Hazime et al v. Fox TV Stations, Inc
OPINION and ORDER GRANTING DEFENDANT'S 13 MOTION TO DISMISS. Signed by District Judge Nancy G. Edmunds. (JCur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
HUSSEIN HAZIME, ET AL.,
Case No. 12-15072
Honorable Nancy G. Edmunds
FOX TV STATIONS, INC.,
OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 
At a hearing held on August 14, 2013, this matter came before the Court on
Defendant’s1 Rule 12(b)(6) motion to dismiss. Three individuals and three companies -Hussein Hazime, Rima Abou-Alayoui, Hassan Hazime, Hassan's Shop, Inc., Timeless
Mattresses LLC, and M&R Appliance and Mattresses LLC -- filed this Complaint on
November 15, 2012. Plaintiffs' complaint alleges eight claims for relief. The first, second,
fourth, and fifth claims for relief are expressly labeled "defamation" claims. (See Pls.'
Compl.) The sixth claim is styled as a "tort/negligence" claim but alleges defamation. (Id.,
¶ 115. The seventh claim is styled as "injurious falsehood" but merely re-alleges the
Defendant informs the Court that New World Communications of Detroit, Inc. ("NWC")
owns and operates the Detroit area television station WJBK (also known as "Fox 2") and
the station's website, myfoxdetroit.com, which prepared and broadcast the two Reports at
issue in this litigation. Defendant further advises the Court that NWC was erroneously
named by Plaintiffs as "FOX TV Stations, Inc., d/b/a Fox 2 News and WJBK." Plaintiffs
apparently were referring to Fox Television Stations, Inc., which is a sister corporation of
NWC. Nonetheless, defense counsel brings this motion on behalf of the erroneously
named Defendant Fox Television Stations, Inc. because Plaintiffs' claims, whether brought
against FTS or NWC are subject to dismissal under Federal Rule of Civil Procedure
preceding claims for defamation and seeks attorney fees and costs. (Id., ¶ 119.) The
eighth claim is styled "Injurious Falsehood/Tortious Interference with an advantageous
economic relationship and tortious interference with an economic relationship-Business
defamation/defamation per se" and makes allegations suggesting that this claim also
includes a claim of defamation. (Id., ¶¶ 121-129.) Defendant's motion is GRANTED. All
claims brought by three Plaintiffs, Hussein Hazime, M&R Appliance and Mattresses LLC,
and Rima Abou-Alayoui, are dismissed because Plaintiffs do not and cannot allege that any
statements were made by Defendant "of and concerning" these three Plaintiffs that would
give rise to the claims asserted. All claims brought by the remaining Plaintiffs against
Defendant are also dismissed.
Plaintiffs fail to defend and thus waive all but their
defamation by implication and interference with contractual relations claims. As to those
two remaining claims, Plaintiffs have not and cannot establish that Defendant WJBK's
broadcasts contain a materially false implication; and because that defamation claim fails,
Plaintiffs' related tortious interference claim also fails.
Plaintiffs' Complaint alleges that WJBK broadcast two reports that give rise to their
claims. The First Report, which Plaintiffs describe as discussing their "refurnished mattress
business," aired on July 25, 2012 as part of Fox 2's evening news program and also ran
on Fox 2's website. (Pls.' Compl., ¶¶ 18-19.) The Second Report is described as a Fox
2 News "follow-up" story that related to Plaintiffs' businesses. (Id., ¶¶ 30-33.) Because the
allegations in Plaintiffs' Complaint are based upon and reference the First and Second
Report and because these two reports are central to Plaintiffs' claims, this Court may
consider them on Defendant's Rule 12(b)(6) motion to dismiss without converting that
motion into one for summary judgment. See Greenberg v. Life Ins. Co. of Va., 177 F.3d
507, 514 (6th Cir. 1999); Lacko v. Mercy Hospital, 829 F. Supp. 2d 543, 547 (E.D. Mich.
2011) (applying Greenberg); DMC Plumbing & Remodeling, LLC v. Fox News Network,
LLC, No. 12-cv-12867, 2012 WL 5906870, at *3 (E.D. Mich. Nov. 26, 2012) (ruling in a
defamation case that, because "the Complaint refers to the April 1, 2011 news broadcast,
and the broadcast is central to Plaintiffs' claims for defamation," the DVD of that broadcast
would be considered by the Court in ruling on the defendant's motion to dismiss).
The following facts are derived from the Court's review of the DVD containing the First
and Second Reports that are central to Plaintiffs' claims alleging defamation. (Def.'s Mot.,
Ex. A, DVD.)
The First Report, a "Problem Solver" segment styled as "Dirty Little Mattress Secret
Uncovered," was aired on July 25, 2012 and begins with an introduction by WJBK anchors
who comment about "mattresses that are made to look brand new but what's inside might
keep you up at night" and how investigative reporter Rob Wolchek "pulls the covers off" and
shows what goes on inside a local mattress factory and what he finds out "is no bed of
roses." Then, Wolchek introduces the story by discussing the various things in life that
occur on beds, that people may not know what happens when you get rid of an old bed, but
claims that he does know.
