McGlothlin v. Hennelly
Filing
77
ORDER finding as moot 60 Motion for More Definite Statement; granting 61 Motion for Summary Judgment; denying 62 Motion for Summary Judgment Signed by Honorable David C Norton on April 15, 2020.(kwhe, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
JAMES W. MCGLOTHLIN,
)
)
Plaintiff,
)
)
vs.
)
)
KEVIN N. HENNELLY,
)
)
Defendant.
)
_______________________________________)
No. 9:18-cv-00246-DCN
ORDER
The following matter is before the court on plaintiff James W. McGlothlin’s
(“McGlothlin”) motion for determination of dispositive motion deadline, ECF No. 60;
defendant Kevin N. Hennelly’s (“Hennelly”) motion for summary judgment, ECF No.
61; and McGlothlin’s motion for partial summary judgment, ECF No. 62. For the
reasons set forth below, the court find as moot the motion for determination of a
dispositive motion deadline, grants Hennelly’s motion for summary judgment, and denies
McGlothlin’s motion for partial summary judgment.
I. BACKGROUND
This matter arises from Hennelly’s alleged defamation of McGlothlin through a
Facebook post and a comment on a local newspaper’s online article. Hennelly is a 65year-old man who lives with his wife in Bluffton, South Carolina. ECF No. 62-6,
Deposition of Kevin Hennelly (“Hennelly Depo.”) 7:24–8:23. He is not currently
employed but previously worked in the utilities industry for 44 years. Hennelly Depo.
27:6–32:3. Hennelly is involved in his community as the treasurer of the Beaufort
County Republican Party and as an unpaid member of the Beaufort County Planning
Commission. Hennelly Depo. 22:18–20; 27:15–16.
1
Hennelly’s allegedly defamatory statements arose out of a controversy around the
attempted rezoning of Hilton Head National Golf Course (“Hilton Head National”),
located in Beaufort County, South Carolina. Hilton Head National is owned by Scratch
Golf, LLC (“Scratch Golf”), and United Company is Scratch Golf’s parent company.
McGlothlin is United Company’s sole shareholder, has been the chairman of its board
since the company was formed, and serves as the company’s CEO. ECF No. 61-4,
Deposition of James McGlothlin (“McGlothlin Depo.”) 8:11–9:12. In or around July
2016,1 Scratch Golf submitted an application to Beaufort County to rezone Hilton Head
National. There were multiple, well-attended public meetings regarding the rezoning
application, and according to Paul Sommerville (“Sommerville”), the chairman of the
Beaufort City Council at the time, members of the public “overwhelmingly opposed the
rezoning.” ECF No. 61-6, Affidavit of Paul Sommerville (“Sommerville Aff.”) ¶ 8. The
Beaufort County Council ultimately denied the rezoning application on May 22, 2017.2
On May 12, 2017, an article about Hilton Head National was published on the
website of The Island Packet, Hilton Head’s local newspaper (“The Island Packet
Article”). ECF No. 1-2. The Island Packet Article described the beginnings of Hilton
1
The complaint alleges that the rezoning application was submitted in or around
July 2016. Compl. ¶ 8. Neither party drew the court’s attention to any evidence that
confirms this date, and the court was unable to find any evidence of this date in the
record. Contrary to the complaint’s allegation, Paul Sommerville (“Sommerville”), the
chairman of the Beaufort City Council at the time, recalled that the rezoning request was
initiated in December 2016. ECF No. 61-6, Affidavit of Paul Sommerville
(“Sommerville Aff.”) ¶ 3. Nevertheless, as it appears that the parties do not dispute the
date of the application and because it is not essential for the resolution of the parties’
motions, the court will assume the date of the application was July 2016.
2
Again, this date comes from the complaint, and there appears to be no evidence
supporting the allegation. Nevertheless, the parties do not dispute the date nor does the
specific date affect the court’s consideration of the issues before it.
2
Head National and the decline of the golf course industry, which prompted its owners’
desire to rezone the property. The article then discussed the proposed rezoning, which
included plans for 300 apartments, 300 homes, 500 hotel rooms, 400,000 square feet of
retail space, 125,000 square feet of office space, a 400-bed assisted living facility, a
1,500-seat performing arts center, a convention center, and a water park. The article
contained quotes from Bill Palmer, the president of Scratch Golf, and Martin Kent
(“Kent”), the president of the United Company. McGlothlin was mentioned in the article,
described as “maintain[ing] a financial and personal interest in” Hilton Head National,
but not quoted. Id. at 7.
On May 14, 2017, Hennelly commented on The Island Packet Article, stating:
It looks like they left out a few pertinent facts. The most glaring is the
corrupt people involved. This guy Kent was Chief of Staff to the corrupt
Governor of Virginia. he [sic] has never built a swing set never mind a
300m dollar city!!! James Woodrow McGlothlin gave the corrupt Governor
McDonald [sic] of Virginia [sic] wife a “no show” job. The McDonalds
[sic] never reported the income, $36,000. These guys are crony capitalists
and will break every rule in the book to get a government favor or handout.
Let’s vote NO to zoning change and send these carpetbaggers packing.
Let’s tell them loud and clear our elected officials are not for sale and are
above reproach. Let’s support our honest elected officials and send these
crooks back to Bristol[,] Virginia.
ECF No. 1-2 at 10. Then on May 23, 2017, the day after the rezoning application was
denied, Hennelly posted, in relevant part, the following statement about the rezoning
issue on Facebook:
The Island Packet gets an “incomplete” grade on their coverage of the issue.
For some reason the [sic] refused to print the documented corruption of the
owners of United Company. Martin Kent and James McGlothlin were up
to their eyeballs in the recent scandals in Virginia with the Governor and
his wife. McGlothlin gave the Governors [sic] wife a no show job at the
heart of the ethical and criminal activity.
3
ECF No. 1-3 at 3.3 Hennelly explained that “[e]verything [he] posted was based off of
information [he] had read in the newspaper articles.” ECF No. 61-7, Affidavit of Kevin
Hennelly (“Hennelly Aff.”) ¶ 11. Hennelly read multiple news articles about
McGlothlin, including a Washington Post article entitled “Virginia governor’s wife was
paid $36,000 as consultant to coal philanthropy.” Id. ¶ 9.
