Doe v. Hagar
Filing
129
ORDER granting 86 SEALED Motion Summary Judgment on all of Plaintiff Jane Doe's Claims filed by Sammy Hagar. The Clerk of Court is directed to enter judgment in favor of Defendant Sammy Hagar and against Plaintiff Jane Doe and to close this case. Signed by Chief Judge Linda R Reade on 4/30/2013. (pac)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
JANE DOE,
Plaintiff,
No. 11-CV-2067-LRR
vs.
ORDER
SAMMY HAGAR,
Defendant.
____________________
TABLE OF CONTENTS
I.
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II.
PROCEDURAL HISTORY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
III.
SUBJECT MATTER JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . 3
IV.
SUMMARY JUDGMENT STANDARD. . . . . . . . . . . . . . . . . . . . . . . . . 3
V.
RELEVANT FACTUAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . 4
VI.
ANALYSIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A.
B.
C.
D.
Defamation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.
Applicable law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a.
Libel per se.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b.
Libel per quod.. . . . . . . . . . . . . . . . . . . . . . . . . . .
c.
Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
False Light Invasion of Privacy. . . . . . . . . . . . . . . . . . . . . . . . .
1.
Applicable law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Intentional Infliction of Emotional Distress. . . . . . . . . . . . . . . . .
1.
Applicable law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Breach of Contract. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.
Applicable law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
11
14
14
19
20
20
20
22
23
24
27
28
29
E.
VII.
2.
Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Breach of Implied Covenant of Good Faith and Fair Dealing.. . . . .
1.
Applicable law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
29
30
31
32
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
I. INTRODUCTION
The matter before the court is Defendant Sammy Hagar’s “Motion for Summary
Judgment” (“Motion”) (docket no. 86).
II. PROCEDURAL HISTORY
On October 5, 2011, Plaintiff Jane Doe filed a Petition (“Complaint”) in the District
Court for Black Hawk County, Iowa, Case No. LACV117286. Complaint (docket no. 21). In the Complaint, Doe alleges seven claims against Hagar: (1) breach of contract
(Count I); (2) breach of covenant of good faith and fair dealing (Count II); (3) negligent
infliction of emotional distress (Count III); (4) intentional infliction of emotional distress
(Count IV); (5) false light invasion of privacy (Count V); (6) defamation (Count VI); and
(7) punitive damages (Count VII). On October 27, 2011, Hagar removed this action to
this court on the basis of diversity jurisdiction. Notice of Removal (docket no. 2). On
November 29, 2011, Hagar filed an Answer (docket no. 16) to the Complaint, denying
Doe’s claims and asserting affirmative defenses.
On January 28, 2013, Hagar filed the Motion. On that same date, Hagar filed a
Statement of Material Facts (docket no. 86-1). On February 27, 2013, Doe filed a
Resistance (docket no. 109). On that same date, Doe filed a Response to Hagar’s
Statement of Material Facts (docket no. 109-1) and a Statement of Additional Material
Facts (docket no. 109-2). On March 1, 2013, Hagar filed a Reply (docket no. 110-2). On
that same date, Hagar filed a Response to Doe’s Statement of Additional Material Facts
(docket no. 110).
In the Motion, Hagar requests the opportunity to present oral argument. The court
2
finds that oral argument is unnecessary. The Motion is fully submitted and ready for
decision.
III. SUBJECT MATTER JURISDICTION
The court has diversity jurisdiction over this case because complete diversity exists
between the parties and the amount in controversy exceeds $75,000. See 28 U.S.C.
§ 1332 (“The district courts shall have original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs,
and is between . . . citizens of different States . . . .”).
Doe is an individual residing in Waterloo, Iowa, and is a citizen of Iowa. Hagar
is an individual residing in Marin County, California, and is a citizen of California. The
parties do not dispute that the amount in controversy exceeds $75,000. Therefore, the
court is satisfied that it has subject matter jurisdiction over the dispute.
IV. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A dispute is genuine if the evidence is such that it could cause a
reasonable jury to return a verdict for either party; a fact is material if its resolution affects
the outcome of the case.” Amini v. City of Minneapolis, 643 F.3d 1068, 1074 (8th Cir.
2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986)), cert.
denied, 132 S. Ct. 1144 (2012). “[S]elf-serving allegations and denials are insufficient to
create a genuine issue of material fact.” Anuforo v. Comm’r, 614 F.3d 799, 807 (8th Cir.
2010).
“To survive a motion for summary judgment, the nonmoving party must
substantiate [its] allegations with sufficient probative evidence [that] would permit a finding
in [its] favor based on more than mere speculation, conjecture, or fantasy.” Barber v. C1
Truck Driver Training, LLC, 656 F.3d 782, 801 (8th Cir. 2011) (second alteration in
original) (quoting Putman v. Unity Health Sys., 348 F.3d 732, 733-34 (8th Cir. 2003))
3
(internal quotation marks omitted). The court must view the record in the light most
favorable to the nonmoving party and afford it all reasonable inferences. See Schmidt v.
Des Moines Pub. Sch., 655 F.3d 811, 819 (8th Cir. 2011).
V. RELEVANT FACTUAL BACKGROUND
Viewing the evidence in the light most favorable to Doe and affording her all
reasonable inferences, the uncontested material facts are as follows:
From 1982 to 1985, Doe was a Playboy bunny in Lansing, Michigan. In 1983, Doe
met Hagar, a musician best known as the lead singer for Van Halen, after attending one
of Hagar’s concerts. Doe became acquainted with Hagar and some of Hagar’s bandmates
and was often invited to attend Hagar’s concerts.
Doe and Hagar had a sexual relationship that began, to the best of Doe’s
recollection, in 1984 and was carried on intermittently through 1988. In 1985, Doe moved
to New York City. In June 1988, Doe attended a Van Halen concert in Detroit, Michigan.
That evening, Doe had intercourse with Hagar. Doe then became pregnant. Sometime
within the three-month period after the Detroit concert, Doe called Ed Leffler, Hagar’s
manager, to tell him that she was pregnant and that she believed that Hagar was the father.
Hagar believed that his wife would become upset if she learned about Hagar’s affair with
Doe and, thus, he hoped to keep the affair private. Doe’s close friends and family knew
about her relationship with Hagar and that Doe believed that Hagar had impregnated her.
Doe hired a lawyer who began negotiating an agreement on behalf of Doe with
Hagar whereby Doe would keep the affair confidential and, in return, Hagar would pay
some of Doe’s living expenses. On September 27, 1988, Doe’s lawyer sent a letter to
Hagar proposing that Hagar’s lawyer contact her so that they could negotiate an agreement
and stating that, if Hagar did not respond “within a reasonable time, [Doe would] have no
other option but to commence litigation.” September 27, 1988 letter, Doe App’x (docket
no. 109-3 through 109-12) at 359. On November 11, 1988, Hagar’s counsel sent Doe a
4
letter enclosing a copy of the proposed agreement and indicating that Hagar would send
Doe $2,000 once Doe signed the agreement. November 11, 1988 letter, Doe App’x at
374.
On February 17, 1989, Doe and Hagar entered into the Agreement. Agreement,
Doe App’x at 13-23. The Agreement states that Doe is pregnant and alleges that Hagar
is the father. Specifically, the Agreement included the following:
1. Payments. [Hagar] shall pay [Doe] the following monies:
(a) The sum of Five Hundred ($500.00) Dollars per week
commencing with the week beginning October 3, 1988, and
terminating as set forth below, provided, however, that all
such weekly payments thereby payable for the period
commencing October 3, 1988 until the date hereof are being
paid simultaneously with the execution of this Agreement and
the receipt of such payment is hereby acknowledged by [Doe].
