Ventura v. Kyle

Filing 269

ORDER denying 180 Motion for Summary Judgment. (Written Opinion). Signed by Judge Richard H. Kyle on 03/19/14. (KLL)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Jesse Ventura a/k/a James
G. Janos,
Plaintiff,

Civ. No. 12-472 (RHK/JJK)
MEMORANDUM OPINION
AND ORDER

v.
Taya Kyle, Executrix of the Estate of
Chris Kyle,
Defendant.

David Bradley Olsen, Court J. Anderson, John N. Bisanz, Jr., Henson & Efron, PA,
Minneapolis, Minnesota, for Plaintiff.
John P. Borger, Mary Andreleita Walker, Faegre Baker Daniels LLP, Minneapolis,
Minnesota, for Defendant.

INTRODUCTION
This defamation action arises from a passage in decedent Chris Kyle’s
autobiography describing an altercation with Plaintiff Jessie Ventura during a Navy
SEAL’s wake. In his book, Kyle wrote that Ventura made offensive comments about the
SEALs and their service in the Iraq war, so Kyle “laid him out.” Ventura claims Kyle
fabricated the encounter to gain publicity. He commenced this action against Kyle
asserting claims for defamation, appropriation, and unjust enrichment. While this action
was pending, Kyle was tragically killed, and his wife, Taya Kyle, acting as executrix of
his estate, now moves for summary judgment on Ventura’s claims. For the reasons that
follow, her Motion will be denied.

BACKGROUND
Jesse Ventura is a well-known former wrestler, actor, and Governor of Minnesota,
who served as a member of the Navy Special Forces Underwater Demolition/SEAL
Teams during the Vietnam War. Chris Kyle was a Navy SEAL sniper and author of an
autobiography entitled American Sniper, the Autobiography of the Most Lethal Sniper in
U.S. Military History. The book, which was released January 3, 2012, reached number
one on the New York Times’ Bestseller list by January 29, 2012, and in June 2012,
Warner Brothers purchased the rights to a film adaptation.
In American Sniper, Kyle wrote a subchapter captioned “Punching Out Scruff
Face” about an alleged altercation with Ventura. According to Kyle, the encounter took
place at McP’s, a bar in Coronado, California, on October 12, 2006, during a wake for
Kyle’s comrade, Mike Monsoor, who was killed in the line of duty. The subchapter reads
as follows:
AFTER THE FUNERAL WE WENT TO A LOCAL BAR FOR THE
WAKE proper.
As always, there were a bunch of different things going on at our
favorite nightspot, including a small party for some older SEAL’s and UDT
members who were celebrating the anniversary of their graduation. Among
them was a celebrity I’ll call Scruff Face.
Scruff served in the military; most people seem to believe he was a
SEAL. As far as I know, he was in the service during the Vietnam conflict
but not actually in the war.
I was sitting there with Ryan and told him that Scruff was holding
court with some of his buddies.
“I’d really like to meet him,” Ryan said.
“Sure.” I got up and went over to Scruff and introduced myself.
“Mr. Scruff Face, I have a young SEAL over here who’s just come
back from Iraq. He’s been injured but he’d really like to meet you.”
Well, Scruff kind of blew us off. Still, Ryan really wanted to meet
him, so I brought him over. Scruff acted like he couldn’t be bothered.
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All right.
We went back over to our side of the bar and had a few more drinks.
In the meantime, Scruff started running his mouth about the war and
everything and anything he could connect to it. President Bush was an
asshole. We were only over there because Bush wanted to show up his
father. We were doing the wrong thing, killing men and women and
children and murdering.
And on and on. Scruff said he hates America and that’s why he
moved to Baja California. 9/11 was a conspiracy.
And on and on some more.
The guys were getting upset. Finally, I went over and tried to get
him to cool it.
“We’re all here in mourning,” I told him. “Can you just cool it?
Keep it down.”
“You deserve to lose a few,” he told me. Then he bowed up as if to
belt me.
I was uncharacteristically level-headed at that moment.
“Look,” I told him, “why don’t we just step away from each other
and go on our way?” Scruff bowed up again. This time he swung.
Being level-headed and calm can last only so long. I laid him out.
Tables flew. Stuff happened. Scruff Face ended up on the floor.
I left.
Quickly.
I have no way of knowing for sure, but rumor has it he showed up at
the BUD/S graduation with a black eye.
(Borger Decl., Ex. A-2.) Although he does not name Ventura in print, Kyle has
confirmed in television, radio, and print interviews that “Scruff Face” is Ventura. (Kyle
Decl. ¶ 15.) In early January 2012, Kyle appeared on the Opie & Anthony Show, a talkradio program, and the O’Reilly Factor, a talk show, retelling the above-quoted story
about Ventura and repeating Ventura’s alleged statement, “You deserve to lose a few
guys.” (Compl. Exs. B, C; Kyle Decl. ¶ 19.) The story also appeared on FOX News.
(Compl. Ex. D.)
Kyle maintained that “the events that happened in [the] book are true” and that
“the essence of what was said is accurate.” (Borger Decl., Ex. A-2; Kyle Decl. ¶¶ 9–10).
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He testified in his deposition that he was standing on the sidewalk outside the bar with
four or five people around and Ventura was talking loudly about how he disagreed with
President Bush, the Iraq War, and the SEALs’ tactics. Ventura told him they “deserved
to lose a few” and took on an aggressive posture. At this point, he thought Ventura might
hit him, so he punched Ventura in the face, knocking him to the ground, and then turned
and ran down the street toward Danny’s (another SEAL bar nearby where Kyle and
others continued to drink after McP’s that night).
Kyle could identify only one witness who had heard Ventura say, “You deserved
to lose a few,” and saw him punch Ventura: Jeremiah Dinnell. Dinnell testified that he
saw Kyle and Ventura arguing on the patio, heard Ventura say that “with what [they]
were doing overseas [they] deserve to lose a few guys,” and then saw Kyle punch him in
the face, underneath the eye. (Dinnell Dep. 122–26.) Dinnell could not recall if or how
Ventura fell after the punch or whether there was any blood. (Id. at 126–28.) Dinnell did
not see where Kyle went afterward but he, Dinnell, took off toward Danny’s. (Id. at 127–
28.) Laura deShazo also stated she saw an unidentified male hit Ventura at McP’s that
night (L. deShazo Decl. ¶¶ 5–6), 1 and several witnesses testified to seeing Ventura
getting up from the ground and Kyle leaving (Lacz Dep. at 49; Kelly Dep. at 84, 89–90;
Paul Dep. at 115). Still others who were at McP’s did not witness any altercation but