That article reported that “Maureen McDonnell, the wife of Virginia’s governor,
was paid $36,000 last year to attend a handful of meetings as a consultant to the
philanthropic arm of one of the state’s major coal companies.” ECF No. 61-7 at 7. The
“philanthropic arm” was the Frances G. and James W. McGlothlin Foundation, and
Governor McDonnell reported on his annual financial disclosure forms that Mrs.
McDonnell served as a paid trustee for the foundation. However, the article reported,
McGlothlin said that Mrs. McDonnell was paid by United Company, as opposed to by the
foundation.
The article then explained that Virginia law requires elected officials to disclose
any employer that pays their spouse more than $10,000 a year, and that if Governor
McDonnell had indicated on his disclosure forms that Mrs. McDonnell was paid by
United Company, the public could have concluded that Mrs. McDonnell made more than
$10,000 annually. Instead, by listing her position as a paid trustee, the governor did not
have to provide any information about the amount of money she was paid. The article
noted that “[n]ews of this relationship comes as the FBI and Virginia State Police are
3
Hennelly posted another Facebook post related to the rezoning, which was
included in McGlothlin’s complaint; however, because the court determined that it was
not actionable defamation in a previous order, the court does not include it here.
4
exploring the McDonnells’ finances” as part of a Virginia commonwealth attorney’s
review of Governor McDonnell’s financial disclosures.
The article further reported that McGlothlin said that Mrs. McDonnell attended
two or three board meetings and connected the foundation to notable people in Richmond
who might want to attend charitable events. The article then stated that “[f]or a few days
of work, Maureen McDonnell picked up a salary nearly equivalent to the average starting
pay of a Virginia teacher.” Id. at 8. The article included a statement by McGlothlin that
indicated that he and his wife discussed the idea of Mrs. McDonnell working with the
foundation over a dinner with Governor McDonnell and Mrs. McDonnell and
characterized the relationship between the McGlothlins and McDonnells as “close.” Id.
at 11. This information was also published in articles online by other new sources,
including the Richmond Times-Dispatch; UP; the Roanoke Times; and WJLA, the ABC
affiliate out of Washington, D.C., all of which Hennelly read. Hennelly also read several
articles about McGlothlin. Hennelly Aff. ¶ 9.
McGlothlin filed this action on January 30, 2018, bringing claims for defamation,
negligence/gross negligence/recklessness, and injunctive relief based on Hennelly’s
posts.4 Hennelly filed a motion to dismiss, which the court granted in part and denied in
part. ECF No. 38. Specifically, the court dismissed McGlothlin’s negligence claim and
4
McGlothlin originally filed this action in federal court in the Middle District of
Florida, where the case was dismissed for lack of personal jurisdiction. McGlothlin then
filed this action.
Moreover, Kent filed a defamation suit against Hennelly for the same comments.
He originally filed suit in federal court in the Eastern District of Tennessee, where the
suit was dismissed for lack of personal jurisdiction. Kent appealed the dismissal to the
Sixth Circuit Court of Appeals, voluntarily dismissed the appeal after briefing was
completed, and filed suit in this court on May 10, 2019. Kent v. Hennelly, 19-cv-01383DCN.
5
held that several of Hennelly’s allegedly defamatory statements were inactionable. Now,
the only remaining allegedly defamatory statements are that McGlothlin, as owner of
United, engaged in “documented corruption” related to the McDonnell scandal and that
McGlothlin “gave the corrupt Governor McDonald [sic] of Virginia[’s] wife a ‘no show’
job at the heart of the ethical and criminal activity.” ECF No. 38 at 18.
On November 21, 2019, McGlothlin filed an unopposed motion for determination
of dispositive motion deadline. ECF No. 60. On November 29, 2019, Hennelly filed his
motion for summary judgment. ECF No. 61. McGlothlin responded on January 13,
2020, ECF No. 65, and Hennelly replied on January 30, 2020, ECF No. 70. McGlothlin
filed a motion for partial summary judgment on December 1, 2019. ECF No. 62.
Hennelly responded on January 15, 2020, ECF No. 67, and McGlothlin replied on
February 3, 2020, ECF No. 71. The motions are all ripe for review.
II. STANDARD
Summary judgment shall be granted if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c). “By its very terms, this standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
“Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Id. at 248. “[S]ummary
judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the
6
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Id. “[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Id. at 249. The court should view the evidence in the light most
favorable to the non-moving party and draw all inferences in its favor. Id. at 255.
III. DISCUSSION
As an initial matter, the court finds McGlothlin’s motion for a deadline for
dispositive motions to be moot, as both parties have filed dispositive motions. While
McGlothlin’s motion seeks partial summary judgment and only addresses the issue of
Hennelly’s liability for McGlothlin’s defamation claim, there is no need for McGlothlin
to file another motion for partial summary judgment on the issue of damages because the
court finds that summary judgment in favor of Hennelly is warranted.
Before diving into the parties’ substantive arguments, the court first addresses an
evidentiary issue raised by McGlothlin. In arguing that McGlothlin is a public figure and
a limited-purpose public figure, Hennelly relies heavily upon news articles. In response,
McGlothlin notes that while the court may consider these articles in its public figure
analysis, the court may not consider the substance of the articles because they are
inadmissible hearsay. ECF No. 65 at 2 n.1. McGlothlin also states that Hennelly failed
to present most of these articles to McGlothlin during McGlothlin’s deposition for
authentication purposes and argues that unauthenticated articles should not be considered
by the court. In response, Hennelly argues that most of the articles are not hearsay
because they are not offered for the truth of the matter asserted but instead to show that
McGlothlin has access to channels of communication. Hennelly also argues that several
7
of the articles are admissible because they either contain statements by McGlothlin,
admissible as party-opponent statements, or because they are verified by McGlothlin’s
corroborating testimony or discovery responses. Finally, Hennelly notes that courts
routinely consider news articles in determining whether a plaintiff is a public figure.
The parties seem to agree that the court can consider news articles for the purpose
of determining whether McGlothlin is a public figure. To the extent the court considers
the substance of a news article, the court will first determine whether the substance of the
article is admissible and can be considered by the court.
Now the court turns to the substantive arguments raised by the parties’ motions.
