Opinion
Case No 1:00-CV-935
January 17, 2002
MEMORANDUM OPINION ON DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS
Plaintiffs are 25 firefighters employed by the City of Battle Creek. Their first amended complaint asserts seven claims against the City of Battle Creek, its Fire Chief, Lawrence Hausman, it, Police Chief, Jeffrey Kruithoff, and its, City Manager, Merrill Stanley. Count VII contains a defamation claim against the three individual defendants. Now before the Court is defendants' motion for judgment on the pleadings, addressed solely to the defamation Claim.
I
Defendants' motion for judgment on the pleadings under Fed R Civ P. 12(c) requires the Court to construe the complaint in the light most favorable to the plaintiffs and accept all well-pleaded fact allegations as true. Mixon v. State of Ohio, 193 F.3d 389, 400 (6th Cir. 1999); Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998). However, the Court need not accept plaintiffs' alleged legal conclusions or unwarranted factual inferences as true. Mixon, 193 F.3d at 400; Grindstaff, 133 F.3d at 421. The motion should be granted only if the Court determines that plaintiffs undoubtedly can prove no set of facts in support of their clam that would entitle them to relief Mixon, 193 F.3d at 400, Grindstaff 133 F.3d at 421.
II
The defamation claim to based on statements attributed to the three individual defendants and published in the Battle Creek Enquirer on November 21 and 23, 2000. The statements were made in reaction to the explosion of a pipe bomb in Fire Chief Lawrence Hausman's residential mailbox on November 19, 2000. The November 21 article cites Hausman's belief that the explosion "could be related to turmoil in the fire department" and quotes Hausman as having said, "It's not just by chance." The article also relates Police Chief Jeffrey Kruithoff's belief that "the incident is an outgrowth of the controversy in the fire department" Kruithoff is quoted as follows:
It is over some ongoing issues, although I am not ready to point a finger at the fire department. But the ante has been upped.
Two days later, an editorial written by City Manager Merrill Stanley was published. Commenting on the pipe bomb incident. he wrote in pertinent part:
We do not know who designed the attack, why or even what, specifically they hoped to achieve.
I join the entire family of city employees in condemning this cowardly act. No complaint justifies terrorism. No one with right on their side resorts to anonymous violence to communicate.
. . .
Over the past six months the Battle Creek Fire Department has been the focus of intense, sometimes glaring scrutiny.
. . .
Clearly this bombing was wrong. If we are to lessen the long-term impact of this bombing, we must resist speculation about its author until the facts are known.
. . .
The nearly 100 men and women who make up the Battle Creek Fire Department are dedicated, highly skilled people.
Observing that two 16-year old youths were subsequently arrested in connection with the pipe bomb incident, plaintiffs allege that defendants' above statements amount to false and malicious accusations that firefighters committed the crime. In moving for judgment on the pleadings, defendants contend the alleged statements are not defamatory as a matter of law.
III
"A communication is defamatory if, considering all the circumstances, it tends to so harm the reputation of an individual as to lower that individual's reputation in the community or deter third persons from associating or dealing with that individual." Kevorkian v. American Medical Ass'n, 237 Mich. App. 1, 4 (1999). The basic elements of a defamation claim under Michigan law are as follows: (1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged communication to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. Id. at 8-9.
Not all defamatory statements are actionable. To be actionable, a defamatory statement must be provable as false and must state actual facts about the plaintiff. Id. at 5-6. A direct accusation or inference of criminal conduct is actionable as defamatory, with or without the showing of special harm. Id. at 8. However, an expression of opinion is actionable only if it asserts an objectively verifiable event and is provable as false. Id. at 5-6. Yet, a statement facially capable of defamatory interpretation is not actionable if, when viewed in context, it is shown to be nothing more than "rhetorical hyperbole." Id. at 6-8.
IV
First, the Court considers the editorial of Merrill Stanley. In their complaint, plaintiffs focus on two sentences: "No complaint justifies terrorism. No one with right on their side resorts to anonymous violence to communicate."
On their face, these statements have no defamatory meaning. They are expressions of opinion that are not objectively verifiable and not provable as false. They do not pertain to any individual and do not have a tendency to lower anyone's reputation.
Plaintiffs contend their defamatory meaning is a matter of inference. Stanley's use of the word "complaint" is said to be a transparent reference to the complaints of discrimination lodged by some firefighters — complaints that precipitated a department-wide internal investigation that recently concluded with a finding of no discriminatory actions. To say that "no complaint justifies terrorism" was to imply, plaintiffs contend, that aggrieved firefighters were responsible for the pipe bomb. Thus, Stanley is said to have indirectly accused plaintiffs of a crime.
Plaintiffs' interpretation is simply not reasonable. It depends on a strained, "worst light" reading of two isolated sentences while entirely ignoring the context established by the remainder of the editorial. In fact, the remainder of the editorial expressly and unequivocally negates the strained inference plaintiffs urge the Court to draw.
Stanley makes it clear from the outset that the identity of the perpetrator is unknown. He urges restraint in speculating about the perpetrator's identity until the facts are known. He lauds fire department employees as dedicated, highly skilled and hard working professionals. Viewed as a whole, the tone of the editorial is not accusatory at all, but manifestly and unmistakably conciliatory. It represents the City Manager's plea to the citizenry to cooperate in addressing internal challenges.
It is thus clear that defendant Stanley's statements are not reasonably capable of defamatory meaning. Plaintiffs cannot prove any set of facts consistent with their allegations that would make out a defamation claim against defendant Stanley. He is therefore entitled to judgment in his favor based on the pleadings.
