Clark v. Viacom, International, Inc. et al
Filing
124
MEMORANDUM signed by Chief Judge William J. Haynes, Jr on 5/13/2014. (Attachments: # 1 Attachment Text Searchable Memo)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
COREY D. CLARK and
JAERED N. ANDREWS,
Plaintiffs,
v.
VIACOM INTERNATIONAL, INC.,
VIACOM MEDIA NETWORKS,
MTV NETWORKS ENTERPRISES,
INC., JIM CANTIELLO and
JOHN DOES 1-20,
Defendants.
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Case No. 3:12-0675
Chief Judge Haynes
MEMORANDUM
Plaintiff, Corey D. Clark, a Tennessee citizen and original plaintiff, filed this action under
28 U.S.C. § 1332, the federal diversity statute, against the Defendants: Viacom International, Inc.,
Viacom Media Networks, MTV Networks Enterprises, foreign corporations, and Jim Cantiello, a
New York citizen. Plaintiff asserts claims for libel and defamation arising out of Defendants’
published statements about Plaintiff’s disqualification from the American Idol television program.
In earlier proceedings, the Defendants filed a motion to dismiss (Docket Entry No. 16) that
the Court denied as moot when Plaintiff filed his first amended complaint adding allegations and
claims. When the Defendants renewed their motion to dismiss Plaintiff’s first amended complaint,
Plaintiff moved to file a second amended complaint (Docket Entry No. 54) with additional Plaintiffs,
that the Court granted (Docket Entry No. 56). In the second amended complaint, Plaintiff Clark
added three plaintiffs including Jaered N. Andrews an Ohio citizen and asserted claims for false light
1
invasion of privacy; commercial disparagement; right of publicity; and negligent hiring or retention.
The Defendants’ filed a motion to reconsider the Order allowing the second amended complaint.
(Docket Entry No. 58). The Court granted the motion to reconsider, setting aside the Order granting
leave to file the second amended complaint (Docket Entry No. 68) and reinstated the Defendants’
motion to dismiss. Id. Plaintiffs filed a motion for order altering allegedly erroneous statements of
fact contained in Court’s Memorandum (Docket Entry No. 75) and motion to vacate (Docket Entry
No. 87). The Court granted the motion to reconsider, in part (Docket Entry No. 99) to allow
Plaintiffs to file a revised second amended complaint (Docket Entry No. 104) with undisputed timely
claims. The parties then stipulated to another revision of Plaintiffs’ second amended complaint.
(Docket Entry Nos. 105 and 106).
A. Analysis of the Revised Second Amended Complaint1
In late October and early November 2002, Plaintiff auditioned in Nashville, Tennessee for
the Second Season of American Idol, a nationally televised singing competition. (Docket Entry No.
106, Second Amended Complaint at ¶ 80). On November 4, 2002, Plaintiff was selected as one of
234 singers nationwide to compete in the “Hollywood Rounds” of American Idol. Id. Plaintiff was
subsequently selected as one of 32 semi-finalists. Id. at ¶ 100.
On March 31, 2003, the Smoking Gun website published a story that Plaintiff Clark had been
arrested on October 12, 2002, by police in Topeka, Kansas. Id. at ¶ 123. This Smoking Gun article
is attached as an exhibit to the Second Amended Complaint and includes, in pertinent part:
•
An “American Idol” finalist is facing trial next month on charges he assaulted
1
This is actually Plaintiff’s fourth amended complaint in this action. See Docket Entry
Nos. 1, 20, 55, 104, 106, with the last three being referred to by Plaintiffs as their second
amended complaint . Plaintiffs added or deleted allegations in each version.
2
his teenage sister and battled with cops while resisting arrest.
•
Corey Clark, 22, was arrested last October following a disturbance in his
family’s Topeka, Kansas home. Neighbors called police after hearing a girl
yelling inside the Clark residence on SW 33rd Terrace. One witness told
TSG that while he heard loud noises coming from the home, “what finally
caught my attention was a lot of screaming. Then I knew somebody was
getting hurt.”
•
[Clark] was booked into the Shawnee County jail and charged with a variety
of misdemeanors, including battery on four law enforcement officers, battery
on his sister, and endangering a child. After three days in custody, Clark was
released on bond, a condition of which prohibited him from contacting his
sister.
•
The complaint, which modified the original police counts, charged Clark with
resisting arrest, battery upon his sister, and criminal restraint.
•
TSG will venture a guess that Fox knew about Clark’s rubber checks, but were
unaware that he had been popped for battering his little sister (if true, not
exactly “Idol” behavior).
(Docket Entry No. 106-7 at 42-44, Exhibit 7 to Second Amended Complaint, Smoking Gun article)
(emphasis added).
Attached as exhibits to Plaintiffs’ Second Amended Complaint is the official Arrest Report
by responding officers who investigated a “domestic dispute.” (Docket Entry No. 106-4 at 20, Arrest
Report). One officer described this “domestic dispute” as an argument between Clark and his sister,
Alecia, during which “Cor[e]y slapped Alecia on the face,” “put his arm around Alecia’s neck and
proceeded to wrestle her to the ground” and “continued being physically abusive to Alecia and yelled
at her.” (Docket Entry No. 106-5 at 50, Supplemental Offense Report of Officer Soden). Another
officer reported that Clark’s older sister, Ajia, “came to the case residence because her sister Alicia
Clark [] had called her and said their older brother Corey D. Clark [] was hitting her” and that
“next-door neighbor DeAndre Anderson [] advised that he could hear the two fighting next door and
3
could hear the female yelling ‘stop hitting me, let me go.’” Id. at 53, Supplemental Offense Report
of Officer Harden. A third arresting officer cited one of the complainants who “heard a
disturbance…that sounded as if an assault and battery had been occurring” and that “the disturbance
had been occurring between Corey and Alicia.” Id. at 56. In his Supplemental Offense Report,
Officer Evans, a fourth officer stated that, “I was also told that the victim stated she was struck and
held down by her older brother Cory [sic] Clark.” Id. at 79, Supplemental Offense Report of Officer
Grayson.
On December 4, 2002, the State of Kansas charged Plaintiff Clark with three (3)
misdemeanors: Obstructing Legal Process or Official Duty; Battery – Physical Contact; and Criminal
Restraint. On June 12, 2003, Plaintiff Clark entered a plea agreement pleading guilty of Obstructing
Legal Process or Official Duty, but with the other charges were dismissed. (Docket Entry No. 106-4
at 30, 76-79, Exhibit 4 to Second Amended Complaint, Criminal Docket, Consent to Enter Plea).
