BELL et al v. ROSEN et al
ORDER granting in part and denying in part 34 Motion for Judgment on the Pleadings; denying 43 Motion for Leave to File. Plaintiffs Richard E. Bell, Jr. and Karen K. Bell are hereby dismissed as parties to this action. Ordered by US DISTRICT JUDGE HUGH LAWSON on 1/10/2018. (aks)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
RICHARD E. BELL, JR., KAREN K. BELL,
BRANDEN R. BELL, and BRIAN E. BELL,
Civil Action No. 7:16-CV-16 (HL)
JOHNSON PUBLISHING COMPANY, LLC,
a/k/a JOHNSON PUBLISHING COMPANY,
Before the Court is Defendant Johnson Publishing Company, LLC’s Motion
for Partial Judgment on the Pleadings (Doc. 34). Defendant moves the Court to
dismiss the defamation claims of Plaintiffs Richard E. Bell, Jr. and Karen K. Bell
(the “Bell Parents”). Defendant additionally moves to dismiss Plaintiffs’ collective
claim for punitive damages, alleging that Plaintiffs failed to follow the statutory
requirements set forth in Georgia’s retraction statute and thus are not entitled to
the recovery of punitive damages. Upon review of the pleadings, and with the
benefit of oral argument, the Court GRANTS IN PART AND DENIES IN PART
Defendant’s motion. Also before the Court is Plaintiffs’ Motion for Leave to
Amend Amended Complaint (Doc. 43). For the following reasons, Plaintiffs’
motion is DENIED.
Around 1:30 p.m. on January 10, 2013, the body of Kendrick Johnson
(“KJ”), a Sophomore at Lowndes County High School (“LCHS”) in Valdosta,
Georgia, was discovered in a standing gym mat in the school’s old gym.
Speculation abounded about how KJ came to be in the rolled-up mat, and media
outlets began probing the developing story. Between August 12, 2013 and April
9, 2014, Defendant Johnson Publishing Company, LLC (“Johnson Publishing”),
published a series of fifteen articles on their website Ebony.com pertaining to
KJ’s death and the ensuing investigation (the “KJ Articles” or “Articles”).
Frederick A. Rosen (“Rosen”), 1 a writer known for his “true crime” publications,
authored the majority of the articles. The initial five articles, published between
August 12, 2013 and September 23, 2013, were entitled “Who Killed Kendrick
Johnson.” In these first articles, Rosen questions the integrity of the investigation
into the cause of KJ’s death, suggesting that KJ was murdered under suspicious
circumstances and not the victim of an unfortunate accident as claimed by local
Rosen was dismissed as a party to this lawsuit on March 8, 2017.
On September 4, 2013, Rosen first reports about a student by the name of
“Sean Marshal,” who allegedly was involved in an altercation with KJ on a school
bus traveling to an away football game several months prior to KJ’s death. (Doc.
31-1, p. 23). Sean Marshal is a pseudonym that Rosen later changed to “Clark
Martin” in his October 25, 2013 article “Did a Fight Lead to Kendrick Johnson’s
Murder?” (Id. at p. 36). The article describes Clark Martin as a white male who
was a Senior at LCHS. (Id. at p. 36). According to the article, detectives following
up on the story about the altercation between KJ and Clark Martin contacted
“Sam Martin,” Clark’s father, and requested an interview:
When Adams did, the father, Sam Martin, referred him to his
attorney, who would not permit any interviews at that time.
However, two weeks later on January 31, Det. John Marion
followed up and contacted one of Martin’s parents and was
able to go to their house and speak to the teen.
(Id.). Clark reportedly told the investigators during this meeting that he did not
know KJ and that on the day of KJ’s death he was in the weight room and not in
the old gym. (Id. at p. 37). The Martins’ younger son Chris, a Sophomore at
LCHS, was present during the interview of Clark. (Id.). The detectives sought and
obtained permission from the parents, Sam and Susan Martin, to speak with
Chris as well. (Id.). Chris told the detectives that he had observed both KJ and
other students throwing their shoes over the gym mats, which they would retrieve
the next day to play basketball. (Id.). On March 21, 2013, the Lowndes County
Sheriff’s Department (“LCSO”) contacted the Martin’s attorney about Clark and
Chris Martin providing a formal statement to police. (Id.). The attorney, after
consulting with Sam Martin, informed the LCSO that the two young men would
not be meeting with investigators. (Id.).