Because there is overlap in the issues raised by the parties in their respective motions for
summary judgment, the court will discuss the two motions and the issues that they raise
together. Hennelly seeks summary judgment, arguing that (1) McGlothlin is both a
general public figure and a limited-purpose public figure; (2) McGlothlin cannot prove
actual malice or common law malice; and (3) McGlothlin cannot prove the falsity of his
statements. McGlothlin seeks partial summary judgment on Hennelly’s liability for
defamation. He argues that all of the necessary elements of a defamation action in South
Carolina have been established; that McGlothlin is a private figure; and that even if the
court finds McGlothlin to be a public figure, Hennelly acted with actual malice.
“It is well established that tort liability under state law, even in the context of
litigation between private parties, is circumscribed by the First Amendment.” Snyder v.
Phelps, 580 F.3d 206, 217 (4th Cir. 2009), aff’d, 562 U.S. 443 (2011). As such, the court
first considers the relevant First Amendment principles to determine what, if any,
constitutional limitations are imposed upon McGlothlin’s defamation claim. The court
8
then turns to its consideration of the elements of a South Carolina defamation claim. The
court finds that McGlothlin is a private figure, meaning he does not have to prove actual
malice to recover for defamation, but that summary judgment in favor of Hennelly is
warranted because based on the evidence cited, no reasonable jury could find that
Hennelly acted with common law malice.
A. First Amendment Considerations
The court must first determine whether McGlothlin is a public figure, sometimes
referred to as a general-purpose public figure; a limited-purpose public figure; or a
private figure. This determination dictates whether McGlothlin must show that Hennelly
made his statements with actual malice, as public figures may only recover for
defamation upon a showing of actual malice. Tharp v. Media Gen., Inc., 987 F. Supp. 2d
673, 679 (D.S.C. 2013). “[T]he issue of whether the plaintiff is a public figure is a
question of law for the court.” Fitzgerald v. Penthouse Int’l, Ltd., 691 F.2d 666, 669 (4th
Cir. 1982). Deciding whether a particular plaintiff is a public or private figure has been
described as “much like trying to nail a jellyfish to the wall.” Rosanova v. Playboy
Enters., 411 F. Supp. 440, 443 (S.D. Ga.1976). Determining whether McGlothlin is a
public figure requires the court to “look through the eyes of a reasonable person at the
facts taken as a whole.” Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541, 1551 (4th
Cir. 1994) (quotations omitted).
a. General-Purpose Public Figure
Hennelly first argues that McGlothlin is a general-purpose public figure because
he has extensive access to channels of effective communication and because he has
invited attention and comment by virtue of his business, political, and charitable
9
activities. In response, McGlothlin argues that he has not attained the general notoriety in
the community at issue here, Beaufort, South Carolina, to be considered a generalpurpose public figure.
To determine whether a plaintiff is a general-purpose public figure, courts focus
on two considerations. The first is whether the plaintiff “enjoy[s] significantly greater
access to the channels of effective communication and hence ha[s] a more realistic
opportunity to counteract false statements than private individuals normally enjoy.”
Gertz v. Robert Welch, Inc., 418 U.S. 323, 344 (1974). The second, and more important,
consideration is that public figures “have assumed roles of especial prominence in the
affairs of society” and therefore “invite attention and comment.” Id. However, Gertz
cautions that “[a]bsent clear evidence of general fame or notoriety in the community, and
pervasive involvement in the affairs of society, an individual should not be deemed a
public personality for all aspects of his life.” Id. at 352; see also Blue Ridge Bank v.
Veribanc, Inc., 866 F.2d 681, 687 (4th Cir. 1989) (“The attainment of general public
figure status is not to be lightly assumed, even if the plaintiff is involved in community
affairs, and requires clear evidence of such stature.”). Indeed, “[f]ew people . . . attain
the general notoriety that would make them public figures for all purposes.” Waldbaum
v. Fairchild Publications, Inc., 627 F.2d 1287, 1296 (D.C. Cir. 1980); see also Wolston v.
Reader’s Digest Ass’n, Inc., 443 U.S. 157, 165 (1979) (explaining that only a “small
group of individuals who” occupy “a position of such ‘persuasive power and influence’”
are general purpose public figures.”). And as McGlothlin points out, the public figure
inquiry focuses on the plaintiff’s notoriety in the community where the alleged
defamation was published. See Gertz, 418 U.S. at 352 (requiring “general fame or
10
notoriety in the community”); Waldbaum, 627 F.2d at 1295 n.22 (concluding “that
nationwide fame is not required. Rather, the question is whether the individual had
achieved the necessary degree of notoriety where he was defamed i.e., where the
defamation was published”).
The court finds that Hennelly has failed to demonstrate that McGlothlin is a
general-purpose public figure. To show that McGlothlin is a general-purpose public
figure, Hennelly cites to a plethora of evidence, including interviews of McGlothlin that
have appeared in various media outlets, speeches that McGlothlin has given,
McGlothlin’s charitable activities, and McGlothlin’s political involvement. ECF No. 611 at 10–12. Hennelly also argues that McGlothlin “actively courted” public attention
“year after year” by appearing on the covers of several magazines and by attracting the
attention of the press through his business, political, and charitable activities. ECF No.
61-1 at 13. Hennelly cites to various articles that discuss McGlothlin’s leadership of the
United Company, McGlothin’s political activity that, while not limited to, has primarily
been focused in Virginia, and various donations made by McGlothlin that have resulted
in many buildings at Virginia universities and colleges named after McGlothlin.
Based on the evidence presented to the court, the court is not convinced that
McGlothlin has “the widespread power or pervasive influence necessary to affect the
resolution of public issues in a manner which elevates [him] to a general-purpose public
figure.” Blue Ridge Bank, 866 F.2d at 687. While the evidence cited by Hennelly
certainly indicates that McGlothlin is active in various aspects of public life, the court
finds that he does not rise to the level of notoriety required to be a general-purpose public
figure. Tavoulareas v. Piro, 817 F.2d 762, 772 (D.C. Cir. 1987) (finding the plaintiff to
11
be “a highly prominent individual, especially in business circles, but his celebrity in
society at large does not approach that of a well-known athlete or entertainer—apparently
the archetypes of the general-purpose public figure”). As such, the court finds that
McGlothlin is not a general-purpose public figure in Beaufort County, South Carolina.
b. Limited-Purpose Public Figure
Hennelly alternatively argues that McGlothlin is a limited-purpose public figure
both for the purpose of the public controversy over the rezoning of Hilton Head National
and for the purpose of comment on the controversy surrounding the McDonnells (the
“McDonnell scandal”).5 In response, McGlothlin argues that he is not a limited-purpose
public figure with respect to the Hilton Head National rezoning by summarily denying
that four of the five factors discussed below are met. As for the McDonnell scandal,
McGlothlin argues that the allegedly defamatory statements at issue here involve the
dispute over the Hilton Head National rezoning and that Hennelly improperly conflates
the two public controversies.