V
Next, the Court turns to the offending statement of Fire Chief Lawrence Hausman, "It's not just by chance." Again, such a truism is not defamatory on its face. Pipe bombs do not, of course, explode in mailboxes by accident, but rather as the result of some deliberate, malevolent human agency. Assuming that Hausman meant to state more than the obvious, however, his "not by chance" statement may be viewed as distinguishing the pipe bomb incident from other apparently random acts of vandalism. That is, Hausman arguably implied that his mailbox was deliberately targeted for reasons other than mere whim or caprice.
Still, even such a reading of Hausman's statement is not defamatory of plaintiffs unless viewed in light of the article's earlier reference to Hausman's opinion that the "pipe bomb explosion at his home could be related to turmoil in the fire department." Yet, Hausman's opinion that it could be related is obviously just that: an opinion, a matter of speculation, not accusation.
Plaintiffs correctly argue that such an opinion may nonetheless be actionable if it implies the allegation of undisclosed defamatory facts as the basis for the opinion. See Orr v. Argus-Press Co., 586 F.2d 1108, 1114 (6th Cir. 1978); Deitz v. Wometco West Michigan TV, Inc., 160 Mich. App. 367, 376 (1987). However, Hausman's opinion does not imply any such allegation of undisclosed defamatory facts. Instead, the article clearly discloses undisputed facts plausibly supporting Hausman's opinion that the pipe bomb could have been related to turmoil in the fire department: (1) a four-month investigation of discrimination complaints had recently cleared Hausman of wrongdoing; and (2) Hausman's property had recently been subject to other acts of less serious vandalism. Further, any conceivable suggestion of undisclosed facts appears to be negated in the article by the report of Police Lieutenant Jackie Hampton that investigators had not yet determined a motive or suspect in the bombing.
Accordingly, the Court concludes that defendant Hausman's "not by chance" statement is not, under all the circumstances, reasonably susceptible of defamatory meaning. Defendant Hausman, too, is entitled to judgment as a matter of law on plaintiffs' count VII defamation claim against him.
VI
Finally, plaintiffs assert a defamation claim against Police Chief Jeffrey Kruithoff based on his statement that the pipe bomb incident "is over some ongoing issues, although I am not ready to point a finger at the fire department." Read in context, "ongoing issues" apparently relates to the controversy in the fire department.
Kruithoff's statement of his opinion is not as equivocal as Hausman's. Moreover, because Kruithoff's opinion about the connection between the pipe bomb and the fire department controversy is stated more definitively, and because Kruithoff, as Police Chief, is ostensibly privy to the best available investigative information, it is more reasonable to read his statement as impliedly alleging undisclosed defamatory facts. But, defamatory of whom?
In the very statement complained of, Kruithoff expressly disclaims any intention to accuse the fire department. Hence, his opinion that the pipe bomb incident is an outgrowth of controversy in the fire department may suggest suspicion that someone else, with sympathy for or interests related to those of the aggrieved firefighters, was responsible.
Still, plaintiffs maintain that when Kruithoff's statement is read in the light most favorable to them, it may reasonably be understood as impliedly accusing firefighters of the crime. Even if this proposition is accepted, the question remains why the statement should be construed as particularly impugning the reputation of any of the 25 plaintiffs, as opposed to other Battle Creek firefighters, who number 94 in total. Indeed, plaintiffs have alleged in count VII that the alleged defamatory statements applied to all Battle Creek firefighters and did not exclude any.
Under Michigan law, "it is not enough for a complainant to allege that he is a member of a group allegedly defamed." Chapman v. Romney, 6 Mich. App. 36, 40 (1967). "Where a defamatory publication affects a class of persons without any special personal application, no individual of that class can maintain an action for the publication; and it has been held that, where defamatory statements are made against an aggregate body of persons, an individual member not specifically imputed or designated cannot maintain an action." Id. at 39. See also Michigan United Conservation Clubs v. CBS News, 665 F.2d 100, 112 (6th Cir. 1981); Lins v. Evening News Ass'n, 129 Mich. App. 419, 427 (1983).
Thus, because Kruithoff's general statement is defamatory, if at all, of a large group, without designating any individual or individuals, it can hardly be deemed "of and concerning" the instant plaintiffs particularly. Unless the statement is shown to be "of and concerning" the individual plaintiffs, it is not deemed to have such a tendency to lower their reputations in the community as to be actionable.
Citing Lins, plaintiffs insist that Michigan law recognizes an exception to this general rule "where a small group is defamed and plaintiff's identity is readily ascertainable from the content of the publication." Lins, 129 Mich. App. at 427. In Lins, however, the group defamed consisted of seven officers of a local union, whose identities were readily ascertainable. Here, in contrast, Kruithoff's statement refers generally to a 94-member group. Further, while Kruithoff opined that the pipe bomb incident was an outgrowth of the controversy in the fire department, he suggested neither that all members of the fire department, nor that any particular identifiable firefighters, were responsible. Lins is therefore clearly distinguishable and the exception recognized therein is not applicable.
It follows that the general rule recognized in Lins and Romney applies and that Kruithoff's alleged defamation of the fire department generally is not actionable by individual members because his statement was not "of and concerning" them individually. Defendant Kruithoff, too, is therefore entitled to judgment as a matter of law.
VII
Accordingly, defendants' joint motion for judgment on the pleadings, as to count VII of the first amended complaint, will be granted in toto. A partial judgment order consistent with this opinion shall issue forthwith.
PARTIAL JUDGMENT ORDER
In accordance with the Court's memorandum opinion of even date,
IT IS HEREBY ORDERED that defendants' joint motion for judgment on the pleadings is GRANTED; and
IT IS FURTHER ORDERED that JUDGMENT is hereby AWARDED to defendants Lawrence Hausman, Jeffrey Kruithoff and Merrill Stanley on the defamation claims asserted against them in count VII of the first amended complaint.