Compl., ECF 1; cf. Sewell v. Bernardin, 795
F.3d 337, 340 (2d Cir. 2015) (finding that the CFAA’s two-year statute of limitations began to run
from the time of the plaintiff’s discovery of the alleged violation).
Additionally, the Court notes that the complaint fails to state with any particularity the
content of the allegedly harmful statements made by Defendant that undergird the majority of
her claims. See Compl., ECF 1, ¶¶ 12, 13, 18, 21, 35. As discussed in more depth below, without
additional context, the majority of Plaintiff’s claims do not provide sufficient facts to state a
claim for relief and are not adequately pled. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Moreover, the complaint makes a conclusory statement that “[v]enue is proper in this
district under 28 U.S.C. § 1391(b) as a substantial part of the events giving rise to the claims
occurred in this district.” Compl., ECF 1, ¶ 3; see 28 U.S.C. § 1391(b)(2) (“A civil action may be
brought in . . . a judicial district in which a substantial part of the events or omissions giving rise
to the claim occurred, or a substantial part of property that is the subject of the action is
situated[.]”). However, none of Plaintiff’s factual allegations indicate the location where
Defendant’s alleged actions took place. See generally Compl., ECF 1. Accordingly, the Court is
unable to evaluate whether venue is proper in this District or whether venue would be more
appropriate in “a judicial district in which [the] defendant resides.” 28 U.S.C. § 1391(b)(1). The
lack of non-conclusory allegations regarding venue are particularly problematic as to the
defamation claim, as discussed below in Section B(1).
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thereafter carries out a prohibited action set forth in the statute may be subject to
criminal liability. See 18 U.S.C. § 1030(a)(1)–(7), (c). Although the CFAA is
“predominantly a criminal statute,” it “also permits an individual who suffers damage
or loss as defined in the statute to bring a civil action for damages or injunctive relief
against the violator.” Koziar v. Blammo, Ltd., 759 F. Supp. 3d 543, 550 (S.D.N.Y. 2024)
(citing 18 U.S.C. § 1030(g)).
Under the CFAA, a civil action may be brought only if certain conditions are met.
As relevant here, a civil plaintiff may bring a CFAA claim if the violation of the
“protected computer” “caused” a “loss to 1 or more persons during any 1-year
period . . . aggregating at least $5,000 in value.” 18 U.S.C. § 1030(g), (c)(4)(A)(i)(1)5; see
BMaddox Enters., LLC v. Milad Oskouie, Osko M Ltd., No. 17-CV-1889 (RA), 2021 WL
3675072, at *11 (S.D.N.Y. Aug. 18, 2021). The CFAA defines “protected computer” as a
computer “used in or affecting interstate or foreign commerce or communication.” 18
U.S.C. § 1030(e)(2)(B). “Courts have found that computers used to conduct business
across state lines qualify as ‘protected.’” LawClick LLC v. Reagan, No. 20-CV-1369 (JS)
(SIL), 2021 WL 724920, at *3 (E.D.N.Y. Jan. 26, 2021), report and recommendation adopted,
2021 WL 722413 (E.D.N.Y. Feb. 24, 2021).
5 The Court notes that while Plaintiff does not specifically state any particular subsection
of § 1030 as the basis of her CFAA claim, based upon the allegations in the complaint, only
§ 1030(c)(4)(A)(i)(I) appears to apply “because Plaintiff makes no allegations concerning:
medical diagnosis, examination, treatment, or care; physical injury; a threat to public health or
safety; or damage affecting a computer used by or for an entity of the United States
Government in furtherance of the administration of justice, national defense, or national
security.” JM Huntington Motors, LLC v. Kavalerchik, No. 20-CV-1282 (JS) (ST), 2021 WL 982746,
at *3 n.1 (E.D.N.Y. Feb. 19, 2021) (citing 18 U.S.C. § 1030(c)(4)(A)(i)(II)–(V)), report and
recommendation adopted, 2021 WL 980551 (E.D.N.Y. Mar. 16, 2021).
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Here, as a threshold matter, Plaintiff has not alleged any facts from which to infer
that her personal iPad is a “protected computer” as defined by the statute that is “used
in or affecting interstate or foreign commerce or communication.” Id. (quotation marks
omitted). Rather, the complaint simply asserts that “Defendant gained access to
Plaintiff’s personal iPad and Delta Airlines work account” and sent “updated login
credentials to himself.” Compl., ECF 1, ¶¶ 8, 9. Plaintiff does not specify that the
computer was used in or affecting interstate or foreign commerce or communication; it
is also not specified in the complaint how the Defendant is alleged to have sent himself
the updated login information such that Plaintiff has alleged non-conclusory facts to
establish that the computer was used for interstate communication. The Court is of
course cognizant that “‘[e]ffectively all computers with Internet access’ are used in or
affecting interstate or foreign commerce or communication.” Microsoft Corp. v. Does 1-2,
No. 20-CV-1217 (LDH) (RER), 2021 WL 4755518, at *7 (E.D.N.Y. May 28, 2021) (quoting
United States v. Valle, 807 F.3d 508, 528 (2d Cir. 2015) (internal quotation marks
omitted)), report and recommendation adopted, 2021 WL 4260665 (E.D.N.Y. Sept. 20, 2021).
But that recognition does not excuse a plaintiff alleging a claim under the CFAA from
stating particularized, non-conclusory facts to illustrate their claim. See Fed. R. Civ. P. 8.
