Briggs v. University of Detroit-Mercy et al
Filing
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OPINION AND ORDER Granting in Part and Denying in Part Defendants' 8 Motion for Summary Judgment. Signed by District Judge Robert H. Cleland. (Monda, H)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CARLOS BRIGGS,
Plaintiff,
Case No. 13-12583
v.
UNIVERSITY OF DETROIT - MERCY, et al.,
Defendants.
/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff Carlos Briggs sues his former employer, University of Detroit Mercy
(UDM), his former boss at UDM, Kerry Gaither, UDM’s media consultant, Meisner
Associates, Inc., and its President, Mort Meisner, under Title VII of the Civil Rights Act
of 1964, and state law. Defendants Meisner Associates and Meisner (hereinafter
“Meisner”) move for summary judgment as to Plaintiff’s state law defamation claim.1
The matter is fully briefed, and no hearing is needed. See E.D. Mich. LR 7.1(f)(2). With
respect to the first three allegedly defamatory statements, because Plaintiff has not had
1
Meisner labeled his motion as a motion for summary judgment yet cited both
Rule 12(b)(6) and Rule 56 in his “wherefore” clauses. (Dkt. # 8.) Given that Meisner
relies on the Rule 56 standard throughout its brief, and that both parties attach exhibits
to their briefs, this motion will be treated as a motion for summary judgment and
disposed of under Rule 56. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule
12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by
the court, the motion must be treated as one for summary judgment under Rule 56.”).
Also, Plaintiff should note the newest local rule governing type size. E.D. Mich. LR
5.1(a)(3).
sufficient time for discovery, Meisner’s summary judgment motion will be denied. With
respect to the fourth statement, an opinion, summary judgment will be granted.
I. BACKGROUND
Before graduating from Baylor University, where Plaintiff attended college on a
basketball scholarship, he was drafted to the San Antonio Spurs of the National
Basketball Association (NBA). (Dkt. 1 at Pg ID 11.) While he never played for the NBA,
Plaintiff enjoyed brief stints in the Continental Basketball Association and the Philippine
Basketball Association. (Id.) After completing his playing career, and graduating from
Baylor, Plaintiff began his coaching career as head coach of the men’s basketball team
at Schoolcraft college. (Id. Pg ID 12.) In 2007, Plaintiff began his tenure at UDM as an
assistant coach for the men’s basketball team. (Id. Pg ID 11.) Plaintiff disclosed his
knowledge of an extra-marital affair between his co-assistant coach and UDM’s athletic
director (Defendant Gaither), which, he alleges, resulted in a hostile working
environment. (Id. at Pg ID 13-15.) As a byproduct of the affair, members of the men’s
basketball team suffered as well, he says. (Id. at Pg ID 13-14.)
As part of UDM’s supposed retaliation against Plaintiff, the University enlisted
Meisner as a consultant and media liaison for its men’s basketball program. (Id. at Pg
ID 11.) Plaintiff alleges that Meisner slandered him to a Detroit Free Press reporter and
a UDM alumnus. (Id. at Pg ID 16.) Specifically, Plaintiff alleges that Meisner told the
reporter that: 1) Plaintiff was kicked out of Baylor University, 2) Plaintiff was fired from
his previous coaching positions, and 3) Plainitff was the cause of UDM’s basketball
players’ dissension. (Id.) Meisner allegedly repeated those statements to a UDM
alumnus, and added a fourth: that Plaintiff is a “piece of sh*t.” (Id.)
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II. STANDARD
Summary judgment is proper only when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “In deciding a motion for summary judgment, the court must view the evidence in
the light most favorable to the non-moving party, drawing all reasonable inferences in
that party’s favor.” Sagan v. United States, 342 F.3d 493, 497 (6th Cir. 2003).