The Fourth Circuit uses the following five-part test that, if satisfied, establishes
that a person is a limited-purpose public figure:
(1) the plaintiff had access to channels of effective communication; (2) the
plaintiff voluntarily assumed a role of special prominence in a public
controversy; (3) the plaintiff sought to influence the resolution or outcome
of the controversy; (4) the controversy existed prior to the publication of the
defamatory statements; and (5) the plaintiff retained public figure status at
the time of the alleged defamation.
5
To provide some context, Governor McDonnell was convicted of public
corruption after he left office, and his conviction was subsequently overturned by the
United States Supreme Court. The Washington Post article that Hennelly read was
published prior to the former governor’s conviction, and Hennelly read the article after
the former governor’s conviction had been overturned.
12
Fitzgerald v. Penthouse Int’l, Ltd., 691 F.2d 666, 668 (4th Cir. 1982). The court first
considers the Hilton Head National rezoning and then considers the McDonnell scandal.
i. Hilton Head National
The court has already held that the rezoning of Hilton Head National is an issue of
public concern, McGlothlin v. Hennelly, 370 F. Supp. 3d 603, 616 (D.S.C. 2019), and
McGlothlin does not dispute that the issue is a public controversy for the purposes of the
limited-purpose public figure test. Therefore, the court begins its analysis the second and
third factors, which the Fourth Circuit calls “[t]he heart of five-factor test.” Carr v.
Forbes, Inc., 259 F.3d 273, 280 (4th Cir. 2001). The Fourth Circuit “sometimes
combine[s]” these two factors “into the question of ‘whether the plaintiff has voluntarily
assumed a role of special prominence in a public controversy by attempting to influence
the outcome of the controversy.’” Id. (quoting Reuber v. Food Chem. News, Inc., 925
F.2d 703, 709 (4th Cir. 1991)). As such, the question is whether McGlothlin voluntarily
assumed a role of special prominence in the Hilton Head rezoning by attempting to
influence the outcome of the rezoning.
Hennelly argues that this case is factually indistinguishable from Carr, in which
the Fourth Circuit found that the plaintiff was a limited-purpose public figure. In Carr,
the plaintiff, Carr, was the president and CEO of a company called Interwest
Management, Inc. (“Interwest”), which developed public infrastructure projects with
public-private financing methods and was controlled by another company called DLR.
259 F.3d at 275. In 1991, Interwest contracted with officials in Apache Junction, Arizona
to build a sewer system. However, the project was unsuccessful. Interwest “apparently
relied on unreasonably optimistic projections and an erroneous database of potential
13
customers,” which caused the project to fail. Id. at 276. The project was financed by
bonds issued by Allstate Insurance Company, and Allstate sued all members of Interwest
for fraud.
In July 1995, South Carolina officials solicited bids to build the Southern
Connector, a highway that would connect I-85 with I-385 in Greenville County.
Interwest created a new corporation, Interwest Carolina, LLP, to bid on the project, and
Interwest Carolina won the bid. Interwest Carolina was also controlled by DLR, and Carr
has no ownership stake in the company. Nevertheless, Carr served as the project
manager and behind-the-scenes facilitator. The Southern Connector project quickly
became controversial—opponents of the project claimed that the project required a local
referendum and filed suit, and state officials became concerned about Interwest
Carolina’s honesty and competency after they learned of Allstate’s fraud suit against
Interwest. In the midst of these controversies, Forbes magazine published an article
about Carr that suggested he was “a shady businessman with a troubled history.” Id. at
277. The article spoke negatively about Carr as well as the Apache Junction project and
the Southern Connector project. As a result of the article, DLR fired Carr, and Carr filed
a defamation suit against Forbes.
In considering whether Carr was a limited-purpose public figure, the Fourth
Circuit focused its attention on the combination of the second and third factors of its test,
asking “whether the plaintiff has voluntarily assumed a role of special prominence in a
public controversy by attempting to influence the outcome of the controversy.” Id. at
280. The Fourth Circuit concluded that Carr did. First, the court explained Carr’s
significant involvement in the two projects, which was the public controversy at issue.
14
The Fourth Circuit noted that while Carr did not own Interwest, “the company was his
brain-child” and he was the president and CEO. Id. The court explained that Carr “was,
for all intents and purposes, solely in charge of the company’s activities” because he
hired employees, selected the company’s projects and planned their operations, and put
together the company’s deals. Id. Carr also made the decisions of Interwest’s
development of Apache Junction and “played a critical role” in forming Interwest
Carolina and supervising the Southern Connector project. Id.
The Fourth Circuit also found that Carr “voluntarily injected himself into the
public debate” because Carr attended public meetings, spoke out in favor of the Apache
Junction project, wrote editorials in the local press, and was quoted in local media. Id. at
281. And while Carr’s role in South Carolina was not quite as public, “it [was]
uncontroverted that, at least behind the scenes, he managed the Southern Connector
project in much the same way as he had managed the Apache Junction project.” Id. Carr
negotiated with South Carolina public officials, was instrumental in creating the Southern
Connector bid, and played a dominate role in building the Interwest Carolina team. As
such, the Fourth Circuit concluded that “[i]f not the only force behind the project in South
Carolina, Carr was clearly a strong and influential one.” Id. Considering all of these
facts together, the Fourth Circuit held that Carr’s “acts created much of the controversy
discussed in the [Forbes] article, and he voluntarily injected himself into much of the
public imbroglio surrounding these projects.” Id.
Here, McGlothlin is United Company’s sole shareholder, has been the chairman
of its board since the company was formed, and serves as the company’s CEO.
McGlothlin Depo. 8:11–9:12. United Company is the parent company of Scratch Golf,
15
which is the company that submitted the rezoning application for Hilton Head National.
