Collins v. WAFB, LLC et al
ORDER AND REASONS granting 35 Motion to Strike and that Defendant WAFB, LLC is awarded a reasonable fee of $500.00. IT IS FURTHER ORDERED that Plaintiff's claims against Defendant WAFB, LLC, most reasonably construed as claims for defama tion, are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that within ten (10) days from the date of this Order, Plaintiff shall show cause in writing why the claims against the remaining Defendants, Bogalusa Newsmedia, LLC and Times-Picayune, L.L.C., should not be dismissed on similar grounds as stated herein. Signed by Judge Ivan L.R. Lemelle on 4/18/2017. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ELEANOR G. COLLINS
WAFB, LLC, ET AL.
ORDER AND REASONS
Before the Court is Defendant WAFB, LLC’s “Special Motion to
Strike.” Rec. Doc. 35. Plaintiff Eleanor G. Collins timely filed
an opposition memorandum. Rec. Doc. 38. Defendant requested, and
was granted, leave to file a reply memorandum. Rec. Doc. 42.
Plaintiff then filed an opposition to the reply. Rec. Doc. 43. For
the reasons discussed below,
IT IS ORDERED that Defendant’s special motion to strike (Rec.
Doc. 35) is GRANTED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
As previously discussed, this case arises out of Plaintiff’s
arrest on January 22, 2016. Rec. Doc. 1 at 2. The arrest was
reported by Defendants Times-Picayune, L.L.C., WAFB, LLC, and
Bogalusa Newsmedia, LLC. Id. In her complaint, Plaintiff states
personal account. Id. at 4. Specifically, Plaintiff states that
It has harmed the reputation of the plaintiff, enabled
credibility. The fact that the plaintiff was the owner
and these were company checks was never documented it
only gave the impression that the plaintiff wrote these
checks out of her personal checking account and
intentionally deceived Robertson Oil Company.
prossed. Id. at 3. Thus, on October 18, 2016, Plaintiff filed suit
against Defendants for libel, slander, defamation, assault, and
for violations of Section 230 of the Communications Decency Act
and the First Amendment. Id. at 1.
In an earlier motion to dismiss for insufficient service, it
was revealed that Plaintiff attempted to serve Defendant WAFB, a
limited liability company, by mailing the summons and complaint to
WAFB’s registered agent. Rec. Doc. 20 at 4. However, this Court
Federal Rule of Civil Procedure 12(b)(5). Id. (citing Wesenberg v.
New Orleans Airport Motel Assocs. TRS, LLC, No. 14-1632, 2015 WL
recognized that the time for service under Rule 4(m) did not expire
until January 16, 2017 and that Plaintiff, by responding to the
motion, evidenced an intent to actively pursue her claims. Id. at
5 (citations omitted). Accordingly, on December 16, 2016, the Court
Plaintiff that failure to timely effect service could result in
dismissal. Id. at 6 (citations omitted).
On March 9, 2017, the Court subsequently denied a similar
requiring Plaintiff to obtain a waiver of service or otherwise
properly serve Defendant Times-Picayune, L.L.C., and any other
Defendant who had not yet been properly served, within twenty-one
days of that Order. Rec. Doc. 37.
THE PARTIES’ CONTENTIONS
In the instant motion, Defendant WAFB, LLC argues that “[t]his
case arises out of WAFB’s exercise of its constitutional right of
free speech concerning a public issue – WAFB’s publication of an
article on its website (the ‘News Report’), about Plaintiff’s
arrest by the Washington Parish Sheriff’s Office for issuing
worthless checks.” Rec. Doc. 35 at 1. Consequently, Defendant
maintains that Plaintiff’s complaint is subject to a special motion
to strike under Louisiana Code of Civil Procedure 971 and that
“Plaintiff cannot satisfy her burden to establish a probability of
Specifically, Plaintiff’s claims should be stricken and dismissed
because “(1) WAFB cannot be held liable for relying on statements
about Plaintiff made by law enforcement; (2) the statements in the
News Report are true in that they accurately report statements
about Plaintiff made by law enforcement; and (3) any defamatory
implications about Plaintiff are not actionable.” Rec. Doc. 35-1
III. LAW AND ANALYSIS
Under Louisiana Code of Civil Procedure 971,
A cause of action against a person arising from any act
of that person in furtherance of the person’s right of
. . . free speech under the United States or Louisiana
Constitution in connection with a public issue shall be
subject to a special motion to strike, unless the court
determines that the plaintiff has established a
probability of success on the claim.