1

Ventura objects to the consideration of Laura deShazo’s declaration because it was produced
long after discovery had closed. He indicates he will move to preclude her from testifying at trial
unless given an opportunity to depose her first. The declaration has no impact on the outcome of
this Motion, and the Court’s citation to the declaration should not be construed as a ruling on the
admissibility of her testimony at trial—that issue will be decided if and when it is properly
before the Court.

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testified to hearing about it from Kyle or other SEALs later that night at Danny’s or at
breakfast the following morning. (Lee Dep. at 121–23; Budinscak Dep. at 69–74.)
Although Dinnell was the only one who allegedly heard Ventura say the SEALs
“deserved to lose a few,” several of Kyle’s witnesses testified to hearing Ventura express
disagreement with President Bush, the Iraq War, and the SEALs’ tactics. (Lacz Dep. at
105–08; Kelly Dep. at 147–49; Paul Dep. at 105–08; Budinscak Dep. at 56; R. deShazo
Decl. ¶ 6.)
Ventura denies both the statements attributed to him and that Kyle ever laid a hand
on him. According to Ventura, he spent the weekend attending events for the BUD/S
Class 258 graduation and the bicentennial reunion of his BUD/S class, Class 58. (9/18/12
Olson Aff. Ex. 3.) Although Ventura could not remember specific dates, his rental-car
records reflect that he arrived in San Diego at approximately 7:30 p.m. on October 12,
2006. (Ventura Dep. at 38.) Ventura recalls going to McP’s with his friends who were
also there for the reunion, the DeWitts and Mike Gotchey. (Id. at 45.) Although he could
not recall which night he was at McP’s—either the night before or after the graduation
ceremony—he was certain that when he was at McP’s, the DeWitts were there with him
and that a group of younger SEALs were there for a wake. (Id. at 45, 47.) He recalls
spending the evening engaged in conversation with his friends on the patio of McP’s and
meeting several people who approached their table to talk to him. (9/18/13 Olson Aff.
Ex. 3.) He denies having any verbal or physical confrontation with Kyle or anyone else
that night. (Id.)