As Wolchek narrates, the screen reflects what he is describing, stacks of used and
dirty old mattresses, stained and ripped, piled to the ceiling, and he comments "who'd sleep
on one of those? Well, guess what, you might be sleeping on one tonight." Wolchek next
briefly interviews a consumer, later identified as "Del," who talks about how the bed she
purchased looked "new" but that was "the trick of it" because "they" changed the top and
stuffed "it" back.
The First Report then moves to a scene of an undercover reporter purchasing a
mattress from Plaintiff Hassan's Shop, Inc. ("Hassan's Shop") while Wolchek narrates,
stating that "We buy a mattress and uncover a dirty little secret of the mattress biz." The
undercover reporter purchasing the mattress asks, "This is new, right?" The salesman
responds, "Yeah, refurbished." Next, the camera shows Wolchek cutting open the new
cover on the outside of the mattress, while another man (later identified as a Wayne County
Environmental Health Department inspector) shines a flashlight on the inside revealing old,
stained bedding with a cigarette burn hole.
Wolchek narrates that mattresses are sold right here in Detroit and built in a factory
in Livonia as the camera shows the outside of Plaintiff Timeless Mattresses LLC ("Timeless
Mattresses") that supplies the mattresses to Plaintiff Hassan's Shop. Wolchek, now on
camera, asks a sales representative, later identified as Marcus, why they are using "old
fabric" inside the mattresses and Marcus denies that they are doing so saying, "We're not
using old fabric, sir." Wolchek responds, "Dude, look." The camera then shows the inside
of the mattress purchased from Plaintiff Hassan's Shop, and then dirty and torn mattresses
stacked high to the ceiling at the factory, and finally Marcus showing Wolchek around the
factory. Wolchek comments, "After seeing this story today, you might be waking up on the
wrong side of the bed tomorrow."
The next scene is Wolchek interviewing a woman named Jonita who was formerly
employed by Hassan's Shop and states that "they" are not good beds. Wolchek comments
that this store advertises that its beds are custom made, and the interview with Jonita is
punctuated with TV advertisements of Plaintiff Hassan's Shop which repeatedly promote
its beds as "custom made." Wolchek comments that "custom made is usually good but
Jonita says, 'not in this case.'" Jonita is then shown commenting that the beds are
recovered and not completely stripped down; that the mattresses were not really stripped
down all the way, but were half-stripped with new covering put over "the dirty."
As the next scene begins, Wolchek comments that, "the custom made beds at
Hassan's Shop fooled Rober." As Wolchek asks "did he tell you they were new beds, the
camera shows customer Rober responding, "yes, brand new bed."
questioning by Wolchek, Rober acknowledges that it occurred to him later that it might be
refurbished because it caved in too fast. Wolchek reports that Rober, dissatisfied with the
bed's quality, returned his mattress to Plaintiff Hassan's Shop and received another custom
Wolchek then reports that Del also took her mattress back because she says it was
full of bed bugs. The camera then shows Del saying, "They were coming out from under
the box spring lining of the bed." Wolchek narrates that "Del was given another bed and
guess what?" The camera once again shows Del who says, "Bed bugs was in this one
too." Wolchek states that "Now Del sleeps with the plastic still on her custom made bed,"
as the camera shows Del's mattresses with the plastic wrap still on. Wolchek narrates "she
says she was tricked." And, the camera shows Wolchek interviewing Del who says "They
was supposed to be, from my knowledge, new beds, but come to find out they wasn't."
The First Report returns to the portion of the story where the undercover reporter
purchases a "custom made" mattress from Hassan's Shop. Viewers are shown Wolchek
back at the station unwrapping the plastic covering and cutting into the custom made
mattress to see what is inside. The camera focuses on the mattress tags. There is a white
tag on top that largely covers the yellow tag underneath it. The only language visible on
the yellow tag from underneath the white tag is the name "Timeless Mattresses" and its
Livonia address. Wolchek comments that both tags are under the plastic, the white tag is
prominently displayed but doesn't reveal that second hand materials are used. The yellow
tag does reveal this information but is visible only if you lift up the white tag after removing
The camera next shows Wolchek tearing open the mattress. He identifies a Wayne
County Environmental Health Department inspector who is observing Wolchek as he cuts
into the mattress from Hassan's Shop, and both examine the mattress which reveals the
presence of old, stained bedding materials. Wolchek and the inspector comment on the
presence of a lot of new foam padding but also note that the guts of the mattress contained
used bedding. The camera shows old and used bedding materials from inside the
mattress. Wolchek then comments about the good news/bad news from his inspection:
"The good news is there are no bed bugs" but the inspector from the Health Department
says that mixing new bedding and old bedding isn't something he'd recommend. The
inspector is then shown on camera saying that bed bugs are hitchhikers and travelers;
that's how they get around; and they can be transported from one facility or site to another,
even inside a refurbished mattress like the one shown on the camera.
Wolchek narrates again as the camera shows him going to Hassan's Shop to speak
with Hassan, the owner, and stating his intent to show him what his investigation revealed.
On camera, Hassan denies that he has ever had a complaint from any customer. The
camera cuts away and Wolchek is heard saying, "What about Del and Rober?"