LA. CODE CIV. PROC. ANN. art. 971(A)(1).2 It is Louisiana’s “antiSLAPP” statute; “SLAPP” is an acronym for strategic lawsuit against
‘generally meritless suits brought by large private interests to
deter common citizens from exercising their constitutional right
to petition or to punish them for doing so.’” Schmidt v. Cal-Dive
Int’l, Inc., 183 F. Supp. 3d 784, 788 (W.D. La. 2016) (quoting
Yount v. Handshoe, 14-919 (La. App. 5 Cir. 5/28/15); 171 So. 3d
Defendant reasonably characterizes Plaintiff’s complaint as asserting claims
based on allegedly defamatory statements made in Defendant’s news report. Rec.
Doc. 35-1 at 3. While Plaintiff’s complaint alleges libel, slander, defamation,
assault, and violations of § 203 of the Communications Decency Act and the First
Amendment (Rec. Doc. 1 at 1), the Court agrees with Defendant’s characterization
of Plaintiff’s claims as essentially claims for defamation.
2 Notably, a special motion to strike “may be filed within ninety days of service
of the petition, or in the court’s discretion, at any later time upon terms the
court deems proper.” LA. CODE CIV. PROC. ANN. art. 971(C)(1). Here, a summons for
WAFB was originally returned on October 19, 2016. Rec. Doc. 2. However, on
November 7, 2016, WAFB filed a motion to dismiss for insufficient service of
process. Rec. Doc. 6. While the Court denied the motion to dismiss, we recognized
that WAFB was not properly served. Rec. Doc. 20. A second summons for WAFB was
then returned on January 10, 2017. Rec. Doc. 23. Assuming that WAFB was properly
served at that time, the instant motion to strike, filed on March 3, 2017, was
filed within ninety days of proper service of the complaint.
381, 387, reh’g denied (6/16/15)) (citing Lozovyy v. Kurtz, 813
F.3d 576, 577 (5th Cir. 2015); Henry v. Lake Charles Am. Press,
L.L.C., 566 F.3d 164, 168 (5th Cir. 2009)). Essentially, the
“nominally-procedural” statute “provides a procedural mechanism
unless the plaintiff can establish a ‘probability of success.’”
Lozovyy, 813 F.3d at 577; Henry, 566 F.3d at 168. It is a “device
to be used in the early stages of litigation to screen out
meritless claims brought primarily to chill the valid exercise of
the constitutional right of freedom of speech . . . in matters
of public interest.” Schmidt, 183 F. Supp. 3d at 789 (citing
Williams v. Nexstar Broad., Inc., 11-887 (La. App. 5 Cir. 4/10/12);
extraordinary remedy that “dismisses meritless claims quickly, and
awards attorney’s fees to the prevailing party.” Yount, 171 So. 3d
381 at 387.
Article 971 establishes a burden-shifting analysis for
weeding out frivolous claims. To succeed on an Article
971 motion, the defendant must first make a prima facie
showing that Article 971 covers the activity underlying
the suit. That is, the defendant must ‘establish that
a cause of action against him arises from an act by him
in furtherance of the exercise of his right of . . .
free speech under the United States or Louisiana
Constitution in connection with a public issue.’ If the
defendant makes this showing, ‘the burden then shifts to
the plaintiff to demonstrate a probability of success on
his claim.’ If the plaintiff fails to demonstrate a
probability of success, the trial court dismisses the
claim. Otherwise, the trial court denies the motion and
the suit proceeds as it normally would.
Henry, 566 F.3d at 170 (quoting Starr v. Boudreaux, 07-0652 (La.
‘‘probability of success’ standard does not permit courts to weigh
material fact.’ ‘In other words, a non-movant’s burden in opposing
an Article 971 motion to strike is the same as that of a nonmovant opposing summary judgment under Rule 56.’” Schmidt, 183 F.
Supp. 3d at 790 (quoting Lozovyy, 813 F.3d at 586;3 Block v.