Even accepting that Plaintiff’s computer qualifies as a protected computer,
Plaintiff has not pleaded the requisite losses. Plaintiff has not alleged facts to show that
she has suffered a loss caused by the unauthorized use “during any 1-year period . . .
aggregating at least $5,000 in value.” 18 U.S.C. §§ 1030(g), 1030(c)(4)(A)(i)(I). As the
Court observed in footnote 4, supra, the complaint contains no dates. See generally
Compl., ECF 1. Therefore, the Court is unable to determine whether Plaintiff suffered
losses “during any 1-year period.” 18 U.S.C. § 1030(c)(4)(A)(i)(I). Moreover, the
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complaint does not identify specific monetary losses caused by the alleged computer
access, while the statute is explicitly limited to economic damages. Id. § 1030(g); see
generally Compl., ECF 1; cf. Pl.’s Notice, ECF 16, at ECF pp. 5–6 (alleging various losses,
without providing a time period or specifying what losses are attributable to
Defendant’s unauthorized access to Plaintiff’s computer or how such access caused
economic damages). Accordingly, the Court respectfully recommends dismissal of
Plaintiff’s CFAA claim.
B. Defamation (Libel and Slander)
1. 	Personal Jurisdiction
As a threshold matter, the Court has concerns regarding personal jurisdiction
over Defendant Kelsey for the purposes of Plaintiff’s defamation claim. “[B]efore a
court grants a motion for default judgment, it may first assure itself that it has personal
jurisdiction over the defendant[.]” Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp.,
619 F.3d 207, 213 (2d Cir. 2010).6 The Court notes that in claiming personal jurisdiction
over Defendant, Plaintiff simply states that “Defendant Shirrod K. Kelsey is a resident
of the State of Florida, and is subject to personal jurisdiction in this District by virtue of
his intentional acts directed toward Plaintiff in New York.” Compl., ECF 1, ¶ 6. These
intentional acts include a number of allegedly defamatory statements, see Compl., ECF
6 The Court further notes that “[a] default judgment is void if it is rendered by a court
that lacks jurisdiction over the parties.” City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d
114, 138 (2d Cir. 2011) (quotation marks omitted). Accordingly, personal jurisdiction “should be
examined on a motion for a default judgment when a plaintiff’s submissions clearly show an
absence of personal jurisdiction or even when they show that sustaining personal jurisdiction is
highly unlikely.” Kaplan v. Hezbollah, No. 19-CV-3187 (BMC), 2022 WL 2207263, at *2 (E.D.N.Y.
June 21, 2022). Here, Plaintiff’s papers raise questions regarding this Court’s jurisdiction over
Defendant Kelsey.
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1, ¶ 12, which form the basis of Plaintiff’s defamation claim, her public disclosure of
private facts claim, her tortious interference with employment claim, and, arguably, her
IIED claim, see id. ¶¶ 17–19, 20–22, 31–33, 34–36.
However, “[i]n light of the First Amendment interests implicated by claims —
however styled — that sound in defamation or libel, such claims are subject to a higher
jurisdictional bar in New York.” Giannetta v. Johnson, No. 20-CV-9016 (PAE), 2021 WL
2593305, at *7 (S.D.N.Y. June 24, 2021) (citing N.Y. C.P.L.R. § 302(a)(2)–(3) (expressly
excluding “cause[s] of action for defamation of character arising from the act” as claims
over which New York courts have personal jurisdiction over non-domiciliaries)); see id.
at *9 (“[I]t is well-established that Plaintiffs cannot evade [the bar to defamation claims]
by recasting their defamation claims as other torts.” (quotation marks omitted))
(collecting cases). “‘Defamation claims are accorded separate treatment to reflect the
state’s policy of preventing disproportionate restrictions on freedom of expression.’” Id.
(quoting SPCA of Upstate N.Y., Inc. v. Am. Working Collie Ass’n, 18 N.Y.3d 400, 404
(2012)). In considering personal jurisdiction, the Court looks to New York’s long-arm
statute, N.Y. C.P.L.R. § 302(a); see also Fed. R. Civ. P. 4(k)(1)(A) (personal jurisdiction is
limited to those who are “subject to the jurisdiction of a court of general jurisdiction in
the state where the district court is located”). Specifically, Section 302(a) of the New
York C.P.L.R. states:
(a) Acts which are the basis of jurisdiction. As to a cause of action arising
from any of the acts enumerated in this section, a court may exercise
personal jurisdiction over any non-domiciliary, or his executor or
administrator, who in person or through an agent:
1. transacts any business within the state or contracts anywhere to
supply goods or services in the state; or
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2. commits a tortious act within the state, except as to a cause of
action for defamation of character arising from the act; or
3. commits a tortious act without the state causing injury to person
or property within the state, except as to a cause of action for
defamation of character arising from the act, if he
(i) regularly does or solicits business, or engages in any other
persistent course of conduct, or derives substantial revenue
from goods used or consumed or services rendered, in the
state, or
(ii) expects or should reasonably expect the act to have
consequences in the state and derives substantial revenue
from interstate or international commerce; or
4. owns, uses or possesses any real property situated within the
state.
N.Y. C.P.L.R. § 302(a).
