JETER v. MCKEITHEN et al

Filing 29

ORDER granting 13 Motion to Dismiss for Failure to State a Claim. The relief requested in Defendant Gray Television Group Inc.'s Motion to Dismiss Plaintiff K.J.'s Claims with Prejudice (Doc. 13 ) is GRANTED. Plaintiff's claims against Defendant Gray Television Group, Inc. are DISMISSED WITHOUT PREJUDICE. Signed by JUDGE RICHARD SMOAK on 10/7/2014. (jcw)

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
LISA JETER, individually,
and as parent and natural guardian
of K.J., a minor child,
Plaintiffs,
v.

CASE NO. 5:14-cv-00189-RS-EMT

FRANK MCKEITHEN in his official
capacity as SHERIFF of BAY COUNTY,
FLORIDA; CRAIG B. ROMANS,
individually; and GRAY TELEVISION
GROUP INC., a.k.a. WJHG-TV,
Defendants.

_____________________________________/

ORDER
Before me are Defendant Gray Television Group Inc.’s Motion to Dismiss
Plaintiff K.J.’s Claims with Prejudice (Doc. 13) and Plaintiff’s Memorandum in
Opposition (Doc. 26).
I.

STANDARD OF REVIEW

To overcome a motion to dismiss, a plaintiff must allege sufficient facts to
state a claim for relief that is plausible on its face. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007). Granting a motion to dismiss is appropriate if it is
clear that no relief could be granted under any set of facts that could be proven

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consistent with the allegations of the complaint. Hishon v. King & Spalding, 467
U.S. 69, 104 S. Ct. 2229, 2232 (1984). I must construe all allegations in the
complaint as true and in the light most favorable to the plaintiff. Shands Teaching
Hosp. and Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308, 1310 (11th Cir.
2000) (citing Lowell v. American Cyanamid Co., 177 F.3d 1228, 1229 (11th Cir.
1999)).
II.

BACKGROUND

Plaintiff K.J., a minor, was arrested on charges of aggravated cyber stalking,
a felony, based on the fact that K.J. was granted administration privileges to a
Facebook page called “Panama City’s Trashiest.” (Doc. 1 at 10). The page was
allegedly used by anonymous members to bully other teenages. (Id.). The bullying
allegedly included “vulgar language, descriptions of alleged sexual activity, even a
photo of someone committing an act of bestiality with a goat,” (Id. at 13), as well
as words like “bullet in your skull.” (Id.).
The charges against K.J. were later dropped. (Id. at 12).
From July 19, 2012, to October 26, 2012, Defendant Gray Television Group,
Inc. (“Gray”) reported the story about charges being filed against K.J. and others
associated with the Facebook page. (Doc. 1 at 12). K.J. alleges that, in the course
of these broadcasts, Gray made at least six defamatory statements:

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1. Stating that “Even the [suspects who are] minors could wind up facing
charges as adults,” (Id. at 12);
2. Stating that “[I]nvestigators say four suspects used [the page] to
publically humiliate and defame dozens of Bay County teens,” (Id. at
12-13);
3. Showing the word “suspect” next to K.J.’s mugshot immediately after
showing examples of posts from the page, even ones not necessarily
attributable to the four suspects, (Id. at 13);
4. Stating that “[o]ne investigator called it the worst case of
cyberbullying he has ever seen,” (Id.);
5. Showing a parent of an alleged victim saying “their day will come,”
and afterwards stating “[a]nd that day came!” and reporting that
suspects were arrested and charged, (Id. at 13-14);
6. Misstating, in a follow-up report, the reasons that the state dropped
the charges, and leaving out the affirmative statement that it was not
the four teens who made most of the comments about the victims on
the page, (Id. at 15-16).
K.J. filed suit against the state law enforcement for her arrest and also
against Gray for defamation and defamation by implication. The law enforcement
properly removed the entire case to federal court since it implicated a federal

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question. Gray now moves to dismiss the defamation and defamation by
implication claims against it for failure to state a claim upon which relief can be
granted.
III.
a.

ANALYSIS
Legal Standard

Under Florida law, to state a claim for defamation, the plaintiff must show
that the statement had the following elements: “(1) publication; (2) falsity; (3)
actor must act with knowledge or reckless disregard as to the falsity on a matter
concerning a public official, or at least negligently on a matter concerning a private
person; (4) actual damages; and (5) statement must be defamatory.” Jews For
Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008). Florida courts also
recognize defamation by implication where a “defendant juxtaposes a series of
facts so as to imply a defamatory connection between them, or creates a
defamatory implication by omitting facts.” Id. at 1108 (citations and quotations
omitted). The law does not require perfect accuracy, only that the publication be
substantially true. Nelson v. Associated Press, Inc., 667 F. Supp. 1468, 1477 (S.D.
Fla. 1987), citing McCormick v. Miami Herald Pub. Co., 139 So.2d 197, 200
(Fla.App.1962). Defamation is evaluated objectively, and the test is whether the
“common mind” would understand the words as reasonably susceptible to a
defamatory meaning. Id., citing Valentine v. CBS, Inc., 698 F.2d 430, 432 (11th

