Blair v. Inside Edition Productions
OPINION AND ORDER re: 40 MOTION for Discovery filed by Tracey Elaine Blair, 42 MOTION for Discovery filed by Tracey Elaine Blair, 41 MOTION to Strike filed by Tracey Elaine Blair, 24 MOTION for Summary Judgment filed by Inside Edition Product ions: For the foregoing reasons, Inside Edition's motion for summary judgment is granted, and Blair's motions are denied. The Clerk of Court is respectfully requested to terminate the motions pending at docket numbers 24, 40, 41, and 42 and close the case. (Signed by Judge Ronnie Abrams on 3/14/2014) (tn)
housing in Detroit and, in particular, the reclamation of abandoned homes. (Def. 56.1 ¶ 5; Blair
Dep. 41:13-15; Def. Ex. 1 ¶¶ IV, V.) She has run for a number of offices as a write-in candidate,
including mayor of Detroit, state senator, governor of Michigan, and president of the United
States. (Def. 56.1 ¶ 4.) In addition, she has used her adverse possession of vacant residential
properties as the basis for at least four quiet title actions. (Id. ¶ 6.)
From October 2010 through February 2011, Blair rented a room in Peterson’s home
pursuant to a month-to-month lease. (Def. 56.1 ¶¶ 9-10.) Peterson served Blair with a notice to
quit on February 14, 2011, claiming that the house had to be vacated because the boiler was
broken. (Id. ¶ 11.) After Blair moved out, Peterson changed the locks and left the country. (Id.
¶¶ 12-13.) Blair paid no further rent and had no contact with Peterson while she was abroad.
(Id. ¶¶ 12, 14.) After moving out of Peterson’s home, she resided with her mother and sister and
in another house that she purchased for $3,000. (Blair Dep. 10:22-12:10, 154:14-57:21.)
In April or May of 2012, Blair was driving by Peterson’s house and decided to attempt to
retrieve certain possessions that she had left there. (Id. at 45:3-25.) She discovered that the door
was broken and that the neighbors had not seen Peterson recently. (Id. at 46:3-7.) Over the next
few months, Blair installed a new lock on the front door, scraped and repainted the walls, fixed
the plumbing, and replaced the refrigerator and stove, all without Peterson’s permission. (Id. at
75:6-10, 78:2-79:2, 93:8-99:4, 149:4-20.)
On June 1, 2012, Blair filed a quiet title action for possession of the property, naming
Peterson as the defendant. (Def. 56.1 ¶¶ 21-22.) Later that month, she filed a complaint to
encumber the property with a construction lien for the repairs that she had made. (Id. ¶ 24.) By
July, she began to live there, alternating between Peterson’s house and her other two residences.
(Blair Dep. 62:21-63:20.) She obtained a default judgment against Peterson in the amount of
$8,500 on October 11, 2012. (Def 56.1 ¶¶ 25-26.)
Blair returned to the house on October 8 or 9, 2012 to discover Peterson on the porch
with police officers. (Id. ¶¶ 30-31.) 3 The police left after Blair showed them her construction
lien pleadings. (Id. ¶¶ 32-33.) Detroit’s local Fox Television Stations affiliate, Fox 2,
interviewed Blair and Peterson regarding the incident and broadcast a report on October 9, 2012.
(Id. ¶¶ 40-43.) After the broadcast, several news outlets sought interviews and reported on the
dispute. (Id. ¶¶ 44-45.)
Inside Edition, the televised newsmagazine of Inside Edition, Inc., aired four segments
about the dispute on October 11, 12, 13, and 19, 2012. (Id. ¶¶ 1, 46-50.) A voiceover in the first
broadcast introduces the situation as follows: “You’ve never seen an odd couple like this.
They’re not roommates, but they live in the same house. And Heidi Peterson says she wants her
outta there. She says Tracey Blair is a squatter and has no right to be there. But Tracey refuses
to move.” (Def. Ex. A at 1:33-47.) Blair and Peterson are shown arguing about the appliances
that Blair removed or replaced, and Peterson says, “You can’t just do things with people’s items
that don’t belong to you.” (Id. at 2:00-16, 2:30-35.) The voiceover explains that, “for now,
Tracey and Heidi and her little daughter will have to co-exist under the same roof, possibly for
many months to come, until this bizarre situation is worked out,” and Peterson is shown saying,
“I want to resolve this in court.” (Id. at 2:50-3:01.) The broadcast concludes with the anchor’s
explanation of eviction law: “Under the law, a homeowner cannot remove a squatter by force, so
Heidi actually has to file a civil suit in court, prove it’s her property, and then evict the alleged
squatter. It is a process that could take the better part of a year.” (Id. at 3:02-15.)