Tanenhaus, 815 F.3d 218, 221 (5th Cir. 2016)
argument that Article 971 does not apply in federal court, because
equivalent to that under [Federal Rule of Civil Procedure] 56” and
that, to avoid dismissal, the plaintiff need only establish a
genuine dispute of material fact).
A. IS DEFENDANT’S ACTIVITY PROTECTED UNDER ARTICLE 971?
furtherance of a person’s right of . . . free speech under the
United States or Louisiana Constitution in connection with a public
issue” includes, but is not limited to, “[a]ny written or oral
Defendant WAFB objects to the Fifth Circuit’s statement in Lozovyy that the
court cannot “weigh evidence, assess credibility, or resolve disputed issues of
material fact” on a special motion to strike under Article 971. Rec. Doc. 35-1
at 7 n.19. “Nevertheless, because Plaintiff’s claims here are subject to a
special motion to strike without the necessity of weighing evidence, assessing
credibility, or resolving disputed issues of fact, WAFB reserves for another
day whether Lozovvy [sic] correctly interpreted the meaning of ‘probability of
success’ in article 971.” Id.
statement or writing made in a place open to the public or a public
forum in connection with an issue of public interest” or “[a]ny
other conduct in furtherance of the exercise of the constitutional
right of petition or the constitutional right of free speech in
connection with a public issue or an issue of public interest.”
LA. CODE CIV. PROC. ANN. art. 971(F)(1)(c)-(d) (emphasis added); see
also Williams, 96 So. 3d at 1202 (finding that articles and
broadcasts made by a newspaper, television news show, and reporters
Corporation (the “CDC”) “clearly related to free speech, that the
CDC and its activities are a matter of public concern, . . . that
the plaintiff as president and CEO of the CDC was a limited-purpose
public figure . . . [and that the] articles and broadcasts are
constitutionally-protected free speech.”).
“Louisiana courts have interpreted the ‘public issue’ and
‘public interest’ requirement as being the same as ‘pubic concern’
in defamation cases.” Z Bayou, L.L.C. v. WAFB, L.L.C., No. 154384, 2016 WL 5940867, at *2 (E.D. La. Oct. 13, 2016) (citations
omitted). The Louisiana Supreme Court recognizes United States
Supreme Court precedent that “has described speech on matters of
public concern as speech ‘relating to any matter of political,
social, or other concern to the community.’” Kennedy v. Sheriff of
E. Baton Rouge, 05-1418 (La. 7/10/06); 935 So. 2d 669, 677 n.6
(quoting Connick v. Myers, 461 U.S. 138, 146-48 (1983)); see also
Kirksey v. New Orleans Jazz & Heritage Found., Inc., 12-1351 (La.
App. 4 Cir. 2/27/13); 116 So. 3d 664, 669, writ denied, 13-686
underlying lawsuit involves a matter of public concern as the Jazz
Festival is one of the premier entertainment events each year in
the City of New Orleans, contributing millions of dollars each
year to the City’s economy”) (citation omitted). The Supreme Court
further notes that a matter is of public concern when it “is a
subject of legitimate news interest; that is, a subject of general
interest and of value and concern to the public.” Snyder v. Phelps,
562 U.S. 443, 453 (2011) (citations omitted). “Whether speech
addresses a matter of public concern must be determined by the
content, form, and context of a given statement, as revealed by
the entire record.” Kennedy, 935 So. 2d at 677 n.6 (quoting
Connick, 461 U.S. at 146-48); see also Kirksey, 116 So. 3d at 669.
The Fifth Circuit has further identified categories of speech
that constitute matters of public concern, including, for example,
“associating with political organizations and campaigning for a
political candidate,” “[s]peech ‘made against the backdrop of
ongoing commentary and debate in the press,’” or “[s]peech relating
to racial discrimination . . . .” Herrera v. Med. Ctr. Hosp., 241
F. Supp. 2d 601, 609 (E.D. La. 2002) (citing Vojvodich v. Lopez,
48 F.3d 879, 885 (5th Cir. 1995); Kennedy v. Tangipahoa Par.
Library Bd. of Control, 224 F.3d 359, 373 (5th Cir. 2000); Victor
v. McElveen, 150 F.3d 451, 456 (5th Cir. 1998)). However, “[s]peech
concerning a purely personal labor dispute, such as a disagreement
between an employee and an employer about the conditions of
employment, is not of public concern.” Herrera, 241 F. Supp. 2d at
609 (citing Ayoub v. Tex. A & M Univ., 927 F.2d 834, 837 (5th Cir.