“Under New York law, when a person utters a defamatory statement without the
state that causes injury to the plaintiff within the state,” then “jurisdiction may be
acquired under section 302(a)(1), even though section 302(a)(3) — which explicitly
concerns jurisdiction as to out-of-state tortious acts that cause in-state injury — excludes
defamation cases from its scope.” Best Van Lines, Inc. v. Walker, 490 F.3d 239, 245–46 (2d
Cir. 2007). “To establish personal jurisdiction under CPLR § 302(a)(1), two requirements
must be met: (1) the defendant must have transacted business within the state; and
(2) there must be ‘some articulable nexus between the business transacted and the cause
of action sued upon.’” Giannetta, 2021 WL 2593305, at *8 (quoting McGowan v. Smith, 52
N.Y.2d 268, 272 (1981)). For defamation cases, the “single act of uttering a defamation,
no matter how loudly, is not a transaction of business that may provide the foundation
for personal jurisdiction.” Best Van Lines, 490 F.3d at 248 (quotation marks and
alteration omitted). Moreover, “‘New York case law establishes that making defamatory
statements outside of New York about New York residents does not, without more,
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provide a basis for jurisdiction, even when those statements are published in media
accessible to New York readers,’ such as a website.” Giannetta, 2021 WL 2593305, at *9
(quoting Best Van Lines, 490 F.3d at 253). “Nor is posting an allegedly defamatory
comment on an interactive website sufficient.” Id. (citing Best Van Lines, 490 F.3d at 254).
Here, Plaintiff has not pled sufficient facts from which to determine whether the
requisite standard has been met. See Compl., ECF 1, ¶ 12 (generally stating that
Defendant has “engaged in a campaign of harassment against Plaintiff,” including by
publishing text messages and appearing in videos, without specifying where these
statements were made, what the content of these statements were, or who accessed
these statements).
2. 	Analysis of Liability
“‘Defamation, consisting of the twin torts of libel and slander, is the invasion of
the interest in a reputation and good name.’” Albert v. Loksen, 239 F.3d 256, 265 (2d Cir.
2001) (quoting Hogan v. Herald Co., 446 N.Y.S.2d 836, 839 (App. Div. 4th Dep’t), aff’d on
op. below, 58 N.Y.2d 630 (1982)); see YCF Trading Inc. v. Skullcandy, Inc., 781 F. Supp. 3d
56, 75 (E.D.N.Y. 2025). In general, defamatory words that are spoken are considered
slander while defamatory words that are written are considered libel. Albert, 239 F.3d at
265. “‘Under New York law[,] a defamation plaintiff must establish five elements:
(1) a . . . defamatory statement of and concerning the plaintiff, (2) publication to a third
party, (3) fault, (4) falsity of the defamatory statement, and (5) special damages or per se
actionability.’” Carroll v. Trump, 124 F.4th 140, 159 n.9 (2d Cir. 2024) (quoting Palin v.
N.Y. Times Co., 940 F.3d 804, 809 (2d Cir. 2019)); see also Cicel (Beijing) Sci. & Tech. Co. v.
Misonix, Inc., No. 22-1834-cv, 2024 WL 959619, at *4 (2d Cir. Mar. 6, 2024) (summary
order); Celle v. Filipino Rep. Enters. Inc., 209 F.3d 163, 176 (2d Cir. 2000).
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New York courts have defined a defamatory statement as one that “‘tends to
expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil
opinion of [them] in the minds of right-thinking persons, and . . . deprive[s] [them] of
their friendly intercourse in society.’” Elias v. Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir.
2017) (quoting Stepanov v. Dow Jones & Co., 987 N.Y.S.2d 37, 41 (App. Div. 1st Dep’t
2014) (internal quotation marks omitted)); see also Celle, 209 F.3d at 177. Importantly, the
defamatory statement at issue must express an assertion of fact rather than one of
opinion. “Under New York law, pure opinion . . . is not actionable because expressions
of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how
offensive, cannot be the subject of an action for defamation.” Ratajack v. Brewster Fire
Dep’t, Inc. of the Brewster-Se. Joint Fire Dist., 178 F. Supp. 3d 118, 158 (S.D.N.Y. 2016)
(cleaned up). “Distinguishing between fact and opinion is a question of law for the
courts, to be decided based on what the average person hearing or reading the
communication would take it to mean.” Davis v. Boeheim, 24 N.Y.3d 262, 269 (2014)
(quotation marks omitted). When asserting a defamation claim, the clock begins to run
for the purposes of the statute of limitations from the date that the alleged statement
was made or published.7 See Karam v. First Am. Bank of N.Y., 593 N.Y.S.2d 640, 642 (App.
Div. 4th Dep’t 1993); Nussenzweig v. diCorcia, 9 N.Y.3d 184, 188 (2007); see also N.Y.
C.P.L.R. § 215(3) (one year statute of limitations for defamation).
Additionally, “the mode of pleading defamation is governed by [Federal Rule of
Civil Procedure 8].” Kelly v. Schmidberger, 806 F.2d 44, 46 (2d Cir. 1986). Pursuant to the
7 As discussed in footnote 4, supra, the Court has questions regarding evaluating the
statute of limitations for Plaintiff’s claims and whether Defendant, in this default context, may
have a meritorious defense to untimely claims. See Enron Oil, 96 F.3d at 96.
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liberal notice pleading standard set forth in Rule 8(a)(2), a complaint must include “‘a
short and plain statement of the claim showing that the pleader is entitled to relief.’”
Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 (2002) (quoting Rule 8(a)(2)). Such a
statement is one that “give[s] the defendant fair notice of what the plaintiff’s claim is
and the grounds upon which it rests.” Id. at 507. In the context of defamation claims, the
“central concern” at the pleadings stage “is that the complaint ‘afford [the] defendant
sufficient notice of the communications complained of to enable him to defend
himself.’” Linell v. N.Y.C. Dep’t of Educ., No. 15-CV-5085 (CBA) (MDG), 2017 WL 880853,
at *2 (E.D.N.Y. Mar. 3, 2017) (quoting Kelly, 806 F.2d at 46). “Although New York law
requires defamation claims to be pleaded with particularity, that rule is procedural in
nature, and thus does not apply to defamation claims brought in federal court.”
Sebastiani v. Brooklyn Hosp. Ctr., No. 19-CV-0253 (PKC) (ST), 2019 WL 3281010, at *4
(E.D.N.Y. July 19, 2019). Rather, “a complaint alleging defamation is sufficient if it
adequately identifies the purported communication and provides an indication of who
made the communication, when it was made, and to whom it was communicated.” Id.
(quotation marks omitted) (citing Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 271 (2d
Cir. 1999) (“While plaintiffs are not required to plead defamation in haec verba, [an]
unsupported claim that [the defendant] said ‘something bad’ about [the plaintiff] to a
client fail[s] to afford [the defendant] sufficient notice of the communications
complained of . . . .” (internal quotation marks omitted))).
Here, Plaintiff fails to adequately plead a claim of defamation. In the complaint,
Plaintiff simply asserts that Defendant has “engaged in a campaign of harassment
against Plaintiff,” including “[p]ublishing private text messages out of context;”
“[a]ppearing in video interviews to distort Plaintiff’s character and make defamatory
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claims;” “[e]ncouraging others to call Plaintiff’s workplace and leave malicious
messages on Delta’s employee tip line;” and “[a]ttempting to damage her professional
reputation.” Compl., ECF 1, ¶ 12. While Plaintiff appears to allege both slanderous and
libelous statements, she has not pled any facts concerning the contents of these
statements in her complaint. See generally Compl., ECF 1. Accordingly, Plaintiff has not
pled her defamation claim with sufficient particularity to provide Defendant “sufficient
notice of the communications complained of.” Kelly, 806 F.2d at 46; Sebastiani, 2019 WL
3281010, at *4.
In evaluating whether a defamation claim has been pled “with sufficient
particularity, [federal] courts look to whether [the] complaint references the alleged
defamatory statement, identifies who made the statement, when it was made, the
context in which it was made, whether it was made orally or in writing[,] and whether
it was made to a third party.” Bloom v. Fox News of L.A., 528 F. Supp. 2d 69, 74 (E.D.N.Y.
2007) (quotation marks omitted). Additionally, “‘[t]o satisfy the publication element[,]
[. . . ] [Plaintiff] must identify a third party to whom the defamatory statement was
allegedly published.’” Sebastiani, 2019 WL 3281010, at *5 (quoting Shak v. Krum, No. 18-
CV-1650 (LGS), 2018 WL 5831319, at *4 (S.D.N.Y. Nov. 6, 2018)). Here, the Court finds
that Plaintiff’s defamation claim is not adequately pled as her allegations do not put
Defendant on notice of his alleged defamatory statements. While Plaintiff’s allegations,
taken as true, generally identify Defendant as the speaker of the allegedly defamatory
statements, the complaint does not identify the content of the statements, when the
statements were made, the context in which they were made, or the third party to which
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these statements were made.8 See, e.g., Compl., ECF 1, ¶¶ 12, 19 (“These statements were
published online and in media interviews and caused Plaintiff reputational harm.”); see
also Bloom, 528 F. Supp. 2d at 74; Sebastiani, 2019 WL 3281010, at *5 (“What is crucially
lacking in Plaintiff's complaint, however, is identification of the third party to which the
defamatory statements were made.” (emphasis in original)). Under the relevant
pleading standard, “[t]he mere allegation that defamatory statements were made to
another unidentified [party] is too indeterminate to provide sufficient notice of
Plaintiff’s claim.” Sebastiani, 2019 WL 3281010, at *5. Moreover, the vague nature of
Plaintiff’s pleading regarding her defamation allegations does not permit the Court to
evaluate whether the statements made by Defendant are legally defamatory, rather than
mere statements of opinion. Davis, 24 N.Y.3d at 269. For all these reasons, the Court
respectfully recommends dismissing Plaintiff’s defamation claim.
C. Invasion of Privacy and Public Disclosure of Private Facts
Plaintiff also brings claims for invasion of privacy and public disclosure of
private facts. See Compl., ECF 1, ¶¶ 20–24. With respect to invasion of privacy, “New
York does not have a common law right to privacy.” Cavazzini v. MRS Assocs., 574 F.
Supp. 3d 134, 141 (E.D.N.Y. 2021); see Devitt v. Portfolio Recovery Assocs., LLC, No. 21-CV-
8 The Court observes that Plaintiff does identify Delta as a third party insofar as she
alleges that Defendant “encourage[ed] others to call Plaintiff’s workplace and leave malicious
messages on Delta’s employee tip line.” Compl., ECF 1, ¶ 12. However, as stated above, this
allegation is deficient as it does not identify when the alleged statements were made and further
does not identify who made these statements as Defendant Kelsey is the only named Defendant.
See Bloom v. Fox News of L.A., 528 F. Supp. 2d 69, 74 (E.D.N.Y. 2007). Additionally, while Plaintiff
alleges that Defendant Kelsey “[e]ncourag[ed] others to call Plaintiff’s workplace,” Plaintiff
does not allege particularized facts that anyone actually called. Compl., ECF 1, ¶ 12. In other
words, the complaint does not allege that Delta in fact received any such calls, making them a
third party to whom allegedly defamatory statements were made; nor is it clear who uttered
any such statements to Delta.