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The DeWitts and Gotchey averred that they went to McP’s with Ventura after the
BUD/S graduation ceremony, but Ventura maintains this was an error, as later discovered
evidence including photographs, the program of events for their BUD/S class reunion,
and the date of Monsoor’s wake, all indicated that they were at McP’s on October 12, the
night before the ceremony. Gotchey and the DeWitts averred they were with Ventura the
entire evening and that the events described in American Sniper never happened. (C.
DeWitt Aff. ¶¶ 34–4; B. DeWitt Aff. ¶¶ 9–10, 12; Gotchey Aff. ¶¶ 6, 8.) They recall
several of the younger SEALs and others approached Ventura to meet him, but do not
recall whether Kyle was one of them. (Gotchey Aff. ¶¶ 9–11.) They state Ventura did
not exchange hostile words with anyone, was not involved in any physical altercation,
and never stated the SEALs were murdering innocent people or deserved to lose a few.
(C. DeWitt Aff. ¶ 4; B. DeWitt Aff. ¶¶ 9–10, 13; Gotchey Aff. ¶ 12.) Ventura has also
produced the declaration of Robert Leonard, who was at McP’s that night until 11 p.m.
and does not recall any arguments or physical fights, nor does he recall hearing Ventura
make any offensive comments. (Leonard Aff. ¶¶ 6–7.)
The following day at the BUD/S graduation ceremony, no witness observed any
indication that Ventura had been punched in the face, such as bruising, swelling, or
abrasions, including Wayne Robertson, who stood next to Ventura for photos and
interacted with him throughout the day. (Leonard Aff. ¶ 10; Robertson Aff. ¶ 5.) And
none of Ventura’s witnesses heard mention of a fight at McP’s. (Leonard Aff. ¶¶ 8-9;
Robertson Aff. ¶ 6.) Ventura has submitted photographs of himself taken at McP’s and at
the graduation ceremony the next day, in which no injuries are visible. As Ventura was
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on blood-thinning medication at the time, he maintains that a punch in the face from a
“220-pound trained killer” would have resulted in noticeable bruising and/or bleeding.
(Pl.’s Mem. at 16; Gotchey Aff. ¶ 14.)
Ventura commenced the instant action against Kyle in February 2012, asserting
claims of defamation, appropriation, and unjust enrichment. Kyle moved for partial
summary judgment in the fall of 2012, which Motion was denied. In February 2013,
Kyle was killed by a fellow veteran, against whom criminal charges are currently pending
in Texas. His wife, Taya Kyle, was appointed executrix of his estate and substituted as
the Defendant in this action in July 2013. Discovery has since been completed, and Taya
Kyle now moves for summary judgment on Ventura’s claims.
STANDARD OF DECISION
Summary judgment is proper if, drawing all reasonable inferences in favor of the
nonmoving party, there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Ricci v. DeStefano, 557
U.S. 557, 586 (2009). The moving party bears the burden of showing that the material
facts in the case are undisputed. Torgerson v. City of Rochester, 643 F.3d 1031, 1042
(8th Cir. 2011) (en banc). The Court must view the evidence, and the inferences that may
be reasonably drawn from it, in the light most favorable to the nonmoving party. Beard
v. Banks, 548 U.S. 521, 529–30 (2006); Weitz Co. v. Lloyd’s of London, 574 F.3d 885,
892 (8th Cir. 2009). The nonmoving party may not rest on mere allegations or denials,
but must show through the presentation of admissible evidence that specific facts exist

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creating a genuine issue of material fact for trial. Fed. R. Civ. P. 56(c)(1)(A); Wood v.
SatCom Mktg., LLC, 705 F.3d 823, 828 (8th Cir. 2013).
ANALYSIS
I.

