JOHN A. WOODCOCK, Jr., Chief District Judge.
In this defamation action, Paul Kendrick has moved for partial summary judgment, arguing that no punitive damages may be awarded against him as a matter of law. At this stage, the Court is required to view the much-disputed record in the light most favorable to the Plaintiffs and, having done so, concludes that there are genuine issues of material fact that call for jury resolution and preclude summary judgment on the issue of punitive damages.
On February 6, 2013, Hearts with Haiti, Inc. and Michael Geilenfeld filed a complaint against Paul Kendrick, asserting claims for defamation, false light invasion of privacy, and tortious interference with advantageous economic relationships. Verified Compl. and Demand for Jury Trial ¶¶ 89-105 (ECF No. 1) (Compl.). The Plaintiffs seek various forms of relief, including punitive damages. Id. ¶¶ 106-08. On March 8, 2013, Mr. Kendrick answered the Complaint, denying its essential allegations and asserting several defenses. Defenses and Answer at 1 (ECF No. 8) (Answer).
On May 9, 2014, Mr. Kendrick filed a sealed motion for partial summary judgment with a supporting statement of material facts. Def.'s Mot. for Partial Summ. J. (ECF No. 192) (Def.'s Mot.); Def.'s Local Rule 56(b) Supporting Statement of Material Facts (ECF No. 193) (DSMF). On June 4, 2014, the Plaintiffs responded to Mr. Kendrick's motion and supporting statement of material facts, and filed their statement of additional facts. Pls.' Opp'n to Def.'s Mot. for Partial Summ. J. (ECF No. 207) (Pls.' Opp'n); Pls.' Mot. to Seal Attach. 1 Pls.' Opposing Statement of Material Facts (ECF No. 208) (PRDSMF; PSAMF). On June 18, 2014, Mr. Kendrick replied to the Plaintiffs' response and statement of additional facts. Def.'s Reply Mem. to Pls.' Opp'n to Def.'s Mot. for Partial Summ. J. (ECF No. 211) (Def.'s Reply); Def.'s Mot. to File Under Seal Attach. 1 Local Rule 56(d) Reply Statement of Material Facts Including Local Rule 56(e) Resps. to Reqs. to Strike (ECF No. 212) (DRPSAMF).
In accordance with "conventional summary judgment praxis," the Court recounts the facts in the light most favorable to the Plaintiffs' theory of the case, "consistent with record support." Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 17 (1st Cir. 2002).
In the context of this bitterly contested case, the Court is obligated under the law to view the facts in the light most favorable to the non-moving parties, namely the Plaintiffs. Mr. Kendrick may view the Court's acceptance of the Plaintiffs' versions of contested facts as the Court taking sides in their dispute in favor of the Plaintiffs and against him. It is not doing so. The Court is not in a position to know who is right based on the numerous facts the parties are contesting. Instead, at this point, the Court is only resolving whether a jury gets to decide if the facts would justify the imposition of punitive damages, provided the jury resolves the contested facts in favor of the Plaintiffs. The Court assures the parties, particularly Mr. Kendrick, that in following the standard "summary judgment praxis," it is not prejudging the case.
Most prominent among the allegations the parties strenuously contest is the manifestly grave question of whether Mr. Geilenfeld has ever sexually abused anyone, particularly children in Haiti. Mr. Geilenfeld emphatically denies ever having sexually abused anyone and he says that he directly informed Mr. Kendrick of this fact. PSAMF ¶ 18. In his reply, Mr. Kendrick denied that this statement was true. DRPSAMF ¶ 18. For Mr. Geilenfeld, the allegations strike at the core of his work in Haiti, and presumably, the implications of these allegations motivated this lawsuit. For Mr. Kendrick, his allegations strike at the core of his defense.
Michael Geilenfeld is the founder and Executive Director of St. Joseph Family of Haiti, "which operates a network of nonprofit institutions that provide residence, room and board, formal education, and religious education to disabled and disadvantaged Haitian children." Compl. ¶ 7. St. Joseph Family "operates St. Joseph's Home for Boys, Wings of Hope, Trinity House, Lekòl Sen Trinite, and the Resurrection Dance Theater of Haiti." Id. ¶ 8.
Hearts with Haiti is a North Carolina nonprofit corporation located in Raleigh, North Carolina. Id. ¶ 1. Hearts with Haiti was and is a substantial financial contributor to the St. Joseph Homes. DSMF ¶ 5; PRDSMF ¶ 5. Hearts with Haiti solicits and accepts donations throughout the United States.
Paul Kendrick has lived in Freeport, Maine since December 2007; before that, he lived in Cumberland, Maine and Portland, Maine. Pls.' Third Mot. for Contempt and Sanctions Against Def. for Repeated Violation of the Ct.'s Orders Attach. 2 Videotaped Dep. of Paul Kendrick 21:14-23 (ECF No. 141) (Feb. 25, 2014) (Kendrick Dep. Tr.). He works as a financial advisor for RBC Wealth Management. Id. 20:23-21:13.
Cyrus Sibert is a journalist, id. 38:10-13, who works at least some of the time in Haiti. See id. 34:22-23. Mr. Sibert and Mr. Kendrick have known each other since approximately 2008. See id. 37:11-15, 38:23-39:6, 41:14-18.
Mr. Kendrick has never visited St. Joseph's Home for Boys, Wings of Hope, Trinity House, or Lekòl Sen Trinite. PSAMF ¶ 1; DRPSAMF ¶ 1. Before January 31, 2011, Mr. Kendrick had never met or communicated with Michael Geilenfeld or any employee, volunteer, or staff member of St. Joseph's Family of Haiti. PSAMF ¶ 2; DRPSAMF ¶ 2.
On January 6, 2011, Mr. Kendrick received an email from Mr. Sibert, explaining that Mr. Sibert had received a call from Bonnie Elam, a woman in North Carolina, who "told [Mr. Sibert] about a pedophil[e] situation in the capital," that the "abuser is powerful with one million dollars a year," and that she would send him "an email [] with all information." PRDSMF ¶ 1(a). Mr. Kendrick spoke with Ms. Elam, and she informed him that she was providing documents to Mr. Sibert but not to Mr. Kendrick. Id. ¶ 1(b).
On January 31, 2011, Mr. Kendrick received an email from Mr. Sibert, referencing a 20-year old statement of "Mary Kohl Hass and Michelle Finch" that Mr. Sibert had received from Ms. Elam and published on his blog. Id. ¶ 1(c). This statement alleged that Mr. Geilenfeld had abused the two women in 1990 and 1991. See Pls.' Resp. in Opp'n to Def.'s Mot. to Retain Classified Designation of Certain Docs. Attach. 1 Def.'s Resp. to Pl.'s First Set of Interrogs. ¶ 3 (ECF No. 60) (Interrog.).
Starting on January 31, 2011, and for a long time thereafter, Mr. Kendrick regularly sent materials to people and organizations associated with Mr. Geilenfeld, including those who supported Mr. Geilenfeld, telling them that Mr. Geilenfeld is a dangerous man who sexually abused children while serving as Executive Director of the St. Joseph's Homes for children in Port-au-Prince. DSMF ¶ 3; PRDSMF ¶ 3.
