Holloway v. Oxygen Media LLC et al
MEMORANDUM OPINION - By separate order, the court will DENY Defendants motion to dismiss. Signed by Chief Judge Karon O Bowdre on 1/7/2019. (KEK)
2019 Jan-07 PM 01:43
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ELIZABETH ANN HOLLOWAY,
OXYGEN MEDIA, LLC, and
BRIAN GRADEN MEDIA, LLC,
CIVIL ACTION NO.
As defendants frequently point out, and as courts regularly affirm, even the
most deeply wounding conduct rarely gives rise to civil liability for the tort of
outrage. Suffering offense from truly insulting conduct is sometimes an
unfortunate fact of life, so the law understandably hesitates to impose money
damages for causing emotional distress in the minds of others. But, in very limited
circumstances, the law recognizes extremely egregious conduct that no person
should be expected to endure without some sort of civil justice. This case
plausibly presents such outrageous conduct.
Twelve years after Natalee Holloway disappeared while on a high school
trip to Aruba in 2005, Defendants Oxygen Media and Brian Graden Media tried to
capitalize on the world’s fascination with the tragedy. Defendants produced and
published what they termed a six-part “true crime documentary” series entitled
“The Disappearance of Natalee Holloway.” The series documented a so-called
“unscripted” and “real-time investigation” of what happened to Natalee when she
But Natalee’s mother, Plaintiff Beth Holloway, alleges that the series was
not a “true-crime documentary” or a legitimate “investigation” whatsoever.
Instead, Ms. Holloway contends that it was scripted and outrageous fiction
produced and published at the expense of her severe emotional distress. In
addition, she alleges that Defendants fraudulently procured her DNA in production
of the series.
Defendants have filed a motion to dismiss Ms. Holloway’s claims for fraud
and the tort of outrage. The court will DENY the motion. As further explained
below, Ms. Holloway has pled with particularity the fraudulent procurement of her
DNA by plausible agents of Defendants. And she has sufficiently alleged facts
showing a plausible claim for the tort of outrage.
STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss challenges whether a complaint contains
“a short and plain statement of the claim showing that the pleader is entitled to
relief” as required by Rule 8(a)(2) of the Federal Rules of Civil Procedure.
Specifically, a defendant may move to dismiss a complaint under Rule
12(b)(6) for “failure to state a claim upon which relief can be granted.” The
burden then shifts to the plaintiff to show that her complaint “allege[s] ‘enough
facts to state a claim to relief that is plausible on its face.’” Adinolfe v. United
Tech. Corp., 768 F.3d 1161, 1169 (11th Cir. 2014) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
For a claim to be “plausible on its face,” it must contain enough “factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
And the court accepts as true the factual allegations in the complaint and construes
them in the light most favorable to the plaintiff. Id.
But not all allegations can defeat a motion to dismiss. “[L]abels and
conclusions” and speculation “will not do.” Twombly, 550 U.S. at 555. So, the
court will only look at well-pled facts, and if those facts, accepted as true, state a
plausible claim for relief, then the plaintiff will survive a motion to dismiss. Iqbal,
556 U.S. at 678.
As the court must do on a motion to dismiss, the court accepts as true the
following well-pled factual allegations.
Natalee Holloway disappeared on May 30, 2005 while on a high school
senior class trip in Aruba. Print and broadcast media gave Natalee’s disappearance
“nearly unprecedented” and “round-the-clock” coverage. (Doc. 23 at ¶ 45).
Natalee’s mother, Beth Holloway, has worked tirelessly to find Natalee, but neither
Natalee nor her remains have ever been located.
Defendants produced and published a six-part television series entitled “The
Disappearance of Natalee Holloway” (the “Series”). The Series aired between
August 19, 2017 and September 23, 2017. Defendants marketed the Series as an
“‘unscripted’ ‘real-time investigation’ and ‘documentary’ following ‘a new lead
that could deliver justice for Natalee once and for all,’ including ‘the specifics of
what happened to her and the remains of her body.’” (Doc. 23 at ¶ 57).
The Series followed Natalee’s father and Beth Holloway’s ex-husband,
Dave Holloway, and his private investigator, T.J. Ward, as they investigated John
Ludwick, the suspect who claimed to have exhumed and desecrated Natalee’s
remains in Aruba and asserted that he knew where Natalee’s remains were buried.