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5657 (ARR) (ARL), 2022 WL 1460278, at *6 (E.D.N.Y. May 9, 2022); see also Spitz v. Caine
& Weiner Co., Inc., No. 23-CV-7853 (PKC) (CLP), 2024 WL 69089, at *5 (E.D.N.Y. Jan. 5,
2024). Accordingly, the Court respectfully recommends dismissing Plaintiff’s claim for
invasion of privacy.
Likewise, Plaintiff’s “public disclosure of private fact claim necessarily fails
because New York common law does not recognize privacy torts such as public
disclosure of private fact.” JPMorgan Chase Bank, N.A. v. Nowak (“Nowak”), No. 23-CV-
6834 (JPO), 2025 WL 1938541, at *7 (S.D.N.Y. July 15, 2025) (collecting cases); see Sweigert
v. Goodman, No. 23-CV-5875 (JGK), 2024 WL 4493768, at *6 (S.D.N.Y. Oct. 11, 2024)
(“Because there is no common-law privacy right under New York law, the plaintiff
cannot state a claim for relief based on [the defendant’s] alleged public disclosure of
private facts.”), reconsideration denied, 2024 WL 5047302 (S.D.N.Y. Dec. 9, 2024). “New
York’s statutory privacy protections apply only to infringement on one’s privacy ‘for
advertising, or for the purposes of trade.’” Nowak, 2025 WL 1938541, at *7 (quoting N.Y.
Civ. Rts. L. § 50). Here, Plaintiff does not allege infringement on her privacy “for
advertising, or for the purposes of trade.” N.Y. Civ. Rts. L. § 50. Rather, in her
complaint, Plaintiff alleges that “Defendant publicized private facts about Plaintiff,
including personal text messages and fertility treatments, which were not of legitimate
public concern” and a “reasonable person would find such disclosure highly offensive.”
Compl., ECF 1, ¶¶ 21–22. Regardless of whether such conduct was offensive, in the
absence of a recognized privacy tort that would apply to such conduct, the Court
respectfully recommends dismissing Plaintiff’s public disclosure of private facts claim.
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D. Conversion
“Under New York law, conversion is ‘the unauthorized assumption and exercise
of the right of ownership over goods belonging to another to the exclusion of the
owner’s rights.’” City of Almaty v. Ablyazov, 278 F. Supp. 3d 776, 801 (S.D.N.Y. 2017)
(quoting Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 403–04 (2d Cir. 2006) (internal
quotation marks omitted)); see V&A Collection, LLC v. Guzzini Props. Ltd., 46 F.4th 127,
133 (2d Cir. 2022) (noting that the “two key elements of conversion are (1) plaintiff’s
possessory right or interest in the property and (2) defendant’s dominion over the
property or interference with it, in derogation of plaintiff’s rights”); see also DeVito v.
Neiman, 548 F. Supp. 3d 314, 317–18 (E.D.N.Y. 2021). To state a conversion claim, “a
plaintiff must allege that (1) the party charged has acted without authorization, and
(2) exercised dominion or a right of ownership over property belonging to another,
(3) the rightful owner makes a demand for the property, and (4) the demand for the
return is refused.” Lefkowitz v. Bank of New York, 676 F. Supp. 2d 229, 251 (S.D.N.Y. 2009)
(quotation marks and alterations omitted). “Where the original possession is lawful, a
conversion does not occur until the defendant refuses to return the property after a
demand or until he sooner disposes of the property.” Ainbinder v. Money Ctr. Fin. Grp.,
Inc., No. 10-CV-5270 (SJF) (AKT), 2013 WL 1335997, at *9 (E.D.N.Y. Feb. 28, 2013)
(quotation marks omitted), report and recommendation adopted, 2013 WL 1335893
(E.D.N.Y. Mar. 25, 2013).
Here, Plaintiff asserts that she “entrusted Defendant with her notary stamp,
which he failed to return.” Compl., ECF 1, ¶ 10; see id. ¶ 29 (“Defendant wrongfully
retained Plaintiff’s notary stamp and has not returned it despite multiple requests.”).
Plaintiff was then “forced to report the stamp stolen due to concerns that he may use it
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unlawfully.” Id. ¶ 10; see also id. ¶ 30. Defendant’s alleged failure to return the stamp
resulted in harm to Plaintiff’s notary business, “including the loss of clients and
income.” Id. ¶ 11. Taking Plaintiff’s allegations as true, Plaintiff has stated the very basic
elements of a conversion claim. While Defendant’s initial possession of the notary
stamp appears to have been lawful as Plaintiff asserts she “entrusted Defendant with
her notary stamp,” Plaintiff alleges she has made a demand for the return of the
property and Defendant has failed to comply. Compl., ECF 1, ¶ 10. Therefore, Plaintiff
has alleged that Defendant “exercised dominion or a right of ownership over property”
to the detriment of Plaintiff. Lefkowitz, 676 F. Supp.2d at 251. However, although this
Court finds that Plaintiff has conclusorily stated the elements of a conversion claim, in
the absence of any particulars about when or where this conversion occurred, the Court
cannot evaluate whether the Court has supplemental jurisdiction over this claim.9
9 It is long settled that “[a] plaintiff must establish the court’s jurisdiction with respect to
each claim asserted.” Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 24 (2d Cir. 2004) (emphasis in
original). As discussed above, the Court questions whether Plaintiff has adequately pleaded
facts sufficient to establish federal question jurisdiction over her CFAA claim, leaving diversity
jurisdiction and supplemental jurisdiction under 28 U.S.C. § 1367 as possible avenues for
jurisdiction over her remaining claims. Given the jurisdictional issues discussed above, on the
basis of the present complaint, the Court does not recommend finding that supplemental
jurisdiction over Plaintiff’s conversion or other state law claims is appropriate without further
specifics in an amended complaint that provide a factual basis for this Court’s exercise of
subject matter jurisdiction over the case and personal jurisdiction over Defendant Kelsey. The
Second Circuit has long observed, “as a general proposition, that if all federal claims are
dismissed before trial . . . the state claims should be dismissed as well.” Motorola Credit Corp. v.