On January 31, 2011, Mr. Kendrick identified St. Theresa's Parish of Milwaukee, Wisconsin as a supporter of Mr. Geilenfeld. PSAMF ¶ 6; DRPSAMF ¶ 6. That day, Mr. Kendrick emailed officials of St. Theresa's Parish, claiming that "[t]here are substantiated reports that [Mr. Geilenfeld] is sexually abusing children" and inquiring as to why the Parish would be "sponsoring Michael Geilenfeld[.]" PSAMF ¶ 7; DRPSAMF ¶ 7.
During his deposition on February 25, 2014, Mr. Kendrick claimed that these "substantiated reports" referred to "two victims" in Haiti who told him over the phone that they had been sexually abused by Mr. Geilenfeld. PSAMF ¶ 8; DRPSAMF ¶ 8.
Mr. Kendrick also identified Hearts with Haiti board member, Rolvix Patterson, M.D., as a supporter of Michael Geilenfeld and St. Joseph's Family. PSAMF ¶ 10; DRPSAMF ¶ 10. Mr. Kendrick emailed Dr. Patterson with the following "Message for Michael Geilenfeld":
PSAMF ¶ 11; DRPSAMF ¶ 11.
On February 1, 2011, Mr. Kendrick emailed Bonnie Elam with the subject line "Not enough info":
PSAMF ¶ 12; DRPSAMF ¶ 12.
That same day, Mr. Kendrick also identified St. Cecilia's Parish in Boston, Massachusetts as a sponsor of Mr. Geilenfeld and St. Joseph's Family of Haiti. PSAMF ¶ 13; DRPSAMF ¶ 13. He then emailed parish officials, claiming that "[t]here are substantiated reports that [Mr.] Geilenfeld is sexually abusing children in Haiti" and inquiring as to why the Parish would be "sponsoring Michael Geilenfeld[.]" PSAMF ¶ 14; DRPSAMF ¶ 14.
On February 3, 2011, Mr. Kendrick emailed Mr. Geilenfeld, St. Theresa's Parish, St. Cecilia's Parish, and Dr. Patterson. PSAMF ¶ 15; DRPSAMF ¶ 15. He introduced himself as "a long time advocate for the protection of children" and explained that:
PSAMF ¶ 15; DRPSAMF ¶ 15. Later that day, Mr. Geilenfeld responded: "I will be happy to speak with you," providing Mr. Kendrick with his phone number and the contact information for two people associated with Mr. Geilenfeld's organization, and concluded by stating "Peace and all that is good! ____Michael." PSAMF ¶ 16; DRPSAMF ¶ 16. That same day, Mr. Kendrick responded to Mr. Geilenfeld's email:
PSAMF ¶ 17; DRPSAMF ¶ 17. Mr. Geilenfeld wrote back to Mr. Kendrick, denying that he had ever sexually abused any person. PSAMF ¶ 18; DRPSAMF ¶ 18.
On February 10, 2011, Mr. Kendrick reported to Mr. Sibert that he had "just spoke on the phone with [D.J.B.]" and thanked Mr. Sibert for introducing D.J.B. to him. PSAMF ¶ 20; DRPSAMF ¶ 20. Before this date, Mr. Kendrick had never communicated with D.J.B. or any individual whom he claimed was sexually abused by Mr. Geilenfeld. PSAMF ¶ 21; DRPSAMF ¶ 21.
On May 5, 2011, Mr. Sibert emailed Mr. Kendrick, explaining that a man named S.L. called Mr. Sibert because S.L. had "heard Geilenfeld under pressure." PSAMF ¶ 24; DRPSAMF ¶ 24. Before May 5, 2011, Mr. Kendrick had never heard of or communicated with an individual named S.L. PSAMF ¶ 25; DRPSAMF ¶ 25.
On May 13, 2011, Mr. Kendrick received an email from Valerie Dirksen, claiming that Mr. Geilenfeld ran a "massage program" at St. Joseph's Family for "men to give massages to boys" and favors certain children as "princes." PSAMF ¶ 26; DRPSAMF ¶ 26. On May 14, 2011, Mr. Kendrick questioned Ms. Dirksen about whom she had received the information from: "What is the source(s) of the info in these emails?" PSAMF ¶ 27; DRPSAMF ¶ 27. Neither Mr. Kendrick nor Ms. Dirksen knows the source of this information. PSAMF ¶¶ 28-29; DRPSAMF ¶¶ 28-29. Mr. Kendrick has acknowledged that he "wanted to know more," Kendrick Dep. Tr. 102:13, about the credibility, validity, or veracity of the allegations communicated to him by Ms. Dirksen. PSAMF ¶ 31; DRPSAMF ¶ 31.,
The next day, May 14, 2011, after questioning the source(s) of the information communicated to him by Ms. Dirksen, Mr. Kendrick emailed at least one benefactor and financial supporter of Mr. Geilenfeld and St. Joseph's Family, claiming that: (1) children at St. Joseph's Family watch and act out "Playboy" videos with Mr. Geilenfeld; (2) Mr. Geilenfeld forces children to lick vodka off of his body; (3) that Mr. Geilenfeld takes children to the Dominican Republic to engage in inappropriate sexual behavior with him; and (4) Mr. Geilenfeld bribes and threatens neighbors not to "talk." PSAMF ¶ 35; DRPSAMF ¶ 35.
Mr. Kendrick later claimed on at least more than one occasion that Valerie Dirksen was the source of the information in this email. PSAMF ¶ 36; DRPSAMF ¶ 36. However, Ms. Dirksen denied that she was the source of this information or provided this information to Mr. Kendrick. PSAMF ¶¶ 37-38; DRPSAMF ¶¶ 37-38.
No individual has testified that he or she is the source of the information conveyed in the email of May 14, 2011. PSAMF ¶ 44; DRPSAMF ¶ 44.
On May 28, 2011, Mr. Kendrick emailed multiple benefactors of Mr. Geilenfeld, St. Joseph's Family, and Hearts with Haiti, claiming that "Michael Geilenfeld's Haitian supporters say they will kill anybody behind this advocate who is causing `trouble' for Geilenfeld." PSAMF ¶ 46; DRPSAMF ¶ 46. Mr. Kendrick cannot recall who or what this information refers to. PSAMF ¶ 47; DRPSAMF ¶ 47.
On June 4, 2011, Mr. Kendrick emailed Mr. Sibert, explaining that he received a call from an individual living in Massachusetts named E.M., who claimed to be "a sex abuse victim of Geilenfeld and has lots to tell." PSAMF ¶ 49; DRPSAMF ¶ 49. Mr. Kendrick inquired of Mr. Sibert: "Do you know this individual? Should I know him?" PSAMF ¶ 49; DRPSAMF ¶ 49.
