Sandmann v. Gannett Co. Inc.
MEMORANDUM OPINION & ORDER: That the defendants' motion to dismiss 36 be, and is hereby, DENIED. Signed by Judge William O. Bertelsman on 1/8/2021.(ECO)cc: COR
Case: 2:20-cv-00026-WOB-CJS Doc #: 39 Filed: 01/08/21 Page: 1 of 7 - Page ID#: 746
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
CIVIL ACTION NO. 2:20-CV-0026 (WOB-CJS)
MEMORANDUM OPINION AND ORDER
GANNETT CO., INC., and
GANNETT SATELLITE INFORMATION NETWORK, LLC,
This matter is before the Court on the defendants’ renewed
motion to dismiss, (Doc. 36), plaintiff’s response (Doc. 37), and
the defendants’ reply. (Doc. 38). The Court has carefully reviewed
this matter and concludes that oral argument is unnecessary.
Factual and Procedural Background
This is one of several defamation lawsuits filed by Nicholas
transpired at the Lincoln Memorial in Washington D.C. on January
18, 2019. (Doc. 1, 34). The instant complaint is again based on
allegations of defamation. This time, however, Sandmann alleges
that the defendants, Gannett Co., Inc. and Gannett Satellite
Information Network (collectively “Gannett”), through its USA
Today Network, published numerous reports of the events that
transpired on January 18, 2019. (Doc. 34).
Sandmann filed his original complaint on March 2, 2020,
against only Gannett Co. Inc. (Doc. 1). On May 29, 2020, Gannett
filed its first motion to dismiss and strike portions of Sandmann’s
Case: 2:20-cv-00026-WOB-CJS Doc #: 39 Filed: 01/08/21 Page: 2 of 7 - Page ID#: 747
complaint. (Doc. 18). In response, Sandmann filed an uncontested
motion to dismiss and strike portions of the complaint. (Doc. 36).
Failure to State a Claim
1. Wrong Defendants Claim
Gannett begins by arguing that dismissal is proper because
Sandmann has twice sued the wrong defendants.1 (Doc. 36 at 10).
Sandmann’s FAC details allegations that Gannett published false
and defamatory statements through several of its wholly owned
subsidiaries: Cincinnati Enquirer, Detroit Free Press, USA Today,
Louisville Courier-Journal, and Tennessean. (Doc. 36 at 32).
Gannett argues that it is the wrong defendant because it did
not publish the purportedly defamatory news articles, and Sandmann
subsidiaries unless he wishes to pierce the corporate veil (which
he does not do). (Doc. 36 at 10). Sandmann argues that Gannett has
been sued for publications of its subsidiaries and never asserted
this defense.2 (Doc. 37 at 7). He nevertheless clarifies that he
First in the original complaint suing only Gannett Co., Inc., and now in the
FAC, adding Gannett Satellite Information Network as a co-defendant.
2 See e.g., Young v. Gannett Satellite Information Network, Inc., 837 F.Supp.2d
758 (S.D. Ohio 2011) (plaintiff sued Gannett because Milford-Miami Advertiser,
a newspaper to the Cincinnati Enquirer and owned by Gannett, published an
allegedly defamatory story).
Case: 2:20-cv-00026-WOB-CJS Doc #: 39 Filed: 01/08/21 Page: 3 of 7 - Page ID#: 748
is not seeking to hold Gannett liable for the independent acts of
its subsidiaries; instead, he is alleging that he seeks “to assess
corporate responsibility against Gannett for Gannett’s acts of
publication, accomplished via its vast network of local outlets.”3
(Id. at 10).
The issue here is whether Sandmann must sue the subsidiaries
individually or if it is proper to sue only the Gannett defendants.
Gannett relies on Stern v. News Corp., 2010 WL 5158635 (S.D.N.Y
Oct. 14, 2010), for the proposition that it cannot be held liable
Gannett’s reliance on Stern is misguided.
