Hinkle v. River Front Times et al
Filing
21
MEMORANDUM OPINION IT IS HEREBY ORDERED that the Motion for Summary Judgment filed by Defendants is GRANTED; Doc. 15 IT IS FURTHERORDEREDthat a Judgment in favor ofDefendants and incorporating this Memorandum Opinion shall issue on this same date. Signed by Magistrate Judge Mary Ann L. Medler on 1/4/2012. (RAK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ARMOD LEMANS HINKLE,
Plaintiff,
vs.
RIVER FRONT TIMES, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
Case No. 4:11CV1664MLM
MEMORANDUM OPINION
Before the court is the Motion for Summary Judgment filed by Defendants Chad Garrison and
Riverfront Times LLC (“RFT”) (jointly, “Defendants”). Doc. 15. Plaintiff Armod Lemans Hinkle
(“Plaintiff”) has not filed a Response. The parties have consented to the jurisdiction of the
undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Doc. 20.
STANDARD FOR SUMMARY JUDGMENT
The court may grant a motion for summary judgment if “if the movant shows that 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). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The substantive
law determines which facts are critical and which are irrelevant. Only disputes over facts that might
affect the outcome will properly preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Summary judgment is not proper if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party. Id. See also Fenny v. Dakota, Minn. & E.R.R. Co.,
327 F.3d 707, 711 (8th Cir. 2003) (holding that an issue is genuine “if the evidence is sufficient to
allow a reasonable jury to return a verdict for the non-moving party”).
A moving party always bears the burden of informing the court of the basis of its motion.
Celotex, 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving party must
set forth specific facts demonstrating that there is a dispute as to a genuine issue of material fact, not
the “mere existence of some alleged factual dispute.” Anderson, 477 U.S. at 247. The nonmoving
party may not rest upon mere allegations or denials of his pleading. Anderson, 477 U.S. at 256.
“Factual disputes that are irrelevant or unnecessary” will not preclude summary judgment. Id. at 248.
In passing on a motion for summary judgment, the court must view the facts in the light most
favorable to the nonmoving party, and all justifiable inferences are to be drawn in its favor. Id. at
255; Raschick v. Prudent Supply, Inc., 830 F.2d 1497, 1499 (8th Cir. 1987). The court's function
is not to weigh the evidence, but to determine whether there is a genuine issue for trial. Anderson,
477 U.S. at 249. However, “[t]he mere existence of a scintilla of evidence in support of the
[nonmoving party’s] position will be insufficient.” Id. at 252. With these principles in mind, the court
turns to an analysis of Defendant’s motion.
UNDISPUTED FACTS1 and DISCUSSION
In his Complaint, Plaintiff alleges that he “suffered loss of his reputation, shame, mortification,
and injury to his feelings” and “suffered irreparable injury” as a result of a news report published in
the online edition of the Riverfront Times, which report was written by Defendant Chad Garrison;
that the published article was “libelous on its face”; that the published article “was not privileged”;
that the article was “false and fraudulent”; that “any reasonable journalistic body applies due diligence
in vetting [] information for accuracy, at least legitimacy”; and that Defendants published the article
in question recklessly and with “actual malice.” Doc. 1.
1
All facts stated in Defendants’ Statement of Undisputed Facts are undisputed, as
Plaintiff failed to file a Response. Doc. 17.
2
The RFT news report in question, published on September 23, 2009, linked to a news release
issued by the Missouri Secretary of State, Robin Carnahan, also issued on September 23, 2009. The
RFT news report is a near verbatim account of the events set forth in the Secretary of State’s news
release. In particular, among other things, the RFT news report and the Secretary of State’s news
release both state that the office of the Secretary of State issued a “Cease and Desist Order against
a St. Louis pair, Armod L. Hinkle and his mother, Gina M. Hinkle, for selling unregistered
investments and spending $178,000 of their investors’ money on personal expenses.” Doc. 16, Def.
Ex. A, Ex. B. In the pending Motion for Summary Judgment, Defendants contend that the article at
issue is protected and non-actionable by virtue of the official report privilege. Doc. 15.
