Yeager v. National Public Radio et al

Filing 46

MEMORANDUM AND ORDER denying 36 Motion to Amend Complaint and granting 13 Motion to Dismiss. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 11/9/18. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WILLIAM YEAGER,
Plaintiff,
vs.

Case No. 18-4019-SAC-GEB

NATIONAL PUBLIC RADIO,
ANDREW FLANAGAN, JACOB
GANZ, and ASHLEY
MESSENGER,
Defendants.
MEMORANDUM AND ORDER
The court has stated that this case would be dismissed
pursuant to defendants’ motion to dismiss the original complaint
unless plaintiff filed an amended complaint which stated a claim
upon which relief may be granted. See Doc. No. 29.

Plaintiff has

filed a 220-page amended complaint (Doc. No. 36) which the court
has construed as a proposed amended complaint and a motion for
leave to proceed upon the amended complaint.
the motion.

Doc. No. 38.

defendants’ opposition.

Defendants oppose

Plaintiff has filed a reply to

Doc. No. 45.

The proposed amended complaint adds a claim for outrage.
Other than that, the proposed amended complaint is similar to
plaintiff’s original complaint and reads something like a motion
for reconsideration.

The court has carefully considered the

proposed amended complaint and for the reasons stated below finds

1

that it fails to state a claim for relief.

The court may refer to

the order ruling on defendants’ motion to dismiss the original
complaint or include portions of that opinion in this order.
I. PROCEDURAL STANDARDS
Fed.R.Civ.P. 15(a) provides that leave to amend a complaint
shall be given freely when justice so requires.

A district court,

however, may deny leave to amend where the amendment would be
futile.

Jefferson County Sch. District v. Moody’s Investor’s

Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999).

If a proposed

amended complaint fails to state a claim or is subject to dismissal
for another reason, then the motion to amend is futile. See Fields
v. City of Tulsa, 753 F.3d 1000, 1012 (10th Cir. 2014).

The court

incorporates the standards for determining whether a complaint
fails to state a claim as set out in Doc. No. 29 at pp. 7-8.
Because plaintiff proceeds pro se, we liberally construe his
pleadings, but we will not act as his advocate.
724 F.3d 1312, 1315 (10th Cir. 2013).

James v. Wadas,

Nor will we excuse him from

adhering to the same procedural rules as other litigants.

Garrett

v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
II. THE PROPOSED AMENDED COMPLAINT
The

proposed

amended

complaint

describes

plaintiff

follows:
The Plaintiff William (Billy) Yeager is a multiinstrumentalist and songwriter, who has been discovered
several times by people such as Chuck Gregory (Columbia
2

as

Records), Grammy Award Winner Bruce Hornsby, and Bon
Jovi and Kiss manager Doc McGhee. Billy Yeager has
written and recorded over 2600 musical compositions. In
his early 20’s he won several National Songwriting
contests. In 1983, he produced his first album, What’s
It Gonna Take. Over 22 of South Florida’s top musicians,
such as Dennis Noday, Rex White, Jay Drake, Allan Layton
and Diane Sherrow, recorded on the album. On his second
album Be My Valentine, produced in 1985, Billy played
every instrument. The album was recorded at Circle Sound
Studios, which is the private recording studio of the
Inner Circle Reggae Band. Yeager was the guitar player
for the Grammy Award winning band Inner Circle from 19851986. “Touter” Harvey and Ian Lewis both were involved
in the engineering and production of the Be My Valentine
album. Billy has performed and played alongside
musicians such as Doug Ingle from Iron Butterfly, Gerry
Morotta from Peter Gabriel, Carmine Appice from Vanilla
Fudge, Butch Trucks from Allman Brothers, and Pat
Travers. In 1987 Yeager recorded with Ira Sullivan,
Eddie Higgins, and “Mars” Cowling on Stan Jeff Brown’s
album Transformation Paradox. Yeager also recorded with
Jaco Pastorius who considered Billy one of the greatest
guitarists he ever performed with. In the 90s Plaintiff
shifted his attention to making films. His first film
Jimmy's Story which he filmed for over 23 years, took
him several years to edit and was funded by the Cultural
Development Group in Miami (Founder, Aaron Morris); the
film won 4 awards at the DIFF and Best First Feature at
the Palm Beach International Film Festival. Plaintiff
has produced, directed and acted in 4 more feature films;
A Perfect Song which won him “Best Actor" Award at the
Delray Beach Film Festival; The Florida Highwaymen, the
story about the famous folk artists who have been
featured on PBS and have 12 books published about their
story; the film trilogy Jesus of Malibu that took 8 years
to complete; and the documentary Sebastian Beach One
Fine Day, which Premiered at the NYC Surf Film Festival;
there are 2 documentary films produced about the
Plaintiff: The Film That Changed The World, which tells
the story about Yeager and his wife’s desire and mission
“to change the world for the betterment of humanity,”
which won "Most Inspirational Movie Award" at the Red
Dirt International Film Festival, and Billy Yeager The
Ineffable Enigma which tells the story of the
Plaintiff's artistic career and mission, as a musician,
filmmaker, activist and humanitarian.
3

Doc. No. 36, ¶ 70.
Defendant National Public Radio (NPR) published an article
about plaintiff on March 23, 2017 and broadcast an interview which
concerned plaintiff on March 24, 2017.