On December 24, 2002, three (3) weeks after Kansas charges were filed and two (2) months
after his arrest, Plaintiff Clark completed and signed the American Idol Participant Background
Questionnaire Form (the “Questionnaire”). (Docket Entry No. 106-5 at 3, 30). By signing the
Questionnaire, Plaintiff Clark expressly recognized that “any discrepancies, misstatements,
omissions, and/or falsifications [in the Questionnaire] will be cause for disqualification.” Id. at 30.
The Questionnaire specifically asked, “Have you ever been detained, arrested, or convicted of a
felony or misdemeanor offense either as a juvenile or an adult?” (Docket Entry No. 106, Second
Amended Complaint at ¶ 111). Plaintiff Clark responded “No.” (Docket Entry No. 106-5 at 3, 30,
Questionnaire). Clark then certified that “all statements made in this Background Investigation Form
are true and complete.” Id. at 30.
4
The Smoking Gun website later posted an update that “[Clark] was removed from [American
Idol] by Fox television and the show’s producer.” (Docket Entry No. 106-7 at 46, Smoking Gun
article). The Fox television network and American Idol producers issued a press release that stated,
in part:
Due to events that have recently come to light, American Idol participant Corey Clark
has been removed from the contest….Corey withheld information about a prior
arrest which, had it been known, might have affected his participation in the show.
Due to his failure to disclose, compounded by an error in a police report which
misspelled Corey’s name, the incident was not discovered during the background
check. The producers and network feel that Corey’s behavior
warrants his disqualification.
(Docket Entry No. 106, Second Amended Complaint at ¶ 130) (emphasis added). On May 16, 2005,
three years after Plaintiff’s disqualification, American Idol producers issued another statement,
confirming that “Corey Clark was removed from the show for failing to disclose his criminal arrest
history….” (Docket Entry No. 1, Complaint at ¶ 88; Docket Entry No. 20 Amended Complaint, at
¶ 320; Docket Entry No. 55, Prop. Second Amended Complaint, at ¶ 349) (ellipsis in original)
(emphasis added).2
American Idol’s May 2005 statement also responded to Plaintiff Clark’s allegations that
during the Season Two production, he had engaged in a sexual relationship with American Idol
judge Paula Abdul. (Docket Entry No. 106, Second Amended Complaint at ¶ 135). American Idol
subsequently commissioned two law firms to investigate Clark’s allegations and the firms concluded
that, “Mr. Clark’s allegations that he and Ms. Abdul had a sexual relationship have not been
substantiated by any corroborating evidence or witnesses, including those provided by Mr. Clark,
2
The allegations in Clark’s earlier complaints are matters of public record and are,
therefore, appropriate for consideration on a motion to dismiss. See Wyser-Pratte Mgmt. Co.,
Inc. v. Telxon Corp., 413 F.3d 553, 560 (6th Cir. 2005).
5
and Ms. Abdul expressly denies that any such relationship ever existed.” (Docket Entry No. 106-6
at 97, Press Release).
About the time of Plaintiff Clark’s allegations about Abdul, MTV News correspondent Gil
Kaufman published several articles in 2005 about Plaintiff Clark. (Docket Entry No. 106-2, at 42-43,
46-47, 49-50, Kaufman articles). Plaintiff Clark describes these articles as “the objective set of facts”
regarding his disqualification from American Idol. Id. at 42-43, 46-47, 49-50; see also (Docket Entry
No. 20, Amended Complaint at ¶ 330). Plaintiff Clark’s challenges the following statements in
Kaufman’s articles:
•
“Clark was booted from ‘Idol’ when producers learned that he had been
charged with resisting arrest and misdemeanor assault against his sister,”
(Docket Entry No. 106-2 at 42);
•
“Clark, 24, was booted from ‘Idol’ for not revealing to judges that he was
facing criminal charges of battery and resisting arrest following an alleged
assault on his sister,” id. at 46; and
•
“Clark was booted from the show for failing to fully disclose his arrest
record, which included charges of resisting arrest and assault on his sister,”
id. at 50.
Plaintiff Clark also attached as exhibits to the revised complaint other articles about his
disqualification from the American Idol show:
•
The Tennessean, May 14, 2003 – “Contestant Corey Clark was bounced after
thesmokinggun.com reported he was arrested on charges he assaulted his
younger sister….Producers said Clark never revealed the arrest to American
Idol,” (Docket Entry No. 106-8 at 64);
•
The Boston Herald, March 24, 2005 – “Finalist Corey Clark got himself
disqualified because he faced assault charges,” id. at 96;
•
The Cleveland Plain Dealer, April 2, 2005 – “In 2003, finalist Corey Clark
lost his slot because he was awaiting trial on assault charges. He withheld
information about the arrest that, had it been known, might have affected his
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participation on the show, Fox said at the time,” id. at 100;
•
The Chicago Sun Times, February 13, 2007 – “[Corey Clark] was disqualified
in 2003 when a prior arrest was revealed. He faced charges of assaulting his
sister and police and pleaded no contest to obstructing the legal process,” id.
at 104; and
•
People Magazine, July 9, 2007 – “He [Clark] was dismissed from Idol for not
revealing a past arrest,” (Docket Entry No. 106-6 at 165-66).
In an attachment to his complaint, Plaintiff Clark identified the following libelous defamatory
statements:
Date
#
7/6/2011
Description of Article and Identifiable
Statements
Bate Stamp
[CDC_00000]
MTV NEWS article entitled Pia Toscano Got a
Record Deal, But How Are The Other Ninth
Place ‘Idols’ Faring [JIM CANTIELLO]
23
• “SEASON TWO: COREY CLARK: Believe it
or not, the controversial CLARK – who was
disqualified for lying about a hairy domestic
dispute and later claimed to have had an affair
with Paula Abdul - was once a part of the
Universal Music Group, (which includes
Interscope Records). His 2005 self-titled debut
album – independently produced but distributed
by Universal - boasted a Black Eyed Peas cameo
and production by one of the top producers at that
time, Scott Storch. Seriously.”
CDC_001828
24
• “Despite widespread coverage of his alleged
Abdul showmance – including an hour long ABC
Primetime Live special called… wait for it…
Fallen Idol – nobody cared about his album. He
said it was because Clear Channel radio stations
were in bed with Idol and refused to play his
single. I say it’s because his music was laughably
bad. Look up “Paulatics” to see what I mean.
Actually, don’t.”