Summary judgment is typically improper if “the non-movant is not afforded a
sufficient opportunity for discovery.” Abercrombie & Fitch Stores, Inc. v. Am. Eagle
Outfitters, Inc., 280 F.3d 619, 627 (6th Cir. 2002) (quoting Vance v. United States, 90
F.3d 1145, 1148 (6th Cir.1996)); see also Celotex, 477 U.S. at 322-23 (“[T]he plain
language of Rule 56(c) mandates the entry of summary judgment, after adequate time
for discovery. . . .”) (emphasis added). However, the non-movant bears the burden of
informing the court that additional discovery is required. Id. Although normally, the nonmovant must file a Rule 56(d) affidavit or a motion for additional discovery detailing the
additional discovery it needs, the Sixth Circuit has suggested that failure to do so is not
fatal where the non-movant has adequately explained its need for more discovery in an
alternative form. Short v. Oaks Corr. Facility, 129 Fed. Appx. 278, 282 n. 2 (citing
Abercrombie and noting, “This court [the Sixth Circuit] has suggested that failure to file a
motion or Rule 56(f) affidavit will be excused where the opposing party nonetheless
explains its need for discovery to the district court.”).
III. DISCUSSION
Plaintiff argues that summary judgment is “[i]nappropriate [b]ecause [d]iscovery
[i]s [o]ngoing.” (Dkt. # 20 at Pg ID 202.) While Plaintiff did not file an affidavit or motion
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requesting additional discovery, his response motion to Meisner’s motion for summary
judgment set forth his “need for discovery, what material facts [he] hopes to uncover,
and why [he] has not previously discovered the information.” Cacevic v. City of Hazel
Park, 226 F.3d 483, 488 (6th Cir. 2000) (internal citations omitted). Plaintiff’s request is
also bolstered because of the nature of his claim: defamation claims contain “factual
issues [that] are often contentious.” Alvey v. United Air Lines, Inc., 494 F.2d 1031, 1032
(D.C. Cir. 1974).2
A. Plaintiff’s Request for Additional Discovery is Timely
This is not a case where the non-movant requesting additional discovery was
“dilatory in its discovery efforts.” Siggers v. Campbell, 652 F.3d 681, 696 (6th Cir.
2011). As of August 7, 2013, Plaintiff’s counsel had already requested available dates
to depose Mort Meisner but Meisner’s counsel had yet to respond. (Dkt. # 20 at Pg ID
203.) This court issued a scheduling order on July 15, 2013, which set January 31,
2014, as the deadline for completion of discovery. (Dkt. # 12 at Pg ID 131.) The fact
that Plainitff requested dates for a deposition–within approximately three weeks of the
scheduling order’s issuance and almost six months before the completion of discovery
deadline–demonstrates Plaintiff’s diligence in seeking discovery. To the court’s
knowledge, no discovery has been exchanged. In its current posture, a grant of
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Meisner Associates, Inc. also argues that it cannot be held liable for the alleged
intentional tort of its President, Mort Meisner. (Dkt. #8 at Pg ID 80.) Additional
discovery will reveal whether or not Meisner’s statements were made within the “scope
of his employment.” Leitch v. Switchenko, 426 N.W.2d 804, 805 (1988). Accordingly,
summary judgment will be denied with respect to this claim.
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summary judgment could warrant reversal. See White’s Landing Fisheries, Inc. v.
Buchholzer, 29 F.3d 229, 231 (6th Cir. 1994) (“[S]ummary judgment should not have
been awarded until the plaintiffs were allowed some opportunity for discovery . . . .[I]n
the instant case, we find that the grant of summary judgment, absent any opportunity for
discovery, is such a misuse.”); CenTra, Inc. v. Estrin, 538 F.3d 402, 420 (6th Cir. 2008)
(“Typically, when the parties have no opportunity for discovery, denying the Rule 56(f)
motion and ruling on a summary judgment motion is likely to be an abuse of
discretion.”).