Defendant Andrew Flanagan

wrote the article and he and defendant Jacob Ganz participated in
the interview.

Defendant Ashley Messenger is an attorney for NPR.

The March 23rd article was titled “The Most Expensive Record
Never Sold – Discogs, Billy Yeager and the $18,000 Hoax That Almost
Was.”

The article describes how a test pressing of plaintiff’s

album titled “Billy Yeager 301 Jackson St.” was auctioned for
$18,000.00 on a resale website – “Discogs” – which is popular with
record collectors.

This broke the record of $15,000.00 bid for a

rare Prince album.

Flanagan wrote that this record-breaking sale

“seems to have been a fiction woven by the record’s creator” and
that the website canceled the transaction.

In other words,

according to the article plaintiff appeared to bid $18,000.00 for
his own record.

This is what the article referred to as the “hoax

that almost was.”
On March 24, 2017, Audie Cornish of NPR interviewed defendants
Flanagan and Ganz regarding a few pieces of music news.

During

the interview she questioned them about Flanagan’s “reporting”
regarding Yeager and the sale of “Billy Yeager ephemera.”
No. 13-2, p. 21.

Doc.

Flanagan explained that his report started with

an email from Discogs about the record for the most expensive album
4

sold on the site.

Flanagan referred to Yeager as “a complete

unknown” who sold the album on Discogs to himself to “get this
strange type of publicity that he’s been seeking his entire life.”
Id. at p. 22.

Ganz stated:

“This guy, as good as he might possibly be, is far more
interested in infamy than he is in fame and the chase of
pulling the wool over people’s eyes. He’s a huckster.
He’s a charlatan. The fact that you can do that on the
Internet as well as you can anywhere else is just sort
of like part of the long story of people in the music
industry doing crazy things I think.”
Id.
Plaintiff states in the amended complaint that, before
the NPR article and interview, he:
was known as a talented musician and songwriter who had
written and recorded songs; as a filmmaker who had
produced,
directed
and
acted
in
award
winning
independent films; as someone that doesn’t compromise
his high ideals and values trying to fit in; as someone
who had rejected the vanities and the corruption of the
mainstream music and film industries; as a seeker of
truth; as having relinquished a comfortable life and
given away material possessions to set off on a serious
spiritual quest with his wife, to try to create artwork
that helps to raise conscious awareness in humanity and
inspires people to seek truth and become truth; as
someone that has been involved with charities since 1985
(World Vision, prison ministry, caregiver, feeding the
homeless, church prayer leader); as a bold and
courageous artist, one with righteous anger about the
injustice in the world, willing to challenge other
artists and also raise money to help those who cannot
help themselves, etc.
Doc. No. 36, ¶ 88.
Plaintiff alleges that the article and the interview contain
many defamatory statements.

He alleges that he and his wife
5

communicated several times with Ashley Messenger, seeking without
success for defendants to issue a retraction and to have the
article and interview removed from NPR’s website.
Plaintiff contends that his efforts to raise money with
benefit concerts staged at a refurbished missile silo in Kansas
were sabotaged by the article and interview.

Id. at ¶¶ 341-349.

Plaintiff states that the ticket price ($7,500.00) “was to be
marketed to the ‘well-to-do’ upper middle-class people who are
very supportive in the arts and are philanthropists interested in
helping others.”

Id. at ¶ 343.

The money raised was to be used

to buy wheelchairs for land mine victims.

He further contends

that he was thrust into a deep depression.
In addition to defamation, plaintiff asserts that defendants
are liable for slander, false light invasion of privacy and
outrage.
III.

DEFAMATION, SLANDER AND FALSE LIGHT STANDARDS
Plaintiff

alleges

invasion of privacy.
apply here.
and slander.

defamation,

slander

and

false

light

Kansas law and federal constitutional law

In Kansas, the tort of defamation includes both libel
Dominguez v. Davidson, 974 P.2d 112, 117 (Kan.

1999)(quoting Lindemuth v. Goodyear Tire & Rubber Co., 864 P.2d
744, 750 (Kan.App. 1993)). A valid defamation claim requires proof
of:

(1) false and defamatory statements; (2) the defendant

communicated these statements to a third party; and (3) the
6

plaintiff’s reputation was injured by the statements.

El-Ghori v.