As of June 20, 2011, Mr. Kendrick claimed to have communicated with three alleged victims: S.L., D.J.B., and E.M. PSAMF ¶ 50; DRPSAMF ¶ 50. On that date, Mr. Kendrick emailed Mr. Sibert, explaining that he was "hearing over and over again from people who know of the St. Joseph's Homes that `these are old allegations.'" PSAMF ¶ 51; DRPSAMF ¶ 51. He confided in Mr. Sibert: "Please, don't take this the wrong way[] [b]ut, I am curious, are there more recent victims for the investigator to interview?" PSAMF ¶ 51; DRPSAMF ¶ 51.
On July 10, 2011, Mr. Kendrick emailed Mr. Geilenfeld: "You can tell your jerk of a houseguest, Pastor Rick [Barger], that no matter how hard he tries to protect and defend you, you will be indicted, arrested, convicted and imprisoned for child sex abuse." PSAMF ¶ 52; DRPSAMF ¶ 52; PSAMF ¶ 100; DRPSAMF ¶ 100.
Bill Nathan was in the care of St. Joseph's Family beginning at eight years of age. Additional Attachs. Attach. 6 (ECF No. 204) (Nathan Decl.). By 2011, he had risen to become the director of St. Joseph's Home for Boys. Id. On July 18, 2011, Mr. Kendrick emailed Mr. Nathan:
PSAMF ¶ 53; DRPSAMF ¶ 53. Mr. Kendrick has forgotten the source of this information he conveyed to Mr. Nathan. PSAMF ¶ 54; DRPSAMF ¶ 54.
The next day, July 19, 2011, Mr. Kendrick emailed Mr. Nathan: "For many, many years, you have looked the other way and said nothing while little boys are raped and sodomized by Geilenfeld . . . [a]re you so in love with Geilenfeld that you do nothing while he sexually abuses children?" PSAMF ¶ 57; DRPSAMF ¶ 57. Mr. Kendrick's basis for this statement was his perception that Mr. Nathan had worked at St. Joseph's Family for many years, had a good job, and was paid well. PSAMF ¶ 58; DRPSAMF ¶ 58.
On July 23, 2011, Mr. Kendrick emailed Mr. Nathan:
PSAMF ¶ 59; DRPSAMF ¶ 59.
Mr. Kendrick cannot recall what information he had or who told him that Mr. Nathan sexually abused children. PSAMF ¶ 60; DRPSAMF ¶ 60. Mr. Kendrick could not reference any information from any source stating that Mr. Nathan sexually abused children. PSAMF ¶ 61; DRPSAMF ¶ 61.
Special Agent Rod Khattabi of U.S. Immigration and Customs Enforcement (ICE) was involved in the U.S. Department of Homeland Security investigation that led to the prosecution and conviction of Douglas Perlitz for crimes of child abuse. PSAMF ¶ 23; DRPSAMF ¶ 23. On July 28, 2011,
On August 2, 2011, Mr. Kendrick emailed Mr. Geilenfeld and Mr. Hamrick with the subject line "Michael Geilenfeld — Child Sex Offender." PSAMF ¶ 66; DRPSAMF ¶ 66. The email stated:
PSAMF ¶ 66; DRPSAMF ¶ 66. Mr. Kendrick cannot recall the basis for the information in this email. PSAMF ¶ 67; DRPSAMF ¶ 67. He does not know whether bank records have ever been analyzed. PSAMF ¶ 68; DRPSAMF ¶ 68.
On August 7, 2011, Mr. Kendrick emailed Mr. Geilenfeld and Mr. Hamrick with the subject line "Fwd: You are going to spend the rest of your life in prison." PSAMF ¶ 70; DRPSAMF ¶ 70. The email read:
PSAMF ¶ 70; DRPSAMF ¶ 70. When asked about the source of this information, Mr. Kendrick ascribed it to "[l]ots of people" and said that "[i]t's like hearing a crowd in a stadium. Voices come from all over." PSAMF ¶ 71; DRPSAMF ¶ 71.
On August 7, 2011, the same day he emailed Messrs. Geilenfeld and Hamrick, Mr. Kendrick also emailed Mr. Nathan. PSAMF ¶ 74; DRPSAMF ¶ 74. In the email to Mr. Nathan, he claimed that "[c]hild protection advocates are going to confront you while you are in the U.S. You are aiding Geilenfeld in the rape of innocent children." PSAMF ¶ 74; DRPSAMF ¶ 74. He based this statement on a "chorus of people at that time" telling him that Mr. Nathan knew that Mr. Geilenfeld was abusing children. PSAMF ¶ 75; DRPSAMF ¶ 75. However, Mr. Kendrick could not recall the name of any individual in the "chorus of people." PSAMF ¶ 76; DRPSAMF ¶ 76.
On August 16, 2011, Mr. Nathan executed a notarized statement expressly denying Mr. Kendrick's allegations and declaring that he has never been physically or sexually abused by Mr. Geilenfeld, nor witnessed Mr. Geilenfeld physically or sexually abuse any person. PSAMF ¶ 78; DRPSAMF ¶ 78; Nathan Decl. Mr. Kendrick possessed this notarized statement and produced it in the course of discovery on June 25, 2013, in response to the Plaintiffs' discovery requests. PSAMF ¶ 79; DRPSAMF ¶ 79.
Also on August 16, 2011, Mr. Kendrick emailed Mr. Geilenfeld, Mr. Nathan, Mr. Hamrick, and one Renee Dietrich with the subject line "Arrest & Conviction." PSAMF ¶ 80; DRPSAMF ¶ 80. This email stated:
PSAMF ¶ 80; DRPSAMF ¶ 80. Mr. Kendrick cannot recall the basis of the information he conveyed in this email. PSAMF ¶ 81; DRPSAMF ¶ 81.
Wings of Hope, one of three children's homes within the St. Joseph's Family, cares for numerous children with severe disabilities. PSAMF ¶ 85; DRPSAMF ¶ 85. Resurrection Dance Theatre of Haiti is a performing arts group of the St. Joseph's Family that engages in fundraising efforts in Haiti, the United States, and Canada. PSAMF ¶ 83; DRPSAMF ¶ 83. Some of the money raised in Resurrection Dance Theatre performances was used to rebuild Wings of Hope's facilities that were destroyed in the January 2010 earthquake. PSAMF ¶ 84; DRPSAMF ¶ 84. Mr. Kendrick was aware of these facts. PSAMF ¶¶ 84-85; DRPSAMF ¶¶ 84-85.
Mr. Kendrick often blind copied numerous third parties to receive his email communications. PSAMF ¶ 82; DRPSAMF ¶ 82. On many occasions, he blind copied venues of, and people involved in organizing, the performances of Resurrection Dance Theatre. PSAMF ¶ 83; DRPSAMF ¶ 83.
For instance, on September 23, 2011, Mr. Kendrick sent an email to numerous volunteers and the host of the scheduled Resurrection Dance Theatre performance, the Racine Guild Theatre:
PSAMF ¶ 86; DRPSAMF ¶ 86. Mr. Kendrick emailed substantially similar statements to numerous other hosts and others involved with the Resurrection Dance Theatre of Haiti fundraising tours in 2011 and 2012, urging recipients to cancel performances. PSAMF ¶ 87; DRPSAMF ¶ 87.