In terms of McGlothlin’s involvement with Hilton Head National and the rezoning
application, McGlothlin admitted that he was involved in the decision to try to rezone
Hilton Head National, but he also stated that he was not involved in the rezoning
application nor did he approve the application. McGlothlin Depo. 99:12–16; 102:1–6.
Indeed, The Island Packet article noted that “[w]hile McGlothlin maintains a financial
and personal interest in the [golf] course—Hilton Head National was the first golf course
he was involved in developing—the daily operations and decision-making related to the
proposed redevelopment fell to [Martin] Kent[, the president of United Company,] and
[Bill] Palmer[, the president of Scratch Golf].” ECF No. 1-2 at 7.
Moreover, McGlothlin did not attend any meetings about the rezoning in Beaufort
County. McGlothlin Depo. 99:6–8. McGlothlin called Sommerville in May 2017 and
“expressed the hope” that Sommerville would support the request for rezoning,
Sommerville Aff. ¶¶ 2, 4–5, but this was the only time McGlothlin spoke to Mr.
Sommerville about the rezoning application. McGlothlin Depo. 98:16–22. In addition,
there is no evidence in the record that McGlothlin was ever quoted in the media about the
rezoning during the controversy or published any editorials or the like about the issue.
The court finds these facts to be dissimilar from those in Carr. While Carr and
McGlothlin held the same or similar positions in their respective companies, Carr was
much more involved in the day-to-day operations of the projects at issue—Carr planned
the Apache Junction project and served as the project manager for the Southern
Connector project. Here, McGlothlin was not involved in the rezoning application.
While McGlothlin did reach out to a public official to garner support for the rezoning, he
16
only did so once, compared to Carr’s multiple negotiations with South Carolina public
officials. Another point of contrast is that McGlothlin did not attend any meetings in
Beaufort County, and there is no evidence in the record to suggest that he ever published
any editorials or the like, while Carr attended local meetings about the Apache Junction
project, wrote editorials in the local press, and spoke out in favor of the project. While
Carr’s involvement in the Southern Connector project was behind the scenes, as Hennelly
argues McGlothlin’s involvement was here, the Fourth Circuit also considered Carr’s
very public involvement in the Apache Junction project to conclude that he was a limitedpurpose public figure. As such, the court is unconvinced that behind-the-scenes
involvement alone is sufficient to find that a person is a limited-public purpose figure,
especially when the relevant inquiry is whether the person “thrust[ed] himself into the
forefront of public debate.” Carr, 259 F.3d at 278.
In sum, while McGlothlin clearly had some involvement in the Hilton Head
National rezoning, the evidence before the court does not show that he “voluntarily
injected himself into much of the public imbroglio surrounding” the controversy. See id.
at 281. Having found that the second and third factors of the five-part test are not met
here, the court declines to consider the other factors and finds that McGlothlin is not a
limited-purpose public figure for the purpose of the Hilton Head rezoning.
ii. McDonnell Scandal
Hennelly also argues that McGlothlin is a limited-purpose public figure for
purposes of the McDonnell scandal. Hennelly explains that while his comments
primarily addressed the Hilton Head National rezoning, they also referenced the
McDonnell scandal. Hennelly argues that an individual who associates himself with a
17
high-profile politician bears the risk of public comment on that relationship. In response,
McGlothlin argues that the public controversy at issue is the Hilton Head National
project, not the McDonnell scandal, and that because this litigation is focused on the
Hilton Head National project, any public figure status based on the McDonnell scandal is
improper.
In considering whether a person is a limited-purpose public figure, the court must
first determine “whether a public controversy gave rise to the defamatory statement.”
Carr, 259 F.3d at 278.6 That determination “requires review of the scope of the alleged
defamatory statements and the facts surrounding them.” Id. at 279. The Fourth Circuit
has explained that “‘public controversy’ is a legal term of art; the term only encompasses
a dispute ‘that in fact has received public attention because its ramifications will be felt
by persons who are not direct participants.’” Id. (quoting Foretich, 37 F.3d at 1554). The
parties do not seem to dispute that the McDonnell scandal is a public controversy; rather,
they disagree over when the McDonnell scandal “gave rise to the defamatory statement.”
The remaining allegedly defamatory statements in this action are that McGlothlin,
as owner of United, engaged in “documented corruption” related to the McDonnell
scandal and that McGlothlin “gave the corrupt Governor McDonald [sic] of Virginia[’s]
wife a ‘no show’ job.” ECF No. 38 at 18. McGlothlin argues that “[o]nce that specific
public controversy has been identified, the applicable defamatory statement must have
been germane to the plaintiff’s participation in it.” ECF No. 65 at 7. In so arguing he
6
The court did not address this step in its analysis of McGlothlin’s limitedpurpose public figure status as related to the Hilton Head National rezoning because the
parties do not appear to dispute that the project was a “public controversy” that “gave rise
to the defamatory statement.”
18
relies on Waldbaum v. Fairchild Publications, Inc., which states that “the alleged
defamation must have been germane to the plaintiff’s participation in the controversy.”
627 F.2d 1287, 1298 (D.C. Cir. 1980). However, this “germaneness” requirement is part
of Waldbaum’s three-part test to determine if a plaintiff is a limited-purpose public
figure. See id. at 1298; see also Wells v. Liddy, 186 F.3d 505, 538 (4th Cir. 1999)
(acknowledging hat the D.C. Circuit uses the three-part Waldbaum test, which includes
considering whether the allegedly defamatory statement concerned the public
controversy). As discussed above, the Fourth Circuit employs its own five-part test to
determine if a plaintiff is a limited-purpose public figure. That test does not have a
germaneness requirement that is comparable to Waldbaum’s test. Indeed, the court has
been unable to find any case within the Fourth Circuit that applies Waldbaum’s
germaneness requirement. As such, the court finds it inappropriate to consider this
decision.
Returning to the relevant law of this circuit, the court must determine “whether a
public controversy gave rise to the defamatory statement.” Carr, 259 F.3d at 278. The
controversy that caused Hennelly to make the statements he did was the Hilton Head
National rezoning. Read in context, Hennelly’s statements about the McDonnell scandal
were to note that the Island Packet “left out a few pertinent facts” about the Hilton Head
National controversy and to highlight the Island Packet’s “refus[al] to print the
documented corruption” and the fact that McGlothlin gave Governor McDonnell’s wife a
“no show job at the heart of the ethical and criminal activity.” ECF No. 1-2; 1-3.