Libel is malicious defamation of a person made public, by among other things, printing or
writing. Swafford v. Miller, 711 S.W.2d 211, 213 (Mo. Ct. App. 1986). In order to prove a claim
for defamation pursuant to Missouri law, a plaintiff must show: “1) publication, 2) of a defamatory
statement, 3) that identifies the plaintiff, 4) that is false, 5) that is published with the requisite degree
of fault, and 6) damages the plaintiff’s reputation.” Wunsch v. Sun Life Assurance Co. of Canada,
92 S.W.3d 146, 155 (Mo. Ct. App. 2003) (quoting Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62,
70 (Mo. 2000) (en banc)). Even if a statement may be considered defamatory, “[t]he common law
provides the defamation defendant with three types of defenses. First, truth may always be asserted
as an absolute defense. ... Second, certain statements are absolutely privileged… Third, other
statements receive a conditional or qualified privilege.” Id. (internal citations omitted). Where the
privilege is absolute, “the speaker is immunized ‘from liability in a subsequent defamation action even
if the [speaker’s] statement[][was] made with malice.’” Id. (quoting Murphy v. A.A. Mathews, Div.
of CRS Group Eng’rs, Inc., 841 S.W.2d 671, 675 (Mo. 1992) (en banc)).
The Restatement (Second) of Torts § 611 sets forth the official report privilege as follows:
3
The publication of defamatory matters concerning another in a report of an official
action or proceeding or of a meeting open to the public that deals with a matter of
public concern is privileged if the report is accurate and complete or a fair
abridgement of the occurrence reported.
The comments to § 611 state, in relevant part:
a. Character of privilege. The privilege of the publication of reports of defamatory
statements covered in this Section is not an absolute privilege. It is, however,
somewhat broader in its scope than the conditional privileges covered in §§ 594 to
598A. The basis of this privilege is the interest of the public in having information
made available to it as to what occurs in official proceedings ... . The privilege is
therefore one of general publication and is not limited to publication to any person or
group of persons. For the same reason the privilege exists even though the publisher
himself does not believe the defamatory words he reports to be true and even when
he knows them to be false. Abuse of the privilege takes place, therefore, when the
publisher does not give a fair and accurate report of the proceeding.
b. Relationship of this privilege to the constitutional requirement of fault. The
Constitution is now held to require the plaintiff in an action for defamation to show
that the defendant, in publishing a false and defamatory communication concerning
him, was at fault regarding the injurious character of the statement. ... If the plaintiff
is a private person, he must show the existence of fault amounting at least to
negligence in regard to the falsity and the defamatory character of the statement. (See
§ 580B). The privilege stated in this Section permits a person to publish a report of
an official action or proceeding ... that deals with a matter of public concern, even
though the report contains what he knows to be a false and defamatory statement.
The constitutional requirement of fault is met in this situation by a showing of fault
in failing to do what is reasonably necessary to insure that the report is accurate and
complete or a fair abridgment. ... .
...
d. Official proceedings. The privilege covered in this Section extends to the report of
any official proceeding, or any action taken by any officer or agency of the
government of ... of any State or of any of its subdivisions. ... The filing of a report
by an officer or agency of the government is an action bringing a reporting of the
governmental report within the scope of the privilege.
...
f. Accuracy and fairness of report. The rule stated in this Section requires the report
to be accurate. It is not necessary that it be exact in every immaterial detail or that it
conform to that precision demanded in technical or scientific reporting. It is enough
that it conveys to the persons who read it a substantially correct account of the
proceedings.
4
Missouri has adopted the rule set forth in § 611 of the Restatement of Torts. See, e.g., Lami
v. Pulitzer Pub. Co., 723 S.W.2d 458 (Mo. Ct. App. 1986); Shafer v. Lamar Publishing Company,
Inc., 621 S.W.2d 709 (Mo. Ct. App. 1981). “The question of whether the circumstances give rise
to a privilege is one of law for the court.” Lami, 723 S.W.2d at 459 (citing Williams v. Pulitzer
Broad. Co., 706 S.W.2d 508, 510-11 (Mo. Ct. App.1986)). See also Wunsch, 92 S.W.3d at 155.
It is undisputed that the news report in the RFT which is at issue in the matter under
consideration was a nearly verbatim repetition of the official government news release issued by the
Missouri Secretary of State and that the news report was a substantially true and fair account of the
government action taken by the Missouri Secretary of State. To the extent there were minor
differences between the RFT’s news report and the Secretary of State’s news release, such minor
differences do not defeat the privilege set forth in § 611. See Shafer, 621 S.W.2d at 712. This court
finds, therefore, as a matter of law, that the privilege set forth in § 611 of the Restatement of Torts
is applicable to the statement in the RFT which Plaintiff alleges was libelous. See Wunsch, 92 S.W.3d
at 155. As such, the court finds that summary judgment should be granted in Defendants’ favor.
Accordingly,
IT IS HEREBY ORDERED that the Motion for Summary Judgment filed by Defendants
is GRANTED; Doc. 15
IT IS FURTHER ORDERED that a Judgment in favor of Defendants and incorporating this
Memorandum Opinion shall issue on this same date.
/s/Mary Ann L. Medler
MARY ANN L. MEDLER
UNITED STATES MAGISTRATE JUDGE
Dated this 4th day of January, 2012.
5
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?