Defendant cites to several cases to support its assertion
that “[s]peech about criminal conduct satisfies the statute’s
public-interest standard.” Rec. Doc. 35-1 at 6 (citing Lane v.
Franks, 134 S. Ct. 2369, 2378-80 (2014) (ultimately determining
that “[t]ruthful testimony under oath by a public employee outside
the scope of his ordinary job duties is speech as a citizen for
antithetical to our jurisprudence to conclude that the very kind
of speech necessary to prosecute corruption by public officials .
. . may never form the basis for a First Amendment retaliation
claim”); Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 768-69
(1986) (where the United States Supreme Court eventually held that,
“at least where a newspaper publishes speech of public concern, a
showing that the statements at issue are false” and the case
concerned articles suggesting that the “appellees had links to
organized crime and used some of those links to influence the
administrative”); Armington v. Fink, No. 09-6785, 2010 WL 743524,
at *5 (E.D. La. Feb. 24, 2010) (finding that an article “describing
and analyzing the events at Memorial Hospital in the days following
Hurricane Katrina [was designed] to consider questions raised by
disasters like how limited resources should be divided amongst
patients and what is the line between comfort care and mercy
killing,” that the article “assert[ed] the importance of these
issues in light of proposed legislation to alter the standard of
medical care in emergencies,” and that the article’s stated purpose
therefore presented an issue of public interest); Kennedy, 935 So.
2d at 682 (where a party claimed that “its employees were simply
communicating suspected wrongful acts to officials authorized to
protect the public from such acts, which, if substantiated, would
implicate important community interests,” the court determined
that a qualified privilege applied because the employees “reported
circumstances involving a matter affecting the public interest—
the possible commission of a crime . . . –to the police . . . .”);
Thomas v. City of Monroe La., 35,526 (La. App. 2 Cir. 12/18/02);
833 So. 2d 1282, 1286-87 (finding that “[a]llegations of criminal
conduct are relevant to an official’s fitness for office,” such
that “the complaint against the plaintiff was a matter of public
interest, spurring application of the special motion to strike”);
Johnson v. KTBS, Inc., 39,022 (La. App. 2 Cir. 11/23/04); 889 So.
2d 329, 331-32, writ denied, 04-3192 (La. 3/11/05); 896 So. 2d 68
(where the defendants broadcast an allegation that the plaintiffs’
parents were related as brother and sister in news stories about
the couple’s murder, the court determined that “the plaintiffs’
cause of action arose from the defendants’ exercise of free speech
in reporting a matter of public interest”); Johnston v. NOE Corp.
L.L.C., 46,647 (La. App. 2 Cir. 11/23/11); 81 So. 3d 735, 740,
television news station accurately reported statements provided by
witnesses as to “the alleged commission and investigation of a
serious crime—a sexual assault—which had been reported to the
authorities,” the court determined that “the news report concerned
a matter of public significance”)).
Instead of directly addressing this issue, Plaintiff
states that, at the time the warrant was issued against her on
November 14, 2014,4 “[t]he Washington Parish District Attorney . .
. was indicted on 18 or 19 counts of fraud and WAFB did not see
that as newsworthy but a worthless check case in another parish
its [sic] quite interesting.” Rec. Doc. 38 at 2. She further argues
that “[e]very parish in the state of Louisiana has a worthless
check division with checks totaling a whole lot more than this .
The accuracy of the dates provided by Plaintiff is questionable. However,
Plaintiff subsequently suggests that “Defendant should have investigated and
questioned why an arrest warrant that was issued on November 14, 2014 by the
former District Attorney was not activated until January 22, 2016[,] well it’s
the same day plaintiff was reinstated in the Louisiana Medicaid program. This
was an attempt to further destroy plaintiff and prevent reentry into the
plaintiffs [sic] preferred industry.” Rec. Doc. 38 at 4.
. . .” Id. Finally, she maintains that “[n]o one has been arrested
for bringing a false charge and presenting a false bill of laden
[sic] but the plaintiff is still defending a false claim that
Defendants want to use Freedom of Speech as a cover to spread
malicious statements.” Id.