Blair suggested at her deposition that Peterson might have returned on October 10. (Blair Dep.
102:18-25.) However, as the Fox 2 report was broadcast on October 9, (Def. Ex. 6), Peterson
must have been back by then.
The second broadcast is a viewer reaction segment. (Def. 56.1 ¶ 47.) The anchor quotes
comments from viewers and states that “most viewers are outraged that Detroit homeowner
Heidi Peterson must now go to court to remove Tracey Blair from her own home.” (Def. Ex. B
The third broadcast, which appeared on Inside Edition’s weekend show, similarly
characterizes Blair as a squatter and describes Blair and Peterson as “absolute strangers.” (Def.
56.1 ¶¶ 48-49; Def. Ex. C at 0:05-07.) The anchor states that Blair “insists she will not leave
until the law forces her out” and, as in the first broadcast, reports that, “under the law, a
homeowner cannot remove a squatter by force, so Heidi actually has to file a civil suit in court,
prove that it is her property, and formally evict the alleged squatter—a process that could take a
year.” (Def. Ex. C at 0:13-17, 1:52-2:05.)
The last broadcast, aired on October 19, is entitled “Moving Day.” (Def. 56.1 ¶ 50.) The
anchor begins by reporting that, “though the alleged squatter refused to leave, she is now finally
packing her bags.” (Def. Ex. D at 14:42-46.) Blair is shown moving boxes out of the house, and
the voiceover explains that “the bizarre living situation has been going on for weeks, with the
two squabbling just like Felix and Oscar on the classic TV series, The Odd Couple.” (Id.
Blair does not know precisely when she moved out of Peterson’s house, but she viewed at
least one of the broadcasts on the television set at the house and therefore could have left no
earlier than October 12, 2012. (Def. 56.1 ¶¶ 34-35, 38.) At the request of the reporters, she
returned to the house to retrieve her belongings. (Id. ¶ 39.)
Blair took no further action concerning the default judgment, but she also made no
application to lift the lien. (Id. ¶ 27; Blair Dep. 83:22-84:9.) Peterson moved to vacate the
judgment and dismiss the action on November 26, 2012, and her motion was granted on
December 19, 2012. (Def. 56.1 ¶¶ 27, 29.) A few days before Peterson filed her motion, she
filed a petition for a personal protection order prohibiting Blair from entering her home or
“kidnapping Sarah Kathryn Peterson,” Peterson’s daughter. (Def. Ex. 18.) She also filed a
complaint against Blair and Blair’s contractor on January 22, 2013, claiming that they had
damaged the property and caused her serious emotional distress and other harm. (Def. Ex. 17.)
Blair commenced this defamation action against Inside Edition on November 27, 2012,
seeking $200,000 in damages and an injunction prohibiting Inside Edition from publishing the
broadcasts. (Def. Ex. 1 ¶ V.) Her complaint alleges that the broadcasts “slandered [her]
character by publicizing [her] as an unwanted squatter in a house where Miss Peterson was
forced to live alongside a stranger.” (Id. ¶ III(C).) Counsel for Inside Edition deposed Blair on
May 17, 2013. (Def. 56.1 ¶ 53.) On the same day, the Court granted Inside Edition’s motion to
bifurcate discovery, to stay discovery unrelated to the truth or falsity of the broadcasts, and to
entertain a motion for summary judgment on substantial truth. (Def. Ex. 16 at 4, 12.)
STANDARD OF REVIEW
Summary judgment is warranted “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). A fact is “material” if it “might affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact is
“genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. Otherwise, there is “no issue for trial.” Id. at 249.
The first question the Court must address is which party bears the burden of proof with
respect to the truth or falsity of the statements at issue. “Although truth is a matter of affirmative
defense under the common law of defamation, a public figure plaintiff or private figure plaintiff
involved in a matter of public concern has the burden to establish falsity.” Law Firm of Daniel
P. Foster, P.C. v. Turner Broad. Sys., Inc., 844 F.2d 955, 958 n.5 (2d Cir. 1988) (citing Garrison
v. Louisiana, 379 U.S. 64, 74 (1964) and Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 774-78
(1986)). This requirement is of constitutional significance, as it is designed to mitigate the
“chilling” effect of defamation law on speech protected by the First Amendment. See Hepps,
475 U.S. at 776-77. Conversely, “[t]here is some authority for the proposition that the general
rule at common law, that falsity is presumed and that defendants must bear the burden of
pleading and proving truth, survives in defamation suits by private-figure plaintiffs concerning
statements on purely private matters.” Albert v. Loksen, 239 F.3d 256, 268 n.10 (2d Cir. 2001).