Next, as Wolchek narrates and the camera shows, Marcus gives a tour of Plaintiff
Timeless Mattresses' factory -- the factory where Hassan's Shop gets the mattresses it
sells. The camera shows piles of dirty mattresses in close proximity to mattresses being
rebuilt. Marcus tells Wolchek that before they bring the old mattresses in, they inspect
them and spray them, then bring them in and strip them down, that basically, only the
spring system in the old mattress remains. Marcus asks Wolchek, "You think bedbugs are
gonna live in a spring system?" The camera then shows the stacks of old and unstripped
mattresses in the same vicinity as the new material and Wolchek narrates that Hassan's
Shop buys its mattresses from this shop. Next, it shows Marcus conceding to Wolchek that
the factory does sometimes use "old product, old stuff." As Wolchek states in his narrative
and replays for the viewer, this statement contradicts Marcus's earlier statement that they
don't use old fabric.
The final segment of the First Report has Wolchek commenting off camera, "So,
whether you're shopping at Hassan's or at an upscale store in Livonia, you might get a
mattress like this," and the camera shows the torn-apart mattress with the old and new
materials inside that was purchased from Hassan's Shop by the undercover reporter.
Wolchek then comments, "And, if you're looking for that yellow tag that says "Second Hand
Materials," you might have to look a little harder." The camera then shows Wolchek inside
a Timeless Mattresses store in Livonia asking to see the labels on the mattresses. A bed
is pulled away from a wall, showing that the mattresses have two tags, a white on top of
a yellow, and both are covered by plastic. Wolchek comments off camera, "Not exactly
really visible." As shown earlier in the First Report, the top, white tag is visible to the
customer under the plastic and states that the bed is manufactured by Timeless Mattresses
in Livonia and that it conforms to federal standards of flammability. The second, yellow tag
is placed directly under the white tag and the yellow tag's language, "Second Hand
Materials," is completely covered by the white tag.
Back in the studio, Wolchek concludes by saying that he spoke with the manager of
the Timeless Mattresses factory who said that they get their mattresses from companies
that collect old mattresses but he didn't really say where those companies get the old
mattresses; and tells viewers that all of this is perfectly legal but "kind of a gross thing;" and
in response to an anchor's comment that he had just purchased a mattress from a major
department store, Wolchek cautions that, although a mattress might look brand new,
consumers should check the tags on the mattress to see if it contains second hand
materials because "you never know."
The Second Report was aired on August 13, 2012 with two different Fox 2 News
anchors introducing a follow-up on Wolchek's original story. One anchor describes the
segment as one about a Detroit-area mother who thought she was buying brand new beds
for her family but she says the new-looking mattresses had bed bugs in them; the other
anchor then comments, "It turns out they weren't new mattresses, they were old beds
covered with new material. But there is a happy ending to this story." Then "problem
solver" Rob Wolchek is introduced.
Wolchek begins by identifying the Detroit mother as "Del" and the victim in his earlier
story about refurbished beds and commenting that viewers would be surprised how many
stores sell them, "but not one mattress man -- his name is Jeff -- and after seeing Del's
story he wanted to make sure that Del's family went to bed at night knowing that their beds
were brand new inside and out." The camera then shows Del with her children rollicking
on a new mattress with Wolchek commenting that these children are happy because
they're getting new beds courtesy of Jeff Scheuer of Mattresses To Go and Del expressing
While the camera shows Del and the white and yellow tags from the First Report,
Wolchek narrates that Del was featured in a story he did a few weeks earlier that exposed
"a dirty little secret" about the mattress business -- they're called refurbished mattresses.
Wolchek explains that Del purchased three mattresses from Hassan's Shop in Detroit that
advertises that its mattresses are custom made. The Second Report then shows the
segments from the First Report with Del and Hassan's Shop's TV advertisements. Wolchek
then comments "What does custom made mean? In this case, it means made out of old
mattresses." The camera then shows footage from the Timeless Mattresses factory in
Livonia as Wolchek narrates that "Here at this factory in Livonia, old dirty mattresses go in
and new-looking ones come out." He comments that people like Del and Rober featured
in the First Report thought they were new and replays footage from the First Report of
Rober and Del, along with Del's claim on camera that both her first and replaced
mattresses from Hassan's Shop had bed bugs. Wolchek also replays the segment where
he sent an undercover reporter into Hassan's Shop to buy a mattress, took the mattress
back to the station, opened it up and discovered old stained materials with a cigarette burn
inside the new looking cover. He discloses that he didn't find any bed bugs in the mattress,
and replays the Health inspector's on-camera comments that he doesn't recommend mixing
old bedding materials with new because bed bugs are hitchhikers that can be transported
from one site to another even inside refurbished beds like the one shown on camera.