The weekly payments due prospectively hereunder shall
commence on the execution of this Agreement . . . . Such
weekly payments shall terminate upon the occurrence of the
earliest of any of the following: (i) the issuance by the
laboratory of the results of the four (4) Tests to be performed
under Paragraph 4 hereof; (ii) six (6) months after the date of
the birth of the Prospective Child, with such birth, and date
thereof, to be confirmed to [Hagar] by notice to him to such
effect within 10 days after such birth; (iii) a miscarriage; (iv)
a stillbirth; (v) any other termination of [Doe’s] pregnancy; or
(vi) any further disclosure, as referred to in Paragraph 3
hereof, that [Hagar] is the father of the Prospective Child.
(b) The sum of Three Thousand Seven Hundred ($3,700)
Dollars representing the balance of [Doe’s] physician’s fee for
medical services through the delivery of the Prospective Child
....
....
(c)
The sum of Two Thousand ($2,000) Dollars which
5
represents payment in full for [Doe’s] legal fee expenses in
connection with [Doe’s] representation regarding the
negotiation and consummation of this Agreement and any
related agreement(s) up to the time of the birth of the
Prospective Child . . . .
....
3. Non-disclosure.
(a) [Doe] covenants and agrees that she will not disclose, or
cause, directly or indirectly any other party to disclose, beyond
the disclosure referred to in subpart (c) of this Paragraph, her
belief that [Hagar] is the father of the Prospective Child until
the earliest of the following events:
i) The results of the Tests have been received.
ii) 33 weeks after the birth of the Prospective Child, whether
or not the Test results have been received and/or whether the
Tests were taken; provided that [Doe] has not refused to
submit to the Tests . . . in which event [Doe’s] obligation not
to disclose shall continue until [Doe] may submit to the Tests;
further, provided, however, in the event the Prospective Child
is not submitted for the Tests within said 33 week period on
account of the Prospective Child’s medical ineligibility
therefor (as may be determined by the Prospective Child’s
pediatrician), then, in such event, [Hagar] shall have the right
to elect to continue [Doe’s] covenant of non-disclosure
hereunder until the results of the Tests have been received, by
giving notice to [Doe] of such election, and by continuing to
make the weekly payments hereunder (i.e., $500 per week)
until the Test[] results have been received.
iii)
Any termination of support payments under this
Agreement, including, but not limited to, termination of
support for disclosure or alleged disclosure by [Doe].
(b) Notwithstanding the foregoing, in the event of a
miscarriage, stillbirth, or other termination of [Doe’s]
6
pregnancy with the Prospective Child, [Doe’s] covenant not to
disclose her belief that [Hagar] was the father of the
Prospective Child shall then continue in perpetuity.
(c) [Doe] further represents that to date the sole disclosure she
has made of her belief that [Hagar] is the father of the
Prospective Child is to her parents, siblings, certain friends at
her former place of employment, other close friends, and her
niece and nephew, and her attorney or attorneys in connection
with this matter, and she shall use her best efforts to assure no
further said disclosure shall be made by these persons.
(d) In the event there is any further disclosure of [Doe’s]
belief that [Hagar] is the father of the Prospective Child,
beyond that referred to in subpart (c) of this Paragraph, and
excluding any disclosure of said belief to [Hagar’s] attorne[ys]
or business manager or any further such disclosure which is
attributable, directly or indirectly to [Hagar], [Hagar] shall
then have the right to terminate weekly payments for any
payments accruing under this Agreement after notification to
[Doe’s] attorney of said disclosure and the place where said
disclosure appeared or was stated, provided, however, that
upon any such termination, [Doe] shall have all rights, in law
or equity, to seek any and all relief available to her in any
court of competent jurisdiction to establish paternity of the
Prospective Child and support for the Prospective Child and
herself as if this Agreement had never been entered into.
(e) [Hagar’s] sole remedy for any breach by [Doe] of her
covenant of non-disclosure as provided in this Paragraph . . . ,
shall be to terminate the weekly support payments under this
Agreement for any payments accruing after notification to
[Doe’s] attorney of said disclosure as set forth in subpart (d)
of this Paragraph.
....
7. Confidentiality. This Agreement and the terms thereof are
deemed by the parties to be confidential and [Doe] and [Hagar]
each further agree that they shall not cause or permit this
7
Agreement to be disclosed to any other party, except in the
enforcement of this Agreement in a court of competent
jurisdiction. Notwithstanding anything else stated hereunder,
[Doe] may also explain in any court of competent jurisdiction
that her failure to make any further disclosure subsequent to
the execution of this Agreement was based on an agreement
between [Doe] and [Hagar] providing for limited nondisclosure.
8. Entire Agreement. This Agreement represents the entire
understanding of the parties with respect to the subject matter
contained herein and as such may not be modified or altered in
any manner except in a writing signed by both parties hereto.
Agreement, Doe App’x at 14-19, 21.
On February 27, 1989, Doe gave birth to Dylan Reed Doe. Dylan died on March
4, 1989. No paternity tests were ever performed. On April 5, 1989, Doe sent Hagar a
letter indicating that she had complied with the terms of the Agreement and acknowledging
receipt of a $7,000 payment from Hagar in consideration of the Agreement. April 5, 1989
letter, Doe App’x at 401.
In March 2011, Hagar released his autobiography, Red: My Uncensored Life in
Rock (“Red”).
On pages 116 through 117 of Red, Hagar tells his account of his
interactions with Doe:
On the tour, there was a former Playboy bunny from
California hanging around, who used to see one of the other
guys in my old band. Somehow she hooked up with Leffler,
although she had always been after me. She was goodlooking, but there was just something about this chick that was
not to be trusted. She saw my name on Leffler’s rooming list
and came knocking at my door in the middle of the night in
Detroit. I answered the door without any clothes—I sleep
naked—and she pushes the door open, throws me on the bed,
and starts blowing me. That’s kind of tough to get up and
walk away from. “Son of a bitch,” I was thinking, “I’m
fucked now.” And sure enough, I was.
8
About ten days later, Leffler gets the phone call. She’s
pregnant. I smelled a setup. I was so pissed off. Betsy would
commit suicide. We hired an attorney and started dealing with
her. I knew it was not my baby. It was extortion.
She wanted an apartment in New York and anything for
that kid that my children would have. I didn’t want to pay a
penny, but Leffler convinced me the smart thing to do was
give her the money until the baby was born and see what
happened at that point. She was living with her boyfriend, a
musician in New York, in the apartment when she had the
baby. She called Leffler from the hospital. “Tell Sammy to
call me,” she said. I didn’t want to talk to her, but Leffler
talked me into it. She tells me the baby is so cute, looks just
like me, she’s madly in love with me, she’s so sorry, shit like
that.
A couple days later, Leffler gets another call. The baby
died. I don’t believe that she ever had a baby. She may have
had an abortion early on. Marshall Lever, my psychic with
the sleeping dog, told me about it. “It’s not your baby,” he
said. “She’s living with her boyfriend in New York. She has
a boyfriend that’s a musician and this is probably an extortion
case. Don’t worry, just relax, and once she has the baby, it’s
all going to go away.”
I never heard from her again. Obviously, it wasn’t my
baby, and they knew it. They just extorted me as long as they
could. No one ever saw her again.
Red excerpt, Doe App’x at 362-63. Hagar does not refer to Doe by name in Red and does
not provide dates for when the interactions took place. Further, Hagar describes Doe as
“a former Playboy bunny from California.” Id. at 362. Doe is not from California.