Ms. Holloway alleges that the Series and the “real-time” events that it
depicted were actually scripted. She relies on the complaint in the matter styled
Kramer v. Brian Graden Media, LLC, et al., Case No. 2:17-cv-5990 (C.D. Cal.
Aug. 11, 2017), where the plaintiff, Edward Kramer, sought compensation for
services he alleges that he rendered to Oxygen and BGM for the Series. (Doc. 23
at ¶ 62). Mr. Kramer asserted in that case that he created the Series as early as the
fall of 2014. (Id. at ¶ 69). Mr. Kramer alleged that he created the plot, plans,
scenarios, episode guides, and resolution for the Series; that is, he “scripted” the
Series beforehand. (Id. at ¶ 64). In addition, Mr. Kramer alleged that the main
characters in the series, even those depicted in the Series as unaware that they were
being filmed, were paid participants. (Id. at ¶¶ 70, 74, 76, 79–80).
As depicted in the Series, on March 19, 2017, Mr. Ludwick took his
roommate, Gabriel Madrigal, to identify the grave site in Aruba where Mr.
Ludwick claimed to have dug up Natalee’s remains. But Mr. Ludwick could not
find the grave site. (Doc. 23 at ¶¶ 86–87).
Then, on April 6, 2017, Mr. Madrigal told Mr. Holloway and Mr. Ward that
Mr. Ludwick would travel to Aruba again “to pinpoint the exact location and
cooperate with the Aruban authorities in showing the exact location [of Natalee’s
remains] and hopefully solving the case.” (Doc. 23 at ¶ 90). But on Mr.
Ludwick’s second trip to Aruba, he again could not find the grave site. In addition,
Mr. Ludwick could not identify the cave near his aunt’s property where he claimed
that he and another man burned Natalee’s skull. Defendants then cut ties with Mr.
Ludwick “because they believed the lead to have been false and unfounded.” (Id.
at ¶ 94).
But the Series then depicts a third visit to Aruba, this time filmed on Mr.
Madrigal’s cell phone and purportedly undertaken without Defendants’ knowledge.
Mr. Madrigal and Mr. Ludwick stated on the cell phone videos that they “returned
to Aruba for a third time to ‘bring Natalee home’ and because Ludwick knew
where her remains are because ‘he kept [them] as a trophy.’” (Doc. 23 at ¶ 96).
During this third search, within seconds of the men’s arrival at Mr.
Ludwick’s aunt’s house, Mr. Ludwick uncovered a Ziploc bag “from just beneath
the ground surface” containing four bone fragments. (Doc. 23 at ¶ 100).
According to Ms. Holloway, “[t]he Ziploc bag, supposedly buried for seven years,
appears fairly new, clean, and in good condition.” (Id. at ¶ 101).
The Series then shows more footage from Mr. Madrigal’s cell phone on
which Mr. Ludwick fails to identify the grave site with the rest of Natalee’s
remains. (Doc. 23 at ¶¶ 104–05).
The Bone Fragments and Ms. Holloway’s DNA
Mr. Holloway and Mr. Ward traveled to Aruba to collect the bone
fragments. Aruban authorities advised the men that the bones were animal
remains. (Doc. 23 at ¶ 5).
Defendants then delivered the bone fragments to their forensic expert, Dr.
Jason Kolowski. Defendants told Dr. Kolowski that Mr. Ward recovered the bone
fragments from a pet cemetery. Defendants did not disclose that Mr. Ludwick
found the bones in a Ziploc bag without any corroboration. Dr. Kolowski later told
Ms. Holloway that Defendants did not inform him of the true origin of the bones
because he could have been “burned” professionally by testing bone samples
contaminated by Mr. Ludwick. (Doc. 23 at ¶ 14).
Dr. Kolowski first tested the bone fragments for nuclear DNA, the presence
of which would establish that the bones were human and from which Dr. Kolowski
could identify the person to whom the remains belonged. The test came back
negative. (Doc. 23 at ¶ 12).