Essentially, Defendant WAFB relied on a press release from
the Washington Parish Sheriff’s Office to report that a local
businesswoman issued worthless checks in the amount of $27,000 to
purchase fuel from local distributors and then resell that fuel to
other businesses. Issuing worthless checks is a crime. Criminal
activity is certainly a matter of concern to the community and the
activities were therefore a matter of public concern—in the same
organized crime in Hepps, the hospital’s use of euthanasia during
a disaster in Armington, the reporting of a crime to police in
Kennedy, the politician’s alleged criminal conduct in Thomas, the
circumstances of the murder in Johnson, and the alleged commission
considered matters of public concern. The fact that some of
Plaintiff’s alleged activities occurred in an area that Defendant
serves further supports finding that Defendant’s report was made
“in connection with an issue of public interest” under Article
B. CAN PLAINTIFF PROVE A PROBABILITY OF SUCCESS OR ESTABLISH
A GENUINE DISPUTE OF MATERIAL FACT?
“The plaintiff must produce ‘evidence of sufficient quality
and quantity to demonstrate that he [or she] will be able to meet
his [or her] burden of proof at trial.’ This has been described as
a difficult burden, justified by the importance of protecting free
Here, Plaintiff’s complaint essentially alleges defamation
existence of a genuine dispute of material fact as to, “(1)
defamatory words; (2) publication; (3) falsity; (4) malice, actual
or implied; and (5) resulting injury.” Cangelosi v. Schwegmann
(citations omitted); Young v. Equifax Credit Info. Servs., Inc.,
294 F.3d 631, 638 (5th Cir. 2002) (citing Cangelosi, 390 So. 2d at
198). “If even one of the required elements of the tort is lacking,
the cause of action
Costello v. Hardy, 03-1146 (La.
1/21/04); 864 So. 2d 129, 140 (citations omitted); see also English
v. Wood Grp. PSN, Inc., No. 15-568, 2015 WL 5061164, at *15 (E.D.
La. Aug. 25, 2015). Further, “the United States Supreme Court held
that the First Amendment . . . requires that a plaintiff who is a
private figure and who seeks damages for public concern speech
claimed to be defamatory has the burden of proving falsity (and
fault) in order to recover damages.” Spears v. McCormick & Co.,
520 So. 2d 805, 808 (La. App. 3 Cir. 1987), writ denied, 522 So.
2d 563 (La. 1988) (citing Hepps, 475 U.S. 767).
“Louisiana courts have held that when a publisher of a
news story relies upon statements made by law enforcement, even
publisher will not be held liable for defamation.” Rec. Doc. 35-1
at 9 (citing Wilson v. Capital City Press, 315 So. 2d 393, 398
(La. App. 3 Cir.), writ denied, 320 So. 2d 203 (La. 1975) (where
a newspaper report relied on a news release from the state police
and accurately reported the information contained in that release,
the newspaper was not under any duty to verify the information
because the news release came from a “source [that] was reliable
and in a proper position of authority and knowledge such that no
fault can be attributed to [the reporter] or the [newspaper] for
reliance on the information received” and the plaintiff’s suit was
dismissed)); see also Lovett v. Citizen, 584 So. 2d 1197, 1197-99
(La. App. 2 Cir. 1991) (where a local newspaper reported that the
plaintiff was arrested for theft, based on information received
from the chief of police, but the plaintiff was never arrested for
theft, the court recognized that Louisiana courts “have uniformly
held that when the media is furnished arrest information from an
authorized police source, it is under no obligation to verify from
other sources the information so furnished unless it has knowledge
which would make it aware further research was necessary to insure
the veracity of the information” and that the newspaper and
reporter therefore “had no duty to verify the information”).
Washington Parish Sheriff’s
Office’s press release was “published by an authorized source of
information,” “there was no reason for WAFB to doubt the accuracy
of the information contained in the Press Release,” Plaintiff
therefore cannot show fault, and Plaintiff’s claims should be
stricken and dismissed. Rec. Doc. 35-1 at 10.