CDC_001828
7
Date
#
Description of Article and Identifiable
Statements
Bate Stamp
[CDC_00000]
25
• Season Three: Camile Velasco Camile is yet
another 9th placer who scored a brief deal with
the Universal family. Strangely, like COREY
CLARK, she worked with the Black Eyed Peas,
too. (I spy an Idol at the 2:21 mark of their
“Bebot” music video!) Alas, with no tall tales
about sleeping with an Idol judge, even less
people cared about her brief music career than
COREY’s. Despite headlining some big concerts
in the Filipino-American community, Camile has
yet to release an album.”
CDC_001828
3/14/2012
MTV NEWS article entitled Jermaine Jones To
Be Booted From American Idol. [GIL
KAUFMAN]
26
• “The seesaw ride of American Idol top 12
finisher Jermaine Jones appears to have run out
after producers found out this week that the
deep-voiced singer apparently misled them about
his criminal past . . .. Jones allegedly concealed
the fact that he was arrested twice last year . . .
The towering singer is just the latest Idol finalist
to run afoul of producers for his rap sheet. During
season two, COREY CLARK was booted for
concealing his arrest record on battery charges, as
was semi-finalist Jaered Andrews, who was sent
home over undisclosed assault charges.”
8
CDC_001837
Date
#
5/24/2012
Description of Article and Identifiable
Statements
Bate Stamp
[CDC_00000]
MTV NEWS article entitled American Idol
Awards: The Highs and Lows of Season 11 [GIL
KAUFMAN ET AL.]
27
• "The COREY CLARK / Frenchie Davis Award
for Past Indiscretions: From the moment he
showed up in the audition episodes, there was
something special about enormous crooner
Jermaine Jones . . . And when the top 12 finisher
got booted for not disclosing his rap sheet, our
suspicions were confirmed."
CDC_001841
(Docket Entry No. 106-2 at 4).
In addition to his libel claim, Plaintiff Clark alleges claims for false light invasion of privacy;
commercial disparagement under the Tennessee Consumer Protection Act; misappropriation of
image or likeness – right of publicity; and negligent hiring and retention. Defendants contend that
these claims are time barred or otherwise fail to state grounds upon which relief can be granted.
B. Jaered N. Andrews
According to the latest revised amended complaint, in late October and early November
2002, Andrews auditioned for the Second Season of American Idol. (Docket Entry No. 106, Second
Amended Complaint at ¶¶ 200-01). Andrews was awarded a “Golden Ticket” to compete in
American Idol’s Hollywood rounds. Id. ¶ 201. On or about December 13, 2002, Andrews was
chosen by the American Idol judges as one of the 32 Semi-Finalist contestants for Season Two. Id.
at ¶ 209. On January 31, 2003, American Idol informed Andrews that he had been disqualified from
American Idol. Id. ¶ 222. Andrews alleges that he was not provided a reason for his disqualification.
Id. Several third party media organizations reported that Andrews had been disqualified after
9
American Idol learned of his involvement in a November 2002 bar fight that resulted in the death
of Thomas Blakely. (Docket Entry No. 106-8). On February 27, 2003, Andrews was charged with
assault in connection with the incident, (Docket Entry No. 106, Second Amended Complaint at ¶
228).
Citing Andrews’s public statements and other reports, several media entities also reported
that Andrews was disqualified from American Idol for his involvement in the November 2002 fight.
Andrews attaches to the revised Complaint the following articles with the alleged statements listed
below:
•
The Sharon Herald, March 1, 2003 – “Andrews said he believed his
involvement [in Blakely’s death] was the reason he was kicked off ‘American
Idol,’” (Docket Entry No. 106-8 at 12);
•
The New York Post, March 5, 2003 – “I [Andrews] would speculate it was
because I’m in an investigation,” id. at page 35;
•
The Associated Press, March 6, 2003 – “Andrews told WKBN-TV…last
month that he thought he was dropped from the show for witnessing
Blakely’s death,” id. at page 48;
•
AP Online, March 14, 2003 – “Andrews…maintains he was kicked off
because of the fight,” id. at page 52;
•
The Pittsburgh Post-Gazette, March 15, 2003 – “Andrews…maintains he was
kicked off because of the bar incident,” id. at page 54;
•
The Wichita Eagle, March 4, 2003 – “Now we know why ‘American Idol’
really disqualified semifinalist Jaered Andrews in January….Andrews was
arrested for assaulting an Ohio man in a bar fight,” id. at page 35;
•
The Tennessean, May 14, 2003 – “Contestant Jaered Andrews was booted
after police eventually arrested him in connection with a bar brawl that left
a 39-year old man dead,” id. at 64;
•
The New York Post, February 5, 2004 – “Last season…Jaered Andrews made
it to the finals, but was booted when officials learned he’d been arrested on
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assault charges connected to a bar fight in which a man died,” id. at page 89;
•
The New York Daily News, February 28, 2004 – “Jaered Andrews was
dropped when he was charged with assault in a bar fight, which ended in a
man dying,” id. at 93;
•
The Boston Herald, March 24, 2005 – “Jaered Andrews was knocked out for
his involvement in a fatal fight,” id. at 97;
•
The Cleveland Plain Dealer, April 2, 2005 – “In 2002, semifinalist Jaered
Andrews was disqualified for not telling producers about an assault arrest,”
id. at 00; and
•
The Chicago Sun Times, February 13, 2007 – “[Jaered Andrews] was ejected
in 2003 after he got in a fistfight in a case where a guy died,” id. at 104.
Andrews’s libel claim against Defendants is for their reporting these fact about his disqualification
from American Idol. Andrews also alleges a claim for false light invasion of privacy that Defendants
assert is time barred and fails as a matter of law.
B. Conclusions of Law
For a Rule 12(b)(6) motion to dismiss, the Court must deny the motion if the complaint’s
factual allegations “raise a right to relief above the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). As to the merits of the Plaintiff's motion to dismiss, “a civil
complaint only survives a motion to dismiss if it ‘contain[s] sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.’ ” Courie v. Alcoa Wheel & Forged Prods.,
577 F.3d 625, 629 (6th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation
omitted)). The Court must “construe the complaint in the light most favorable to the plaintiff, accept
its allegations as true, and draw all reasonable inferences in favor of the plaintiff,” but “need not
accept as true legal conclusions or unwarranted factual inferences ... and [c]onclusory allegations or
legal conclusions masquerading as factual allegations will not suffice.” Tam Travel, Inc. v. Delta
11
Airlines, Inc., 583 F.3d 896, 903 (6th Cir. 2009) (citations and quotation marks omitted).