The Second Report then replays the segment from the First Report where Wolchek
goes back to Hassan's Shop and speaks with Hassan who claims he has not had any
complaints from any customers, and then replays Del's and Rober's complaints. It also
replays the segment showing the inside of the Timeless Mattresses factory with the old torn
mattresses in close proximity to the new materials and replays Marcus's conflicting
statements that Timeless Mattresses does not and does use old fabric in their refurbished
Wolchek then explains that this is all perfectly legal, that these beds are sold in other
shops in metro Detroit, but they are not sold in Jeff Scheuer's shop. The camera then
shows Jeff, explaining that he is a small business that just wanted to help Del's family get
some nice new beds and "he's got them." The camera shows Jeff and the mattresses he
is delivering to Del's family. Jeff explains that these mattress are "100% brand new."
Wolchek shows the old mattresses being removed from Del's home and comments, "Guess
what was in those old mattress? You got it. Old bedding material." The camera shows
Jeff inspecting the inside of the Del's refurbished mattress that shows a Sealy tag and Jeff
saying that he's sold Sealy mattresses for 20 years and did not recognize the material in
Del's refurbished mattress and agrees with Wolchek that the material could be 30 years
The Second Report concludes with Wolchek commenting that Jeff wanted to help
Rober as well by giving him a new mattress, but by the time Wolchek reached Rober
another company, Gardner White, had come forward to donate a brand new queen size
mattress to Rober. Wolchek explains that Rober and Del were not looking for any handout, rather they were just two people brave enough to go on camera and tell their stories
and help him out in exposing this refurbished mattress business and they got rewarded.
One of the two Fox 2 News anchors then comments that they've heard from so many
people telling them that bed bug infestations are a nightmare. Wolchek responds that
these refurbished beds that they sell, you may think they are brand new beds, that it's very
deceiving, and what consumers need to do is look for the yellow tag (he holds one up for
the camera) but reminds viewers that even though they hide the yellow tags under white
tags, the law requires that the yellow tag that says second hand materials be on the
mattress and this means you might have an old bed inside your brand new bed. In
response to an anchor's comment, Wolchek reiterates that this is all completely legal, that
it is buyer beware. Wolchek also states that all the big companies like Sealy, Simmons,
and Serta are all safe but you can't always tell if a mattress is refurbished just by looking
at the price -- that it is a tricky business.
This matter is now before the Court on Defendant's motion to dismiss brought
pursuant to Federal Rule of Civil Procedure 12(b)(6).
Rule 12(b)(6) Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
sufficiency of a complaint. In a light most favorable to the plaintiff, the court must assume
that the plaintiff’s factual allegations are true and determine whether the complaint states
a valid claim for relief. See Albright v. Oliver, 510 U.S. 266 (1994); Bower v. Fed. Express
Corp., 96 F.3d 200, 203 (6th Cir. 1996). To survive a Rule 12(b)(6) motion to dismiss, the
complaint’s “factual allegations must be enough to raise a right to relief above the
speculative level on the assumption that all of the allegations in the complaint are true.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and emphasis
omitted). See also Ass’n of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d
545, 548 (6th Cir. 2007). “[T]hat a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions. Threadbare recitals of all the elements
of a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) The court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Id. at 679 (internal quotation marks and
citation omitted). Moreover, “[o]nly a complaint that states a plausible claim for relief
survives a motion to dismiss.” Id. “Determining whether a complaint states a plausible
claim for relief will . . . be a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense. But where the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has
alleged – but it has not shown – that the pleader is entitled to relief.” Id. (internal quotation
marks and citation omitted). Thus, “a court considering a motion to dismiss can choose to
begin by identifying pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth. While legal conclusions can provide the framework of
a complaint, they must be supported by factual allegations. When there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id. In sum, “[t]o survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to state a claim for
relief that is plausible on its face.” Id. at 678 (internal quotation marks and citation omitted).
Defendant raises three principal arguments in support of its motion seeking dismissal
of all claims asserted in Plaintiffs' complaint: (1) claims brought by three of the Plaintiffs
should be dismissed because Plaintiffs do not and cannot allege that any statements were
made by Defendant "of and concerning" these three Plaintiffs that would give rise to the
claims Plaintiffs assert; (2) all but Plaintiffs' defamation by implication and tortious
interference claims should be dismissed because Plaintiffs fail to defend them; and (3) as
to the remaining two claims, Plaintiffs have not and cannot establish that Defendant
WBJK's broadcasts contain a materially false implication; and because that defamation
claim fails, Plaintiffs' related tortious interference claim also fails. The Court addresses
each of these arguments in turn.
A. All Claims Brought By Three of the Plaintiffs Are Dismissed
Defendant first argues that three Plaintiffs -- Hussein Hazine, M&R Appliance and
Mattresses LLC, and Rima Abou-Alayoui – do not and cannot allege that Defendant
published a false and defamatory statement or implied a false and defamatory statement
about them, requiring dismissal of all claims asserted by them against Defendant. This
Under Michigan law, to prevail on a defamation claim, a plaintiff must allege and
establish that the defendant published a false and defamatory statement concerning that
plaintiff. See Curtis v. Evening News Assoc., 352 N.W.2d 355, 356 (Mich. Ct. App. 1984)
(holding that "[b]ecause plaintiff failed to allege that defendant published a false and
defamatory statement 'concerning plaintiff,' plaintiff failed to state a claim on which relief
could be granted"). See also Pullman Indus., Inc. v. Mfrs. Enameling Corp., 15 F. App'x
297, 303 (6th Cir. 2001) (affirming the district court's grant of summary judgment in favor
of the defendant on the plaintiff's defamation claim and concluding "that the lack of any
direct or indirect defamatory reference to [the defendant] in [the challenged publication]
defeats the plaintiff's defamation claim as a matter of law."); Siddiqui v. Gen. Motors Corp.,
No. 302446, 2012 WL 335680, *6 (Mich. Ct. App. Feb. 2, 2012) (observing that "[o]ne of
the basic requirements of a defamatory statement is that it must have a specific reference
to the plaintiff" and holding that "the trial court did not err in dismissing plaintiff's business
defamation claim" when "the allegedly defamatory statements contained in the letter do not
have a specific application" to the corporate plaintiff).