“Whether a plaintiff is a public figure is a question of law for the court.” Celle v. Filipino
Reporter Enters. Inc., 209 F.3d 163, 176 (2d Cir. 2000). “We evaluate whether a party is a
public figure based on ‘clear evidence of general fame or notoriety in the community, and
pervasive involvement in the affairs of society.’” Dongguk Univ. v. Yale Univ., 734 F.3d 113,
123 (2d Cir. 2013) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974)). “Those
who have voluntarily sought and attained influence or prominence in matters of social concern
are generally considered public figures.” Celle, 209 F.3d at 176. In addition, a private-figure
plaintiff is involved in a matter of public concern if the speech at issue “is related to a ‘matter of
political, social, or other concern to the community or when it is a subject of legitimate news
interest; that is, a subject of general interest and of value and concern to the public.’” Dongguk
Univ., 734 F.3d at 129 (quoting Snyder v. Phelps, 131 S. Ct. 1207, 1216 (2011)).
In her complaint, Blair avers that she is a “public figure” by virtue of her missionary
work and candidacy for president of the United States. (Def. Ex. 1 ¶¶ IV, V.) Indeed, Blair has
run as a write-in candidate for, among other offices, mayor of Detroit, state senator, governor of
Michigan, and president of the United States. (Blair Dep. 178:22-79:3, 183:2-22, 191:12-21,
192:23-93:15.) In addition, Blair testified at her deposition that she is “well-known in [her]
community as a housing advocate” and is “well-known generally in [her] community.” (Id. at
203:3-11.) She further testified that she has given numerous television interviews on housing
and that an Illinois state court had deemed her to be a “public figure.” (Id. at 210-15.) It is
apparent that Blair has sought influence in matters of social concern, and she certainly does not
dispute that she has attained it. As a public figure, Blair bears the burden of proving falsity. See
Celle, 209 F.3d at 177 (upholding the district court’s finding that the plaintiff was a public figure
“[g]iven [the plaintiff’s] own characterization of himself as a ‘well known radio commentator’
within the Metropolitan Filipino-American community”). 4
The standard for assessing falsity is informed by the “common law of libel[,] . . . .
[which] overlooks minor inaccuracies and concentrates upon substantial truth.” Masson v. New
Yorker Magazine, Inc., 501 U.S. 496, 516 (1991). A statement is true “so long as ‘the substance,
the gist, the sting, of the libelous charge be justified.’” Id. at 517. “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.
The Supreme Court has not yet expressed a view on “whether the element of falsity must
be established by clear and convincing evidence or by a preponderance of the evidence.” HarteHanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 661 n.2 (1989). Nor has the Second
Circuit articulated the appropriate standard of proof. See DiBella v. Hopkins, 403 F.3d 102, 111
Alternatively, the Court finds that the broadcasts touch on issues of public concern. Both the
presence of a “squatter” in an ostensibly abandoned house and the legal process required to evict
such a person are subjects of legitimate news interest.
(2d Cir. 2005) (declining “to address this open question in federal constitutional law”).
The Court need not decide this question. “Because this is a diversity case,” the Court
applies “federal procedural law” and “state substantive law,” as modified by the constitutional
rules discussed above. In re Fosamax Products Liab. Litig., 707 F.3d 189, 193 (2d Cir. 2013)
cert. denied, 133 S. Ct. 2783 (2013). The elements of Blair’s defamation action derive from state
law, and the only two plausible candidates are New York (where Inside Edition is domiciled) and
Michigan (where Blair is domiciled and the events at issue took place). Under the choice-of-law
rules of New York, which apply here, the Court may dispense with a choice-of-law analysis if
there is no actual conflict between New York law and Michigan law. See Curley v. AMR Corp.,
153 F.3d 5, 12 (2d Cir. 1998). 5 Both New York and Michigan go beyond the constitutional
minimum and require public figures to demonstrate falsity by clear and convincing evidence.