In this same article, Rosen reports that in April 2013, investigators
interviewed another student who stated that it was Chris and not Clark Martin
who got into a fight with KJ on the school bus. (Id. at p. 38). Chevene King, an
attorney of KJ’s parents, also purportedly stated during a radio interview that
following the altercation Sam Martin invited KJ to his home for a rematch. (Id.).
While the alleged fight between KJ and Chris Martin remained as a central
feature in Rosen’s investigation into what led to KJ’s death, any further mention
of the Martin parents in the remaining articles is sparse. Rosen recaps the
majority of the events described in his October 25 article in his November 19,
2013 article “Tweets from Possible Suspects Raise Eyebrows” (the “Tweets”
article). (Id. at p. 40-44). However, in this article Rosen also notes that Beau
Webster, a private investigator hired by KJ’s family, specifically identified Clark
and Chris Martin as possible suspects for the murder of KJ. (Id. at p. 41).
According to the article, Webster additionally identified other alleged suspects
and stated that they were under investigation by the Federal Bureau of
Investigation. (Id.). Webster apparently also discovered that Chris Martin and KJ
fought a second time. (Id.). This discovery is what led investigators to approach
Sam Martin for permission to interview Chris. (Id.). Rosen then states, “We have
been able to confirm that the elder Martin is an FBI agent. He refused to have his
son interviewed by the sheriff’s detectives, instead referring them to his attorney.”
(Id. at 41-42). The “Tweets” article goes into more detail about what transpired
during the investigator’s January 31, 2013 meeting with the Martin family, again
stating that the detectives obtained permission from either Sam or Susan Martin
to speak with the boys. (Id. p. 42). However, neither the “Tweets” article nor any
of Rosen’s subsequent submissions to Ebony.com describe any further
involvement of Sam or Susan Martin.
On April 18, 2014, Plaintiffs’ counsel sent Johnson Publishing a letter
entitled “Demand for Retraction and Payment of Unliquidated Damages.” (Doc.
31-2). The letter demands the following pursuant to O.C.G.A. § 51-5-11:
within fourteen (14) days of the receipt of this letter, [Johnson
Publishing] issue a written retraction to the national media of
the statements you have made that the sons of the FBI agent
identified in your articles were involved at all in the death of KJ
or any possible cover-up of the death. You must retract any
claim that their father, or any member of the Bell family, was
part of the alleged cover-up of KJ’s murder. If you agree to
make a retraction, we will furnish you with a specific retraction
statement acceptable to the Bells.
(Doc. 31-2, p. 11-12). Plaintiffs further demand that Johnson Publishing pay $1.5
million in compensatory damages within thirty (30) days of receiving the letter.
(Id. at p. 12).
Plaintiffs’ counsel sent a second letter to Johnson Publishing dated May
19, 2014, entitled “For Settlement and Retraction Purposes Only.” (Doc. 31-3).
This letter sets forth the retraction notice Plaintiffs required Johnson Publishing
issue, to “be released to all U.S. print and broadcast media, as well as web
media or others linked to any Johnson web site.” (Id. at p. 1). The letter further
specifies Plaintiffs’ requirement that the retraction notice “be written in Ebony
Magazine and posted on the Ebony website for a period of one year so that any
person attempting to access any Ebony articles about KJ . . . will see this
retraction.” (Id. at p. 2). The letter set a deadline of May 21, 2014 for Johnson
Publishing to issue the retraction. (Id. at p. 4).
Johnson Publishing removed the majority of the KJ articles from
Ebony.com on May 5, 2014. (Doc. 31, ¶ 26). However, Johnson Publishing
refused to publish the written retraction demanded by the Bell Parents. (Id.).
A motion for judgment on the pleadings is properly filed “[a]fter the
pleadings are closed[,] but early enough not to delay trial.” Fed. R. Civ. P. 12(c).