The three Plaintiffs that Defendant identifies -- Hussein Hazime, M&R Appliance and
Mattresses LLC, and Rima Abou-Alayout – have not and cannot allege facts that satisfy
this essential element of a defamation claim. Plaintiffs' complaint makes no allegations
regarding these three Plaintiffs other than to state that they are either a Michigan resident
or Michigan corporation. (Compl., ¶¶ 6, 8, 9 and 11.) That Plaintiff Hussein Hazime is the
sole member of Plaintiff Timeless Mattresses LLC fails to satisfy this element. Statements
about corporate Plaintiff Timeless Mattresses LLC are not, as a matter of law, statements
"of or concerning" individual Plaintiff Hussein Hazime. See Gilbert Shoe Co. v. Rumpf Pub.
Co., 112 F. Supp. 228, 229 (D. Mass. 1953) (affirming decision dismissing the individual
plaintiff's defamation claims for failure to state a claim upon which relief could be granted
because "[t]he allegedly libelous statement involved here refers solely to the plaintiff
corporation and not to the individual plaintiff" and "[i]t is essential in an action for libel that
the publication of the libel should be of or concerning the plaintiff. One who is not himself
libeled cannot recover even though he has been injured by the libel published concerning
another. In particular, an officer or stockholder of a corporation who is not personally
libeled has no right to recover for a libel published of the corporation.") (internal citations
omitted). Accord, AIDS Counseling and Testing Ctrs. v. Group W Television, Inc., 903 F.2d
1000, 1005 (4th Cir. 1990) (affirming the dismissal of individual plaintiff and observing that
"[c]ommon sense, as well as the law of defamation, dictates that, in order for a claim for
defamation to arise, a publication must refer to the individual who seeks to sue on the
publication.") (citing cases).
The Court now addresses Defendant's second argument -- that Plaintiffs' failure to
defend all but two of their claims in response to Defendant's motion to dismiss results in a
waiver of those claims.
2. Claims Not Addressed Are Waived
Defendant argues that Plaintiffs' failure, in their response brief, to address the merits
of all but their defamation by implication and tortious interference claims results in a waiver
of those ignored claims. This Court agrees.
"The Sixth Circuit has held that a party's failure to respond to or oppose an issue
raised in a Rule 12(b)(6) motion may result in waiver of the issue." Simpson v. G4S Secure
Solution (USA), Inc., ___ F. Supp. 2d ____, 2013 WL 2014493, *3 (W.D. Tenn. May 13,
2013) (citing Allstate Ins. Co. v. Global Med. Billing, Inc., No. 12-1263, 2013 WL 1405142,
*3 (6th Cir. Apr. 8, 2013); Humphrey v. U.S. Attorney Gen.'s Office, 279 F. App'x 328, 331
(6th Cir. 2008)). The same result applies to claims that a plaintiff fails to defend in
response to a defendant's motion to dismiss. See Rondigo, LLC v. Twp. of Richmond,
Mich., No. 12-1515, 2013 WL 1271668, *2 (6th Cir. Mar. 28, 2013) (affirming the district
court's dismissal of the plaintiff's state-law claims and holding that "the plaintiffs have
waived these claims" because "[t]he plaintiffs did not address the merits of their state-law
claims and therefore failed to develop their argument against dismissal.").
Because Plaintiffs fail to defend the following six claims in response to Defendant's
Rule 12(b)(6) motion to dismiss, they are dismissed: Libel per se (Claims 1 and 2), false
light (Claim 3), reckless disregard/actual malice (Claim 5), negligence (Claim 6), and the
claim for legal fees and costs (Claim 7).
The Court now turns its attention to the defamation by implication and tortious
inference claims that Plaintiffs do defend.
C. Plaintiffs Cannot State A Claim For Defamation By Implication
Defendant next argues that Plaintiffs cannot state a claim of defamation by implication,
and Plaintiffs argue the opposite. The Court begins its analysis of the parties' arguments
with a discussion of the legal principles that govern defamation claims involving privatefigure Plaintiffs, matters of public concern, and a news media Defendant.