Uzan, 388 F.3d 39, 56 (2d Cir. 2004) (cleaned up). Here, Plaintiff also alleges diversity
jurisdiction, but the Court does not find from the face of the complaint that the conversion claim
alleges facts sufficient to assert 28 U.S.C. § 1332 due to a lack of specifics as to the amount in
controversy as to the claim. In the event Plaintiff is relying on supplemental jurisdiction for the
conversion claim on the basis of diversity jurisdiction over her other state law claims, the Court
could only exercise such jurisdiction if it finds that the conversion claim is “so related to claims
in the action within such original jurisdiction that they form part of the same case or
controversy under Article III.” 28 U.S.C. § 1367(a). The Court cannot make such a finding at this
time due to the sparse facts included in the complaint.
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Therefore, the Court is unable to determine whether this claim is properly before this
Court or whether Defendant has a meritorious defense to the claim under Enron Oil. See
Enron Oil, 10 F.3d at 96. Consequently, the Court respectfully recommends dismissing
Plaintiff’s conversion claim, with leave to amend.
E. 	IIED
The common law has long recognized torts for outrageous conduct causing
severe emotional distress and intentional infliction of emotional harm. See Restatement
(Second) of Torts § 46 (2025). To state a claim for intentional infliction of emotional
distress, a plaintiff must plausibly allege that a defendant (1) “by extreme and
outrageous conduct” (2) “intentionally or recklessly” (3) “cause[d] severe emotional
harm to another.” Id. To assess severity, courts often consider whether “the distress
inflicted is so severe that no reasonable man could be expected to endure it.” Id. cmt. j.;
see also Medcalf v. Walsh, 938 F. Supp. 2d 478, 490 (S.D.N.Y. 2013) (“To qualify as severe
emotional distress, the emotional distress suffered by the plaintiff must be so severe
that no reasonable person could be expected to endure it.” (quotation marks and
alterations omitted)); Conboy v. AT & T Corp., 241 F.3d 242, 258 (2d Cir. 2001) (“The
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 society.’” (quoting Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999)
(internal quotation marks omitted)). “As New York’s highest court has observed, the
standard for stating a valid claim of intentional infliction of emotional distress is
‘rigorous, and difficult to satisfy.’” Conboy, 241 F.3d at 258 (quoting Howell v. N.Y. Post
Co., 81 N.Y.2d 115, 122 (1993)). In addition, “New York courts have held that a claim for
damages for intentional infliction of emotional distress is subject to the one-year statute
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of limitations in C.P.L.R. Section 215(3).”10 Patterson v. Balsamico, 440 F.3d 104, 112 n.4
(2d Cir. 2006) (collecting cases); see Cabrera v. Quik Park Columbia Garage Corp., No. 00-
CV-3576 (JG), 2000 WL 1897348, at *1 (E.D.N.Y. Dec. 18, 2000) (“It is well-established
under New York law that a claim of intentional infliction of emotional distress has a
one-year statute of limitations.”); see also Noe v. Realty, No. 19-CV-1455 (JHR) (RFT), 2024
WL 5508198, at *18 (S.D.N.Y. July 22, 2024), report and recommendation adopted sub nom.
Noe v. Ray Realty, 2025 WL 958407 (S.D.N.Y. Mar. 31, 2025), appeal dismissed, No. 25-1132-
cv (2d Cir. June 5, 2025).
Plaintiff claims that Defendant’s conduct has caused Plaintiff to suffer “severe
emotional harm,” “including trauma related to her ongoing IVF cycle and long-term
psychological effects.” Compl., ECF 1, ¶ 33. However, even taking Plaintiff’s allegations
as true, they do not rise to the level of severity, as currently pled, to make out a viable
claim for intentional infliction of emotional distress in New York. Plaintiff raises
multiple allegations against Defendant, including his accessing her Delta Airlines
account without her consent, refusing to return her notary stamp, and engaging in a
“campaign of harassment,” all of which Plaintiff claims resulted in damages and harm.
However, Plaintiff’s allegations fail to provide any details to demonstrate that
Defendant’s conduct was “so severe that no reasonable man could be expected to
endure it.” Restatement (Second) of Torts § 46 (2025), cmt. j.
Additionally, courts are generally “‘reluctant to allow recovery under the banner
of intentional infliction of emotional distress absent a deliberate and malicious
10 As discussed in footnotes 4 and 7, supra, the Court has questions regarding evaluating
the statute of limitations for Plaintiff’s claims and whether Defendant may have a meritorious
defense to untimely claims. See Enron Oil, 96 F.3d at 96.