Doe told some of her close family and friends that Red discussed her relationship
with Hagar. In addition, Doe stated that she believed that “Pam Fisher, Shari Kniep,
Tammy Shepard, Philip Kniep, Jim Shepard, Linda Prichkaitis, Cicilia Liptay, Francine
9
Rozich, Lynette Daniels, Joscelynne Bordeaux, and Marsha Kobliska all understood that
pages 116-117 of Red referred to [Doe].” Doe’s Second Supplemental Answers to Hagar’s
First Set of Interrogatories, Hagar App’x (docket no. 86-2) at 218. In addition, Doe listed
forty-one individuals1 who “have been informed that . . . Hagar is the father of Dylan.”
Doe’s Answers to Hagar’s First Set of Interrogatories, Hagar App’x at 225-26.
VI. ANALYSIS
The court will consider each of Doe’s remaining claims in the Complaint2 and
determine whether summary judgment in favor of Hagar is appropriate as to each claim.
The court notes that it does not address the claims in the order that they are listed in the
Complaint.
The court will apply Iowa law to Doe’s defamation, false light invasion of privacy
and intentional infliction of emotional distress claims. See Hammonds v. Hartford Fire
Ins. Co., 501 F.3d 991, 996 n.6 (8th Cir. 2007) (“[A] district court sitting in diversity
applies the substantive law of the state in which it is located.” (citing Erie R.R. Co. v.
Tompkins, 304 U.S. 64 (1938))). The court will apply New York law to Doe’s breach of
contract and breach of implied covenant of good faith and fair dealing claims, pursuant to
1
The court notes that the number of individuals who have been informed that Hagar
is the father of Dylan is higher than forty-one because the list states “& their children”
next to two couples. Doe’s Answers to Hagar’s First Set of Interrogatories, Hagar App’x
at 225. The court did not add in any individuals to account for such children.
2
In her Resistance, Doe states that “[d]iscovery has shown that . . . Hagar acted
intentionally, not negligently, in inflicting distress on . . . Doe. Thus, Count III is
waived.” Resistance at 30 n. 23. In light of Doe’s waiver of Count III, the court shall
dismiss Count III and will not address Hagar’s request for summary judgment in his favor
with respect to Count III. In addition, the court will not address Doe’s claim for punitive
damages (Count VII).
10
the choice-of-law provision in the Agreement.3 See John T. Jones Constr. Co. v. Hoot
Gen. Constr. Co., 613 F.3d 778, 783 (8th Cir. 2010) (“Once the existence of a contract
is determined, the parties’ intent as evinced in the choice-of-law provision controls, and
[the court] will apply [the law of the forum chosen by the parties] to questions of
interpretation or construction of the contract.” (citation omitted)).
A. Defamation
In Count VI of the Complaint, Doe alleges that Hagar’s “false statements
concerning . . . Doe are defamatory and have held her up to ridicule and scorn in a
respectable segment of the community, namely, those persons . . . who knew of [Doe’s]
past relationship with . . . Hagar.” Complaint ¶ 42. In the Brief in Support of the
Motion, Hagar argues that the court should grant summary judgment in his favor with
respect to Count VI. Specifically, Hagar alleges that Doe has not suffered an injury,
Hagar’s statements in Red are not defamatory, the statements were not published, the
statements are substantially true and the statements are opinion. Doe counters that
summary judgment is not appropriate because the statements qualify as libel per se and,
therefore, her claim does not require proof of injury; the statements were published; the
statements are provably false and the statements are not opinion.
1.
Applicable law
The Iowa Supreme Court has explained that “[d]efamation includes the twin torts
of libel and slander. Libel involves written statements, while slander involves oral
statements.” Kiesau v. Bantz, 686 N.W.2d 164, 174 (Iowa 2004) (citation omitted).
Under Iowa law, libel is defined as “‘malicious publication, expressed either in printing
or in writing, . . . tending to injure the reputation of another person or to expose [the
person] to public hatred, contempt, or ridicule or to injure [the person] in the maintenance
3
The Agreement states that it “shall be construed, interpreted and governed by the
laws of the State of New York.” Agreement, Doe App’x at 22.
11
of [the person’s] business.’” Vinson v. Linn-Mar Cmty. Sch. Dist., 360 N.W.2d 108, 115
(Iowa 1984) (alterations in original) (quoting Plendl v. Beuttler, 111 N.W.2d 669, 670-71
(Iowa 1961)).
“To establish a prima facie case of libel, the plaintiff must show the defendant: ‘(1)
published a statement that (2) was defamatory (3) of and concerning the plaintiff, and (4)
resulted in injury to the plaintiff.’” Kiesau, 686 N.W.2d at 175 (quoting Johnson v.
Nickerson, 542 N.W.2d 506, 510 (Iowa 1996)). Iowa courts have held that the plaintiff’s
repetition of allegedly defamatory statements does not qualify as “publication.” See, e.g.,
Belcher v. Little, 315 N.W.2d 734, 737 (Iowa 1982) (holding that the plaintiff’s repetition
of the defamatory statements did not constitute publication).
In addition, Iowa courts have held that a statement may be “of and concerning the
plaintiff” even if the statement does not refer to the plaintiff by name. See, e.g., Bierman
v. Weier, 826 N.W.2d 436, 464 (Iowa 2013) (“[T]his element only requires that a thirdparty recipient be able to understand who is the intended subject.”); Shaw Cleaners &
Dyers, Inc. v. Des Moines Dress Club, 245 N.W. 231, 234 (Iowa 1932) (providing that,
when a plaintiff alleged that a newspaper advertisement contained libelous statements, the
fact “that [the plaintiff] [was] not named in the [advertisement] is immaterial” when an
individual who regularly read the newspaper would understand that the statements referred
to the plaintiff). “Of course, it is not necessary to constitute a libel that the article name
the person libeled, but it must by inference or innuendo at least refer in an intelligent way
to the person libeled.” Boardman & Cartwright v. Gazette Co., 281 N.W. 118, 120 (Iowa
1938) (finding that an article was not libelous when it made no mention “of the plaintiffs
by name and no inference or innuendo seem[ed] to connect them with any alleged wrong
doing or lack of duty or unprofessional and unethical conduct”); see also Brummett v.
Taylor, 569 F.3d 890, 892 (8th Cir. 2009) (affirming the district court’s grant of summary
judgment, which applied Iowa law to the underlying defamation action, when the district
12
court found that, “[w]hile the record is clear that plaintiffs were among those intended to
be the object of [the defendant’s] statements, there is no evidence to support a finding that
the recipients of [the defendant’s] publication understood each individual plaintiff to be the
intended object of [the defendant’s] statements”); Restatement (Second) of Torts § 564
cmt. a (“It is necessary that the recipient of the defamatory communication understand it
as intended to refer to the plaintiff.”).
With respect to the injury requirement, the Iowa Supreme Court has stated that, in
order “[t]o recover in an action for defamation, a plaintiff must ordinarily prove some sort
of cognizable injury, such as injury to reputation.” Johnson, 542 N.W.2d at 513. “Hurt
feelings alone cannot serve as the basis of a defamation action.” Id. “[I]f no harm can be
established[,] the [defamation] action must be regarded as trivial in nature.”
Id.
(upholding the lower court’s grant of summary judgment in favor of the defendant in a
defamation action when the plaintiff could not prove injury). In addition, with respect to
the publication requirement, the Iowa Supreme Court has held that “[t]he defamed party
has not suffered injury until someone other than [her]self learns of the defamation. The
injured party cannot create [her] own cause of action by communicating the [libelous]
statements to others unless under strong compulsion to do so.” Belcher, 315 N.W.2d at
737-38.