Grimes, 23 F.Supp.2d 1259, 1269 (D.Kan. 1998); see also In re
Rockhill Pain Specialists, P.A., 412 P.3d 1008, 1024 (Kan.App.
2017)(quoting Hall v. Kansas Farm Bureau, 50 P.3d 495 (Kan. 2002)).
“A statement is defamatory if it diminishes the esteem, respect,
goodwill or confidence in which the plaintiff is held or excites
adverse, derogatory or unpleasant feelings or opinions against
him.

A defamatory statement necessarily involves the idea of

disgrace.”

Clark v. Time Inc., 242 F.Supp.3d 1194, 1217 (D.Kan.

2017)(interior quotations omitted).
A false light privacy action requires that publicity be given
to someone which places that person before the public in a false
light of a kind highly offensive to a reasonable person.1

Hunter

v. The Buckle, Inc., 488 F.Supp.2d 1157, 1179 (D.Kan. 2007)(citing
Rinsley v. Frydman, 559 P.2d 334, 339 (Kan. 1977)).

The standards

and defenses which apply to a defamation claim also apply to a
“false light” claim.

See Rinsley v. Brandt, 700 F.2d 1304, 1307

(10th Cir. 1983)(applying same defenses to both causes of action);
Stead v. U.S.D. No. 259, 92 F.Supp.3d 1088, 1109 (D.Kan. 2015)(the

1

Some opinions from this court and the Kansas Supreme Court have held that a
false light plaintiff must also prove either that a “defendant had knowledge
of or . . . acted in reckless disregard for the falsity of the publicized
matter and the false light in which the falsehood would place the plaintiff.”
Patton v. Entercom Kansas City, L.L.C., 2014 WL 2557908 *8 (D.Kan. 6/6/2014);
Tomson v. Stephan, 699 F.Supp. 860, 866 (D.Kan. 1988)(referring to the
elements in Restatement (Second) of Torts § 652E); Stanfield v. Osborne
Industries, Inc., 949 P.2d 602, 610 (Kan. 1997)(stating the elements set out
in Restatement (Second) of Torts § 652E).

7

two claims are generally treated the same way); Castleberry v.
Boeing Co., 880 F.Supp. 1435, 1442 (D.Kan. 1995)(courts treat the
two

claims

similarly);

(1977)(comment

e)(it

Restatement

is

arguable

(Second)
that

of

Torts

limitations

§

652E

placed

on

defamation should apply to false light claims).
Subjective statements and statements of opinion are protected
by the First Amendment as long as they do not present or imply the
existence of defamatory facts which are capable of being proven
true or false.

Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-

19 (1990); Pan Am Systems Inc. v. Atlantic Northeast Rails and
Ports, Inc., 804 F.3d 59, 65 (1st Cir. 2015).
to

be

determined

by

the

court.

This is a question

Robinson

v.

Wichita

State

University, 2017 WL 2378332 *4 (D.Kan. 5/31/2017); D’Souza-Klamath
v. Cloud Cty. Health Ctr., Inc., 2009 WL 902377 *10 (D.Kan.
3/31/2009).

“[T]he defense available in a defamation action that

the allegedly defamatory statements are opinions, not assertions
of fact, is also available in a false light privacy action.”
Rinsley, 700 F.2d at 1307; see also, Robinson, 2017 WL 2378332 at
*7.
Vague language that is subject to multiple interpretations is
generally not actionable.
713

(D.C.

See Montgomery v. Risen, 875 F.3d 709,

2017)(characterization

of

software

sold

to

the

government as a “hoax” is too “loose, figurative or hyperbolic” to
be

considered

defamatory);

Hogan
8

v.

Winder,

762

F.3d

1096,

1107(10th Cir. 2014)(“performance issues” & “erratic behavior” –
too vague and nonspecific to be defamatory); Gray v. St. Martin’s
Press, Inc., 221 F.3d 243, 249 (1st Cir. 2000)(what is success or
failure in the situation of a public communications firm is very
much a matter of opinion); Phantom Touring, Inc. v. Affiliated
Publi’ns, 953 F.2d 724, 728 (1st Cir. 1992)(description of a musical
comedy version of “Phantom” as “a rip-off, a fraud, a scandal, a
snake-oil job” is too subjective to be proven true or false, even
the charge of “blatantly misleading the public” is subjective and
imprecise); Levinsky’s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d
122, 129-30 (1st Cir. 1997)(“trashy” is subjective and cannot be
verified);

Dilworth

v.

Dudley,

75

F.3d

307,

310

(7th

Cir.

1996)(“scam” may be nondefamatory hyperbole rather than a false
assertion of fact depending on context); McCabe v. Rattiner, 814
F.2d 839, 842 (1st Cir. 1987)(the word “scam,” used in an article
regarding a timeshare sales program, is incapable of being proven
true or false); Nunes v. Rushton, 299 F.Supp.3d 1216, 1231-32
(D.Utah 2018)(“scam” and “hoax” used as opinionated rhetorical
hyperbole and therefore, not defamatory); Robinson v. Wichita
State

University,

bureaucratic”
Floor64,

is

Inc.,

2018

WL

subjective
270

836294
and

*12

(D.Kan.