“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a short and plain
statement of the claim showing that the pleader is entitled to relief.” Iqbal, 556 U.S. at 677 (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). The Supreme Court explained that “the
pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678.
“A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause
of action will not do. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of
“further factual enhancement.” Id. (citing Twombly, 550 U.S. at 555, 557). The Sixth Circuit has
taken a “liberal view of what matters fall within the pleadings for purposes of Rule 12(b) (6).”
Armengau v. Cline, 7 Fed Appx. 336, 344 (6th Cir. 2001). “If referred to in a complaint and central
to the claim, documents attached to a motion to dismiss form part of the pleadings. Id. (citing
Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999)).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully.
Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops
short of the line between possibility and plausibility of ‘entitlement to relief.’” Iqbal, 556 U.S. at 678
(emphasis added). The Supreme Court also laid out the underlying principles of this analysis:
First, the tenet that a court must accept as true all of the allegations contained in a
12
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice....
Second, only a complaint that states a plausible claim for relief survives a motion to
dismiss. Id., at 556. Determining whether a complaint states a plausible claim for
relief will, as the Court of Appeals observed, be a context-specific task that requires
the reviewing court to draw on its judicial experience and common sense. 490 F.3d,
at 157–158. But where the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged-but it has not
“show[n]”-“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).
In keeping with these principles a court considering a motion to dismiss can choose
to begin by identifying pleadings that, because they are no more than conclusions, are
not entitled to the assumption of truth. While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations. When there
are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.
Id. at 678–79 (emphasis added). “In practice, ‘a . . . complaint must contain either direct or
inferential allegations respecting all the material elements to sustain a recovery under some viable
legal theory.’” Lillard v. Shelby Bd. of Edu., 76 F.3d 716, 726 (6th Cir. 1996) (citations omitted).
In a diversity action, as here, the District Court must apply the applicable State law of the
forum. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). Here, Plaintiff Clark, a Tennessee
citizen, invokes Tennessee law. (Docket Entry No. 106, Revised Amended Complaint at 8, 38, 40,
49, 51, 54). Plaintiff Andrews, an Ohio citizen, asserts rights under Ohio law. Id. at 6, 38, 40, 41 and
67.
Prior to an analysis of the legal sufficiency of Plaintiffs’ claims, the Court’s ruling allowing
the revised second amended complaint clearly granted leave to assert only clearly undisputed timely
claims. (Docket Entry No. 99).
Plaintiff's libel and related claims are governed by Tenn. Code Ann. §
28–3–104(a)(1) that provides a one-year limitations period and a defamation claim
accrues ‘upon the date the alleged defamatory language was published.’ Riley v. Dun
13
& Bradstreet, 172 F.2d 303, 308 (6th Cir.1949). Tennessee adopts the single
publication rule, namely that a plaintiff's libel or defamation claim accrues only once,
at the time of publication, and later publications do not give rise to a separate
defamation claim. Milligan v. United States, 670 F.3d 686, 698 (6th Cir.2012).
In Applewhite v. Memphis State Univ., 495 S.W.2d 190, 194 (Tenn.1973), the
Tennessee Supreme Court formally adopted the single publication rule with respect
to alleged libelous statements of “widespread circulation.” Applewhite held that “[t]o
permit a separate suit to be brought in regard to the sale or delivery of every single
copy of a modern publication would be inconceivable and intolerable.” Id. at 193–94.
In a word, “a plaintiff has only one cause of action on a widespread circulation of a
libelous matter” and the statute of limitations runs from the date of original
publication. Id. at 194.
The single publication rule applies to information published on the Internet. See In
re Philadelphia Newspapers, LLC, 690 F.3d 161, 174 (3d Cir.2012), as corrected
(Oct. 25, 2012), cert. dismissed, ––– U.S. ––––, 133 S.Ct. 1001, ––– L.Ed.2d ––––
(U.S.2013) (holding that there is “no rational basis upon which to distinguish
publication of a book or report through traditional printed media and publication
through electronic means,” and that “[w]e believe that Pennsylvania courts would
extend the single publication rule to publicly accessible material on the Internet.”);
Roberts v. McAfee, Inc., 660 F.3d 1156, 1169 (9th Cir.2011) (applying the single
publication rule to material posted on the Internet); Nationwide Bi–Weekly Admin.,
Inc. v. Belo Corp., 512 F.3d 137, 139 (5th Cir.2007) (noting that “every case to
consider the issue has applied the single publication rule to publicly available Internet
articles.”); see also Mitan v. Davis, 243 F.Supp.2d 719, 724 (W.D.Ky.2003) (“After
carefully examining the issue, we can find no basis for treating defamatory Internet
communication differently than any other form of aggregate communication.”). As
a leading treatise observed:
The single publication rule applies to electronic postings, including
those on the Internet. Despite the continued public availability—some
would call it the repeated publication—of such material, there is a
single publication at the time the posting is made, and the statute of
limitations begins to run then.
Sack on Defamation: Libel, Slander, and Related Problems § 7:2.2.
Here, Clark's claims involve alleged defamatory statements that were published
prior to July 5, 2011. The alleged defamatory statements cited by Plaintiffs
Andrews and Brittenums were published prior to February 23, 2012 (one year
before they joined as parties to the Second Amended Complaint), are barred by
Tennessee's one-year statute of limitations for libel. The Court concludes that
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to add these claims in the second amended complaint is futile.
Plaintiffs rely upon Swafford v. Memphis Individual Practice Assn., 1998 WL
281935, (Tenn. Ct. App. June 2, 1998) as “controlling” on the timeliness of their
claims. Plaintiffs argue that Swafford “expressly rejected the ‘single publication rule’
as it applies to defamatory internet-based publications.” (Docket Entry No. 40,
Plaintiffs’ Motion for Partial Summary Judgment at 9). In Swafford, a doctor filed
a libel suit against a health maintenance organization for its alleged false report of his
termination to the National Practitioner Data Bank—a private data bank on
physicians that health care entities only access. Id. at *1. The doctor cited the Data
Bank's statements about his status to three hospitals and asserted a libel claim for
each report. Id. at *5. The issue in Swafford was “[w]hether the single publication
rule should be applied to the dissemination of alleged defamatory information in the
Data Bank to health care providers.” Id. at *5. The Tennessee Court of Appeals cited
Applewhite for the proposition that the single publication rule applies in Tennessee
to “aggregate communication[s]” such as “the mass publication of a book, magazine,
or television commercial.” Id. at *5, 8.