On October 5, 2011, Mr. Kendrick emailed numerous third parties demanding that "Alden [sic] Sommers [be informed] that Michael Geilenfeld is a child molester," in response to Mr. Sommers' "big shout out to Hearts with Haiti and its mission of supporting the vision and ministry of the St. Joseph Family in Haiti." PSAMF ¶ 88; DRPSAMF ¶ 88. Mr. Sommers was, at the time, a ten-yearold boy who had created an iPhone application and expressed his intention to donate proceeds of the app to Hearts with Haiti and St. Joseph Family of Haiti. PSAMF ¶ 89; DRPSAMF ¶ 89.
On November 4, 2011, Mr. Kendrick emailed several officials at the United States Department of State and the United States Department of Homeland Security, copying numerous third parties, with the subject line "`Keystone Cops' style investigation of child sec [sic] abuse in Haiti":
PSAMF ¶ 90; DRPSAMF ¶ 90.
On December 1, 2011, Mr. Kendrick emailed one Robert Bryan Davis, asking him for a list of more than 100 email addresses of individuals Mr. Kendrick identified as supporting Mr. Geilenfeld and Hearts with Haiti. PSAMF ¶ 91; DRPSAMF ¶ 91. Mr. Kendrick explained that "[t]hey will prove to be invaluable." PSAMF ¶ 91; DRPSAMF ¶ 91. Mr. Davis apparently received the email addresses when Mr. Geilenfeld sent a holiday greeting to the owners' addresses without blind copying them. See Additional Attachs. Attach. 9 Hallelujah joy, at 2 (ECF No. 204). Mr. Kendrick intended to use the email addresses to disseminate allegations of child abuse to benefactors of Mr. Geilenfeld and Hearts with Haiti. PSAMF ¶ 92; DRPSAMF ¶ 92.
On December 6, 2011, Hearts with Haiti notified its supporters and benefactors that it was commissioning a third-party investigation into the allegations against Mr. Geilenfeld and St. Joseph's Family. PSAMF ¶ 93; DRPSAMF ¶ 93. The next day, December 7, 2011, Mr. Kendrick emailed S.L. and E.M. PSAMF ¶ 94; DRPSAMF ¶ 94. He informed them that "Hearts with Haiti has just announced that they have hired a private investigator to look into allegations of child sex abuse against Geilenfeld," and directed them not to cooperate with any investigator that tried to contact them. PSAMF ¶ 94; DRPSAMF ¶ 94.
In December 2011 or January 2012, Mr. Kendrick knew that a former FBI agent, Edward Clark of Clark Investigative Associates, Inc., was investigating information conveyed by Mr. Kendrick to Hearts with Haiti board members and benefactors regarding allegations of abuse against Mr. Geilenfeld and others at St. Joseph's Family. PSAMF ¶ 96; DRPSAMF ¶ 96. Mr. Kendrick did not inquire into Mr. Clark's background with the FBI because "[i]t doesn't mean a thing to [him]." PSAMF ¶ 97; DRPSAMF ¶ 97. On January 6, 2012, Mr. Kendrick sent an email to Mr. Clark with the subject line "Boston Private Eye warned to stay away from Haitian abuse victims":
PSAMF ¶ 98; DRPSAMF ¶ 98.
On December 24, 2011, Mr. Kendrick emailed Mr. Sibert, telling him that Mr. Kendrick had spoken with E.M. over the phone, and that E.M. said he was interviewed by an agent with the U.S. Department of Homeland Security. PSAMF ¶ 99; DRPSAMF ¶ 99.
On February 16, 2012, Mr. Kendrick emailed numerous third-party supporters of Hearts with Haiti, Mr. Geilenfeld, and St. Joseph's Family:
PSAMF ¶ 100; DRPSAMF ¶ 100 (emphasis in original). That same day, Johnny Moore, a benefactor of Hearts with Haiti, Mr. Geilenfeld, and St. Joseph's Family, responded to Mr. Kendrick's email, asking to be removed from his mailing list. PSAMF ¶ 101; DRPSAMF ¶ 101. Mr. Kendrick responded, copying Mr. Barger:
PSAMF ¶ 102; DRPSAMF ¶ 102.
On May 22, 2012, Mr. Kendrick emailed Mr. Sibert, Ms. Dirksen, and Mr. Davis his "acceptance" that the "U.S. Justice Department" investigation was not going to lead to Mr. Geilenfeld's arrest or prosecution:
PSAMF ¶ 103; DRPSAMF ¶ 103.
On June 10, 2012, Mr. Kendrick emailed himself, blind copying numerous benefactors of Hearts with Haiti, St. Joseph's Family, and Mr. Geilenfeld:
PSAMF ¶ 104; DRPSAMF ¶ 104 (emphasis in original). Two days later, on June 12, 2012, Mr. Kendrick again emailed himself, blind copying numerous benefactors of Hearts with Haiti, St. Joseph's Family, and Mr. Geilenfeld, stating that "Geilenfeld is threatening and intimidating abuse victims and witnesses." PSAMF ¶ 105; DRPSAMF ¶ 105. Mr. Kendrick does not know the basis of this allegation. PSAMF ¶ 106; DRPSAMF ¶ 106.
On June 28, 2012, the U.S. Department of Homeland Security closed its investigation into allegations of child abuse at St. Joseph's Family. PSAMF ¶ 108; DRPSAMF ¶ 108.
On July 1, 2012, Mr. Kendrick emailed numerous benefactors of Mr. Geilenfeld, Hearts with Haiti, and St. Joseph's Family, declaring:
PSAMF ¶ 110; DRPSAMF ¶ 110 (emphasis in original).
On October 1, 2012, Mr. Kendrick emailed himself, blind copying numerous benefactors of Mr. Geilenfeld, Hearts with Haiti, and St. Joseph's Family:
PSAMF ¶ 111; DRPSAMF ¶ 111 (emphasis in original).
On October 12, 2012, Mr. Kendrick posted a review of Hearts with Haiti on www.guidestar.org,
PSAMF ¶ 114; DRPSAMF ¶ 114.
Mr. Kendrick conveyed this information to Mr. Reid with the hope that Mr. Reid would publish an article "[a]bout all the allegations brought against Mr. Geilenfeld," which would cause the scheduled venues to cancel the Resurrection Dance Theatre fundraising performances. PSAMF ¶ 118; DRPSAMF ¶ 118. In his deposition, when asked whether he made up the information in the email to Mr. Reid, Mr. Kendrick gave an evasive response and could not recall who had provided the information that Mr. Nathan had instructed Resurrection Dance Theatre members not to communicate with investigators. PSAMF ¶ 115; DRPSAMF ¶ 115.
On October 15, 2012, Mr. Reid responded to Mr. Kendrick, thanking him for the information Mr. Kendrick conveyed to him regarding allegations of child abuse against Mr. Geilenfeld. PSAMF ¶ 117; DRPSAMF ¶ 117. However, less than an hour after Mr. Reid's response, Mr. Kendrick wrote to Mr. Reid: "I can understand that [you are] not able to substantiate the allegations at this time." PSAMF ¶ 119; DRPSAMF ¶ 119.
