Opinion
3:01-CV-1395 (FJS/DEP).
March 22, 2004
HIGH, SWARTZ, ROBERTS SEIDEL, LLP, Norristown, Pennsylvania, Attorneys for Plaintiff, JOHN A. GALLAGHER, ESQ.
OFFICE OF THEO J. TOTOLIS, Endicott, New York, Attorneys for Plaintiff, THEO J. TOTOLIS, ESQ.
RUBIN, WINSTON, DIERCKS, HARRIS COOKE, LLP, Washington, D.C., Attorneys for Defendants The Ackerley, Group, Inc., WIVT Newschannel 34 and WBGH Newschannel 5, JEFFREY HARRIS, ESQ.
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff's amended complaint includes eight causes of action, alleging violations of Plaintiff's First and Fourteenth Amendment rights pursuant to § 1983 and state law claims of breach of contract, interference with contract, prima facie tort, libel and defamation. Only Plaintiff's eighth cause of action, which is a state law defamation/libel claim, is asserted against Defendants The Ackerley Group, WIVT Newschannel 34 and WBGH Newschannel 5 (collectively "The Ackerley Group Defendants"). Presently before the Court is The Ackerley Group Defendants' motion for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, with respect to that claim.
II. BACKGROUND ,
In a previous Memorandum-Decision and Order in this action, addressing the Press Sun-Bulletin's motion to dismiss, the Court set forth the events leading up to the Press Sun-Bulletin articles, which Plaintiff claimed were defamatory. See Memorandum-Decision and Order dated March 31, 2003. These are the same events that led to the February 13, 2001 broadcast at issue in the present motion. Therefore, rather than reiterate those facts here, the Court will assume the parties' familiarity with those events.
In his memorandum of law in opposition to The Ackerley Group Defendants' motion, Plaintiff states that "[h]e hereby withdraws any claim concerning the February 12, 2001 broadcast in his Amended Complaint." See Plaintiff's Memorandum of Law at 4 n. 1.
The night after the February 12, 2001 Trustees' meeting at which Mr. Coleman fielded the Trustees' questions about the recently-completed audit, the following broadcast appeared on the 11:00 p.m. newscast:
Steve Craig: The political impact of the recently published En-Joie Golf Course Audit has started to sink in and by some accounts the report has added to Endicott Mayor Michael Colella's case against management.
Jen Maxfield: But, will the village be able to retain some of the money it is said to have lost. News 34's Greg Kelly joins us now.
Greg Kelly: Jen, Steve, well here's what's happening right now. Mayor Colella has said that the village of Endicott could stand to recoup about a million dollars once all the facts are in. Right now the fingers up at the village hall are pointing at two figures in this case, John Karedes, manager of the En-Joie golf course and the Broome County Community Charities organization. They are the sponsors of the B.C. Open. They are responsible for upgrading the golf course to PGA Standards. Well, apparently, they were supposed to have paid for that entirely on their own, but according to the audit that came out earlier this week they were actually charging the village through John Karedes for expenses that they should have been making on their own . . .
Other accounting irregularities mentioned in the audit was En-Joie's double payments for services rendered to such businesses as Broome Bituminous Products located in Vestal and Tioga Gardens in Owego.See Amended Complaint at ¶ 341 (emphasis added).
Also part of that broadcast, according to The Ackerley Group Defendants, were the following statements:
Reaction from Alex Alexander, the Executive Director of the Broome Community Charities was swift and to the point. Although he wouldn't appear on camera, in a written statement he said the following, "Our records indicate that the BC Open fully paid for all the work that it contracted for at the golf course. I don't know what the audit is talking about. I was never contacted by the auditors. Auditors never asked the BC Open about finances."See The Ackerley Group Defendants' Reply Memorandum of Law at 4.
In addition, The Ackerley Group Defendants assert that the last paragraph of the broadcast that is quoted in paragraph 341 of the Amended Complaint is incomplete. The broadcast continued as follows:
Well, is the Village actually going to be able to recoup some of this money? It is really hard to say. Now a lot of people up there in Endicott are saying that this is a politically motivated audit. If you paid somebody to get results for you, well, they're going to get those results regardless of the facts. That's what some people are saying in certain quarters. So it remains to be seen how this all is going to play out. Lee Karedes is suing the village, his son John is suing the village, so it may be up to a judge to determine the validity of the audit.See id. (emphasis added).
The broadcast continues with the anchor asking the reporter, "What about the DA, the DA [name] has been involved with this at some point and we haven't heard much about that since?" The reporter responds: "Yeah, well [DA name] has been forwarded a copy of the audit, and he's looking at it. But my sense is, we talked to him today, he's a long way away from initiating any kind of criminal inquiry. Something has been forwarded to them and they're reviewing it. I can't anticipate any kind of criminal inquiry happening. . . ." See id. at 4-5.