Yet, the Tennessee Court of Appeals did not consider the three reports to be an
“aggregate communication” or “mass publication” under the single publication rule
that was inapplicable. Id. at *8. Rather, the Tennessee Court of Appeals deemed the
three responses to be separate and distinct publications of alleged defamatory
material analogous to “action[s] arising out of an allegedly defamatory statement in
a credit report.” Id. at *6. For this distinction, the Court cited “the confidential nature
of a credit report necessarily means that each new issuance results in a distinct and
separate injury.” Id. Thus, that Court concluded as follows:
The facts in this case are analogous to the facts in the above credit
report decisions. Unlike the mass publication of a book, magazine, or
television commercial, it is unlikely that more than a handful of
individuals or entities would gain access to information stored in the
data base. Unlike Applewhite, the information stored in the Data
Bank is not within the domain of the “contemporary publishing
world.” In addition, the health care entities in this case, like the
entities accessing credit information, requested information from the
Data Bank on separate and distinct occasions. Therefore, there is no
“aggregate publication” as contemplated in cases applying the single
publication rule. While information in the Data Bank may be
accessed by several entities, the justification for the single publication
rule, a vast multiplicity of lawsuits resulting from a mass publication,
is simply not present here. Under the facts of this case, we hold that
the single publication rule is inapplicable. Therefore, a separate
limitations period attaches to each publication.
15
Id. at *8 (internal citation omitted) (emphasis in original). Yet, that court made clear
that “[w]e do not address a situation in which the information in the Data Bank could
be accessed by the general public.” Id. at *8, n.8.
The Court concludes that Plaintiffs' reliance on Swafford is misplaced. As Swafford
expressly disclaimed such a broad interpretation of its holding. “We do not address
a situation in which the information in the Data Bank could be accessed by the
general public.” Id. at *8, n.8.
Plaintiffs next argue that certain non-substantive modifications to the Defendants'
websites at issue constitute “republication” so that the statute of limitations
commences anew upon “republication.” Yet, Plaintiffs earlier conceded the absence
of substantive material to the alleged defamatory articles: “the actual text of the
defamatory articles remains unchanged from the original date of publication.”
(Docket Entry No. 20, Plaintiffs' Motion for Partial Summary Judgment at 20). In any
event, courts have rejected this republication argument. See In re Philadelphia
Newspapers, LLC, 690 F.3d at 175 (noting that “[w]ebsites are constantly linked and
updated,” and that “[i]f each link or technical change were an act of republication,
the statute of limitations would be retriggered endlessly and its effectiveness
essentially eliminated.”); Roberts v. McAfee, Inc., 660 F.3d 1156, 1169 (9th
Cir.2011) (holding that republication does not arise from continuing alleged
defamatory information on a website); Atkinson v. McLaughlin, 462 F. Supp. 2d
1038, 1055 (D.N.D. 2006) (rejecting republication argument where modification “did
not change the content or substance of the [alleged defamatory] website.”). As a
leading treatise observed, “[m]odifications of a website, such as minor changes or
addition of material irrelevant to the allegedly defamatory material, or changes in the
manner in which the material may be accessed, do not ordinarily constitute a new
publication.” Sack on Defamation: Libel, Slander, and Related Problems § 7:2.1.
As to Plaintiffs’ reliance upon the “continuing defamation” doctrine, in 2008 the
Tennessee Court of Appeals held that “Tennessee courts have never recognized a
‘continuing defamation’ “ and that “this Court has previously commented on
the dubiousness of the very concept of a ‘continuing defamation.” Rose v.
Cookeville Reg'l Med. Ctr., 2008 WL 2078056, *5 (Tenn. Ct. App. May 14, 2008);
see also Ward v. Knox County Bd. of Educ., 869 F. Supp. 2d 860, 870 (E.D. Tenn.
2012) (holding that “Tennessee courts have never recognized a ‘continuing
defamation.”).
Clark v. Viacom Intern., Inc., No. 3:12–0675, 2013 WL 1245681 at *2-5 (M.D. Tenn. March 26,
2013). The relation back doctrine under Fed. R. Civ. P. 15(c) does not apply to defamation claims
under Ohio law because each claim is a distinct claim and a claim based on replication of the
16
defamatory statement does not relate back. Burt v. CBS, Inc., 769 F. Supp. 1012, 1015-16 (S.D. Ohio
1991).
Although Plaintiff Clark alleges a conspiracy to defame, such claims are also subject to the
one year statute of limitations under Tennessee law. Swafford v. Memphis Individual Practice Ass'n,
No. 02A01-9612-CV-00311, 1998 WL 281935, at *11 (Tenn. Ct. App. June 2,1998) (“As noted
above, the gravamen of Dr. Swafford’s action is libel. Therefore, his claim of civil conspiracy to libel
is governed by the one year statute of limitations. Tenn. Code Ann. § 28-3-104”). Similarly, as to
Andrews’s claims, “Ohio law requires that “[a]n action for libel ... shall be commenced within one
year after the cause of action accrued ....” Creatore v. Girton, Oakes & Burger, Inc., No.
4:09–CV–2926, 2010 WL 3672229, at *7 (N.D. Ohio Sept. 10, 2010) (quoting O.R.C. § 2305.11(a)
with other citations omitted). The statute of limitations applicable to libel claims “begins to run on
the date the alleged defamatory remarks are published, not the date a plaintiff learns of the
remarks....” Slough v. Telb, 644 F. Supp. 2d 978, 996 (N.D. Ohio 2009). Moreover, under Ohio
law, “a claim for conspiracy cannot be made subject of a civil action unless something is done
which, in the absence of the conspiracy allegations, would give rise to an independent cause of
action. Thus, the applicable statute of limitations for the underlying cause of actions applies to the
civil conspiracy charge.” West v. Kysela, No. 75594, 2000 WL 23083, at *5 (Ohio App. Dist. 8 Jan.
13, 2000) (citations omitted).
This action was filed on July 5, 2012. (Docket Entry No. 1, Complaint). Based upon the
authorities cited in the Court’s earlier ruling only claims arising on or after July 5, 2011 would be
actionable. The original complaint alleges libelous statements against Plaintiff Clark on July 6, 2011.
(Docket Entry No. 1, Complaint at ¶¶ 42, 160-200). In the first amended complaint filed on October
17
2, 2012 (Docket Entry No. 20), Plaintiff Clark again alleges libelous statements on July 6, 2011. Id.
at ¶¶ 396, 418-458. In the next amended complaint filed on February 23, 2013, (Docket Entry No.
