Filed: Nov. 13, 2017
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 17-1091 _ JOSEPH A. AMES, Appellant v. AMERICAN RADIO RELAY LEAGUE, INC.; TOM GALLAGHER; RICK RODERICK; DR. JAMES BOEHNER _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-16-cv-03660) District Judge: Hon. C. Darnell Jones, II _ Submitted Under Third Circuit L.A.R. 34.1(a) October 11, 2017 _ Before: HARDIMAN, SHWARTZ, and ROTH, Circuit Judges. (Opinion Filed: November
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 17-1091 _ JOSEPH A. AMES, Appellant v. AMERICAN RADIO RELAY LEAGUE, INC.; TOM GALLAGHER; RICK RODERICK; DR. JAMES BOEHNER _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-16-cv-03660) District Judge: Hon. C. Darnell Jones, II _ Submitted Under Third Circuit L.A.R. 34.1(a) October 11, 2017 _ Before: HARDIMAN, SHWARTZ, and ROTH, Circuit Judges. (Opinion Filed: November 1..
More
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 17-1091
______________
JOSEPH A. AMES,
Appellant
v.
AMERICAN RADIO RELAY LEAGUE, INC.;
TOM GALLAGHER; RICK RODERICK; DR. JAMES BOEHNER
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-16-cv-03660)
District Judge: Hon. C. Darnell Jones, II
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 11, 2017
______________
Before: HARDIMAN, SHWARTZ, and ROTH, Circuit Judges.
(Opinion Filed: November 13, 2017)
______________
OPINION
______________
SHWARTZ, Circuit Judge.
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
Joseph Ames sued the American Radio Relay League, Inc. (“ARRL”) and three of
its officers (collectively, “Defendants”) for defamation. The District Court dismissed his
claim. For the reasons set forth below, we will affirm.
I1
ARRL is the national association for amateur radio operators. ARRL sponsors the
National Traffic System (“NTS”) program, which provides radio communication services
to government agencies and other organizations, particularly during emergencies. NTS is
comprised of three regional sections: the Eastern, Central, and Pacific Areas. Ames
served as the Chairman of NTS’s Eastern Area and the Eastern Pennsylvania Section
Manager.
While serving in these roles, Ames had several communications with the Federal
Emergency Management Agency (“FEMA”). In May 2015, Ames received an email
from a FEMA representative, who inquired about using NTS and ARRL resources to
provide communications support during a potential catastrophic event. Ames told FEMA
about the communication services NTS could provide. In July 2015, Ames and another
NTS member sent a letter to FEMA on behalf of NTS, stating, among other things, that
(1) NTS would arrange a “table top exercise” with FEMA, and (2) NTS wanted to expand
the existing “memorandum of agreement” between ARRL and FEMA to create an
1
The following facts are taken from the complaint, assumed true, and construed in
the light most favorable to Ames. Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d
Cir. 2008). This section also refers to certain other “indisputably authentic documents”
related to the complaint, which may be properly considered when evaluating a motion to
dismiss. Spruill v. Gillis,
372 F.3d 218, 223 (3d Cir. 2004).
2
additional memorandum of agreement between NTS and FEMA that would establish a
direct relationship between NTS and FEMA and create guidelines concerning NTS’s
support of FEMA’s activities. App. 51.
In August 2015, ARRL’s Chief Executive Officer (“CEO”) David Sumner sent a
letter to Ames and others (“the August 2015 letter”). The August 2015 letter indicated,
among other things, that (1) under the ARRL bylaws, ARRL’s President (with assistance
from the CEO) is responsible for representing ARRL in its relationships with government
agencies and is the official spokesperson regarding ARRL policy; (2) pursuant to the
ARRL Board of Directors’ (“the Board”) policy statement, the CEO is responsible for
contacts made by staff members in the performance of their duties and may authorize
individuals to communicate with the federal government, but “the extent of contact
authorized will be determined by the terms of reference”; (3) the Board’s policy applies
to communications with all government agencies, including FEMA, made on behalf of
ARRL or any of its programs; (4) communications not in accordance with the Board’s
policy, including Ames’s July 2015 letter, are unauthorized; (5) ARRL’s designated point
of contact for the memorandum of agreement between FEMA and ARRL is Mike Corey,
and, “[u]nless otherwise authorized by [ARRL’s President], any communication with
FEMA pertaining to the [NTS] and any other ARRL programs is to be conducted only
through Mr. Corey.” App. 108-09.