According to The Ackerley Group Defendants, Exhibit "N," which is the videotape of the broadcast, ends at this point, cutting off the reporter in mid-sentence.
III. DISCUSSION
A. Standard of review
"The test for evaluating a [motion for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure] is the same as that applicable to a motion to dismiss under Fed.R.Civ.Proc. 12(b)(6)." Irish Lesbian Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998). In considering a motion under either Rule 12(b)(6) or Rule 12(c), the court's function is limited to testing the legal sufficiency of the complaint. See Sileo v. Principal Life Ins. Co., No. 00-CV-1239, 2001 WL 366422, *1 (N.D.N.Y. Apr. 10, 2001) (quotation omitted). A court may not dismiss an action pursuant to either of these rules unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (quotation omitted).
In ruling on the merits of a motion for judgment on the pleadings, the court's "'consideration is limited to the factual allegations in [the] complaint, which are accepted as true, [and] to documents attached to the complaint as an exhibit or incorporated in it by reference, . . .'" Isanaka v. Spectrum Techs. USA Inc., 131 F. Supp.2d 353, 357 (N.D.N.Y. 2001) (quoting Brass v. American Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993)). A complaint "which consists of bald assertions and conclusory allegations unsupported by factual assertions 'will not suffice to state a claim.'" Sileo, 2001 WL 366422, at *2 (quoting Tarshis, 211 F.3d at 35; DeJesus, 87 F.3d at 70).
B. The elements of a defamation claim under New York law
"The New York Court of Appeals has defined a defamatory statement as one that exposes an individual 'to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or . . . induce[s] an evil opinion of one in the minds of right-thinking persons, and . . . deprives one of . . . confidence and friendly intercourse in society.'" Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 177 (2d Cir. 2000) (quoting Kimmerle v. New York Evening Journal, 262 N.Y. 99, 186 N.E. 217, 218 (1933)) (other citation omitted).
To prevail on a claim of defamation, a plaintiff who is a public figure must show that the statements about which he complains were "(1) of and concerning [Plaintiff], (2) likely to be understood as defamatory by the ordinary person, (3) false, and (4) published with actual malice, that is, either knowledge of falsity or reckless disregard of the truth." Church of Scientology Int'l v. Behar, 238 F.3d 168, 173 (2d Cir. 2001) (citation omitted).
Plaintiff acknowledges, for purpose of this motion, that he is a public figure and that this controversy concerns a matter of public concern.
In determining whether the statements complained of are defamatory, the court must "'consider the publication as a whole,' and not 'pick out and isolate particular phrases.'" Lian v. Sedgwick James of N.Y., Inc., 992 F. Supp. 644, 649 (S.D.N.Y. 1998) (quoting James v. Gannett Co., 40 N.Y.2d 415, 386 N.Y.S.2d 871, 874, 353 N.E.2d 834 (Ct.App. 1976)). The court must "'employ an objective standard and consider whether an ordinary person would find the statement "reasonably susceptible of a defamatory connotation."'" Id. (quoting Davis, 754 F.2d at 82 (quoting James, 386 N.Y.S.2d at 874, 353 N.E.2d 834)). Moreover, "[t]he court should not 'strain to place a particular interpretation on the published words,' James, 386 N.Y.S.2d at 874, 353 N.E.2d 834, nor 'interpret [them] "in their mildest and most inoffensive sense to hold them nonlibellous."'" Id. (quoting November v. Time Inc., 13 N.Y.2d 175, 244 N.Y.S.2d 309, 311, 194 N.E.2d 126 (Ct.App. 1963) (quoting Mencher v. Chesley, 297 N.Y. 94, 99, 75 N.E.2d 257 (1947))). Truth, of course, provides a complete defense to a claim of defamation. See Dillon v. City of N.Y., 261 A.D.2d 34, 39 (1st Dep't 1999) (citations omitted).
With respect to the "actual malice" element of a defamation claim, a public plaintiff must demonstrate that the allegedly libelous statement "was made with 'actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). The plaintiff must make this showing by clear and convincing evidence. See Church of Scientology Int'l, 238 F.3d at 174 (citing Celle, 209 F.3d at 183). "[T]he actual malice standard does not measure malice in the sense of ill will or animosity, but instead the speaker's subjective doubts about the truth of the publication." Id. (citing Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) ("Actual 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.")).
If the plaintiff is unable to show that the defendant knew that the statements were false, then the plaintiff must prove that
the defendant made the statements with reckless disregard of whether they were true or false. The reckless conduct needed to show actual malice "is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing,". . . but by whether there is sufficient evidence "to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication[.]"Id. (internal quotation and other quotation omitted).