See DiBella, 403 F.3d at 111 (New York); Phillips v. Ingham Cnty., 371 F. Supp. 2d 918, 929-30
(W.D. Mich. 2005) (Michigan). 6 In addition, both states hold defendants “to a standard of
The Court notes that “[a]s a first approach to the choice of law problem in libel actions New
York assumes that the state of the plaintiff’s domicile will usually have the most significant
interest in the case and that its law should therefore govern.” Celle, 209 F.3d at 175.
Neither the New York Court of Appeals nor the Michigan Supreme Court appears to have
definitively addressed this issue. Nevertheless, the Second Circuit has stated that “(1) the
uniform view of the New York Appellate Divisions, (2) the majority view of other jurisdictions
(both state and federal), (3) the fact that the clear and convincing evidence standard has already
been incorporated into the New York Pattern Jury Instructions, and (4) scholarly writing in this
field” constitutes “significant and persuasive evidence from which to conclude that the New
York Court of Appeals would hold that falsity must be proved by clear and convincing
evidence.” DiBella, 403 F.3d at 115. The same sources, supplemented by decisions of the
Michigan Court of Appeals, inform this Court’s conclusion with respect to Michigan law. See,
e.g., A-Mac Sales & Builders v. Detroit News, Inc., No. 247582, 2004 WL 2192641, at *3
(Mich. Ct. App. Sept. 30, 2004) (requiring “clear and convincing evidence of actual falsity”);
Kefgen v. Davidson, 617 N.W.2d 351, 359 (Mich. Ct. App. 2000) (“A public figure claiming
defamation must prove by clear and convincing evidence that the publication was a defamatory
falsehood and that it was made with actual malice through knowledge of its falsity or through
reckless disregard for the truth.”).
substantial, not literal, accuracy.” Law Firm of Daniel P. Foster, P.C., 844 F.2d at 959 (New
York); see also Nichols v. Moore, 477 F.3d 396, 399 (6th Cir. 2007) (Michigan).
Summary judgment is therefore warranted if no reasonable jury could find by clear and
convincing evidence that the statements at issue are substantially false. See Anderson, 477 U.S.
at 252 (holding that “the inquiry involved in a ruling on a motion for summary judgment . . .
necessarily implicates the substantive evidentiary standard of proof that would apply at the trial
on the merits”). This is “a demanding standard, the most rigorous burden of proof in civil
cases.” Matter of Westchester Cnty. Med. Ctr. on Behalf of O’Connor, 531 N.E.2d 607, 613
(N.Y. 1988); see also In re Martin, 538 N.W.2d 399, 410 (Mich. 1995). Clear and convincing
evidence has been defined as evidence that “produce[s] in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be established, evidence so clear,
direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction,
without hesitancy, of the truth of the precise facts in issue.” In re Martin, 538 N.W.2d at 410
(quoting Matter of Jobes, 529 A.2d 434, 441 (N.J. 1987)) (alterations in original); see also
People v. C.M., No. 22/2008, slip op. at 5 (N.Y. Sup. Ct. March 31, 2009). In short, the
evidence must “satisf[y] the factfinder that it is highly probable that what is claimed actually
happened.” In re Gail R., 891 N.Y.S.2d 411, 414 (2d Dep’t 2009).
Inside Edition is entitled to summary judgment on Blair’s defamation claim because no
rational jury could find by clear and convincing evidence that the statements at issue are false.
I. Inside Edition’s Motion for Summary Judgment
A. The Statement that Blair is a “Squatter”
Blair asserts that the broadcasts defamed her by calling her a “squatter.” (Blair Dep.
215:24-216:4.) No reasonable jury could conclude, however, that this characterization was
substantially false. According to Blair, a “squatter” is “[s]omeone who goes into a property that
belongs to someone else.” (Id. at 38:10-12.) A more precise definition might be “[a] person who
settles on property without any legal claim or title.” Black’s Law Dictionary (9th ed. 2009). In
either case, the label is substantially true. Peterson served Blair with a notice to quit and
changed the locks to her home before leaving the country. (Blair Dep. 73:21-75:4.) Blair
subsequently returned to Peterson’s house and lived there for at least three months without
permission, title, or payment of rent. (Id. at 62:17-63:24.) Moreover, Blair changed the
refrigerator, plumbing, and stove, and even attempted to gain title to the house by adverse
possession. (Id. at 50:7-51:7, 64:2-8, 94:8-11, 149:4-20.)