As the Michigan Supreme Court observed in Rouch v. Enquirer & News of Battle
Creek Michigan, 487 N.W.2d 205, 258 (Mich. 1992), "[t]he common law has never required
defendants to prove that a publication is literally and absolutely accurate in every minute
detail." Moreover, "[i]n contrast to the early common law, where falsity was presumed and
the defendant was required to prove substantial truth as a defense, the burden of proving
falsity has now been shifted to the plaintiff." Id. at 259. As to Michigan's common-law test
for falsity, the Rouch court clarified that "[m]inor inaccuracies do not amount to falsity so
long as the substance, the gist, the sting, of the libelous charge be justified. Put another
way, the statement is not considered false unless it would have a different effect on the
mind of the reader from that which the pleaded truth would have produced." Id. at 260
(quoting Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517 (1991) (internal
quotation marks and citations omitted)).
Michigan law recognizes "a cause of action for defamation by implication," that can
only be established "if the plaintiff proves that the defamatory implications are materially
false" but does not require "a direct showing of any actual literally false statements."
Hawkins v. Mercy Health Servs., Inc., 583 N.W.2d 725, 732 (Mich. Ct. App. 1998)
(emphasis in original) (discussing Locricchio v. Evening News Ass'n, 476 N.W.2d 112
(1991)). The leading case on defamation by implication claims is Locricchio v. Evening
News Association, 476 N.W.2d 112 (1991). There, the Michigan Supreme Court examined
the plaintiffs' defamation claim based on the Detroit News' publication of a four-part series
of articles on the plaintiff's development of the Pine Knob complex in the 1970's.
Locricchio, 476 N.W.2d at 114. Plaintiffs were unable to identify any materially false
statements of fact in the reporting and relied instead on a claim of defamation by
implication. Id. Specifically, they claimed that "the Pine Knob series as a whole falsely
implied that plaintiffs were members, or associates of organized crime" and that "the layout
of the Pine Knob articles, including photographs and headlines, as well as the repetition of
certain words such as 'Mafia,' 'Sicilian," and 'money wash,' and indeed certain specific
statements, contribute to the overall implication." Id. at 132. The plaintiffs had prevailed
on their claim at trial, but "the trial court ruled that the evidence regarding falsity did not
support the jury's verdict, and directed a verdict for the Detroit News." Id. at 114. Plaintiffs
then prevailed on appeal, and this time the Detroit News filed an appeal. Id. The Michigan
Supreme Court considered two issues on appeal: (1) did the Court of Appeals err in
reversing the trial court's directed verdict; and (2) "can a private-figure plaintiff recover
damages in a media-defendant/public-interest subject matter libel action where the plaintiff
alleges defamatory implication but fails to identify or prove any materially false factual
statements or implications or omissions?" Id. As to the first issue, it held that the Court of
Appeals did err "in reinstating the jury verdict in favor of plaintiffs." Id. at 115. The
Michigan Supreme Court then found that, because the plaintiffs failed to prove "falsity in
either the underlying facts or in their implication," it need not "answer the second question
as posed." Id. Rather, it held "simply that the plaintiffs failed to carry their burden of
proving either false and defamatory factual statements or false implications." Id. As the
Locricchio court explained:
Unfortunately for the plaintiffs, an inescapable implication of the Pine Knob
series conforms to the facts developed at trial: the plaintiffs had numerous
financial and social connections with reputed organized crime figures and these
associations contributed in the financing of Pine Knob and prompted intense
investigative scrutiny, if not harassment, from law enforcement authorities.
Although capable of defamatory interpretation, the implications alleged by the
plaintiffs do not arise from false facts or material omissions, and, standing alone,
are not even proven by the plaintiffs to be false.
Id. at 132 (emphasis added and internal footnote omitted).
Plaintiffs do not contest the well-established legal principles that they have the burden
of proving falsity, that this burden cannot be met if the gist or sting of the alleged libel does
not leave a different impression than would the literally accurate facts, and that a court
must view the challenged statements in the context of the entire broadcast. (Resp. at 3-4,
6, 12.) Plaintiffs here do not identify any materially false facts in the Reports. Rather,
similar to the Locricchio plaintiffs, they argue that the Reports, as a whole, give rise to false
implications -- that they were intentionally and dishonestly passing off refurbished
mattresses as new (Resp. at 10), that Plaintiffs' customers were unhappy and not satisfied
with their mattresses (Resp. at 11); that the mattresses Plaintiffs sold were contaminated
with bed bugs (Resp. at 13), and that Plaintiffs "are running dishonest, unethical, illegal
businesses." (Resp. at 13.) Plaintiffs also argue that Defendant's omission of a material
fact from the Reports -- that customers sign a receipt that discloses that "All mattresses are
rebuilt/Reconditioned" -- also helped create the false impression that Plaintiffs were passing
off refurbished mattresses as new to unsuspecting consumers. (Resp. at 6.) This Court
disagrees with Plaintiffs.
Addressing the third argument first, it cannot be disputed that Wolchek, in both
Reports, repeatedly stated that the refurbished mattress business featured in his "Problem
Solver" segment was perfectly legal. These statements are not capable of the defamatory
meaning that Plaintiffs contend is the gist and sting of the First and Second Reports.
Plaintiffs' second argument -- that the Reports created the false impression that they
sold mattresses that were contaminated with bed bugs fails -- also fails. First, it was Del,
a customer of Plaintiff Hassan's Shop, who stated on camera her belief that both the
original and replacement mattresses she got from Hassan's Shop were contaminated with
bed bugs, not Defendant. Plaintiffs' claim is similar to one raised by the plaintiff in
McLachlan v. Kneff, No. 193448, 1997 WL 33344009, *3 (Mich. Ct. App. 1997) and
rejected by the Michigan Court of Appeals. The plaintiff's defamation claim in McLachlan
was rejected because the article the defendant had published in a local paper reported
what someone else had told the defendant reporter -- that the plaintiff had offered that other
person a bribe -- and the plaintiff could not dispute that that other person had in fact made
the allegedly defamatory statement. The McLachlan court ruled that the plaintiff's attempts
to dispute "that he did not actually offer a bribe," failed to establish that what the defendant
published was false, and thus affirmed the dismissal of plaintiff's "claim of defamation
regarding defendant Dresch's article." Id. at *2. The same reasoning and result apply here.
The Reports at issue here truthfully reported that it was Del who said the mattresses
she purchased from Hassan's Shop had bed bugs. Plaintiffs do not allege or argue that
Defendant inaccurately portrayed Del's belief that there were bed bugs in the mattresses
she bought from Hassan's Shop. Accordingly, Plaintiffs' cannot establish a defamation
claim arising out of Del's statements about bed bugs or Defendant's accurate portrayal of
her comments. The same is true of the Environmental Health Department inspectors' oncamera recommendation that old bedding materials not be mixed with new because bed
bugs are hitchhikers and travelers that can be transported from one facility or site to
another even inside refurbished beds like the one purchased by the undercover reporter
at Hassan's Shop; a mattress that Defendant's investigative reporter Wolchek expressly
stated on camera did not have bed bugs. The Reports also showed Marcus, an employee
of Plaintiff Timeless Mattresses LLC, asserting on camera that they strip mattresses down
to the spring system and bed bugs could not live in a spring system. That "bed bugs" were
mentioned several times both in the Reports and in the anchor's pre- and post-airing
comments is insufficient to establish a claim of defamation by implication. As the Locricchio
court made clear, Plaintiffs must show that the Reports "as a whole disseminate false
impressions," and they cannot meet that burden here. See Locricchio, 476 N.W.2d at 133.
Next, the Court addresses Plaintiffs' argument that the Reports created that false
impressions that they sold mattresses that looked new on the outside but contained used
bedding materials on the inside and that they tried to equate "refurished" or "custom made"
with "new." These arguments are rejected because Plaintiffs cannot show that these
impressions are materially false.
Similar to Del's bed bug assertion, investigative reporter Wolchek accurately reported
the impressions of two customer's of Hassan's Shop -- Del and Rober -- who said they
believed that the mattresses they bought were new. Defendant did not make these
allegations, Del and Rober did. Accordingly, the holding in McLachlan applies here as well
-- Plaintiffs cannot prove the requisite element of falsity in Defendant's Reports about Del
and Rober's personal impressions that the mattresses they purchased were new.
Likewise, Plaintiffs do not dispute facts that give rise to the impression that the
mattresses consumers were purchasing looked new on the outside but contained used
bedding materials on the inside and that consumers may be unaware of that fact. This is
an impression that Plaintiffs' cannot prove to be false in light of the following undisputed
Plaintiffs covered used bedding materials with new fabric, and then wrapped the
completed, refurbished product in plastic;
Plaintiff Hassan's Shop markets its mattresses as "custom made;"
Plaintiff Hassan's Shop's salesman replied to an undercover reporter's question,
"This is new, right?" with "Yeah, refurbished;"
The mattress purchased from Hassan's Shop was taken back to Defendant's
station, cut open by investigative reporter Wolchek, and exposed that used, soiled bedding
materials were inside that mattress;
The mattresses Del said she purchased from Hassan's Shop and thought were
new were also cut open and old, used bedding materials were found inside;
Marcus from Plaintiff Timeless Mattresses LLC initially denied and subsequently
admitted on camera that "old product, old stuff" was used in their mattresses -- mattresses
that were sold to Hassan's Shop;
Plaintiffs attach the legally-required yellow tags with language informing
consumers that "This article of bedding consists of in whole or in part Second Hand
Materials" but do not deny that this yellow tag is placed under a white label that obscures
that text and do not deny that both labels and the entire mattress are then covered with
plastic wrapping; and
Plaintiffs display the mattresses to customers with the plastic-wrapped labels
against the wall.
The Court rejects Plaintiffs' claim that Defendant's Reports omitted a material fact -that customers sign a receipt after purchasing a mattress that discloses that "All Mattresses
are rebuilt/Reconditioned" (Pls.' Compl., Ex. B, 2/28/12 Sales Receipt) -- because that
receipt fails to disclose that old, stained bedding materials are used in mattresses that are
"rebuilt/Reconditioned." That is the whole point of Defendant's Problem Solver Reports.
Revelation of the signed receipt does not render the "gist" and "sting" of Defendant's
Reports, when viewed as a whole, to be materially false.