Iowa courts recognize “two types of libel: libel per se and libel per quod.” Schlegel
v. Ottumwa Courier, A Div. of Lee Enters., Inc., 585 N.W.2d 217, 222 (Iowa 1998).4 “A
statement is libelous per se if it has ‘a natural tendency to provoke the plaintiff to wrath
or expose him [or her] to public hatred, contempt, or ridicule, or to deprive him [or her]
of the benefit of public confidence or social intercourse.’” Johnson, 542 N.W.2d at 510
4
The court notes that the Iowa Supreme Court recently upheld the doctrine of libel
per se as it applies to private plaintiffs in suits against nonmedia defendants for defamatory
statements that do not involve a matter of public concern. Bierman, 826 N.W.2d at 45859.
13
(quoting Prewitt v. Wilson, 103 N.W. 365, 367 (Iowa 1905)). Statements are libelous per
se and, therefore, actionable without proof of malice, falsity or injury if they are “of such
a nature, whether true or not, that the court can presume as a matter of law that their
publication will have a libelous effect.” Vinson, 360 N.W.2d at 115-16 (citing Haas v.
Evening Democrat Co., 107 N.W.2d 444, 447 (Iowa 1961)). Thus, when statements are
libelous per se, a jury may “award substantial damages without the necessity of the
plaintiff proving actual damage to reputation.” Schlegel, 585 N.W.2d at 222. “In case
of statements that are libelous per se, damages for mental anguish or hurt feelings are
allowed because damage to reputation is presumed.” Id.; see also Sawheny v. Pioneer HiBred Int’l Inc., 93 F.3d 1401, (8th Cir. 1996) (“Under Iowa law . . . [a]ttacking the
integrity and moral character of a party constitutes libel per se.”); Huegerich v. IBP, Inc.,
547 N.W.2d 216, 221 (Iowa 1996) (“To accuse a person of an indictable crime is
defamation per se.”); Spencer v. Spencer, 479 N.W.2d 293, 296 (Iowa 1991) (finding that
publishing statements accusing someone of “being a liar, a cheater, or thief” qualifies as
libel per se); Overstreet v. New Nonpareil Co., 167 N.W. 669, 672 (Iowa 1918) (finding
that publishing statements that a person is untrustworthy, a hypocrite and a traitor in his
employment qualifies as libel per se).
Libel per quod, on the other hand, “simply means that one must refer to facts or
circumstances beyond the words actually used to establish the defamation.” Schlegel, 585
N.W.2d at 222. In a case where statements are libelous per quod, “a plaintiff must first
prove actual damage to reputation before the plaintiff can recover for mental anguish or
hurt feelings.” Id.
2.
Application
a.
Libel per se
Hagar argues that the statements are not libelous per se because the statements do
not name Doe specifically and “Doe must introduce extrinsic evidence to show that the
14
paragraphs are ‘of and concerning’ her.” Brief in Support of Motion (docket no. 86-3) at
16. According to Hagar, the statements have no “natural tendency to provoke [Doe] to
wrath or expose [her] to public hatred, contempt, or ridicule, or to deprive [her] of the
benefit of public confidence or social intercourse,” id. at 15 (quoting Schlegel, 585
N.W.2d at 222) (internal quotation mark omitted), because the only individuals who would
recognize Doe as the woman described in Red “already knew the facts and rejected
Hagar’s account when Doe presented it to them,” id. Rather, Hagar alleges that, if
anything, the statements qualify as libel per quod because “extrinsic evidence is necessary
to prove the defamation.” Id. at 15-16.
Doe alleges that Hagar’s allegedly libelous statements accuse her of extortion and
depict her as interested only in sex and money and, thus, qualify as libel per se. Doe
claims that, because Hagar “presumably impregnated only one former Playboy bunny, . . .
everybody who knew . . . Doe during this time and who knew about the affair with . . .
Hagar can recognize her in the book.” Resistance at 4 (emphasis omitted). Doe further
claims that “there is no requirement whatsoever that the plaintiff actually be named, or
even that individuals within the community knew that he or she was the person named.”
Id. at 18. Doe argues that the court may apply “the libel per se doctrine to the words in
question even though [Doe] was not specifically named in the relevant passage.” Id. at 19.
Calling a person an extortionist may be libelous per se. See Sawheny, 93 F.3d at
1410 (“Attacking the integrity and moral character of a party constitutes libel per se.”).
However, a statement that is libelous per se must be libelous on its face. Am. Jur. Libel
§ 145 (2013). “A statement is not libelous on its face if the defamatory meaning would
appear only to readers who might be able to recognize it through some knowledge of
specific facts and/or circumstances, not discernable from the face of the publication, and
which are not matters of common knowledge rationally attributable to all reasonable
persons.” Id. Thus, the court finds that a libel per se claim cannot stand where the
15
statements do not refer to the person by name and do not include any unique identifying
information.
Doe relies on numerous cases that she claims support her argument. First, Doe
cites Morse v. Times-Republican Printing Co., 100 N.W. 867 (Iowa 1904). In Morse, the
newspaper-defendant, which published allegedly libelous statements about the plaintiff,
used the plaintiff’s name several times, making it clear to anyone reading the newspaper
who the article referred to. Id. at 868. The Iowa Supreme Court stated that, when the
statements at issue are libelous per se, “[a]ll the plaintiff is required to prove is the
publication itself and his own identity as the person thus assailed.” Id. at 871. However,
the Court had already established that the statements, which clearly and repeatedly
identified the plaintiff by name, were libelous per se. Id. at 869-70. Thus, Morse does
not support Doe’s argument that the court should find that the statements concerning Doe
in Red are libelous per se when Doe’s name is not used and the statements do not make it
clear that they refer to Doe in any other way, unless the reader knew of the relationship
between Doe and Hagar prior to reading Red.
Doe also relies on the Iowa Supreme Court’s analysis in Bierman to support her
argument that the statements at issue are libelous per se. In Bierman, the plaintiffs, the
defendant’s ex-wife and his ex-wife’s father, brought a libel action against the defendant
after he wrote and published a memoir, which allegedly contained libelous statements
about the plaintiffs. Bierman, 826 N.W.2d at 440. Although the allegedly libelous
passages in the memoir did not include the plaintiffs’ names, the Iowa Supreme Court
affirmed the lower court’s denial of the defendant’s motion for summary judgment with
respect to the plaintiffs’ libel per se claim. Id. at 464-65. However, one of the passages
at issue, on page twenty of the memoir, referred to “‘two women we spoke of earlier.’”
Id. at 465. The Iowa Supreme Court stated that:
In the preceding nineteen pages, only two women are
discussed—[the defendant’s] ex-wife and a woman who
16
became pregnant and claimed [the defendant] was the father.
. . . [I]t does not take speculation or guesswork to put two and
two together. Other statements that are the subject of the
lawsuit clearly refer to [the defendant’s] “ex” or “ex-wife.”
Accordingly, the district court [appropriately found that there
was a genuine issue of material fact] as to whether the
challenged statements were “of and concerning” [the plaintiff].
Id. In Bierman, even though the allegedly libelous passages did not refer to the plaintiffs
by name, the context made it clear that the passages referred to the defendant’s ex-wife
without requiring any “speculation or guesswork” from the reader. Id. Thus, Bierman
is distinguishable from the instant action because Red does not provide any context
indicating that the allegedly libelous statements refer to Doe and does not refer to Doe
outside of the five paragraphs at issue. A reader would only understand that such
statements refer to Doe if the reader had independent knowledge of the situation between
Doe and Hagar.