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campaign of harassment or intimidation.’” Woods v. Sieger, Ross & Aguire, LLC, No. 11-
CV-5698 (JFK), 2012 WL 1811628, at *7 (S.D.N.Y. May 18, 2012) (quoting Cohn-Frankel v.
United Synagogue of Conservative Judaism, 667 N.Y.S.2d 360, 362 (App. Div. 1st Dep’t
1998)). Although Plaintiff asserts that Defendant “engaged in a campaign of
harassment,” she has not pled the content, frequency, or duration of Defendant’s
alleged campaign such that this Court can make a determination as to whether
Defendant’s actions satisfy this state’s rigorous standard for IIED claims. See, e.g.,
Conboy, 241 F.3d at 247, 258–59 (affirming dismissal of IIED claim where the plaintiffs
alleged that debt collector obtained private information, including their unlisted
telephone number, and proceeded to contact them between 30 and 50 times in a month).
Moreover, “there is a fair amount of caselaw in New York holding that a lack of
medical evidence regarding [a] plaintiff’s emotional distress is fatal to an intentional
infliction of emotional distress claim because [the] plaintiff has failed to offer non-
speculative proof establishing the ‘severe emotional distress’ element of the claim.”
Woods, 2012 WL 1811628, at *8 (collecting cases). Here, Plaintiff offers no specific non-
conclusory allegations concerning alleged medical harm, instead asserting that she “has
suffered severe emotional harm as a result, including emotional trauma related to her
ongoing IVF cycle and long-term psychological effects.” Compl., ECF 1, ¶ 33.
Accordingly, even taking Plaintiff’s claims as true, this Court respectfully recommends
dismissing Plaintiff’s claim for IIED.
F. 	Tortious Interference with Employment
“A plaintiff claiming tortious interference under New York law must establish
four elements: 1) a valid contract, 2) knowledge by a third party of the contract,
3) conduct by the third party to intentionally and improperly procure the breach of the
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contract, and 4) damage to the plaintiff as a result of the breach.” Siotkas v. LabOne, Inc.,
594 F. Supp. 2d 259, 274–75 (E.D.N.Y. 2009) (citing Albert, 239 F.3d at 274). At-will
employees generally do not have employment contracts.11 See id. at 275. However, an at-
will employee may establish a claim for tortious interference “in certain limited
situations” if the employee can establish “that a third party used wrongful means to
effect the termination such as fraud, misrepresentation, or threats, that the means used
violated a duty owed by the defendant to the plaintiff, or that the defendant acted with
malice.” Albert, 239 F.3d at 274 (quotation marks omitted); Siotkas, 594 F. Supp. 2d at 275
(collecting cases); see Jean-Louis v. Am. Airlines, No. 08-CV-3898 (FB), 2010 WL 3023943,
at *2 (E.D.N.Y. July 30, 2010) (same).
Plaintiff’s complaint does not allege that Defendant maliciously caused Plaintiff
to be fired, or what particular adverse employment consequences she experienced as a
result of Defendant’s actions.12 See, e.g., Jean-Louis, 2010 WL 3023943, at *2 (denying the
11 The complaint fails to allege the existence of any employment contract between
Plaintiff and her employer, Delta. In the absence of allegations that she has a contract of
employment, the Court assumes that Plaintiff is an at-will employee. See Coliniatis v. Dimas, 848
F. Supp. 462, 470 (S.D.N.Y. 1994) (collecting cases). However, regardless of the existence of a
contract between Plaintiff and her employer, Plaintiff’s tortious interference with employment
claim fails on other grounds.
12 Plaintiff’s complaint only claims that Defendant’s alleged actions caused “scrutiny at
her workplace” and “placed Plaintiff’s employment in jeopardy and required HR involvement.”
Compl., ECF 1, ¶¶ 15, 36. The Court notes that Plaintiff’s default motion papers provide some
specificity regarding her alleged employment consequences in a supplemental notice. See Pl.’s
Notice, ECF 16, at ECF p. 4 (noting “[e]mployment consequences,” “[r]educed pay and
seniority,” “[r]estrictions on her flight benefits,” and “HR investigations,” among other alleged
harms); see also id. at ECF pp. 5–7. However, notwithstanding Plaintiff’s pro se status, the Court
is limited to consideration of the complaint to determine liability in this default context. See
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plaintiff’s motion to add a claim of intentional interference with employment relations
as “futile” because the “proposed amended complaint fails to allege that [the
defendant] maliciously caused plaintiff to be fired or that [the defendant] threatened or
defrauded plaintiff”). Plaintiff simply asserts that “Defendant knowingly interfered
with Plaintiff’s employment at Delta Airlines by making false complaints and enlisting
others to do so.” Compl., ECF 1, ¶ 35. These allegations, without more, do not establish
(1) whether Plaintiff had a contract with Delta with which to interfere; (2) whether
Defendant (a) “intentionally and improperly procure[d] the breach of the contract”
between Plaintiff and her employer by causing infringement of her contractual rights or
(b) caused her to be fired; or (3) how any alleged breach of the contract or employment
relationship between Plaintiff and her employer caused “damage to [Plaintiff]” as a
result of the breach. Albert, 239 F.3d at 274 (quotation marks omitted). Accordingly, the
Court respectfully recommends finding that Plaintiff has failed to adequately plead her
claim for tortious interference with employment.