The gist and sting of Defendant's Reports is "buyer beware;" and more specifically,
although the refurbished mattress business practices exposed in the Reports are perfectly
legal, and the mattresses sold may look like new because they are covered with new
material and wrapped in plastic, buyers should always look underneath this plastic
wrapping for a yellow tag with the words "Second Hand Materials" that is required by law
to be placed on the mattress but is often hidden underneath a white tag because the
"Second Hand Materials" in that mattress may include used, dirty, stained bedding hidden
underneath newer material just like the mattress the investigative reporter purchased from
Finally, the Court addresses Plaintiffs' remaining complaints about the title of the
Problem Solver segment, "Dirty Little Mattress Secret Uncovered," and isolated
commentary, i.e., "It looks like a new bed [but] when you open it there was something
inside that could give you nightmares;" "It's a Problem Solver story that gave people the
creeps -- an expose of the refurbished mattress business;" and "Problem Solver Rob
Wolchek takes you inside a mattress factory in suburban Detroit, and what you'll see will
have you tossing and turning all night." The Court agrees with Defendant -- these
statements fall within the rhetorical hyperbole doctrine.
In Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20 (1990), the Supreme Court
reaffirmed the legal principles that "a statement on matters of public concern must be
provable as false before there can be liability under state defamation law, at least in
situations . . . where a media defendant is involved;" that "a statement of opinion relating
to matters of public concern which does contain a provably false factual connotation will
receive full constitutional protection;" and that First Amendment protection is afforded to
"statements that cannot 'reasonably [be] interpreted as stating actual facts' about an
individual" because "[t]his provides assurance that public debate will not suffer for lack of
'imaginative expression' or the 'rhetorical hyperbole' which has traditionally added much to
the discourse of our Nation." Id. at 20 (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S.
46, 50 (1988)). The Milkovich Court observed that it has "recognized constitutional limits
on the type of speech which may be the subject of state defamation actions" in those
circumstances where "even the most careless reader must have perceived that the word
was no more than rhetorical hyperbole. . . ." Id. at 16-17 (internal quotation marks and
citation omitted). Michigan courts have recognized and applied this "rhetorical hyperbole"
doctrine. See, e.g., Garvelink v. Detroit News, 522 N.W.2d 883, 886 (Mich. Ct. App. 1994)
(holding that, "as a matter of law," a satirical column about a local school superintendent
could not "reasonably be interpreted as stating actual facts about plaintiff and it is,
therefore, protected speech.").
Statements that "something inside" refurbished mattresses "could give you
nightmares," or that the Problem Solver story about refurbished mattresses "gave people
the creeps," or will have viewers "tossing and turning all night," likewise cannot reasonably
be interpreted as stating actual facts about Plaintiffs and thus constitutes rhetorical
hyperbole and protected speech. Moreover, to point, as Plaintiffs do, to the segment's title,
"Dirty Little Mattress Secret Uncovered, in isolation violates the well-established legal
principle that this statement must be viewed in the context of the entire First and Second
Reports. Just like the plaintiffs in Locricchio, Plaintiffs here seem to want to have it both
ways on their defamation by implication claims, i.e., "[o]n the one hand, they assert that the
[reports] as a whole disseminate false implications" while "[o]n the other, they point to
statements or headlines in isolation from the whole. . . ." Locricchio, 476 N.W.2d at 133.
Prevailing defamation law does not allow them to do this. When read in context, the
segment title as well as the other statements discussed above, are protected "rhetorical
hyperbole." See Fielder v. Greater Media, Inc., No. 267495, 2006 WL 2060404, *3 (Mich.
Ct. App. July 25, 2006) (observing that the title of an article about Cecil Fielder, "'Gambling
Shatters Ex-Tiger's Dream Life,' and statements 'unstoppable gambling compulsion,' and
'Fielder is in hiding,' are also protected 'rhetorical hyperbole when read in the context of the
article" because when "read in context," these statements "would not be understood by the
ordinary reader as statements of actual fact about the plaintiff.").
The Court now addresses Plaintiffs' claims of tortious interference.
D. Plaintiffs Cannot State a Claim for Relief for Tortious Interference
Plaintiffs' Eighth Claim for Relief is styled, "Injurious Falsehood/Tortious Interference
with an advantageous economic relationship and tortious interference with an economic
relationship -- Business defamation/defamation per se" and primarily re-alleges their
(Pls.' Compl., ¶¶ 121-129.)
Accordingly, because Plaintiffs'
defamation claims are dismissed, their related tortious interference claim fails as well. It
is well-established in Michigan law that once a defamation claim fails, all related tortious
interference claims fall with it. See Lakeshore Cmty. Hosp., Inc. v. Perry, 538 N.W.2d 24,
27 (Mich. Ct. App. 1995) (observing that "[a]s with defamation actions, where the conduct
allegedly causing the business interference is a defendant's utterance of negative
statements concerning a plaintiff, privileged speech is a defense.").
For the above-stated reasons, Defendant's motion to dismiss is GRANTED.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: August 19, 2013
I hereby certify that a copy of the foregoing document was served upon counsel of record on
August 19, 2013, by electronic and/or ordinary mail.
s/Johnetta M. Curry-Williams
Acting in the Absence of Carol A. Hemeyer
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