Lueckenbach v. Horizon Mississippi Publications, Inc.

Filing 13

MEMORANDUM OPINION re 12 Order on Motion for Summary Judgment. Signed by District Judge Sharion Aycock on 2/3/2017. (dbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
EDWARD JACOB LUECKENBACH, II
V.

PLAINTIFF
CIVIL ACTION NO. 1:16-CV-189-SA-DAS

HORIZON MISSISSIPPI PUBLICATIONS, INC.

DEFENDANTS

MEMORANDUM OPINION
Edward Lueckenbach originally filed this case in the Chancery Court of Oktibbeha
County, Mississippi. Horizon Mississippi Publications, Inc. removed the case to this Court on
October 19, 2016, invoking diversity jurisdiction. Horizon filed a Motion for Summary
Judgment [8] requesting dismissal of the case with prejudice. Lueckenbach failed to respond, the
allotted time for a response expired, making this motion is ripe for review. See L. U. CIV. R. 7.
Factual and Procedural Background
In his Amended Complaint [2] Lueckenbach demands injunctive relief, specifically that
the Starkville Daily News remove a report from its website, and asserts a state law claim for
defamation. Horizon Mississippi Publications, Inc. is the owner of the newspaper the Starkville
Daily News. On October 10, 2010, the Starkville Daily News published, in its print newspaper
and on its website, a report stating: “Sept. 29 · Edward Jacob Lueckenbach, of 11 Page Ave.,
Apt. 6, was charged with public profanity or drunkenness.”
Horizon now requests summary judgment in its favor on all of the issues in this case.
Horizon argues that the Plaintiff’s claim is barred by the statute of limitations, that the statement
is not defamatory because it is true, that the statement is protected by a qualified privilege, and
that the statement is protected by the First Amendment. Mississippi substantive law applies in

this diversity case. See Cox v. Wal-Mart Stores E., L.P., 755 F.3d 231, 233 (5th Cir. 2014) (citing
Wood v. RIH Acquisitions MS II, LLC, 556 F.3d 274, 275 (5th Cir. 2009)).
Standard of Review
Federal Rule of Civil Procedure 56 governs summary judgment. Summary judgment is
warranted when the evidence reveals no genuine dispute regarding any material fact, and the
moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The rule
“mandates the entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to 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, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
The moving party “bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact.” Id. at 323, 106 S. Ct. 2548. The nonmoving
party must then “go beyond the pleadings” and “designate ‘specific facts showing that there is a
genuine issue for trial.’” Id. at 324, 106 S. Ct. 2548 (citation omitted). In reviewing the evidence,
factual controversies are to be resolved in favor of the non-movant, “but only when . . . both
parties have submitted evidence of contradictory facts.” Little, 37 F.3d at 1075. When such
contradictory facts exist, the Court may “not make credibility determinations or weigh the
evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147
L. Ed. 2d 105 (2000).
Even though the Plaintiff did not respond to the instant summary judgment motion, Rule
56 makes it clear that there is “no summary judgment by default” and the lack of a response by
the Plaintiff does not alter the Court’s summary judgment inquiry. See FED. R. CIV. P. 56(e)

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advisory committee notes to 2010 amendments. Summary judgment may only be granted if it is
appropriate to do so. See FED R. CIV. P. 56(a) The Fifth Circuit has held that “although ‘[a]
motion for summary judgment cannot be granted simply because there is no opposition’ . . . a
court may grant an unopposed summary judgment motion if the undisputed facts show that the
movant is entitled to judgment as a matter of law.” Calais v. Theriot, 589 F. App’x 310, 311 (5th
Cir. 2015) (quoting Hibernia Nat’l Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d
1277, 1279 (5th Cir. 1985)).
Discussion and Analysis
“Mississippi allows causes of action for defamation and related torts to be filed within
one year of the first publication, and no later.” Fairley v. ESPN, Inc., 879 F. Supp. 2d 552, 554
(S.D. Miss. 2012) (citing MISS. CODE ANN. § 15–1–35 (providing that “all actions for slanderous
words concerning the person or title, for failure to employ, and for libels, shall be commenced
within one (1) year next after the cause of such action accrued and not after”)). Mississippi
follows the single publication rule, under which, “[a] cause of action accrues for purposes of the
statute of limitations on the date of the first publication of the allegedly defamatory material.” Id.
(citing Mize v. Harvey Shapiro Enters., Inc., 714 F. Supp. 220, 224 (N.D. Miss. 1989); Wildmon
v. Hustler Magazine, Inc., 508 F. Supp. 87, 88–89 (N.D. Miss. 1980)).
The Defendant in this case argues, and the Plaintiff does not dispute, that the allegedly
defamatory statement was published on October 10, 2010, meaning that the statute of limitations
ran years before this case was filed on September 19, 2016. In addition, the Plaintiff has not put
any facts or arguments regarding tolling or any other reason why the statute of limitations has not
expired. For these reasons, the Court finds that the Plaintiff’s claim for defamation is time barred
by the applicable statute of limitations.

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Even if the statute of limitations had not run, the Plaintiff has not brought forth any
evidence that the statement is false. In Mississippi, “[t]he threshold question in a defamation suit
is whether the published statements are false.” Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d
481, 490 (5th Cir. 2013). “Truth is an absolute defense to a defamation lawsuit in Mississippi.”
Bond Pharmacy, Inc. v. Anazao Health Corp., 815 F. Supp. 2d 966, 973 (S.D. Miss. 2011)
(citing Journal Publ’g Co. v. McCullough, 743 So. 2d 352, 360 (Miss. 1999)). There is evidence
in the record indicating that the charge against the Plaintiff was expunged. The fact that the
charge was ultimately dropped and expunged has no bearing on the truth of the undisputed fact,
as published, that the Plaintiff “was charged with public profanity or drunkenness”.
Finding the statute of limitations and truthfulness of the statement issues dispositive in
this case, the Court need not reach the merits of the other constitutional arguments brought forth
by the Defendant.
In light of the undisputed facts of the case and the relevant authorities, the Court finds
that the Plaintiff failed to make a showing sufficient to establish the existence of several essential
elements of his case. Celotex, 477 U.S. at 322, 106 S. Ct. 2548. Summary judgment is therefore
appropriate in the Defendant’s favor on all of the Plaintiff’s claims. The Defendant’s Motion for
Summary Judgment [8] is GRANTED, and this CASE is DISMISSED with prejudice.

So ORDERED on this the 3rd day of February, 2017.
/s/ Sharion Aycock
UNITED STATES DISTRICT COURT JUDGE

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