2/13/2018)(“too

nondefamatory);

F.Supp.3d

343,

Ayyadurai

361-62

v.

(D.Mass.

2017)(“charlatan” used in a loose figurative manner cannot be
defamatory); Robinson, 2017 WL 2378332 at *4 (“too hierarchal” and
9

“too

punishment-centered”

are

subjective

and

nondefamatory);

D.Kan. 5/31/2017); Clark, 242 F.Supp.3d at 1219 (“disturbing”
management style is subjective and nondefamatory); McKee v. Cosby,
236 F.Supp.3d 427, 445 (D.Mass.) aff’d, 874 F.3d 54 (1st Cir.
2017)(“The judgment of an individual’s credibility is not an
objective fact capable of being proven true or false”); Paterson
v. Little, Brown & Co., 502 F.Supp.2d 1124, 1135 (W.D.Wash.
2007)(“ripoff” is imprecise and incapable of defamatory meaning);
Metcalf

v.

KFOR-TV,

1992)(statement

that

Inc.,
a

828

F.Supp.

medical

1515,

1530

organization

(W.D.Okla.

was

a

“sham”

perpetrated by “greedy doctors” is a matter of opinion);

NBC

Subsidiary (KCNC-TV), Inc. v. Living Will Center, 879 P.2d 6, 11
(Colo. 1994)(en banc)(statement that a product is a “scam” as a
statement of its value is not a defamatory statement).
Defamation cannot arise where the speaker communicates the
nondefamatory facts that undergird his opinion.

Piccone vs.

Bartels, 785 F.3d 766, 771 (1st Cir. 2015); Ross v. Rothstein, 2014
WL 1385128 *8 (D.Kan. 4/9/2014).

Even if an expression of opinion

may have been skewed by a vindictive motive, if it is “‘based on
disclosed or assumed nondefamatory facts [then it] is not itself
sufficient for an action of defamation, no matter how unjustified
or unreasonable the opinion may be or how derogatory it is.'”
Piccone, 785 F.3d at 774 (quoting Yohe v. Nugent, 321 F.3d 35, 42
(1st Cir. 2003))).

“[E]ven a provably false statement is not
10

actionable if it is plain the speaker is expressing a subjective
view, an interpretation, a theory, conjecture, or surmise, rather
than claiming to be in possession of objectively verifiable facts.”
Riley v. Harr, 292 F.3d 282, 289 (1st Cir. 2002)(interior quotation
omitted).

If defendants fully disclosed the facts supporting an

opinion and if those facts are not false and defamatory, then
neither the opinion nor the statement of facts is defamatory
because it is a pure opinion.

Piccone, 785 F.3d at 771-72;

Restatement (Second) of Torts § 566 (1977).
If the subject of an alleged defamatory statement is a matter
of public concern, then the First Amendment requires that the
alleged defamatory statement be published with actual malice.
Brokers’ Choice of America, Inc. v. NBC Universal, Inc., 861 F.3d
1081, 1109 (10th Cir. 2017). “[P]ublic concern is something that
is a subject of legitimate news interest; that is, a subject of
general interest and of value and concern to the public at the
time of publication.”
84 (2004).

City of San Diego v. Roe, 543 U.S. 77, 83-

Actual malice must also be proven for a public figure

to recover damages for defamation.
1004 (10th Cir. 2010).

Mink v. Knox, 613 F.3d 995,

Public figures can be “general-purpose

public figure[s]” — people of “such pervasive fame or notoriety”
that they are public figures “for all purposes and in all contexts”
— or “limited-purpose public figure[s]” — people who voluntarily
enter or are “drawn into a particular public controversy” and
11

thereby become public figures “for a limited range of issues”
defined by their “participation in the particular controversy
giving rise to the defamation.”
U.S. 323, 351–52 (1974).

Gertz v. Robert Welch, Inc., 418

This is a question of law.

Ruebke v.

Globe Communications Corp., 738 P.2d 1246, 1251 (Kan. 1987).
“Actual malice” is “knowledge that [the statement] was false
or with reckless disregard of whether it was false or not.”
York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).

New
“The

mere failure to investigate cannot establish reckless disregard
for the truth.”

Gertz, 418 U.S. at 332.

More is required than

“an extreme departure from professional standards” or subjective
“ill-will.”

Harte-Hanks Communications, Inc. v. Connaughton, 491

U.S. 657, 665 & 666 (1989). “Rather, there must be ‘sufficient
evidence to permit the conclusion that the defendant in fact
entertained serious doubts as to the truth of his publication.’”
Revell v. Hoffman, 309 F.3d 1228, 1233 (10th Cir. 2002)(quoting St.
Amant v. Thompson, 390 U.S. 727, 731 (1968)). This is a subjective
inquiry – “’there must be sufficient evidence to permit the
conclusion that the defendant had a high degree of awareness of .
. . probable falsity.’”