However, Hennelly’s statements themselves were about the McDonnell scandal.
Therefore, the court finds it plausible to consider both the Hilton Head National project
19
and the McDonnell scandal to be public controversies that gave rise to Hennelly’s
allegedly defamatory statements.
Nevertheless, even assuming without deciding that the McDonnell scandal is the
public controversy used to determine whether McGlothlin is a limited-purpose public
figure, the court finds that McGlothlin is not a limited-purpose public figure in that
context either. Hennelly cites to news articles that discussed the job that McGlothlin
gave Mrs. McDonnell, that identified McGlothlin as a potential defense witness in the
criminal prosecution of Governor McDonnell, and that described McGlothlin as having a
close relationship with the McDonnells. However, focusing again on the heart of the
Fourth Circuit’s limited-purpose public figure test, this evidence does not show that
McGlothlin voluntarily assumed a role of special prominence in the McDonnell scandal
or that he sought to influence the resolution or outcome of the McDonnell scandal.
Hennelly argues that McGlothlin’s close association with the McDonnells warrants a
limited-purpose public figure status, relying on Jankovic v. Int’l Crisis Grp. to argue that
McGlothin’s “close political relationship” with the McDonnells “carried a risk of public
scrutiny.” 822 F.3d 576, 587 (D.C. Cir. 2016). However, in Jankovic, the plaintiff did
not merely have “close political relationship” to the politician. Instead, the evidence
showed that “he was was [sic] an outspoken supporter, financial backer, and advisor” of
the politician, he published articles in newspapers about the public controversy, and he
“engaged in conduct that he knew markedly raised the chances that he would become
embroiled in a public controversy.” Id. Here, there is no evidence of McGlothlin
inserting himself into or speaking out about the McDonnell scandal. Instead, the
evidence merely shows that McGlothlin had a relationship with the McDonnells.
20
Similarly, in the other case relied upon by Hennelly, the plaintiff was not a limitedpurpose public figure merely because he went on “weekend trips” with an infamous
motorcycle gang. Marcone v. Penthouse Int’l Magazine For Men, 754 F.2d 1072, 1086
(3d Cir. 1985). Instead, the Third Circuit found that the plaintiff was a limited-purpose
public figure because the plaintiff’s “voluntary connection with motorcycle gangs—
including his meetings at the Castle with Frey and his occasional weekend trips with
them—in conjunction with the intense media attention” warranted such a status.
In sum, even if the McDonnell scandal were to be considered as a public
controversy for the purposes of the limited-purpose public figure analysis, the court finds
that McGlothlin is not a limited-purpose public figure in the McDonnell scandal. As
such, McGlothlin is a private figure and need not prove actual malice to recover for
defamation.
B. South Carolina Defamation Law
Having determined that McGlothlin is a private figure, the court now turns to
consider the elements of McGlothlin’s South Carolina defamation claim. McGlothlin
argues that he has established each element of a South Carolina defamation action.
Hennelly argues that summary judgment is warranted in his favor because McGlothlin
cannot prove falsity and because McGlothlin cannot prove common malice. In addition,
in response to McGlothin’s motion, Hennelly also argues that McGlothin’s purported
damages of $110,395,000.00 are unsupported by the record.
In order for a private plaintiff to bring a successful claim for defamation under
South Carolina law, the plaintiff must prove: “(1) a false and defamatory statement was
made; (2) the unprivileged publication of the statement was made to a third party; (3) the
21
publisher was at fault; and (4) either actionability of the statement regardless of special
harm or the publication of the statement caused special harm.” Kunst v. Loree, 817
S.E.2d 295, 302 (S.C. Ct. App. 2018), reh’g denied (Aug. 16, 2018). Several
presumptions accompany these elements. First, common law generally presumes that the
statement is false. Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 506
(S.C. 1998). In addition, when a statement is actionable per se, the defendant is
presumed to have acted with common law malice,7 and the plaintiff is presumed to have
suffered general damages. Erickson v. Jones St. Publishers, LLC, 629 S.E.2d 653, 664
(S.C. 2006). As the Supreme Court of South Carolina has explained, “libel is a written
defamation” and “essentially all libel is actionable per se.” Id. Therefore, in a
defamation suit involving libel in which the plaintiff is a private figure, both common law
malice and general damages are presumed.
However, there are three important caveats that apply when the allegedly
defamatory statement relates to a matter of public concern. First, the presumptions of
common law malice and general damages do not apply, and instead the plaintiff must
prove both common law malice and actual damages. Id. at 665. Second, the presumption
that the statement is false does not apply, and the plaintiff must prove that the statement
is false. Id. Finally, the plaintiff cannot recover punitive damages unless he proves by
clear and convincing evidence that the defendant acted with constitutional actual malice.
Id.
7
Common law malice, as opposed to negligence, is the standard of liability for
private figure plaintiffs in South Carolina. Floyd, 2007 WL 4458924, at *3 n.3 (D.S.C.
Dec. 17, 2007). The use of this standard has faced some criticism but nevertheless
remains the law of South Carolina. Id.
22
Notably, the Erickson court discussed these caveats as applying to cases in which
the defendant was part of the media. Id. It appears that South Carolina courts have not
considered whether the caveats apply in the context of a nonmedia defendant. However,
in describing these caveats, the Erickson court relies on federal law. Id. (citing Gertz,
418 U.S. at 346–50; Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775–79
(1986)). In Snyder, the Fourth Circuit found any distinction between media defendants
and non-media defendants in defamation actions to be meaningless. 580 F.3d at 219
n.13. Therefore, the court finds that the caveats articulated in Erickson apply here, 8
where the defendant is not part of the media and there is no dispute that the matter at
issue here is one of public concern. As such, in order to succeed on his defamation claim,
McGlothlin must prove common law malice, actual damages, and that Hennelly’s
statements were false. See Tharp, 987 F. Supp. 2d at 681–82 (“[B]ecause Plaintiff is a
private figure plaintiff and the alleged defamatory statements were of public concern,
South Carolina state law requires the Plaintiff ‘to plead and prove common law malice,
demonstrate the falsity of the statements, and show actual injury in the form of general or
special damages.’” (quoting Floyd, 2007 WL 4458924, at *3)). The court finds that no
reasonable jury could find that Hennelly acted with common law malice and declines to
address whether McGlothlin suffered actual damages and whether Hennelly’s statements
were false.