In determining whether the defendant harbored actual malice, the following factors are relevant:
(1) whether a story is fabricated or is based wholly on an unverified, anonymous source, (2) whether the defendant's allegations are so inherently improbable that only a reckless person would have put them in circulation, or (3) whether there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.Id. (citing [ St. Amant, 390 U.S.] at 732, 88 S.Ct. 1323).
With these general principles in mind, the Court will address the February 13, 2001 broadcast to determine, in the first instance, whether it contains any statements that could be considered defamatory.
C. The February 13, 2001 broadcast
There is very little mention of Plaintiff in the parts of the February 13, 2001 broadcast that Plaintiff cites as objectionable. Moreover, those sections of the broadcast to which he does point are not defamatory. Plaintiff's primary argument centers on the issue of whether it was inaccurate or defamatory for The Ackerley Group Defendants to report that "according to the audit that came out earlier this week, [BCCC was] actually charging the village through John Karedes for expenses that they should have been making on [its] own." In light of the fact that the audit found that, as Plaintiff acknowledges, there were three bills totaling $153,000 that were addressed to BCCC rather than the Village, that the Village paid these bills, and that, as Plaintiff states in his amended complaint, he reviewed and approved these invoices before sending them to the Village for payment, the Court finds that this statement is not reasonably susceptible to a defamatory meaning. In fact, when read in context, it is an accurate statement of what the audit found.
Plaintiff attempts to obfuscate the issue by combining this statement with the broadcast's report that the Mayor stated that the Village could stand to recoup a million dollars before all the facts are in. However, the broadcast did not report that Plaintiff was responsible for the $1 million to which the Mayor was referring. Moreover, the broadcast reported that many thought that the audit was politically motivated and that it remained to be seen how this situation would play out.
The only other mention of Plaintiff in the broadcast was that he was suing the Village, which, obviously, is an accurate statement.
Having reviewed the statements about which Plaintiff complains and reading them in the context of the entire broadcast, the Court concludes that there are no set of facts from which Plaintiff could prove that the statements in the broadcast that concern him are defamatory. Accordingly, the Court grants The Ackerley Group Defendants' motion for judgment on the pleadings.
Alternatively, The Ackerley Group Defendants argue that New York Civil Rights Law § 74 provides an absolute privilege from suit because the February 13, 2001 broadcast was a fair and true report of the proceedings and the audit. Having concluded that The Ackerley Group Defendants are entitled to judgment on the pleadings because the February 13, 2001 broadcast is not reasonably susceptible to a defamatory meaning, the Court need not address this alternative ground for relief.
D. Plaintiff's Rule 54(b) motion
As noted above, by Memorandum-Decision and Order dated March 31, 2003, the Court granted the Press Sun-Bulletin's motion to dismiss Plaintiff's seventh cause of action. On May 2, 2003, Plaintiff moved, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, for entry of a final judgment with respect to the March 31, 2003 Memorandum-Decision and Order. See Dkt. No. 32. Before the Court could address that motion, The Ackerley Group Defendants filed their motion for judgment on the pleadings. In addition, on September 26, 2003, this Court so ordered a Stipulation and Agreement of Discontinuance that Plaintiff and Defendants The Village of Endicott, Michael E. Colella, in his capacity as Mayor of the Village of Endicott, Jackie Sammon, in her capacity as Trustee of the Village of Endicott, Bonnie Cornick, in her capacity as Trustee of the Village of Endicott, Timothy Burns, in his capacity as trustee of the Village of Endicott, and Dr. Michael E. Colella, individually, filed with the Court. See Dkt. No. 57.
The seventh cause of action was the only cause of action that Plaintiff asserted against the Press Sun-Bulletin.
The Court's decision to grant The Ackerley Group Defendants' motion for judgment on the pleadings, together with its previous Memorandum-Decision and Order and the September 26, 2003 Stipulation, disposes of all the claims against all Defendants in this action. Plaintiff's Rule 54(b) motion is, therefore, moot. Accordingly, the Court denies that motion.
IV. CONCLUSION
After carefully considering the file in this matter, the parties' submissions and the applicable law, and for the reasons stated herein, the Court hereby
ORDERS that Defendants The Ackerley Group, WIVT Newschannel 34 and WBGH Newschannel 5's motion for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, with respect to Plaintiff's eighth cause of action is GRANTED; and the Court further
ORDERS that Plaintiff's motion pursuant to Rule 54(b) of the Federal Rules of Civil Procedure is DENIED as moot; and the Court further ORDERS that the Clerk of the Court enter judgment in favor of Defendants and close this case.