Dr. Kolowski then tested the bone fragments for mitochondrial DNA, which
all living beings possess. At best, because mitochondrial DNA cannot uniquely
identify one person, the test would allow Dr. Kolowski to “exclude the Bone
Fragments as belonging to Natalee or determine that the bones belonged to an
individual with a mitochondrial DNA sequence similar to Natalee’s, a sequence
that is presumably shared very widely amongst humankind.” (Doc. 23 at ¶ 5). The
test revealed the presence of human mitochondrial DNA belonging to a Caucasian
individual; it did not reveal that the bones themselves were human bones.
According to Ms. Holloway, the presence of human mitochondrial DNA “is
not at all surprising—and may even be expected—given that the Bone Fragments
were handled and likely contaminated by Mr. Ludwick, a Caucasian and a heroin
addict.” (Id. at ¶ 13). Defendants did not perform a speciation test or submit the
bones to an anthropologist to determine whether the bone fragments were human
On August 10, 2017, Mr. Holloway called Ms. Holloway privately and
advised her that “human female remains,” at least ten years old and from a single
Caucasian individual, were discovered at a “grave site” in Aruba. (Doc. 23 at
¶¶ 6–7, 112). Mr. Holloway asked Ms. Holloway for a DNA sample. The same
day, Dr. Kolowski told Ms. Holloway that the DNA test would either match the
bone fragments to Natalee or fully exclude that the bones belonged to Natalee.
Ms. Holloway provided a sample of her DNA two days later.
Neither Mr. Holloway nor Dr. Kolowski informed Ms. Holloway of the true
origin of the bones or the circumstances of their discovery. The men did not tell
her that Dr. Kolowski had not determined that the bones were human or female;
that Defendants would use her DNA for the Series; that the Series existed at all;
that Dr. Kolowski could not match the bones to Natalee even with Ms. Holloway’s
DNA; or that Mr. Ludwick, who was Caucasian and a paid participant in the
Series, recovered the bone fragments from a Ziploc bag only after Defendants
stopped filming him and after twice failing to locate the bone fragments. (Doc. 23
at ¶¶ 7, 118, 128).
The Series then turned all of its attention to the bone fragments and DNA
testing. The Series depicted a staged meeting between Mr. Holloway, Mr. Ward,
and Dr. Kolowski held on August 17, 2017. Defendants conveyed this scene as the
first time that Mr. Holloway and Mr. Ward learned the results of Dr. Kolowski’s
initial DNA testing, but Mr. Holloway had already informed Ms. Holloway of the
results one week before the meeting. Also in this scene, Defendants conveyed that
some or all of the bone fragments were human, that the bone fragments belonged
to a Caucasian of European descent, and that Ms. Holloway’s DNA could
definitively determine whether the bone fragments belonged to Natalee. (Doc. 23
at ¶¶ 122–27).
On September 22, 2017, Defendants received a laboratory report that the
results of the DNA tests were not reportable. (Doc. 23 at ¶ 135).
Defendants aired the Series finale on September 23, 2017. The episode
shows a meeting between Mr. Holloway, Mr. Ward, and Dr. Kolowski on
September 11, 2017. In the scene, Defendants convey that they were expecting a
match, inconclusive results, or a full exclusion with the DNA test. The episode
ends without divulging the results of the DNA test. (Doc. 23 at ¶ 134).
All along, the bone fragments came from the skull of a wild boar. Mr.
Ludwick admitted to Mr. Madrigal that he planted the bones. (Doc. 23 at ¶¶ 8–9).
Between August 16 and September 21, 2017, Oxygen published seven
articles about the Series on Oxygen.com to generate hype for the Series. The title
of each article identified below accurately portrays the contents of each article.
On August 16, 2017, Oxygen published an article entitled “Natalee
Holloway’s Dad Reveals Investigators Have Uncovered Human Remains in New
Interview” on Oxygen.com. (Doc. 23-1).
On August 21, 2017, Oxygen published an article entitled “4 Crucial Details
to Know About the New Lead in the Natalee Holloway Case” on Oxygen.com.
On August 24, 2017, Oxygen published an article entitled “DNA Testing
Proves Bones from Natalee Holloway Search are from a Single Human of
Caucasian, European Descent” on Oxygen.com. (Doc. 23-3).