Finally, Doe argues that the Iowa Supreme Court’s holding in Shaw Cleaners &
Dyers supports her argument that the statements at issue are libelous per se. The allegedly
libelous statements in Shaw Cleaners & Dyers were printed in a dry cleaner’s newspaper
advertisement, which stated “Garments Cleaned at Half-Price are only Half Cleaned . . .
Don’t be misled by half-price cleaning.” Shaw Cleaners & Dryers, 245 N.W. at 232
(internal quotation marks omitted).
Over the course of several weeks prior to the
defendant running the advertisement at issue, the plaintiff, a competing dry cleaner, ran
an advertisement in the same newspaper that stated “half price for the 2nd. garment.” Id.
(internal quotation marks omitted). The Iowa Supreme Court ultimately held that the
statements were not libelous. Id. at 235. However, in dicta, the Court stated that “the
mere fact that [the plaintiff] is not named in the published article is immaterial.” Id. at
234. An individual who read the newspaper during the weeks prior to the advertisement
at issue would be able to conclude, without speculation, that the advertisement referred to
the plaintiff’s dry cleaning company. See id. (citing Overstreet, 167 N.W. at 672 (finding
17
that, where the plaintiff alleged that the defendant published libelous statements about the
plaintiff in a newspaper, although the statements at issue did not refer to the plaintiff by
name, “[a] person reading the entire matter . . . might connect the discussion to and
reasonably infer that it referred to [the plaintiff]”)). Thus, Shaw Cleaners & Dyers is
distinguishable from the instant matter because, in this case, an individual who read the
entirety of Red would not understand the statements at issue to refer to Doe unless the
reader already knew of the relationship between Doe and Hagar. Further, Shaw Cleaners
& Dyers provides that a plaintiff may have a defamation claim when the plaintiff is not
explicitly named, not a libel per se claim.
Thus, Doe does not provide the court with any legal authority, and the court is
aware of none, that supports a finding that the statements at issue may qualify as libel per
se when such statements do not refer to Doe by name and, in order to understand that the
statements refer to Doe, the reader must have additional information concerning Doe and
Hagar’s relationship. Although, as Doe correctly points out, a libel claim may stand even
when extrinsic facts are required to show that the statements are of and concerning Doe,
such statements must “unambiguously tend[] to provoke [Doe] to wrath or expose [her] to
public hatred, contempt, or ridicule” to be libelous per se. Bierman, 826 N.W.2d at 464
(quoting Johnson, 542 N.W.2d at 510) (internal quotation marks omitted). The court finds
that the statements concerning Doe in Red do not have “a natural tendency to provoke
[Doe] to wrath or expose [her] to public hatred, contempt, or ridicule, or to deprive [her]
of the benefit of public confidence or social intercourse,” Johnson, 542 N.W.2d at 510
(quoting Prewitt, 103 N.W. at 367) (internal quotation marks omitted), because a reader
would have no way of knowing that the statements refer to Doe unless the reader had
knowledge of the situation between Doe and Hagar prior to reading Red. Thus, the court
cannot “presume as a matter of law that their publication will have a libelous effect.”
Vinson, 360 N.W.2d at 116. If anything, the statements at issue are libelous per quod,
which “simply means that one must refer to facts or circumstances beyond the words
18
actually used to establish the defamation.” Schlegel, 585 N.W.2d at 222. Such is the case
in the instant matter.
Based on the foregoing, the court finds that the statements at issue are not libelous
per se because the statements do not, on their own, injure Doe’s reputation. That is, in
order to understand that the relevant passage in Red refers to Doe, a reader would have to
“refer to facts or circumstances beyond the words actually used” in Red. Id. Therefore,
a libel per se claim cannot stand.
b.
Libel per quod
Having determined that the statements are not libelous per se, the court next turns
to consider whether the statements are libelous per quod. The court notes that Doe argues
that the alleged libelous statements constitute libel per se and, thus, she argues she may
assert her claim without showing injury. However, because, as the court has already
determined, the statements are not libelous per se, Doe must show that she suffered a
cognizable injury in order to allege a prima facie case of libel pursuant to the doctrine of
libel per quod. See Kiesau, 686 N.W.2d at 175. The court finds that Doe has failed to
show that she suffered an injury as a result of Hagar’s allegedly libelous statements and,
thus, a libel per quod claim cannot stand.
Doe does not allege any financial damages and does not show any injury to her
reputation. In addition, in her deposition, Doe could not identify anyone who “thinks less”
of her because of the statements referencing her in Red. Doe deposition, Hagar App’x at
59-60. Further, the court cannot conceive of how Doe could claim to have suffered an
injury to her reputation due to the statements referencing her in Red because the only
individuals who could have understood that the statements in Red refer to Doe had to have
already known of the relationship between Doe and Hagar, and such knowledge likely
came from Doe herself. Thus, the court finds that Doe has failed to show that she suffered
a cognizable injury due to the allegedly libelous statements.
19
c.
Summary
Based on the foregoing, the court finds that there is no genuine issue of material fact
as to whether the statements referencing Doe in Red support a defamation claim. The
court finds that Doe’s defamation claim fails because (1) the statements are not libelous per
se because neither the statements themselves nor Red as a whole clearly refer to Doe and,
thus, extrinsic evidence is necessary to make such a showing; and (2) Doe has failed to
properly allege a libel per quod claim because she has not shown that she suffered an
injury as a result of the statements. Because the court finds summary judgment with
respect to Count VI appropriate on these grounds, the court finds it unnecessary to address
Hagar’s alternative arguments that the statements were not published, are opinion and are
substantially true. Accordingly, the court shall grant the Motion to the extent it requests
that the court grant summary judgment in Hagar’s favor on Count VI.
B. False Light Invasion of Privacy
In Count V of the Complaint, Doe claims that “Hagar published the false statements
about . . . Doe with actual malice, placing her in a false light that was highly offensive,
within the community of people who knew about . . . Doe’s relationship with . . . Hagar
and the birth and death of Dylan.” Complaint ¶ 39. In the Brief in Support of the Motion,
Hagar argues that the court should grant summary judgment in his favor with respect to
Count V because “Doe claims disclosure only to the small group she says believed the
paragraphs referred to her” and, thus, Doe “cannot show the required ‘publicity’” for a
false light claim. Brief in Support of Motion at 28. Doe argues that her false light claim
satisfies the publicity element because Red has sold hundreds of thousands of copies.
1.
Applicable law
The Iowa Supreme Court first recognized the tort of invasion of privacy in Bremmer
v. Journal-Tribune Publishing Co., 76 N.W.2d 762, 764-65 (Iowa 1956). Since Bremmer,
the Iowa Supreme Court has adopted and applied the invasion of privacy principles
articulated in the Restatement (Second) of Torts. See In re Marriage of Tigges, 758
20
N.W.2d 824, 829 (Iowa 2008); Stessman v. Am. Black Hawk Broad. Co., 416 N.W.2d
685, 686 (Iowa 1987); Lamberto v. Brown, 326 N.W.2d 305, 309 (Iowa 1982); Anderson
v. Low Rent Hous. Comm’n of Muscatine, 304 N.W.2d 239, 248 (Iowa 1981). A false
light invasion of privacy claim is one of “four distinct wrongs” comprising the common
law tort of invasion of privacy. Anderson, 304 N.W.2d at 248. A false light claim “is
predicated upon an untruthful publication which places a person before the public in a
manner that would be highly offensive to a reasonable person.” Id. The Iowa Supreme
Court has held:
One who gives publicity to a matter concerning another that
places the other before the public in a false light is subject to
liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be
highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard
as to the falsity of the publicized matter and the false light in
which the other would be placed.