“Judgment on the pleadings is appropriate when there are no material facts in
dispute, and judgment may be rendered by considering the substance of the
pleadings and any judicially noticed facts.” Hawthorne v. Mac Adjustment, Inc.,
140 F.3d 1367, 1370 (11th Cir. 1998) (internal citations omitted); Cunningham v.
Dist. Att’y’s Office for Escambia Cty., 592 F.3d 1237, 1255 (11th Cir. 2010). In
deciding a motion for judgment on the pleadings, the facts in the complaint are
accepted as true and viewed in the light most favorable to the nonmoving party.
Id. The court may consider documents attached to the pleadings. Horsely v.
Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002).
A Rule 12(c) motion for judgment on the pleadings is governed by the
same standards as a Rule 12(b)(6) motion to dismiss. Strategic Income Fund,
LLC v. Spear, Leeds & Kellog Corp., 305 F.3d 1293, 1295 n.8 (11th Cir. 2002)
(explaining that the standard for either a Rule 12(b)(6) or Rule 12(c) motion is
“whether the count state[s] a claim for relief”). The complaint must contain
sufficient factual information to state a claim for relief that is “plausible on its
face.” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir. 2010).
When the plaintiff provides enough “factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged,”
the complaint is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “Labels and conclusions” and a “formulaic recitation of the elements of a
cause of action” are insufficient to raise a right to belief above the “speculative
level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Defendant argues that it is entitled to judgment on the pleadings because
none of the statements contained within any of the KJ Articles that potentially
reference the Bell Parents is libelous as a matter of law. Georgia law defines libel
as “a false and malicious defamation of another, expressed in print, writing,
pictures, or signs, tending to injure the reputation of the person and exposing him
to public hatred, contempt, or ridicule.” O.C.G.A. § 51-5-1(a). “To succeed in a
libel action, a plaintiff must prove that the defendant published a defamatory
statement about the plaintiff, the defamatory statement was false, the defendant
was at fault in publishing it, and the plaintiff suffered actual injury from the
statement.” Bryant v. Cox Enterprises, Inc., 311 Ga. App. 230, 234 (2011)
(quoting Mathis v. Cannon, 276 Ga. 16, 21(2) (2002)) (internal quotation marks
“Of and Concerning”
To sustain an action for libel, there is no requirement that the defamatory
statement refer directly to the plaintiff; however,
the allegedly defamatory words must refer to some ascertained or
ascertainable person, and that person must be plaintiff. If the words
used really contain no reflection on any particular individual, no
averment or innuendo can make them defamatory. An innuendo
cannot make the person certain which was uncertain before.
Armscorp of Am. v. Daugherty, 191 Ga. App. 19 (1989) (internal quotation marks
and citation omitted) (alterations adopted). The plaintiff bears the burden of
showing that “the publication was about the plaintiff, that is, whether it was of and
concerning her as a matter of identity.” Smith v. Stewart, 291 Ga. App. 86, 92
(2008) (quotation marks and citation omitted). “The test is whether persons who
knew or knew of the plaintiff could reasonably have understood that” the
allegedly defamatory statement refers to the plaintiff. Id. “It is not necessary that
all the world should understand the libel; it is sufficient if those who knew the
plaintiff can make out that she is the person meant.” Id. (alterations adopted).
The Court concludes that the KJ Articles contain sufficient identifying
information about the Bell Parents for persons who knew or knew of them to
conclude that the individuals identified as “Sam” and “Susan Martin” are actually
Richard and Karen Bell. Defendants have not argued to the contrary.
Accordingly, the Court finds that Plaintiffs have met their initial burden of
establishing that the Articles are, in part, about them.
Libel Per Se
A written defamatory statement may be actionable either as libel per se or
libel per quod. Zarach v. Atlanta Claims Ass’n, 231 Ga. App. 685, 688 (1998)
(citing Macon Telegraph Pub. Co. v. Elliott, 165 Ga. App. 719, 723(5) (1983)).
Libel per se consists of a charge that one is guilty of a crime,
dishonesty or immorality. Statements that tend to injure one in his
trade or business also are libelous per se. When determining
whether words are defamatory as a matter of law, courts may not
hunt for strained constructions and must rely upon the words
themselves in considering whether a statement was defamatory per
se. Defamatory words which are actionable per se are those which
are recognized as injurious on their face – without the aid of extrinsic
Id. (internal quotation marks and citations omitted).