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Cir.1983). Where the communication could not possibly have a defamatory or
harmful effect, a court may dismiss the complaint for failure to state a claim. Rubin
v. U.S. News & World Report, Inc., 271 F.3d 1305, 1306 (11th Cir. 2001) (citations
and quotations omitted).
In Florida, news media have a qualified privilege to accurately report on the
information they receive from government officials. Woodard v. Sunbeam
Television Corp., 616 So. 2d 501, 502 (Fla. Dist. Ct. App. 1993). A report is
accurate and fair if it conveys a “substantially correct” account of the official
record. Id. The press need not investigate the accuracy of official statements before
reporting their contents. Ortega v. Post-Newsweek Stations, Florida, Inc., 510 So.
2d 972, 976 (Fla. Dist. Ct. App. 1987) (“That purpose is served, notwithstanding
any inaccuracy of the information, when the information brought out in official
proceedings is reported.”).
K.J.’s argument that no qualified privilege exists for defamation by
implication claims is entirely without merit, as the Florida Supreme Court has
specifically held that “[a]ll of the protections of defamation law that are afforded to
the media and private defendants are therefore extended to the tort of defamation
by implication.” Jews for Jesus, 997 So. 2d at 1108. For the avoidance of doubt:
the qualified news media privilege does apply to defamation by implication claims
in Florida.

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b.

Application

I will apply the law to each of the alleged defamatory statements in turn.
However, I note that K.J., in her Memorandum in Opposition, only appeared
to defend only the first two allegations of defamation. (See Doc. 26 at 6-7 (noting
the “averments in support of her defamation claim” and listing only ¶¶ 18-19 of the
Complaint). K.J. has therefore abandoned the other four allegations by not
addressing them. See Hudson v. Norfolk S. Ry. Co., 209 F. Supp. 2d 1301, 1324
(N.D. Ga. 2001), citing Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir.1995) (“When a party fails to respond to an argument or otherwise
address a claim [in a response to a motion to dismiss], the Court deems such
argument or claim abandoned.”).
1. “Even the [suspects who are] minors could wind up facing charges as
adults,”
This statement cannot be the basis of a defamation claim, because the
statement is entirely truthful. K.J. does not dispute that the suspects could have
been prosecuted as adults under Florida law for the felony charges that they were
facing.
This statement also fails to state a claim for defamation by implication.
K.J.’s assertion that this statement had an implied defamatory effect of conveying
that “there is more evidence against K.J. and the other suspects than against most
minors who are charged with a felony,” (Doc. 1 at 12), fails as a matter of law.

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Under the objective test, no reasonable viewer of the broadcast would have
perceived that this statement made any comment about the amount of evidence that
police had against K.J. Rather, this entirely accurate statement, even taken with the
broadcast as a whole, conveyed to the “common mind” only the true statements
that the minors were being charged with a serious crime and that the state could
have legally prosecuted the minors as adults.
K.J.’s alternative theories, that the statement is a “mixed opinion” or that it
damages her business reputation, both fail because they cannot overcome the
qualified media privilege.
2. “[I]nvestigators say four suspects used [the page] to publically humiliate
and defame dozens of Bay County teens,”
The crux of K.J.’s argument here appears to be that there was no official
documentation that the state believed that the suspects bullied “dozens” of
people—i.e., 24 or more—and that the statement therefore does not qualify for the
privilege. Whether the police in fact told the media that the teens had bullied at
least 24 people is a disputed fact not appropriate for consideration at this time.
However, even if the police did not tell the media the number of victims of the four
teens, the defamation claim still fails as a matter a matter of law.
With respect to defamation claims, the law does not require perfect
accuracy, only that the publication be substantially true. Nelson, 667 F. Supp. at
1477. Rather than the details, the “gist” or “sting” of the statement must be

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defamatory. Rubin, 271 F.3d at 1306. Here, regardless of whether K.J. was alleged
by the police to have bullied “dozens” of victims or “at least one” victim, the
statement communicates the same “gist” to the audience. The teens were charged
with being administrators in a group that harassed a large number of victims, and
the “common mind” would not have thought meaningfully differently of K.J.’s
reputation had she instead been accused of the same affiliation and bullying just
one victim, an act which K.J. concedes doing. (Doc. 1 at 10). The exact number of
victims alleged to have been personally bullied by the four accused teens is a detail
that does not affect the substantial truth of the statement or the “gist” conveyed to
the audience. It therefore cannot state a claim for defamation.
c.

The Compact Disk

The parties dispute whether I may consider in deciding this motion the
compact disk that Gray submitted allegedly containing the defamatory broadcasts.
Because I have decided to dismiss this case by considering only the complaint on
its face, I need not decide whether it would be appropriate to consider the disk.
IV.

CONCLUSION

I therefore find that Plaintiff has failed to state a claim for defamation or
defamation by implication as to two statements which she maintains are
defamatory. Because it is early in the litigation and the facts are not yet fully
developed, the claims are dismissed without prejudice.

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The relief requested in Defendant Gray Television Group Inc.’s Motion to
Dismiss Plaintiff K.J.’s Claims with Prejudice (Doc. 13) is GRANTED. Plaintiff’s
claims against Defendant Gray Television Group, Inc. are DISMISSED
WITHOUT PREJUDICE.

ORDERED on October 7, 2014.
/S/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE