Watkins v. Carr et al
Filing
38
MEMORANDUM OPINION. Signed by Judge Paula Xinis on 12/13/2018. (c/m 12/13/2018 tds, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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ALICIA N. WATKINS,
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Plaintiff,
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v.
Civil Action No. PX-17-0819
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ANTHONY CARR, et al.,
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Defendants.
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MEMORANDUM OPINION
Pending before the Court in this defamation action is a motion for summary judgment
filed by Defendants Bright Mountain Media Group and JQPUBLIC (ECF No. 29), and a motion
filed by pro se Plaintiff Alicia N. Watkins (“Watkins”) for extension of time to file her
opposition to summary judgment. ECF No. 34. The Court now rules because no hearing is
necessary. See D. Md. Loc. R. 105.6. For the following reasons, the Court GRANTS Plaintiff’s
motion for extension of time and GRANTS Defendants’ motion for summary judgment.
I.
Background
Bright Mountain Media Group (“Bright Mountain”) owns and operates JQPUBLIC
(“JQP”), a website that hosts blogposts focused on the military and government, with particular
attention paid to the Air Force. See ECF No. 7 at 3, ECF No. 29 at 4. On March 24, 2016, a
blogpost was published on JQP concerning a public meeting between Watkins, an Air Force
veteran, and then-presidential candidate Donald Trump (“Trump”). 1 After Trump Event, New
Questions About Air Force Vet’s Backstory, John Q. Public (Mar. 24, 2016),
Watkins’ Complaint refers to the blogpost by name and purports to attach a hard copy of the post. ECF
No. 1 ¶¶ 12, 16. The attachment is missing; however, the Court will treat the post as incorporated into the
Complaint.
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http://www.jqpublicblog.com/trump-event-new-questions-air-force-vets-backstory/ (“JQP
Blogpost”). During a media event at Trump’s hotel project in Washington, D.C., Watkins,
wearing press credentials, asked Trump a question about veteran employment. Id. Trump
brought Watkins to the podium, and after a brief conversation, offered her a job in his
organization. Id. The blogpost links to news coverage of the exchange from, among others,
CNN and Air Force Times. These reports questioned the authenticity of Watkins’ supposed
media credentials. Id.
The blogpost itself also questions the plausibility of Watkins’ representations made to
Trump and while appearing on other news and entertainment shows, to include the timing of
Watkins’ injuries in the September 11 terrorist attacks or in Afghanistan and the circumstances
leading to her separation from the Air Force. Id. Notably, the blogpost was careful “[n]ot to
outright label Watkins a liar or Charlatan,” but rather aimed to “highlight ambiguities” unearthed
in researching Watkins’ historic representations about her service. Id. The blogpost ultimately
acknowledged that “the remarkable story of Alicia Watkins,” may be “totally legitimate,” but
nonetheless opined that the “endless string of assertions and inferences [], while strictly
plausible, require us to stretch to believe them.” Id.
Watkins filed this case against Bright Mountain, JQP, and Anthony Carr2 (the ostensible
author) based on this blogpost, asserting claims of false light, defamation, and intentional
infliction of emotional distress.3 ECF No. 1 at 4, 5, 7. As relief, Watkins seeks $30,000,000 in
damages. Id. at 11.
The docket does not include any proof that Defendant Carr was served process. Accordingly, Carr’s
claims may be subject to dismissal without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
However, Carr’s claims, as pleaded, are identical to that of the properly served Defendants. For the reasons that
follow, the Court grants summary judgment in favor of all Defendants, including Carr, on all claims.
2
3
This case is one of five similar cases Watkins has filed in this Court. All other related cases have been
dismissed. See Watkins v. Washington Post, No. PWG-17-818, 2018 WL 805394 (D. Md. Feb. 9, 2018) (dismissed
2
Bright Mountain and JQP (collectively, “Defendants”) initially moved to compel
arbitration based on the website’s terms of use. ECF No. 6. The Court denied Defendants’
motion to compel arbitration, ECF No. 19, and issued a discovery scheduling order. ECF No.
23. Watkins did not participate in discovery at all. ECF No. 27.
At the close of the discovery period, Defendants moved for summary judgment. ECF
No. 29. The Court held a status conference on September 5, 2018, and extended Watkins’ time
to respond to the motion for summary judgment until September 18, 2018. ECF No. 32. The
Court also granted Watkins the opportunity to file a motion to reopen discovery for good cause.
Id. Watkins did not move to reopen discovery.
Watkins thereafter moved for an extension of time to respond to the summary judgment
motion. ECF No. 34. In it, Watkins explained that she had submitted a “partial and incomplete
filing” on September 18, 2018, and requested additional time to supplement her response. Id.
Because Plaintiff proceeds pro se, the Court grants the extension nunc pro tunc and considers
Plaintiff’s response at ECF No. 33.
II.
Standard of Review
Summary judgment is appropriate when the Court, construing all evidence and drawing
all reasonable inferences in the light most favorable to the non-moving party, finds no genuine
dispute exists as to any material fact, thereby entitling the movant to judgment as a matter of law.
Fed. R. Civ. P. 56(a); see In re Family Dollar FLSA Litig., 637 F.3d 508, 512 (4th Cir. 2011).
Summary judgment must be granted “against a party who fails to make a showing sufficient to
for failure to state a claim); Watkins v. Cable News Network, Inc., No. GJH-17-780, 2018 WL 1970747 (D. Md.
Apr. 25, 2018) (dismissed for failure to state a claim); Watkins v. The Air Force Times, et al., No. TDC-17-893
(dismissed for failure to show proof of citizenship to satisfy diversity jurisdiction); Watkins v. Guardians of Valor
LLC, et al., No. GJH-17-894 (dismissed for failure to effectuate service of process).
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establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “In
responding to a proper motion for summary judgment,” the opposing party “must present
evidence of specific facts from which the finder of fact could reasonably find for him or her.”
Venugopal v. Shire Labs., 334 F. Supp. 2d 835, 840 (D. Md. 2004), aff’d sub nom. Venugopal v.
Shire Labs., Inc., 134 F. App’x 627 (4th Cir. 2005) (citing Anderson v. Liberty Lobby, 477 U.S.
242, 252 (1986); Celotex, 477 U.S. at 322–23)). Genuine disputes of material fact are not
created “through mere speculation or the building of one inference upon another.” Othentec Ltd.
v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th
Cir. 1985)). Where a party’s statement of a fact is “blatantly contradicted by the record, so that
no reasonable jury could believe it,” the Court credits the record. Scott v. Harris, 550 U.S. 372,
380 (2007).
III.
Analysis
A.
Defamation
Defendants primarily argue that summary judgment should be granted in its favor
because the Communications Decency Act (“CDA”), 47 U.S.C. § 230, exempts Defendants from
suit as interactive service providers. See Jefferson v. Zukerberg, No. RDB-17-3299, 2018 WL
3241343, at *5 (D. Md. July 3, 2018). “The CDA bars the institution of a ‘cause of action’ or
imposition of ‘liability’ under ‘any State or local law that is inconsistent’ with the terms of §
230.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009)
(quoting 47 U.S.C. § 230(e)(3)). The statute provides, in relevant part, that “[n]o provider . . . of
an interactive computer service shall be treated as the publisher or speaker of any information
provided by another information content provider.” 47 U.S.C. § 230(c)(1). The CDA therefore
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bars plaintiffs from “holding interactive computer service providers legally responsible for
information created and developed by third parties.” Nemet Chevrolet, Ltd., 591 F.3d at 254.
However, an entity “can be both a service provider and a content provider,” and therefore be
subject to liability for the content that it helped to create or develop. Hare v. Richie, No. ELH11-3488, 2012 WL 3773116, at *16 (D. Md. Aug. 29, 2012) (quoting Fair Hous. Council of San
Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1161–62 (9th Cir. 2008)). “While an
overt creation of content is easy to identify, determining what makes a party responsible for the
‘development’ of content . . . is unclear, and the CDA does not define the term. Accordingly,
courts often look to the totality of the circumstances in making the determination.” Russell v.
Implode-Explode Heavy Indus. Inc., No. DKC 08-2468, 2013 WL 5276557, at *6 (D. Md. Sept.
18, 2013) (quoting Ascentive, LLC v. Opinion Corp., 842 F.Supp.2d 450, 474 (E.D.N.Y.2011)).
See also Hare, 2012 WL 3773116 at *19 (deferring the determination of CDA immunity until
after discovery in order to “allow the creation of a factual record that will provide a better
foundation for the Court to rule on the issue . . .”).
Although Defendants seek CDA immunity, the record evidence viewed most favorably to
Watkins does not demonstrate what role, if any, Defendants played in creating or developing the
content of the post. Defendants did not, for example, submit affidavits or other documentary
evidence to establish that it did not contribute or otherwise participate in the creation of the
blogpost content. Nor can the Court consider as evidence Defendants’ mere averments included
within their pleadings. See Bailey v. Bradford, 12 F. Supp. 3d 826, 838 (S.D.W.Va. 2014)
(“unsupported assertions by counsel in a memorandum [of law] are not evidence for purposes of
moving for or opposing summary judgment.”). Accordingly, the Court declines to reach whether
Defendants are immune from suit under the CDA.
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That said, Watkins’ defamation claim still fails as a matter of law. To sustain a
defamation claim, Watkins must establish that “(1) the defendant made a defamatory statement
to a third person (a requirement known as publication); (2) the statement was false; (3) the
defendant was legally at fault in making the statement; and (4) the plaintiff thereby suffered
harm.” Meaney v. Nationstar Mortg., No. TDC-16-2959, 2018 WL 1014927, at *14 (D. Md.
Feb. 21, 2018) (citing Gohari v. Darvish, 767 A.2d 321, 327 (Md. 2001)). 4 “A defamatory
statement is one ‘which tends to expose a person to public scorn, hatred, contempt or ridicule,
thereby discouraging others in the community from having a good opinion of, or from
associating or dealing with, that person.’” Lindenmuth v. McCreer, 233 Md. App. 343, 357
(2017) (quoting Batson v. Shiflett, 325 Md. 684, 722–23 (1992)). A statement is actionable in
defamation only where the statement amounts to a “provably false fact or factual connotation.”
Agora, Inc. v. Axxess, Inc., 90 F. Supp. 2d 697, 702 (D. Md. 2000), aff’d, 11 F. App’x 99 (4th
Cir. 2001). Plaintiff bears the burden of proving the falsity of the allegedly defamatory
statements. Telnikoff v. Matusevitch, 347 Md. 561, 594 (1997) (quoting Jacron Sales Co. v.
Sindorf, 276 Md. 580, 596 (1976)). A statement is provably false only when shown to be “not
substantially correct.” Piscatelli v. Smith, 197 Md. App. 23, 37 (2011), aff’d sub nom. Piscatelli
v. Van Smith, 424 Md. 294 (2012) (internal quotation marks and citations omitted). By contrast,
questions or opinions, no matter how “embarrassing or unpleasant to its subject” do not
constitute a statement the truth or falsity of which the parties may demonstrate through
independent evidence. Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1094 (4th Cir. 1993).
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Watkins avers that she is a citizen of Maryland, ECF No. 1 ¶ 6, and “[i]n most [defamation] cases, the
plaintiff’s state of residence bears the most significant relationship to the incident and parties because that is where
the plaintiff's reputation suffers the most.” Ground Zero Museum Workshop v. Wilson, 813 F. Supp. 2d 678, 699 (D.
Md. 2011). Accordingly, Maryland substantive law applies to Watkins’ defamation claim. See Watkins v.
Washington Post, 2018 WL 805394 at *2 n.4; Watkins v. Cable News Network, Inc., 2018 WL 1970747, at *4.
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Watkins principally maintains that the blogpost is rife with “provably false factual
connotation,” sufficient to survive summary judgment. 5 In support, Watkins identifies as
defamatory 26 separate passages of the blogpost. However, Watkins has not generated any
evidence to prove any of this content is false or conveys a “provably false factual connotation.”
Victor Stanley, Inc. v. Creative Pipe, Inc., No. MJG-06-2662, 2008 WL 11367478, at *2 (D. Md.
Jan. 10, 2008) (“In the summary judgment context, [claimants] must do more than provide . . .
allegations, but must provide evidence adequate to support the defamation claim.”) (emphasis in
original). As attachments to her summary judgment opposition, Watkins provides on-line
commentary to the post itself which does not advance whether the blogpost included provably
false statements.
Watkins also provides a single page military form from 2011 which vaguely refers to
injuries sustained in combat. ECF No. 33-1 at 1. Putting to the side questions of authenticity
and reliability of a document which had never been produced in discovery, this record alone does
not demonstrate the falsity of the blogpost. The record, at best, shows that Watkins was injured
in combat and suffers lasting effects of such injuries. But the blogpost does not question whether
Watkins was injured at all. Rather, the blogpost highlights that Watkins claimed combat injuries
in connection with several missions have “varied over time.” See JQP Blogpost.
Similarly, Watkins attaches a photograph which, viewed most favorably to her,
references her in connection with a 9/11 war memorial, but does not demonstrate the falsity of
the blogpost’s representations. The attachment says nothing about Watkins’ particular role in
5
Watkins notably cribs most of her argument verbatim from the plaintiff’s summary judgment opposition
in Eramo v. Rolling Stone LLC, No.3:15-cv-00023-GEC, (W.D. Va.). Compare ECF No. 33 at 5-9 (Watkins case)
with ECF No. 117 at 7-11 (Eramo case). Brown v. Ocwen Loan Servicing, LLC, No. PJM 14-3454, 2015 WL
5008763, at *1 (D. Md. Aug. 20, 2015), aff’d, 639 F. App’x 200 (4th Cir. 2016) (“A court may take judicial notice
of docket entries, pleadings and papers. . .”).
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9/11 and so cannot undermine any of the questions raised in the post about whether she was
injured in the 9/11 attacks. Neither attachment, alone or together, is sufficient to generate a
triable issue of fact as to the falsity of any blogpost passages.
Separate from her response, Watkins also submitted a stand-alone affidavit, evidently for
the Court’s consideration in connection with this motion. ECF No. 35. The Court declines to
consider the affidavit. Over the life of this case, Watkins totally abdicated her responsibility in
exchanging discovery. Watkins did not respond to Defendants’ request for production of
documents, which included requests for her military records. ECF No. 27. Nor did Watkins
respond to Defendants’ attempts to work toward a meaningful exchange of discovery. Id. Even
after the Court provided Watkins a final opportunity to justify reopening discovery for good
cause (ECF No. 32), Watkins failed to do so. To be sure, much of Watkins’ “attestations” could
have been proven or disproven in discovery had she prosecuted her own case.6 The Court will
not reward Watkins’ dereliction by allowing her to circumvent the discovery rules.
Alternatively, even if the affidavit were considered, it does not defeat summary
judgment. At best, the affidavit amounts to wholly self-serving, unsupported conclusory
statements. Larken v. Perkins, 22 F. App’x 114, 115 (4th Cir. 2001) (citing Williams v.
Cerberonics, Inc., 871 F.2d 452, 455 (4th Cir.1989). See also 2315 St. Paul St., LLC v. Hartford
Fire Ins. Co., No. GLR-10-3641, 2012 WL 2450167, at *5 (D. Md. June 25, 2012), aff’d, 537 F.
App’x 239 (4th Cir. 2013) (“a conclusory, self-serving affidavit that is without corroboration”
and purports to contradict discovery provided by the opposing party is insufficient evidence to
create a genuine dispute of material fact). Because a party’s mere denials couched as evidence
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For example, Watkins claims to have been a student at Harvard University and to have undergone “facial
reconstruction surgery” in 2014, facts which, if true, would be documented in school and medical records. Because
Watkins failed to participate in the discovery process, Defendants have been deprived of any opportunity to
investigate the truth of Watkins’ assertions. ECF No. 35 ¶¶ 6-7.
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cannot generate a disputed material fact for trial, summary judgment must be granted in
Defendants’ favor.
B. False Light
For the same reasons, Watkins’ false light claim also fails. As with defamation, the
plaintiff bears the burden of showing that the information casting plaintiff in a “false light” is
provably false. Bagwell v. Peninsula Reg’l Med. Ctr., 106 Md. App. 470, 514 (1995). See also
Piscatelli, 197 Md. App. at 38 (quoting Crowley v. Fox Broadcasting Co., 851 F.Supp. 700, 704
(D. Md. 1994)). Because Watkins has failed to demonstrate that the blogpost included any
provably false statements, summary judgment is granted in favor of Defendants on this claim as
well.
C. Intentional Infliction of Emotional Distress
As to Watkins’s Intentional Infliction of Emotional Distress (“IIED”) claim, Watkins has
once again failed to marshal sufficient evidence to survive challenge. An IIED claim is reserved
only for the most “opprobrious behavior that includes truly outrageous conduct . . . of a nature
which is especially calculated to cause, and does cause, mental distress of a very serious kind.”
Doe v. Salisbury Univ., 123 F. Supp. 3d 748, 759 (D. Md. 2015) (quoting Ky. Fried Chicken
Nat’l Mgmt. Co. v. Weathersby, 326 Md. 663 (1992)); Lasater v. Guttmann, 194 Md. App. 431,
448 (2010) (internal citation omitted) (noting that “[i]n the 30 years since the Court of Appeals
recognized the tort of IIED, it has upheld such claims only four times.”). To sustain an IIED
claim, Watkins must demonstrate that Defendants’ conduct was so extreme and outrageous as to
cause plaintiff severe emotional distress. Lasater, 194 Md. App at 448.
On the current record, Watkins has failed to produce sufficient evidence to save this
claim. First, Defendants’ publishing a blogpost alone is not the kind of “extreme and
outrageous” conduct contemplated by this rarely invoked common law tort. Cf. Figueiredo9
Torres v. Nickel, 321 Md. 642, 653 (1991) (IIED claim where defendant, a psychologist,
provided counseling services to married couple while also engaging in romantic and sexual
relationship with the wife); B.N. v. K.K., 312 Md. 135, 144 (1988) (IIED claim could proceed
where physician, knowing he had herpes, infected nurse and never warned her in advance of
having sex). Second and equally fatal, Watkins provides no “‘evidentiary particulars,’ as to any
physical or psychological conditions,” or “or any treatments she may have received” as a result
of Defendants’ actions. Jones v. Family Health Centers of Baltimore, Inc., 135 F. Supp. 3d 372,
383–84 (D. Md. 2015) (quoting Harris v. Jones, 281 Md. 560, 380 A.2d 611, 617 (1977)).
Watkins’ singular reference to emotional distress in her supplemental affidavit, even if accepted
by this Court, is simply insufficient to allow the claim to proceed. Summary judgment is granted
in Defendants’ favor.
D. Conclusion
For the foregoing reasons, Plaintiff’s motion for extension of time and Defendants’
motion for summary judgment are GRANTED. A separate Order follows.
12/13/2018
Date
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/S/
Paula Xinis
United States District Judge
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