During her deposition, Blair claimed that she had a valid lease agreement because “a
month-to-month never expires.” (Id. at 63:10.) This is incorrect. In Michigan, a landlord may
terminate a month-to-month lease by giving one month’s notice to the tenant. See Mich. Comp.
Laws Ann. § 554.134(1); Ypsilanti Hous. Comm’n v. O’Day, 618 N.W.2d 18, 21 (Mich. Ct.
App. 2000). Peterson served the notice to quit on February 14, 2011, and Blair vacated the
premises at some point that month. (Blair Dep. 73:12-75:4, 135:13-18.) 7
By identifying evidence in the record that supports the notion that Blair was a squatter,
Inside Edition made its prima facie case for summary judgment. See Golden Pac. Bancorp v.
F.D.I.C., 375 F.3d 196, 200 (2d Cir. 2004). It was then incumbent on Blair to come forth with
admissible evidence from which a reasonable jury could find by clear and convincing evidence
that she had a legal claim to occupy Peterson’s house. See id. She has not done so. Inside
Edition’s motion is therefore granted with respect to the description of Blair as a “squatter.”
There is no allegation that Peterson’s notice to quit provided Blair with insufficient time to
depart or that Blair did not leave within a month of her own accord.
Even if the “squatter” label were literally false, it would not “have a different effect on
the mind[s] of [Inside Edition viewers] from that which the pleaded truth would have produced.”
Masson, 501 U.S. at 517 (internal quotation marks omitted). A technical deficiency in
Peterson’s notice to quit would not alter the fact that Blair vacated the premises, reentered
without permission when Peterson was absent, and treated it as her own property for months
until Peterson’s unexpected return. This is the “substance” or “gist” of the allegation that Blair
was a squatter, and it is substantially true. 8
B. The Statement that Blair is a “Stranger” to Peterson
Blair also takes issue with the repeated statement that she and Peterson were “strangers”
during the time that Blair occupied Peterson’s house without permission. (Blair Dep. 216:1115.) Inside Edition concedes that this statement is not literally true. It contends, however, that
the description of Blair and Peterson as “strangers” does not alter the substantial truth of the
statement that Blair was a “squatter” and is not independently susceptible of defamatory
meaning. 9 The Court agrees.
Blair also claimed that she had a right to stay in the house because Peterson had not gone to
court to evict her. (Blair Dep. 141:8-16, 142:2-6.) Peterson, however, had no reason to seek a
court order after Blair had already moved out, and, in any event, the absence of eviction
proceedings does not suggest that Blair had a valid lease. Nor was the lease resurrected by the
fact that Blair had left personal possessions in the house. (Id. at 138:12-17.)
When considered in isolation, the statement that Blair and Peterson were “strangers” cannot
possibly be defamatory. See Kevorkian v. Am. Med. Ass’n, 602 N.W.2d 233, 236 (Mich. Ct.
App. 1999) (“A communication is defamatory if, considering all the circumstances, it tends to so
harm the reputation of an individual as to lower that individual’s reputation in the community or
deter third persons from associating or dealing with that individual.”); Golub v. Enquirer/Star
Grp., Inc., 681 N.E.2d 1282, 1283 (N.Y. 1997) (“Generally, a written statement may be
defamatory ‘if it tends to expose a person to hatred, contempt or aversion, or to induce an evil or
unsavory opinion of him in the minds of a substantial number of the community.’”) (quoting
Mencher v. Chesley, 75 N.E.2d 257, 259 (N.Y. 1947)). The claim that Blair was “squatting” on
the property of a complete “stranger” could, however, have a defamatory connotation. The
Court therefore analyzes the substantial truth of this claim.
Although Peterson and Blair knew each other before the events reported in the
broadcasts, no reasonable jury could find that this fact would have materially altered viewers’
perceptions in Blair’s favor. The existence of a prior landlord-tenant relationship does little to
justify Blair’s actions. And, while some viewers may have been unsettled by Blair’s supposedly
random choice of dwelling, others would be similarly unsettled by the notion of a disgruntled or
opportunistic former tenant. As the “sting” of the inaccurate statement is the same as that of the
truth, it cannot support an action for defamation. See Masson, 501 U.S. at 517; Guccione v.