On September 2, 2017, Oxygen published an article entitled “Friend of
Jordan Van Der Sloot Says he was Paid to Dig Up Natalee Holloway’s Remains
and Cremate Them” on Oxygen.com. (Doc. 23-4).
On September 8, 2017, Oxygen published an article entitled “Meet the
Forensic Scientist Who’s Helping in the Search for Natalee Holloway’s Remains”
on Oxygen.com. (Doc. 23-5).
On September 16, 2017, Oxygen published an article entitled “Jordan Van
Der Sloot’s Friend Says they Burned Natalee Holloway’s Skull in a Cave” on
Oxygen.com. (Doc. 23-6).
On September 21, 2017, two days before the Series finale, Oxygen
published an article entitled “The Latest on the Natalee Holloway DNA Testing”
on Oxygen.com. (Doc. 23-7). This article provides pictures of the four bone
fragments and states that at least one of the bone fragments came from a Caucasian
human and contained mitochondrial DNA.
Ms. Holloway filed her amended complaint on July 31, 2018. (Doc. 23). In
her amended complaint, she brings one count of fraud and one count of outrage
against both Defendants. She alleges that Defendants committed fraud when Mr.
Holloway and Dr. Kolowski, acting as agents for Defendants, procured her DNA
under false pretenses. And she alleges that Defendants committed the tort of
outrage by procuring her DNA under false pretenses and by publishing the Series
and the seven online articles.
Defendants filed a motion to dismiss the amended complaint. (Doc. 26). In
their motion to dismiss, Defendants assert that Ms. Holloway failed to plead fraud
with particularity as required by Rule 9(b) of the Federal Rules of Civil Procedure,
that she failed to allege facts showing intentional, reckless, extreme, or outrageous
conduct to state a claim for the tort of outrage under Alabama law, and that the
First Amendment protects Defendants’ publications from tort liability.
The court will address both of Ms. Holloway’s claims, and, in doing so, will
find that she has stated a plausible claim for relief as to both claims and that the
First Amendment does not protect Defendants’ publications.
Ms. Holloway’s fraud claim arises out of Defendants’ private conduct. She
contends that Mr. Holloway and Dr. Kolowski, acting on behalf of Defendants and
for the benefit of the Series, intentionally deceived her to obtain her DNA.
To state a claim of fraud under Alabama law, a plaintiff must show “(1) a
false representation, (2) of a material existing fact, (3) reasonably relied on by the
claimant (4) who suffered damage as a proximate consequence of the
misrepresentation.” Drummond Co. v. Walter Indus., Inc., 962 So. 2d 753, 788
(Ala. 2006) (citing Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.
2d 1143 (Ala. 2003)).
In addition, when alleging fraud, the plaintiff “must state with particularity
the circumstances constituting fraud . . . .” Fed. R. Civ. P. 9(b). To meet the Rule
9(b) heightened pleading standard, the complaint must state “(1) precisely what
statements were made; (2) the time and place of each statement and the person
responsible for making the statement; (3) the content of each statement and how
those statements misled the plaintiff; and [(4)] what the defendants obtained as a
consequence of the fraud.” Graveling v. Castle Mortg. Co., 631 F. App’x 690, 694
(11th Cir. 2015) (citing Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th
Ms. Holloway has sufficiently alleged facts that satisfy each element of a
fraud claim. She alleges that Mr. Holloway and Dr. Kolowski, acting as agents of
Defendants, falsely represented to her that Mr. Holloway and Mr. Ward had found
human female remains at a grave site in Aruba that belonged to a female, and that
they needed Ms. Holloway’s DNA to determine if the bones matched Natalee’s
DNA. (Doc. 23 at ¶¶ 11–16, 139, 141, 143, 152–54). The location of Natalee’s
remains was a material fact to Ms. Holloway. Ms. Holloway reasonably relied on
the representations because they came from her ex-husband and Natalee’s father
who had also been searching for Natalee ever since she disappeared. And Ms.
Holloway alleges that she suffered severe emotional distress and corresponding
physical distress because of the false representations, so she has alleged each of the
four elements of her fraud claim. (Id. at ¶¶ 196, 198).
And she has pled fraud with particularity as required by Rule 9(b). She
alleges precisely who made the statements: Mr. Holloway and Dr. Kolowski,
acting as agents of Defendants. She alleges precisely when Mr. Holloway and Dr.