After receiving the August 2015 letter, Ames continued to communicate with
FEMA. In October 2015, Ames emailed Sumner and indicated that he received a phone
call from a FEMA representative, who asked whether NTS would assist in a potential
3
FEMA response to an impending hurricane, and Ames told the FEMA representative that
NTS was willing to help however it could. Sumner responded, “Joe, thanks for putting us
all in the loop.” App. 76. In February 2016, Ames sent an email to a FEMA
representative, which stated that: (1) NTS would accept FEMA’s invitation to participate
in an upcoming exercise entitled “Cascadia Rising”; (2) NTS team members would
supervise NTS participation in the event and lead on-site planning, preparation, and
operations; (3) Ames could serve as a liaison for NTS; (4) Corey was ARRL’s point of
contact for FEMA; and (5) NTS would brief its managers and begin to plan its
participation in the event. Ames also sent the email to Corey and Sumner. Corey
responded, “[t]hanks for the update” and asked that NTS coordinate with other staff
members who were involved in the exercise. App. 78. Sumner responded, “Joe, thanks
for keeping us in the loop.” App. 77.
In June 2016, Ames received a letter from ARRL, notifying him that it had voted
to cancel all of his appointments, thereby removing him from his positions as Eastern
Area Chairman for NTS and Eastern Pennsylvania Section Manager. The letter
explained that ARRL was taking these actions because: (1) Ames treated NTS like a
separate entity from ARRL by making decisions on policy issues, issuing press releases,
doing government advocacy, and giving NTS volunteers the false impression that NTS is
separate from ARRL, as most recently reflected in connection with the Cascadia Rising
exercise; and (2) Sumner had warned Ames that he had no authority to contact or
negotiate with FEMA, yet Ames continued to make commitments on behalf of NTS to
4
FEMA without authorization, and sought to cultivate a unique relationship between NTS
and FEMA.
Shortly thereafter, ARRL published an article (“the Article”) on its website
entitled “ARRL Executive Committee Removes NTS Eastern Area Chair, Eastern
Pennsylvania Section Manager.” App. 52. The Article stated that ARRL had removed
Ames from his appointments within ARRL because “Ames unilaterally and repeatedly
communicated with officials of [FEMA] on behalf of NTS, making commitments on
behalf of ARRL without authority . . . in violation of the rules and regulations of the
ARRL Field Organization” and that “Ames repeatedly acted contrary to [the August
2015] directive,” which stated that, unless otherwise authorized by ARRL, any
communication with FEMA regarding NTS had to go through ARRL’s authorized
representatives. App. 52. The Article was shared with ARRL’s “165,000 members
worldwide” and was “reprinted and rebroadcasted by numerous third parties.” App. 34.
In July 2016, Ames filed a complaint against Defendants in the United States
District Court for the Eastern District of Pennsylvania, asserting a claim for defamation
based on Defendants’ publication of the Article. The District Court dismissed the
complaint, concluding that Ames could not maintain a claim for defamation because the
statements in the Article were true on the face of the complaint and therefore not
defamatory as a matter of law. Ames appeals.
II2
2
The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction
under 28 U.S.C. § 1291. We exercise plenary review over a district court’s order
5
Truth is an affirmative defense to a defamation claim under Pennsylvania law.3
Tucker v. Fischbein, 237 F.3d 275, 287 (3d Cir. 2001); Bobb v. Kraybill,
511 A.2d 1379,
1380 (Pa. Super. Ct. 1986); see also 42 Pa. Cons. Stat. § 8343(b)(1). “While ordinarily a
party may not raise affirmative defenses at the motion to dismiss stage, it may do so if the
defense is apparent on the face of the complaint.” Budhun v. Reading Hosp. & Med.
Ctr.,
765 F.3d 245, 259 (3d Cir. 2014) (citation omitted). Therefore, because we are
reviewing an order dismissing a complaint pursuant to Federal Rule of Civil Procedure
12(b)(6), we will consider whether the allegedly defamatory statements are true on the
face of the complaint, which includes consideration of both the allegations in the
complaint and undisputedly authentic documents referenced therein or integral to the
complaint. See Buck v. Hampton Twp. Sch. Dist.,
452 F.3d 256, 260 (3d Cir. 2006);
Pryor v. Nat’l Collegiate Athletic Ass’n,
288 F.3d 548, 559-60 (3d Cir. 2002); see also
Schmidt v. Skolas,
770 F.3d 241, 249 (3d Cir. 2014) (“[A] document integral to or
granting a motion to dismiss. Burtch v. Milberg Factors, Inc.,
662 F.3d 212, 220 (3d Cir.
2011). We must determine whether the complaint, construed “in the light most favorable
to the plaintiff,” Santomenno ex rel. John Hancock Tr. v. John Hancock Life Ins. Co.,
768 F.3d 284, 290 (3d Cir. 2014) (citation omitted), “contain[s] sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face,’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570
(2007)), “but we disregard rote recitals of the elements of a cause of action, legal
conclusions, and mere conclusory statements,” James v. City of Wilkes-Barre,
700 F.3d
675, 679 (3d Cir. 2012). A claim “has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Thompson v. Real Estate Mortg. Network,
748 F.3d 142, 147
(3d Cir. 2014) (citation omitted).
3
Neither party has challenged the applicability of Pennsylvania law.
6
explicitly relied upon in the complaint may be considered without converting the motion
to dismiss into one for summary judgment.” (emphasis and citation omitted)).