On October 18, 2012, Mr. Kendrick published on one of his public websites a mass email sent to himself, blind copying numerous benefactors of Hearts with Haiti, St. Joseph's Family, and Mr. Geilenfeld:
PSAMF ¶ 121; DRPSAMF ¶ 121 (emphasis in original).
On October 20, 2012, Mr. Kendrick emailed himself, blind copying numerous benefactors of Michael Geilenfeld, Hearts with Haiti, and St. Joseph's Family:
PSAMF ¶ 122; DRPSAMF ¶ 122.
On October 21, 2012, Mr. Kendrick received information from Bruce Foucart, "a senior executive of Homeland Security (who called [Mr. Kendrick])," that "the ICE agent in North Carolina has abandoned the investigation of Michael Geilenfeld." PSAMF ¶ 123; DRPSAMF ¶ 123. After receiving this information, Mr. Kendrick declared to Mr. Sibert that he was "committed to continuing [his] daily email `bombardment' of all the people and organizations who support Geilenfeld." PSAMF ¶ 124; DRPSAMF ¶ 124.
By October 22, 2012, Mr. Kendrick had knowledge that at least S.L., D.J.B., and E.M. had been interviewed by ICE regarding allegations of child sexual abuse communicated to ICE by Mr. Kendrick. PSAMF ¶ 125; DRPSAMF ¶ 125. On October 22, 2012, he received communication directly from Brian Padian, an official with the Department of Homeland Security, who stated that none of the individuals interviewed by ICE claimed to have been sexually abused. PSAMF ¶ 126; DRPSAMF ¶ 126.
That same day, after learning this, Mr. Kendrick emailed Mr. Sibert with the subject line "URGENT!!!":
PSAMF ¶ 127; DRPSAMF ¶ 127 (emphasis in original). He then followed up with a second email: "If it were not for my believing [E.M.], I would lose all confidence in this case." PSAMF ¶ 128; DRPSAMF ¶ 128. That day, he also emailed S.L.:
PSAMF ¶ 130; DRPSAMF ¶ 130.
Four days later, on October 26, 2012, he emailed Mr. Sibert again:
PSAMF ¶ 129; DRPSAMF ¶ 129.
On October 23, 2012, Mr. Kendrick sent an email to Wings of Hope staff member Renee Dietrich and several employees of St. Joseph's Family, as well as Hearts with Haiti board members and benefactors, accusing Ms. Dietrich of sexual abuse of girls at Wings of Hope. PSAMF ¶ 131; DRPSAMF ¶ 131. He cannot recall the basis on which he published these statements, but he intended for the information to be shocking and upsetting, and hoped that it would upset Ms. Dietrich. PSAMF ¶¶ 132, 134, 136; DRPSAMF ¶¶ 132, 134, 136.
On October 24, 2012, Mr. Kendrick received an email from Mr. Sibert, explaining that Hearts with Haiti's investigation "did not find anyone who admitted to being sexually abused by Geilenfeld." PSAMF ¶ 138; DRPSAMF ¶ 138.
On November 10, 2012, Mr. Kendrick emailed Mr. Sibert, explaining that Valerie Dirksen had travelled to Tennessee to interview someone "who people say is a victim of Geilenfeld, but this man would not admit to being abused." PSAMF ¶ 140; DRPSAMF ¶ 140. Mr. Kendrick does not recall who, other than Ms. Dirksen, the "people" were who said that the Tennessee resident was a victim, and does not know the source of Ms. Dirksen's information. PSAMF ¶¶ 141-42; DRPSAMF ¶¶ 141-42.
On November 15, 2012, Mr. Kendrick emailed Mr. Sibert and S.L.:
PSAMF ¶ 143; DRPSAMF ¶ 143.
Eight days after this exchange with Mr. Sibert and S.L., on November 23, 2012, Mr. Kendrick emailed Mr. Foucart at Homeland Security, claiming that Sony Derazin, a man with cerebral palsy and former resident of Wings of Hope, was sexually abused by Mr. Geilenfeld. PSAMF ¶ 144; DRPSAMF ¶ 144.
On December 12, 2012, Mr. Kendrick emailed Mr. Geilenfeld and several third party benefactors of Mr. Geilenfeld, St. Joseph's Family, and Hearts with Haiti, with the subject line "A promise to child sex offender, Michael Geilenfeld":
PSAMF ¶ 147; DRPSAMF ¶ 147. Shortly thereafter, on December 16, 2012, Mr. Kendrick emailed Jerry Hagler, a member of Hearts with Haiti's board of directors, accusing him of "protect[ing] [a] child molester in Haiti." PSAMF ¶ 148; DRPSAMF ¶ 148.
On December 18, 2012, Mr. Kendrick met with Mr. Derazin. PSAMF ¶ 149; DRPSAMF ¶ 149.
Four days after this meeting, on December 22, 2012, Mr. Kendrick emailed Kay Leaman and several other benefactors of Mr. Geilenfeld, St. Joseph's Family, and Hearts with Haiti:
PSAMF ¶ 153; DRPSAMF ¶ 153. At his deposition, Mr. Kendrick identified E.M. as the source of this information. PSAMF ¶ 154; DRPSAMF ¶ 154. However, Mr. Kendrick could not recall the identities of the other four alleged victims, and admitted that he neither talked to them nor ever attempted to contact them to verify E.M.'s story. PSAMF ¶ 154; DRPSAMF ¶ 154. Nevertheless, he remained adamant that "Geilenfeld sexually abused children." PSAMF ¶ 154; DRPSAMF ¶ 154.
On July 7, 2013, Mr. Kendrick emailed Ms. Dirksen, stating that the Department of Homeland Security had been misleading her because its investigation of Mr. Geilenfeld was "`closed' as of 1-14-2013." PSAMF ¶ 155; DRPSAMF ¶ 155.
On September 4, 2013, E.M. was served in hand with the Plaintiffs' notice to appear for a deposition on September 18, 2013, together with a witness fee check in the amount of $188.60. PSAMF ¶ 156; DRPSAMF ¶ 156. E.M. cashed the witness fee check the next day. PSAMF ¶ 157; DRPSAMF ¶ 157. However, he failed to appear for his deposition. PSAMF ¶ 158; DRPSAMF ¶ 158.
In December 2013, E.M. was arrested and detained by the Department of Homeland Security; the arrest related to his immigration status and multiple criminal convictions in California. PSAMF ¶ 159; DRPSAMF ¶ 159. On December 21, 2013, Mr. Kendrick posted to a Yahoo! Group a thinly veiled accusation that Mr. Geilenfeld "may be behind U.S. Immigration and Custom Enforcement's sudden and unexplained interest in E.M.'s U.S. visa status." PSAMF ¶ 160; DRPSAMF ¶ 160.