8
Hennelly clearly agrees with this position. ECF No. 61-1 at 42 n.132. With
regard to McGlothlin’s position, he agrees that he must prove common law malice and
actual damages. ECF No. 62-1 at 8–9; ECF No. 71 at 4–5. He never discusses which
party bears the burden of proving falsity; however, it would be illogical and a distinction
without meaning for McGlothlin to claim that only two of the three caveats apply here.
23
Common law malice is a concept that is distinct from actual malice. Hainer v.
Am. Med. Int’l, Inc., 492 S.E.2d 103, 106 n.7 (S.C. 1997). Actual malice means “that the
defendant made the statement ‘with knowledge that it was false or with reckless disregard
of whether it was false or not.’” Reuber v. Food Chem. News, Inc., 925 F.2d 703, 714
(4th Cir. 1991) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964)).
Common law malice “can mean the defendant acted recklessly or wantonly, or with
conscious disregard of the plaintiff’s rights.” Hainer, 492 S.E.2d at 107. The term “has
also been defined as meaning ‘the defendant was actuated by ill will in what he did, with
the design to causelessly and wantonly injure the plaintiff; or that the statements were
published with such recklessness as to show a conscious indifference towards plaintiff’s
rights.’” Id. (quoting Jones v. Garner, 158 S.E.2d 909, 914 (S.C. 1968)). “Whether
malice is the incentive for a publication is ordinarily for the jury to decide.” Murray v.
Holnam, Inc., 542 S.E.2d 743, 751 (S.C. Ct. App. 2001). “Proof that statements were
published in an improper and unjustified manner is sufficient evidence to submit the issue
of actual malice to a jury.” Id.
As an initial matter, Hennelly argues that McGlothlin’s failure to discuss or even
mention the issue of common law malice in his motion for summary judgment is fatal to
his motion. Hennelly notes that McGlothlin addresses constitutional actual malice, but
that the two standards are distinct, meaning discussion of one does not constitute
discussion of the other. In response, McGlothlin claims that he “made reference, and
cited authority related, to the necessary components of malice, including common law
malice” in his motion and in his response to Hennelly’s motion, citing to those portions.
ECF No. 71 at 4 n.2 (citing ECF No. 62 at 9–10 and ECF No. 65 at 8 n.4).
24
Turning first to McGlothlin’s motion, McGlothlin cites to pages 9 and 10 for his
discussion of common law malice. However, that portion of his motion is titled “The
Defendant made his false and defamatory statements with actual malice” and only
discusses constitutional actual malice. ECF No. 62-1 at 9–10. Indeed, the term
“common law malice” does not appear at all in McGlothlin’s motion for summary
judgment.
In the portion McGlothlin cites to within his response to Hennelly’s motion,
which is just one footnote, McGlothlin stated that “[t]he burden of establishing actual
malice is much higher than common law malice. Holtzscheiter v. Thomson Newspapers,
Inc., 506 S.E.2d 497, [503] n.9 (S.C. 1998). Since the Defendant acted with actual
malice when he made the false and defamatory statements at issue, a discussion on
common law malice here is moot.” ECF No. 65 at 8 n.4. This statement of law is not
quite accurate. As the magistrate judge in Fields v. Richland Cty. Sheriff’s Dep’t
explained:
In other words, common law actual malice is more broadly defined than the
actual malice used in New York Times and, thus, actions that fall within the
New York Times definition, i.e., that the defendant made a statement with
reckless disregard of its falsity, also fall within the common law actual
malice definition, i.e., that the defendant’s actions were reckless or wanton
and consciously indifferent to plaintiff’s rights, but not necessarily vice
versa.
2018 WL 4560538, at *6 (D.S.C. May 25, 2018), report and recommendation adopted,
2018 WL 4001830 (D.S.C. Aug. 22, 2018). In other words, there is overlap between
constitutional actual malice and common law malice: recklessness. Moreover, there are
two definitions of common law malice: recklessness or acting with ill will. Hainer, 492
S.E.2d at 107. While there is overlap with regard to recklessness, the Supreme Court has
25
cautioned that “[a]ctual malice under the New York Times standard should not be
confused with the concept of malice as an evil intent or a motive arising from spite or ill
will.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991). Therefore, to
the extent a plaintiff seeks to prove common law malice by showing that “the defendant
was actuated by ill will in what he did, with the design to causelessly and wantonly injure
the plaintiff,” see Hainer, 492 S.E.2d at 107, that plaintiff cannot rely on constitutional
actual malice.
In light of the “recklessness” overlap between the two types of malice, the court
looks to McGlothlin’s argument about recklessness in his discussion of constitutional
actual malice to analyze any argument about common law malice. McGlothlin does,
albeit very briefly, argue that Hennelly acted with reckless disregard for the truth.9 In a
footnote in his motion for summary judgment, McGlothin argues, without citation to any
evidence, that “even circumstantial evidence that the Defendant took no steps to insure
[sic] the accuracy and correctness of internet research has been previously found by this
Court to be sufficient to show reckless disregard for the truth.” ECF No. 62-1 at 10 n.1.
In so arguing, McGlothlin relies on Floyd v. WBTW, 2007 WL 4458924 (D.S.C. Dec.
17, 2007). In Floyd, the defendant news station ran a story in which it reported that the
plaintiff’s medical license had been suspended due to addiction to alcohol or drugs. 2007
WL 4458924 at *1. The defendants submitted affidavits to show that the incorrect news
story was the result of a simple transcription error, and there was circumstantial evidence
9
McGlothin’s argument about actual malice focuses primarily on the alternative
definition of actual malice: knowledge of falsity. However, McGlothin makes no
argument nor provides any legal authority to suggest that a showing of knowledge of
falsity constitutes common law malice under South Carolina law.
26
that no precautionary measures were in place to protect again this type of reporting error.
As such, the court concluded that “[b]ecause there is circumstantial evidence that
Defendants took no steps to ensure the web story’s accuracy or correctness, a reasonable
juror might conclude that Defendants published the statement concerning Plaintiff with
reckless disregard for the truth.” Id. at *4.