Ames alleges that the statement in the Article that “Ames unilaterally . . .
communicated with officials of [FEMA] on behalf of NTS” is defamatory. App. 43 (first
alteration in original). This statement covers two things: whether Ames communicated
with FEMA and whether he did so unilaterally. The record shows he did both and thus
the statement is true. In May 2015, Ames responded via email to an inquiry from a
FEMA representative and explained several different technologies that would enable
NTS to send communications in an emergency situation. In July 2015, Ames sent a letter
to FEMA on behalf of NTS, discussing “direct cooperation” between FEMA and NTS
and the possibility of entering into a formal memorandum of understanding between NTS
and FEMA. App. 51. In October 2015, Ames spoke with a FEMA representative and
told him that NTS would be willing to help with an impending hurricane. In February
2016, Ames sent an email to a FEMA representative on behalf of NTS, accepting
FEMA’s invitation to participate in the Cascadia Rising exercise. Therefore, the
complaint and documents related to events referred to therein show that Ames
communicated with FEMA on behalf of NTS, including twice after the August 2015
directive that all communications with FEMA should go through Corey.
Moreover, the record shows these communications were not authorized by ARRL
and thus unilateral. Ames claims that the communications were not unilateral and were
authorized because he “looped in” ARRL leadership on these communications and
Sumner and Corey thanked him for doing so. While ARRL leadership apparently did not
7
object to his emails to FEMA, this does not indicate that the ARRL leadership approved
of his communications. Ames informed ARRL leadership of his communications after
they had been sent. More importantly, their failure to object does not change the fact that
Ames has not alleged that he received approval from Corey or the ARRL president before
sending the communications despite the August 2015 directive requiring that any
communications with FEMA with respect to NTS were to go through Corey. Therefore,
the statement that Ames communicated unilaterally with FEMA on behalf of NTS is true
and cannot support a defamation claim.4
Ames also alleges that the Article’s statement that “Ames . . . repeatedly
communicated with officials of [FEMA] on behalf of NTS, making commitments on
behalf of ARRL without authority” is defamatory. App. 43 (first alteration in original).
The face of the complaint and associated documents, however, show that the statement is
true. Ames had several communications with FEMA in which he made commitments
without authority, including his: (1) July 2015 letter to FEMA, in which he committed “to
develop direct cooperation between FEMA and the NTS,” to “work with FEMA to
develop standard guidelines” regarding their relationship, to arrange a table top exercise
4
Ames also mentions that, following the August 2015 letter, he received a
certificate from ARRL acknowledging that he was a member of the ARRL A-1 Operator
Club and was authorized to nominate others for membership, and argues that this shows
that ARRL was satisfied with Ames’s work, even though he had communications with
FEMA. The certificate, however, is irrelevant because it predates Ames’s October 2015
and February 2016 communications with FEMA, and thus could not show approval for
those contacts with FEMA. Moreover, the certificate shows only that he had the
authority to nominate members and makes no mention of any other authority being
vested in him.
8
with FEMA, and to develop a formal memorandum of understanding between FEMA and
NTS, App. 51; (2) October 2015 email showing that, during a phone conversation with a
FEMA representative, he had agreed that NTS would help FEMA in its response to an
impending hurricane; and (3) February 2016 email to a FEMA representative, committing
NTS to attend the Cascadia Rising exercise and assigning tasks to NTS members to assist
with the event. Each of these documents show Ames made commitments to FEMA on
behalf of ARRL’s NTS program. Their text contradicts Ames’s argument that he merely
informed FEMA of NTS’s communication abilities and made no commitments. Finally,
as reflected in the August 2015 letter, Ames was not authorized to communicate with
FEMA without prior approval, and he does not allege that he obtained such approval.
Therefore, the statement that Ames “repeatedly communicated” with FEMA on behalf of
NTS and made commitments on behalf of ARRL without authority is true and cannot
support a claim for defamation.
Ames also cannot base a defamation claim on the Article’s statement that he
“repeatedly acted contrary to Sumner’s [August 2015] directive,” App. 43, because the
record shows the statement was true. The August 2015 letter explicitly stated that any
communication with FEMA pertaining to NTS, unless otherwise authorized by ARRL’s
president, “is to be conducted only through Mr. Corey.” App. 109. Despite this
directive, Ames communicated with FEMA in October 2015 and February 2016. Ames
has not alleged that he received approval from ARRL’s president or from Corey before
making these communications, and Ames’s argument that he received authorization after-
the-fact because ARRL leadership did not object to the communications does not show
9
the communications were authorized when they occurred. Therefore, because the record
shows that Ames acted contrary to the August 2015 directive on at least two occasions,
the statement that Ames “repeatedly acted contrary” to the directive is true and cannot
support a claim for defamation.
In summary, it is apparent on the face of the complaint and related documents that
the statements in the Article are true, and the District Court therefore correctly held that
the Defendants established a complete defense to Ames’s defamation claim and
appropriately dismissed the complaint.
III
For the foregoing reasons, we will affirm the order of the District Court.
10