Mr. Kendrick puts forth that "[t]he First Amendment `forbids an award of . . . punitive damages for words spoken without actual malice on matters of public concern.'" Def.'s Mot. at 6 (quoting Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 132 (1st Cir. 1997)). He insists that he "unquestionably spoke on a matter of public concern," as "[t]he sexual abuse of children by Mr. Geilenfeld, an American citizen, at an orphanage he oversees in Haiti as part of his religious mission is a matter of public concern of the highest order." Id. at 8. He argues that this matter is "further elevate[d]" into the public sphere because Hearts with Haiti uses charitable donations from Americans to support Mr. Geilenfeld and his orphanage, and more generally, the orphanage receives millions in tax-deductible donations encouraged by federal and state tax policies. Id. He also notes the Maine Supreme Judicial Court (or the "Maine Law Court") has stated that in "matters concerning the protection of children from physical and sexual abuse, societal interests are at their zenith." Id. at 11 (quoting Fortin v. Roman Catholic Bishop of Portland, 2005 ME 57, ¶ 67, 871 A.2d 1208, 1230).
Mr. Kendrick then contends that "Plaintiffs must offer evidence of actual malice with `convincing clarity' to survive this motion for partial summary judgment." Id. (citing Levesque v. Doocy, 560 F.3d 82, 87 (1st Cir. 2009)). He notes that to demonstrate actual malice, the Plaintiffs "must show at a minimum that the defendant `entertained serious doubts as to the truth of his publications, or acted with a high degree of awareness of probable falsity.'" Id. at 12 (quoting Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 511 (1991)). Mr. Kendrick asserts that there is "overwhelming evidence in the record that [he] believed what he said and did not entertain `serious doubts as to the truth of his publications.'" Id. at 15 (quoting Masson, 501 U.S. at 511). Finally, Mr. Kendrick asserts that "there is an absence of evidence . . . of a high probability that Mr. Geilenfeld is not a child molester, much less that Mr. Kendrick was ever highly aware of that probability." Id. at 16. Based upon this characterization of the record, Mr. Kendrick concludes that "there is no basis for a jury finding of actual malice," and that summary judgment on punitive damages is therefore appropriate. Id.
The Plaintiffs vehemently disagree that Mr. Kendrick's allegations involve matters of public concern. Pls.' Opp'n at 6-13. They argue that the Maine Law Court has "repeatedly rejected such blanket arguments that allegations of child abuse, by their very nature, regardless of their content, form, and context, are matters of public concern." Id. at 9 (citing Ramirez v. Rogers, 540 A.2d 475, 477 (Me. 1988)). They insist that in the matter before the Court, "the form and context of speech were not . . . intended to fairly debate a matter of public interest within a public forum." Id. at 12. Instead, "there is enough undisputed evidence for this Court to conclude that as a matter of law all of the speech in issue is not a matter of public concern, and this case therefore does not implicate the constitutional `actual malice' fault standard at all." Id. at 13. In the alternative, the Plaintiffs warn that "whether a defamatory statement involves a matter of public concern requires consideration of its content, form, and context as revealed by a `whole-record review.'" Id. at 7 (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761-62 (1985)). They maintain that this determination is best made on a full-fledged record at trial, noting the First Circuit's commentary in a past case that "the lower court's resolution of the public concern issue [was] undermined by its incomplete assessment of the form, content, and context of [the defendant's] statements." Id. (quoting Levinsky's, 127 F.3d at 133).
Without admitting that the public concern standard applies, the Plaintiffs also argue that summary judgment on their punitive damages claim can alternatively be denied because "there are genuine issues of material fact on proof of constitutional actual-malice." Id. at 13-17. They agree in principle with Mr. Kendrick on the actual malice standard as articulated in Masson v. New Yorker Magazine, and submit that "summary judgment on actual malice must be denied as long as there is evidence in the record upon which a fact finder could conclude that the defendant knew his statements were false or otherwise acted in reckless disregard of their falsity." Id. at 14 (citing Masson, 501 U.S. at 521). They explain that "[t]he Supreme Court has expressed caution to lower courts analyzing the actual-malice standard at summary judgment, recognizing that `proof of actual malice calls a defendant's state of mind into question and does not readily lend itself to summary disposition.'" Id. (quoting Hutchinson v. Proxmire, 443 U.S. 111, 120 n.9 (1979)) (internal quotation marks omitted). More specifically, they put forth that "the [Supreme] Court has cautioned courts against crediting self-serving `truebeliever' testimony as to actual malice." Id. at 15 (citing St. Amant v. Thompson, 390 U.S. 727, 732 (1968)). With regard to the evidence required to demonstrate that a statement was made with reckless disregard of its falsity, the Plaintiffs maintain that "where . . . direct proof is missing, the jury may nevertheless infer that the [defendant] was aware of the falsity if [the jury] finds that there were `obvious reasons to doubt' the accuracy of [his statements], and that the defendant did not act reasonably in dispelling those doubts." Id. (quoting Suzuki Motor Corp. v. Consumers Union of U.S., Inc., 330 F.3d 1110, 1134 (9th Cir. 2003)).
Based on this standard, the Plaintiffs argue that their Statement of Additional Material Facts "sets forth in detail the many moments in Kendrick's unrelenting campaign of defamation when he knew the statements he made were false, or when he recklessly disregarded the truth or falsity of heinous accusations." Id. at 16. In particular, they insist there are moments in which "Kendrick confides in . . . private emails that he himself doubts the veracity of the allegations he perpetuates against Geilenfeld," id. (citing PSAMF ¶¶ 51, 103, 127-29, 140, 143, 150-52), "followed by a prompt resumption of the campaign of defamation, as if the truth or falsity quite literally did not matter." Id. (citing PSAMF ¶¶ 124, 126-28, 135). The Plaintiffs further argue that Mr. Kendrick's deposition "is replete with a professed lack of recall over the basis for facts specific to numerous charges he makes," id., so that "[t]he only [possible] inference on this record is that all of what Kendrick accuses Geilenfeld of doing came from Kendrick's own base imagination and no other accountable source." Id. at 17 (emphasis in original). Finally, the Plaintiffs insist the record demonstrates that Mr. Kendrick "threatens any person who privately investigates his defamatory remarks and by those threats he obstructs and discourages the separate investigation," id. (citing PSAMF ¶ 98), and that both reckless disregard and even active discouragement of investigation into the truth can be inferred from these actions. Id.
In summation, the Plaintiffs argue that "Kendrick knows that what he is saying is untrue, and he does not care." Id. Therefore, Plaintiffs insist that the Court—if it reaches the question of constitutional actual-malice—must deny Mr. Kendrick's motion. Id.
In reply, Mr. Kendrick rejects the analysis that the Plaintiffs use in determining whether Mr. Kendrick published on a "matter of public concern." Def.'s Reply at 1-6. He argues that, "[i]n short, it is a matter of public concern that a national tax-exempt organization may be funneling millions of dollars off shore to an organization operated by a child molester." Id. at 6.
Based on his characterization of the record, Mr. Kendrick also argues that "no reasonable observer could later say that Mr. Kendrick was `purposefully avoiding the truth,' or that he `had a high degree of awareness of probably [sic] falsity,' or that `his story was fabricated,' when Mr. Kendrick published statements that Mr. Geilenfeld was a child molester." Id. With this backdrop, he insists that the Plaintiffs' citations to record evidence "do not raise a genuine issue of actual malice." Id. at 7.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A fact is "material" if it "has the potential to change the outcome of the suit." Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011) (quoting Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)). A dispute is "genuine" if "a reasonable jury could resolve the point in favor of the nonmoving party." Id. (quoting McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)).