Hustler Magazine, Inc., 800 F.2d 298, 302 (2d Cir. 1986) (finding that labeling the plaintiff an
adulterer was not substantially false even though “‘former long-time adulterer’ would have been
C. The Description of Blair’s Conflict with Peterson
Blair further claims that it was defamatory for the broadcasts to say that she was
“arguing” with Peterson (Blair Dep. 221:13-17.) Even if this statement were susceptible of
defamatory meaning, it is literally true, as the broadcasts show just that—Blair and Peterson
arguing about Blair’s modifications to Peterson’s house. (Def. Ex. A at 2:07-15, 2:30-36, 2:4750; Def. Ex. D at 15:35-57.) Similarly, Blair argues that it was defamatory to say that she caused
Peterson “anxiety and frustration.” (Blair Dep. 225:18-22.) No reasonable jury could view the
broadcasts and fail to conclude that Peterson appears anxious and frustrated. (Def. Ex. A at
2:30-36; Def. Ex. D at 15:44-57.) Her anxiety is also apparent from the fact that she has sought a
restraining order against Blair and has filed suit against her and her contractor for property
damage and emotional distress. (Def. Ex. 17; Def. Ex. 18.) These statements are at the very
least substantially true and do not warrant a defamation trial.
D. The Description of Blair and Peterson as America’s New “Odd Couple”
Blair also objects to the broadcasts’ characterization of her and Peterson as America’s
new “Odd Couple.” (Blair Dep. 224:11-20.) This allusion to the famous television series is not
The First Amendment shields from state defamation law those “statements that cannot
‘reasonably [be] interpreted as stating actual facts’ about an individual.” Milkovich v. Lorain
Journal Co., 497 U.S. 1, 20 (1990) (alteration in original). “This 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. The “dispositive question” is
“whether a reasonable factfinder could conclude that the statements [here] imply an assertion
that . . . . is sufficiently factual to be susceptible of being proved true or false.” Id. at 21.
Neither the comparison of Blair and Peterson to bickering television characters nor the
subjective judgment that their situation is “odd” is capable of being proved true or false. The
First Amendment thus forbids liability on the basis of those statements. Furthermore, Blair’s
interpretation of the term “Odd Couple” as racist, (Blair Dep. 216:3-25, 219:4-13), is not one that
a reasonable jury could share. There is simply nothing in the broadcasts that suggests that what
is “odd” about the situation is based at all on Peterson or Blair’s race. The broadcasts plainly use
the term “odd couple” to make light of Peterson’s exasperating cohabitation with her former
tenant and alleged squatter, rather than to criticize interracial cohabitation.
E. The Claim that Blair Refuses to Leave Peterson’s Home
As Inside Edition acknowledges, Blair contends that the broadcasts defamed her by
repeatedly “claiming that she was unwilling to leave Peterson’s home.” (Def. Mem. 9-10; Blair
Dep. 221:7-11, 222:18-23:4.) Although Inside Edition fails to address these statements in its
briefs, it is nonetheless entitled to summary judgment. 10
The first broadcast claims that “[Blair is] not moving out unless an incredibly slow legal
process forces her to” and goes on to explain that, “[u]nder the law, a homeowner cannot remove
a squatter by force, so Heidi actually has to file a civil suit in court, prove it’s her property, and
then evict the alleged squatter. It is a process that could take the better part of a year.” (Def. Ex.
A at 1:26-29, 3:02-15.) The second broadcast reports that “most viewers are outraged that
Detroit homeowner Heidi Peterson must now go to court to remove Tracey Blair from her own
home.” (Def. Ex. B at 15:41-47.) The third states that Blair “insists she will not leave until the
law forces her out” and also suggests that protracted eviction proceedings will be necessary.
(Def. Ex. C at 0:13-17, 1:52-2:05.) While the last broadcast depicts Blair “finally packing her
bags,” it first observes that she initially “refused to leave.” (Def. Ex. D at 14:42-46.)
According to Blair, it was always her intention to leave the house if Peterson returned.
(Blair Dep. 49:6-11.) She testified that she “c[ould]n’t quiet title the house if [Peterson] is back”
and that she was “happy to . . . leave th[e] house” because she was “living [t]here to prevent
[others] from breaking in further.” (Id. at 44:25-45:2, 116:15-21, 117:2-15.) She further
testified that Peterson never asked her to leave, that she “d[id]n’t want . . . to force [her]self on
[any]one,” and that she left the house after finding out how the various news reports had
portrayed her intentions. (Id. at 134:2-8, 143:21-24.) When asked three times at her deposition
whether she had “asked [Peterson] for a couple of months to get [her] stuff together before [she]
left,” Blair insisted that she had not and that she had told the Inside Edition reporters no such
“District courts are widely acknowledged to possess the power to enter summary judgment sua
sponte. . . . ‘so long as the losing party was on notice that [it] had to come forward with all of
[its] evidence.’” First Fin. Ins. Co. v. Allstate Interior Demolition Corp., 193 F.3d 109, 114-15
(2d Cir. 1999) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986)) (alterations in
original). Here, Inside Edition plainly stated its intention to seek summary judgment as to “every
statement the Plaintiff challenges.” (Def. Mem. 10.)
thing. (Id. at 223:5-23.)