“The law is abundantly clear in Georgia – words that are libelous per se do
not need innuendo.” Id.; see also Cottrell v. Smith, 299 Ga. 517, 523(II)(A),
(2016) (words that require extrinsic proof to show their defamatory nature are not
libel per se). “A publication that is claimed to be defamatory must be read and
construed in the sense in which the readers to whom it is addressed would
ordinarily understand it.” Collins v. Creative Loafing Savannah, Inc., 264 Ga.
App. 675, 679 (2003). Thus, “the whole item should be read and construed
together, and . . . if its meaning is so unambiguous as to reasonably bear but one
interpretation, it is for the judge to say whether that signification is defamatory or
not.” Fiske v. Stockton, 171 Ga. App. 601, 602(1) (1984). “Where a statement is
defamatory per se, the element of damages is inferred. Smith v. DiFrancesco,
341 Ga. App. 786, 789 (2017) (citing Strange v. Henderson, 223 Ga. App. 218,
The Bell Parents allege that the KJ Articles falsely accuse them of
conspiracy to cover up the murder of Kendrick Johnson. Under O.C.G.A. § 1610-50, a person commits the crime of “hindering the apprehension of a criminal
when, with intention to hinder the apprehension or punishment of a person whom
he knows or has reasonable grounds to believe has committed a felony or to be
an escaped prisoner, he: (1) [h]arbors or conceals such a person; or (2)
[c]onceals or destroys evidence of the crime.” The plain language of the Articles
makes no such claim against the Bell Parents.
The Articles themselves say very little about the Bell Parents and certainly
never specifically state that they were involved in any type of purported criminal
conspiracy. Defendant published Rosen’s first article in the series on August 12,
2013. (Doc. 31-1, p. 2-6). There is no reference to the Bell Parents until the sixth
article, “Did a Fight Lead to Kendrick Johnson’s Murder?”, which appeared on
October 25, 2013. (Id. at p. 35-39). In that article, it was reported that when
investigators first contacted the father of a young man believed to have been
involved in an altercation with KJ several months prior to KJ’s death, the father
initially declined permission for law enforcement to meet with his son, instead
referring the investigators to the family’s attorney. (Id. at p. 36). Two weeks later
on January 31, 2013, when the detective contacted the parents again, the
detective was invited to the home to speak with the young man. (Id.). During the
interview with the one teenage boy, the investigator sought and obtained
permission to speak with the younger son as well. (Id. at p. 37). According to this
same article, on March 21, 2013, law enforcement, interested in obtaining a
formal statement from the two boys, spoke with the family attorney, who advised
that there would be no further meetings with investigators. (Id.).
The “Tweets” article, which appeared on Ebony.com on November 19,
2013, again describes investigators’ meeting with Sam and Susan Martin and
their two sons, Clark and Chris, reiterating that the parents initially referred law
enforcement agents to their family attorney but later consented to meet with
investigators in their home. (Id. at p. 41-42). This article also identifies Sam
Martin as an FBI agent. (Id. at p. 41). Neither the Court nor the parties have
identified any additional statements that reference the Martin parents, a
pseudonym for the Bell Parents. 2
The Articles describe no criminal conduct by the Bell Parents. As the
parents of Branden and Brian, who were both minors at the time, the Bell Parents
were well within their rights either to grant or to decline interviews with their
children. Their decision to limit their sons’ contact with law enforcement was not
criminal, nor does it constitute either harboring or concealing a criminal or
concealing or destroying evidence of a crime as required under O.C.G.A. § 1610-50. In order for the Court to accept Plaintiffs’ argument that the Bell Parents
by declining further interviews somehow knew that KJ had been murdered and
engaged in an overall conspiracy to prevent the apprehension of Kendrick
Johnson’s suspected murderer, the Court would have to read a great deal into
the plain statements of the Articles and would require the imputation of innuendo,
which the court may not consider when determining whether a writing is
defamatory as a matter of law. Zarach, 231 Ga. App. at 689 (citing Willis v.
United Family Life Ins., 226 Ga. App. 661, 662 (1997)). 3 Relying on the
At the hearing held on October 11, 2017, the Court went through each of the
statements identified by Defendant as referring to the Bell Parents. The Court
then asked Plaintiffs’ counsel to explain how each statement was libelous per se
and to identify any additional statements Plaintiffs claim libeled the Bell Parents.