Once this evidence is supplied by the moving party, the nonmovant must "produce `specific facts, in suitable evidentiary form, to . . . establish the presence of a trialworthy issue.'" Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (quoting Morris v. Gov't Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994)). In other words, the non-moving party must "present `enough competent evidence' to enable a factfinder to decide in its favor on the disputed claims." Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002) (quoting Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir. 1993)).
The Court then "views the facts and draws all reasonable inferences in favor of the nonmoving party." Ophthalmic Surgeons, Ltd. v. Paychex, Inc., 632 F.3d 31, 35 (1st Cir. 2011). However, the Court "afford[s] no evidentiary weight to `conclusory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative.'" Tropigas, 637 F.3d at 56 (quoting Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir. 2001)); accord Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir. 2009).
The narrow issue in this motion for summary judgment is whether the Plaintiffs may seek punitive damages at trial. Both sides agree that "the Constitution forbids an award of . . . punitive damages for words spoken without actual malice on matters of public concern." Levinsky's, 127 F.3d at 132. They disagree sharply over whether Mr. Kendrick's campaign against Mr. Geilenfeld, Hearts with Haiti, and St. Joseph's Family amounts to a "matter[] of public concern." Id. The Court does not reach this issue, because a fact-finder, viewing the whole summary judgment record in the light most favorable to the Plaintiffs, could reasonably find that Mr. Kendrick has demonstrated "actual malice."
A plaintiff may establish actual malice by showing that the defendant "knew that its statements were false or had serious doubts about their truth and dove recklessly ahead anyway." Schatz v. Republican State Leadership Comm., 669 F.3d 50, 58 (1st Cir. 2012). The First Circuit's description is similar to the standard announced by the Maine Supreme Judicial Court. In 1988, the Maine Law Court wrote, in the context of a slander case, that to recover punitive damages, a plaintiff must demonstrate that a defendant acted "with malice." Ramirez v. Rogers, 540 A.2d 475, 478 (Me. 1988) (quoting Tuttle v. Raymond, 494 A.2d 1353, 1361 (Me. 1985)). The Ramirez Court went on to define the standard for malice: "In order to recover damages, the plaintiff must show the defendant's tortious conduct was motivated by ill-will, or that the defendant's tortious conduct `is so outrageous that malice toward a person injured as a result of that conduct can be implied.'" Id. (quoting Tuttle, 494 A.2d at 1361); see also Haworth v. Feigon, 623 A.2d 150, 159 (Me. 1993) (same). "`[R]ecklessness amounting to actual malice may be found' where the defendant `relies on a source' when `there is an obvious reason to doubt its veracity . . . or deliberately ignores evidence that calls into question his published statements.'" Schatz, 669 F.3d at 58 (quoting Levesque, 560 F.3d at 90). Furthermore, to establish actual malice in this case, both federal and Maine law may require that the Plaintiffs meet a "clear and convincing evidence" standard of proof. Galarneau v. Merrill Lynch, Pierce, Fenner & Smith Inc., 504 F.3d 189, 199 (1st Cir. 2007); Lester v. Powers, 596 A.2d 65, 69 (Me. 1991). Nevertheless, the higher standard of proof, if applicable, would not remove the punitive damages claim from jury consideration, only make it more difficult to prove.
The record, viewed in the light most favorable to the Plaintiffs, contains sufficient evidence from which a jury could reasonably find that Mr. Kendrick deliberately ignored evidence that called into question his published statements and that he relied on highly questionable sources. Mr. Kendrick spent nearly three years repeatedly leveling categorical, serious accusations of child molestation against Mr. Geilenfeld. Many of his missives immediately followed his own private expressions of doubt about the evidence.
A few examples will make the point. On February 1, 2011, Mr. Kendrick emailed Ms. Elam, noting that there were large gaps in his information about the alleged abuse. Section I.B.a, supra. However, the same day, he informed officials of St. Cecilia's Parish that "[t]here are substantiated reports that [Mr.] Geilenfeld is sexually abusing children in Haiti." Id. His email earlier in the day to Ms. Elam suggests just the opposite; that he was aware that the reports were not substantiated, and that he could not "speak with authority that Geilenfeld is a child molester." Id. A fact-finder could reasonably draw an inference of actual malice from this exchange.
Mr. Kendrick claimed that he received allegations of sexual abuse against Mr. Geilenfeld from Valerie Dirksen, a woman who also claimed that Mr. Geilenfeld attacked children with "voodoo magic." Section I.B.b, supra. Without independently confirming the veracity of the allegations, see Schatz, 669 F.3d at 58, Mr. Kendrick passed these accusations on to Messrs. Hamrick, Unni, and Kellen. Section I.B.5.b, supra. A fact-finder could also reasonably find that Mr. Kendrick added additional details to his accusations that did not originate with Ms. Dirksen or any other credible source. Id. A fact-finder could reasonably draw an inference of actual malice from this exchange.
Mr. Kendrick accused Mr. Nathan of committing sexual abuse and aiding and abetting Mr. Geilenfeld's supposed sexual abuse, Section I.B.6.a, supra; repeatedly accused Mr. Geilenfeld of child sexual abuse to federal law enforcement officials, Section I.B.6.b, supra; and leveled the same accusations to members of the press. Section I.B.9, supra. A fact-finder could reasonably find that he should have entertained serious doubts about the veracity of this information. See generally Section I.B, supra. It could reasonably find that, despite these doubts, Mr. Kendrick continued to level accusations against Mr. Geilenfeld, Hearts with Haiti, and the St. Joseph's Family. Id. Thus, a fact-finder could reasonably draw an inference of actual malice from all of these actions by Mr. Kendrick.
The summary judgment record recited in Section I.B contains ample additional examples from which a fact-finder could reasonably infer actual malice, and further rehashing will add little. Even assuming that he was speaking on a matter of public concern, Mr. Kendrick has not demonstrated that there are no genuine disputes of material fact or that he is entitled to judgment as a matter of law on the issue of punitive damages.
The Court DENIES the Defendant's Motion for Partial Summary Judgment (ECF No. 192).
The Court grants the Defendant's Motion With Memorandum of Law to File "Defendant's Motion for Partial Summary Judgment With Incorporated Memorandum Under Seal" (ECF No. 191) and directs the Clerk of Court to seal this Order when docketed.
The parties shall notify the Court no later than seven days from the date of this decision as to whether the Defendant's motion, the Plaintiffs' response, the Defendant's reply and their attachments and this decision contain any confidential information that must remain sealed. If so, indicate explicitly what language should be redacted with due regard to the public's interest in access to court proceedings. If counsel take the position that certain portions of the pleadings filed in support of or against the motion and this Order must be sealed, they should justify their position against public disclosure with relevant case law.
