In October, writer Stephen Elliott filed a lawsuit in New York court against Moira Donegan, the creator of the Shitty Media Men spreadsheet. In his lawsuit, Elliott — who had been anonymously accused of allegations ranging from “unsolicited invitations to his apartment” to “rape,” which he denies — sued Donegan for defamation and emotional distress. But on Friday, a Brooklyn federal judge, Lashann DeArcy Hall, shut down a number of arguments from the complaint, dismissing Elliott’s claims of intentional and negligent infliction of emotional damage, though he can still sue for defamation.
Elliott claims in his complaint that Donegan and other women who contributed to the Google spreadsheet (whom he names as “Jane Does”) “conspired” to create the Shitty Media Men spreadsheet, which briefly circulated in October 2017 and contained the names of over 70 men accused of anonymous allegations of sexual misconduct. He claims that the list included “wholly unsubstantiated allegations,” including “numerous false statements alleging criminal sexual conduct” against him. The complaint further states that Elliott intends to subpoena the Google metadata for the list to learn the identities of those who contributed to it.
In a premotion conference on Friday, one of Elliott’s attorneys, Nicholas Lewis of Nesenoff & Miltenberg LLP, agreed to voluntarily withdraw the claim for negligent infliction of emotional distress; the judge also said that the intentional infliction claim did not meet the necessary standards for survival.
The judge also took issue with Lewis’s argument for defamation, expressing doubts over whether it would meet the standard of proving that Donegan acted out of “malice” in creating the list.
Donegan’s attorney, Time’s Up legal-defense fund co-founder Robbie Kaplan, argued that Donegan clearly stated why she created the spreadsheet in an essay she wrote for the Cut in January 2018. In the essay, Donegan wrote, “In the beginning, I only wanted to create a place for women to share their stories of harassment and assault without being needlessly discredited or judged. The hope was to create an alternate avenue to report this kind of behavior and warn others without fear of retaliation.” Kaplan told the judge, “Everything she says in that article not only is inconsistent with any claim of malice but actually rebuts any claim of malice.”
In the original complaint, Donegan is accused of making “public statements on social media,” including “I really hate men” and “I like the witch hunt.” In court, Lewis argued that these “belie” what she wrote in her essay. The judge, however, didn’t agree. “Let’s assume she hates men,” she said. “Just for the record, let’s assume she hates them. I don’t see how you can go from her generalized hatred of men to a reasonable inference of malice with regard to your client, which is what you’d have to establish.”
Lewis also argued that the “witch hunt” statement is “indicative that she knows the claims … against my client are false.” But again, the judge wasn’t having it: “‘Enjoying the witch hunt’ means that she knows that they are false? I don’t see the logical connection there.”
The judge further told Lewis, “I’m not deciding this case today — this is a premotion conference — but I also don’t like to play hide the ball and I don’t like to waste folks’ time. If this were briefed, you’re going to come up short.”
She concluded that the only claim Elliott can pursue is for defamation, and gave Lewis until this Friday to let the court know if he’ll amend the complaint or not. Otherwise, the defense will be permitted to file their motion to dismiss within two weeks.
Kaplan said in a statement: “We are pleased with the court’s rulings, and are confident that this case will soon be over once and for all since there is no version of the facts that could possibly state a viable claim of defamation against Ms. Donegan here.”
In a statement to the Cut, one of Elliott’s attorneys, Andrew Miltenberg, said he was “encouraged the Judge appears fair minded and open to the idea the issues in the complaint are curable,” adding, “As a result, we will be amending our complaint by not including causes of action for emotional distress.”