Plaintiffs’ counsel pointed to no additional statements within the Articles.
3 Plaintiffs misstate the law regarding the consideration of rumor and innuendo
when determining whether a statement is libelous per se. Citing to Southern Co.
v. Hamburg, 220 Ga. App. 834, 838-39 (1996), Plaintiffs suggest that the use of
unambiguous language in the Articles, the Court finds that the statements
contained in the KJ Articles pertaining to the Bell Parents are not libel per se as a
matter of law.
Plaintiff Rick Bell additionally argues that he was libeled per se because
the Articles injured him in his business as an FBI agent. The November 19, 2013
“Tweets” article does identify “Sam Martin” as an FBI agent. However, neither the
“Tweets” article nor any of the other KJ articles ever states that Martin’s position
as an FBI agent had any bearing on his parental decision to limit his sons’
contact with law enforcement. Any allegation that Rick Bell abused his authority
as an FBI agent, again, would require the impermissible reliance on implication
Libel Per Quod
“[I]f the defamatory character of the words does not appear on their face
but only become defamatory by the aid of extrinsic facts, they are not defamatory
per se, but per quod, and are said to require innuendo.” Zarach, 231 Ga. App. at
688 (citation and punctuation omitted). “An essential element of an action for libel
per quod is that the plaintiff be able to show special damages.” Zarach, 231 Ga.
innuendo is not prohibited under Georgia law. A closer reading of the passage
relied upon by Plaintiff, however, reemphasizes that when a publication’s
“meaning is so unambiguous as to reasonably bear but one interpretation, it is for
the judge to say whether that signification is defamatory or not.” Id. It is only
where the statement is subject to multiple interpretations that a jury then may
take into consideration “all the circumstances surrounding its publication,
including extraneous facts admissible in evidence.” Id.
App. at 698 (citing Jamison v. First Ga. Bank, 193 Ga. App. 219, 222(3) (1989)).
These special damages “must be the loss of money, or of some other material
temporal advantage capable of being assessed in monetary value.” Id. (internal
quotation marks omitted). A heightened pleading standard applies to special
damages, which must be specifically stated. Fed. R. Civ. P. 9(g); see Ballemead,
LLC v. Stoker, 280 Ga. 635, 639 (2006).
The Bell Parents’ claim of libel per quod fails as a matter of law because
they did not plead special damages with specificity in their Amended Complaint.
In their response to Defendant’s motion, Plaintiffs do not address the absence of
a claim for special damages: “Since Defendant’s statements constitute libel per
se, it is unnecessary to address Defendant’s argument that Plaintiffs failed to
plead special damages.” (Doc. 37, p. 12). Johnson Publishing accordingly is
entitled to judgment on the pleadings with respect to the Bell Parents libel per
Defendant moves the Court to dismiss Plaintiffs’ claim for punitive
damages, arguing that Plaintiffs’ retraction request did not comply with Georgia’s
retraction statute. Under O.C.G.A. § 51-5-11,
[i]n any civil action for libel which charges the publication of an
erroneous statement alleged to be libelous, it shall be relevant
and competent evidence for either party to prove that the
plaintiff requested retraction in writing at least seven days prior
to the filing of the action or omitted to request retraction in this
O.C.G.A. § 51-5-11(a). The statute further provides that a plaintiff shall not be
entitled to punitive damages, and the defendant shall only be liable to pay actual
damages where: (1) the allegedly libelous statement was published without
malice; the defendant within seven days of receiving the demand for retraction
publishes a correction or retraction in a conspicuous manner; and, if requested
by the plaintiff, the defendant additionally publishes an editorial repudiating the
allegedly libelous statement; or (2) the plaintiff does not make a written request
for correction and retraction. O.C.G.A. § 51-1-11(b) and (c).
It is undisputed that Plaintiffs sent Defendant a written retraction demand.