B. Plaintiff’s Request for Additional Discovery is Specific
Plaintiff’s discovery request is sufficiently specific to preclude a grant of summary
judgment. See CenTra, 538 F.3d at 420 (“[A]s a general matter we have upheld the
denial of Rule 56(f) motions when the court deems as too vague the affidavits submitted
in support of the motion.”). In his response motion, Plaintiff details material
facts—“those facts defined by the substantive law and that are necessary to apply it,”
McKinnie v. Roadway Express, Inc., 341 F.3d 554, 557 (6th Cir. 2003) (citing Anderson
v. Liberty Lobby, 477 U.S. 242, 248 (1986)),—that he hopes to uncover during
discovery.
In Michigan, a claimant must prove the following elements to establish a prima
facie case of defamation:
(1) a false and defamatory statement concerning the plaintiff, (2) an
unprivileged communication to a third party, (3) fault amounting at least to
negligence on the part of the publisher, and (4) either actionability of the
statement irrespective of special harm (defamation per se) or the existence
of special harm caused by publication [defamation per quod].
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Smith v. Anonymous Joint Enter., 793 N.W.2d 533, 540 (2010) (citing Mitan v.
Campbell, 706 N.W.2d 420, 421 (Mich. 2005)). Focusing on the pertinent material facts
Plaintiff seeks to unearth during discovery, each element will be addressed in turn.
1. A False and Defamatory Statement
a. The First Three Statements
Meisner does not deny making the alleged statements; he maintains that they
are true, and therefore non-actionable. (Dkt. # 8 at Pg ID 82.) However, as Plaintiff
points out, Meisner defends the truth of statements that are substantially different than
those alleged in Plaintiff’s complaint. Plaintiff alleged that Meisner said Plaintiff was
kicked out of Baylor University, (Dkt. # 1 at Pg ID 16), but Meisner’s motion for summary
judgment defends the truth of the statement that Plaintiff was kicked off of Baylor’s
Basketball Team, (Dkt. # 8 at Pg ID 84). Similarly, Plaintiff alleged that Meisner said
Plaintiff had been fired from his previous coaching positions, (Dkt. # 1 at Pg ID 16), yet
Meisner defended the truth of the statement that Plaintiff left Schoolcraft under strained
circumstances, (Dkt. # 8 at Pg ID 85). As Plaintiff argues, because the first two
statements themselves are in dispute, a grant of summary judgment would be
premature.3
Because Meisner does not address the third statement that Plaintiff alleged, that
Plainitff was the cause of UDM’s basketball players’ dissension (Dkt. # 1 at Pg ID 16),
summary judgment as to that statement will be denied.
3
The doctrine of substantial truth (a communication “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,” In re Chmura, 626 N.W.2d 876, 887 (2001)) may
ultimately apply, but first more discovery is required.
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b. The Fourth Statement
The fourth alleged statement, that Plaintiff is a “piece of sh*t,” is not defamatory.
“[F]oul, abusive, or vituperative language does not constitute a defamation.” 50 Am.
Jur. 2d Libel and Slander § 157 (2012). The law of defamation observes the fact-value
distinction, which holds that only a statement of fact can be proven false. See Ireland v.
Edwards, 584 N.W.2d 632, 637 (Mich. Ct. App. 1998). For this reason, Plaintiff cannot
establish that the opinion that plaintiff is a “piece of sh*t” is false. Put differently, to be
defamatory, a statement must be disprovable—an impossible feat in this instance.
Kevorkian v. Am. Med. Ass’n, 602 N.W.2d 233, 236 (1999) (citing Milkovich v. Lorain
Journal Co., 497 U.S. 1, 17-20 (1990)). Because the alleged statement is one of
opinion, and therefore cannot be disproven, it is non-actionable. Accordingly, summary
judgment will be granted with regard to the fourth statement.
2. An Unprivileged Communication
A statement made under a qualified privilege is not defamatory. “The elements
of qualified privilege are: (1) good faith; (2) an interest to be upheld; (3) a statement
limited in scope to this purpose; (4) a proper occasion; and (5) publication in a proper
manner and to proper parties only.” Prysak v. R.L. Polk Co., 483 N.W.2d 629, 636
(1992). However, “where the circumstances surrounding the publication are factually
disputed, the Court may not be able to decide this question on summary judgment.”