Winegard v. Larsen, 260 N.W.2d 816, 823 (Iowa 1977) (quoting Restatement (Second)
of Torts § 652E) (noting that such a claim “overlaps the law of defamation”).
“The essential element of untruthfulness differentiates ‘false light’ from the other
forms of invasion of privacy and many times affords an alternate remedy for defamation
even though it is not necessary for a plaintiff to prove that he or she was defamed.”
Anderson, 304 N.W.2d at 248. A plaintiff “may recover under either defamation or false
light but not both causes of action.” Bradbery v. Dubuque Cnty., No. 99-1881, 2001 WL
23144, at *4 (Iowa Ct. App. Jan. 10, 2001); see also Berry v. Nat’l Broad. Co., 480 F.2d
428, 431 (8th Cir. 1973) (stating that a plaintiff “may lay his action in [theories of false
light and defamation], but will be limited to only one recovery”).
With respect to the “publicity” requirement of a false light invasion of privacy
claim, the Restatement (Second) of Torts provides that publicity “means that the matter is
21
made public, by communicating it to the public at large, or to so many persons that the
matter must be regarded as substantially certain to become one of public knowledge.”
Restatement (Second) of Torts § 652D cmt. a; see also id. § 652E cmt. a (noting that the
definition of publicity found in § 652D cmt. a applies). “Thus it is not an invasion of the
right of privacy . . . to communicate a fact concerning the plaintiff’s private life to a single
person or even to a small group of persons.” Id. § 652D cmt. a; see also Yoder v. Smith,
112 N.W.2d 862, 864 (Iowa 1962) (holding that, when the defendant sent letters to the
plaintiff’s employer that included false statements pertaining to the plaintiff’s debts, the
plaintiff did not have an invasion of privacy claim because the communication was not to
the general public); 62A Am. Jur. 2d Privacy § 141 (2013) (“[I]n actions for false-light
invasion of privacy, the requirement of ‘publicity’ consists of communication to the public
at large, or to so many persons that the matter must be regarded as substantially certain to
become one of public knowledge.”).
2.
Application
As Doe states in the Complaint, Hagar’s statements concerning Doe in Red placed
her in a false light, if at all, “within the community of people who knew about . . . Doe’s
relationship with . . . Hagar and the birth and death of Dylan.” Complaint ¶ 39. In her
Resistance, Doe relies on the Iowa Supreme Court’s holding in Bierman to support her
false light claim. In Bierman, the Iowa Supreme Court held that there was a genuine issue
of material fact regarding whether the plaintiffs satisfied the publication requirement of
their false light invasion of privacy claim regarding allegedly defamatory statements in the
defendant’s memoir when “[a]pproximately twenty to thirty copies of the book were
distributed,” the defendant had “attempted to market the book for sale at local businesses”
and the defendant had promoted the book on television. Bierman, 826 N.W.2d at 466.
The court recognizes that Red has sold hundreds of thousands of copies. However,
as discussed above, the only individuals who would understand that the statements in Red
refer to Doe are those who already had knowledge of the relationship between Doe and
22
Hagar. Cf. Bernstein v. Nat’l Broad. Co., 129 F. Supp. 817, 834 (D.C.D.C. 1955)
(finding that “in invasion of privacy, where defendant has published facts in such a way
that there has been no disclosure to persons not already aware of them,” such disclosure
is not sufficient to satisfy the publicity requirement of an invasion of privacy claim), aff’d,
232 F.2d 369 (D.C. Cir. 1956). The court therefore finds that the number of copies of
Red that have been sold is not dispositive of publicity.
Thus, the instant matter is distinguishable from Bierman because the only
individuals to whom the allegedly defamatory statements were published are those who
already knew of the relationship between Doe and Hagar, not everyone who read Red. In
Bierman, however, anyone who read the memoir could understand that the allegedly
defamatory statements referred to the plaintiffs. See Bierman, 826 N.W.2d at 465
(providing that any reader of the memoir could conclude that the allegedly defamatory
statements referred to the plaintiff without “speculation or guesswork”).
The court finds that the disclosure of the allegedly false statements to individuals
already aware of the relationship between Doe and Hagar does not satisfy the “publicity”
requirement of Doe’s false light invasion of privacy claim because the general public will
not know that the statements are about Doe and, thus, the false statements cannot “be
regarded as substantially certain to become . . . public knowledge.” Restatement (Second)
of Torts § 652D cmt. a. Accordingly, the court shall grant the Motion to the extent it
requests that the court grant summary judgment in Hagar’s favor on Count V.
C. Intentional Infliction of Emotional Distress
In Count IV of the Complaint, Doe alleges that “Hagar’s publication of the
statements was done intentionally or with reckless disregard for the certain devastating
emotional impact his doing so would have on . . . Doe.” Complaint ¶ 35. Doe further
claims that Hagar’s conduct was “extreme, outrageous, beyond the standards of civilized
decency, and utterly intolerable” and that Hagar’s conduct proximately caused Doe to
suffer damages, “including distressful mental reactions and anguish, and severe emotional
23
distress, with attendant physical manifestations of harm.” Id. ¶¶ 36-37.
In the Brief in Support of the Motion, Hagar argues that the court should grant
summary judgment in his favor with respect to Count IV because Doe’s intentional
infliction of emotional distress claim “fail[s] with the defamation claim” because a showing
of reputational harm is a prerequisite for an intentional infliction of emotional distress
claim. Brief in Support of Motion at 26. In addition, Hagar argues that the court should
grant summary judgment because Hagar’s conduct was not sufficiently “outrageous “ and
Doe has not shown that she suffered physical harm or severe or extreme emotional
distress. Id. Doe counters that her pleadings are sufficient to establish a genuine issue of
material fact with respect to Count IV.
1.
Applicable law
Under Iowa law, a plaintiff must show the following elements in order to allege a
claim for intentional infliction of emotional distress: (1) outrageous conduct by the
defendant; (2) the defendant intentionally caused or acted in reckless disregard of the
probability of causing emotional distress; (3) the plaintiff suffered severe or extreme
emotional distress; and (4) the defendant’s outrageous conduct was the actual and
proximate cause of the plaintiff’s emotional distress. Vinson, 360 N.W.2d at 118. “It is
for the court to determine in the first instance whether the relevant conduct may reasonably
be regarded as outrageous.” Id.; see also Roalson v. Chaney, 334 N.W.2d 754, 756 (Iowa
1983) (“‘It is for the court to determine, in the first instance, whether the defendant’s
conduct may reasonably be regarded as so extreme and outrageous as to permit
recovery . . . .’” (quoting Restatement (Second) of Torts § 46 cmt. h)).
“For conduct to be ‘outrageous’ it must be ‘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 community.’” Suntken v. Den Ouden, 548 N.W.2d 164, 168 (Iowa Ct. App.
1996) (quoting Harsha v. State Sav. Bank, 346 N.W.2d 791, 801 (Iowa 1984)); see also
Taggart v. Drake Univ., 549 N.W.2d 796, 802 (Iowa 1996) (stating that, to qualify as
24
outrageous, “the conduct must be extremely egregious; mere insult, bad manners, or hurt
feelings are insufficient”). “Peculiar susceptibility, by reason of physical or mental
condition of the person affected, is a factor in considering whether conduct is outrageous,
although ‘major outrage’ is always the crucial element of the tort.” Cutler v. Klass,
Whicher & Mishne, 473 N.W.2d 178, 183 (Iowa 1991) (quoting Restatement (Second) of
Torts § 46 cmt. f) (finding that there was no genuine issue of material fact on the plaintiff’s
intentional infliction of emotional distress claim when members of a law practice notified
a partner who suffered from a period of mental illness that he could not return to the
practice without further review by the partners).