Id. (quoting Harte-Hanks Communications,

491 U.S. at 688 (interior quotation marks omitted)).

“Reckless

disregard ‘is not measured by whether a reasonably prudent man
would

have

publishing.’”

published,

or

would

have

investigated

Id. (quoting St. Amant, 390 U.S. at 731).
12

before
Nor does

a failure to correct a statement show actual malice when the
statement was published.

Fairbanks v. Roller, 314 F.Supp.3d 85,

93 (D.D.C. 2018).
IV. PLAINTIFF’S CLAIMS IN THE PROPOSED AMENDED COMPLAINT
A. Claims 1, 2, 5 and 13
These claims concern statements in the NPR article suggesting
that plaintiff was the seller and purchaser of his own album on
Discogs and that plaintiff did this for fame.

Specifically, the

statements are:
Claim 1 - “This is the story of a hoax that almost was.
Its motivating force was a hunger for fame or infamy.”
Doc. No. 36, p. 81.
Claim 2 - “The lightning-fast turnaround on this recordbreaking sale, however, seems to have been a fiction
woven by the record’s creator.” Doc. No. 36, p. 99.
Claim 5 - “Now it seems clear that Yeager has attempted
to perpetrate another hoax: He is, it seems, the seller
who posted 301 Jackson St. on Discogs. He’s also likely
the buyer. Which means that $18,000 never changed hands
and also raises the possibility that the test pressing
of 301 Jackson St. does not exist at all.” Doc. No. 36,
p. 111.
Claim 13 - “Everything about this tale points to Yeager
having bought his own unknown record from himself, short
of Yeager actually admitting it. But to what end? Likely
the one you're reading.” Doc. No. 36, p. 127.
The court addressed the statement in Claim 1 at page 17 of
the order at Doc. No. 29 where the court stated:
The statement is an expression of opinion based upon
facts disclosed in the article.
Moreover, the
description of plaintiff’s motivation is not verifiable.
Ayyadurai, 270 F.Supp.3d at 365 (a number of courts have
recognized that a person’s motivations can never been
13

known for sure); Murray v. Huffington Post.com, Inc., 21
F.Supp.3d 879, 886 (S.D.Ohio 2014)(suggestion of
improper motive is not verifiable because there are no
objective tests to determine internal motivation).
Plaintiff takes particular offense toward comments
suggesting he has sought fame and offers testimony in
support of his artistic and humanitarian impulses. The
court will not dispute the considerable evidence
plaintiff has mustered in support of his character and
abilities.
But, this is not an issue for litigation
here. The court sides with the view in other defamation
cases that statements concerning plaintiff’s “motivation
or intent are not actionable because they are incapable
of being proved true or false.” Ayyadurai, 270 F.Supp.3d
at 365.
See also, Doc. No. 29 at pp. 15-16.

Plaintiff does not provide

good grounds to alter the court’s decision.

The same analysis

applies to the statements which make up Claim 2 and Claim 13.
As for Claim 5, plaintiff argues that the article’s opinions
regarding the “hoax” are based upon a false and defamatory fact,
i.e., that plaintiff bid upon his own album, “Billy Yeager 301
Jackson St.” The court disagrees. The article presents an opinion
that plaintiff bid upon his own album.

The article states that

the sale “seems to have been a fiction woven by the record’s
creator” and it “seems” that he is the seller of the album and
“also likely the buyer.”

Doc. No. 13-2, pp. 5 & 6.

The article

supports this opinion by referring to plaintiff’s promotional and
professional history, the canceling of the transaction by Discogs,
articles regarding plaintiff, sales prices for other Billy Yeager
“ephemera,” and an email dialogue with the supposed seller of the
album

(using

the

pseudonym

“Al
14

Sharpton”)

who

insisted

upon

anonymity.

As with Claims 1, 2 and 13, Claim 5 is an expression

of opinion based upon disclosed facts.
In

addition,

plaintiff

does

not

allege

facts

plausibly

showing that the opinion that he bid upon his own album is
defamatory or that defendants acted with actual malice.2
B. Claims 3, 10, 14 and 15
These claims concern statements that plaintiff has hungered
for infamy or notoriety and that fail to mention plaintiff’s
humanitarian or spiritual impulses.

Specifically, the statements

are:
Claim 3 - “The album, called 301 Jackson St., was record
by Billy Yeager, a Florida man who has pursued musical
fame (or at least notoriety) for 36 years, by his own
account.” Doc. No. 36, p. 102.
Claim 10 - “Eventually, Yeager began experimenting with
the web and the infinite possibilities it offers, to
those with ample time on their hands, for invention,
obfuscation and, most importantly, self-mythology.”
Doc. No. 36, p. 120.
Claim 14 - “What comes after this, Yeager's latest
arguable success (however fleetingly, he held a sales
record over Prince — more than most can hope for, at
least) might be a form of infamy that he could, for once,
be satisfied with.” Doc. No. 36, p. 127.
Claim 15 – “The story of Billy Yeager is one
purposeless obfuscation.” Doc. No. 36, p. 128.

of

The court has already addressed statements concerning plaintiff’s
motivation in the prior subsection of this order.