Kolowski made the statements: August 10, 2017, on the phone. She alleges
precisely what Mr. Holloway and Dr. Kolowski said: Mr. Holloway told her that
he and Mr. Ward found human female remains at a grave site in Aruba and needed
her DNA, and Dr. Kolowski told her that a DNA test could match the bones to
Natalee’s DNA. But in truth, Mr. Ludwick and Mr. Madrigal, not Mr. Holloway
and Mr. Ward, found the bones; the men found the bones at Mr. Ludwick’s aunt’s
house, not a grave site; nobody knew that the bones belonged to a female; and they
could only make an “exclusion” with Ms. Holloway’s DNA, not a “match.”
In addition, she alleges precisely how Mr. Holloway misled her. She alleges
that Mr. Holloway concealed several material facts: (1) that Defendants were
filming a show that would broadcast the DNA test results (doc. 23 at ¶¶ 118, 156,
160–61, 183); (2) that Mr. Ludwick was a paid participant and a heroin addict who
failed to uncover the purported grave site on two prior occasions (id. at ¶¶ 86–87,
90–93, 177, 182, 235); (3) that Mr. Ludwick found the bone fragments only after
Defendants had stopped filming him (id. at ¶¶ 95–101, 178–82); and (4) that Mr.
Ludwick discovered the bones in a Ziploc bag that appeared new (id. at 98–101,
175). These specific allegations satisfy the heightened Rule 9(b) pleading
Defendants make two unpersuasive arguments for why Ms. Holloway has
failed to plead fraud with particularity. First, Defendants contend that Ms.
Holloway has failed to “plead sufficient facts to ‘inform each defendant of the
nature of [its] alleged participation in the fraud’” as required to state a fraud claim
against multiple defendants. Transatlantic, LLC v. Humana, Inc., 666 F. App’x
788, 789 (11th Cir. 2016) (quoting Brooks v. Blue Cross and Blue Shield of Fla.,
Inc., 116 F.3d 1364, 1381 (11th Cir. 1997)); (see Doc. 26 at 11). The court
Neither Defendant can legitimately claim that it is not aware of its alleged
role in the fraud. Ms. Holloway alleges that each Defendant produced and
published the Series jointly with the other Defendant, and that Mr. Holloway and
Dr. Kolowski acted as agents of each Defendant. And, again, she alleges precisely
how Mr. Holloway and Dr. Kolowski misled her. So, Ms. Holloway has alleged
fraud particularly against each Defendant.
Second, Defendants contend that Ms. Holloway has failed to allege facts
showing that Mr. Holloway and Dr. Kolowski were agents of Defendants, such that
Defendants cannot be held liable as principals for Mr. Holloway’s and Dr.
Kolowski’s fraudulent misrepresentations. (Doc. 26 at 12–15). Again, the court
Under Alabama law, “it is axiomatic that for an agency relationship to exist,
there must be right of control by the principal over the agent. But, it is not
essential that the right of control be exercised so long as that right actually exists.”
Nat’l Sec. Fire & Cas. Co. v. Bowen, 447 So. 2d 133, 137 (Ala. 1983) (citations
omitted). And “the existence and scope of a principal-agent relationship is
normally a question of fact to be determined by the jury.” Id. at 138.
Ms. Holloway has alleged several facts that show Defendants plausibly had
the right to control Mr. Holloway and Dr. Kolowski, and that the men were acting
in the scope of their principal-agent relationship with Defendants. She alleges that
Mr. Holloway and Dr. Kolowski were paid participants and main characters in the
Series; that Defendants instructed the men to obtain Ms. Holloway’s DNA for the
Series; that Defendants concealed from Dr. Kolowski the true circumstances of the
discovery of the bone fragments so that he would obtain and test Ms. Holloway’s
DNA; that Defendants scripted what the men had to carry out; that Defendants
required the men to perform the scope of work specified in their contracts in
furtherance of Defendants’ business; that Defendants required the men to keep the
production of the Series confidential; and that Defendants could withhold payment
to the men if they did not perform their roles. (Doc. 23 at ¶¶ 14, 194–202). These
factual allegations show a plausible principal-agent relationship by which
Defendants had the right and ability to control Mr. Holloway and Dr. Kolowski’s
efforts to obtain Ms. Holloway’s DNA for the Series.