Plaintiff asks the Court not to strike her claims, considering
“WAFB’s lack of responsible journalism in presenting a story that
is false. The Constitution also protects the plaintiff’s right and
the public[’s] in the assurance that information presented is
truthful and done so in an integris [sic] manner.” Rec. Doc. 38 at
1. She further notes that the arrest occurred on Friday, January
22, 2016, the press release was issued on January 25, 2016, and
that “[t]wo days is plenty of time to get the facts on any news
worthy [sic] story” (id. at 2); “[t]he statements made were false
and it does not matter the source of information and how it was
gathered” (id. at 3); and “it is irresponsible for the Defendant
to place blame on law enforcement without copability [sic] for
their actions” (id. at 5).
Fundamentally, Defendant WAFB argues that every statement
Sheriff’s Office in its Press Release.” Rec. Doc. 35-1 at 2. The
January 25, 2016 press release from the Washington Parish Sheriff’s
Office provided, in full:
On January 22, 2016, Washington Parish Sheriff’s Office
Investigators arrested a Baton Rouge business woman for
issuing worthless checks in the amount of $27,000 to
Washington Parish businesses. Eleanor G. Collins, 47, a
resident of 18555 Surrey Court in Baton Rouge was
arrested and transported to the Washington Parish Jail
where she was booked on one count of issuing worthless
checks. Her bond was set at $5,000. Collins met the
conditions of her bond and was released on January 23.
Collins works in the fuel sales and distribution
business. She purchased fuel from local distributors
with worthless checks and then resold the fuel to other
businesses. Sheriff Randy Seal commented on the arrest,
“I congratulate our investigators for tracking down
Collins in Baton Rouge and making the arrest. Our
officers work hard to protect citizens and businesses in
Washington Parish and will always be on the alert for
those who steal from others. I appreciate all that they
Rec. Doc. 35-2 at 5. Defendant’s January 25, 2016 news report
provided, in full:
A Baton Rouge business woman was arrested for issuing
worthless checks in Washington Parish. The Washington
Parish Sheriff’s Office arrested Eleanor Collins on
Friday, January 22 on one count of issuing worthless
distribution, allegedly wrote $27,000 worth of bad
checks to buy fuel at a business in Washington Parish.
Deputies say she then resold the fuel to other
businesses. She was booked into the Washington Parish
jail, where her bond was set at $5,000. She was released
on Saturday, January 23.
Id. at 3.
Comparatively speaking, there is only one apparent minor
difference between the press release and the news report. While
the press release states that Plaintiff purchased fuel “from local
distributors,” the news release states that she purchased “fuel at
a business in Washington Parish.” This is not a significant
difference. Defendant relied on a press release from the sheriff’s
office and accurately reported the information in that release.
The information came from a reliable source and Plaintiff does not
persuasively allege that Defendant had knowledge that would make
it aware of the need for further research.5 Consequently, Defendant
was under no duty to verify the information before publishing it
and Plaintiff has not demonstrated a probability of success in
material fact as to Defendant’s fault.
Further, Defendant argues
Plaintiff cannot prove that the
statements made by Defendant were false. Rec. Doc. 35-1 at 11; see
also Cavalier v. Houma Courier Newspaper Corp., 472 So. 2d 274,
276 (La. App. 1 Cir. 1985) (“The plaintiff in a defamation case
must bear the considerable burden of showing that he can produce
sufficient evidence at trial to prove with convincing clarity that
the defendant made false statements in the news article and that
At one point, Plaintiff does argue that the local district attorney was
indicted on several counts for entirely unrelated matters. But this does not
suggest that Defendant should have questioned the veracity of the press release
from the Washington Parish Sheriff’s Office.
he either knew the statements were false or that he recklessly
disregarded the question of their falsity”) (citation omitted)
(emphasis added); Romero v. Thomson Newspapers (Wis.), Inc., 941105 (La. 1/17/95); 648 So. 2d 866, 870 (“Truth is a defense, and
it is sufficient if an allegedly libelous article is substantially
omitted) (emphasis added); Hopkins v. Keith, 348 So. 2d 999, 1002
(La. App. 2 Cir.), writ not considered, 350 So. 2d 893 (La. 1977)
(errors and inaccuracies in reporting matters of public interest
involving legal and judicial proceedings “should be a significant
variation from the truth to give rise to liability. In order to
avoid a ‘chilling effect’ on the exercise of First Amendment
rights, the media must be allowed ‘breathing space.’”); Zerangue
v. TSP Newspapers, Inc., 814 F.2d 1066, 1073 (5th Cir. 1987) (“A
publication is also protected if it is ‘substantially true,’ i.e.,
if it varies from the truth only in insignificant details or if
its ‘gist’ or ‘sting’ is true.”) (citations omitted)).