The Court observes that the Defendant's May 9, 2014 motion to seal attempts to justify the sealing of the entire motion by noting that the deposition transcript of Paul Kendrick has been filed under seal. Def.'s Mot. to Mem. of Law to File "Def.'s Mot. for Partial Summ. J. with Incorporated Mem. of Law" Under Seal at 1 (ECF No. 191). Similarly, the Magistrate Judge granted the motion to seal confidential transcripts. Order (ECF No. 215). However, because a document is sealed for discovery purposes does not mean it should be sealed for purposes of a court ruling on a substantive motion. Once a motion hardens into an order that affects the parties' substantive rights, the presumption of public access applies.
In United States v. Kravetz, 706 F.3d 47 (1st Cir. 2013), the First Circuit explained the common law presumption of public access does not apply to "materials gained through civil discovery." Id. at 55. Nevertheless, the First Circuit reiterated that the public has a right of access to "materials on which a court relies in determining the litigants' substantive rights." Id. at 54 (quoting In re Providence Journal, 293 F.3d 1, 9-10 (1st Cir. 2002) (quoting Anderson v. Cryovac, Inc., 805 F.2d 1, 13 (1st Cir. 1986)). The materials that the parties submitted in support and in defense of the motion for partial summary judgment and the contents of this Order appear to be "materials on which a court relies in determining the litigants' substantive rights." Id.
If the Court does not hear from counsel within seven days of the date of this decision, all pleadings in support of and against this motion and their attachments and this Order will be unsealed in their entirety. The parties have the continuing obligation to notify the Court as to any personal identifiers that should be redacted under Local Rule 7(c) and fall outside the scope of the right of public access.
SO ORDERED.
Mr. Kendrick cites paragraphs in the Verified Complaint in support of paragraph 8. DSMF ¶ 8. The Court reviewed the cited portions of the Complaint and notes that the Complaint states that Hearts with Haiti "has organized thousands of volunteers from throughout the United States to participate in the mission of St. Joseph Family of Haiti." Compl. ¶ 42. To volunteer is to donate time, and therefore, the Court overrules the Plaintiffs' qualified response.
Interrog. ¶ 4. The Plaintiffs' record citation in support of paragraph 21 is email correspondence between Mr. Kendrick and Mr. Sibert. Pls.' Mot. to Seal Attach. 2 UNREDACTED PK 30 (ECF No. 208). That document contains an email sent from Cyrus Sibert to Mr. Kendrick on February 9, 2011, in which Mr. Sibert states, in relevant part: "Also, I call[ed] one of the victim[s] named [D.J.B.]. . . . You can call [D.J.B.] at [phone number]. [D.J.B.] speaks English." Id. On February 10, 2011, Mr. Kendrick responded to Mr. Sibert, noting that "I just spoke on the phone with [D.J.B.]," and concludes by saying "than[k] you for introducing [D.J.B.] to me." Id.
Viewing the facts in the light most favorable to the Plaintiffs, the Court concludes that paragraph 21 is supported by the record. The email correspondence between Mr. Kendrick and Mr. Sibert supports the conclusion that Mr. Kendrick did not speak to D.J.B. until February 10, 2011. The email correspondence also supports the proposition that Mr. Kendrick had not spoken to the second alleged victim, S.L., before that time, as the two men discuss the victims of Mr. Geilenfeld's alleged sex abuse broadly—not just limited to D.J.B. One reasonable inference is that if Mr. Kendrick had spoken to S.L. before this time, the conversation would have been mentioned or at least hinted at in the emails. Mr. Kendrick's citation, that he was informed of two victims by Mr. Sibert in "January and February of 2011," and that he then interviewed these two victims without explicitly stating when the interviews took place, does not generate a question of fact as to whether Mr. Kendrick communicated with alleged victims before February 10, 2011. Additionally, Mr. Kendrick has admitted the Plaintiffs' paragraph 24, which states that "[o]n May 5, 2011, [Mr.] Sibert e-mailed [Mr.] Kendrick that a man named S.L. called him because S.L. had `heard Geilenfeld under pressure.'" PSAMF ¶ 24; DRPSAMF ¶ 24. This constitutes further inferential evidence that Mr. Kendrick did not speak with S.L. before February 10, 2011. Again, as the Court is required to view contested matters in the light most favorable to the Plaintiffs, the Court deems paragraph 21 admitted under Local Rule 56(f), (g).
Dirksen Dep. Tr. 80:7-21. Reading this testimony in the light most favorable to the Plaintiffs, the Court concludes that Ms. Dirksen had heard the allegations, but she was not the source of Mr. Kendrick's knowledge of them. The Court adjusted the Plaintiffs' paragraph 37 to be more precise, but otherwise deems its substance admitted under Local Rule 56(f), (g).
Kendrick Dep. Tr. 130:14-131:3. Viewing this exchange in the light most favorable to the Plaintiffs, the Court agrees that Mr. Kendrick "could not reference any information from any source stating that [Mr.] Nathan sexually abused children." PSAMF ¶ 61. The Court deems the Plaintiffs' paragraph 61 admitted under Local Rule 56(f), (g). However, the Court does not credit the Plaintiffs' paragraph 62 for the same reasons discussed previously regarding paragraph 45. See supra note 18.
Dec. 8 Email Re: Private Investigators at 2. Reading this in the light most favorable to the Plaintiffs, the Court concludes that he "directed" S.L. and E.M. "not to cooperate with any investigator that tried to contact them." PSAMF ¶ 94. Because Mr. Kendrick has not controverted the Plaintiffs' paragraph 94, the Court deems it admitted under Local Rule 56(f), (g).
There is no suggestion in the summary judgment record that Mr. Kendrick was aware of the records; they cannot be offered to show his knowledge of the investigation's closure if there is no evidence showing that he knew of them. The records, standing alone as they are, must be offered for the truth of the matter asserted. However, the Plaintiffs contend that they are admissible under Federal Rule of Evidence 803 as "certified domestic records of a regularly conducted activity." Id. This is correct—if the records are authentic—under the "public records" exception found in Federal Rule of Evidence 803(8). Rule 803, however, requires consideration of the authenticity of the records. The Plaintiffs argue that they are presumptively authentic under Federal Rule of Evidence 902 (presumably subsection (4), as the copies bear no seals, certifications, or signatures).
District of Maine Local Rule 44 requires a party intending to offer evidence under Federal Rule of Civil Procedure 44 or Federal Rule of Evidence 902(1)-(4) or (11)-(12) to make a timely disclosure to the opposing party. D. ME. LOC. R. 44. The Local Rule also requires that "[o]bjection to the authenticity of such records shall be filed with the court within 14 days of identification." Id. The Plaintiffs provided a copy of their Local Rule 44 disclosure, dated September 16, 2013, which included the Homeland Security document underlying Plaintiffs' paragraph 108. Pls.' Resps. to Def.'s Reqs. to Strike Attach. 1 Pls.' Local Rule 44 Disclosure (ECF No. 219). The Court's docket shows no objection by Mr. Kendrick within fourteen days of that date. Consequently, the Court deems Mr. Kendrick's objection to the authenticity of the Homeland Security document waived.
Mr. Kendrick also interposes a qualified response to the paragraph, DRPSAMF ¶ 108, but the qualification does not render the assertion incomplete or misleading. The Court deems the Plaintiffs' paragraph 108 admitted under Local Rule 56(f), (g).