Ms. Holloway has thus alleged fraud with particularity against each
Defendant and she has alleged facts showing a plausible principal-agent
relationship between Mr. Holloway, Dr. Kolowski, and Defendants. So the court
will DENY Defendants’ motion to dismiss Ms. Holloway’s fraud claim.
Ms. Holloway next alleges that Defendants committed the tort of outrage
both privately and publically. As to private conduct, she alleges that Defendants
committed outrage by procuring her DNA under false pretenses through their
agents, Mr. Holloway and Dr. Kolowski. As to public conduct, she alleges that
Defendants committed outrage by publishing the Series and the seven online
The tort of outrage “is an extremely limited cause of action” for the recovery
of damages for severe emotional distress. Wilson v. Univ. of Alabama Health
Servs. Found., P.C., --- So. 3d ---, 2017 WL 6397654, at *2 (Ala. Dec. 15, 2017)
(internal quotations and citations omitted). To state a claim for outrage, a plaintiff
must show that the defendant’s conduct “(1) was intentional or reckless; (2) was
extreme and outrageous; and (3) caused emotional distress so severe that no
reasonable person could be expected to endure it.” Id. (citing Green Tree
Acceptance, Inc. v. Standridge, 565 So. 2d 38, 44 (Ala. 1990)). Ms. Holloway has
sufficiently alleged facts under each of these elements.
Intentional or reckless
Ms. Holloway has alleged facts showing that Defendants acted at least
recklessly by procuring her DNA under false pretenses and by publishing the
Series. Ms. Holloway alleges that Mr. Holloway concealed material facts about
the discovery of the remains in Aruba—all of which cast significant doubt on the
origin of the bones and discredited Mr. Ludwick—to take advantage of her
desperation and entice her into giving a DNA sample. And she alleges that
Defendants knew or should have known that several statements in the Series were
false. For example, she alleges that the Series provided several gruesome
descriptions of Natalee’s murder and the desecration of her remains, but
Defendants should have known that the descriptions were false because Mr.
Ludwick, the only source of Defendants’ information, failed to recover Natalee’s
remains on numerous occasions, recovered pig bones from an apparently new
Ziploc bag only after Defendants stopped filming him, was a heroin addict, and
failed to corroborate any of his claims.
From these factual allegations, the court can infer that Defendants, at the
very least, acted with reckless disregard for the truth by procuring Ms. Holloway’s
DNA and publishing the Series.
Extreme and outrageous conduct that caused emotional distress
so severe that no reasonable person could be expected to
Courts in Alabama generally consider the second and third element of an
outrage claim together. See, e.g., Wilson, 2017 WL 6397654, at *2, and Whitt v.
Hulsey, 519 So. 2d 901, 903–06 (Ala. 1987) (discussing “extreme and outrageous”
conduct and distress “so severe that no reasonable person could be expected to
endure it” together). This court will do the same.
For conduct to be “extreme and outrageous” that caused emotional distress
“so severe that no reasonable person could be expected to endure it” to satisfy an
outrage claim, it must be “so extreme in degree as to go beyond all possible bounds
of decency and be regarded as atrocious and utterly intolerable in a civilized
society.” Wilson, 2017 WL 6397654, at *2 (internal quotations and citations
The following circumstances that could not support an outrage claim
demonstrate the substantially heavy burden in showing that conduct is “extreme
and outrageous” under Alabama law: a law enforcement officer coerced a prisoner
into waiving her rights, lied that her attorney abandoned her, and threatened her
with “sizzling” and “frying” in the electric chair, Tinker v. Beasley, 429 F.3d 1324,
1330–31 (11th Cir. 2005); a city council member said if “things had gotten ugly”
during a fight at a city hall, “we’d be having [plaintiff’s] funeral,” Little v.
Robinson, 72 So. 3d 1168, 1173 (Ala. 2011); a defendant abused, insulted, and
threatened a plaintiff with wrongful foreclosure to collect a debt, Green Tree, 565
So. 2d at 45; and a defendant threatened, abused, humiliated, and terminated an
employee without cause, and thereby caused the employee’s weight loss and
insomnia, Am. Rd. Serv. Co. v. Inmon, 394 So. 2d 361, 367 (Ala. 1980).