55) that adds Plaintiff Andrews, Plaintiff Clark alleges libelous or defamatory statements made
against him on July 6, 2011, March 14, 2012 and July 6, 2012. Id. at ¶¶ 610 and 657; Docket Entry
55-1, at 3-4. That amended complaint also alleged libelous statements about Plaintiff Andrews that
took place on March 14, 2012. (Docket Entry No. 55, at ¶ 810; Docket Entry No. 55-2, at 2). In the
subsequent amended complaint filed on December 29, 2013 (Docket Entry No. 104), Plaintiff Clark
alleged libelous statements as being made against him on July 6, 2011, March 14, 2012 and July 6,
2012. Id. at ¶ 239; Docket Entry No. 104-1, at 3-4. Plaintiff Andrews alleged libelous statements as
being made against him on March 14, 2012. (Docket Entry No. 104, at ¶ 352; Docket Entry No. 1042, at 2). In the last amended complaint that is the subject of this motion, filed on January 17, 2014,
(Docket Entry No. 106) the dates of the libelous or defamatory statements for Plaintiff Clark are July
6, 2011, March 14, 2012 and July 6, 2012. Id. at ¶ 239; Docket Entry No. 106-2, at 3-4. For Plaintiff
Andrews, the only libelous statement is dated March 14, 2012. (Docket Entry No. 106, at ¶ 355;
Docket Entry No. 106-3, at 2).
As a matter of law, the amended complaint supercedes the prior complaint. Drake v. City of
Detroit, Michigan, 266 Fed. Appx. 444, 448 (6th Cir. 2008) (“Although Drake pleaded a claim for
abuse of process in his original complaint filed in state court, that complaint is a nullity, because an
amended complaint supercedes all prior complaints. It follows that any defects in Drake’s First
Amended Complaint cannot be repaired by prior complaints.”). Here, Plaintiff Clark’s claim based
upon the July 6, 2011 statement was filed on July 5, 2012 and is timely. Plaintiff Clark’s claims
based upon the March 14, 2012 and May 24, 2012 statements were timely asserted in the February
18
23, 2013 amended complaint. For Plaintiff Andrews, his only timely claim is based upon the March
14, 2012 statement that he asserted in the February 23, 2013 amended complaint. Thus, the only
actionable claims are Plaintiff Clark’s claims that arise out of the July 6, 2011, March 14, 2012, and
May 24, 2012 statements and Plaintiff Andrews’s claim that arises out of the March 14, 2012
statement.
For a defamation claim under Tennessee law, a party “must prove that (1) a party published
a statement; (2) with knowledge that the statement was false and defaming to the other; or (3) with
reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth
of the statement.” Hibdon v. Grabowski, 195 S.W.3d 48, 58 (Tenn. Ct. App. 2005) (citing Sullivan
v. Baptist Mem’l Hosp., 995 S.W.2d 569, 571 (Tenn. 1999) (relying on Restatement (Second) of
Torts § 580 B (1977))). For such a claim, the Court should first determine “whether a statement is
capable of a defamatory meaning.” Battle v. A & E Tele. Networks, LLC, 837 F. Supp. 2d 767, 771
(M.D. Tenn. 2011) (citing Memphis Publ’g Co. v. Nicols, 569 S.W.2d 412, 419 (Tenn. 1978)). “If
a court determines that the statement or communication is not defamatory, then dismissal of the
action is appropriate; otherwise, it is for the jury to determine whether the statement was understood
by its intended audience to be defamatory.” Battle, 837 F. Supp. 2d at 771. The “‘[a]llegedly
defamatory statements should be judged within the context in which they are made,’ and given their
usual meaning, ‘as a person of ordinary intelligence would understand them in light of the
surrounding circumstances.’” Id. (quoting Revis v. McClean, 31 S.W.3d 250, 253 (Tenn. Ct. App.
2000)).
Under Tennessee law, the Court determines as a matter of law whether the alleged statement
could be deemed defamatory. Stilts v. Globe Int’l, Inc., 950 F. Supp. 220, 223 (M.D. Tenn. 1995),
19
aff’d, 91 F.3d 144 (6th Cir. 1996). The issue is whether the statements subject Plaintiff to public
hatred, contempt, or ridicule, or constituted a serious threat to Plaintiff’s reputation. Id. (internal
citation and quotation mark omitted). The Court’s determination focuses on the words used. Id. The
damaging words must also be factually false and if substantially true, the statement is not actionable.
Id. Comments or characterizations of published facts are not actionable. Stone River Motors, Inc.
v. Mid-S Pub. Co., 651 S.W.2d 713, 720 (Tenn. Ct. App. 1983). When published facts are true and
non-defamatory, a writer’s strong or abusive comments are not actionable. Id. Subjective assertions
are also not actionable. Stilts, 950 F. Supp. at 223.
Also relevant is that the First Amendment only protects “statements that can ‘reasonably [be]
interpreted as stating actual facts’ about an individual,” further noting the difference between “a
subjective assertion” and “an articulation of an objectively verifiable event.” Milkovich v. Lorain
Journal Co., 497 U.S. 1, 20 (1990)). In a word, “rhetorical hyperbole,” is not defamation. Stilts, 950
F. Supp. at 223 (quoting Milkovich, 497 U.S. at 17). To state a plausible claim, and to fall outside
the First Amendment, the statements at issue must be “sufficiently factual to be susceptible of being
proved true or false.” Stilts, 950 F. Supp. at 223 (quoting Milkovich, 497 U.S. at 21).
In Stilts, the Globe periodical published an article about Ken Stilts, the former business
manager of the country music recording artists “The Judds,” that read as follows: “Wynonna and
Naomi: We were ripped off for $20 million!” A subsequent sub-caption stated that “they blame
ex-business manager, say pals.” Id. The article described the Judds’ accusations of Stilts’s
exploitation of his business relationship with them, to his financial advantage and to the Judds’
financial detriment. Id. In Stilts, the Honorable Thomas A. Higgins, District Judge, specifically
identified the following statements in the article as defamatory:
20
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
Stilts “ripped off [the Judds] for $20 Million!”;
Stilts “couldn’t be trusted”;
Stilts was “bleeding [the Judds] dry” and then “dump[ed] them”;
Stilts “wound up with nearly $20 MILLION of the money [the Judds] earned,
and they were left with only $5 million”;
Stilts “threw a pile of papers on the table and yelled: ‘You don’t get it, do
you? I don’t care what you do anymore—we’re through!’”;
Stilts “pocketed most of what [the Judds] had earned”;
Stilts “owns practically everything [the Judds] worked so hard for—even their
cars”; and
Stilts “had the [Judds’] cars picked up from their driveways!”