2

The court also

As explained in the court’s prior order, plaintiff should be considered a
limited public figure as to the controversy concerning the Discogs sale. Doc.
No. 29, p. 15.

15

specifically addressed: the statement referred to in Claim 3 at
pp. 17-18 of the court’s prior order; the statement referred to in
Claim 15 at pp. 24-25 of the court’s prior order; and the statement
referred to in Claim 10 at pp. 25-26 of the court’s prior order.
Plaintiff has failed to persuade the court that these holdings are
incorrect.

The court believes the holdings apply as well to the

statement set out in Claim 14.
C. Claims 4, 6 and 7
These

claims

concern

statements

regarding

plaintiff’s

“Jimmy’s Story” movie which plaintiff has described as absurdist
performance art criticizing or satirizing the media’s obsession
with celebrity.

For the movie, plaintiff dyed his skin brown and

portrayed himself as “Jimmy Story” the love-child of Jimi Hendrix.
The statements are:
Claim 4 - “The most eccentric – and ill-conceived –
example of his promotional facility, bar none, came when
Yeager spent two years planning and executing a hoax
that would eventually convince a television station and
a weekly paper to believe that he was Jimmy Story, the
son of Jimi Hendrix, who was in possession of lost
recordings from the psychedelic legend. To pull off the
scam, Yeager dyed his skin brown.” Doc. No. 36, p. 107
Claim 6 - “Could this story get any weirder? As the
[Miami] Herald notes, the Jimmy Story hoax (you can see
a picture of Yeager as Jimmy Story, with dyed brownface, on his website— note that many-to-most of the
clippings included in that image, such as a cover story
from The New York Times, are clearly fake) began, as few
things do, with Bruce Hornsby. (Yes, that Bruce
Hornsby.) In 1990, the story goes, Hornsby heard a demo
tape of Yeager's, liked what he heard and connected
Yeager with Capitol Records, who gave Yeager a shot. It
16

was the closest he would come to fame, but it cemented
in Yeager's mind what he'd thought for some time: that
he was destined for, perhaps owed, greatness. The
catalyst Hornsby provided would become a source of
obsession. As the Herald wrote, years after Hornsby's
co-sign, Yeager was far from success, surviving "on odd
jobs," living "in a cramped beach apartment with
surfboards on the walls" with "a drawer jammed with
hundreds of terse rejection letters from recording
companies." Embittered, Yeager began to plan the Jimmy
Story bamboozle. After two years of preparation, Jimmy
Story became a cover star.” Doc. No. 36, pp. 112-13.
Claim 7 - “Less than two years after that, Yeager had
assembled, roughshod and chaotic, a documentary about
his life, with the Jimmy Story hoax as its centrifugal
force.” Doc. No. 36, p. 114.
The court addressed many of the statements in Claims 4 and 6 at
pp. 19-22 of the court’s prior order.

Plaintiff does not persuade

the court that the prior order was incorrect.

The court also

believes plaintiff is a limited public figure as regards the movie
“Jimmy’s Story” as well as the Discogs sale.

Cf., Dilworth v.

Dudley, 75 F.3d 307, 309 (7th Cir. 1996)(obscure engineer who
published an obscure article in an obscure academic publication is
a

“public

plausibly

figure”
allege

as
facts

to

that

article).

showing

that

the

Plaintiff
statements

does

not

regarding

“Jimmy’s Story” were made with actual malice.
Plaintiff contends that, contrary to the NPR article, neither
the television station nor the weekly paper were “convinced” that
plaintiff was the son of Jimi Hendrix.

Doc. No. 36, p. 107.

He

does not plausibly show, however, that the statement in Claim 4
was defamatory or that the use of such vague terms as hoax,
17

bamboozle

and

scam

in

the

context

of

the

article

should

be

considered defamatory.3 Plaintiff also states that “Jimmy’s Story”
encompasses several film genres, some of which suggest deception.4
And, plaintiff comments that a reviewer stated it was difficult to
distinguish what is real and what is fantasy in the movie.
No. 36, p. 114.

Doc.

This further supports the court’s conclusion that

the statements in Claims 4, 6 and 7 are matters of opinion and not
defamatory.
Plaintiff states that he and his 25 years of work creating
the film “Jimmy’s Story” have been defamed by defendants; that he
was presented in a false light as a foolish character and that his
movie was presented not as art and an award-winning film, but as
a chaotic product of an embittered man.

