Talley v. Time Inc et al

Filing 20

ORDER denying 17 Motion to Dismiss Plaintiff's Amended Complaint. Signed by Honorable Timothy D. DeGiusti on 11/18/15. (wh)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JOHN THOMAS TALLEY,
Plaintiff,
vs
TIME, INC., d/b/a Sports Illustrated
Magazine, et al.,
Defendants.

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Case No. CIV-14-853-D

ORDER
Before the Court is Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint
[Doc. No. 17], filed by Time, Inc. d/b/a Sports Illustrated Magazine, George Dohrmann, and
Thayer Evans, pursuant to Fed. R. Civ. P. 12(b)(6). The Motion is fully briefed and at issue.
Plaintiff John Thomas Talley is proceeding in this diversity case under his Amended
Complaint [Doc. No. 16], which was timely filed after the Court granted Defendants’ initial
Rule 12(b)(6) motion to dismiss with leave for Plaintiff to amend his pleading. By Order of
February 11, 2015, the Court determined that Plaintiff’s original pleading failed to state a
claim of false light invasion of privacy under Oklahoma law because it alleged insufficient
facts to show that Defendants acted with actual malice in the publication of a magazine
article in Sports Illustrated (“SI”) containing statements concerning Plaintiff that could be
found to be materially false.1 Defendants now challenge the Amended Complaint as also
insufficient to state a claim upon which relief can be granted.

1

The parties agree that Plaintiff’s action is governed by Oklahoma substantive law.

The parties are familiar with the findings stated in the February 11 Order, which will
not be repeated; a copy is also available on Westlaw. See Talley v. Time, Inc., No. CIV-14853-D, 2015 WL 574716, Order (W.D. Okla. Feb. 11, 2015) (hereafter, “Order”). The Order
sets forth the standard of decision (id. at *2), the elements of Plaintiff’s theory of liability
(id.), and the allegedly defamatory statements about Plaintiff in the article (id. at *3-4). A
copy of the published SI article appears in the case record as an attachment to Defendants’
initial and current motions (Defs.’ Mot. Dismiss Compl., Ex. 1 [Doc. No. 8-1]; Defs’ Mot.
Dismiss Am. Compl. Ex. 1 [Doc. No. 17-1]), and is publicly available on Sports Illustrated’s
internet website at http://www.si.com/college-football/2013/09/10/oklahoma-state-part-1money.
In support of the instant Motion, Defendants again argue that Plaintiff has failed for
multiple reasons to sufficiently allege a plausible false light invasion of privacy claim. In
their brief, Defendants “revisit . . . why [certain] statements still are not actionable despite
the plaintiff’s revisionist view of the alleged facts” by amendments included in the Amended
Complaint. See Def.’s Mot. Dismiss Am. Compl. [Doc. No. 17], p.6. Because the Court
need only find sufficient factual allegations to state a plausible claim, and because
Defendants concede plausible allegations that some statements in the SI article “are
materially false and highly offensive,” (id. p.9), the Court finds no need to revisit prior
rulings.2 The Court considers only whether Plaintiff has cured the deficiency in his prior

2

Defendants also concede that Plaintiff has cured a prior deficiency of failing to allege that he
suffered any emotional distress or damage as a result of the alleged conduct. See id. p.4, n.2.

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pleading by providing sufficient factual allegations to support a finding of “actual malice”
as that term is defined by governing law. See Order at *5-*6. The Court previously found
the Complaint “contain[ed] no factual allegations that would plausibly support an inference
that Defendants recklessly disregarded the truth – that is, had actual awareness of probable
falsity – or actually knew that what they published was not true.” Id. at *6.
Upon examination of the Amended Complaint, the Court finds minimally sufficient
factual allegations from which a reasonable inference could be drawn that Defendants
published statements about Plaintiff in reckless disregard of their probable falsity and the
false light in which he would be placed. Reading the statements about Plaintiff in context
of the SI article, he was falsely identified as a financial booster of the Oklahoma State
University football program who paid money or provided subsistence to individual players
in violation of NCAA rules. As one example, the article states that quarterback Aso Pogi
said he lived on Plaintiff’s ranch one summer rent-free and did no work in exchange.
Plaintiff alleges in the Amended Complaint that “Aso Pogi’s remarks were deliberately
falsified” and “Pogi made it clear to S.I. during his interviews . . . that, in exchange for that
living space, he worked hard performing manual labor” and “it was some of the most
physically demanding work he had ever done.” See Am. Compl. [Doc. No. 16], ¶¶ 42, 49.
The article also attributes to Plaintiff statements that “he sometimes paid players a fee for
speaking engagements” and “he cleared the speaking fees through the university’s
compliance office.” Id. ¶ 19. The Amended Complaint alleges that these statements are false
and one former player who was questioned about speaking fees “correctly stated [to SI
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interviewers] that neither he, or [sic] anyone he knew, ever got paid” a speaking fee by
Plaintiff. Id. ¶ 43.
Accepting the allegations of the Amended Complaint as true and reading them in the
light most favorable to Plaintiff, the Court finds that the Amended Complaint states a facially
plausible claim to relief.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss Plaintiff’s
Amended Complaint [Doc. No. 17] is DENIED.
IT IS SO ORDERED this 18th day of November, 2015.

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