Defamation
Where the plaintiff is a public figure, which the parties agree Ventura is, a

defamation claim requires: (1) a false and defamatory statement about the plaintiff;
(2) an unprivileged publication of that statement to a third party; (3) a tendency to harm
the plaintiff’s reputation in the community; and (4) the defendant acted with “actual
malice.” Stepnes v. Ritschel, 663 F.3d 952, 963 (8th Cir. 2011); accord Richie v.
Paramount Pictures Corp., 544 N.W.2d 21, 25 (Minn. 1996). The burden is on the
plaintiff to prove each of these elements. Philadelphia Newspapers, Inc. v. Hepps, 475
U.S. 767, 775 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Here,
Defendant disputes whether Kyle’s statements were false and whether he acted with
actual malice.
i. Material Falsity
To succeed on a defamation claim, a plaintiff must prove the defendant’s
statement was materially false. Masson v. New Yorker Magazine, Inc., 501 U.S. 496,
517 (1991). The plaintiff must demonstrate more than minor inaccuracies or alterations,
unless they “result[] in a material change in the meaning conveyed by the statement.”
Id.; see also Air Wis. Airlines Corp. v. Hoeper, __ U.S. __, 134 S.Ct. 852, 861 (2014)
(discussing material falsity standard). Defendant asserts Kyle’s statements were
substantially true and Ventura cannot prove otherwise. While Defendant has presented
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testimony supporting the truth of Kyle’s statements, Ventura has also presented testimony
and corroborating evidence contravening it.
Ventura has submitted sworn statements of several people present at McP’s with
him (Mike Gotchey, Bill DeWitt, Charlene DeWitt, and Robert Leonard) who deny
hearing him make the statements Kyle attributed to him in American Sniper and deny
seeing Kyle punch him. Defendant urges the Court to discount the affidavits of Gotchey
and the DeWitts, arguing their testimony does not pertain to the night in question.
Defendant maintains their statements do not refute Kyle’s story because they described
going to McP’s with Ventura after the graduation ceremony, which was on October 13th,
while Kyle’s story recounts the events of the night before, on October 12th. 2 (Gotchey
Aff. ¶ 6; B. DeWitt Aff. ¶ 5; C. Dewitt Aff. ¶ 2.)
But viewing their affidavits in the context of the record as a whole, it appears more
likely that Gotchey and the DeWitts were simply mistaken as to the date. First, Ventura
himself initially believed that he was at McP’s with Kyle on October 13th (e.g.,
Plaintiff’s Interrogatories to Defendant, First Set, No. 9., Doc. No. 63-1), and later
corrected the date to October 12th. Second, in their statements, the DeWitts describe
being at McP’s during a wake for a young SEAL (B. DeWitt Aff. ¶ 6; C. Dewitt Aff. ¶ 5),
and Monsoor’s wake indisputably occurred on the 12th. Third, the program of events for
the reunion Ventura, Gotchey, and the DeWitts were attending advertised a gathering at

2

The Court notes that Magistrate Judge Boylan rejected this argument over a year ago, in his
Order denying Defendant’s Motion to Strike Ventura’s interrogatory answers correcting the
date—a decision which Defendant neglected to mention while resurrecting the issue. (Doc. No.
136, at 3–5 & n.1.)

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McP’s on the 12th. (Olsen Aff. Ex. O.) Finally, although Ventura could not recall in his
deposition exactly which date he was at McP’s, he testified that the DeWitts were there
with him, and the testimony of other witnesses as well as photos taken establish he was at
McP’s on the 12th. The Court may reasonably infer from this evidence that Gotchey’s
and the DeWitts’ statements describe the events of October 12th, not October 13th.
Accordingly, the Court considers these affidavits as evidence in Ventura’s favor,
along with the affidavits of Leonard and Robertson, and Ventura’s own testimony. But
the evidence in the case does not come down to just eyewitness statements on both sides;
Ventura has also submitted corroborating photographs of himself at the graduation
ceremony the following day in which no injuries are visible, despite Kyle’s allegation
that he punched Ventura (not a small man himself) in the face with such force that he
knocked him to the ground. Altogether, Ventura has proffered sufficient evidence upon
which a jury could conclude that Kyle’s statements were materially false.
ii. Actual Malice
Assuming for the sake of argument that Kyle’s statements were false, Defendant
asserts Ventura cannot prove Kyle acted with actual malice. To prove actual malice, the
plaintiff must prove by clear and convincing evidence that the defendant knew the
statements were false or acted in “reckless disregard” of whether they were true or
false—that is, he “entertained serious doubts as to the truth of his publication.” Masson,
501 U.S. at 510 (internal quotation omitted). Essentially, Ventura must prove Kyle was
aware his statements in American Sniper were probably false. Defendant argues that