Parnell v. Booth Newspapers, Inc., 572 F. Supp. 909, 914 (W.D. Mich. 1983) (citing
Lawrence v. Fox, 97 N.W.2d 719, 722-3 (1959)). Here, whether Meisner made the
alleged statements in good faith remains in dispute but Plaintiff seeks to uncover this
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fact during discovery.4 Accordingly, a grant of summary judgment now would be
improper.
3. Fault Amounting to at Least Negligence
Generally, a statement must be made with negligence to be defamatory. When a
public figure claims defamation, he must also “prove by clear and convincing evidence
that the publication . . . was made with actual malice through knowledge of its falsity or
through reckless disregard for the truth.” Kefgen v. Davidson, 241 Mich. App. 611, 624
(2000). The parties disagree as to Plaintiff’s status and discuss this issue extensively in
their briefs. Although characterization of the party claiming defamation is a question for
the court, there is no need to resolve this matter now because if Plaintiff is a public
figure, the question of whether Meisner had the requisite actual malice would be
implicated. See Hutchinson v. Proxmire, 443 U.S. 111, 120 (1979) (“The proof of
‘actual malice’ calls a defendant’s state of mind into question . . . and does not readily
lend itself to summary disposition.”); see also Steadman v. Lapensohn, N.W.2d 580,
583 (1980) ([G]iven the very subjective nature of the test for actual malice . . . we do not
know whether a fact finder would infer actual malice . . . .”). In light of Plaintiff’s motion
detailing his need to depose Meisner to determine his mental state, summary judgment
would be premature.
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Michigan law recognizes a qualified privilege to publish information which is in
the public interest. If applicable, Plaintiff would need to prove that Meisner acted with
actual malice, a state of mind discussed in the next section. Schultz v. Newsweek, Inc.,
668 F.2d 911, 914 (6th Cir. 1982).
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4. Special Harm
Michigan law recognizes two types of defamation: defamation per se where a
defamatory statement is actionable “irrespective of special harm” and defamation per
quod, where “the existence of special harm [is] caused by publication.” Yono v.
Carlson, 770 N.W.2d 400, 402 (2009) (internal quotation marks omitted). Without
identifying which type of defamation he alleges, Plaintiff has pleaded with sufficient
specificity to meet the higher burden required for defamation per quod. See Heike v.
Guevara, 654 F. Supp. 2d 658, 674-75 (E.D. Mich. 2009) aff’d, 10-1728, 2013 WL
1092737 (6th Cir. Mar. 18, 2013) (citing Fed. R. Civ. P. 9(g) and stating, “when a
plaintiff alleges defamation per quod, the plaintiff must specifically allege the special
damages that are an element of the claim.”) Further discovery is necessary to
determine whether or not the alleged defamatory statements caused Plaintiff to suffer a
direct financial loss.
IV. CONCLUSION
Although the court is denying Meisner’s summary judgment motion on Plaintiff's
defamation claim regarding the first three alleged statements, Plaintiff will nonetheless
have to overcome Meisner’s defenses of privilege and truth. Plaintiff should not
interpret denial of Meisner’s summary judgment motion as “an open license to go on a
fishing expedition” but “[o]nly that discovery necessary to establish whether or not a
valid defamation claim exists should be pursued.” Arnold v. Air Midwest, Inc., 877 F.
Supp. 1452, 1465 (D. Kan. 1995) aff’d, 100 F.3d 857 (10th Cir. 1996). Accordingly,
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IT IS ORDERED that Meisner’s motion for summary judgment [Dkt. # 8] is
GRANTED IN PART and DENIED IN PART. The motion is GRANTED with respect to
the statement that Plaintiff is a “piece of sh*t.” The motion is DENIED with respect to
every other claim.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: August 28, 2013
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, August 28, 2013, by electronic and/or ordinary mail.
s/Holly Monda for Lisa Wagner
Case Manager and Deputy Clerk
(313) 234-5522
V:\Cleland\JUDGE'S DESK\C1 ORDERS\13-12583 BRIGGS.Deny.SummJ.2.wpd
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