That is not what happened here. As Hennelly points out, the uncontroverted
evidence shows that Hennelly made his statements because of his research, not in spite of
failing to conduct research to ensure his statements’ accuracy. Hennelly researched
McGlothlin and read a number of articles about McGlothlin prior to making his
statements. Hennelly Depo. 49:11–16. Hennelly explained that “[t]here were numerous
statements in many of those articles relating to this particular problem, which was an
ethic’s [sic] violation, as [he] understood the articles, in the State of Virginia. And there
were several people involved with that ethic’s [sic] violation.” Henelly Depo. 50:13–18.
Moreover, in his affidavit, Hennelly attested to the following:
I viewed these newspapers as credible sources, especially the Washington
Post. I had relied on these newspapers as sources of information in the past.
I had no reason to doubt the veracity of the information I read nor the
accuracy of the statements that I posted. Indeed, all of my comments were
based on evidence I believed to be truthful.
Hennelly Aff. ¶ 14. Not only does McGlothlin fail to point to any “circumstantial
evidence that the [Hennelly] took no steps to [ensure] the accuracy and correctness of
internet research,” ECF No. 62-1 at 10 n.1, but the evidence presented to the court
indicates just the opposite—that Hennelly researched McGlothlin, read multiple
newspaper articles about the issues, and had no reason to doubt the veracity of the
27
information he read.10 As such, McGlothin’s reliance on Floyd is misplaced, and in
combination with his failure to cite to any evidence, the court concludes that no
reasonable jury could find that Hennelly’s actions were reckless.
Turning to McGlothin’s explicit common law malice argument, McGlothlin fails
to present any argument in his motion for summary judgment as to common law malice;
however, he does make an argument about common law malice in his reply brief. The
court generally declines to consider arguments raised for the first time in a reply brief.
Local Rule 7.07 permits the filing of a reply when “a party desir[es] to reply to matters
raised initially in a response to a motion.” Local Civ. Rule 7.07 (D.S.C.) (emphasis
added); see also Allen v. Enabling Techs. Corp., 2016 WL 4240074, at *4 (D. Md. Aug.
11, 2016) (“The purpose of a reply is to address counter-points made in an opposition. In
general, a reply memorandum should be focused, direct, and include no new argument.”
(internal citation omitted)). Nevertheless, because the court prefers to resolve issues on
their merits as opposed to based on default, the court will consider McGlothlin’s
argument about common law malice made in his reply brief.
McGlothlin argues that, based on excerpts from Hennelly’s deposition, Hennelly
clearly understood the gravity of falsely accusing someone of committing a crime or
ethical violation but did not hesitate to accuse McGlothlin of both, evincing ill will,
recklessness, and/or conscious indifference to McGlothlin’s rights. McGlothlin points to
a portion of Hennelly’s deposition in which Hennelly was asked if he would “agree that
calling people corrupt might damage those people’s reputation,” Hennelly responded
“[n]ot necessarily.” Hennelly Depo. 54:19–21. It’s not clear to the court how Hennelly’s
10
In other words, Hennelly did not rely on “fake news.”
28
disagreement on whether calling someone corrupt might damage their reputation evinces
ill will or reckless or conscious disregard to McGlothin’s rights. If Hennelly had agreed
that calling someone corrupt does damage a person’s reputation and then admitted to
calling McGlothlin corrupt, that could possibly show that Hennelly’s statement was made
with ill will, recklessness, or conscious disregard to McGlothlin’s rights. But the fact that
Hennelly does not believe that calling someone corrupt necessarily damages a person’s
reputation suggests the opposite of what McGlothlin must prove to show common law
malice.
McGlothlin also relies on the following exchange to show common law malice:
Q: So you’d be okay with people stating that you’re a criminal in a public
forum?
A: No.
Q: Why not?
A: It’s not true.
...
Q: And, as discussed multiple times, you had no information that would
lead you to believe that either [Mr. McGlothlin] or [Mr. Kent] had ever been
convicted of a crime?
A: I answered that question, yeah.
Hennelly Depo. 70:1–5; 14–18. Again, the court is not clear how this is evidence of
Hennelly acting with ill will, recklessly, or with conscious disregard to McGlothlin’s
rights. Hennelly never stated that McGlothlin was convicted of a crime,11 so the fact that
Hennelly had no information that led him to believe that McGlothlin was convicted of a
crime is irrelevant. Finally, McGlothlin notes in a footnote that “[m]any of the
Defendant’s responses during his deposition pushed the bounds of credulity.” ECF No.
11
The only reference to crime in Hennelly’s statements is that “McGlothlin gave
the Governors [sic] wife a no show job at the heart of the ethical and criminal activity.”
ECF No. 1-3 at 3. No reasonable juror could understand this statement to mean that
McGlothlin had been convicted of a crime.
29
71 at 5. However, the court cannot make credibility determinations during its
consideration of motions for summary judgment. Jacobs v. N.C. Admin. Office of the
Courts, 780 F.3d 562, 569 (4th Cir. 2015). Therefore, whether Hennelly’s deposition
testimony “pushed the bounds of credulity” plays no role in the court’s analysis.
This evidence is the only evidence that McGlothlin cites to show that Hennelly
acted with common law malice. The Federal Rules of Civil Procedure provide that when
considering a motion for summary judgment, “[t]he court need consider only the cited
materials.” Fed. R. Civ. P. 56(c)(3). Moreover, as the Fourth Circuit has explained,
judges “are not like pigs, hunting for truffles buried in briefs. Similarly, it is not our job
to wade through the record and make arguments for either party.” Hensley on behalf of
N. Carolina v. Price, 876 F.3d 573, 581 (4th Cir. 2017). Based on the evidence and
arguments presented to the court, no reasonable jury could find that Hennelly acted with
common law malice. As such, there is no genuine issue of material fact as to this
element, and summary judgment is warranted in favor of Hennelly.12
12
Because summary judgment is warranted in favor of Hennelly on McGlothlin’s
defamation claim, summary judgment is also warranted on McGlothlin’s claim seeking
injunctive relief. That claim asks the court to permanently enjoin Hennelly from making
any more defamatory statements, and having found that McGlothlin’s defamation claim
fails, any injunctive relief for any future defamatory statements would be based on pure
conjecture.
30
IV. CONCLUSION
For the reasons set forth above, the court FIND AS MOOT the motion for
determination of a dispositive motion deadline, GRANTS Hennelly’s motion for
summary judgment, and DENIES McGlothlin’s motion for partial summary judgment.
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
April 15, 2020
Charleston, South Carolina
31
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