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Ventura has not presented sufficient evidence of actual malice because his evidence only
relates to the truth of Kyle’s statements and not Kyle’s state of mind specifically.
Defendant’s assertion that actual malice cannot be inferred from a false statement
is only true if the statement relates to an ambiguous event. Under such circumstances, a
defendant could unknowingly misinterpret the event, leading to a statement that is false
but made without actual malice. See, e.g., Peeler v. Spartan Radiobroadcasting, Inc., 478
S.E.2d 282, 285 (S.C. 1996) (“[E]vidence showing that the publisher and the plaintiff
disagreed with respect to their perception of events which they both observed” was not
sufficient to show actual malice); Mahoney v. Adirondack Publ’g Co., 517 N.E.2d 1365,
1369 (N.Y. 1987) (inference that an eyewitness acted with actual malice depends “on the
premise that the eyewitness could not have perceived and understood anything but the
truth” which is valid “only if the events were unambiguous and the setting was such that
the observer could not have misperceived those events”). But Kyle’s story does not
recount an ambiguous event. While it is possible Kyle could have misinterpreted
Ventura’s comments to him and innocently published a false account of them, this
reasoning does not apply to Kyle’s account of “punching out” Ventura. If Ventura
proves that statement was false—that is, if a jury does not believe Kyle punched
Ventura—it follows that Kyle fabricated it. See Robert D. Sack, Sack on Defamation,
§ 5.52, at 5-83–84 (“[I]f the defendant is an eyewitness to an unambiguous event which
he or she then misreports, a finding of actual malice may arise from testimony of other
witnesses establishing that the event did not happen as described: It follows that the
description was fabricated.”) (emphasis added). And if a jury concludes Kyle fabricated
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part of the story, it could reasonably conclude he fabricated the rest of his story about
Ventura.
In conclusion, Ventura has presented sufficient evidence to create a genuine issue
of fact as to whether Kyle knowingly (or recklessly) published false statements about
him. Accordingly, his defamation claim will be left for a jury to resolve.
II.

Appropriation and Unjust Enrichment
The Court previously denied Kyle summary judgment on Ventura’s appropriation

and unjust-enrichment claims, and the only new argument Defendant raises in this
Motion is regarding the damages available to Ventura. Defendant asserts Ventura should
be allowed to recover (if at all) only proceeds from the book American Sniper and not
from the film contract. In response, Ventura argues that the “publicity Kyle received
from his interviews about the alleged incident with Ventura caused book sales to ‘go
crazy,’” which success led to Warner Brothers optioning the film rights. (Pl.’s Mem. at
49 (quoting Olsen Aff. Ex. GG (email from co-author Jim DeFelice to the publisher
stating, “I just want to point out that while the so-called [Ventura] incident has helped the
book go crazy, it is truly insignificant in the grand scheme of things.”)).) Although
Ventura does not provide any specific evidence linking Warner Brothers’ interest in a
film adaptation to the Ventura story, the Court does not find his claim for damages too
remote. See Jackson v. Reiling, 249 N.W.2d 896, 897 (Minn. 1977) (plaintiff cannot
recover damages that are “remote, conjectural, or speculative”). If the Ventura story
garnered publicity and dramatically increased book sales, it does not stretch logic to
believe it could have generated Kyle’s Warner Brothers contract also. See id. (“There is
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no general test of remote and speculative damages, and such matters should usually be
left to the judgment of the trial court.”).
CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Defendant’s Motion for Summary Judgment (Doc. No. 180) is
DENIED.

Dated: March 19, 2014
s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge

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