Doc. No. 36, p. 115.

Whether or not defendants missed the point of the film and missed
plaintiff’s artistic intentions, is a matter of opinion and not
something to be litigated in a defamation action.
Plaintiff states that there were never hundreds of terse
rejection letters as the NPR article quoted the Miami Herald as

3

Indeed, plaintiff states in the proposed amended complaint that “Jimmy’s
Story” involves a fictional hoax, as opposed to a real hoax: “The fictional
character ‘Jimmy Story’ carries out a hoax in the film Jimmy’s Story; the hoax
is fictional; the hoax was never intended to be, and it never was a real hoax
carried by Billy Yeager in reality . . . Billy Yeager and Glenn DeRosa informed
the press when Jimmy Story was put on the cover of XS Magazine in 1996 . . .
that it was just a performance artwork for the film[]. Billy was simply using
his film and his character to deliver an important message about the possible
effects of the culture we are creating.” Doc. No. 36, p. 89.
4
“[D]ocumentary film, mockumentary, pseudo-docu, docu-fiction, and cinema
verite.” Doc. No. 36, p. 86.

18

saying.

He does not assert, however, that the quotation was

fabricated.

Nor does he allege facts which would plausibly show

that the quotation evokes disgrace or that defendants employed the
quotation with knowing or reckless disregard for its truth or
falsity.
Finally, plaintiff objects to the term “embittered.”

5

This

term as used by defendants is vague and relates to an unverifiable
emotion or motivation.

It is a matter of opinion.

Therefore, it

is not defamatory.
D. Claims 8, 11, 12, 16, and 17
These claims involve statements in the NPR article that
concern the relative success of plaintiff’s music and film career
and the availability of his music and videos.

Specifically, the

claims concern the following statements:
Claim 8 - “A tumble down the rabbit hole of Yeager's
life is quixotic indeed — relentless failures and his
ceaseless drive to reverse them form a closed loop that
only occasionally reaches out into the real world.
Diving in, you realize quickly you are not in control
here, like Alice chasing the rabbit. Like a dog chasing
a car.” Doc. No. 36, p. 117.
Claim 11 - “For all his purported virtuosity and the
ostensible existence of multiple recordings, his music
is — besides grainy footage of Yeager shredding, tanktopped and beachbrowned, in a backyard jam session —
5

Plaintiff distinguishes bitterness from his “righteous anger” with the “stupid
news the media feed our society when they could be informing the people about
so many important issues and individuals doing great work in this world.” Doc.
No. 36, p. 108. He also states in the complaint, as previously set forth in
this order, that he has “rejected the vanities and the corruption of the
mainstream music and film industries” and that he has a “righteous anger about
the injustice in the world.” Id. at p. 59. The distinction between bitterness
and righteous anger is not a proper issue for litigation.

19

practically inaccessible in an
access.” Doc. No. 36, p. 121.

age

of

ubiquitous

Claim 12 - “Instead, Yeager created a murkier — possibly
entirely fictional — network of identities with the
purpose of propping himself up, like stilts under a sunworn beach house. This network appears to be composed of
publicists, managers, film producers and retailers of
Yeager memorabilia — or what normal folks call items of
sentimental value.” Doc. No. 36, pp. 122-23.
Claim 16 - “Yeager, for all the belief he has in his
promise and his failures expressing it, has repeatedly
poured more of his creative energy into being a
trickster-booster than he has an artist.” Doc. No. 36,
p. 129.
Claim 17 - “If that art does indeed exist, we’ll probably
never hear it at a price we’re willing to pay.” Doc.
No. 36, p. 131.
The court discussed the statement in Claim 8 at p. 23 of the
court’s prior order and the statement in Claim 11 at pp. 24-25 of
the court’s prior order.

The court discussed the statements made

in Claims 16 and 17 at pp. 25-26 of the court’s prior order.

The

court shall not alter or modify those holdings.
Claim 12 involves a qualified opinion that plaintiff created
a murky, - “possibly entirely fictional” - network of identities
acting as publicists, managers, film producers and retailers of
Yeager memorabilia.

The statement is supported by a quotation

from John F. Stacey, who wrote a newspaper piece about plaintiff
in 1997 and said he stayed in touch with plaintiff for years after,
but lost touch about ten years prior to the NPR article.

Stacey

told defendants that Chris Von Weinberg, listed on plaintiff’s
website as a press contact, was actually plaintiff, and that
20

plaintiff had created “all these fake identities” as he has
“migrated onto the Internet.”

Plaintiff does not dispute that

Stacey said this, but claims the statement is false.6

The article

also refers to “South Florida Collectibles” and “southflamusic”
(whose

spokesperson

identified

himself

as

“Al

Sharpton”)

as

sellers of Yeager-connected items.
The statement in Claim 12 is an opinion based upon disclosed
facts.

The opinion is qualified in such a manner as to be vague

and not to insinuate a false defamatory fact.