Universal Elec., 970 F. Supp. 2d at 119 (noting that courts consider “whether the claims were
pleaded in the complaint” in deciding whether to grant a default judgment); J & J Sports Prods.,
Inc. v. Abdelraouf, No. 18-CV-2547 (ARR) (VMS), 2019 WL 457719, at *4 (E.D.N.Y. Feb. 5, 2019)
(finding that the plaintiff’s “assertion that a court may consider documents outside of the
pleadings when evaluating a defendant’s liability on a motion for default judgment is plainly
contradicted by black-letter law” and that “a default does not . . . excuse any defects in the
plaintiff’s pleading” (quotation marks omitted)) (collecting cases). But see Group One Ltd. v. GTE
GmbH, 625 F. Supp. 3d 28, 57 n.16 (E.D.N.Y. 2022) (“The Second Circuit has occasionally
considered materials outside the default judgment record in determining whether a meritorious
defense exists.”).
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IV. Leave to Replead
In light of the foregoing and against the backdrop of Plaintiff’s damages request
of $200,000,13 the Court respectfully recommends giving Plaintiff leave to replead.
“Generally, leave to amend should be freely given, and a pro se litigant in particular
should be afforded every reasonable opportunity to demonstrate that [s]he has a valid
claim.” Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (quotation marks and citation
omitted). “The decision to grant or deny leave to amend is within the trial court’s
discretion.” Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. PVT Ltd., 338 F.R.D. 579, 583
(S.D.N.Y. 2021) (citing Zenith Radio Corp. v. Hazeltine Rsch., Inc., 401 U.S. 321, 330 (1971)).
Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, courts “should freely give
leave” to amend pleadings “when justice so requires.” Fed. R. Civ. P. 15(a)(2); see also
Saravia v. Royal Guard Fence Co., No. 19-CV-2086 (DRH) (SIL), 2020 WL 5231696, at *9
(E.D.N.Y. Sept. 2, 2020) (explaining that parties should generally “be allowed to amend
their pleadings . . . unless there is evidence of undue delay, bad faith, dilatory tactics,
undue prejudice to the party to be served with the proposed pleading, or futility”
13 The Court notes that Plaintiff seeks $200,000 in damages. Pl.’s Mem. in Supp. Default
J., ECF 9-1, at ECF p. 2; cf. Compl., ECF 1, ¶ 1 (asserting that “the matter in controversy exceeds
$75,000”). However, because the complaint provides no specifics quantifying Plaintiff’s alleged
losses, the Court questions whether the amount in controversy exceeds $75,000 for purposes of
federal diversity jurisdiction. See 28 U.S.C. § 1332. But see Pl.’s Notice, ECF 16, at ECF pp. 5–7
(generally detailing Plaintiff’s alleged losses). Nevertheless, as “the sum claimed by the plaintiff
controls if the claim is apparently made in good faith” and it is not “apparent, to a legal
certainty,” on “the face of the pleadings . . . that the plaintiff cannot recover the amount claimed
or . . . that the plaintiff never was entitled to recover that amount,” the Court declines to
recommend dismissal for lack of diversity jurisdiction given the recommendation that Plaintiff
be permitted to file an amended complaint. Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d
781, 784 (2d Cir. 1994) (quotation marks omitted); see Hall v. EarthLink Network, Inc., 396 F.3d
500, 506 (2d Cir. 2005) (“Generally, for purposes of diversity jurisdiction, the amount in
controversy is established as of the date of the complaint and is not reevaluated based on post-
filing events.”).
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(quotation marks omitted)). “If the underlying facts or circumstances relied upon” by
the party seeking leave to amend “may be a proper subject of relief,” there is a
preference that the party “be afforded an opportunity to test [its] claim on the merits.”
United States ex rel. Maritime Admin. v. Cont’l Ill. Nat’l Bank & Tr. Co. of Chi., 889 F.2d
1248, 1254 (2d Cir. 1989) (quotation marks omitted).
Given the liberal standard for the filing of an amended complaint and Plaintiff’s
pro se status, the Court respectfully recommends giving Plaintiff leave to file an
amended complaint. Further, because the new complaint will replace, not supplement,
the prior complaint, “any facts or claims that Plaintiff[] wish[es] to maintain must be
included in the amended complaint.” Sanchez v. Miller, No. 20-CV-0620 (CM), 2020 WL
1140843, at *8 (S.D.N.Y. Mar. 6, 2020). Plaintiff is further advised to include specific
dates in connection with her allegations.
CONCLUSION
For the reasons discussed above, the Court respectfully recommends denying
Plaintiff’s motion for default judgment. The Court further recommends giving Plaintiff
leave to file an amended complaint.
* 	* 	* 	* 	*
This report and recommendation will be filed electronically and a copy sent by
mail to defaulting Defendant. As a courtesy, the Court also respectfully directs Plaintiff
to provide a copy of this report and recommendation to Defendant forthwith and to file
proof of same by February 10, 2026. Objections to this report and recommendation must
be filed, with a courtesy copy sent to the Honorable LaShann DeArcy Hall at 225
Cadman Plaza East, Brooklyn, New York 11201, within fourteen (14) days of filing. See
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28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a) (providing the
method for computing time). Failure to file objections within the specified time waives
the right to appeal both before the district court and appellate courts. See, e.g., Caidor v.
Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008) (explaining that “failure to object
timely to a . . . report [and recommendation] operates as a waiver of any further judicial
review of the magistrate[ judge’s] decision” (quotation marks omitted)).
SO ORDERED.
Dated: Brooklyn, New York
February 4, 2026
_____________________________________
TARYN A. MERKL
UNITED STATES MAGISTRATE JUDGE
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