Even without the Court taking judicial notice of the letter
and websites, the face of the complaint clearly alleges that
Gannett is liable—not out of association as the parent corporation
control over the alleged defamatory publications. (Doc. 34 at ¶¶
Sandmann also argues that the FAC contains facts that show Gannett was
responsible for the publications, based on: (1) statements made on its websites
(boasting that its USA Today Network is a singular organization); (2) the
uniform template brand used across its websites; (3) the statements where it
holds itself out to the public as a single company; and (4) the letter from its
4 In Stern, a plaintiff sued News Corporation (a national media company with
multiple subsidiaries like Gannett) for defamation based on an article published
by the New York Post concerning the plaintiff’s legal threats against the paper.
2010 WL 5158635, at *1-2. News Corporation argued that it was not the proper
defendant in the defamation suit arising out of the New York Post’s article
because it could not be held liable for the tortious acts of its subsidiary’s
article. Id. at *4. Because News Corporation was not responsible for the
publication of the article, the court agreed with News Corporation. Id. The
court found that New York law does not allow a defendant to be held liable for
defamatory statements made by a third party, and the plaintiff could not show
that the New York Post was wholly dominated and controlled by News Corporation.
Case: 2:20-cv-00026-WOB-CJS Doc #: 39 Filed: 01/08/21 Page: 4 of 7 - Page ID#: 749
154-60). Therefore, taking these allegations as true, Gannett is
the proper defendants to sue.5
(Id.) As a result, this Court need
not address whether Sandmann alleged sufficient facts to pierce
the corporate veil.
2. First Amendment and Kentucky Law Concerning “Enterprise
Gannett next argues that that the First Amendment and Kentucky
law does not permit Sandmann to hold it liable on a theory of
“enterprise liability.” (Id. at 17). Gannett relies on statements
Sandmann’s attorney made during oral argument for the Washington
Post. (Doc. 36 at 18 (citing Sandmann v. WP Co., LLC, Civil Action
Kentucky substantive law applies concerning Sandmann’s defamation
Gannett argues alternatively that it is entitled to the “wire service” defense.
(Doc. 36 at 15). This fails, though, because this alleged defense is merely a
means of establishing ordinary care for news outlets publishing articles from
wire services. O’Brien v. Williamson Daily News, 735 F.Supp. 218, 225 (E.D. Ky.
Mar. 16, 1990, aff’d, 931 F.2d 893 (6th Cir. 1991) (table). In O’Brien, the
Associated Press acted as a wire service, meaning it gathered and distributed
news for the primary benefit of multiple news retailers. Id. at 225. Here,
unlike O’Brien, the Cincinnati Enquirer, Courier-Journal, Detroit Press, and
Tennessean were not acting as a wire service for the USA Today. Instead, it is
alleged that they were working with the USA Today (through Gannett) to write
stories about the events that transpired on the Lincoln Memorial. (Doc. 34 at
156-60). Therefore, taking these facts as true, Gannett is not entitled to
dismissal under the wire service defense and Sandmann properly sued Gannett.
6 THE COURT: Okay. Now, listen carefully to this next question because it’s
important procedurally. Will you have evidence that can attribute any specific
part of the damages to any specific defendant, or is it all one big ball of
wax? Is all this publicity together is affecting him, or can you point out they
had to move out of their house and that was the fault of this Defendant 1 or
that he was denied from participating in his school, and that was Defendant 2?
It’s my impression that it was all pretty general. Is that correct?
MR. WOOD: I agree with your impression. It would be more—there may be some
specific slices, but the overall forest is, I believe, consistent with Your
Honor’s impression that it’s not separable by a defendant or by statement. Each
statement is unique, and the jury will have to evaluate the whole of the damage
as to each defendant.
Case: 2:20-cv-00026-WOB-CJS Doc #: 39 Filed: 01/08/21 Page: 5 of 7 - Page ID#: 750
claim. Gannett argues that Sandmann fails to plead the elements
because he does not allege that it “actually caused the harm he
alleges” to tie his damages to a specific harm. (Doc. 38 at 7).