Plaintiffs’ April 18, 2014 letter to Defendant made the following demand:
We demand that, pursuant to O.C.G.A. § 51-1-11, within fourteen
(14) days of receipt of this letter, you issue a written retraction to the
national media of the statement you have made that the sons of the
FBI agent identified in your articles were involved at all in the death
of KJ or any possible cover-up of the death. You must retract any
claim that their father, or any member of the Bell family, was part of
the alleged cover-up of KJ’s murder. If you agree to make a
retraction, we will furnish you with a specific retraction statement
acceptable to the Bells.
(Doc. 31-2, p. 11-12). Plaintiffs additionally demanded compensatory damages in
the amount of $1.5 million.
Then, on May 19, 2014, Plaintiffs provided Defendant with the specific
statement Plaintiffs wished for Defendants to publish, which included a statement
of admitted liability and required that the retraction “be released to all U.S. print
and broadcast media, as well as web media or others linked to any Johnson web
site.” (Doc. 31-3, p. 1). The letter further demanded that the “[r]etraction be
written in Ebony Magazine and posted on the Ebony website for a period of one
year so that any person attempting to access any Ebony articles about KJ, or
making a web or other inquiry about KJ or the Ebony/Rosen articles (which shall
not be re-published by Johnson or elsewhere with Johnson’s permission), on the
Ebony website or its Twitter, Facebook and e-mail accounts, will see this
retraction.” (Id. at p. 9).
Defendant argues that Plaintiffs are not entitled to recover punitive
damages because the content of their retraction demand exceeds the basic
provisions of the statute and includes burdensome conditions. The plain
language of the retraction statute provides that as a precondition to the recovery
of punitive damages a libel plaintiff first must “request a correction or retraction
before filing their civil action against any person for publishing a false,
defamatory statement.” Mathis v. Cannon, 276 Fa. 16, 28 (2002) (finding that the
plaintiff was not entitled to recover punitive damages where he asked an Internet
provider to delete several posts made by the defendant but did not request in
writing before filing his complaint that the defendant correct or retract any of his
statements). However, other that setting forth the timeline for when the retraction
notice must be provided, the statute does not place any limitations on the
contents of the notice. The statute also does not require that the defendant meet
any particularized demand made by the plaintiff to avoid payment of punitive
damages, explaining that a plaintiff shall not be entitled to pay punitive damages
where the defendant provides proof:
(A) That the matter alleged to have been published and to
be libelous was published without malice;
(B) That the defendant, in a regular issue of the newspaper
or other publication in question, within seven days after
receiving written demand, or in the next regular issue of the
newspaper or other publication following receipt of the
demand if the next regular issue was not published within
seven days after receiving the demand, corrected and
retracted the allegedly libelous statement in as conspicuous
and public a manner as that which the alleged libelous
statement was published; and
(C) That, if the plaintiff so requested, the retraction and
correction were accompanied, in the same issue, by an
editorial in which the allegedly libelous statement was
O.C.G.A. § 51-5-11(b)(1).
Finding that Plaintiffs’ satisfied the statutory precondition that they first
issue a demand for retraction prior to pursuing punitive damages, the Court
denies Defendant’s motion to dismiss Plaintiffs’ claim for punitive damages.
Whether or not Plaintiffs shall be entitled to recover punitive damages shall be a
matter for the jury to determine.
Plaintiffs’ Motion to Amend Amended Complaint
On August 27, 2014, Plaintiffs filed their initial complaint for libel and
slander against Defendant in the Southern District of Georgia’s Brunswick
Division. Defendant filed a pre-answer motion to dismiss or, in the alternative,
motion for more definite statement on October 27, 2014. Defendant’s motion
specifically challenged the sufficiency of Plaintiffs’ libel per se claims and argued
that any potential claim by the Bell Parents for libel per quod failed as a matter of
law because those Plaintiffs failed to plead special damages. Plaintiffs filed an
amended complaint on November 13, 2014, which Defendant again moved to
dismiss, in part based on the allegation that the Bell Parents had not pled special
damages and, therefore, could not pursue a libel per quod claim. The case was
transferred to this Court on September 22, 2015. Plaintiffs filed their notice of
voluntary dismissal on September 23, 2015.