Nor does the

implication that plaintiff has used pseudonyms to sell or promote
items from his career evoke disgrace so as to be defamatory.

For

these reasons, the court finds that Claim 12 fails to state a
claim.
E. Claim 9
In

Claim

9,

plaintiff

asserts

that

the

article

falsely

portrays the reason why plaintiff’s wife traveled from Spain to
Florida and eventually married plaintiff.

The court addressed

this claim on page 24 of the court’s prior order.

The court shall

continue to hold that the statement is not defamatory.

6

Plaintiff has attached an exhibit to the proposed amended complaint with
evidence that Chris Von Weinberg is a real person who served as a personal
manager for plaintiff and did not respond to defendant Flanagan’s request for
an interview. Doc. No. 36, p. 25.

21

F. Slander claims
Plaintiff’s slander claims are listed at p. 133 of the
proposed

amended

complaint.

following statements:

The

claims

are

based

upon

the

1) that plaintiff is a “complete unknown”

who sold an album to himself on Discogs to “get this strange type
of publicity that he’s been seeking his entire life”; 2) that
plaintiff is a “huckster” and a “charlatan” and “part of the long
story of people in the music industry doing crazy things I think”;
and 3) that “it seemed that this sale was from him to him and –
get this strange type of publicity that he’s been seeking his
entire life.”7
The court finds that these statements do not support a claim
for defamation or slander or false light for the reasons stated in
the court’s previous opinion at pp. 15-16 and in this opinion at
pp. 13-20.
G. False light invasion of privacy
For the reasons stated previously in section IV of this order,
the court finds that plaintiff has not stated a false light claim.
H. Defamation and false light invasion of privacy claims
against defendant Messenger
As

explained

at

pp.

27-28

of

the

court’s

prior

order,

defendant Messenger may not be sued for defamation or false light
invasion of privacy on the grounds that she refused to remove the

7

See transcript of interview at Doc. No. 13-2, p. 22.

22

alleged defamatory material from the NPR website or other platforms
and refused to retract the statements to which plaintiff objects.
I. Outrage
Conduct sufficient to establish the tort of outrage must be
extreme and outrageous - - that is, “so severe that no reasonable
person should be expected to endure it” and “so outrageous in
character, and so extreme in degree, as to go beyond the bounds of
decency, and to be regarded as atrocious and utterly intolerable
in a civilized society.”

Roberts v. Saylor, 637 P.2d 1175, 1179

(Kan. 1981); see also Lee v. Reed, 221 F.Supp.3d 1263, 1274 (D.Kan.
2016).

Plaintiff

contends

that

defendants’

publication

and

broadcast of the article and interview, as well as defendants’
refusal

to

grant

plaintiff

the

relief

he

requested

when

he

complained to NPR, is conduct so outrageous in character and so
beyond the bounds of decency that it can support a claim of
outrage. The court disagrees with plaintiff’s contention and finds
support in the following cases.

Caraway v. Cracker Barrel Old

Country

WL

Store,

Inc.,

2003

21685909

*14

(D.Kan.

7/16/2003)(spreading false rumors that plaintiff stole money, used
drugs, had a drinking and/or gambling problem and was lesbian is
not outrageous); Bolduc v. Bailey, 586 F.Supp. 896, 902-03 (D.Colo.
1984)(following

Kansas

law,

dismissing

outrage

claim

where

defendant accused a priest of theft, lying, treason resulting in
the death of “patriots” and immoral conduct); Hanrahan v. Horn,
23

657 P.2d 561 (Kan. 1983)(telling class a false rumor that plaintiff
was held as a suspect in son’s murder is not outrageous conduct);
see

also,

Cook

v.

Winfrey,

141

F.3d

322,

331-32

(7th

Cir.

1998)(celebrity’s statement that plaintiff is a liar does not
constitute outrage under Illinois law); Black v. Wrigley, 2017 WL
8186996 * 12 (N.D.Ill. 12/8/2017)(applying Illinois law, making
false

statements

to

party’s

employer

to

hurt

plaintiff’s

reputation and prevent her from testifying is unseemly but not so
extreme as to be utterly intolerable in a civilized community).
V. CONCLUSION
For

the

above-stated

reasons,

the

court

finds

that

plaintiff’s motion to amend (Doc. No. 36) should be denied as
futile because the proposed amended complaint fails to state a
claim.8

The court therefore grants defendants’ motion to dismiss

(Doc. No. 13) and directs that this case be closed.
IT IS SO ORDERED.
Dated this 9th day of November, 2018, at Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

8

Plaintiff’s proposed amended complaint also violates the “short and plain
statement” requirement in Fed.R.Civ.P. 8(a).
If the court determined that
plaintiff’s proposed amended complaint stated a claim for relief, then the court
would command that plaintiff submit another proposed amended complaint which
could be considered a short and plain statement.

24