But the Supreme Court of Alabama has found a viable claim for outrage in
three general circumstances: “(1) wrongful conduct in the family-burial context;
(2) barbaric methods employed to coerce an insurance settlement; and (3)
egregious sexual harassment.” Wilson, 2017 WL 6397654, at *3 (citations
omitted). But the Supreme Court of Alabama has “not held that the tort of outrage
can exist in only those three circumstances.” Id. (emphasis in original).
Notably, Alabama law affords “[g]reat respect [to] the resting place of the
dead” and particularly condemns conduct that interferes with burials, human
remains, and resting places. Whitt, 519 So. 2d at 906. For example, the Supreme
Court of Alabama held that disinterring a corpse, throwing acid on it, and
disposing of some of it in the woods to solve an odor problem could support an
outrage claim. Gray Brown-Serv. Mortuary, Inc. v. Lloyd, 729 So. 2d 280, 285–86
(Ala. 1999). The Court also found that trespassing on part of a cemetery with a
bulldozer and causing damage to a tombstone could support an outrage claim.
Whitt, 519 So. 2d at 905–06. And the Court found that an undertaker’s
misrepresentation of the decay of the plaintiff’s husband’s body to entice the
plaintiff into buying an unnecessarily expensive casket, and the unlawful retention
of the body to force payment, was outrageous conduct that justified an award of
damages for emotional distress. Levite Undertakers Co. v. Griggs, 495 So. 2d 63,
64 (Ala. 1986). Further, the Court found that stopping a funeral at the last second
and moving the funeral to an undug grave at a separate cemetery lot could support
an outrage claim. Cates v. Taylor, 428 So. 2d 637, 638 (Ala. 1983).
This case involves misconduct and misrepresentations regarding the
discovery of human remains, rather than the interference with known human
remains in the cases identified above. But, given Alabama law’s heightened
concern with human remains and loved ones’ connection with the deceased, and
given the egregious nature of Defendants’ conduct as alleged by Ms. Holloway, the
court cannot say at the motion to dismiss stage that Defendants’ conduct was not
plausibly extreme and outrageous that caused Ms. Holloway emotional distress so
severe that no reasonable person could be expected to endure it.
Ms. Holloway alleges that Mr. Holloway gave her a false glimmer of hope
after twelve years of searching for her daughter’s remains. He called her and told
her that “human female remains” were discovered at a “grave site” in Aruba and
that they could determine whether the bones matched Natalee if Ms. Holloway
provided a DNA sample. But Mr. Holloway concealed the truth that no
meaningful chance existed that the remains belonged to Natalee and that
Defendants had a financial motivation to procure her DNA.
In particular, Mr. Holloway did not tell Ms. Holloway that Mr. Ludwick, a
paid participant in an allegedly scripted television series, found the bones after
twice failing to uncover Natalee’s remains after claiming to know of their location,
and only found the bones that the Aruban authorities described as animal bones at
his aunt’s house in an apparently new Ziploc bag after Defendants stopped filming
him. Mr. Holloway also falsely claimed that the bones were from a female and hid
that the DNA found on the bones could likely have come from Mr. Ludwick after
he “discovered” them. And then Dr. Kolowski added to Ms. Holloway’s false
hope by telling her that her DNA could match the bones to Natalee’s DNA, even
though Ms. Holloway’s DNA could only exclude the bones as belonging to
Ms. Holloway thus alleges facts that show Defendants essentially took
advantage of her grief and tireless efforts to find her daughter’s remains by baiting
her with false hope for the benefit of a television series. Such conduct is plausibly
extreme and outrageous and so severe that no reasonable person could be expected
to endure it under Alabama law.
And Defendants also plausibly undertook extreme and outrageous conduct
by publishing the Series. Ms. Holloway has alleged facts showing that Defendants
subjected Ms. Holloway to a sham that took advantage of her grief and her
daughter’s disappearance week by week. She alleges that the Series was scripted
and thus designed to capitalize on viewers’ fascination with Natalee’s
disappearance and followed leads that Defendants knew or should have known
were bogus. The Series—a supposedly “true crime documentary” and “real-time
investigation—presented several gruesome descriptions of Natalee’s murder and
the desecration of her body as credible information. (See Doc. 23 at ¶ 227). But,
in reality, Defendants had more than enough reasons to doubt the veracity of Mr.