“[S]ubstantial evidence of such extreme conduct” is required to show that the
conduct is “outrageous.” Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 636 (Iowa
1990). With respect to what evidence is necessary to prove outrageous conduct, the Iowa
Supreme Court has stated:
It has not been enough that the defendant has acted with an
intent which is tortious or even criminal, or that he has
intended to inflict emotional distress, or even that his conduct
has been characterized by “malice,” or a degree of aggravation
which would entitle the plaintiff to punitive damages for
another tort. Liability has been found only where the conduct
has been 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
community. Generally, the case is one in which the recitation
of the facts to an average member of the community would
arouse his resentment against . . . the actor, and lead him to
exclaim, “Outrageous!”
Roalson, 334 N.W.2d at 756 (quoting Restatement (Second) of Torts § 46 cmt. d); see also
Engstrom v. State, 461 N.W.2d 309, 320 (Iowa 1990) (holding that social workers’
negligence in failing to search for the plaintiffs’ adopted daughter’s biological father before
placing her in the plaintiffs’ home and telling adoptive parents that the adopted daughter’s
father was dead without verifying his death was not outrageous); Vinson, 360 N.W.2d at
25
119 (holding that, although “a jury could find defendants engaged in a deliberate campaign
to badger and harass plaintiff, . . . their conduct [does not] rise[] to the level of extremity
essential to support a finding of outrageousness”).
“It is for the court to determine whether on the evidence severe emotional distress
can be found . . . .” Restatement (Second) of Torts § 46 cmt. j. An intentional infliction
of emotional distress claim requires proof that the plaintiff suffered “severe or extreme
emotional distress,” which was caused “by the defendant’s outrageous conduct.” Vinson,
360 N.W.2d at 118. This requires the plaintiff to “present more evidence than he or she
just felt bad for a period of time; plaintiff must prove that he or she suffered extremely
unpleasant mental reactions.” Steckelberg v. Randolph, 448 N.W.2d 458, 461-62 (Iowa
1989) (noting that cases where the Iowa Supreme Court found “substantial evidence of
emotional harm have had direct evidence of either physical symptoms of the distress or a
clear showing of a notably distressful mental reaction caused by the outrageous conduct”).
“The law intervenes only where the distress inflicted is so severe that no reasonable man
could be expected to endure it.” Restatement (Second) of Torts § 46 cmt. j; see also
Bethards v. Shivvers, Inc., 355 N.W.2d 39, 44-45 (Iowa 1984) (finding that the record
lacked substantial evidence that the plaintiffs suffered severe emotional distress when the
plaintiffs had shown that they were angry, lost sleep, quivered and worried about
reputational damage).
In addition, a plaintiff must show that the emotional distress suffered stemmed from
the defendant’s outrageous conduct rather than from a preexisting condition. See Doe v.
Cent. Iowa Health Sys., 766 N.W.2d 787, 794-95 (Iowa 2009) (finding that the plaintiff
failed to present substantial evidence showing that his emotional distress was caused by his
employer’s unauthorized release of his mental health records because the plaintiff “merely
relied on conclusory statements to support his claim” and “[t]he jury had no basis upon
which to determine if [the plaintiff’s] emotional distress was caused by the unauthorized
disclosures of the records or by [the plaintiff’s] preexisting condition”).
26
2.
Application
In support of her argument that Hagar’s conduct was “outrageous” enough to
support her intentional infliction of emotional distress claim, Doe relies on the Iowa
Supreme Court’s holding in Meyer v. Nottger, 241 N.W.2d 911 (Iowa 1976). In Meyer,
the plaintiff brought an intentional infliction of emotional distress claim against a mortician
who dealt with the plaintiff’s father’s body after his death and undertook services and
duties incident to the plaintiff’s father’s funeral and burial. Id. at 914. The plaintiff
alleged that: (1) the defendant misadvised the plaintiff that his father’s wife died after his
father, in order to induce the plaintiff “to retain only the [d]efendant to undertake the
services and duties incident to the funeral and burial”; (2) the defendant misadvised the
plaintiff that his father’s body had an “objectionable odor” requiring a more expensive
casket; (3) the defendant misadvised the plaintiff that he and his family could not view the
body; and (4) the defendant allowed the procession to proceed without the plaintiff’s
presence, contrary to the plaintiff’s instruction to the defendant. Id. at 917.
It appears that Doe is arguing that Meyer is comparable to the underlying matter
because “the words or actions occurred in connection with the death of a close relative.”
in her case, her son Dylan, and in Meyer, the plaintiff’s father. Resistance at 31. Doe
further alleges that Hagar’s conduct was “far more outrageous” than that of the defendant
in Meyer. Id. However, the court finds that Doe’s claims are not immediately following
death, as the case was in Meyer, because Hagar published Red and the statements at issue
therein over twenty-two years after Dylan’s death. Thus, Meyer is not persuasive to the
court on the instant matter.
The court finds that Hagar’s conduct was not sufficiently “outrageous” to support
Doe’s intentional infliction of emotional distress claim. Hagar’s conduct—writing and
publishing statements referencing his relationship with Doe and the death of Dylan—is not
“‘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 community.’” Suntken, 548 N.W.2d at
27
168 (quoting Harsha, 346 N.W.2d at 801). Further, “the recitation of the facts to an
average member of the community would [not] arouse his resentment against [the] actor,
and lead him to exclaim, ‘Outrageous!’”
Roalson, 334 N.W.2d at 756 (quoting
Restatement (Second) of Torts § 46 cmt. d). Although Hagar’s statements in Red brought
back painful memories for Doe, the evidence does not support a finding that Hagar’s
conduct was extreme enough to permit the court to find outrageous conduct sufficient to
support Doe’s intentional infliction of emotional distress claim. See id. (“It has not been
enough that the defendant has acted with an intent which is tortious or even criminal, or
that he has intended to inflict emotional distress, or even that his conduct has been
characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to
punitive damages for another tort.” (quoting Restatement (Second) of Torts § 46 cmt. d)).
In addition, Doe has not provided the court with substantial evidence showing that
she has suffered any emotional distress due to the publication of Red. Rather, “[a]ll the
evidence of Doe’s emotional distress claim consist[s] exclusively of [her] own conclusory
statements.” Doe, 766 N.W.2d at 795. Thus, the court finds that Doe has failed to show
that Hagar’s conduct was sufficiently outrageous and that she suffered emotional distress
in order to support her intentional infliction of emotional distress claim. Accordingly, the
court shall grant the Motion to the extent it requests that the court grant summary judgment
in Hagar’s favor on Count IV.
D. Breach of Contract
In Count I of the Complaint, Doe alleges that, “[b]y publishing the false
statements, . . . Hagar materially breached the terms of the [A]greement.” Complaint
¶ 22. In the Brief in Support of the Motion, Hagar argues that the court should grant
summary judgment in his favor with respect to Count I because Hagar did not disclose the
existence of the Agreement and, thus, did not breach the terms of the Agreement.