In its basic essence, the news report simply stated that
Plaintiff was arrested. Plaintiff does not dispute that she was
arrested; and, it is immaterial that
charges against her may
have been nolle prossed because her arrest was not erased. Rec.
Doc. 35-1 at 12. Defendant further maintains that the remaining
statements in the news report reflect the statements made in the
press release. Id. at 12-13; see also Rec. Doc. 42 at 5.
Plaintiff argues that the story published by Defendant is
proven false by exhibits, which purportedly show that (1) Hub
Petroleum Services, LLC is a Louisiana limited liability company
and (2) that Plaintiff is the owner of the company, as evidenced
by a 2014 company tax return. Rec. Doc. 38 at 1. However, these
documents were not attached to Plaintiff’s opposition memorandum
demonstrate the falsity of the news report. Nonetheless, Plaintiff
further argues that
[t]he company check presented on behalf of Hub Petroleum
Services, LLC was written to Robertson Oil Company, LLC
and paid in full with bank cashier checks prior to Mr.
Robertson presenting to the Washington Parish District
Attorney. The second one was paid in full on September
2, 2014 and November 10, 2014 in the amounts of $12,000
and $10,000 . . . to the Washington Parish District
Attorney Office. The warrant was issued on November 14,
Id. at 1-2. Plaintiff further claims that “the fuel came from Exxon
in Baton Rouge and the check was issued in Baton Rouge not
Washington Parish and it was never resold to other businesses only
to citizens in the local community.” Id. at 4.
Defendant responds that the statements regarding from whom
and to whom Plaintiff purchased and sold the fuel are substantially
true because the “gist” of the news report is true. Rec. Doc. 42
Even if the Court accepts Plaintiff’s assertion that the
checks were paid in full before the warrant was issued, it does
not change the fact that Plaintiff was subsequently arrested for
issuing worthless checks—which is exactly what Defendant reported.
The remaining discrepancies, namely that Plaintiff claims the
checks were issued in Baton Rouge, not Washington Parish, and that
the fuel was resold to citizens, not to “other businesses,” are
insignificant details. The article is substantially true. Plus,
the news report uses qualifying language, including that Plaintiff
“allegedly wrote $27,000 worth of bad checks to buy fuel at a
business in Washington Parish” and that “Deputies sa[id] she then
resold the fuel to other businesses.” Rec. Doc. 35-2 at 3 (emphasis
added). Given the qualifying language, it cannot be said that these
statements are false unless Plaintiff can show that it was not
alleged that she wrote bad checks or that deputies did not say
Plaintiff resold the fuel to other businesses. The press release
(Rec. Doc. 35-2 at 5) demonstrates that Plaintiff cannot prove
demonstrate a probability of success on her claims or otherwise
establish a genuine dispute of material fact as to falsity.
Third, Defendant argues that defamatory implications are not
actionable in this case, so Plaintiff’s allegation that the news
report “‘gave the impression” that Plaintiff wrote bad personal
checks as opposed to company checks and ‘intentionally deceived
Robertson Oil Company’” is not actionable. Rec. Doc. 35-1 at 13
(quoting Rec. Doc. 1 at 4) (citing Fitzgerald v. Tucker, 98-2313
(La. 6/29/99); 737 So. 2d 706, 717 (“truthful facts which carry a
defamatory implication can only be actionable if the statements
regard a private individual and private affairs. ‘Where public
officers and public affairs are concerned, there can be no libel
by innuendo.’” (citation omitted)). See also Schaefer v. Lynch,
406 So. 2d 185, 187 (La. 1981) (where an article “convey[ed] the
impression” of wrongdoing, but “[w]here public officers and public
affairs are concerned, there can be no libel by innuendo,” summary
judgment was granted in favor of the defendants).
Plaintiff responds that “[t]he company check and the company
name were never mentioned in the article.” Rec. Doc. 38 at 1.