Ludwick’s claims, much less make him the main character of a “true crime
Of course, the First Amendment’s guarantee of freedom of speech and
freedom of the press protects Defendants’ publications from tort liability, but that
protection is not absolute. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56
(1988). The First Amendment does not protect against a claim for outrage brought
by a public figure if “the publication contains a false statement of fact which was
made with ‘actual malice,’ i.e., with knowledge that the statement was false or with
reckless disregard as to whether or not it was true.” Id.
Here, Ms. Holloway has alleged facts showing, and the parties do not
dispute, that she is a public figure. The media gave her daughter’s disappearance
“nearly unprecedented media coverage with round-the-clock coverage of the
investigation.” (Doc. 23 at ¶ 45). Ms. Holloway worked with several public
officials, including presidents, senators, and governors, and “the media, celebrities,
and countless others in her ongoing efforts to find Natalee.” (Id. at ¶ 47). She
published a book about Natalee’s disappearance and the aftermath. (Id. at ¶ 21).
Ms. Holloway describes herself as “that desperate mother on TV holding up
pictures of her missing child, pleading for help, describing the details surrounding
an unthinkable crime . . . living an endless nightmare in front of the whole world.”
(Id.). These allegations show that Ms. Holloway is a public figure for purposes of
her outrage claim. See Holloway v. Am. Media, Inc., 947 F. Supp. 2d 1252, 1261
n.8 (N.D. Ala. 2013) (“[T]he parties in this case do not dispute that Elizabeth
Holloway, who sought publicity about the disappearance of her daughter and
appeared frequently on television after Natalee disappeared, also is a public
In addition, Ms. Holloway has alleged facts showing that Defendants
plausibly acted with actual malice in publishing the Series. She first alleges that
Defendants made several false statements of fact in the Series, particularly
descriptions of the murder of Natalee, the location and desecration of her remains,
that Defendants discovered human remains, and that Defendants could match the
bone fragments to Natalee. (Doc. 23 at ¶¶ 227, 259–60). These statements are
false because the location of Natalee’s remains and the manner in which Natalee
died, if she died, is unknown. And Defendants did not, in fact, discover human
remains and never received test results showing that the bones were human.
Further, Defendants could never match the bone fragments to Natalee with Ms.
And Ms. Holloway has alleged several facts showing that Defendants
plausibly acted with intentional or, at least, reckless disregard for the truth of the
statements they made in the Series. She alleges that the Aruban authorities
informed Defendants that the bones in Aruba were animal bones; that Defendants
should have known that Mr. Ludwick, their primary source, lacked any credibility
because his story changed significantly during the course of the Series and he
failed to locate the remains on several occasions; that Mr. Ludwick almost
immediately found the bones in a Ziploc bag when he returned to his aunt’s house
without corroboration; that Defendants should have known that Mr. Ludwick was
highly unlikely to incriminate himself in criminal activity; that Defendants
themselves harbored serious doubts as to the truth of the information they
published; that Defendants failed to conduct a reasonable investigation into Mr.
Ludwick’s claims; that Defendants published episodes before receiving the DNA
test results so they could market the Series as discovering Natalee’s remains; and
that Defendants delayed the DNA test results so they could publish the Series with
plausible deniability as to the results at the time of publication. (Doc. 23 at ¶¶ 277,
284–90, 294–99). And, at all times, Defendants marketed the allegedly scripted
series as an unscripted true-crime documentary.
From these allegations, the court may infer that Defendants either knew that
they were publishing false claims in the Series or purposefully hid themselves from
the obvious falsity of the claims, and thus plausibly acted with actual malice to
avoid the First Amendment’s protections.
So, as she does with Defendants’ private conduct, Ms. Holloway states a
plausible claim for the tort of outrage as to Defendants’ publications.
By separate order, the court will DENY Defendants’ motion to dismiss.
DONE and ORDERED this 7th day of January, 2019.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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