Id. at 221-22. The defendants alleged that the article provided a substantially true and accurate
account of a controversy between the Judds and Stilts and was, therefore, not actionable or were
either opinion or characterizing statements, substantially true or not defamatory and, therefore, did
not constitute libel. Id.
In Stilts, Judge Higgins concluded that the Globe article “simply recount[ed] the existence
of an actual controversy between the Judds and Mr. Stilts.” Id. at 223. As to the headline “Wynonna
and Naomi: We were ripped off for $20 million…they blame ex-business manager, say pals,” Judge
Higgins held that the language used was “imaginative expression” or “rhetorical hyperbole,” and
could not reasonably be construed as stating actual facts about Stilts. Id. Judge Higgins also observed
that this language was “subjective, imprecise and subject to numerous interpretations” and “simply
incapable of verification or refutation by means of objective proof.” Id. at 224. Judge Higgins
concluded that, “a reader would understand the words for their obvious meaning, namely, that the
Judds blame their former business manager for having lost money” and that “it is impossible to
believe that any reader could construe the text of the article as defamatory” and “that no reasonable
21
factfinder could conclude that the article is defamatory.” Id.3
Here, all three timely statements about Plaintiff Clark involved the concealment of his arrest
for his American Idol appearance. In the July 6, 2011 statement, Clark “was disqualified for lying
about a hairy domestic dispute.” (Docket Entry No. 106-2, at 3). Plaintiff Clark claims that he was
defamed in the March 14, 2012 statement that he “was booted for concealing his arrest record on
battery charges.” Id. at 4. As to the May 24, 2012 statement, Clark was deemed “booted for not
disclosing his rap sheet.” Id.
These statements are “comments upon or characterizations of published facts,” and thus not
actionable as libel. Stones River Motors, Inc., 651 S.W.2d at 720. These statements comment upon
or characterize “the objective set of facts” reported in the Kaufman articles. These comments upon
or characterizations were reported by other reputable news organizations, including The Tennessean,
The Boston Herald, The Cleveland Plain Dealer, The Chicago Sun Times, and People Magazine and
as quoted supra at 8 to 9.
For a defamation claim under Ohio law, a plaintiff must prove:
First, there must be the assertion of a false statement of fact; second, that the false
statement was defamatory; third, that the false statement was published by
defendants; fourth, that the publication was the proximate cause of the injury to the
plaintiff; and fifth, that the defendants acted with the requisite degree of fault.
Voyticky v. Village of Timberlake, Ohio, 412 F.3d 669, 678 (6th Cir. 2005) (citing Celebrezze v.
Dayton Newspapers, Inc., 535 N.E.2d 755, 759 (Ohio App. 1988). Additionally, “[a] true statement
is not actionable no matter how injurious it is to the plaintiff.” Conway v. International Ass’n of Heat
3
Plaintiffs distinguish Stilts as a ruling on a motion for summary judgment but Plaintiffs’
most recent amended complaint attaches more than 1300 pages of documents and articles and
provides an ample context to evaluate the statements at issue here.
22
and Frost Insulators and Asbestos Workers, 209 F. Supp. 2d 731, 754 (N.D. Ohio 2002) (citing
O.R.C. § 2739.02).
The one timely statement about Plaintiff Andrews involved his concealment of an arrest for
his American Idol appearance. Plaintiff Andrews claims that the March 14, 2012 statement that he
was “sent home over undisclosed assault charges” was defamatory. (Docket Entry No. 106-3, at 2).
Plaintiff Andrews admits that he was in fact “charged with one misdemeanor account of ‘simple
assault.’” (Docket Entry No. 106, Complaint, at ¶ 228). The statement of Plaintiff Andrews’s assault
charge is true, even if it is injurious to Plaintiff Andrews, and as such, is not actionable under Ohio
law.
For his TCPA claim, Plaintiff Clark must prove “[d]isparaging the goods, services or
business of another by false or misleading representations of fact.” Tenn. Code Ann. §
47-18-104(b)(8). Plaintiff Clark must satisfy a heightened pleading standard. Sony/ATV Music
Pub. LLC v. D.J. Miller Music Distributors, Inc., 2011 WL 4729811, at *11 (M.D. Tenn. Oct. 7,
2011). Moreover, a TCPA action “shall be brought within one (1) year from a person’s discovery
of the unlawful act or practice.” Tenn. Code Ann. § 47-18-110. Finally, the TCPA permits a
defendant to recover his attorney’s fees and costs “upon [a] finding that the action is frivolous,
without legal or factual merit, or brought for the purpose of harassment.” Tenn. Code Ann. §
47-18-109(e)(2) (emphasis added). Under Tennessee law, “[s]tatements of opinion, even when
disparaging, are not punishable under the [TCPA].” Ellipsis, Inc. v. The Color Works, Inc., 2006
WL 1207589, *14 (W.D. Tenn. May 4, 2006).
As an example, in River Park Hosp., Inc. v. BlueCross BlueShield of Tennessee, Inc., 173
S.W.3d 43, 50 (Tenn. Ct. App. 2002), a managed care organization alleged that the hospital
23
disparaged it in violation of Tennessee Code Annotated § 47–18–104(b)(8), based on the hospital’s
letter to three obstetricians that BlueCare was unresponsive to the hospital’s needs; that it was
“pushing patients to other counties for their care”; and that BlueCare’s efforts to move obstetrics
patients to in-network hospitals “shows Blue Cross’s lack of concern for the healthcare needs of our
patients in Warren County.” River Park, 173 S.W.3d at 61. In applying Tenn. Code Ann. §
47–18–104(b), the Tennessee Court of Appeals concluded “that the comments made in the letters
were opinions and, thus, did not constitute ‘false or misleading representations of fact.’” Id.
Applying River Park, the Court concludes that the July 6, 2011, March 14, 2012, and May
24, 2012 statements identified by Plaintiff Clark are opinions and do not qualify as “false or
misleading representations of fact” to qualify as a TCPA claim.