The instant case involves a private individual and a matter
of public concern; consequently, it appears from the Louisiana
case law that the truthful facts recited in the news report cannot
give rise to a claim for defamation, even if Plaintiff successfully
showed that they carry a defamatory implication.
C. IS DEFENDANT ENTITLED TO ATTORNEY’S FEES AND COSTS?
“[A] prevailing party on a special motion to strike shall be
awarded reasonable attorney fees and costs.” LA. CODE CIV. PROC. ANN.
art. 971(B) (emphasis added). “Courts applying this provision have
determined that, under Article 971(B), a prevailing party may only
recover attorneys’ fees associated with the motion to strike, but
not fees associated with defending the entire lawsuit.” McIntyre
v. Gilmore, No. 15-282, 2015 WL 2250210, at *5 (E.D. La. May 13,
2015) (ultimately granting the prevailing party ten days within
which to provide the court with a calculation of attorneys’ fees
number or hours worked, the specific tasks undertaken, and the
reasonable hourly rate charged). Plaintiff’s pro se status does
not necessarily protect her from an award of attorneys’ fees. See,
e.g. McIntyre v. Gilmore, No. 15-282, 2015 WL 4129378, at *1 (E.D.
La. July 8, 2015); Alexanian v. Brown, No. 07-806, 2010 WL 103609,
at *3 (W.D. La. Jan. 7, 2010) (finding the award of fees mandatory,
but that “the statute does not mandate any particular amount of
fees and costs, and does not prohibit determination and assessment
of a reasonable fee” and that, because the plaintiff’s “primary
motivation, however misguided, appears to have been to defend his
character and reputation, and not to chill participation in public
matters or to abuse the judicial system,” an award of $2,500 was
reasonable against a pro se plaintiff); Darden v. Smith, 03-1144
(La. App. 3 Cir. 6/30/04); 879 So. 2d 390, 400, writ denied, 041955 (La. 11/15/04); 887 So. 2d 480 (where the majority found the
award mandatory, but Judge Cooks noted in a dissent that “[b]y
mandating the award of attorney’s fees to a prevailing defendant,
in every case, . . . we risk penalizing individuals for asserting
their constitutional right to petition the court for redress of an
alleged grievance. Although [the plaintiff] did not present enough
evidence to sustain her cause of action, she had every right to
defend her character and reputation against a perceived attack.”);
Stern v. Doe, 01-0914 (La. App. 4 Cir. 12/27/01); 806 So. 2d 98,
103 (finding an award of fees discretionary).
This Court has determined that Defendant’s activities were
protected under Louisiana Code of Civil Procedure article 971 and
that Plaintiff failed to demonstrate a probability of success on
her claims or otherwise establish a genuine dispute of material
fact. Consequently, Defendant is the prevailing party and shall be
awarded attorneys’ fees associated with the special motion to
strike. Recognizing the Court’s discretionary authority in this
case, we award $500.00 as a reasonable fee for work on the instant
motion. Plaintiff is proceeding pro se, with no indication in this
record of any special legal skills or training, and with concerns
over disparate media coverage. The above factors mitigate in favor
of the noted award in this particular instance.
For the reasons outlined above,
IT IS ORDERED that Defendant’s special motion to strike (Rec.
Doc. 35) is GRANTED and that Defendant WAFB, LLC is awarded a
reasonable fee of $500.00.
Defendant WAFB, LLC, most reasonably construed as claims for
defamation, are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that within ten (10) days from the date
of this Order, Plaintiff shall show cause in writing why the claims
against the remaining Defendants, Bogalusa Newsmedia, LLC and
grounds. It appears to the Court that Plaintiff’s remaining claims
rest on the same factual and legal bases as the claims dismissed
today. Accordingly, to save time, money, and resources, Plaintiff
shall show cause why her remaining claims should not be dismissed.
Plaintiff is reminded that “pro se litigants, like all other
parties, ‘must abide by’ the rules that govern the federal courts.”
Frazier v. Wells Fargo Bank, N.A., 541 F. App’x 419, 421 (5th Cir.
2013) (citing United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.
1994)). Failure to timely comply with this Order may result in
various sanctions, including dismissal. FED. R. CIV. P. 41(b).
New Orleans, Louisiana, this 18th day of April, 2017.
SENIOR UNITED STATES DISTRICT JUDGE
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?