To establish a prima facie case for defamation, a plaintiff
must show that the defendant published a statement that harmed her
reputation in the community. Stringer v. Wal-Mart Stores, Inc.,
151 S.W.3d 781, 793 (Ky. 2004). Gannett is correct that the Supreme
Court does not permit liability without fault by the defendant.
(Doc. 36 at 6); see Gertz v. Robert Welch, Inc., 418 U.S. 323,
349-50 (1974). That is not the case here, though.
Taking Sandmann’s allegations as true, he is alleging that
through Gannett’s oversight and lack of investigation, it rushed
the story about the incident at the Lincoln Memorial (negligently),
causing him to suffer from physical and emotional injuries because
of this reporting. See (Doc. 37 at 3 (citing Doc. 34 at ¶¶ 34661)). Therefore, Gannett is not entitled to dismissal.
Gannett’s remaining claims are also without merit. First,
Gannett argues dismissal is warranted because Sandmann did not
limitations. (Doc. 36 at 20). But as Gannett concedes, this Court
has already rejected this argument.7 See Sandmann v. The New York
As this Court has found, Sandmann’s complaint is not barred by the statute of
limitations because Ky. Rev. Stat. § 413.170(a) tolled his claim because
Sandmann had not yet reached the age of eighteen. Like other defendants, Gannett
Case: 2:20-cv-00026-WOB-CJS Doc #: 39 Filed: 01/08/21 Page: 6 of 7 - Page ID#: 751
Times Company, Cov. Civil Action No. 2:20-cv-23, at Doc. 27;
Sandmann v. CBS News, Inc., et al, 2:20-cv-24, at Doc. 33; Sandmann
v. ABC News, Inc., et al., 2:20-cv-25, at Doc. 36; Sandmann v.
Rolling Stones, LLC, et al., 2:20-cv-27, at Doc. 35. Therefore,
this defense is without merit.
Second, as alternative relief, Gannett asks this Court to
strike portions of the FAC that this Court has already found nonactionable because they violate Rule 8.8 (Doc. 36 at 22). This
paragraphs it found non-actionable in its other Opinions, and the
relies erroneously on Tallman v. City of Elizabethtown, No. 20006-CA-002542,
2007 WL 3227599 (Ky. Ct. App. Nov. 2, 2007). However, a reading of this decision
reveals that the Court considered the litigation before it to be highly unusual,
and it noted that its ruling was made in light of “the procedural history of
the case.” Again, no such history exists here. As Gannett recognizes, when the
Kentucky Supreme Court has not ruled on an issue, the federal court sitting in
diversity must predict how it would rule. Kepley v. Lanz, 715 F.3d 969, 972
(6th Cir. 2013). This Court is unpersuaded that the Kentucky Supreme Court would
agree with Tallman because it cites no authority for its holding, which
conflicts with the plain language of the savings statute (since the statute
makes no exception to the tolling of the limitations period for claims brought
by a minor).
8 Paragraphs 1-150, 180-191, 214, and 347. (Doc. 36 at 23).
9 Federal Rule of Civil Procedure 12(f) provides that “[t]he court may strike
from a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” As Gannett implies, this rule is used to
reinforce the requirements of Rule 8(d), but “are viewed with disfavor and are
not frequently granted.” Operating Engineers Local 324 Health Care Plan v. G.
& W Const. Co., 783 F.3d 1045, 1050 (6th Cir. 2015) (citations omitted). A
motion to strike is a “drastic remedy to be resorted to only when required for
the purposes of justice” and “when the pleading to be stricken has no possible
relation to the controversy.” Brown & Williamson Tobacco Corp. v. United States,
201 F.2d 819, 821 (6th Cir. 1953).
Case: 2:20-cv-00026-WOB-CJS Doc #: 39 Filed: 01/08/21 Page: 7 of 7 - Page ID#: 752
Sandmann’s allegations were “redundant, immaterial, impertinent,
or scandalous,” and its motion to strike is denied.
IT IS ORDERED that the defendants’ motion to dismiss (Doc.
36) be, and is hereby, DENIED.
This 8th day of January 2021.
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?