Plaintiffs refiled their claims against Defendant in this Court on February
16, 2016. Again, Plaintiffs neglected to include allegations of special damages,
stating only the following:
All Plaintiffs have been permanently damaged by
Defendants’ libel in both their personal reputations, and
RICK BELL has been injured in his professional
reputation as an FBI agent. Apart from special damages
that may be proven at trial, they are entitled to recover
the sum of at least $1,000,000.00 in compensatory
damages, or such additional sum as is determined
appropriate by the jury in this case.
(Doc. 1, ¶ 45). On March 28, 2017, after agreeing to dismiss Frederick Rosen as
a defendant for jurisdiction reasons, Plaintiffs filed their fourth complaint. (Doc.
31). Plaintiffs’ Amended Complaint included no additional allegations of special
damages. Defendant raised the failure to plead special damages as a defense in
its Answer (Doc. 33, p. 33) and, on May 12, 2017, moved for judgment on the
pleadings, arguing again that the Bell Parents’ libel per quod claims fail as a
matter of law because they failed to plead special damages. (Doc. 34).
Two months later, on July 13, 2017, Plaintiffs filed the present motion to
amend their amended complaint. (Doc. 43). Plaintiffs seek permission to file what
would be their fifth complaint to finally include allegations of purported special
damages. Plaintiffs’ request comes far too late.
Federal Rule of Civil Procedure 15(a)(2) provides that “a party may amend
its pleading only with the opposing party’s written consent or the court’s leave.”
Fed.R.Civ.P. 15(a)(2). However, leave to amend shall be freely given “when
justice so requires.” Id. “[U]nless a substantial reason exists to deny leave to
amend, the discretion of the District Court is not broad enough to permit denial.”
Shipner v. Eastern Air Lines, Inc., 868 F.2d 401, 407 (11th Cir. 1989). Certain
factors justify the denial of a motion to amend, including undue prejudice to the
opposing party, undue delay, bad faith, repeated failure to cure deficiencies by
previous amendments, or futility of the amendment. Foman v. Davis, 371 U.S.
178, 182 (1962); Laurie v. Ala. Ct. of Crim. App., 256 F.3d 1266, 1274 (11th Cir.
Discovery in this case has been stayed since March 2017 as a result of the
inordinate amount of time required by the Department of Justice and the FBI to
produce documents relevant to the resolution of this case. (Doc. 26). The Court
and the parties have remained in regular contact about the production of these
documents, and the Court has intervened as it is able to help push the process
along. Nevertheless, it is apparent that this case is far from conclusion, and
additional discovery will need to be conducted once the Government finally
produces the documents requested by the parties. But the fact that there is still
time to engage in discovery does not, in the Court’s opinion, absolve Plaintiffs of
their repeated failure to cure the deficiency in their pleadings.
Plaintiffs have been on notice of the pleading deficiency since October
2014. They have now filed four complaints and still have not included allegations
of special damages. Nor have Plaintiffs offered any explanation for their repeated
failure to cure the shortcomings of their pleadings. In fact, Plaintiffs in their
response to Defendant’s motion for judgment on the pleading outright refused to
address the absence of special damages, stating that “it is unnecessary to
address Defendant’s argument that Plaintiff’s failed to plead special damages.”
(Doc. 37, p. 12 n.5).
While the passage of time certainly factors into the Court’s consideration of
Plaintiffs’ motion to amend, ultimately, the Court denies Plaintiffs’ motion based
on Plaintiffs repeated failure to cure a known deficiency. Plaintiffs have been on
notice for some time that their complaint was noticeably devoid of claims for
special damages. And, despite having ample opportunity to plead special
damages with sufficient particularly, Plaintiffs still did not. Plaintiffs’ Motion for
Leave to Amend Amended Complaint (Doc. 43) is, therefore, DENIED.
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN
PART Defendant’s Motion for Partial Judgment on the Pleadings (Doc. 34). The
Court grants Defendant’s motion to dismiss Plaintiffs Richard E. Bell, Jr. and
Karen K. Bell as parties to this lawsuit. However, the Court denies Defendant’s
motion to dismiss the remaining Plaintiffs’ claim for punitive damages. The Court
DENIES Plaintiffs’ Motion for Leave to Amend Amended Complaint (Doc. 43).
SO ORDERED this 10th day of January, 2018.
s/ Hugh Lawson_______________
HUGH LAWSON, SENIOR JUDGE
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