Additionally, Hagar argues that “Doe herself breached the Agreement . . . by disclosing
its terms and Hagar’s alleged paternity.” Brief in Support of Motion at 25. Doe claims
28
that she did not materially breach the Agreement. She further argues that Hagar breached
the confidentiality provision of the Agreement as well as the “central purpose of the
Agreement,” which was “to keep private the parties’ affair and . . . Doe’s pregnancy.”
Resistance at 26.
1.
Applicable law
As stated above, the court shall apply New York law to Doe’s contract claims
pursuant to the choice-of-law provision in the Agreement. See Agreement, Doe App’x at
22. Pursuant to New York law, “[c]onstruction of an unambiguous contract is a matter
of law, and the intention of the parties may be gathered from the four corners of the
instrument and should be enforced according to its terms.” Beal Sav. Bank v. Sommer,
865 N.E.2d 1210, 1213 (N.Y. 2007). “Further, a contract should be ‘read as a whole,
and every part will be interpreted with reference to the whole; and if possible it will be so
interpreted as to give effect to its general purpose.’” Id. at 1213-14 (quoting In re
Westmoreland Coal Co. v. Entech, Inc., 794 N.E.2d 667, 670 (N.Y. 2003)). “‘A written
agreement that is clear, complete and subject to only one reasonable interpretation must
be enforced according to the plain meaning of the language chosen by the contracting
parties.’” Acumen Re Mgmt. Corp. v. Gen. Sec. Nat’l Ins. Co., No. 09 CV 01796 (GBD),
2012 WL 3890128, *5 ( S.D.N.Y. Sept. 7, 2012) (quoting Brad H. v. City of New York,
slip op. 5543, at *4 (N.Y. June 28, 2011)).
“‘[A] motion for summary judgment may be granted in a contract dispute . . . when
the contractual language . . . is found to be wholly unambiguous and to convey a definite
meaning.’” Id. (alterations in original) (quoting Topps Co. v. Cadbury Stani S.A.I.C., 526
F.3d 63, 68 (2d Cir. 2008)). “‘The matter of whether the contract is ambiguous is a
[threshold] question of law for the court.’” Id. (alteration in original) (quoting Law
Debenture Trust Co. of N.Y. v. Maverick Tube Corp., 595 F.3d 458, 465 (2d Cir. 2010)).
2.
Application
The Agreement includes a confidentiality provision, which states that the
29
“Agreement and the terms thereof are . . . confidential” and Doe and Hagar “shall not
cause or permit th[e] Agreement to be disclosed to any other party.” Agreement, Doe
App’x at 21. In Red, Hagar recounts his affair with Doe and states that he “hired an
attorney and started dealing with [Doe]” and “Leffler convinced [Hagar] the smart thing
to do was give [Doe] the money until the baby was born.” Red excerpt, Doe App’x at
363.
The court finds that the statements in Red contain nothing more than a vague
reference to Hagar’s relationship with Doe. While the Agreement explicitly prohibits Doe
from disclosing her belief that Hagar is the father of the child, the only provision in the
Agreement prohibiting Hagar from disclosing anything is the confidentiality provision,
which refers only to the Agreement and the terms of the Agreement—not the underlying
circumstances. In addition, as discussed above, the only individuals who would understand
that the statements in Red refer to Doe are those who had knowledge of the relationship
between Doe and Hagar prior to reading Red. Thus, it is difficult to conceive of how the
statements at issue could violate the confidentiality provision. Therefore, the court finds
that Hagar did not breach the Agreement because, although the statements at issue
acknowledge that Doe claimed Hagar was the father of her child and that Hagar paid Doe
money while she was pregnant, Hagar did not disclose the Agreement or the terms of the
Agreement. This holding does not interpret the Agreement in a way that fails to “give
effect to its general purpose.”
Beal Sav. Bank, 865 N.E.2d at 1214 (quoting
Westmoreland Coal Co., 794 N.E.2d at 670) (internal quotation mark omitted).
Accordingly, the court shall grant the Motion to the extent it requests that the court grant
summary judgment in Hagar’s favor on Count I.
E. Breach of Implied Covenant of Good Faith and Fair Dealing
In Count II of the Complaint, Doe alleges that, when Hagar entered into the
Agreement, he “undertook a covenant of good faith and fair dealing, which carried with
it a duty . . . to protect . . . Doe’s rights to receive the benefit of the [A]greement.”
30
Complaint ¶ 26. Doe goes on to allege that, “[b]y publishing the false statements, . . .
Hagar committed an intentional or reckless act, which unfairly frustrated an agreed
common purpose of the [A]greement . . . and disappointed the reasonable expectations of
. . . Doe in connection with the [A]greement, thereby depriving her of the benefit of her
bargain.” Id. ¶ 27.
In the Brief in Support of the Motion, Hagar argues that the court should grant
summary judgment in his favor with respect to Count II because the Agreement includes
an express confidentiality clause, which Hagar did not breach, and “[n]o duty can be
implied that is inconsistent with that express confidentiality clause. . . . Red either
breached the express confidentiality clause or it did not. The implied covenant does not
help Doe’s claim.” Brief in Support of Motion at 26. Doe counters that the statements
at issue “surely deprived . . . Doe of the benefit of her bargain” because Doe “was entitled
to believe that . . . Hagar would not disclose the existence of an agreement to pay tentative
child support in order to publicly accuse her of being an extortionist.” Resistance at 28.
1.
Applicable law
Under New York contract law, there is “an implied covenant of good faith and fair
dealing, pursuant to which neither party to a contract shall do anything which has the effect
of destroying or injuring the right of the other party to receive the fruits of the contract.”
M/A-COM Sec. Corp. v. Galesi, 904 F.2d 134, 136 (2d Cir. 1990); see also Aventine Inv.
Mgmt., Inc. v. Canadian Imperial Bank of Commerce, 697 N.Y.S.2d 128, 130 (N.Y. App.
Div. 1999) (“This [implied covenant of good faith and fair dealing] is breached when a
party to a contract acts in a manner that, although not expressly forbidden by any
contractual provision, would deprive the other party of the right to receive the benefits
under their agreement.”). “For a complaint to state a cause of action alleging breach of
an implied covenant of good faith and fair dealing, the plaintiff must allege facts which
tend to show that the defendant sought to prevent performance of the contract or to
withhold its benefits from the plaintiff.” Aventine Inv. Mgmt., Inc., 697 N.Y.S.2d at 130.
31
2.
Application
Doe argues that, when Hagar disclosed that he made payments to a “former Playboy
bunny from California” who claimed that she was pregnant with Hagar’s baby and referred
to the situation as “extortion,” Red excerpt, Doe App’x at 362-63, he “depriv[ed] her of
the benefit of her bargain,” namely, her privacy, Complaint ¶ 27. However, Hagar did
not disclose the Agreement or the terms of the Agreement—the only thing Hagar promised
not to disclose under the Agreement. Further, an individual reading Red would have no
way of knowing that the statements at issue refer to Doe unless the individual was already
aware of the relationship between Doe and Hagar. Thus, Hagar’s statements in Red did
not compromise Doe’s privacy or injure her right “to receive the fruits of the contract.”
M/A-COM Sec. Corp., 904 F.2d at 136. Accordingly, the court shall grant the Motion to
the extent it requests that the court grant summary judgment in Hagar’s favor on Count II.
VII. CONCLUSION
In light of the foregoing, Defendant Sammy Hagar’s Motion for Summary Judgment
(docket no. 86) is GRANTED. The Clerk of Court is DIRECTED to enter judgment in
favor of Defendant Sammy Hagar and against Plaintiff Jane Doe and to CLOSE THIS
CASE.
DATED this 30th day of April, 2013.
32
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?