The record does not permit a rational jury to find by clear and convincing evidence that
the statements in the broadcasts are substantially false. Blair’s claim that she was willing to
leave immediately is contradicted by the fact that she did not initially move out upon Peterson’s
arrival. (Def. 56.1 ¶¶ 34-35, 38.) Indeed, when confronted by a Fox 2 reporter, Blair said, “I
have a construction lien for the repairs that I put into the house,” (Def. Ex. 6 at 0:56-59),
suggesting that she felt entitled to stay there. In addition, when the reporter said that Peterson
had told her that “you said that you have the right to live here,” Blair responded, “I have a lease
with her since October 2012.” (Id. at 1:09-16.)
Moreover, at the time, Peterson was clearly under the impression that Blair would not
leave or relinquish her claim to the house. When asked in her Fox 2 interview whether she felt
safe living with Blair, Peterson replied, “I don’t know what the capabilities are. We’re afraid of
her mindset of entitlement.” (Id. at 3:26-33.) She went on to say, “I thought, if the house is not
safe, how can I come here with my child? There’s an issue with that. But should I lose my
house to a squatter because I don’t have rights to my property or should I fight to get it back?”
(Id. at 4:07-19.) 11
On this record, a reasonable factfinder could not “come to a clear conviction, without
hesitancy,” that the statements at issue are false. In re Martin, 538 N.W.2d at 410. Although it is
possible that Blair had no intention of staying at Peterson’s house if she were unwanted, the
“The principles governing admissibility of evidence do not change on a motion for summary
judgment,” Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997), and “[n]ewspaper articles are
usually inadmissible hearsay,” Mandal v. City of New York, No. 02 Civ. 1234 (WHP), 2006 WL
3405005, at *1 (S.D.N.Y. Nov. 26, 2006). However, as statements “offered against an opposing
party,” Blair’s statements are not hearsay. Fed. R. Evid. 801(d)(2). Moreover, Peterson’s
statements fall under the hearsay exception for “statement[s] of the declarant’s then-existing state
of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as
mental feeling, pain, or bodily health).” Fed. R. Evid. 803(3).
Supreme Court has made clear that “where the scales are in such an uncertain balance, . . . the
Constitution requires us to tip them in favor of protecting true speech.” Hepps, 475 U.S. at 776.
As Blair has not met her burden, summary judgment is appropriate.
II. Blair’s Motions and Exhibits
Although Blair did not respond directly to Inside Edition’s motion for summary
judgment, she submitted a “Motion for Discovery or Deposition by Telephone Pursuant to
Federal Procedure Section 26:471,” a “Motion to Strike Change to Deposition Given by
Defendant; for Plaintiff, Pursuant to Federal Procedure § 26:477,” and thirteen exhibits.
Blair’s first motion, dated July 6, 2013, does not request any information in particular and
appears instead to be an application to appear by telephone at a discovery conference that was
scheduled for July 12, 2013. (Dkt. 40 at ¶ 5.) As the conference was canceled, (Dkt. 37), the
motion is denied as moot.
The second motion claims that although Blair received CD copies of the broadcasts from
Inside Edition, her computer was unable to “record” them. (Dkt. 41 at ¶¶ 3-4, 9.) Blair admits,
however, that Inside Edition arranged for her to view the broadcasts at the offices of a Detroit
law firm and that she did in fact watch them there. (Id. at ¶¶ 5-6; see also Dkt. 37 at 2-3.) The
remaining allegations in the motion are either immaterial to the substantial truth of the broadcasts
or simply reiterate the allegations in Blair’s complaint.
Lastly, the Court has reviewed with care the thirteen exhibits Blair has submitted and
concludes that they fail to create any genuine issue of material fact.
For the foregoing reasons, Inside Edition’s motion for summary judgment is granted, and
Blair’s motions are denied.
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