Plaintiff Clark’s right of publicity claim under Tennessee’s Personal Rights Protection Act
of 1984 contends that Defendants violated his right of publicity because the Defendants “have,
without [Clark’s] consent or authority, used his name ‘Corey Clark’ in written statements published
on MTV.com and VH1.com, in order to exploit the[ir] commercial interests.” (Docket Entry No.
106, Second Amended Complaint at ¶ 320). This claim has a one-year statute of limitations.
Gibbons v. Schwartz-Nobel, 928 S.W.2d 922, 926 (Tenn. Ct. App. 1996).
For a right of publicity claim, under the Act, “[e]very individual has a property right in the
use of that person’s name, photograph, or likeness in any medium in any manner,” Tenn. Code Ann.
§ 47-25-1103(a), that “is clearly directed at preventing the use of another’s name or likeness, without
consent, for advertising purposes.” Apple Corps Ltd. v. A.D.P.R., Inc., 843 F. Supp. 342, 348 (M.D.
Tenn. 1993) (emphasis added). See also Tenn. Code Ann. § 47-25-1105(a) (creating a civil cause
of action against “[a]ny person who knowingly uses or infringes upon the use of another individual’s
24
name…for purposes of advertising products, merchandise, goods, or services.…”) (emphasis added).
Under this Act, “[i]t is deemed a fair use and no violation of an individual’s rights shall be found…if
the use of a name, photograph, or likeness is in connection with any news, public affairs, or sports
broadcast or account.” Tenn. Code Ann. § 47-25-1107(a).
“Courts long ago recognized that a celebrity’s right of publicity does not preclude others from
incorporating a person’s name, features or biography in a literary work, motion picture, news or
entertainment story. Only the use of an individual’s identity in advertising infringes on the
persona.” Matthews v. Wozencraft, 15 F.3d 432, 439 (5th Cir. 1994) (citations omitted) (emphasis
added).
Plaintiff Clark’s right of publicity claim fails because Plaintiff Clark fails to allege that the
Defendants’ July 6, 2011, March 14, 2012, or May 24, 2012 statements used his name in connection
with any advertisement. Tenn. Code Ann. § 47-25-1107(a).
As to Plaintiff Clark’s assertion that Cantiello’s articles are “advertisements in disguise for
the television show American Idol,” (Docket Entry No. 106, Second Amended Complaint at ¶ 323)
(emphasis in original), the “advertisement in disguise” concept requires:
An unauthorized use of identity in a format that is facially a “news story” might be
actionable as an advertisement in disguise. Often mentioned in dictum, the concept
has only rarely resulted in a finding of liability for invasion of privacy or
infringement of publicity rights.
2 Rights of Publicity and Privacy § 8:100 (2d ed.) This treatise further observed that “courts have
almost always held that a use which arguably qualifies as a ‘story’ is in fact nothing more than that,
and is constitutionally immunized as conveying information to the public.” Id. at § 8:101. Plaintiff
Clark’s “advertisement in disguise” theory fails as American Idol is broadcasted by Fox, (Docket
25
Entry No. 106, Second Amended Complaint, at 4), that is not among the Defendants’ networks.
Plaintiff Clark’s contention that Defendants would be advertising through a rival to promote
American Idol lacks plausibility under Iqbal.
Plaintiffs’ next claim is that Defendants “breached their duty of care to Plaintiff through the
hiring and retention of Jim Cantiello” because Defendants knew or should have known that
Defendant Cantiello would defame Plaintiff when they hired him or continued to employ him.
(Docket Entry No. 106, Second Amended Complaint at ¶ 335). For this claim, Tennessee law
requires that the employer had knowledge of the employee’s unfitness for the job. Doe v. Catholic
Bishop for Diocese of Memphis, 306 S.W.3d 712, 717 (Tenn. Ct. App. 2008), Van Horne v. Muller,
705 N.E.2d 898, 906 (Ill. 1998) (Plaintiff is “required to plead facts showing that WRCX and
Evergreen knew or should have known that Muller was likely to make false, defamatory statements
during his radio show if he was hired.” [Plaintiff’s] “allegations fail to establish a sufficient nexus
between the particular alleged unfitness of Muller and the injury suffered by [plaintiff].”).
Here, Plaintiffs failed to allege a sufficient nexus between their injuries and Cantiello’s
alleged unfitness as an employee. The Second Amended Complaint fails to identify any post-hiring
conduct by Cantiello that would render Defendants liable for negligent retention. The only
conceivable basis for such a claim would be that Defendants retained Cantiello after he wrote articles
in which he referred to Clark as a “black sheep”; an “alleged sister beater”; a “degenerate”; and a
“washout.” (Docket Entry No. 106-2, at 1 to 3). Yet, these statements as a matter of law are
non-defamatory, as having clear factual support.
Plaintiffs Clark and Andrews also assert claims for False Light Invasion of Privacy citing
Defendants’ publications of statements that allegedly “contain misleading information or create an
26
erroneous factual inference” that place them “in a highly offensive false light to the reasonable
person.” (Docket Entry No. 106, Second Amended Complaint at ¶¶ 276-77, 409-10). False light
invasion of privacy claims have a one-year statute of limitations. W.V. Media Gen. Convergence,
Inc., 53 S.W.3d 640, 648 (Tenn. 2001). Except for the July 6, 2011, March 14, 2012, and May 24,
2012 statements, the remainder of Plaintiffs’ claims are barred by the one-year statute of limitations.
Yet, Plaintiffs’ false light claim fails because the statements in the Defendants’ July 6, 2011,
March 14, 2012, and May 24, 2012 articles were true. Tennessee recognizes the tort of false light
invasion of privacy as defined in Section 652E of the Restatement (Second) of Torts (1977) as
follows:
One who gives publicity to a matter concerning another that places the other before
the public in a false light is subject to liability to the other for invasion of his privacy,
if (a) the false light in which the other was placed would be highly offensive to a
reasonable person, and (b) the actor had knowledge of or acted in reckless disregard
as to the falsity of the publicized matter and the false light in which the other would
be placed.
W. V. Media Gen. Convergence, Inc., 53 S.W.3d 640, 643-44 (Tenn. 2001). Comment a to Section
652E states that “it is essential to the rule stated in this Section that the matter published concerning
the plaintiff is not true.” Here, the Defendants’ alleged objectionable statements are true or
substantially true. Thus, these statements fail to state a claim for false light invasion of privacy.
For these reasons, the Court concludes that the Defendants’ motion to dismiss should be
granted.
An appropriate Order is filed herewith.
27
ENTERED this the
day of May, 2014.
____________________________
William J. Haynes, Jr.
Chief United States District Judge
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